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2017 DIGILAW 1049 (ALL)

RAM TEK v. STATE OF U. P.

2017-04-19

KRISHNA MURARI, RAVINDRA NATH KAKKAR

body2017
JUDGMENT : (Delivered by Hon'ble Ravindra Nath Kakkar, J.) 1. This criminal appeal has been preferred against the judgment and order dated 19.1.1983 passed by Additional Sessions Judge, Ghaziabad in Sessions Trial No. 243 of 1981, convicting and sentencing the appellant under Section 302 read with Section 34 I.P.C. to life imprisonment and under Section 323 I.P.C. to one month. 2. Facts, in brief, are that one Hariya @ Hari Singh of village Revri Revra, P.S. Muradnagar, District Ghaziabad, who is the father of the deceased Aashey, on 7.5.1980, prior to the incident of murder, was coming back home from his field along with his bullocks. He met the accused, namely, Member in the way who asked him that your bullocks have spoiled the sugarcane field so he would not allow him to take the bullocks. He wanted to get the bullocks to be detained in cattle pond. This was objected by Hariya and an altercation took place between them to which accused Member gave him a blow of lathi. Hariya started crying and accused Member left the spot. This incident took place near the field of Hariya. Thereafter when Hariya again started for his home along with bullocks he met his son Aashey who was coming from his sugarcane field. Father narrated the entire story to his son Aashey who along with his bullocks proceeded towards his home and Hariya being injured followed him. When they reached in front of the 'Gher' of the accused persons, Aashey and his bullocks were obstructed by all the three accused persons, namely, Member, Sipatter and Ram Tek who are real brothers. At that place again bullocks were being obstructed and certain altercations took place but the accused persons were adamant to take the bullocks as according to them the bullocks had spoiled and damaged their sugarcane field. It is also the prosecution version that all the three accused who were armed with lathis attacked Aashey and had given severe blows on his body then Aashey raised alarm at which the witnesses Yadram, the brother of deceased Slakh Chand, Siriya, Raghunandan Bedi and several other persons rushed to the spot and saw the occurrence. They also tried to intervene. The deceased Aashey at that very point fell down on the ground due to the injuries sustained by the lathis of the three accused persons. They also tried to intervene. The deceased Aashey at that very point fell down on the ground due to the injuries sustained by the lathis of the three accused persons. Thereafter Aashey was brought to the 'baithak' of Hariya and was taken to the hospital on a cart (buggi), but as they had crossed the outer limit of village Revri Revra, Aashey succumbed to his injuries. They alongwith deceased returned back home and put the dead body of Aashey in the 'baithak' of Hariya. The Pradhan of the village Prem Singh was called and the F.I.R. was dictated to him by the brother of the deceased Yadram and the report was lodged at Police Station at 6.20 a.m. the next day early morning against the accused persons for the offence punishable under Sections 304, 323 I.P.C. 3. Investigation of the case was carried out by Investigating Officer Ram Saran Lal Sharma, Sub-Inspector, who reached on the spot and all relevant papers like inquest report, report to R.I. specimen seal reported to Medical Officer, sketch of the dead body and challan lash of the dead body was prepared on the spot. The dead body was sent for post mortem through Constables Subodh Kumar and Parhlad Singh. The statements of the witnesses were also recorded. Investigating Officer inspected the place of occurrence and prepared the site plan. The post mortem examination of the deceased Aashey was conducted by Dr. Laxman Avtar Sharma. The following ante mortem injuries were found on the body of the deceased:- "1. Contusion - 10 c.m. x 5 c.m. left side of forehead above eyebrow. 2. Contusion - 14 c.m. x 8 c.m. left side of face (on the left cheek) 3. Contusion - 12 c.m. x 7 c.m. on the left side of the scalp above the ear (left). 4. Contusion - On the right hand dorsal side (back of hand) 5. Contusion - 6 c.m. x 4 c.m. back of left elbow. 6. Contusion - 22 c.m. x 14 c.m. on the front of chest left portion upper half. 7. Contusion - 24 c.m. x 14 c.m. on the front of chest middle portion and lower portion of neck. 8. Contusion - 15 c.m. x 8 c.m. on the back portion and upper side of left shoulder." 4. 6. Contusion - 22 c.m. x 14 c.m. on the front of chest left portion upper half. 7. Contusion - 24 c.m. x 14 c.m. on the front of chest middle portion and lower portion of neck. 8. Contusion - 15 c.m. x 8 c.m. on the back portion and upper side of left shoulder." 4. It transpires from the FIR and the statements of the prosecution evidence that Hariya, father of the deceased, also got injuries in the incident which took place prior to the murder of his son Aashey by the blow of accused Member. Hariya was also medically examined on 8.5.1980 at 5.30 p.m. by Dr. D.N. Sharma at Primary Health Centre and the following injuries found on the body of Hariya:- "1. Scabbed Abrasion - 5 c.m. x 0.5 c.m. on left leg front and upper part, 7 c.m. below the knee joint. 