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Allahabad High Court · body

2016 DIGILAW 3317 (ALL)

RAJU v. STATE OF U. P.

2016-09-28

ANIL KUMAR, ANIL KUMAR SRIVASTAVA II

body2016
64. We have gone through the statement of PW-7 SI Vivekanand, Investigating Officer, who has stated that he was present at the Ugu outpost when he got the information of this case at about 6:15 PM. Information was given by villagers. On getting the information he reached at the spot. Thereafter, he received the papers of this case alongwith the first information report at about 08:00 of 08:30 PM. He started preparing inquest report at 08:30 PM but no eyewitness was present there. It is further stated by him that he did not think it proper to inquire about the case under section 25 Arms Act. So far as case under section 25 Arms Act is concerned even if no inquiry was made by the Investigating Officer about that case it can be said to be a defect of the investigation but presence of the injured as well as deceased alongwith PW-4 Ram Singh at the place of occurrence is fully established by the ocular evidence on record. We do not find any reason to disbelieve the statement of PW-1 Ram Swaroop and PW-4 Ram Singh. It is settled legal position that any defect in the investigation cannot extend any benefit in favour of the accused unless and until it is proved that prejudice was caused to him. 65. In Dayal Singh and others vs. State of Uttranchal 2012 (3) J.I.C. 428 Hon'ble Supreme Court propounded the law on defective or faulty investigation. It was held that – "The investigating Officer, as well as the doctor who are dealing with the investigation of a criminal case, are obliged to act in accordance with the police manual and the known reasons of medical practice, respectively. They are both obliged to be diligent, truthful and fair in their approach and investigation. A default or breach of duty, intentionally or otherwise, can some times prove fatal to the case of the prosecution. An Investigating Officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Where the default and omission is so flagrant that it speaks volumes of deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it." "Declaration in duty or carelessness is an abuse of discretion under a definite law and misconduct is a violation of indefinite law. Where the default and omission is so flagrant that it speaks volumes of deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it." "Declaration in duty or carelessness is an abuse of discretion under a definite law and misconduct is a violation of indefinite law. Misconduct is a forbidden act whereas dereliction of duty is the forbidden quality of an act and is necessarily indefinite. One is a transgression of some established and definite rule of action, with least element of discretion, while the other is primarily an abuse of discretion. This Court in the case of State of Punjab & Ors. Vs. Ram Singh Ex. Constable [ (1992)4 SCC 54 : ( AIR 1992 SC 2188 : 1992 AIR SCW 2595)] stated that the ambit of these expressions had to be construed with reference to the subject-matter and the context where the terms occurs, regard being given to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires maintenance of strict discipline. The consequences of these defaults should normally be attributable to negligence. Police officers and doctors, by their profession, are required to maintain duty decorum of high standards. The standards of investigation and the prestige of the profession are dependent upon the action of such specialized persons. The police manual and even the provisions of the Cr.P.C. Require the investigation to be conducted in a particular manner and method which, in our opinion, stands clearly violated in the present case. ................. Also, in the same case, the court, while referring to the decision in Ram Bihari Yadav and others vs. State of Bihar & Ors. The police manual and even the provisions of the Cr.P.C. Require the investigation to be conducted in a particular manner and method which, in our opinion, stands clearly violated in the present case. ................. Also, in the same case, the court, while referring to the decision in Ram Bihari Yadav and others vs. State of Bihar & Ors. [ (1995) 6 SCC 31 : ( AIR 1996 SC 122 : 1995 AIR SCW 3810)] noticed that if primacy is given to such designed or negligent investigation, to the omission of lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcement agency but also in the administration of justice." "In the case of Sathi Prasad vs. The State of U.P. [ (1972) 3 scc 613 : ( AIR 1973 SC 448 )], this court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in the court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in the case of Dhanaj Singh alias Shera & Ors. Vs. State of Punjab [ (2004) 3 SCC 654 : ( AIR 2004 SC 1920 : 2004 AIR SCW 1609)], held, "in the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tentamount to playing into the hands of the investigating officer if the investigation is designedly defective." "The court in the case of Paras Yadav vs. State of Bihar [ AIR 1999 SC 644 : (1999 AIR SCW 296)], enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should into stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party".......... The contaminated conduct of officials should into stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party".......... " Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be ensure needs of the society. On the contrary, efforts should be ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much important if not more, as the interest of the individual accused. The courts have a vital role to play." 66. PW-7 Investigating Officer Vivekanand has stated that he reached at the spot at 06:15 on receiving information from number of persons about the incident. First information report of the case was lodged at 07:00 PM. Investigation officer got the papers including first information report at about 08:00 to 08:30 PM. It cannot be said as has been held in the earlier part of the judgment that the first information report is ante-time. It may so happen that when two murders have been committed and there was a hue and cry as is evident from the evidence of the witness than after the incident people from Jasra side also came and fired so definitely in such a hue and cry if information is received at the police outpost and police reached at the spot it does not vitiate the first information report or makes the FIR of the case doubtful. 67. Prosecution has successfully proved the charges against the accused. Evidence of PW-1 Ram Swaroop and PW-4 Ram Singh is fully reliable. Learned trial court has right appreciated the evidence on record and recorded a finding of conviction against the accused. We are of the considered view that the judgment of the learned trial court is based on the evidence on record. Accordingly, we are of the view that the appeal lacks merit and is liable to be dismissed and judgment and order of the learned trial court is to be confirmed. Accordingly, appeal is dismissed. We are of the considered view that the judgment of the learned trial court is based on the evidence on record. Accordingly, we are of the view that the appeal lacks merit and is liable to be dismissed and judgment and order of the learned trial court is to be confirmed. Accordingly, appeal is dismissed. Judgment and order of the learned trial court is confirmed. Accused are on bail. Their bail is cancelled and sureties are discharged. They shall be taken into custody to serve out the sentence as imposed by the learned trial court. 68. Office is directed to certify this order to the learned trial court to ensure compliance. Office is further directed to transmit the lower court record forthwith. Learned trial court shall send the compliance report within a period of six weeks from the date of receipt of the copy of the judgment. JUDGMENT : (Per Anil Kumar Srivastava-II, J.) 1. Heard Shri Nagendra Mohan, learned counsel for the appellants and Ms. Ruhi Siddiqui, learned A.G.A. for the State. 