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2016 DIGILAW 4119 (ALL)

Ram Kripal v. State of U. P.

2016-12-20

ARVIND KUMAR TRIPATHI, SHAILENDRA KUMAR AGRAWAL

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JUDGMENT Shailendra Kumar Agrawal, J. 1. Heard Shri Santosh Kumar Srivastava, learned counsel for the appellant and Shri Mahendra Singh Yadav, learned A.G.A for the State and perused the record. 2. This appeal has been preferred by accused/ appellant Ram Kripal, who was tried by the VII Additional Sessions Judge, Gorakhpur in Sessions Trial No.248 of 1984, under Section 302 IPC at Police Station Maharajganj. The Additional Sessions Judge by his judgment and order dated 29th January, 1985 found the appellant guilty under Section 302 IPC and sentenced him to life imprisonment. 3. The brief facts of the case are that the complainant, Rama Shankar Tiwari son of Ram Sadhin Tiwari, resident of Village Juri Kuyian, P.S. Soharatgarh, District Basti, presently posted as Constable in the Excise Department, Maharajganj, District Gorakpur, lodged a written report Ex. Ka2 at Police Station Maharajganj, District Gorakhpur that on 13.02.1984, the complainant's son Shital Prasad Tiwari, who was student of Class 11th in Maharajganj Inter College, had gone to his college for study. As the first hour of his Class was vacant, he along with his companions Rudra Pratap Singh and Ravi Shankar Prasad Gupta had gone to Mau Pakar Crossing for taking tea. As soon as they reached in front of the Gate of G.S.B.S. College, the accused Ram Kripal Gupta son of Rajbali Gupta, resident of Village Mau Pakar, who was ex-student of Maharajganj Inter College, and who had some altercation with the deceased at Maharajganj Picture Hall, when 'Bandhan' movie was going on a week's before, stabbed Shital Prasad Tiwari in his chest in front of the Vipin Medical Store. His son fell down on the ground. This incident was witnessed by Rudra Pratap Singh, Ravi Shankar Prasad Gupta, Budhesh Mani Tripathi, Harinath Mani Tripathi (Constable Excise Department), Tirath Prasad. They all challenged the accused, but he could not be arrested and fled away towards Mau Pakar by showing his knife and by giving threat for the dire consequences. On hearing about the incident, the complainant went to the spot, and who took his son to the Hospital, where the doctor told that his son has died. 4. On the basis of written report of the incident dated 13.02.1984 by the complainant, a Chik FIR Ex. On hearing about the incident, the complainant went to the spot, and who took his son to the Hospital, where the doctor told that his son has died. 4. On the basis of written report of the incident dated 13.02.1984 by the complainant, a Chik FIR Ex. Ka3 was prepared and a case under Section 302 IPC was registered against the accused/ appellant and entry to this effect was also made in the G.D., carbon copy of which is Ex. Ka4. The investigation of the case was taken up by Ram Krishna Upadhyay, S.H.O., Maharajganj. 5. The Investigating Officer recorded the statement of the complainant on 13.02.1984 at the Police Station and he went to P.H.C., Maharajganj and took possession of the body of the deceased Shital Prasad Tiwari and conducted the inquest on the dead body and prepared inquest report Ex. Ka6. He also prepared photo Nash, Challan Nash and letter for postmortem examination of the dead body, they are Exs. Ka7 to Ka9 respectively. Then he sent the dead body for postmortem by Constable CP No.1099 Satya Narayan and CP No.356 Om Prakash along with necessary papers. Thereafter, he recorded statement of Budhesh Mani Tripathi and inspected the place of incident and prepared a site plan Ex. Ka10. After that the Investigating Officer took into possession blood stained and plain earth of the spot and sealed them separately and for that prepared a memo Ex. Ka11. 6. On receiving the information through the informant that accused/ appellant Ram Kripal Gupta was present in his house, the Investigating Officer arrested the accusedppellant in the presence of the witnesses Laxmi Narayan Verma and Mohd. Akhtar Abbasi. He interrogated the accused/ appellant, who confessed and admitted his guilt. Accused handed over a Rampuri knife on the same day i.e. 13.02.1984, which was put by him in back of house of Chhabbi. This knife was having blood stains, regarding which the memo was prepared, which is Ex. Ka12. He sealed the knife in a bundle and also prepared site plan regarding recovery of this knife, which is Ex. Ka13 and the knife is material Ex. 1. The Investigating Officer also recorded statement of the witnesses regarding recovery and also recorded statements of other witnesses and thus after completing the investigation, he submitted the charge sheet Ex. Ka12. He sealed the knife in a bundle and also prepared site plan regarding recovery of this knife, which is Ex. Ka13 and the knife is material Ex. 1. The Investigating Officer also recorded statement of the witnesses regarding recovery and also recorded statements of other witnesses and thus after completing the investigation, he submitted the charge sheet Ex. Ka14 against the accused/ appellant and he sent the blood stained and plain earth and the knife along with clothes of the deceased for chemical examination. 