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2017 DIGILAW 1069 (ALL)

MUNNI LAL v. STATE OF U. P.

2017-04-20

KRISHNA MURARI, RAVINDRA NATH KAKKAR

body2017
JUDGMENT : (Delivered by Hon'ble Ravindra Nath Kakkar, J.) 1. We have heard Sri A. K. Tiwari, learned counsel for the appellants and Sri Amit Sinha, learned A.G.A. for the State. 2. The present criminal appeal has been filed against the judgment and order dated 15.07.1983 passed by 2nd Additional Sessions Judge, Allahabad in Sessions Trial No. 487 of 1980 convicting the appellant Munni Lal, Kera Lal, Mewa Lal and Lala to one year rigorous imprisonment under Section 457 I.P.C. Further, accused-appellant Munni Lal has been convicted under Section 302 I.P.C and sentenced to life imprisonment. Accused-appellants Kera Lal, Mewa Lal and Lala were convicted under Section 302/34 I.P.C. and have been sentenced to life imprisonment. 3. During the pendency of the appeal accused-appellant nos. 2 , 3 and 4 namely Mewa Lal S/o Ram Deo, Kera Lal S/o Bhagwati and Lala S/o Sukkhu died and the appeal filed by them has been abated vide order dated 17.08.2016 and 08.09.2016. 4. In brief the prosecution case is as follows:- Informant Nokhey Lal (PW2) lodged a written report (Ex. Ka-2) at PS- Soraon, District-Allahabad on 14.01.1980 at 05:00 AM wherein motive of the incident is alleged that about one and half months back the daughter of accused-appellant Kera Lal became insane. The family members of the accused-appellant Kera Lal said that complainant had called ghost on account of which she had become insane. On this issue there was a dispute between the ladies of accused-appellant Kera Lal and complainant Nokhey Lal. It is also alleged that accused-appellant Kera Lal gave a threat to the effect that the life of the son of Nokhey Lal would be made miserable. Further allegations in the said report is that, before it, there was a dispute between accused-appellant Munni Lal son of Mewa Lal with respect to the field of melon. On account of this dispute accused-appellant Munni Lal had given a threat to the complainant. The incident as alleged in the F.I.R. is that in the night of 13.01.1980 at about 11:00 PM, the door of Nokhey Lal was knocked by the accused persons. On account of this dispute accused-appellant Munni Lal had given a threat to the complainant. The incident as alleged in the F.I.R. is that in the night of 13.01.1980 at about 11:00 PM, the door of Nokhey Lal was knocked by the accused persons. When Nokhey Lal opened the door he saw that accused Munni Lal, Mewa Lal, Kare Lal and Lala were standing there and as soon as the door was opened, the accused persons wanted to enter the house and in spite of the resistance being made by the complainant, they entered the house. At that point of time accused-appellants Munni Lal and Lala had tamanchas while rest of the two accused-appellants had lathies with them. Nokhey Lal come out of the house and started shouting. Gaya Din, Pyare Lal, Jagroop and Kare Din reached on the spot. In the mean time accused Munni Lal opened a fire shot towards Surya Bali which hit him and he fell down on the ground. Thereupon the accused persons fled away from the spot towards south direction. It is also alleged in the F.I.R. that thereafter when complainant alongwith his injured son were coming to police station, on the way injured Surya Bali succumbed to his injury. The enmity was stated to be the motive of the incident. 5. On the basis of the written report (Ex. Ka-2) Head Moharrir Tej Narain Singh (PW-8) prepared the Chik Report (Ex. Ka-5) and made its entry in the G.D. at report no. 8, copy of which is Ex. Ka-6. He sent the special report on the same day which is report no. 14 at 07:15 A.M. The copy of which is Ex. Ka-7. 6. The investigation of the case was conducted by Narendra Pal Singh, S.O. (PW9) who recorded the statements of the prosecution witnesses and the dead body was brought to the police station. The panchayatnama (Ex. Ka-4) was prepared. Photo-lash (Ex. Ka-9), challan lash (Ex. Ka-11), letter to C.M.O. ( Ex. Ka-12), Specimen of the seals (Ex. Ka-13) were also got prepared on the spot. Thereafter Investigating Officer visited to Village-Nasratpur where statements of the other prosecution witnesses have been recorded. He also prepared site plan (Ex. Ka-14). Blood stain and sample earth (Ex. 1 & 2) were taken from the spot and its Fard Ex. Ka-1 was prepared. Ka-12), Specimen of the seals (Ex. Ka-13) were also got prepared on the spot. Thereafter Investigating Officer visited to Village-Nasratpur where statements of the other prosecution witnesses have been recorded. He also prepared site plan (Ex. Ka-14). Blood stain and sample earth (Ex. 1 & 2) were taken from the spot and its Fard Ex. Ka-1 was prepared. IO got the torches of the witnesses from his possession and its fard was prepared. 7. After completion of the investigation charge sheet has been submitted by the Investigating Officer. 8. The prosecution has examined Pyare Lal (PW1), Nokhey Lal (PW2), Kare Din (PW3), Dr. Sharad Kumar (PW4), Sahdeo Singh (PW5), Shyam Lal (PW6), Paras Nath (PW7), Head Moharrir Tej Narain Singh (PW8), Narendra Pal Singh IO (PW9) and Constable Ganesh Dutt Misra (PW10). 