2. Instant appeal has arisen against the judgment and order dated 13.10.1982 passed by learned 7th Additional Sessions Judge, Unnao in Sessions Trial No. 413 of 1979, State versus Piare and others under section 147, 148, 302/149 and 379 IPC, Police Station Fatehpur Chaurasi, District Unnao whereby accused were convicted and sentenced as under :- (i) Accused Raju was sentenced to undergo life imprisonment under section 302 IPC, seven years rigorous imprisonment under section 307 IPC and two years rigorous imprisonment under section 148 IPC. (ii) Accused Pappu alias Sheo Mangal was sentenced to undergo life imprisonment under section 302 IPC and two years rigorous imprisonment under section 148 IPC. (iii) Accused Piare was sentenced to undergo life imprisonment under section 302 IPC and two years rigorous imprisonment under section 148 IPC. (iv) Accused Munna was sentenced to undergo life imprisonment under section 302 IPC and two years rigorous imprisonment under section 148 IPC. (v) Accused Jag Roop was sentenced to undergo life imprisonment under section 302 IPC read with section 149 IPC, one year rigorous imprisonment under section 147 IPC and three years rigorous imprisonment under section 379 IPC. 3. According to the report of Chief Judicial Magistrate Unnao the appellant no.3 Piare son of Dorilal has died, hence, his appeal is abated. 4. 3. According to the report of Chief Judicial Magistrate Unnao the appellant no.3 Piare son of Dorilal has died, hence, his appeal is abated. 4. According to the prosecution version, complainant Padamnath Shukla son of Paras Nath Shukla is resident of Village Ugu, Police station Fatehpur Chaurasi, District Unnao. On 13.7.1974 Ashok Pande, Chhunia Brahmin and Gauri Kurmi have murdered his father Paras Nath Shukla. Munai alias Kashi Prasad Vani Devi and Lature Pahlwan alias Rameshwar of his village have conspired murder of his father. Trial was pending in the Court. On 22.5.1975 Lature Pahlwan alias Rameshwar was killed. Suman alias Amar Nath and Babuwa alias Mahendra Nath brother of complainant were tried and were acquitted by the court. Appeal preferred by the family members of Lature Pahlwan was dismissed by the High Court due to which they were inimical and were planning to kill the brothers of the complainant. 5. On 09.02.1979, case of Babuwa alias Mahendra Nath was listed in the court in which complainant alongwith his brother Suman alias Amar Nath, Babuwa alias Mahendra Nath, Manna alias Ram Swaroop, Ram Sewak and Buche alias Usman resident of village Ugu went to Unnao for pariavi. Manna alias Ram Swaroop was carrying double barrel gun. In the evening all of them came to Hulasi Kuwan by bus and were going to their village Ugu on foot. At about 06:00 PM when they reached near the pulia of Ugu Minor then all of sudden Raju Kurmi armed with farsa Munna Kurmi armed with gadasa, Munai alias Kashi Prasad armed with counrymade pistol, Rajjan Misra armed with Banka, Piare Kurmi armed with countrymade pistol, Pappu alias Sheo Mangal Kurmi armed with a gun and Jagroop came. Jagroop caught hold of Manna alias Ram Swaroop from the back, Raju attacked Manna alias Ram Swaroop by his farsa who received injuries. His gun was snatched by Jagroop. Manna alias Ram Swaroop was thrown in the bamba. Suman alias Amar Nath and Babuwa alias Mahendra ran away towards western side. On exhortation of Manai Pappu alias Sheo Mangal fired upon them by his gun. Babua fell down on the med of wheat field. When Suman alias Amar Nath tried to help Babua then Piare and Babu fired upon him by countrymade pistol and gun which hit Suman alias Amar Nath in his chest and right side of abdomen. On exhortation of Manai Pappu alias Sheo Mangal fired upon them by his gun. Babua fell down on the med of wheat field. When Suman alias Amar Nath tried to help Babua then Piare and Babu fired upon him by countrymade pistol and gun which hit Suman alias Amar Nath in his chest and right side of abdomen. He also fell down along the side of Babuwa. Raju, Munna, Rajjan attacked them by farsa, gadasa and banka. On raising an alarm by complainant and his companions Ram Sigh Kurmi, Mulla Pasi Mahmood came and raised alarm. Thereafter, there was a hue and cry from the side of Jasra and shots were fired. Then accused ran away towards northern side by firing from their arms. They also took away with them the double barrel gun of Manna alias Ram Swaroop. Both the brothers of complainant received several injuries and died at the spot. Manna alias Ram Swaroop was hiding himself behind tree. He was also seriously injured. At the spot police force of outpost Ugu and other person came. Manna was sent to the hospital. Thereafter, complainant lodged the FIR at police station Fatehpur Chaurasi on the same day, i.e., 9.2.1979 at 7.00 PM whereby a case crime no.35/79 under section 147, 148, 149, 302, 307 IPC was registered and investigation was handed over to the Investigating Officer. 6. Investigating Officer reached at the spot and prepared the inquest memo which began on 9.2.1979 at 8.30 PM and continued up to 10.7.1979 up to 2:30 PM. Dead body was sealed and sent for postmortem. Postmortem was conducted on 10.2.1979 at 4.00 PM and 5.00 PM. Cloth of the deceased, plain and blood stained earth, banka, gadasa, two empty cartridges were recovered by the Investigating Officer. Site plan was also prepared. Statement of witnesses were recorded. Clothes of deceased as well as plain and blood stained earth was sent to forensic science laboratory. Statement of witnesses were recorded. After concluding the investigation chargesheet was submitted against the accused. 7. In order to prove its case prosecution has produced PW-1 Ram Swaroop injured eyewitness, PW-2 Usman who has turned hostile, PW-3 Dr. A. Akram who has conducted the postmortem of the body of the deceased and found following anti mortem injuries on the body of Mahendra Nath alias Babuwa whose postmortem was conducted on 10.02.1979 at 4.00 PM. 7. In order to prove its case prosecution has produced PW-1 Ram Swaroop injured eyewitness, PW-2 Usman who has turned hostile, PW-3 Dr. A. Akram who has conducted the postmortem of the body of the deceased and found following anti mortem injuries on the body of Mahendra Nath alias Babuwa whose postmortem was conducted on 10.02.1979 at 4.00 PM. Following ante mortem injuries were found :- (i) Incised wound 1¼" x ½" x skin deep on the inner side of the left leg over the tendo achillis directed inner to the front of the left leg with a tale of 1" long horizontally placed. (ii) Incised wound 1" x ¼" x skin deep on the left side of face 1½" away from the left ear directed towards the neck. (iii) Incised wound 5" x 1½" x spinal chort deep on the left side of neck starting from the angle of jaw to the back of the neck right side directed from the left side of lower jaw to the back of neck, with cutting of muscles vessels, nerve with cutting of the body of third survical vertibra and dividing the spinal chord. (iv) Incised wound 2" x ¼" x scalp deep on the back side of neck ¼" above the injury no.3 horizontally placed. (v) Incised wound 2½" x 1/2" x skin deep on the left side of neck ½" above the injury no.4 starting at the body of jaw ½" above injury no.4 horizontall placed. (vi) Incised wound 3" x ½" x skin deep on the back of the neck cutting the left ear lobule directed towards the back of the head. (vii) Incised wound 5" x 1" x bone deep and brain matter deep cutting occipital bone horizontally with brain matter coming out directed from the ear to the back of head, left side 2" above injury no.6. (viii) Incised wound 3" x ½" x bone deep on the left side of the back of head ¾" above the injury no.7 with occipital bone partially out. (ix) Incised wound 5" x 1" x brain matter deep on the left side of the back of the head starting 1" above the left ear to the back of the head with brain matter coming out of the cut bone 1" above the injury no.8. (ix) Incised wound 5" x 1" x brain matter deep on the left side of the back of the head starting 1" above the left ear to the back of the head with brain matter coming out of the cut bone 1" above the injury no.8. (x) Incised wound 2" x ½" x skull deep on the back of head the left parieto occipital bone partially out having 1½" x 1/10" long cut 2" above injury no.9. (xi) Incised wound 3" x 1" x bone deep on the back of the left side of head horizontally placed one inch above injury no.9. (xii) Incised wound 3" x ½" x bone deep on the centre of the back of the head on both sides move on the left side with a flap of skin of the head as shown in the postmortem report. The margin is lip shaped. On internal examination Doctor found that clotted blood present on the face. The eyes and mouth closed. (i) Partially out of the left parietal bone 4" x ½" long injury. (ii) Left occipital bone completely out, margins clean out 3½" x 1" x brain matter coming out. The membrances out at injury no.2 of skull bone. Body of third cervical vertebra out and spinal chord clean cut at the level of third cervical vertebrae. Brain matter is coming out clotted blood in the left side of brain and left temporal region. Heart empty. The big arteries and veins and nerves of the left side of neck clean out at several places. Stomach empty. Small intestine containing small quality of digested food materials. Large intestine containing faecal matter. Death due to haemorrhage, coma and shock as a result of injuries. 