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2017 DIGILAW 1296 (ALL)

MALKHAN v. STATE OF U. P.

2017-05-15

RAJUL BHARGAVA, TARUN AGARWALA

body2017
JUDGMENT : Rajul Bhargava, J. 1. Heard Sri Jitendra Singh, learned counsel for the appellants and Sri Syed Ali Murtaza, learned Additional Government Advocate for the State. 2. Instant appeal has been preferred by appellants, namely, Malkhan, Narain and Ram Kripal against impugned judgement and order dated 19.04.2005 passed by Special Judge (S.C./S.T. Act Hamirpur in Sessions Trial No.172 of 2003 (State Versus Malkhan and others) under Sections 302/34 I.P.C., Police Station Muskara, District Hamirpur, whereby they were convicted and sentenced to undergo life imprisonment along with fine of Rs.10,000/- each and in default of payment of fine, they were to undergo six months' simple imprisonment. 3. In brief, the prosecution version as narrated in the First Information Report lodged by PW 1,Prabhakar Mishra on 20.5.2003 at 6.25 p.m. regarding an alleged incident which is said to have taken place on the same day at 4.30 p.m. is that the informant is the resident of Village Gundela. His brother Sudhakar Mishra had purchased land measuring 9 decimal from one Jageshwar Prasad Dwivedi. The said land was being claimed by accused Ram Kripal and others on the ground that the same belonged to Gram Samaj and it was allotted to them. On 20.5.2003 at about 4.30 p.m., first informant, his brother, Sudhakar Mishra and father, Nathu Ram Mishra were raising boundary wall on the said land. His brother, Gyan Diwakar felt thirsty. In order to quench his thirst, he went to hand pump for drinking water which is located in front of house of Ram Kripal. As soon as, Gyan Diwakar turned back after drinking water, the accused-appellants, Malkhan, Narain and Ram Kripal all sons of Ramola Chamar, resident of informant's village, armed with axes surrounded Gyan Diwakar and launched assault on him. On hearing hue and cry of his brother, first informant, his father and brother challenged the accused, thereafter they fled away from the place of incident. His brother fell on the ground and succumbed to the injuries sustained by him. The informant leaving dead body of his brother on the spot after scribing F.I.R. went to lodge the report. The F.I.R., proved as Ext. Ka-2, was registered vide Case Crime No.60 of 2003 under Section 302 I.P.C., Police Station Muskara, District Hamirpur by PW 3 Head Moharrir,Shyam Swaroop. 4. The information of registration of F.I.R. noted in General Diary No.24 at 6.25 p.m. as Ext. The F.I.R., proved as Ext. Ka-2, was registered vide Case Crime No.60 of 2003 under Section 302 I.P.C., Police Station Muskara, District Hamirpur by PW 3 Head Moharrir,Shyam Swaroop. 4. The information of registration of F.I.R. noted in General Diary No.24 at 6.25 p.m. as Ext. Ka-3 was given to PW 4, Gyan Singh, Sub Inspector, Investigating Officer of the present case who at that time was present in meeting at District Headquarter, Hamirpur. Upon receiving an information about the incident, PW 4 immediately proceeded to the place of the incident where Head Constable of Police, Subedar Singh along with copy of chick report, General Diary of registration of F.I.R. and Jild Panchayatnama was present. The Investigating Officer commenced with investigation and as there was insufficiency of light, inquest could not be conducted on the same day and the same was conducted on 21.5.2003 at 7.00 a.m., proved as Ext. Ka-4 and after sealing the dead body dispatched it for post mortem examination to Community Health Centre, Rath, District Meerut along with relevant documents i.e. police form-13, photo lash, challan lash, the seal impression, letter to Chief Medical Officer, letter to Reserve Inspector of Police. All the aforesaid documents have been proved by PW 4, the Investigating Officer. On 21.5.2003, the Investigating Officer collected the plain and blood-stained earth and prepared its recovery memo proved as Ext. Ka-5. He recorded statements of first informant and other witnesses and prepared site-plan of the place of incident at the instance of first informant. During the course of investigation PW 3 arrested accused, Malkhan and Ram Kripal on 22.5.2003 and recovered two blood-stained axes on their pointing out from the bushes in jungle. Its recovery memo Ext. Ka-8 was prepared in the presence of the witnesses. Accused, Narain was arrested by him on 26.5.2003 and on his pointing out also an axe which is said to have been thrown by him in mud after committing murder was recovered. All the three recovered axes were sealed by the Investigating Officer and were sent for examination to Forensic Science Laboratory. It may be noted that said axes along with plain and blood-stained earth and other articles recovered by the Investigating Officer as received by the Laboratory