2. Contusion - 5 x 2 c.m. on left leg, front 6 c.m. below Injury no. 1:- injury simple in nature, caused by friction. Injury no. 2:- by blunt object. Duration about one day." 5. After completion of the investigation Investigating Officer S.I. Ram Saran Lal Sharma submitted a charge sheet against the accused persons. Cognizance was taken and charge against accused Member was framed for the offence under Sections 302 and 323/34 I.P.C. and charges against accused Ram Tek and Sipatter were framed under Sections 302 read with Section 34 I.P.C. which were denied and claim was made for trial. 6. The prosecution in support of its case produced P.W.1 Dr. D.N. Sharma who proved the injury report Ex.Ka-1 of Hariya dated 8.5.1980 at 5.30 p.m., P.W.2 Yadram, brother of the deceased Aashey, who was an eye witness and proved the first information report lodged in the next morning at 6.20 a.m. which is exhibited as Ex.Ka-2. P.W.3 Hariya @ Hari Singh who is the father of the deceased and was following the deceased Aashey at the time of the incident of murder. He was also an eye witness. 7. It is relevant to mention here that prior to the incident of the murder, Hariya, father of deceased, was also beaten by the accused Member. This incident occurred prior to the incident of murder of Aashey. P.W.4 Dr. He was also an eye witness. 7. It is relevant to mention here that prior to the incident of the murder, Hariya, father of deceased, was also beaten by the accused Member. This incident occurred prior to the incident of murder of Aashey. P.W.4 Dr. Laxman Avtar Sharma who conducted the post mortem report of the corpus of the body of the deceased Aashey proved the post mortem report which is Ex.Ka-3 available on record and the details of which have already been mentioned above. 8. P.W.5 - Salak Chand is also an independent eye witness who reached on the spot and had given ocular testimony. P.W.6 Sub Inspector Ram Charan Lal Sharma is the Investigating Officer who proved the inquest report, letter sent to the Medical Officer, Ghaziabad for the post mortem examination of the deceased, the specimen seal sent to the doctor, letter addressed to the Medical Officer, Ghaziabad, sketch of the dead body, challan of the dead body, the site plan, charge sheet which are Ex.Ka-4 to Ex.Ka-11. 9. P.W.6 Sub Inspector Ram Charan Lal Sharma has proved chik FIR Ex.Ka-12 and G.D. Rapat No. 12 dated 8.5.1980 at 6.20 morning Ex.Ka-13. 10. P.W.7 Constable Sumod Singh is a formal witness who took dead body from the spot to the hospital for medical examination conducted by P.W.4 Dr. Laxman Avtar Sharma and is also a witness handing over all the relevant papers required for conducting the post mortem of the deceased. 11. After close of the prosecution evidence statement under Section 313 Cr.P.C. was recorded. The accused Member stated that the bullocks of Hariya had spoiled his sugarcane field and he wanted to get the bullocks to the cattle pond which was resisted by Hariya who raised the alarm at which his son Aashey, the deceased, Gulzari and Yadram rushed to the spot. Aashey caught hold of him and the other two accused Yadram and Gulzari hit him with a lathi. He (Member) exercised his right of private defence. He has stated that he is not aware of the fact that who received how many blows but denied the fact that he caused any injuries which resulted into the death of Aashey with the help of other co-accused Ram Tek and Sipatter. It is also stated that he has been falsely implicated due to enmity. He has stated that he is not aware of the fact that who received how many blows but denied the fact that he caused any injuries which resulted into the death of Aashey with the help of other co-accused Ram Tek and Sipatter. It is also stated that he has been falsely implicated due to enmity. In this way, this accused Member who is now dead and appeal filed by him had already been abated specifically stated that during the incident he exercised his right of private defence whereas the other accused persons in the statement under Section 313 Cr.P.C. denied their participation in the alleged occurrence. It is further stated that they had been falsely implicated due to enmity. In support of the defence version, Ex.Kha-1 a photostat copy of the injury report of the accused Member has been filed and the prosecution has simply dispensed with its formal proof. A perusal of which shows two stitched wound and one contusion and his medical examination was conducted on 12.5.1980 at 9.40 a.m. and the doctor has opined that injuries are more than one day old and simple in nature. Further Bidhu @ Badhu was examined as D.W.1. It is relevant to mention that this witness was named as a prosecution witness but has been produced by the defence who deposed that the accused Member wanted to take bullocks of Hariya to the cattle pond as the bullocks had spoiled and damaged his sugarcane field which was objected by Hariya and at the time of altercation Hariya called his sons Aashey, Gulzari and Yadram who arrived at the spot armed with spears and lathis and started beating the accused Member who in the right of private defence also used his lathi to save himself. 12. 