JUDGMENT : (Delivered by Hon'ble Alok Kumar Mukherjee, J.) 1- The instant appeal, filed on behalf of the appellants, under Section 374 (2) Cr.P.C., questioning the correctness of Judgment and orders dated 24th May, 1982 passed by Sri Ram Singh IIIrd, Additional Sessions Judge, Rampur in S.T. No.143 of 1981 (State Vs. Rikashpal Singh and another) whereby the appellants have been convicted under Section 302/34, 324/34 IPC and sentenced to undergo imprisonment for life and rigorous imprisonment of one year respectively. 2- Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri Ajay Kumar Pandey, learned counsel for the appellants Rikashpal Singh and Suchcha Singh, Sri Ajeet Kumar Singh, learned A.G.A. for the State and perused the record. 3- The facts giving rise to the present appeal may be summarized as under:- That Ajit Singh gave a verbal report at Police Station Swar on 21st January, 1980 at 11.30 p.m. stating therein that he alongwith his brother Hardeep Singh, Amrik Singh and uncle Jarnel Singh were keeping watch on the paddy field at 7.30 p.m. in the Moonlight, he saw Rikashpal Singh and Gurudayal Singh alias Billu and Suchcha Singh coming on their own Tractor and taking his Patela by their tractor. Rikashpal Singh and Suchcha Singh were armed with Tabal, Gurudayal Singh alias Billu had gun in his hand. When he asked them not to take Patela, they started using force and at that scuffle took place. The accused persons had inflicted injuries with Tabal and Gurudayal Singh alias Billu fired a shot which hit his brother Hardeep Singh, who died in the field. He and his companions also used force in their defence. During the scuffle broken gun of Gurudayal Singh alias Billu fell on the field. The miscreants made good their escape by tractor. He and his brother Amrik Singh sustained injuries. 3- At this check FIR was scribed and Case Crime No. 170 of 1980 was registered at Police Station Swar and investigation was taken over by the then Station Officer, S.I. Hukum Singh Yadav, who on the same day visited the spot and recorded the statement of the first informant and injured Amrik Singh and Jarnail Singh were also sent for treatment and held the inquest proceedings, recovered the gun, took sample of blood stained and simple earth, after conclusion of the investigation he submitted the charge sheet. 4- Rikashpal Singh and Suchcha Singh stood for trial before the Court of Sessions. They were charged under Section 302/34, 324/34 IPC. They denied the charges and claimed to be tried. 5- In order to prove the charges on behalf of the prosecution besides other police papers, Check FIR (Ext.Ka-1), Recovery memo of broken Gun, shoes, clothes etc.(Ext.Ka-13), Recovery memo of khet (Ext.Ka-14), Recovery memo of Patela (Ext.Ka-8), Injury report of Jarnel Singh (Ext.Ka.-2), Injury report of Ajit Singh (Ext.Ka-3), Injury report of Amrik Singh (Ext.Ka-5), Injury report of Rikashpal Singh (Ext.Ka.-7), Injury report of Gur Dayal Singh (Ext.Ka-6), Postmortem report of Hardeep Singh (Ext.Ka-19) and charge sheet were filed. 6- In the oral evidence six witnesses were examined. Out of these Ajit Singh (PW-1) and Amrik Singh (P.W.-2) are witnesses of fact, Dr. S.C. Gupta (PW-3), Dr. R.N. Bharadwaj (P.W.-4) and Dr. G.N. Saxena (P.W.-6) are the expert witnesses. S.I. Hukum Singh Yadav (P.W.-5) is the Investigating Officer. 7- Thereafter, statements of the appellants under Section 313 Cr.P.C. were recorded. They have denied the facts stated by the prosecution witnesses. According to them, false FIR was lodged in collusion with the police. They claimed false implication due to enmity. They have pleaded ignorance about the medical evidence. In the defence Dr. R.K. Singh D.W.-1 was examined. 8- Learned Additional Sessions Judge after conclusion of the trial heard the arguments of both the parties and recorded finding of guilt against the present appellants and convicted them. Feeling aggrieved the instant appeal has been filed. 9- Learned counsel for the appellants in support of the grounds taken in the appeal have submitted that prosecution has not come with clean hands and it is silent about the injuries sustained by Jarnail Singh, Richapal Singh and Gurudayal Singh. He has further submitted that according to the prosecution it was a case of scuffle, marpit that took place between two parties and it was for the court to judge who was the aggressor. According to the learned counsel non-explanation of the injuries of Rikashpal Singh is fatal for the prosecution. Actually first informant's side inflicted injuries on the appellants when they were taking their Patela. He has further submitted that FIR was ante-timed. The place of occurrence could not be proved by the prosecution and the appellants are entitled to be acquitted giving them the benefit of doubt. Actually first informant's side inflicted injuries on the appellants when they were taking their Patela. He has further submitted that FIR was ante-timed. The place of occurrence could not be proved by the prosecution and the appellants are entitled to be acquitted giving them the benefit of doubt. 