7. The postmortem examination on the dead body of Shital Prasad Tiwari was conducted by Dr. S.N. Singh Chauhan, Medical Officer, In-charge of P.H.C. Maharajganj on 13.02.1984 at 3.00 p.m., who is PW-1. The dead body was brought before him in sealed condition by both the aforesaid constables. The dead body was identified by them before him. 8. The Doctor found following anti-mortem injuries on the dead body of deceased, which are as follows: - 1. Penetrating wound 2cm x 1cm x 7cm, it has punctured sternum, pericardium and left chamber of heart, 14 cm below sternal notch 9cm medial and below left nipple. On external examination, the Doctor found the following injuries: 1. Pleural cavity, full of blood, Pericardium- altered of injury no.1. Heart - left chamber pierced and blood present in cavity of pericardium. He found 2 Chhataks semi digested food in the stomach. In the opinion of the Doctor, the death had taken place as a result of the injury, shock and haemorrhage. The doctor proved postmortem report Ex. Ka1 and according to his opinion, the injury might have been caused by knife and in the ordinary circumstances, the injury was sufficient to cause death. 9. The charge under Section 302 IPC was framed on 16.07.1984 by the 7th Additional Sessions Judge, Gorakhpur. The accused denied the charges and pleaded not guilty and claimed to be tried. The statement of accused under Section 313 Cr.P.C. was recorded on 22.01.1985, but no defence evidence was given by the accused/ appellant. He only took the plea of enmity. 10. The prosecution proved his case by examining PW-1 Dr. The accused denied the charges and pleaded not guilty and claimed to be tried. The statement of accused under Section 313 Cr.P.C. was recorded on 22.01.1985, but no defence evidence was given by the accused/ appellant. He only took the plea of enmity. 10. The prosecution proved his case by examining PW-1 Dr. S.N. Singh Chauhan, PW-2 Budhesh Mani Tripathi, PW-3 Rudra Pratap Singh, PW-4 Ravi Shankar Prasad Gupta, PW-5 Rama Shanker Tiwari, PW-6 Vipin Kumar, PW-7 Hari Nath Mani Tripathi, PW-8 Laxmi Naran Verma, PW-9 CP No.55 Jagdish Rai, PW-10, Janardana Mishra, PW-11 CP No.1099 Satya Narain Yadav and PW-12 Investigating Officer R.K. Updhyay. 11. PW-1 Dr. S.N. Singh Chauhan proved the postmortem report Ex.Ka1, who had conducted the postmortem examination on the dead body of Shital Prasad Tiwari. 12. PW-2 Budhesh Mani Tripathi, who is named in the FIR as witness, stated that on the date of incident at about 10.30 a.m., he was going to Mau Pakar and he was on the main road of the south side of the Main Gate of the college. He saw that Shital Prasad Tiwari was standing on the eastern 'Patari' of the road in front of medical store of Vipin Kumar. In the meantime the accused/ appellant Ram Kripal Gupta came there with Rampuri knife and he stabbed in the chest of Shital Prasad Tiwari. He raised an alarm, then this accused by showing his knife and by giving threat of dire consequences, if anyone comes forward, so no one could dare to catch the accused/ appellant and he fled away. This incident was witnessed by Rudra Pratap, Ravi Shankar Prasad Gupta, Harinath Mani Tripathi, owner of Vipin Medical Store and others. After that they took Shital Prasad Tiwari to the hospital. Shital Prasad had died on the spot. 13. PW-3 Rudra Pratap Singh stated that this incident took place on 13th February, 1984. He was student of Maharajganj Inter College and incident took place at 10.30 a.m. His first period was vacant and he had gone to take tea at Mau Pakar Crossing and Ravi Shankar Prasad Gupta and Shital Prasad Tiwari were with him, who were also students. Vipin Medical Store is in front of the shop of tea, where they were standing. Vipin Medical Store is in front of the shop of tea, where they were standing. However, the witness stated that the murder of Shital Prasad Tiwari was not committed before him and he had not seen the accused/ appellant committing murder before him. This witness was declared hostile. 14. PW-4 Ravi Shankar Prasad Gupta also did not support the prosecution version and said that he did not see anyone to commit murder of Shital Prasad Tiwari, but Shital Prasad Tiwari has been murdered and this accused/ appellant Ram Kripal did not commit murder of Shital Prasad Tiwari. This witness was also declared hostile. 15. PW-5 Rama Shankar Tiwari, who is father of the deceased, stated that his son Shital Prasad Tiwari has been murdered on 13.02.1984 and at that time Shital Prasad Tiwari was student. He received the information regarding the incident at 10.45 a.m. and when he reached near the Degree College, he saw that Budhesh Mani Tripathi and other persons were taking away his son to the hospital, where his son was declared dead. On getting information from the witnesses, he got written report Ex. Ka2 from the scribe Kotwal Prasad, then he signed the report. This witness also deposed regarding motive of the incident that there was some altercation between his son and the accused six months ago. He further deposed that in Cinema Hall there was also some altercation between his son and accused six days ago. 16. PW-6 Vipin Kumar, who is owner of Vipin Medical Store stated that his shop Vipin Medical Store is situated near the gate of G.S.B.S. Inter College at Maharajganj and there is also road infront of his shop and he saw Shital Prasad Tiwari in front of his shop, who fell down on the ground, but this accused/ appellant Ram Kripal did not attack upon Shital Prasad Tiwari and he specifically stated that he did not know the accused Ram Kripal and who did not commit any murder on 13.02.1984. The witness was declared hostile. 