on 31.5.2003. In this behalf a report of Laboratory dated 24.7.2003 is on record and has been tendered in evidence. It may be noted that said axes along with plain and blood-stained earth and other articles recovered by the Investigating Officer as received by the Laboratory on 31.5.2003. In this behalf a report of Laboratory dated 24.7.2003 is on record and has been tendered in evidence. The said report has not been disputed by the defence and the same is admissible under Section 294 Cr.P.C. In the said report, on axe shown at nos.9 recovered from accused, Malkhan and 10 from Ram Kripal human blood was found whereas in the axe recovered from accused, Narain blood stains were disintegrated, on account of which its origin could not be determined. 5. The Investigating Officer after conducting thorough investigation laid charge sheet against present accused-appellants. 6. The post mortem examination on the cadaver of deceased, Gyan Diwakar was conducted on 21.5.2003 by PW 5, Dr. Rajendra Prasad Pandey who has noted following ante mortem injuries on his person in the post mortem report (Ext. Ka-16):- 1. An incised wound present on the right side of chest, measuring 6 cm x 3 cm x cavity deep, telling present. It is 9 cm above nipple. Underlying clavicle bone is fractured. 2. An incised wound present on the scalp, measuring 12 cm x 4 cm x bone deep, 6 cm above the right eye-brow, telling present. 3. A I/W present on the right side of bone neck, measuring 4 cm x 6 cm. Underlying bone and vessels are incised. 4. A contusion present on the left arm, measuring 5 cm x 2 cm, 6 cm below shoulder. 7. The doctor opined that cause of death was due to shock and hemorrhage as a result of ante mortem injuries. He noted that the stomach was empty. 8. After committal of the case, all the appellants were put up for trial and charges were framed against them under Sections 302/34 I.P.C. on which there was complete denial and accused claimed trial. 9. In the trial, the prosecution, in order to establish its case examined five witnesses in all. Out of whom, PW 1, Prabhakar Mishra and PW 2, Nathu Ram Mishra are the eye-witnesses of the incident. PW 3, Head Moharrir, Shyam Swaroop has proved the registration of First Information Report on 20.5.2003 at 6.25 p.m. PW 4, Sub Inspector, Gyan Singh is the Investigating Officer of present case. PW 5 is Dr. Out of whom, PW 1, Prabhakar Mishra and PW 2, Nathu Ram Mishra are the eye-witnesses of the incident. PW 3, Head Moharrir, Shyam Swaroop has proved the registration of First Information Report on 20.5.2003 at 6.25 p.m. PW 4, Sub Inspector, Gyan Singh is the Investigating Officer of present case. PW 5 is Dr. R.P.Pandey who has conducted post mortem examination on the dead body of the deceased, Gyan Diwakar. 10. After closure of prosecution evidence, statements of the appellants were recorded under Section 313 Cr.P.C. in which they have categorically denied the prosecution case. Appellant, Narain has stated that at the time and date of incident, he was working in the house of ex-Pradhan, namely, Kallu. Accused, Ram Kripal and Malkhan also have denied all the incriminating evidence. Both of them have stated that they were working as labourers and were loading earth in connection with Government work till 6 p.m. on the date of the incident. Next day also, they were working at that place from where police had arrested them. 11. The accused-appellants in their defence examined DW 1, Om Prakash alias Atma Prakash and DW 2, Kallu Singh. 12. Learned trial judge after hearing counsel for both the parties and discussing the evidence of both sides on record, recorded finding of guilt of murdering the deceased, Gyan Diwakar by the accused-appellants and convicted and sentenced them by the judgement and order impugned in this appeal. 13. We have heard learned counsel for the appellants as well as learned Additional Government Advocate appearing for the State at a great length and have carefully perused the record. Briefly summarized arguments as advanced by learned counsel for the appellants assailing reliability, credibility and truthfulness of the prosecution are mainly on the following grounds that: (1) Prosecution has failed to prove motive for the appellants to commit the crime inasmuch as prosecution has not brought forth any document on record with regard to the execution of any document to show that the informant had any right or title over the disputed land. It is further submitted that the disputed land over which the boundary wall was being raised by the first informant and others was of Gram Samaj and, therefore, there was no occasion for them to construct any boundary. It is further submitted that the disputed land over which the boundary wall was being raised by the first informant and others was of Gram Samaj and, therefore, there was no occasion for them to