8. On the same day at 5.00 PM he conducted the postmortem of dead body of Amar Nath alias Suman and found following anti mortem injuries :- (i) Incised wound 1¼ " x ¼" skin deep on the front of the right leg 2" above the angle joint directed towards the outer side. (ii) Incised wound 2" x 1/2" x tendon of muscle deep on the right palm 1/2" below the joint horizontally placed on the inner half. (ii) Incised wound 2" x 1/2" x tendon of muscle deep on the right palm 1/2" below the joint horizontally placed on the inner half. (iii) Multiple gun shot wound (entrance) 4 in number each 1/4" x 1/4" x through and through on the back of the right upper arm 4½" below the shoulder joint, margines irregular inverted, no blackening and tatooing present, oval in shape directed forward to the chest right side. (iv) Multiple gun shot wound (exit) 4 in number each 1/2" x 1/2" x through and through, communicating injury no.3 on the inner side of right upper arm and axilla (armpit) margines irregular everted, no blackening and tatooing present. (v) Multiple gun shot wounds (entrance) 6 in number, each 1/2" x 1/2" x chest cavity deep on the right side of the chest. 2 cm. Away from the anterior axillary joint and 4" from the posterior axillary, line in an area of 4" x 3" directed towards the left side of teh fchest, margines inverted, no blackening and tatooing present, one shot felt at right side and 5 on the left side of chest below the skin. (vi) Gun shot wound entrance 1½" x 1" x chest cavity deep on the left side of upper part of chest over the sternum uper part oval in shape 4" above left nipple directed from the left to the right side with a hole 1" x 1" in the sternum with fracture with two small gun shot wound of entrance of ¼" x ¼" x skin deep over the upper margine of the wound ¼" away from the main wound, no blackening and tatooing margines inverted. (vii) Incised wound 1½" x ¼" x scalp deep on the right side of head 4" above the right side of ear vertical. (viii) Incised wound 2½" x ½" bone deep on the right side of head 3½" above right ear parima with fracture of mastoid bone obliquely placed directed towards the back. (ix) Incised wound 1½" x ¼" x skin deep on the right side of the forehead ½" above right eyebrow. (x) Incised wound 2" x ¼" x bone deep on the forehead over the eyebrow horizontally placed with cutting of the right frontal bone 1½" x ¼" long. (ix) Incised wound 1½" x ¼" x skin deep on the right side of the forehead ½" above right eyebrow. (x) Incised wound 2" x ¼" x bone deep on the forehead over the eyebrow horizontally placed with cutting of the right frontal bone 1½" x ¼" long. (xi) Incised wound 6½" x 2" x brain matter deep on the right side of face and head starting from the right side of nose wall to the back of the right ear cutting the right eye ball right paima of the ear cutting and fracture of right temporal mastoid bone, brain matter clearly seen with clotted blood, vertically placed. (xii) Incised wound 4" x ½" x bone and brain matter deep on the back of head and cutting the middle of the paima of the right ear, right mastoid and right side of parietal bone vertically placed. (xiii) Incised wound 2½" x ¼" x bone deep on the right side of neck horizontally placed starting from the angle of jaw to the back of neck cutting the ear bone and angle of jaw. (xiv) Incised wound 3" x 1/2" x muscle deep on the right side of neck 1/2" below the ear lobule cutting the muscle and vessels of the neck horizontally placed. (xv) Incised wound 1½" x ½" x skin deep on the right side of neck 1½" below the angle of jaw horizontally placed. (xvi) Incised wound 3" x 1" x jaw deep on the body of the right lower jaw cutting and fracturing the right lower jaw starting from the chin to the angle of jaw. (xvii) Incised wound 3½" x 1" x jaw deep on the right side of face starting frofm the angle of right side of face with cutting of right upper jaw. (xviii) Incised wound 2" x ½" x bone deep on the right side of face over the neck of right lower jaw and zygomatic bone. (xix) Multiple incised wounds 4 in number on the left side of face and temple region, straing from the left ear to the left side of nose 4" x ½" and bone deep cutting the left. Zygomatic bone in an area of 8" x 6", 3 wounds 1" x ½" x skin deep only. (xix) Multiple incised wounds 4 in number on the left side of face and temple region, straing from the left ear to the left side of nose 4" x ½" and bone deep cutting the left. Zygomatic bone in an area of 8" x 6", 3 wounds 1" x ½" x skin deep only. On internal examination the Doctor found the right frontal parietal, temporal and mastoid bone cut through and through, membrances cut, the brain matter coming out with clotted blood and lacerated. Six big shots recovered from the left side of chest below the skin, on the right 1 to 5th rib broken at the antero lateral junction. Fleura punctured on the right side, right lung having 4 small holes on the middle and upper lobe, right side of chest cavity containing one lb. Of clotted blood. Heart empty, two pieces of card adding and 4 big shots recovered from the right lung and 2 big shots from the muscles of the right side of back. The stomach was empty. Small intestines containing very small quantity of digested food material large intestine containing fecal matter, rest organs were normal. The cause of death was due to haemorrhage and shock as a result of injuries. According to doctor A. Akram the cause of death of both the deceased was due to haemorrhage and shock as the result of injuries and due to excessive bleeding. 9. PW-4 Ram Singh is an eyewitness. PW-5 Dr.S.K. Srivastava medico-legally examined the injured Ram Swaroop on 9.2.1979 at 10.45 PM at District Hospital Unnao and found following injuries on his body :- (i) Incised wound 5 cm x 2 cm x bone deep at the right side of the forehead with cut of the upper plato of the skull, kept under observation, advised X-ray. (ii) Incised wound 4 cm x 1 cm x bone deep at the middle of the forehead situated 2 cm away from injury no.1. (iii) Incised wound 12 cm x 2 cm x bone deep at the left side of the skull at its back. (iv) Incised wound 3 cm x 1 cm x bone deep at the top of the head. (v) Incised wound 6 cm x 1 cm x muscle deep at the inner side of the palm of the left hand. (iii) Incised wound 12 cm x 2 cm x bone deep at the left side of the skull at its back. (iv) Incised wound 3 cm x 1 cm x bone deep at the top of the head. (v) Incised wound 6 cm x 1 cm x muscle deep at the inner side of the palm of the left hand. (vi) Incised wound 4 cm x 2 cm x bone deep at the palmer aspect of the ring finger of the left hand. (vii) Incised wound 12 cm x 20 cm x bone deep at the lower end of the left leg with cutting of the bone of the leg through and through. 10. According to Doctor, all the injuries were caused by sharp edged weapons. Injuries no.2, 3 and 4 were simple while injury no.7 was grievous in nature. Injury no. 5, 6 and 1 were kept under observation. Duration was fresh. According to doctor, this injury could have been caused on 9.2.1979 at 6.00 PM by sharp edged weapon. 11. PW-7 S.I. Vivekanand is Investigating Officer who has conducted the investigation and submitted charge sheet against the accused. 12. PW-8 Constable Gyan Prakash is a formal witness who took the dead bodies for postmortem. 13. Accused Piare, Pappu alias Sheo Mangal, Raju Kurmi and Manna were charged under section 302 IPC, 148, Raju was also charged under section 307 IPC, Jagroop was charged under section 107, 379 IPC. 14. Accused have denied the allegations levelled against them and stated that they were falsely implicated due to enmity. 15. Witness DW-1 K.N. Tandon Additional City Magistrate Kanpur was produced in defence as DW-1. Eight papers were also filed in defence. After appreciating the evidence on record learned trial court has recorded a finding of guilt against the accused and convicted and sentenced them accordingly. 