12. The learned trial judge had arrived at a conclusion that the prosecution has proved its case beyond reasonable doubt and prior to the incident of murder, accused Member had given a simple blow to the person of Hariya and later on all the three accused persons, who happen to be the real brothers, jointly intercepted the bullocks and caused injuries to the deceased Aashey and due to the injuries he died subsequently, therefore, convicted all the three accused for an offence under Section 302 read with Section 34 I.P.C. and conviction against the accused Member has been recorded under Section 323 I.P.C. for causing injuries to Hariya. Aggrieved against this order, appeal has been preferred. 13. Before embarking upon the appraisement of the evidence of the prosecution it would be appropriate to refer the prosecution story briefly. The prosecution version as disclosed in the FIR and the statement of the eye witnesses is mainly in two parts. First part is that Hariya @ Hari Singh who is father of the deceased Aashey prior to the incident of murder of his son Aashey on 7.5.1980 was coming back to his home from the field along with his bullocks. He met with the accused Member who had stated that since his bullocks spoiled and damaged the sugarcane field he would take the bullocks to cattle pond and will not allow him to take the bullocks and had started to stop the bullocks from the front side which was seriously objected by Hariya. Certain altercation took place between them and accused Member gave him a blow of lathi. To this Hariya started crying and at that point of time the accused Member left the spot. This incident occurred near the field of Hariya. After this incident when Hariya again started for his home the second part of the story is that in between the way Hariya met with his son Aashey who was coming back from his sugarcane field and at this point of time Hariya narrated the whole incident to his son Aashey and thereafter proceeded to his home along with the bullocks and being injured his father Hariya was accompanying him. When they reached in front of the 'Gher' of the accused persons all the three accused, namely, Member, Sipatter and Ram Tek who are the real brothers again intercepted the deceased Aashey and his bullocks and assaulted the deceased Aashey with their lathis who raised alarm and on hearing his cries at that point of time the witnesses, namely, Yadram, real brother of Aashey, Salek Chand and others reached on the spot and saw the occurrence. They all tried to intervene. However, Aashey fell down on the ground due to the blows of the lathis given by all the three accused persons. With the help of the witnesses who arrived on the spot Aashey was taken to the 'baithak' of Hariya on cot. On serious condition of the deceased Aashey, a cart (buggi) was arranged and he was taken to the hospital but when they just crossed the village Revri Revra, Aashey succumbed to his injuries. The deceased was brought back to the house and the dead body was kept in 'baithak' of Hariya. FIR was lodged early in the morning on the next day. Thereafter Investigating Officer reached on the spot and started investigation whereas the defence version in short is as follows:- "The accused Member has specifically and categorically stated that when the bullocks of Hariya had spoiled and damaged his sugarcane field and he was taking bullocks of Hariya to the cattle pond which was objected by Hariya and on this Hariya called his sons Aashey, Gulzari and Yadram who armed with spear and lathis with them reached on the spot. They started assaulting accused Member and in exercise of his right to private defence accused Member also used his lathi to save himself." 14. It is pertinent to mention that accused Member who took the plea of exercise of right to private defence had died during the pendency of this appeal and the appeal against him stands abated vide order dated 12.1.2012. We are hearing the appeals filed by other two surviving appellants, namely, Ram Tek and Sipatter who are real brothers of the accused Member and had been convicted by the trial judge under Section 302 read with Section 34 I.P.C. 15. We are hearing the appeals filed by other two surviving appellants, namely, Ram Tek and Sipatter who are real brothers of the accused Member and had been convicted by the trial judge under Section 302 read with Section 34 I.P.C. 15. Perusal of the impugned judgment reveals that the theory of exercise of right to private defence has been disbelieved with the cogent and convincing discussions specially the reasons assigned in para 12 to 16 of the impugned judgment. Now the learned counsel before starting his argument has firstly submitted that since the appeal filed by the accused appellant Member due to his death stands abated hence he has nothing to challenge that part of the judgment. He wants to argue only with regard to the appeal filed by the surviving appellants Ram Tek and Sipatter. His main contention on behalf of the surviving accused appellants are as follows:- Firstly, the accused appellants being real brothers of the accused Member have been falsely implicated due to the enmity. Their presence, involvement and complicity had not been proved beyond shadow of any reasonable doubt hence they have been wrongly convicted