17. PW-7 Harinath Mani Tripathi, who is also named in the FIR as witness stated that he knows very well to the deceased Shital Prasad Tiwari. The witness was declared hostile. 17. PW-7 Harinath Mani Tripathi, who is also named in the FIR as witness stated that he knows very well to the deceased Shital Prasad Tiwari. He was going to Mau Pakar via Maharajganj Road in February, 1984 at 10.30 a.m. He is a Constable in Excise Department and he was on duty at the time of incident and as soon as he reached to the Kharanja near Vipin Medical Store, he saw that accused Ram Kripal present in the court stabbed Shital Prasad and after that he fled away. After that "we took Shital Prasad Tiwari holding on hands", but Shital Prasad Tiwari died. On hearing about death of Shital Prasad Tiwari, his father Rama Shankar Tiwari reached at the hospital and he met Rama Shankar Tiwari for the first time in the hospital and he told about the incident. Investigating Officer inquired from him. 18. PW-8 Laxmi Narayan Verma stated that he does not know the accused/ appellant Ram Kripal. He also stated that Investigating Officer did not take the plain and blood stained earth in his presence and accused did not commit any murder in his presence and knife was not recovered in his presence by the Investigating Officer. This witness was also declared hostile. 19. PW-9 Jagdish Rai HC No.55 stated that he was Head Moharrir in Police Station Maharajganj on 13.02.1984, on the basis of written report Ex. Ka2 a case was registered in case crime no.25/1984 at 11.30 a.m. and he prepared a chik memo, which is Ex. Ka-3 and he prepared G.D. No.15 on 13.02.1984 at 11.30 a.m. The witness proved the carbon copy of the G.D. which is Ex. Ka4. He also stated that S.H.O. R.K. Upadhyay deposited one sealed knife, two boxes, the same date at 2.50 p.m. In this regard G.D. was prepared, which is Ex. Ka5. 20. PW-10 Janardan Mishra, a witness of fact was examined. He stated on oath that this incident took place on 13.02.1984 at 10.30 a.m. He was going to college and as soon as he reached at the cement shop, which is just near 2 - 4 steps of the college gate and this cement shop is just in front of Degree College, Maharajganj. He came there. Accused Ram Kripal stabbed Shital Prasad Tiwari and immediately Shital Prasad Tiwari died. He came there. Accused Ram Kripal stabbed Shital Prasad Tiwari and immediately Shital Prasad Tiwari died. The Degree College President Shyamad Badan, Vice President and other students witnessed the incident. He himself gave his statement to "Darogaji". 21. PW-11 Satya Narayan Yadav CP No.1099 stated that on 13.02.1984 he was posted as Constable at Police Station Maharajganj. He carried the dead body of Shital Prasad Tiwari to P.H.C. Maharajganj along with relevant papers and the C.P. Om Prakash Singh was with him and after postmortem he handed over the postmortem report, which was given to him by Doctor, deposited in the Police Station. 22. PW-12 Ram Krishna Upadhyay, S.H.O., P.S. Maharajganj stated that after completing investigation, submitted the charge sheet Ex.Ka14. 23. Learned counsel for the appellant argued that FIR is ante-timed and was not promptly lodged. As this incident took place at 10.30 a.m. on 13.02.1984 and the FIR was lodged on the same day at 11.30 a.m. and Shital Prasad was taken to hospital. As per FIR, the distance of the place of occurrence is half furlong from the Police Station Maharajganj, hence it cannot be said that the FIR was not lodged promptly. PW-5 Rama Shankar Tiwari, who lodged this FIR, has stated that after hearing the incident at 10.45 a.m. and his son was declared dead in the hospital, after taking information from the witnesses, he lodged the report. Thus it cannot be said that the FIR was not lodged promptly. There is no basis on which it can be said that FIR was ante-timed. No suggestion has been given to PW-5 in this regard. It has also been argued that scribe of the FIR Kotwal Prasad has not been examined, hence F.I.R. cannot be treated as proved document. We do not agree with the argument of the learned counsel for the appellant. In Moti Lal Vs. State of U.P. 2008(7) Supreme 632, it has been held by the Hon'ble Supreme Court that non-examination of scribe of FIR is not fatal to prosecution and no adverse inference can be drawn against the prosecution if the scribe was not an eye witness to the incident and the complainant/ informant had proved the execution of the FIR while examining himself. In this case PW-5, the father of the deceased and Kotwal Prasad scribe of the FIR are not eye witnesses of the incident, hence law laid by Hon'ble Supreme Court is fully applicable in the circumstance. 24. It has also been argued on behalf of the appellant that it is not clear that who told about incident to the complainant, how he came to know about the facts of the incident? PW5 complainant himself has stated that witness Budhesh Mani Tripathi, PW-2 and other witnesses were taking away his son to the hospital. Naturally these witnesses would have told to the complainant about the whole incident. Nothing is unnatural in it. Hence, this argument has no force. 