9. Perusal of the record shows that post mortem examination of the corpus of the deceased Surya Bali was conducted by Dr. Sharad Kumar (PW4) on 15.1.1980 at 03:00 PM. As per post mortem report, the deceased was about 18 years of age. The rigor mortis had passed from the upper limb but was present in the lower limb. The following ante mortem injury was found on the dead body of the deceased-: "A gun shot wound of entry 3" X 2 ¼" on the right thigh, 2" from the base of penis. Blackening and Charring was present." 10. On internal examination it was found that stomach was half full with semi digested food. Two pieces of waddings and 20 small pellets were extracted from the above said injury. Doctor opined that the injury was sufficient in the ordinary course to cause the death of the deceased. The death was caused on account of shock and haemorrhage due to the above said injury. Dr. Sharad Kumar had proved the post mortem report Ex. Ka-3. 11. After close of prosecution evidence statements of the accused persons under Section 313 Cr.P.C. were recorded by the Trial Court. The accused persons in their statements stated that they have been falsely implicated on account of enmity. Accused-appellant Munni Lal has stated in his statement that on the date of occurrence dacoity took place in his house and the house of Nokhey Lal in which Surya Bali was killed. The witnesses of this case belongs to the same party and accused persons have been falsely implicated in collusion with the police. Accused-appellant Munni Lal has stated in his statement that on the date of occurrence dacoity took place in his house and the house of Nokhey Lal in which Surya Bali was killed. The witnesses of this case belongs to the same party and accused persons have been falsely implicated in collusion with the police. Accused Lala has also stated that Mst. Rajwanti was of his family whose field was purchased by witness Pyare Lal. Some land of Nokhey Lal was also allotted to him during consolidation proceedings and further stated that the dacoity took place in his house and thereafter in the house of Nokhey Lal in the night of 13/14.01.1980. Further stated that all the accused persons have been falsely implicated in this case. 12. Learned counsel for the appellant-accused at the outset stated that at present appellant-accused Munni Lal is the only sole surviving appellant whose appeal is to be considered. Appeal filed by the three co-accused persons have already been abated due to their death. Learned counsel for the appellant-accused has challenged the impugned judgment of conviction and order of sentence on the following grounds:- (I) F.I.R. has been challenged on the ground that it is anti timed and the original F.I.R. which is of dacoity has been suppressed by the prosecution. (II) The motive of the alleged incident is neither proved nor it can said to be a strong motive to commit the heinous crime of murder. Further, the immediate motive and genesis of the commission of the crime had not been put before the accused persons while recording statement under Section 313 Cr.P.C. (III) The prosecution produced three eye witnesses who were highly interested and partisan witnesses and no independent witness was produced in this case. (IV) Medical evidence does not support the eye version account. Further, anti mortem injury shown in the post mortem report is only one gunshot injury and the seat of the gunshot injury is on the right thigh which is not vital part of the body. (V) There is deficiency and material omissions in investigation as alleged source of light was neither shown in the site plan nor its fard was prepared. (V) There is deficiency and material omissions in investigation as alleged source of light was neither shown in the site plan nor its fard was prepared. (VI) The testimony of the eye witnesses has been challenged on the ground that in spite of being their presence near the place of occurrence, they did not try to intervene to persuade and pacify the altercation going on in between the accused persons and the complainant. (VII) Further, only interested witnesses went to the police station but scriber of the report did not accompany with the complainant to the police station. (VIII) Lastly argued that accused persons are just door neighbour of the victim's house so it is quite unnatural that accused persons would escape from the spot which goes to confirm that previous F.I.R. of dacoity was suppressed by the prosecution particularly when there is a consistent defence that accused persons have falsely been implicated in this case on account of enmity as on the relevant date there took place a dacoity in the houses of Munni Lal and Nokhey Lal in which son of the complainant Surya Bali was killed. 13. On the basis of above contentions learned counsel for the appellant-accused argued that case against the surviving appellant is not proved beyond reasonable doubt, therefore, appeal deserves to be allowed. 