16. Learned counsel for the appellants submitted that the first information report is ante-time. In order to elaborate the argument, it is submitted that in the inquest report there are cuttings on the time of lodging FIR at the police station. Initially, it was shown as 08:00 PM which subsequently interpolated as 07:00 PM as the FIR was allegedly lodged at the police station at 07:00 PM. In order to elaborate the argument, it is submitted that in the inquest report there are cuttings on the time of lodging FIR at the police station. Initially, it was shown as 08:00 PM which subsequently interpolated as 07:00 PM as the FIR was allegedly lodged at the police station at 07:00 PM. It was further submitted that the bare perusal of the written report shows that it was written by the scribe in a very calm and quite condition but as per the prosecution version occurrence took place at 06:00 PM and the FIR was lodged at the police station at 07:00 PM while the distance is three miles. It is further submitted that inquest proceedings began at 08:30 PM which continued up to 03:00 A.M. On 10.2.1979. What was the reason for taking such a long time in preparation of the inquest report. It is further submitted that as per the statement of PW-7 Investigating Officer reached at the spot at about 06:00 or 06:15 PM while first information report was lodged at 07:00 PM. How he reached at the spot prior to lodging of the FIR? Further it was incumbent upon him to mention the weapons in the inquest report but no such weapon was mentioned which creates a doubt that the first information was not lodged till inquest proceedings were conducted. Only after conclusion of the inquest proceedings first information report was lodged. 17. It is further submitted that prosecution story is fully doubtful. PW-1 Ram Swaroop is not an eyewitness of the incident of murder. According to the prosecution version he was assaulted, thereafter, thrown into the bamba so he could not see the incident wherein murder took place. It is further submitted that evidence of PW-4 Ram Singh is not reliable, trustworthy. He is an inimical witness. Both these witnesses were not present at the spot. It is further submitted that PW-2 Usman Ali has turned hostile. Prosecution cannot take any advantage of his evidence. 18. Further it is submitted that the Ram Swaroop was referred to Kanpur. Additional City Magistrate was called for recording the dying declaration who has recorded the same but prosecution did not produce neither the dying declaration nor additional City Magistrate. Rather Additional City Magistrate was produced as DW-1 who has proved the dying declaration given by PW-1 Ram Swaroop wherein names of two accused were not mentioned. Additional City Magistrate was called for recording the dying declaration who has recorded the same but prosecution did not produce neither the dying declaration nor additional City Magistrate. Rather Additional City Magistrate was produced as DW-1 who has proved the dying declaration given by PW-1 Ram Swaroop wherein names of two accused were not mentioned. In the dying declaration it is not mentioned that what weapon was being carried by which accused. Further learned trial court has recorded a finding that the condition of the injured was precarious. Presence of eyewitness PW-1 Ram Swaroop at the spot becomes doubtful. 19. It is further submitted that no firarm injury was found on the body of Mahendra Nath. Complainant Padam Nath Shukla could not be produced in the court as he died prior to recording of his evidence. 20. It is further submitted that evidence of PW-4 Ram Singh is totally unreliable, untrustworthy. He is a chance witness. He could not establish his presence at the place of occurrence. No injury was caused to him. If he was present there then he should have also suffered certain injuries. It shows that Ram Singh was not present at the spot. Further Ram Singh has also not stated anything about the injuries of Ram Swaroop. His statement was recorded after three days of incident. Investigating Officer has failed to give explanation for the delay. 21. It is further submitted that dog squad was called at the spot. If the accused were known that what was the need of calling the dog squad which itself shows that the accused were not known to the complainant prior to the incident. Some unknown persons have committed the murder in dark. It is further submitted that according to the prosecution version deceased was coming back to his home after attending his court case pending against him under section 25 Arms Act. It was the duty of the Investigating Officer to verify as to whether any case under section 25 Arms Act was fixed on that date or not but no such effort was made, hence, whole prosecution version becomes doubtful. 22. Per contra, learned A.G.A. Submits that the prosecution has successfully proved its case beyond reasonable doubt. Evidence of PW-1 Ram Swaroop and PW-4 Ram Singh is fully reliable, trustworthy. PW-1 Ram Swaroop is an injured witness who received the injuries in the same incident. 22. Per contra, learned A.G.A. Submits that the prosecution has successfully proved its case beyond reasonable doubt. Evidence of PW-1 Ram Swaroop and PW-4 Ram Singh is fully reliable, trustworthy. PW-1 Ram Swaroop is an injured witness who received the injuries in the same incident. After causing injuries to Ram Swaroop accused thrown him in the babma. Thereafter, murder of Mahendra Nath was committed. This incident of murder was seen by PW-4 Ram Singh. It is further submitted that first information report was lodged promptly without unnecessary delay. Investigation on the case was done in accordance with law. Accused were rightly held guilty for the offence committed by them. 23. Before dealing with the ocular evidence of the witnesses firstly we would discuss the postmortem report of deceased Amar Nath and Mahendra Nath and medico-legal report of injured Manna alias Ram Swaroop. Postmortem of the body of deceased Mahendra Nath alias Babua was conducted on 10.02.1979 at 04:00 PM while the postmortem of the body of Amarnath alias Suman was conducted on 10.02.1979 at 05:00 PM by PW-3 Dr. A. Akram, who was posted as Medical Officer, District Hospital Unnao. According to Dr. A. Akram, deceased Mahendra Nath alias Babua had suffered 12 incised wounds as have been mentioned above and he died due to the shock and haemorrhage due to ante- mortem injuries. Injuries could have been caused on 09.02.1979 at 06:00 PM by sharp edged weapon like farsa, gadasa and banka. 24. According to Dr. Akram deceased Amarnath alias Suman had suffered multiple gun shot injuries as well as incised wounds and his death was result of ante-mortem injuries which were sufficient to cause death. These injuries could have been caused on 9.2.1979 at 06:00 PM. Injury No.3 to 6 could have been caused by firearm while other incised wound could have been caused by sharp edged weapon like farsa, gadasa and banka. In the cross-examination Dr. Akram has admitted that there could be a natural variation of four to six hours in the time of death. Duration of death is shown as one day at the time of postmortem. 25. PW-5, Dr. S.K. Srivastava has conducted the medico-legal examination of the injured Ram Swaroop on 9.2.1979 at 10:45 PM at District Hospital Unnao where he was posted as Medical Officer. Dr. Duration of death is shown as one day at the time of postmortem. 25. PW-5, Dr. S.K. Srivastava has conducted the medico-legal examination of the injured Ram Swaroop on 9.2.1979 at 10:45 PM at District Hospital Unnao where he was posted as Medical Officer. Dr. Srivastava found seven incised wound on the body of injured which could have been caused by sharp edged weapon. These injuries could have been caused on 9.2.1979 on 06:00 PM by some sharp edged weapon. Dr. Srivastava has stated that these injuries could not be caused at the time when the injured is in a lying position. 26. Statement of these two medical experts shows that the injuries of deceased as well as injured could have been caused on 9.2.1979 at 06:00 PM. Further the gun shot injuries of deceased Amar Nath could have been caused by some firearm while all the other injuries of incised wound could have been caused by sharp edged weapon. 27. Now, in the background of the medico-legal opinion it is to be seen as to whether prosecution has been successful in establishing the charges against the accused appellants? 