25. It has been argued that PW-2 stated that some police officials including the Investigating Officer R.K. Upadhyay also had reached on the spot, so FIR was due to intervention of police personnel specially Station House Officer, Maharajganj. The PW12 Investigating Officer R.K. Upadhyay has stated that he reached to the hospital, where the dead body was lying while PW-7 stated that subsequent to the incident no police official came on the spot, even "Daroga Ji" did not come on the spot. Only the passersby and many people gathered there. PW-10 Janardan Mishra stated that at the place of occurrence, the police officials did not reach and thus simply because the PW-2 stated that Investigating Officer R.K. Upadhyay was present at the spot, is not sufficient to prove the fact that there was any intervention of the police officials in lodging the FIR or they were instrumental in any way. No suggestion has been given to PW-12 that he was inimical in any way to the accused. Therefore, it cannot be said that accused Ram Kripal has been falsely implicated by the complainant. 26. It has been argued on behalf of the appellant that the place of occurrence has not been ascertained because the eye witnesses are telling different distances of the place of occurrence from the Police Station Maharajganj. As per FIR this incident took place in front of the Vipin Medical Store, which is on the south of the Main Gate of G.S.B.S. College. PW-12, Investigating Officer prepared the site plan of the place of occurrence and has shown the Vipin Medical Store on west-south side of the G.S.B.S. College. As per FIR this incident took place in front of the Vipin Medical Store, which is on the south of the Main Gate of G.S.B.S. College. PW-12, Investigating Officer prepared the site plan of the place of occurrence and has shown the Vipin Medical Store on west-south side of the G.S.B.S. College. It has not been challenged that the Investigating Officer prepared a wrong site plan which is not tallied with the spot. 27. Though PW-3 Rudra Pratap Singh did not support the prosecution case, but he stated in his examination-in-chief that on 13.02.1984, he had gone to the school at Maharajganj Inter College and on that date the first period was vacant and he along with Ravi Shankar Prasad Gupta and deceased Shital Prasad Tiwari went to take tea at the Tiraha Mau Pakar and at about 10.30 a.m. while they were standing in front of the tea shop, which is situated in front of Vipin Medical Store. Though he stated that Shital Prasad Tiwari was not murdered before him and the accused Ram Kripal did not commit murder of Shital Prasad Tiwari before him. However, this witness is categorically and specifically telling that he along with Ravi Shankar Prasad Gupta and Shitla Prasad Tiwari were standing in front of tea shop, where this Vipin Medical Store is situated. Thus, it is clear that the incident took place infront of Vipin Medical Store. 28. PW-2 supported the prosecution version and is telling the presence of deceased Shital Prasad Tiwari on road in front of Vipin Medical Store, where the accused committed this murder by Rampuri knife and this witness is also stating about the presence of PW-3 Rudra Pratap Singh and Ravi Shankar, Harinath Mani, the owner of Vipin Medical Store. 29. PW-6 Vipin Kumar, the owner of Vipin Medical Store specifically stated that his shop situated in front of the gate of G.S.B.S. College and on 13.02.1984, he found that the dead body of Shital Prasad Tiwari was lying in front of his shop. Although he denied the involvement of the accused. Statement of these hostile witnesses is suffice itself to confirm the place of occurrence. 30. Although he denied the involvement of the accused. Statement of these hostile witnesses is suffice itself to confirm the place of occurrence. 30. PW-7 Harinath Mani Tripathi also supported the prosecution version and stated that in the month of February, 1984 at about 10.30 a.m. while he was going to Mau Pakar via Road Maharajganj in order to discharge the patrolling duty and when he reached near G.S.B.S. College, which lies in front of Vipin Medical Store, he found that Shital Prasad Tiwari was murdered by accused Ram Kripal by knife. No suggestion has been given to this witness that he is not telling the correct place of occurrence. In this regard the statement of PW-10 Janardan Mishra is also relevant. This witness is independent witness and he was student of the same G.S.B.S. College. He stated that on 13.02.1984 while he was going to attend his class as he was student of M.A. Previous and when he reached near the cement shop, which is near the college, he found that accused Ram Kripal stabbed Shital Prasad Tiwari and immediately Shital Prasad Tiwari died. This witness has given the statement to the Investigating Officer under Section 161 Cr.P.C. that he was talking in front of shop of fertilizer, which is on the northern side of the G.S.B.S. College. This witness did not support the statement u/s 161 Cr.P.C. recorded by the Investigating Officer. The Investigating Officer has shown the fertilizer shop on the western side of the G.S.B.S. College. This witness is deposing in the court after one year of the incident. This is not very material that he was standing in front of cement shop or fertilizer shop, but the statement of the PW-10 clearly established that there is shop and he saw this incident from that place, which is very nearer to Vipin Medical Store and place of occurrence and this Vipin Medical Store is situated just near and infront of the gate of G.S.B.S. Degree College. Thus, by site plan and evidence of witnesses, place of occurrence has been clearly established. 