with the aid of Section 34 I.P.C. Secondly, there is a delay in lodging the FIR after concoction and deliberation. Thirdly, no independent witness has been produced. P.W.2 Yadram is the real brother of the deceased Aashey. P.W.3 Hariya @ Hari Singh is the father of the deceased and P.W.5 Salek Chand is relative of the deceased. All the prosecution witnesses are related and interested witnesses there is no independent witness. It is also the contention of the learned counsel that P.W.5 in his cross-examination has not supported the prosecution version but has supported the defence version and one of the prosecution witness Rati Ram, although he was a prosecution witness, has been produced by the defence who has supported the defence version. Fourthly, there is no motive against the surviving accused appellants as the genesis of marpeet alleged to be is against the accused Member. Prior incident relates in between Hariya @ Hari Singh and the accused Member. So the motive cannot be attributed against the surviving appellants accused. Further there had not been any previous enmity as admitted by the prosecution witnesses and in last certain contradictions, exaggeration in the ocular testimony has been argued before us. 16. Prior incident relates in between Hariya @ Hari Singh and the accused Member. So the motive cannot be attributed against the surviving appellants accused. Further there had not been any previous enmity as admitted by the prosecution witnesses and in last certain contradictions, exaggeration in the ocular testimony has been argued before us. 16. In the alternative, learned counsel for the appellants made submission that case against accused is not covered under Section 302 I.P.C. because the weapon used is lathi which is not fatal weapon and as there was no enmity, the incident occurred in a spur of moment of provocation. 17. Per contra, learned A.G.A. has submitted that there is cogent and reliable evidence against the accused appellants. The order of the court below is just and legal and neither there is any illegality nor infirmity or perversity in the impugned judgment which requires interference by this Court. Therefore, the appeal deserves to be dismissed. 18. Having heard the learned counsel for the parties we have perused the lower court record. 19. With regard to the delay in lodging the FIR we would like to mention that a perusal of the chik FIR Ex.K-12 reveals that the incident is said to be dated 7.5.1980 at about 6.30 p.m. and the report was lodged on the next early morning on 8.5.1980 at 6.20 a.m. and the distance from the place of occurrence to the police station is mentioned as 9 kms in west direction. The fact which comes out during the examination of the witnesses of fact indicates that the deceased Aashey after the incident being in serious condition was brought to the 'Gher' of his father Hariya thereafter a cart (buggi) was arranged and the victim on the way to the hospital succumbed to his injuries. Thereafter he was brought back to the home and due to the darkness of the night and fear of the accused persons the FIR could not be lodged as the police station was 9 kms away from the village. This fact and circumstances to our mind cannot be said to be unnatural. The mental agony of the family members and the apprehended danger from the accused side is but natural. Further, it is relevant to mention here that in the early hours of the next day the FIR was lodged. This fact and circumstances to our mind cannot be said to be unnatural. The mental agony of the family members and the apprehended danger from the accused side is but natural. Further, it is relevant to mention here that in the early hours of the next day the FIR was lodged. Under such circumstances we are not inclined to accept the submissions raised by the learned counsel for the accused appellants that there is a delay in lodging the FIR. Further it is relevant to mention that FIR itself is not a proof of a case, but it is only a piece of evidence which could be used for corroborating the case of the prosecution. Under the facts and circumstances delay, if any, in the present case stands properly explained. 20. Next point which requires consideration is with regard to motive and genesis of the incident. Learned counsel for the appellants submits that since there was no enmity between the parties and the genesis of the incident as per allegation of the prosecution is taking of the bullocks to the cattle pond and the altercation between the father of the deceased and accused Member. So there was no animus for the accused Member and his two brothers Ram Tek and Sipatter to cause fatal injuries to the person of Aashey. The parties were not inimical to each other before the date of occurrence which itself is established by the evidence tendered by the prosecution. 