construct any boundary. Therefore, the genesis of the prosecution case is false and no reliance can be placed on the testimony of witnesses. (2) The place of incident is surrounded by a dense abadi, yet no independent witness of neighbourhood has been examined by the prosecution in order to prove its case. Both the witnesses PW 1 and PW 2 are highly partisan, interested and related witnesses upon whom no reliance can be placed. (3) The presence of the witnesses on the place of the incident is highly doubtful inasmuch as alleged incident is said to have taken place before their eyes yet, no attempt was made by them to save the deceased. (4) The F.I.R. of the present case has been made ante timed and it came into existence after deliberation and consultation which is evident from the fact that first informant who is an educated man did not scribe the F.I.R. in the village itself but as stated by him, he scribed the F.I.R. after taking paper from Public Call Office (PCO). It is argued that it indicates that F.I.R. was lodged much later in consultation with the police, on account of which the inquest was also conducted on the next date i.e. 21.5.2003. (5) Recovery of weapons at the instance of the accused is false and fabricated. In fact, blood-stained weapons were recovered from the house of father of the deceased which have been planted on the appellants by the police. (6) On the date of the incident appellants, Malkhan and Ram Kripal were working at the site where road was being constructed from the fund of MLA "Vidhayak Nidhi" and the appellant, Narain was working as labourer in the house of ex-Pradhan Kallu Singh. Trial court has committed grave illegality by discarding the evidence of DW 1 and DW 2 in this regard. (7) The prosecution has utterly failed to prove its case beyond shadow of reasonable doubt against the appellants. 14. Per contra, learned Additional Government Advocate made following submissions: (i) Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not always very relevant. (7) The prosecution has utterly failed to prove its case beyond shadow of reasonable doubt against the appellants. 14. Per contra, learned Additional Government Advocate made following submissions: (i) Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not always very relevant. The present case is the case of direct evidence and from the suggestions made by the defence to PW 1 and PW 2, the eye-witnesses clearly suggest that on the date of incident boundary wall was being raised on the plot in question. (ii) The place of the incident is not a dense abadi area, though few houses of some villagers have been shown in the site-plan, however, as the defence has not challenged the place of incident and the testimony of PW 1 and PW 2 does not suffer from any infirmity, mere non-examination of any independent witness would not discredit testimony of prosecution witnesses. (iii) Presence of eye-witnesses at the place of occurrence was natural and their testimony cannot be thrown overboard based on the assumption of their conduct that they did not make any effort to save deceased while he was being attacked by the accused. The F.I.R. has been lodged promptly and the same came into existence within two hours of the incident and the defence has not been able to dislodge by any material that the same has been made ante-timed, after deliberation and consultation with police. Testimony of PW 1 and PW 2 is wholly reliable. The defence could not point out even a single contradiction between their statements and their ocular testimony is fully supported and corroborated by the medical evidence on record. (iv) The prosecution has proved its case beyond shadow of reasonable doubt and there is no infirmity or material inconsistency in the statements of PW 1 and PW 2 of the incident which had taken place in the broad day light. 15. Before dealing with submissions made by learned counsel for the appellants, we would like to discuss the evidence of witnesses on record. 16. PW 1, Prabhakar Mishra in his deposition has stated that the incident took place on 20.5.2003 at 4.30 p.m. when he along with his brothers Gyan Diwakar, Sudhakar Mishra and his father, Nathu Ram Mishra were constructing boundary wall on the plot purchased by Sudhakar Mishra from one Jageshwar Prasad Dwivedi. 