31. Thus, by site plan and evidence of witnesses, place of occurrence has been clearly established. 31. It has been argued on behalf of the appellant that PW-12 himself stated that the place of occurrence is at distance of 5/7 furlong from the Police Station Maharajganj, whereas PW-5 stated that Vipin Medical Store is at a distance of two furlong from the Degree College, whereas PW-7 stated that the Police Station is at a distance 3/4 furlongs from the place of occurrence and Chik FIR itself discloses the Police Station as half furlong from the place of occurrence, hence there are different statements regarding distance of the place of occurrence from the Police Station. On appraisal of the statements of the witnesses and the documentary proofs, it is clear that murder was committed in front of Vipin Medical Store, which is situated infront of Gate of G.S.B.S. College and the owner of the Vipin Medical Store himself admitted this fact. So it is immaterial that this place of occurrence is half furlong, two furlong or 5/7 furlongs from the Police Station because Vipin Medical Store has been clearly established, which is nearer to the G.S.B.S. College. 32. It has been argued by learned counsel for the appellant that as per prosecution this incident took place due to altercation between the deceased and accused in Picture Hall, but this factum is not proved because no one is witness of this fact. PW-5, the informant/ father of the deceased himself admitted in his examination-in-chief that some altercation took place before six months and six days before this incident between his son and accused/ appellant and he admitted in his cross-examination that he himself had not seen those incidents of altercation, only he had heard about those incidents, hence motive is not proved. It is argued that as motive is lacking in the case, the prosecution case becomes damaging and accused is entitled for acquittal. The learned trial court agreed with this submission as prosecution was not able to prove the motive as none of the episodes have been corroborated. We fully agree with the argument advanced by the learned counsel for the appellant. In this regard Hon'ble Supreme Court has clarified that prosecution should prove motive if the case is based on circumstantial evidence. Motive is not a sine-qua-none for the commission of crime in a case of direct evidence. We fully agree with the argument advanced by the learned counsel for the appellant. In this regard Hon'ble Supreme Court has clarified that prosecution should prove motive if the case is based on circumstantial evidence. Motive is not a sine-qua-none for the commission of crime in a case of direct evidence. The element of motive does not play such an important role, it has to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive, would not be fatal to the prosecution case when other reliable evidence available on record unerringly establishes the guilt of the accused and that does not mean that if the motive is not established, the evidence of eye witnesses should be rendered untrustworthy because if the prosecution has proved its case by the occular version of the witnesses regarding occurrence which is supported by the medical evidence, the testimony of the eye witnesses will be reliable and cannot be discarded so far. 33. The Hon'ble Supreme Court has laid down the above legal position in the following case laws: (1) Sana Ullah Khan Vs. State of Bihar, 2013 (81) ACC 302 (SC), (2) Subal Ghorai Vs. State of West Bengal, (2013) 4 SCC 607 , (3) Deepak Verma VS. State of H.P., 2012 (76) ACC 794 (SC). 34. The learned counsel for the appellant further argued that the prosecution has failed to prove the recovery of the knife from the accused/ appellant. As per recovery memo of the knife Ex. Ka-12, there are three independent witnesses of this recovery memo, who are Laxmi Narayan Verma, Vipin Kumar and Mohd. Akhtar Abbasi. Vipin Kumar and Laxmi Narayan Verma have been examined. Mohd. Akhtar Abbasi has not been examined. PW-6 Vipin Kumar, the witness of recovery of knife, has not specifically said anything regarding recovery of knife before him. Ka-12, there are three independent witnesses of this recovery memo, who are Laxmi Narayan Verma, Vipin Kumar and Mohd. Akhtar Abbasi. Vipin Kumar and Laxmi Narayan Verma have been examined. Mohd. Akhtar Abbasi has not been examined. PW-6 Vipin Kumar, the witness of recovery of knife, has not specifically said anything regarding recovery of knife before him. Even he was not asked by the prosecution in his examination-in-chief in this regard, which was a lach on the part of prosecutor, but when the witness was declared hostile, in his cross-examination, the witness has said that the Investigating Officer did not make recovery of knife on the pointing out of the accused and when he signed on the recovery memo, it was blank. In the same way, PW-8 Laxi Narayan Verma has also not supported the recovery of knife and in the examination-in-chief he has specifically denied any recovery before him. Now there remains only statement of the Investigating Officer, who proved the factum of recovery. It is also very material to note that no time and date is mentioned in the recovery memo, no disclosure statement of accused proved by the Investigating Officer. The Investigating Officer