10- On behalf of the State-respondent these arguments have been repelled. It has been submitted that the findings recorded by the learned trial Judge are duly supported by the cogent evidence available on record. The learned trial court has given cogent reasons in support of these findings. He has not committed any error, while applying the legal principles in this regard, the impugned judgment and orders need no interference by this Court. The appeal is devoid of merit and deserves to be dismissed. 11- Before entering into the merits of the appeal, we would like to recall the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222] whereby duties of the appellate court have been outlined. Para-4 of the judgment reads as under: "4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained." 12- In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below: "5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence." 13- In order to appreciate and consider the argument advanced by counsel for both the parties, it would be gainful for us to place on record brief summary of the evidence adduced during the trial. The summary is herein below:- Ajit Singh P.W.-1 is the first informant and brother of the deceased. He has reiterated the facts mentioned in the First Information Report with the addition that Suchcha Singh was armed with Lathi having small Tabal, Rikashpal Singh had Tamancha and Gurudayal Singh had gun. He had lathi and his brother Amrik Singh was having 'Kripan'. In the defence he and Amrik Singh had also inflicted injuries on the appellants. He, his brother Amrik Singh and uncle Jarnail Singh also sustained injuries. He has proved Check FIR Ext. Ka-1. Similarly, Amrik Singh P.W.-2 has supported the prosecution version. 14- Dr. S.C. Gupta P.W.-3 on 22nd November, 1980 had medically examined Jarnail Singh at 6.15 p.m.. He has proved the injury report Ext.Ka-2 and opined injuries to be simple, their duration was one day. Injury numbers 1, 4 and 5 were caused by blunt object and injury numbers 2 and 3 were caused by sharp edge weapon. In the injury report following injuries have been recorded:- (1) Linear abrasion 9 cm.X ¼ cm. on the left side back above the inner border of the left scapula. (2) One linear abrasion 9 sm. XI/4cm. on the right side of the back 9 cm. below the right scapula extending horizontally. (3) One lacerated wound 2 cm.XI/4 cm. x skin deep on the back of left fore-arm 4cm. below the lateral apicontyle of left humerus. Movements of left elbow and the fore arm were normal. (4) One lacerated wound 1.5 cm.XI/4 cm. x skin deep on the back of left fore arm 1.5 cm. inner side from injury no.4. 15- Dr. R. N. Bharadwaj P.W.-4 has medically examined Ajit Singh on 22nd November,1980 at 9.45 a.m. and found following injuries on his person:- (1) Incised wound 10 cm. X 3.2 cm. x bone deep on the right side back in upper scapular region kept under observation advised x-ray. inner side from injury no.4. 15- Dr. R. N. Bharadwaj P.W.-4 has medically examined Ajit Singh on 22nd November,1980 at 9.45 a.m. and found following injuries on his person:- (1) Incised wound 10 cm. X 3.2 cm. x bone deep on the right side back in upper scapular region kept under observation advised x-ray. (2) There is trailing of this wound below, outwards and direction of wound is oblique (above medially to below outwards) caused by shrap edged weapon such as Tabal and duration was within a day." 16- He has proved injury report of Ajit Singh Ext.Ka.-3 and X-ray report Ext.Ka-4. On that date at 10.30 a.m. he also medically examined Amrik Singh. He has proved injury report and recorded the injuries noticed by him during such medical examination. They read as under:- (1) Lacerated wound 2 cm. x 1.4 cm. x scalp on right side head 12 cm. above right ear. (2) Abrasion 5 cm. x ..cm. on right side neck upper part. (3) Contusion 5 cm. x 1.5. cm. on right side shoulder 5 cm. inner to top of shoulder. (4) Contusion 5.5. cm. x 1 cm. on outer aspect of right arm middle. (5) Contusion 8 cm. x 3 cm. on front of right thingh 8 cm. above knee. (6) Abrasion 5 cm. x 1 cm. front of right leg middle. (7) Lacerated wound 2 cm. x 1 cm. XI cm. on the tip and outer aspect of right thumb. (8) Incised wound linear in shape 2.5 cm. long on the web between left thumb and index finger depth skin. (9) Contusion 7 cm. x 2 cm. on outer aspect of left fore arm 12 cm. Below elbow joint. (10) Multiple abrasions on right side back middle in an area of 10 cm. x 10 cm. (11) Linear incised wound 3 cm. long with a tail on its upper medial end, 1, 3, 4, 5, 7, 9 by blunt weapon and injuries no.2, 6, 10 by friction against hard surface and injuries no.8 and 11 by sharp edged weapon all one Simple in nature and within one day old." 17- Dr. G.N. Saxena P.W.