14. Per contra learned A.G.A. has supported the impugned judgment of the conviction and order of sentence by submitting that the impugned judgment of the trial court is well reasoned discussed and the charges levelled against the accused found to be proved without reasonable doubts. Neither there is any contradiction nor discrepancy in the eye version account and further it is corroborated with medical evidence produced by the prosecution. The guilt of the accused-appellant is established with the cogent and credible evidence. It was further stated that the discrepancies, contradictions and the omissions on the part of the Investigating Officer are of trivial nature which does not go to shatter the prosecution version. They are of a minor nature which deserves to be discarded and it was lastly argued that if there is any error, omission or shortfalls in the investigation even then the defective investigation cannot said to be fatal to the prosecution as no prejudice has been shown by the learned counsel for the appellant-accused. They are of a minor nature which deserves to be discarded and it was lastly argued that if there is any error, omission or shortfalls in the investigation even then the defective investigation cannot said to be fatal to the prosecution as no prejudice has been shown by the learned counsel for the appellant-accused. Therefore, under these facts and circumstances, appeal deserves to be dismissed and the impugned judgment of conviction and order of sentence is liable to be confirmed. 15. On the basis of aforesaid submissions raised by both the parties we have perused the evidence available on the lower court record. 16. So far as challenge to the F.I.R. is concerned, on perusal of record, we find that the date of the incident is alleged to be 13.01.1980 at 11:00 PM at night and the report was lodged on 14.01.1980 early morning at 5:00 A.M. and the distance from the place of occurrence to the police station is said to be 6 miles and special report sent to the concerned authorities on 15.01.1980. Learned counsel for the appellant argued that First Information Report is anti timed as it was not in existence when panchayatnama was prepared by the Investigating Officer. 17. Perusal of the record shows that H.C. Tej Narain Singh (PW8) has proved the chik report Ex. KA-5 which was prepared by him on the basis of written report. Further, the special report of the incident was dispatched by the report no. 14 at 7:15 A.M. This fact was entered in the G. D. and the copy of the same Ex. KA7 is available on record. After handing over the special report when constable returned back to the police station the entry of the same was made in the G.D. as report no. 37 at 8:15 PM. Copy of the same is Ex. KA-8. Therefore, as per record the lodging of F.I.R. and sending of the special report cannot said to be delayed one. The Inquest Report Ex. KA4 reveals that it was started at 6.30 P.M. and finished at 7:30 PM. PW9 Narendra Pal Singh Investigating Officer has stated in his oral statement that when he started investigation the Head Moharrir had given him the copy of the chik report and at the time of inquest the copy of the chik report was with him. KA4 reveals that it was started at 6.30 P.M. and finished at 7:30 PM. PW9 Narendra Pal Singh Investigating Officer has stated in his oral statement that when he started investigation the Head Moharrir had given him the copy of the chik report and at the time of inquest the copy of the chik report was with him. So we are not inclined to accept the contention that the F.I.R. is anti time. 18. With regard to the further contention that there were two F.I.R.s and the F.I.R. which was previously written has not been produced by the prosecution which pertains to the dacoity, we have gone through the direct evidence produced in this case. We find that PW1 Pyare Lal had made the statement that before removing the deceased Surya Bali from the place of occurrence, Kare Din (PW3) wrote a report about the incident and gave it to the Nokhey Lal (PW2). On this point Nokhey Lal (PW2) has stated that he did not get any written report from Kare Din (PW3) before going to the police station. Importantly PW3 Kare Din who has testified himself before the trial court has nowhere in his statement stated that he wrote a report of the incident and gave it to Nokhey Lal (PW2). Under these facts and circumstances it cannot safely be concluded that there were two F.I.Rs. and further it cannot be concluded that Kare Din had written any report other than the written report Ex. KA1. So we find that there is no substance in the said arguments. Therefore, the challenge of two F.I.Rs. and F.I.R. is anti timed or previous report of dacoity was suppressed, has no merit at all. 19. Next point as contended by learned counsel for the appellant is with regard to motive. 20. Perusal of the First Information Report shows that the incident is said to be due to enmity. So we are not in a position to accept the contention as raised by the learned counsel for the accused-appellant that motive of the incident has not been established by the prosecution or it is of a weak type of motive, the arguments raised as above has no relevance. 21. On the point of motive we would like to cite the law laid down by the apex court in Dhamidhar Vs. State of U. P. (2010) 6 SCJ, 662. 