16. PW 1, Prabhakar Mishra in his deposition has stated that the incident took place on 20.5.2003 at 4.30 p.m. when he along with his brothers Gyan Diwakar, Sudhakar Mishra and his father, Nathu Ram Mishra were constructing boundary wall on the plot purchased by Sudhakar Mishra from one Jageshwar Prasad Dwivedi. The transaction was made on a stamp paper which was not registered but was executed according to village custom. There was no dispute over the plot but after some time the accused started claiming that the property was of Gram Samaj. He has repeated the version narrated by him in the F.I.R. and has claimed himself and his father to be eye-witnesses of the incident. In his cross-examination, the defence has made following suggestion that, ^^;g dguk xyr gS fd ftl txg ckmUMzh cuk jgk Fkk] og xWako lekt dh tehu FkhA^^ The defence has further cross-examined that the conduct of the deceased was not good and he was terror in the area on account of which some unknown assailants have committed his murder. The said witness was further suggested that on account of his terror, the first informant and his brother and father forcibly wanted to take possession over the Gram Samaj land, patta of which was allotted to poor Harijans, due to which the accused have been falsely implicated in the present crime. The defence also suggested that the incident had taken place sometime in the night and the F.I.R. was made ante-timed and was registered on the next day in the morning. 17. We have carefully perused entire statement of PW 1 and we find that the defence could not point out a single contradiction in the previous statement of the PW 1 recorded under Section 161 Cr.P.C. or anything very material to discredit his testimony. On the other hand, the suggestion given by the defence clearly supports the prosecution case to the extent that boundary wall was being raised by the first informant and others on the date of the incident and the place of incident which has been shown in the site-plan is situated north side of house of accused, Ram Kripal, which remained unchallenged. 18. PW 2, Nathu Ram Mishra is the father of the deceased who in his deposition has corroborated statement of PW 1. Therefore, there is no necessity of repeating his deposition specially his examination-in-chief. 18. PW 2, Nathu Ram Mishra is the father of the deceased who in his deposition has corroborated statement of PW 1. Therefore, there is no necessity of repeating his deposition specially his examination-in-chief. From his cross-examination, we find that said witness was also given suggestion by the defence that boundary wall that was being constructed, was done by one Raja Chamar. The following suggestion was given by the defence which at least establishes that defence also does not dispute the construction of boundary wall on the plot in question. ^^;g dguk xyr gS fd tks ckmUMzh eSa cuk jgk Fkk] mleas jktk pekj jktxhjh dj jgk FkkA ----- ;g dguk xyr gS fd v'ouh dqekj jktxhjh dk dke ugha dj jgs FksA^^ 19. The said suggestion was denied by PW 2 who stated that it was incorrect to say that the work was being done by his sons only. In the cross-examination the said witness stated that day of the incident was Tuesday and the deceased, Gyan Diwakar was on fast and had not taken anything since morning. At this juncture, we may record that in the post mortem report the stomach of the deceased was found empty which supports the prosecution case. The said witness was also cross-examined by the defence but could not elicit any material point on the basis of which the testimony of said witness can be doubted. 20. PW 3, Head Constable 32, Shyam Swaroop was posted as Head Moharrir at Police Station Muskara, District Hamirpur on 20.5.2003. On the written report of PW 1, the F.I.R. was registered by him as Case Crime No.60 of 2003 under Section 302 I.P.C. against accused-appellants on 20.5.2003 at 6.25 p.m. He proved copy of chick report and registration of F.I.R. vide G.D. No.24 as Ext. Ka-2 and Ka-3 respectively. The defence could not shake the testimony of this witness with regard to the registration of F.I.R. on 20.5.2003 at 6.25 p.m. 21. PW 4, Sub Inspector,Gyan Singh, the then Station House Officer at Police Station Muskara, District Hamirpur has deposed that on receiving an information about registration of F.I.R., he proceeded to the village of incident on 20.5.2003. However, due to insufficiency of light, he could not conduct inquest and the same was conducted by him on 21.5.2003 at 7.00 a.m. as noted above. However, due to insufficiency of light, he could not conduct inquest and the same was conducted by him on 21.5.2003 at 7.00 a.m. as noted above. After performing necessary requirements, he dispatched the dead body for post mortem examination. He has proved recovery of weapons at the instance of the appellants on 22.5.2003 and 26.5.2003. He has deposed that he had reached in the village at 7.40 p.m. on 20.5.2003 and had denied to the defence suggestion that F.I.R. was not in existence on that date and the same came into existence later in the night in consultation and deliberation with PW 1, Prabhakar Mishra and the same was in fact registered next day after making it ante-timed. He has also stated that at the time of inspection boundary wall upto two and half feet was found by him. We may record that defence has not pointed out any single circumstance showing any inconsistency between the statements recorded by him under Section 161 Cr.P.C. of the witnesses and in their deposition in the court. 