28. It has been submitted by the learned counsel for the appellants that the first information report in this case is ante-time. It is further submitted that if the first information report is ante-time then it becomes doubtful and when the first information report is itself doubtful then whole prosecution story becomes doubtful. It has been held in Anand Mohan v. State of Bihar (2012) 7 SCC 225 that if the date and time of FIR is suspicious, the prosecution version is not rendered vulnerable but the Court is required to make a careful analysis of the evidence in support of the prosecution case. 29. According to the prosecution version, occurrence has taken place on 9.2.1979 at 06:00 PM while the first information report was lodged at the police station Fatehpur Chaurasi at 7:00 PM on the same day while the distance of the police station is about three miles. First information report was lodged by Padam nath Shukla son of Paras Nath Shukla who is the brother of the deceased but Padam Nath Shukla could not be produced in evidence as after lodging the FIR he died. In such circumstances PW-4 Ram Singh has proved the first information report. First information report was lodged by Padam nath Shukla son of Paras Nath Shukla who is the brother of the deceased but Padam Nath Shukla could not be produced in evidence as after lodging the FIR he died. In such circumstances PW-4 Ram Singh has proved the first information report. PW-4 Ram Singh is an eyewitness of the incident of murder of deceased Amar Nath and Mahendra Nath. So far as the question of trustworthiness of the statement of PW-4 Ram Singh is concerned, we would analyse and scrutinize the same at the later stage of the judgment but at this stage so far as question of proving the exhibit ka-3 written report is concerned PW-4 Ram Singh has stated that he has seen Padam Nath writing and signing. He identified his writing and signatures and proved the same. It is further stated that in his presence Padam Nath has written the report and went to the police station to lodge the first information report. During cross-examination even it was asked as to whether he knows some peculiar type of writing of Padam Nath then the witness states that word 'e' 'j' and 't' were having a special type of writing. This witness was asked to give in writing these three words in court which he has submitted. Thereafter, these writing of Padam Nath in written report is not further challenged. No expert report is brought on record which could disprove the fact that this report exhibit ka-3 is not written by Padam nath, hence, we are of the considered view that exhibit ka-3 written report was written by Padam Nath. 30. Learned counsel for the accused has drawn our attention towards the inquest report as well as police papers which were sent alongwith dead body and submits that there is overwriting at the time as shown in the inquest report when the FIR was lodged. PW-7 Vivekanand is the Investigating Officer of the case who has admitted that there are some cuttings and over writings in the inquest report but he cannot say as to what was the reason for the overwriting. It is further admitted by him that in the inquest report there is no mention as to what were weapons used by the accused in the commission of crime. It is further admitted by him that in the inquest report there is no mention as to what were weapons used by the accused in the commission of crime. So far as the importance of inquest report is concerned it is settled law that the purpose of preparation of inquest report is very limited. 31. It has been held in Guiram Mondal vs. State of West Bengal, (2013) 15 SCC 284 that:- "The inquest report normally would not contain the manner in which the incident took place or the names of eyewitnesses as well as the names of accused persons. The basic purpose of holding an inquest is to report regarding the cause of death, namely, whether it is suicidal, homicidal, accidental, etc. Reference may be made to the judgments of this Court in Pedda Narayana v. State of A.P. (1975) 4 SCC 153 And Amar Singh v. Balwinder Singh, (2003)2 SCC 518 . In Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450 , This Court held that the scope of inquest is limited and is confined to ascertainment of apparent cause of death. Inquest is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. The details of overt acts need not be recorded in the inquest report. The High Court has rightly held that the manner and approach of the trial court in disbelieving the prosecution story by placing reliance on the inquest report was erroneous and bad in law." 32. The details of overt acts need not be recorded in the inquest report. The High Court has rightly held that the manner and approach of the trial court in disbelieving the prosecution story by placing reliance on the inquest report was erroneous and bad in law." 32. In Amar Singh vs. Balwinder Singh and others, (2003) 2 SCC 518 Hon'ble Apex Court has held as under :- "The provision of holding of an inquest and preparing an inquest report is contained in Section 174 Cr.P.C. The heading of the section is "Police to enquire and report on suicide etc." Sub-section (1) of this section provides that when the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give information to the nearest Executive Magistrate and shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death describing such wounds, fractures, buries, and other marks of injury as may be found on the body and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. The requirement of the section is that the police officer shall record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted and this has to be done in the presence of two or more respectable inhabitants of the neighbourhood. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. The scope and purpose of Section 174 Cr.P.C. Was explained by this Court in Pedda Narayana v. State of A.P. (1975) 4 SCC 153 and it will be useful to reproduce the same : The proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is therefore not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of court. 33. In Khujji v. State of M.P. (AIR para 8) (1991) 3 SCC 627 this Court, after placing reliance upon the abovequoted decision, rejected the contention raised on behalf of the accused that the evidence of eyewitnesses could not be relied upon as their names did not figure in the inquest report prepared at the earliest point of time. In Shakila Khader v. Nausheer Cama (AIR para 5) (1975) 4 scc 122 , 125 it was held that an inquest under Section 174 Cr.P.C. Is concerned with establishing the cause of the death only. The High Court was, therefore, clearly in error in holding that as the facts about the occurrence were not mentioned in the inquest report, it would show that at least by the time the report was prepared the investigating officer was not sure of the facts of the case. 34. Admittedly, there are overwritings in the inquest report but it is clear that in the inquest report itself where there is overwriting 19 is written above it in the bracket in the inquest report of Amar Nath alias Suman. 34. Admittedly, there are overwritings in the inquest report but it is clear that in the inquest report itself where there is overwriting 19 is written above it in the bracket in the inquest report of Amar Nath alias Suman. In clear words 19 is again written which goes to show that there might be some accidental or clerical error which was subsequently detected by the concerned officer conducting the inquest proceedings and he rectified the same at the same time. Likewise in police form no.13 of deceased Amar Nath alias Suman and deceased Mahendra Nath alias Babua there is overwriting of 19 for which the PW-7 Investigating Officer has given a categorical statement that these overwritings are there but he cannot explain why these overwritings were made. It could be an accidental error which do not goes to the root of the case. 35. Inquest proceedings began on 9.2.1979 at 8:30 PM and continued up to 02:30 AM on 10.2.1979. It took about six hours to complete the inquest proceedings. PW-7 SI Vivekanand has given an explanation that since two murders of real brothers were committed, there was huge crowd at the spot. Further, it was night time so it took a long time to complete the proceedings. Further, proceedings were completed in the light of patromax. One patromax got out of order then another was called, hence, it took a lot of time to complete the proceedings. We do not find any discrepancy in the statement of PW-7 Vivekanand regarding time taken in the inquest proceedings. PW-6 Constable Ram Awadh Verma is the scribe who prepared the chik FIR as well as made a note of the same in the GD who has specifically denied that the first information report was lodged ante-time. 36. At this stage, statement of eyewitnesses PW-1 Ram Swaroop and PW-4 Ram Singh assumes importance regarding time of the incident because learned counsel for the accused argued that the occurrence has not taken place at 06:00 PM as shown by the prosecution, rather it took place in the dark during night and ante-time report was lodged showing the time of incident 06:00 PM so that the accused