has proved the recovery memo and the site plan prepared for the recovery. It has been argued on behalf of the appellant that as no independent witness has proved this recovery, the statement of the Investigating Officer is not sufficient. Learned A.G.A. has submitted that there is human blood marks on the knife as disclosed in the chemical examination report and this is sufficient to prove that this knife was recovered from the accused. We do not agree with this argument because in the chemical examination report itself only human blood has been found. There is no report that this human blood belongs to deceased, hence, we fully agree with the argument that the prosecution has failed to prove the factum of recovery of knife on the pointing out of the appellant/ accused. But only by not proving the recovery of the knife by the accused/ appellant, it would not be safe or justifiable to acquit the accused/ appellant on this ground alone. But only by not proving the recovery of the knife by the accused/ appellant, it would not be safe or justifiable to acquit the accused/ appellant on this ground alone. Where "Katta" and the "knife" used in causing the injuries to the victim, but not recovered by the Investigating Officer, but the doctor's evidence was available to prove that the victim had sustained gunshot injuries and the knife injuries, it has been held by the Hon'ble Supreme Court that non-recovery of the said weapons, was not fatal to the case of the prosecution as the injuries sustained by the victim were proved. In the cases of recovery of the weapon it has been held by the Hon'ble Supreme Court in the cases of Gopal Singh Vs. State of Uttarakhand, (2013) 7 SCC 547 (paras 12 & 13) and Anvarul Haq Vs. State of U.P., (2005) 10 SCC 581 and Lal Bahadur Vs. State (NCT of Delhi), (2013) 4 SCC 557 , that even non-recovery of dead body and looted articles would not be fatal to the prosecution case, if the prosecution story was fully proved otherwise having consideration on the deposition by eye-witnesses. In this case also having consideration of the eye witnesses corroborated by medical evidence and of Doctor, PW-1, inspite of non-proving the recovery of knife, it will not be fatal to the prosecution case. 35. It has been argued on behalf of the appellant that witnesses, who have been produced by the prosecution, are "chance witnesses" and since the case of prosecution only rests on the testimony of chance witnesses, it will be too harsh to rely on their testimony and the most important witness PW-6 Vipin Kumar, Proprietor of Vipin Medical Store, in front of whose shop, the murder has been committed also did not support the prosecution version, hence the benefit of doubt should be given to the appellant. It has been further argued that other witnesses of facts are also chance witnesses as PW-2 & PW-7 i.e. Hari Nath Mani Tripathi and Budhesh Mani Tripathi, were going to Mau Pakar and on the way they stated to have seen the incident and PW-10 Janardan Mishra is said to go to college, hence no one can be said to be a witness of fact, who were standing near the place of occurrence and those witnesses, who were with the deceased as Rudra Pratap Singh, PW-3 and Ravi Shankar Prasad Gupta, PW-4 are not supporting the prosecution version, hence all witnesses of fact are not reliable. 36. Now question arises, who is chance witness and what is value of their deposition. It is not the rule of law that chance witnesses cannot be believed. The reason for a chance witness being present on the spot and his testimony requires close scrutiny and if the same otherwise found reliable, his testimony cannot be discarded merely on the ground of his being a chance witness. It is correct that evidence of chance witness should be scrutinized very cautiously and requires careful consideration, but under Section 118 of the Evidence Act, the evidence of independent witness cannot be brushed aside on viewed with suspicion on the ground that they were mere chance witness (State of A.P. Vs. K.S. Reddy, AIR 2004 SC 3305 ). The expression "chance witness" is borrowed from countries, where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is quite unsustainable and expression in country, where people are less formal and more castle, at any rate in the matter explaining their presence (Thangaiya Vs. State of Tamilnadu, 2005 Criminal Law Journal 684 SC). If murder is committed in a street, only passersby will be witnesses. Clear and cogent evidence of the witnesses cannot be discarded by treating them as chance witnesses. Where the witness had no business to be present, such witness would be chance witness and his evidence cannot be believed as held in Ramesh Vs. State of U.P., (2009) 15 SCC 513 . In the market every passersby is a chance witness. In the case of a chance witness, if that witness gives sufficient reasons for his presence, his evidence can be accepted (Pintoo Vs. State of U.P., (2009) 15 SCC 513 . In the market every passersby is a chance witness. In the case of a chance witness, if that witness gives sufficient reasons for his presence, his evidence can be accepted (Pintoo Vs. State of Rajasthan, 2009 Criminal Law Journal, 748). Where the witnesses in question actually saw accused assaulting a man, who ultimately died of injuries, his testimony cannot be rejected merely because they were chance witnesses. Thus while viewing the testimony of chance