21. With regard to motive, the legal propositions are as follows:- "In the case of State of U.P. vs. Krishna Master and Others, (2010) 6 ACJ 232 Hon'ble Apex Court has held that it is well settled that the prosecution is not supposed to prove motive when prosecution relies on direct evidence, i.e. evidence of eye-witnesses. In the case of Munish Bhargav vs. State of Haryana, (2012) 10 SCC 464 , the Hon'ble Apex Court held that if the evidence on record suggests proper and necessary motive then prosecution against the accused is established. In Sanaullah Khan vs. State of Bihar, (2013) 81 ACC 302 the Hon'ble Apex Court held that proof of motive cannot be the basis to disbelieve the prosecution case. In Sanaullah Khan vs. State of Bihar, (2013) 81 ACC 302 the Hon'ble Apex Court held that proof of motive cannot be the basis to disbelieve the prosecution case. In Dharnidhar vs. State of U.P. and Another, (2010) 6 SCJ 662 , the Hon'ble Apex Court held that it will not be correct to say as an absolute proposition of law, that the existence of a strong or definite motive is a sine qua non to holding an accused guilty of a criminal offence. In Alaqupandi vs. State of Tamilnadu, (2012) CRLJ 3363 the Hon'ble Apex Court held that existence of motive for committing a crime is not an absolute requirement of law but it is always a relevant factor which will be taken into consideration by the courts as it will render assistance of the Courts while analysing the prosecution evidence and determining the guilt of the accused." 22. On the weight of touchstone of the above legal propositions, it would be relevant to mention that the incident of murder as per prosecution version is based on direct evidence, i.e. the version of the eye witnesses. Secondly, the accused appellants belong to the same locality and they are known to each other prior to the incident. Thirdly, the whole incident is based on two parts, the genesis and cause of the incident as narrated in the FIR and supported with the ocular testimony establishes that prior to the incident of murder of Aashey S/o Hariya the evidence has come to this extent that Hariya while coming back to home alongwith his bullocks was intercepted by the accused Member and he wanted to take the bullocks to the cattle pond which was objected by Hariya, father of deceased, and this incident took place near the sugarcane field of Hariya. In this incident, the accused Member gave a lathi blow on the body of Hariya and on his cry the accused went back to his home. Thereafter again after an interval of some time when Hariya along with his bullocks was returning to his home met with his son Aashey who was coming back from his sugarcane field to his home and when they reached in front of the 'Gher' of the accused, all the three brothers again intercepted the bullocks and started beating Aashey in order to take the bullocks to the cattle pond. As per defence version, this factum is proved that prior to this incident certain altercation took place between the father of the deceased and the accused Member. 23. Further, it is relevant to mention that injuries of Hariya of the first incident which is prior to the incident of murder was proved in this case. It transpires that the first attempt of the accused Member to get the bullocks from Hariya and to take them in the cattle pond was unsuccessful. It has also come in evidence that after this incident accused Member went to his home and thereafter all the three brothers (accused in this case) in order to get the revenge intercepted the way of Aashey who was coming alongwith his bullocks and all the three accused participated in the commission of crime and caused injuries on the body of the deceased with their lathis. It is an indicative of fact that they all must have made up their mind to give a lesson to Hariya and accordingly came together at the place of occurrence and intercepted and wanted the bullocks. On refusal to this, they got infuriated and beaten Aashey so badly, as a result he succumbed to his injuries. Thus the prosecution had set up a definite motive of the incident which is probable as well as it has been proved by P.W.2, P.W.3 and P.W.5. Therefore, the submission with regard to the motive raised by the learned counsel for the accused appellants that the motive is primarily with the accused Member and secondly it is a very weak type of motive for causing death of Aashey has no merit at all. 24. So far as the next argument with regard to the non-production of the independent witnesses and P.W.2, P.W3 and P.W.5 being the interested and related testimony is concerned, we would like to refer a legal proposition as laid down in Sukhdeep Singh @ Deep Singh vs. State of U.P. and Another, (2010) 2 SCC (Criminal) 997 wherein the Hon'ble Apex Court held that testimony of interested witnesses becomes more reliable as it would be difficult to accept that they would leave out the true assailants and involve some other persons. 25. 25. In State of U.P. vs. Krishna Master and Others, (2011) 1 SCC (Criminal) 381 Hon'ble Apex Court has held that while appreciating the evidence court should read the evidence as a whole, so read, if it appears to have a ring of truth then discrepancies, inconsistencies, infirmities or deficiencies of minor nature not touching the core of case cannot be a ground for rejecting the evidence. Further, it has been held that court should sift the evidence to separate falsehood from truth. It should not adopt a hyper technical approach. 26. Further, it is trite law that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. 