22. PW 5, Dr. Rajendra Prasad Pandey, Surgeon has conducted post mortem on the cadaver of the deceased and has proved the injuries noted by him in the said report (Ext. Ka-16). In his cross-examination, defence has not disputed that the same could not be caused by an axe and cross-examination is confined only to the extent of seat of the ante mortem injuries. 23. As stated above, the defence examined two witnesses, namely, Om Prakash alias Atma Prakash as DW1 and Kallu Singh as DW 2. DW1 has stated that he is half brother of PW 2, Nathu Ram. He has further deposed that murder of his nephew, Gyan Diwakar took place about one and half years' back at about 4.30 p.m. on 20.5.2003. On receiving information of murder, he had gone to the place of the incident which is near the handpump where the dead body of his nephew was lying, smeared with blood and no other person was present. He has further stated that on the date of incident Darogaji along with constables had arrived in the village in the same evening at about 5.30 p.m. and after sealing the dead body of deceased, Gyan Diwakar it was dispatched for post mortem. He has further stated that on the date of incident Darogaji along with constables had arrived in the village in the same evening at about 5.30 p.m. and after sealing the dead body of deceased, Gyan Diwakar it was dispatched for post mortem. He has further stated that after two days of the incident, son of his step brother, Nathu Ram had given two blood stained axes to Darogaji and at that time, accused, Malkhan and Ram Kripal were not present. We find from the testimony of DW 1 that in fact his testimony further assists the prosecution case with regard to the place of the incident and regarding the factum of recovery of axe though stated by him in a different manner and does not lend much support to the case of the defence at all. His testimony in fact firmly establishes the time and place of incident as stated by the prosecution. Therefore, the suggestion given by the defence to the eye-witnesses that the deceased was murdered some time in the night by unknown miscreants falls to the ground. The testimony of said witness does not make any dent on the prosecution story of recovery of blood-stained axe at the instance of appellants, Malkhan and Ram Kripal. 24. DW 2, Kallu Singh has attempted to establish the plea of alibi of accused-appellant, Narain that on the date of the incident, he was working in his field and was also doing household chores in his house. The said witness has also stated that on the date of the incident accused,Malkhan and Ram Kripal were working at the distance of 2-3 furlongs from the place of the incident where road was being constructed. We have carefully scrutinized the statement of DW 2 and we may record that he has utterly failed to prove the plea of alibi of accused-appellant, Narain. Admittedly, the said witness is resident of same Village Gundali where the incident had taken place and, therefore, his statement that accused, Narain remained present in his house till 6.00 p.m. does not inspire confidence and has to be rejected outrightly. 25. Now we may examine submissions of learned counsel for the appellants assailing prosecution version. Admittedly, the said witness is resident of same Village Gundali where the incident had taken place and, therefore, his statement that accused, Narain remained present in his house till 6.00 p.m. does not inspire confidence and has to be rejected outrightly. 25. Now we may examine submissions of learned counsel for the appellants assailing prosecution version. One of the main arguments of the defence counsel is that the prosecution has failed to establish any motive for the appellants to commit the murder of the deceased inasmuch as the prosecution has failed to bring any evidence on record that plot in question was in fact purchased by the prosecution witnesses from one Jageshwar Prasad Dwivedi. In this behalf, we may record that it is the case of the prosecution from very beginning that the transaction was done on a stamp paper according to the custom of village. In our opinion, merely because the prosecution could not prove right and title over the plot in question which was being claimed by the accused to be of Gram Samaj land would not discredit prosecution case inasmuch as the factum of raising boundary wall on it has not been disputed by the defence rather it finds corroboration from the statement of DW 1 as stated above. In any view of the matter, the accused-appellants have not raised any claim over the plot in question that it was in their possession and, therefore, it will not make any difference to the reliability and credibility of the prosecution witnesses of not establishing by any document that the same was purchased by Sudhakar Mishra from one Jageshwar Prasad Dwivedi. 