witnesses, what is required of court is to have cautious and close scrutiny. As regards presence of Budhesh Mani Tripathi, PW-2 is concerned, his presence on the spot cannot be doubted in any way. He has fully established his presence near the spot. He has been cross-examined at length regarding his presence, but there is nothing in his cross-examination to create his presence doubtful in any way. In his cross-examination he has stated that he was feeling pain in his stomach and he was going to Dr. S.N. Rai for taking medicines and the dispensary of Dr. S.N. Rai was situated on the western side of place of occurrence on the road going to Chowk and this dispensary is only one furlong away from the place of occurrence, but he could not take the medicines because of this incident. This is very natural statement. The complainant is Constable in Excise Department and this witness is a Company Commander in Home Guards, who resides in Bunglow situated in western block of Police Station Maharajganj. This witness also stated that at the time of incident for the first time when he saw the accused, the accused was in the eastern side from him. This fact fully establishes the presence of this witness corroborated with situations shown in site plan. As per the statement of Doctor PW-1 and medical report only one injury of knife was caused to the deceased. This witness also stated that accused stabbed once directly in the chest and he further stated that knife was not stabbed from lower side to upper side and Shital Prasad Tiwari fell down on the earth immediately. This statement is natural and only eye witness can depose like this. This witness also stated that accused stabbed once directly in the chest and he further stated that knife was not stabbed from lower side to upper side and Shital Prasad Tiwari fell down on the earth immediately. This statement is natural and only eye witness can depose like this. He also stated that as soon as the accused pulled out the knife, Shital Prasad Tiwari did not try to catch the accused nor did anything in his defence and he and other passersby did not try to catch the accused because the accused by holding knife was threatening. This witness also stated that deceased Shital Prasad Tiwari was friend of his son. In these circumstances anyone having moral values was required to help Shital Prasad Tiwari, the deceased. Therefore, this witness is deposing that he stayed for half an hour on the spot and he with the help of other people took away the body of deceased to the Hospital. In these circumstances, this cannot be said that PW-2 is only a chance witness. This is very material that PW-2 Budhesh Mani Tripathi is named in the FIR as witness, his presence cannot be doubted in any way. 37. Another witness PW-7 Hari Nath Tripathi, Constable in Excise Department also supported the prosecution version. This witness is also named in the FIR. He has been cross-examined at length, but nothing could be extracted from his cross-examination, which may reflect that his presence was doubtful on the spot. He has stated that he was going to Mau Pakar on duty. Occasionally he used to go to Rama Shankar Tiwari and discharged their duties together. Therefore, he knew the deceased Shital Prasad Tiwari. In his cross-examination this witness has deposed that at the time of incident he was just 16 yards away on western southern side of the place of occurrence. This witness specifically stated that he himself saw this incident of stabbing and at that time his face was on northern side and after incident accused ran away on the northern side. All these facts fully prove the presence of this witness on the spot. No enmity has been proved by the accused with this witness, even no suggestion has been given in this regard. All these facts fully prove the presence of this witness on the spot. No enmity has been proved by the accused with this witness, even no suggestion has been given in this regard. In these circumstances, this witness cannot be said to be a chance witness simply because this witness happens to be on intimate terms with the father of the deceased and in that connection he knew Rama Shankar Tiwari from before, it will not go a long way to discard his testimony. 38. In the same way PW-10 Janardan Mishra, who supported the prosecution version, establishes his presence on the spot beyond any doubt. The statements in his cross-examination are natural statements, when he is saying that he, the President and Vice President of G.S.B.S. College and other students were there, who had seen the incident. The incident took place at 10.30 a.m., which was college time. The statement that the students in a crowd were demanding the arrest of the accused, is very natural statement. Though this witness is not named in the FIR as witness, but it will be immaterial that only on this ground his testimony be not admitted because an FIR is not an encyclopedia and it is not required that name of all the witnesses should be written in the FIR. In the FIR it is written that besides the names mentioned in the FIR, many others had also witnessed the incident. 39. The learned trial court has discussed at length the evidence of these witnesses of fact regarding their presence and found them trustworthy witnesses. We fully agree with the view of the learned trial court. 