can be falsely implicated by the prosecution. PW-1 Ram Swaroop has stated that he was accompanying the deceased alongwith Hari Om, Ram Sewak, Buche alias Usman when they had gone to Unnao in the pairavi of a case under section 25 of Arms Act proceeding against Babua alias Mahendra Nath. They came by bus from Unnao to Hulasi Kuwan and started proceeding towards their home. At about 06:00 PM when they reached on the pulia of Ugu Minor then occurrence took place. This witness has been cross-examined at length regarding time of occurrence. It is stated by him that they reached Hulasi Kuwan at 5:30 PM, thereafter, they proceeded towards their village by pucca sadak. Although, there was another route which is not a convenient route. It is specifically stated that Ugu is about three kilometers from Hulasi Kuwan on constructed road while Ugu is about two and half kilometers from Mathar but this road is uneven and there is a nullah so they used to go to their village from Hulasi Kuwan. It is further specifically stated by the witness that he has stated the time approximately as he has not seen the watch at that time. PW-4 Ram Singh is also an eyewitness who has stated that when he came from his village he stayed at Safipur for about two and half hours. He left his village at 2:00 PM, reached Safipur at about 03:00 PM. He got down from bus at Hulasi Kuwan bus stand at about 5:45 PM. These two witnesses have specifically stated that they are stating the time approximately. Distance of Hulasi Kuwan bus stand from Safipur is about three miles. Bus did not stop on the way. After reaching at Hulasi Kuwan bus stand after two to three minutes he left the place. 37. It has been held by the Hon'ble Apex Court in State of Karnataka vs. M.V. Manjunathegowda & Another (2003) 2 SCC 188 that :- "One should not fail to take note that the witnesses are rustic villagers. It is difficult to expect them to remember the events with mathematical precision after a lapse of more than two years. It is a common knowledge that ordinarily human memories are apt to blur with the passage of time. More so in the present case, when witnesses are rustic villagers. It is difficult to expect them to remember the events with mathematical precision after a lapse of more than two years. It is a common knowledge that ordinarily human memories are apt to blur with the passage of time. More so in the present case, when witnesses are rustic villagers. In such a situation, there are bound to occur certain discrepancies, which are in the form of omission and they cannot be considered as fatal to their evidentiary value, otherwise trustworthy. At the same time, they are unexposed to the technicalities of urban life and they speak plainly what they saw and did. They are straightforward looking people, truthful and trustworthy. Their testimony cannot be thrown out on the ground that it lacks spontaneity." Natural discrepancy and variation are bound to occur in the statement of rustic witnesses who belong to rural background. We may also observe that it is not always possible for any person to have an eye over his watch at all the times. Both the witnesses were never knowing that some incident is likely to occur so they must see their watch to remember the time of occurrence. It is quite natural that difference of few minutes could always be there in stating the time. We are of the considered view that the prosecution has successfully established the time of occurrence as 6:00 PM as mentioned in the first information report. We are further of the view that the first information report is not ante- time. 38. Occurrence took place at 06:00 PM while the distance of the police station from the place of occurrence is three miles. First information report was lodged at 07:00 PM. First information report was scribed by Padam nath Shukla who is the real brother of the deceased. It has already come in the evidence that Paras Nath Shukla father of Padam Nath Shukla was murdered on 13.7.1974. There is a long drawn enmity with the complainant Padam nath Shukla, his brothers Amar Nath and Mahendra Nath with the accused which we will discuss in the later part of the judgment but at this stage, it can very well be seen that number of criminal cases were lodged against the deceased as well as accused. There is a long drawn enmity with the complainant Padam nath Shukla, his brothers Amar Nath and Mahendra Nath with the accused which we will discuss in the later part of the judgment but at this stage, it can very well be seen that number of criminal cases were lodged against the deceased as well as accused. In this background if complainant Padam nath Shukla has promptly lodged the first information report then it could not be assumed that the first information report was ante-time as it could not have been lodged within a short span of time of one hour while two real brothers of the complainant were murdered. He left their dead bodies and went to the police station to lodge the first information report. Since number of criminal cases were already proceeding between the parties, hence, the complainant must be aware of the fact that the first information report should be lodged promptly. We have no reason to hold that the first information report is ante-time or the occurrence has not taken place at 06:00 PM. 39. Incident in question is in two parts. According to the prosecution version, PW-1 Ram Swaroop alongwith the deceased Mahendra Nath and Amar Nath was coming back from Unnao after attending the court case which was pending against Babua alias Mahendra Nath. Hari Om Ram Sewak and Buche alias Usman were also accompanying them. They left the bus at Hulasi Kuwan bus stand and were going on foot. PW-1 Ram Swaroop was carrying his licensed gun with him. When Jagroop caught hold of him from the back side and all other accused started attacking him by their sharp edged weapons. Raju inflicted injuries by farsa. He fell down on receiving the injuries. His gun was snatched by the accused and he was thrown in the bamba. This is one part of the incident. Second part relates to the murder of Suman alias Amar Nath and Babua alias Mahendra Nath. When Ram Swaroop was thrown in the bamba thereafter deceased ran away then accused inflicted injuries upon them in which Amar Nath alias Suman received gun shot injuries coupled with incised wounds while Mahendra Nath received incised wounds. Second part of the incident was seen by witness Ram Singh. 40. When Ram Swaroop was thrown in the bamba thereafter deceased ran away then accused inflicted injuries upon them in which Amar Nath alias Suman received gun shot injuries coupled with incised wounds while Mahendra Nath received incised wounds. Second part of the incident was seen by witness Ram Singh. 40. At this stage, now it is to be seen as to whether evidence of PW-1 Ram Swaroop who himself is an injured witness whose left leg was amputated and PW-4 Ram Singh is reliable or not. Further it is to be seen as to whether the statement of PW-2 Usman who was declared hostile should be thrown out as a whole or some part of his statement can be relied upon. 41. Now, we will examine the veracity of the statement of witnesses. At the very outset, PW-1 Ram Swaroop has stated the facts up to the stage when he was attacked by the accused. He was thrown away in the bamba. He has nowhere stated a single word about the murder of the deceased that he has seen the accused committing murder of the deceased. 42. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weight age that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. We need not discuss more elaborately the weight age that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. See, Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 ; Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 ; Balraje v. State of Maharashtra, (2010) 6 SCC 673 ; Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881 ; Malkhan Singh v. State of U.P., (1975) 3 SCC 311 ; Machhi Singh v. State of Punjab, (1983) 3 SCC 470 ; Appabhai v. State of Gujarat, 1988 Supp SCC 241; Bonkya v. State of Maharashtra, (1995) 6 SCC 447 ; Bhag Singh v. State of Punjab, (1997) 7 SCC 712 ; Mohar v. State of U.P. (2002) 7 SCC 606 ; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270 ; Vishnu v. State of Rajasthan, (2009) 10 SCC 477 ; Annareddy Sambasiva Reddy v. State of A.P., (2009) 12 SCC 546 and Balraje v. State of Maharashtra, (2010) 6 SCC 673 . 