26. So far as the issue of motive is concerned, it is settled legal preposition of law that motive has great significance in a case involving circumstantial evidence but where direct evidence is available which is worth relying upon, motive loses its significance. 27. In Darabara Singh Versus State of Punjab (2012) 10 SCC page 476, it has been held as under: "Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. In such a situation, mere absence of strong motive connecting the crime cannot be of any assistance to the accused." 28. In such a situation, mere absence of strong motive connecting the crime cannot be of any assistance to the accused." 28. In Sheo Shanker Singh Versus State of Jharkhand, (2011) 3 SCC Page 654 in para 15, "Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye-witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused." 29. In view of the settled position of law, in present case the incident took place in the broad day light of which F.I.R. was lodged promptly within two hours by the PW 1 after covering a distance of seven kilometers on the same day detailing therein manner of assault, weapon and other necessary details of the incident, the alleged failure of prosecution to prove motive pales into insignificance. 30. Next submission raised by learned counsel for the appellants is that there is no independent witness to support the prosecution version. It is well established that mere non-examination of any independent witness would not discredit entire prosecution version and the testimony otherwise reliable and creditworthy unless the defence is able to completely shake credibility and truthfulness of alleged partisan, interested and close family members as in the present case. We may record that the defence by the tenor of cross-examination and suggestions do not dispute the construction of boundary wall on the plot in question and, therefore, the presence of PW 1, Prabhakar Mishra who lodged the F.I.R. immediately after the incident and PW 2, Nathu Ram on the spot cannot be doubted. At the cost of repetition, we may record that defence has not been able to shake the credibility and reliability of both the eye-witnesses in cross-examination. They could not confront the witnesses with any contradiction, minor or major whatsoever nor any such contradiction has been proved by the Investigating Officer, PW 4. At the cost of repetition, we may record that defence has not been able to shake the credibility and reliability of both the eye-witnesses in cross-examination. They could not confront the witnesses with any contradiction, minor or major whatsoever nor any such contradiction has been proved by the Investigating Officer, PW 4. It is well settled that the evidence of related/interested witness is to be scrutinized by the court with extreme care and caution and once the evidence is found wholly reliable then the same cannot be discarded on the ground of witnesses being partisan and interested. 31. We may further record that ocular version of PW 1 and PW 2 is fully supported by medical evidence, injuries which proved fatal sustained by the deceased, were caused by heavy cutting weapons like axe and the same finds corroboration from the ante mortem injuries in the form of incised wounds and underneath which clavicle bone was found fractured. The underlying muscles, bones of neck were found incised. 31. Learned defence counsel has strenuously argued that First Information Report has not come into existence at 6.25 p.m on 20.5.2003 as alleged by the prosecution, but the same saw the light of day on next day after deliberation and consultation, on account of which inquest was conducted by PW 4 on 21.5.2003 at 7.00 a.m. It is also argued that PW 1, the first informant admittedly is an educated man and he did not scribe the F.I.R. in the village after the incident but the same was scribed by him after taking paper from PCO while going to police station creates doubt on the lodging of the F.I.R. on the same day. We have given our thoughtful consideration to the submissions raised by the learned counsel for the defence and we do not find any force with regard to the factum of F.I.R. Firstly, the Investigating Officer in his statement has stated that as he has reached the village of the incident after receiving information about registration of F.I.R. and the investigation being entrused to him at about 7.40 p.m. on 20.5.2003, as there was no arrangement of light, the inquest was conducted next day. We do not find anything to suspect said statement of Investigating Officer. We do not find anything to suspect said statement of Investigating Officer. We may record further that as per the statement of DW 1 also, the Investigating Officer had reached at the place