40. It has been argued that this witness PW-10 did not attend the classes same day, then how can this witness say that he was going to college to attend the classes. We do not agree with this argument because it is very natural that when the student of the same college was murdered in broad day light just near to the college, the possibility of the classes being attended subsequently, if not ruled out, at least is remote one. A person seeing such type of incident how can attend the class at the same time. 41. As regard the evidences of hostile evidence are concerned, the Court has to see that how much reliance can be placed on the evidence of hostile witnesses. A person seeing such type of incident how can attend the class at the same time. 41. As regard the evidences of hostile evidence are concerned, the Court has to see that how much reliance can be placed on the evidence of hostile witnesses. Hostile witness is one, who from the manner in which he gives the evidence, shows that he is not desirous of telling the truth to the Court. A witness cannot be said to be hostile whenever his testimony is such that it does not support the case of the party calling him or is not in accord with the evidence of other witnesses. Law is settled that the evidence of a hostile witness cannot be rejected outright. Both the parties are entitled to rely on such part of his evidence which assist their case. The mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined, does not make him unreliable so as to exclude his evidence from consideration altogether. His evidence is to be considered for what its worth. The portion of the testimony of the hostile witness, which inspires confidence, can be relied upon as has been held in Madhukar Damu Patil Vs. State of Maharashtra, 1996, Criminal Law Journal 1962. The evidence of hostile witness can be accepted in part e.g. to fix the place of occurrence and to prove his presence at the place of occurrence as has been held in Raja Ram Vs. State of U.P. 1978 All.Cr.R. (Page No.11) In this case also as per evidence of hostile witness given even in the examination-in-chief, it is clear that at the time of incident they were present on the spot and were with the deceased at the time of incident. The place of occurrence is proving beyond doubt even by the evidence of these hostile witnesses. Thus, it cannot be said that the evidence of hostile witnesses is totally against the prosecution version. 42. The prosecution case further strengthen with the fact that the occular evidence of the witnesses is in accordance with the medical evidence because all these three witnesses, who are standing with the prosecution, have clearly deposed that one knife blow was inflicted by the accused/ appellant Ram Kripal to Shital Prasad Tiwari, which resulted in instantaneous death. In Ex.Ka2 also this fact finds mention and PW-2 Dr. In Ex.Ka2 also this fact finds mention and PW-2 Dr. S.N. Singh Chauhan, who conducted postmortem examination also stated this fact that it was a injury of knife on the person of the deceased. 43. It has been argued on behalf of the appellant that subsequent conduct of the accused shows that he was not involved in the said crime because as per statement of Investigating officer, the accused was arrested from his residence. The accused himself has admitted in the statement u/s 313 Cr.P.C. that he was arrested from his house. It has been submitted that if he had been involved in the said crime, he would not have offered for arrest in such a manner. We agree with the view taken by the learned trial court that the conduct of an accused is of no relevance while appreciating the evidence. The Court has to appreciate the evidence which is on record and the accused had not given any defence evidence in supporting that under what circumstances he was named in the FIR, why the witnesses are deposing against him or he was elsewhere at the time of occurrence or there was any enmity with the complainant or with the witnesses. Further, it is noteworthy that accused was arrested by the I.O. on some information and accused himself had not offered for his arrest. 44. Thus, on all counts, the eye witnesses are supporting the prosecution version corroborated by the medical evidence, due to prompt FIR, prompt postmortem examination, prompt investigation and prompt arrest, the conclusion drawn by the learned trial court that the accused/ appellant Ram Kripal is guilty of committing murder of Shital Prasad Tiwari on 13.02.1984 at 10.30 a.m. infront of the gate of G.S.B.S. Inter College, Maharajganj, is liable to be confirmed. 45. On the basis of above discussion we are of the irresistible view that the judgment and order rendered by the learned trial court convicting and sentencing the appellant cannot be interfered with and is liable to be confirmed. 46. The appeal is dismissed. The judgment and order of the learned trial court is confirmed. The appellant is on bail. His bail bond is cancelled. Let he be surrendered before the Court of C.J.M. concerned and be taken into custody and be sent to Jail for serving out the awarded sentence. 47. 46. The appeal is dismissed. The judgment and order of the learned trial court is confirmed. The appellant is on bail. His bail bond is cancelled. Let he be surrendered before the Court of C.J.M. concerned and be taken into custody and be sent to Jail for serving out the awarded sentence. 47. Let a copy of judgment be transmitted to the concerned court for compliance immediately.