27. Further it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the deceased, if it is otherwise found to be trustworthy and credible. The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, then it can be acted upon. 28. Now tested on the anvil of the touchstone on the principle as stated above, there is no doubt that P.W.2 Yadram is the real brother of the deceased whereas P.W.3 Hariya is the father of the deceased, but P.W.5 Salek Chand is connected with the family of Hariya but he is a very distantly related so except P.W.2 and P.W.3, P.W.5 cannot be said to be closely related. Therefore, testimony of P.W.5 cannot be said to be of interested witness. 29. It is pertinent to mention that other eye witnesses, namely, Sri Ram, Bidhu and Rati Ram had been discharged and had filed an affidavit against the prosecution. But Bidhu who is a prosecution witness has been produced by the defence. This fact itself is a question mark over the defence version whereas a perusal of the testimony of the father and brother as well as P.W.5 if read as a whole will inspire the confidence of the Court and found to be reliable, believable and trustworthy. But Bidhu who is a prosecution witness has been produced by the defence. This fact itself is a question mark over the defence version whereas a perusal of the testimony of the father and brother as well as P.W.5 if read as a whole will inspire the confidence of the Court and found to be reliable, believable and trustworthy. Nothing material has come out in the cross-examination of these witnesses which would entitle us to escape the testimony in toto. 30. On the basis of above analysis and the legal propositions we are of the view that there is no substance in the argument of the learned counsel for the defence with regard to the non-production of an independent witnesses. 31. Learned counsel for the appellants accused have tried to point out certain contradictions in the statement of the prosecution witnesses. Firstly, he pointed out that P.W.5 Salek Chand and P.W.2 Yadram in their statements stated that they saw the blood oozing out from the body of the deceased Aashey whereas this fact is not supported by the testimony of the medical witnesses P.W.4 Dr. L.A. Sharma. He has categorically stated that he did not find any open wound on the body of the deceased in post mortem examination. He further argued that there is a contradiction in the statement of P.W.2 Yadram and P.W.3 Hariya who are brother and father respectively of the deceased on the point that how the deceased was brought to his 'Gher' from the place of occurrence. 32. We have perused the record. Firstly a perusal of the ante mortem injuries will reveal that as many as eight contusions have been found at the time of post mortem. Doctor also found that the left parietal bone as well as 3rd, 4th and 5th left ribs have been fractured. The contradictions as pointed out by the learned counsel in the ocular testimony can be said to be an exaggeration which in our mind under the facts and circumstances as stated earlier does not go to the root of the prosecution version. Therefore, it is not of much importance. We should take judicial notice of the fact that the post mortem was conducted on the body of the deceased after a long gap. 33. Therefore, it is not of much importance. We should take judicial notice of the fact that the post mortem was conducted on the body of the deceased after a long gap. 33. With regard to other contradiction as pointed out by the learned counsel that how the victim Aashey was brought back to the 'Gher' from the place of occurrence, we are of the view that it is not of much significance rather it can be very safely said that at the time when the incident of murder was committed these witnesses were present when the dead body was taken to the house assuming that there is a variance in their testimony on this point. But this fact is not so important and significant which could shake the root of the prosecution version. Therefore, we are unable to accept this contention. As we have already stated that the evidence in support of the prosecution version is to be evaluated on its intrinsic quality and inherent probabilities. It is immaterial how the body of the victim was taken from the place of occurrence to his house. Therefore, on the basis of these contradictions no benefit could be given to accused, hence we are unable to accept the contention of the learned counsel for the appellants. 34. With regard to the last submission raised by the learned counsel for the accused appellants that involvement and complicity in the commission of the crime of surviving accused appellants is not established and they had been falsely implicated due to enmity because of being the real brothers of the accused Member and the theory of exercise of right to private defence has been taken by the accused Member who is now dead and his appeal has already been abated. 35. 