21. On the point of motive we would like to cite the law laid down by the apex court in Dhamidhar Vs. State of U. P. (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 and definite motive is a sine qua non to hold an accused guilty of a criminal offence. 22. Further in State of U.P. Vs. Krishna Master and Others (2010) 6 ACJ 232, the Hon'ble Apex Court has held that- it is well settled that the prosecution is not supposed to prove the motive when the prosecution relies on direct evidence i.e. evidence of eye witness. Further in (2012) 10 SCC 464 Munish Bhaver Vs. State of Haryana, the Hon'ble Apex Court held that if evidence indicate proper and necessary motive then presumption against accused is established. Further in (2013) 81 A.C.C. 302- Sanaullah Khan Vs. State of Bihar, Hon'ble Apex Court held that proof of motive cannot be basis to disbelieve the prosecution case. 23. On the basis of above said legal prepositions on motive, since prosecution case is based on direct ocular testimony and the ocular testimony found to be trustworthy and unimpeachable, the arguments of the defence on motive found to be not tenable. 24. So far as challenge to the testimonies of the eye witnesses as contended by the learned counsel that they are highly interested and partisaned and no independent witness was produced by the prosecution is concerned, we have gone through the record and found that in this case PW1 Pyare Lal, PW2 Nokhey Lal and PW3 Kare Din were examined by the prosecution. Their inter se statements reveals that there is no direct relationship between PW2 Nokhey Lal and Pyare Lal (PW1) and further the relationship between Kare Din (PW3) with Nokhey Lal (PW2) is of a distant relationship. More so, enmity of the accused-appellants with these witnesses has not been proved by the accused persons in this case. It is admitted position that the son of Nokhey Lal has been murdered in this case and the presence of Nokhey Lal on the spot cannot be doubted. More so, enmity of the accused-appellants with these witnesses has not been proved by the accused persons in this case. It is admitted position that the son of Nokhey Lal has been murdered in this case and the presence of Nokhey Lal on the spot cannot be doubted. Therefore, it is a natural and of a common prudence that father of the deceased would never leave the real assailant and falsely implicate the accused persons, this fact cannot be digested at all. So far as production of independent witnesses is concerned, the microscopic analysis of the evidence of the witnesses would render that PW1 Pyare Lal cannot by any stretch of imagination be characterised as an interested and partisaned witness, so his testimony to be taken as that of an independent witness. Further, it is not the absolute requirement of the law that in all cases the testimony of independent witness essentially required if some of the named witnesses in the F.I.R. has not been produced. So it cannot be said to be fatal to the prosecution as it is a quality of the evidence and not the quantity of the evidence, which is required in the trial. Further we would like to refer that the only rider for the appraisment of the interested and partisaned witness is that their testimony is to be cautiously scrutinized. On the basis of above discussion, we find no force with the contention of the learned counsel for the appellant-accused. 25. Next point of contention as raised by learned counsel for the appellant-accused that the medical evidence does not corroborate the eye version account. We have perused inter see evidence of the ocular version with medical evidence. We find that the prosecution has led three eye witnesses in this case in which Nokhey Lal (PW2) is the father of the deceased Surya Bali, who has stated that the incident took place at 11:00 PM in the night and at that point of time he was sleeping along with Surya Bali in the Baithka of his house and a lantern was lightening in that room. It was further stated that some one knocked at the door, he got up and opened the door and saw that four accused-appellants Munni Lal, Mewa Lal, Kare Lal and Lala were standing in front of him in which accused-appellants Munni Lal and Lala were armed with country made pistol and other two accused-appellants armed with lathies in their hands. All the accused persons had tried to drag him out of the room. At that point of time he raised an alarm on which Kare Din (PW3), Jagroop, Pyare Lal (PW1) and Gya Din came there and the accused-appellant Munni Lal made a gunshot fire towards Surya Bali. Surya Bali on receiving the gunshot injury fell down in the room. Thereafter, the accused persons fled away from the spot. All the accused persons had been chased to some extent by the witnesses but they fired a shot and ran away. Likewise Pyare Lal (PW1) who stated that on alarm being made by Nokhey Lal (PW2), he reached towards the spot with a lathi and a torch in his hand. He saw that the other witnesses Gya Din with lathi and torch, Kare Din (PW3) armed with a lathi and Jagroop armed with a lathi also came there. All the witnesses stood in front of the