of incident after couple of hours. There is nothing unusual on the part of PW 1 to have not scribed the F.I.R. in the village and after taking a paper from PCO scribed the F.I.R. which does not suffer from any infirmity or weakness and on the contrary it contains narration of facts against the appellants with clarity and unambiguity. We may further record that inquest report and other spot papers contained relevant indicators, namely, crime number, time and date of the alleged incident and sections at which case was registered, list of necessary documents dispatched along with inquest report, etc. from which only inference which could be drawn is that the F.I.R. has not been made ante-timed in the present case, rather it was lodged promptly which does not leave any scope to doubt the prosecution version. 32. The next argument of learned counsel for the appellants is assailing the presence of PW 1 and PW 2 based on their conduct that they did not make any effort to save their brother and son. From testimony of eye-witnesses which is evidence that the witnesses were present at points C1, C2 and C3 shown in the site-plan near the plot in question and on hearing hue and cry of the deceased, they challenged the accused and by the time, they reached there they had made their escape good. Besides it, number and nature of injuries show that incident would have taken place in a very short span of time and, therefore, said argument of defence has no force and the same is rejected. 33. We do not find any force regarding plea of alibi as stated by DW 2 that appellant, Narain was working in his field and also doing household chores as noted above. The said witness also resides in the same village and possibility that the accused Narain and other appellants Malkhan and Ram Kripal could have come to the place of the incident for some time and could have participated in the incident cannot be ruled out. The plea of alibi has no force and has no legs to stand on. 34. The said witness also resides in the same village and possibility that the accused Narain and other appellants Malkhan and Ram Kripal could have come to the place of the incident for some time and could have participated in the incident cannot be ruled out. The plea of alibi has no force and has no legs to stand on. 34. In the result, we are of the firm view that eye-witness account of the incident is infallible. The same is, however, corroborated by medical evidence. The F.I.R. has been lodged promptly within two hours of the incident. The witnesses of fact are wholly trustworthy and reliable, therefore, we are also of the view that laconic discrepancy in the investigation will not affect main edifice of the prosecution version which we find credible and clear of any doubt so far as the appellants with specific weapons assigned to them are concerned. The testimony of eye-witnesses is absolutely natural and there is no earthly reason to doubt their testimony. The appellants have also not suggested any reason for the witnesses to falsely implicate them in this case. 35. The guilt of the appellants has been convincingly too well anointed by confidence inspiring and reliable testimony of two witnesses supplemented well by all formal witnesses and consequently we hereby hold that the accused appellants are guilty of committing murder of deceased, Gyan Diwakar and the prosecution has proved its case without any shadow of reasonable doubt. We may further record that the finding recorded by the trial court for convicting and sentencing all the appellants are well substantiated by the record and supported by cogent reasons. No other very material point has been highlighted before us nor advanced during the course of argument. 36. The conscience of the Court is convinced of the commission of the crime by the accused-appellants before us and the judgement of the trial court is perfectly correct and the appeal is bereft of merit. 37. The appeal of the appellants, namely, Malkhan, Narain and Ram Kripal deserves to be dismissed and is hereby dismissed. The conviction and sentence awarded by the trial Court against all the appellants/ accused is confirmed. 38. The appellants are on bail. Their bail bonds and surety bonds are hereby cancelled. 37. The appeal of the appellants, namely, Malkhan, Narain and Ram Kripal deserves to be dismissed and is hereby dismissed. The conviction and sentence awarded by the trial Court against all the appellants/ accused is confirmed. 38. The appellants are on bail. Their bail bonds and surety bonds are hereby cancelled. They shall surrender before the trial court immediately and be taken into custody forthwith and sent to jail to serve out their remaining part of sentence awarded to them by the court below. 39. The copy of the judgement and entire record be transmitted back to the learned trial court for compliance.