35. We would like to mention that in this case there is no doubt that first incident took place between the accused Member and father of the deceased Aashey but thereafter it is a natural and probable fact that after this incident the accused Member when went to his home and in all probability this incident must have been reported to the other members of the family and when the deceased Aashey was coming along with his bullocks accompanied by his father Hariya reached in front of the 'Gher' of the accused, all the three accused intercepted the deceased and had given blow of the lathis causing grievous injuries on the body of the deceased. This fact is self explanatory because perusal of ante mortem injuries reveals that they are very serious and grievous and the seat of the injuries are on each and every part of the body which resulted into the fracture of the left parietal bone and also three ribs are found to be fractured and there are as many as eight contusions on the different parts of the body. It could not have been caused by a single accused Member as argued by the defence whereas comparative analysis of the injuries of the accused Member and on the body of the deceased would establish that it could be safely concluded that there is a joint participation of all the three named accused in the FIR which resulted into the death of the deceased. Moreso eye witnesses have categorically supported the FIR version. This incident took place in the month of May at 6.30 p.m. Identities of the accused cannot be disputed. Prior altercations which is the genesis of the incident of murder is established and proved. The accused are named in the FIR. Date, time, place of incident are established and proved by the eye-witnesses. The mode and manner of the marpeet is proved with the credible evidence of the ocular testimony. The contradictions which have been pointed out by the learned counsel for the appellant accused are insignificant as it does not touch the root of the prosecution version. Therefore, the argument raised by the accused appellants that their presence, involvement and complicity in the commission of crime is not established and the co-accused have been implicated due to being real brothers of accused Member, has got no merit. Therefore, the argument raised by the accused appellants that their presence, involvement and complicity in the commission of crime is not established and the co-accused have been implicated due to being real brothers of accused Member, has got no merit. Further, it is irrelevant that the defence version taken by the accused Member which was disbelieved by the learned court has no relevance due to the death of the accused Member as his appeal has already been abated. Further if we go through the statement under Section 313 Cr.P.C. of the accused Member regarding the theory of exercise his right of private defence, in question no. 9 specifically stated that esjs }kjk igqapkbZ pksVks ls og ugha ejk meaning thereby, if this statement is taken to be correct, he himself admits that his blow on the body of deceased had not resulted into his death. Meaning thereby some other accused are physically involved in causing the injuries on the body of the deceased. The presence of two other co-accused who are the real brothers of the accused and who went to the spot after knowing the prior incident which took place with the father of the deceased, establishes their presence and involvement in the commission of crime. It is pertinent to mention here that recording of statement under Section 313 Cr.P.C. as per the legal proposition is to serve the dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him. It is also established legal propostion that if the accused gives incorrect or false answer during the course to his statement under Section 313 Cr.P.C. the court can draw an adverse inference against him as held in Munna Kumar Upadhyay vs. State of Andhra Pradesh, 2012 (22) Cr.L.J. 3068. Further, it is also relevant to mention that every case has to be appreciated on its own fact and in the light of the evidence led by the parties. The Court has to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that accused is entitled to the benefit of doubt and the court has to examine the evidence in its entirety. The Court has to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that accused is entitled to the benefit of doubt and the court has to examine the evidence in its entirety. It should always be remembered that a reasonable doubt is not an imaginary, trivial or a merely possible doubt but a fair doubt based upon reasons and common-sense and it must grow out of the evidence in the case. Therefore, when the prosecution has come with a definite case, prosecution produces the ocular testimony that is eye version of the evidence which is corroborated by the medical evidence and the defence has come with a definite case as a right of private defence and that defence is found to be improbable not proved on the principle of preponderance of probabilities and the other two accused give only a bald denial and of a false implication. Under the above stated facts and circumstances, the submission raised by the learned counsel for the accused for the surviving accused appellants has no merit and deserve to be dismissed. 36. Accordingly, the order impugned dated 19.1.1983 in this appeal convicting and sentencing the accused appellants under Section 302 read with Section 34 I.P.C. to life imprisonment is confirmed and the appeal having no force is hereby dismissed. 37. Let a certified copy of the judgment be transmitted to the court concerned for compliance.