Mandir which is near the house of Nokhey Lal (PW2) at a distance of 6 to 7 paces away on the northern side from the door of the complainant Nokhey Lal. They all have seen that accused persons dragged Nokhey Lal out of the room and thereafter accused-appellant Munni Lal fired a gunshot by country made pistol towards Surya Bali on which Surya Bali fell down in the room. It was further deposed that a lantern was also lightening in the Baithaka of Nokhey Lal and all the accused were recognized by these witnesses in the torch light. The testimony of PW1 Pyare Lal and PW2 Nokhey Lal have also been corroborated by PW3 Kare Din. It is important to note that all the witnesses were cross-examined at length but nothing material which can said to be the adverse to the prosecution version comes out from their testimonies. Their testimony found to be credible, cogent and trustworthy in all the essential particulars of the prosecution case and we find no good reason to disbelieve the evidence adduced by them. Their testimony found to be credible, cogent and trustworthy in all the essential particulars of the prosecution case and we find no good reason to disbelieve the evidence adduced by them. Though in the testimonies there are minor discrepancies which are of a trivial nature and that could be due to examination after a passage of time to the incident and more so they are not of a grave nature which could go to effect the root of the prosecution case. 26. PW4 Dr. Sharad Kumar who has conducted the post mortem examined himself in this case who proved one gunshot entry wound on the body of the deceased and opined that injury was from a close range fire and sufficient to cause the death of the deceased and the death of the deceased could have been of 13.01.1980 at 11:00 PM night . So we find that medical evidence tendered by the prosecution also corroborates the eye version account. 27. So far as the contention with regard to the presence of the eye witnesses is concerned, the learned counsel for the appellant-accused vehemently argued that place where witnesses were alleged to have been standing from that place the incident could not be witnessed. The appraisement of the eye witness account reveals that all the witnesses on hearing the alarm of Nokhey Lal reached and stood infront of the Mandir which is outside of the house of Nokhey Lal and there is a consistency in their testimonies that this Mandir is situated at 6 to 7 paces towards north-east side of the house of Nokhey Lal. It is further corroborated from the site plan Ex. Ka-14 which was prepared by the Investigating Officer wherein Mandir has been shown to the north-eastern side from Baithaka of Nokhey lal and the incident is alleged to have taken place in this Baithaka. 28. Under the above fact situations, we are unable to accept the contention as raised by the learned counsel for the appellant-accused that accused persons could not have been seen by the witnesses. 29. So far as the conduct of the witnesses have been challenged by submitting that their presence on the place of occurrence becomes doubtful as they did not intervene to persuade the altercation which was going on between the accused persons and the complainant and they did not come forward to save the life of deceased Surya Bali. 29. So far as the conduct of the witnesses have been challenged by submitting that their presence on the place of occurrence becomes doubtful as they did not intervene to persuade the altercation which was going on between the accused persons and the complainant and they did not come forward to save the life of deceased Surya Bali. We are unable to accept the aforesaid contention as it is cogently established that the witnesses who assembled near the place of occurrence on alarm being raised by Nokhey Lal, had come only with lathi and torches. None of the witness had any fire arm weapon whereas among the four accused persons, two were found to be armed with countrymade pistol, so it is but natural that none of the witnesses could have dared to make intervention between accused persons and Nokhey Lal. 30. It is of a common observation that if the accused persons who had come with a preplanned and premeditated intention alongwith a deadly arm to commit the heinous crime like of murder, the witnesses who were only having lathi, could not by any stretch of imagination be presumed to intervene as their life could have been in a stage of peril. Therefore, we hold that the above arguments as raised by the learned counsel for the appellant-accused has no substance. 31. The next point of contention is with regard to the defective investigation as pointed out by the learned counsel for the accused-appellant. He firstly argued that Investigating Officer has not shown the source of light. Further, he contented that Investigating Officer did not prepare any fard and superdaginama of the torches of the witnesses. Further, the IO has neither taken the lantern, which was said to be hanging in kothari at the place of occurrence nor he prepared any fard of it. It was further contended that IO did not collect the blood stain where the incident took place. Fard of the same had also not been prepared by the I.O. All these material omissions and defects goes to show that Investigating Officer had not fairly and diligently discharged his duties. 