43. In this background, we have to thoroughly examine the statement of PW-1 Ram Swaroop. Admittedly, this witness was having inimical relations with accused. In the examination-in-chief he has stated that he was accompanying the deceased. He was coming back from Unnao after attending a Court case under section 25 Arms Act which was pending against deceased Mahendra Nath alias Babua. It means, that he was having good relations with the deceased, that is the reason that he accompanied him to attend his court case. PW-1 Ram Swaroop was the complainant in the case of murder of Paras Nath who was father of complainant Padam Nath as well as deceased Mahendra Nath and Amar Nath. Ashok Chhunia, Gauri Kurmi, Vani Dutt, Munai, Lature were accused in that case which trial ended in the acquittal. In the year 1975, Lature Pehalwan alias Rameshwar were also murdered in which Mahendra alias Babua and Amar Nath alias Suman deceased in this case were accused that also ended in acquittal. Further some criminal cases were also filed against this witness. In the year 1975, Lature Pehalwan alias Rameshwar were also murdered in which Mahendra alias Babua and Amar Nath alias Suman deceased in this case were accused that also ended in acquittal. Further some criminal cases were also filed against this witness. In one of the cases he was a party alongwith deceased Amarnath and Mahendra Nath in a case under section 107/117 Cr P.C. It is also admitted by this witness that a lease of some land and bond was executed in his favour by Paras Nath which was cancelled on the application of Vani Dutt. Admittedly, there was a long drawn enmity between the parties. This witness has been cross-examined at length on the point of enmity. Enmity itself is a double edged weapon which can be used either way. It was held in Sunil Kundu versus State of Jharkhand (2013) 4 SCC 422 , that enmity is a double edged weapon but possibility of false involvement because of deep rooted enmity also cannot be ruled out. 44. Now, we have to scrutinize the evidence of PW-1 Ram Swaroop in this background. 45. At the initial stage, we would like to mention that statement of PW-1 Ram Swaroop was recorded by DW-1 K.N. Tandon Additional City Magistrate, Kanpur on 10.02.1979 in the Emergency Ward of L.L.R. Hospital Kanpur. In the said statement the witness have stated the names of Raju, Jagroop, Manna, Pappu, Kashi Prasad. He has narrated the story as to how he reached at the place of occurrence. For the sake of convenience we are quoting the whole statement of the witness which was recorded by K.N. Tandon Additional City Magistrate. This statement was recorded as dying declaration but subsequently Ram Swaroop survived, hence, the statement can only be used as a previous statement of the witness which has the evidentiary value for corroboration or contradiction. For the sake of convenience we are quoting the whole statement of the witness which was recorded by K.N. Tandon Additional City Magistrate. This statement was recorded as dying declaration but subsequently Ram Swaroop survived, hence, the statement can only be used as a previous statement of the witness which has the evidentiary value for corroboration or contradiction. jke l:i mez djhc 48 lky c;ku fd;k fd dy 'kke dks mUuko ls eSa vius xkao tk jgk Fkk A dy 'kke dks djhc 6&6%14 cts eSa cl ls gqyklh dqok cl vMMs ij mrjk A ogka ls gekjk ?kj djhc 3 fdyksehVj gS A cl ls mrj dj [kM+ [kM+s ls xkao tkrs gS A ijUrq dy vMMs ij [kM+ [kM+s ugha Fks A ge cl vMMs ij 'kke dks mrjs rks ogka 2&3 lokjh vkSj mrjh vkSj lokfj;ka tks mrjh muesa vejukFk iq= ikjlukFk lkfdu mxw ineukFk iq= ikjlukFk] jkelsod iq= gqyklh lkfdu mxw oxSjk Fks A ge lc yksx cl vMMs ls 'kke dks djhc lok N% lk<+s N% cts xkao ds fy;s iSny py fn;k A xjhc ,d fdyksehVj x;s gksaxs fd vpkud ekbuj dh iqfy;k ds uhps ls rFkk ikl gh esa ckx ls djhc 5&6&7 vkneh fudys vkSj muesa ls ihNs ls vkdj eq>s ,d vkneh us ncksp fy;k gekjs ikl nksukyh cUnwd Fkh mlds lkFkh gekjh cUnwd Nhuus yxs geus jksdus dh dksf'k'k dh rks gekjs mij QkoM+k vkSj Qjlk ls ;g yksx okj djus yxs vkSj ekjdj ?kk;y dj gekjh cUnwd Nhu fy;k vkSj ge dks ukys esa "8. ............................... If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter of explaining their presence. ................. (emphasis added) 54. PW-4 Ram Singh has stated that he went to Safipur to bring cement from Rajan. He had a talk with him regarding cement three to four days ago. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter of explaining their presence. ................. (emphasis added) 54. PW-4 Ram Singh has stated that he went to Safipur to bring cement from Rajan. He had a talk with him regarding cement three to four days ago. There is a contradiction in the statement given by this witness to the Investigating Officer wherein it is stated that he has gone to Safipur in search of Cement. PW-4 Ram Singh has further stated that he was in need of cement from the last six months. Rajan belongs to his own village. He told him that he has got a cement permit and he will give him cement out of that. On this score it is argued that the witness is a chance witness. It is further argued that he is a school teacher who should have been in the school at the time. He never went to Safipur and is deposing a false statement. PW-4 Ram Singh has no enmity with the accused. Defence tried to establish enmity by putting a suggestion that a murder trial of Dharmu chamar was instituted against PW-4 Ram Singh and his father wherein Ram Autar who is servant of accused jagroop has deposed against him. This fact is denied by the witness. Defence has failed to bring any evidence on record to prove any enmity of PW-4 Ram Singh with the accused. In the circumstances, there is no reason as to why PW-4 Ram Singh will depose against the accused. 55. Further one fact is established from the evidence of PW-4 Ram Singh that he went to Safipur in search of cement. Even if he was trying to meet Rajan, that too was for the purpose of securing cement which was needed by Ram Singh PW-4. This fact is established that he went to Safipur to bring the cement. There might be some discrepancy as to whether he had a talk earlier with Rajan about the cement but this itself is not sufficient to discredit the statement of the witness. Further PW-4 Ram Singh has given a specific statement that on the fateful day he left his school at 2:00 PM and went to Safipur from where he was coming back to his house when he saw the incident. Further PW-4 Ram Singh has given a specific statement that on the fateful day he left his school at 2:00 PM and went to Safipur from where he was coming back to his house when he saw the incident. Nothing could be brought on record to disbelieve this statement. Although it is true that it is burden of the prosecution to prove the guilt against the accused beyond reasonable doubt but when prosecution has successfully discharged its burden and defence intends to discredit the evidence of the particular witness then the veracity of the testimony of the witness should have been demolished by the defence. In the present case so far as the question of PW-4 Ram Singh going to Safipur and coming back from Safipur to his house at the time of incident is concerned it is fully established that the witness PW-4 Ram Singh went to Safipur and was coming back to his house when he saw the incident, hence, we hold that PW-4 Ram Singh is not a chance witness. 56. PW-4 Ram Singh has stated that when he was about to reach near Ugu Minor he heard sound of three fires. He has seen Munai, Pyare, Jagroop and Pappu armed with firearms while Raju Manna and Rajan were attacking Suman and Babua by farsa, gadasa and banka respectively. There is one contradiction in the statement given by this witness to the Investigating Officer and the statement in the Court about the number of fires. In the statement of Investigating Officer hearing of fire is mentioned while in the Court the number is mentioned as three. This is not a such material contradiction which goes to the route of the matter. It is submitted that when Ram Singh PW-4 was also present there and also seen the occurrence then why he was not attacked by the accused. We do not find any force in the argument as the accused were not having any enmity with Ram Singh so as to why he should have been attacked by them. PW-4 Ram Singh has stated that he had seen Manna alias Ram Swaroop in injured unconscious condition behind a tree. We do not find any force in the argument as the accused were not having any enmity with Ram Singh so as to why he should have been attacked by them. PW-4 Ram Singh has stated that he had seen Manna alias Ram Swaroop in injured unconscious condition behind a tree. An attempt is made by making a mathematical calculation of the time spent by the witness PW-4 Ram Singh at the spot to show that the first information report which was proved by this witness was not lodged at 07:00 PM. PW-4 Ram Singh has stated that he stayed with Manna for twenty minutes. Thereafter, he was sent to hospital thereafter he came back at the place where deceased were lying. Thereafter, information was sent to the house of deceased within 25 minutes. Family members came there. PW-4 Ram Singh stayed there for an hour. So far as FIR is concerned complainant Padam Nath Shukla was also accompanying deceased and injured. So even if the family members of deceased came there was ample time for Padam Nath to write the written report. Hence, we do not find any time gap which can show that the report was lodged ante time. 57. We hold that the evidence of PW-4 Ram Singh is fully reliable. He had seen the incident of murder of Amar Nath alias Suman and Mahendra Nath alias Babua. He has given a truthful statements of facts before the Court. His presence at the time of occurrence is fully established. 58. Another argument is raised that dog squad was called which shows that the identity of the accused could not be fixed. PW-7 SI Vivekanand also admitted that the dog squad was called at the spot but merely calling of the dog squad could not be a ground to believe that the identity of the accused was not established. No clarification was sought from the Investigating Officer as to why dog squad was called. Unless and until an opportunity is given to a witness to explain part of his statement could not be believed. It might be possible that dog squad was called to trace out the accused who was named in the first information report. We do not find any force in the argument. 59. Unless and until an opportunity is given to a witness to explain part of his statement could not be believed. It might be possible that dog squad was called to trace out the accused who was named in the first information report. We do not find any force in the argument. 59. Learned counsel for the accused- appellant argued that according to the prosecution version fires were shot at Mahendra Nath as well as Amar Nath but no injury of any firearm was found on the body of Mahendra Nath, hence, it belies the prosecution version. Admittedly, according to the postmortem report no firearm injury was found on the body of Mahendra Nath. According to the first information report it is stated that Pappu alias Shiv Mangal has fired upon Babua who fell down, thereafter, when Suman alias Amar Nath tried to help Babua then Pyare by countrymade pistol and Pappu by gun fired upon Suman alias Amar Nath which shot hit Suman alias Amar Nath on the chest and right side of abdomen. PW-4 Ram Singh has stated that he heard the sound of fire. When he reached near Ugu Minor he saw Jagroop and Pappu armed with guns, Munai and Pyare armed with country made pistol. Injuries of sharp edged weapon were also found on the body of both the deceased i.e., Amar Nath and Mahendra Nath. Chain of circumstances exclusively shows that the presence of the accused person at the spot is fully established by the evidence of PW-4 Ram Singh as well as PW-1 Ram Swaroop. Hence, we do not find any contradiction or discrepancy in the statement of witnesses as well as in the first information report. 60. PW-2 Usman Ali was also accompanying the deceased and injured Ram Swaroop when they were coming back from Unnao. This witness has initially supported the prosecution version to the extent that presence of this witness alongwith Ram Swaroop alias Manna who is injured coupled with deceased at the time of occurrence is stated. Further he stated that Manna alias Ram Swaroop was attacked by baka, farsa and gadasa and Babua and Suman were also killed but at the same time this witness has not named the accused so he was declared hostile by the prosecution. Further he stated that Manna alias Ram Swaroop was attacked by baka, farsa and gadasa and Babua and Suman were also killed but at the same time this witness has not named the accused so he was declared hostile by the prosecution. It is further stated by this witness in his cross-examination that at the time of incident although it was sunset but there was light of the day. This witness has also stated the place of occurrence. Further he has stated that the accused have formed one party and he is under pressure of the accused and afraid of them. It is admitted by him that he is not deposing against the accused because if he will depose against them he would also be killed. He was confronted with his statement under section 161 Cr PC recorded by the Investigating Officer and he accepted that he has given the statement implicating the accused appellant in the commission of the crime. This witness was cross-examined by the defence. Admittedly, this witness was also a witness in the case of murder of Paras Nath. He was co-accused alongwith Suman in the case of murder of Ramjan. It is admitted by him that he has not given any application regarding any threat from the accused. It is admitted by this witness that he has good relations with Paras Nath and his sons that is why he used to go with Suman for pairavi of his cases. It is further stated by this witness that when fires were made he was about 10 to 15 steps away. He could not state as to who was firing upon whom. 61. In State of U.P. v. Ramesh Prasad Misra and Anr. (1996) 10 SCC 360 , this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Sarvesh Narain Shukla v. Daroga Singh and Ors. (2007) 13 SCC 360 ; Subbu Singh v. State by Public Prosecutor (2009) 6 SCC 462 ; C. Muniappan and Ors. A similar view has been reiterated by this Court in Sarvesh Narain Shukla v. Daroga Singh and Ors. (2007) 13 SCC 360 ; Subbu Singh v. State by Public Prosecutor (2009) 6 SCC 462 ; C. Muniappan and Ors. v. State of Tamil Nadu (2010) 9 SCC 567 ; and Himanshu @ Chintu v. State (NCT of Delhi) (2011) 2 SCC 36 . In the case of Vinod Kumar Vs. State of Punjab reported in (2015) 3 SCC 220 Hon'ble the Apex Court has held in paragraph no. 31 as under:- "31. ................. In Bhagwan Singh v. State of Haryana (1976) 1 SCC 389 , it has been laid down that even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. In Khuji @ Surendra Tiwari v. State of Madhya Pradesh (1991) 3 SCC 627 , the Court after referring to the authorities in Bhagwan Singh (supra), Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233 and Syad Akbar v. State of Karnataka (1980) 1 SCC 30 , opined that the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof. " 62. Evidence of hostile witness cannot be discarded as a whole. Such portion of the evidence can be relied upon which inspires confidence and supporting the prosecution version. In the present case, if we scrutinize the statement of PW-2 Usman Ali very carefully then we find that he has correctly narrated the place of occurrence, time of occurrence. Presence of Ram Swaroop is also established from the statement of Usman Ali. Further presence of both the deceased at the spot is also proved. So far as the question of attack by the accused are concerned, initially the witness has not named the accused but in the cross-examination he has admitted that due to the fear of accused he could not state their names. Further presence of both the deceased at the spot is also proved. So far as the question of attack by the accused are concerned, initially the witness has not named the accused but in the cross-examination he has admitted that due to the fear of accused he could not state their names. Even if we discard this much portion of his evidence then the remaining facts regarding time place injuries of deceased and injured are concerned they have been proved by this witness which fully corroborates and supports the prosecution version. 63. Another argument was raised that the statement of PW-4 Ram Singh was recorded after three days while PW-4 Ram Singh has stated that he was present at the spot when police came. Further Investigating Officer has stated that he could not record the statement of eyewitness in the night as no eyewitness was available at that time and he was busy in preparing inquest report. PW-4 Ram Singh has nowhere stated that Investigating Officer met him in the night so even if his statement was recorded after three days it does not adversely affect the prosecution version. It was argued that the Investigating Officer has not made any attempt to find out as to whether any case under section 25 of Arms Act of Suman was fixed at the Court of Unnao. It is further submitted that the Investigating Officer has not carried the investigation in accordance with law.