32. It was further contended that IO did not collect the blood stain where the incident took place. Fard of the same had also not been prepared by the I.O. All these material omissions and defects goes to show that Investigating Officer had not fairly and diligently discharged his duties. 32. On the point as raised above by learned counsel for the appellant-accused with regard to the deficiency and defective investigation, we are of the considered view that if the Investigating Officer has not fairly investigated the matter and he omitted certain facts in case diary and also not prepared fard, then it cannot be the ground to hold that the incident did not take place in the mode and manner as alleged by the prosecution. The points as raised above by learned counsel for the appellant-accused comes into the category of irregularity in conducting the investigation but the eye witnesses during their testimony recorded before the trial court were consistent with respect to the date of incident, time, place of occurrence, source of light, presence of witnesses, occasion to witness the commission of the crime. Importantly on the point that Surya Bali sustained a gunshot injury from the fire arm of accused-appellant Munni Lal and after receiving gunshot injury Surya Bali fell down on the cot and also that there was bleeding on the cot and a lantern was lighted in the room. Under the above facts and situations as stated in the eye version account if there is any omission or irregularity in conducting the investigation that cannot be said to be of any help to the accused persons. 33. The aforesaid fact is also supported by the law laid down by Hon'ble Apex Court in Akeel Ahmad Vs. State of U.P. (2008) 16 S.C. C. (Crl.) 372 wherein it has been held as under:- "If there had been some lapses on the part of the I.O. that would not affect the credibility of prosecution witnesses." 34. Further in State of Karnatka Vs. K. Yarappa Reddy (1999) 8 S.C.C. 715 , the Hon'ble Apex Court held that even if the investigation is illegal or suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officer ruling the roost. Further in State of Karnatka Vs. K. Yarappa Reddy (1999) 8 S.C.C. 715 , the Hon'ble Apex Court held that even if the investigation is illegal or suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officer ruling the roost. The criminal justice should not be made a casualty for the wrongs committed by I.O. in the investigation. In other words if the court is convinced that the testimony of witnesses to the occurrence is true the court is free to act on it albeit the I.O's suspicious role in the case. 35. Keeping the above said legal propositions into consideration, we are of the view that omission, irregularity or defect in investigation cannot be of any help in this case to the defence. 36. So far as delay in sending the dead body to the post mortem house is concerned the constable who took the dead body from the Police Station-Soraon to the mortuary was produced in this case and it transpires from his evidence that he took the dead body of the deceased from the police station on 14.01.1980 at 7:30 AM. It also transpires from his evidence that it took about 8 to 9 hours to reach Allahabad by means of Ekka and the distance from the police station to Allahabad is about 22 to 24 K.M. and this fact that constable has received the dead body on 14.1.1980 at 7:30 AM is further supported by the evidence of Investigating Officer PW9 Narendra Pal Singh. So we find no material prejudice in sending the dead body from police station to mortuary. 37. So we find no material prejudice in sending the dead body from police station to mortuary. 37. Now, in last, so far as defence version is concerned that dacoity in the houses of the accused persons and the complainant Nokhey Lal was committed in the night of 13/14.01.1980 in which Surya Bali was killed in the incident of dacoity, we are unable to accept the defence version because of the reason that if there had been a dacoity in the house of accused persons and the complainant why the accused persons had not lodged the First Information Report of dacoity to the police station, is a question mark and further if they ever had made any attempt to lodge the F.I.R. and it was not registered and investigated why its complaint was not made to the higher authorities and further we find that why and under what circumstances, PW2 complainant of the case had any occasion to convert the case of dacoity into the murder. These circumstances itself goes to establish that defence version is neither probable nor established by any cogent evidence. 38. No other point has been pressed before us. 39. In view of the above discussions, the appeal lacks merit and is accordingly dismissed. The impugned judgment/order dated 15.07.1983 of the trial court is hereby confirmed. 40. Let a certified copy of the judgment/order along with lower court record be sent to the court concerned for necessary compliance.