-6 on 22nd November, 1980 has conducted the postmortem examination of the dead body of Hardeep Singh. According to him time since death was two days, rigor mortis was present in both the extremities. G.N. Saxena P.W.-6 on 22nd November, 1980 has conducted the postmortem examination of the dead body of Hardeep Singh. According to him time since death was two days, rigor mortis was present in both the extremities. During the external examination he has found following ante-mortem injuries:- (1) Lacerated fire arm wound of entry measuring 4 cm. x 2 cm. x cavity deep on the left side of waist 6 cm. above the iliao crest lops of intestine were coming out of the wound. There was blackening around the margins of the wound which were inverted. (2) There as another fire arm entry wound measuring ½ cm. x ½ cm. x cavity deep just above the main wound (No.1) of entry. There was blackening. (3) Contusion 3 cm. x 1 cm. over the middle part of chest 4 cm. below the tip of sternum. (4) Contusion 4 cm. x 1 cm. out the middle part of chest 3 cm. lateral towards left side of injury no.3." During the internal examination he found following injuries:- (5) Brain was pale. There were three shots in the chest the right and left lungs were pale both the chambers of the heart were empty. Abdomenal wall was lacerated below injury no.1 and 2. Peritoneum was lacerated in the stomach were cardwade and one shot was found. There was one pint blood in the stomach. His teeth were 16/16. The stomach was lacerated and there was digested food in the stomach, small intestine were lacerated at places and there was gas in it, big intestine was also lacerated at places and there was gas faecal matter. The liver was lacerated through and through. Gall bladder was half filled. The portion below the spleen was lacerated through and through. The urine bladder was empty. According to the witness the death occurred due to shock and haemorrage as a result of ante-mortem injuries. The death could have occurred in the stated date and time. 18- S.I. Hukum Singh Yadav P.W.-5 is the Investigating Officer. He gave the details of the steps taken in the course of investigation. He has proved check FIR Ext.Ka.-1, copy of the report of G.D. Ext.Ka-6, Inquest report Ext.Ka.-7, other papers accompanying the dead body Ext.Ka.-8, sample seal Ext.Ka.-11, site plan Ext.Ka-12, Recovery memo of gun Ext.Ka-13. 18- S.I. Hukum Singh Yadav P.W.-5 is the Investigating Officer. He gave the details of the steps taken in the course of investigation. He has proved check FIR Ext.Ka.-1, copy of the report of G.D. Ext.Ka-6, Inquest report Ext.Ka.-7, other papers accompanying the dead body Ext.Ka.-8, sample seal Ext.Ka.-11, site plan Ext.Ka-12, Recovery memo of gun Ext.Ka-13. Case property, empty one cartridge, one miman sword, one patti nikad gun, one pair of leather shoes, one pair of sleepers, one pagari white, one pagari black, one woolen cap, one tahmat (material ext. 1 to 9). He has also proved recovery memo Ext.Ka.-15. 19- In the defence Dr. R.K. Singh DW-1 has been examined who has deposed that on 21.1.1980 he had medically examined Gurudayal Singh at 9.57 p.m. He has proved injury report Ext.Kha-6, wherein the following injuries have been recorded:- "(1) Incised wound 3.5 cm. x .5 cm. size present over left side of fore head. Margins were sharp, skin deep and bleeding was present. (2) Lacerated wound 4 cm. x .8 cm. in size present over right side of scalp, skin deep and bleeding was present. (3) Lacerated wound of 2.5. x .5 cm. size present over right half of scalp skin deep and bleeding was present. (4) Swelling over left cheek of 8 cm. x 9 cm. in size was present. (5) Both eyes were swelling, black and closed. (6) Blood was coming out from both nozal cavities. (7) Abrasion of 7 cm. x .5 cm. in size was present over left leg. (8) Swelling of 4 x 2 cm. size present over left ½ of fore head." 20- On that night at 10.30 p.m. he medically examined Rikashpal Singh. He has proved the injury Ext. Kha-7, wherein the following injuries have bee recorded. "(1) Incised wound of 6.5 x .5 cm. size present over for head, Scalp deep, bone was visible edges were sharp and bleeding was present. (2) Incised wound of 4.5 x 1 cm. in size present over right wrist skin deep. Margins were sharp and bleeding was present. (3) Incised wound of 2 x .4 cm. in size present over left ring finger skin deep. Margins were sharp. (4) Abrasion of 13.2 cm. x 1 cm. in size, present over left side of chest, red in colour. (5) Abrasion of 5 x 1 cm. Margins were sharp and bleeding was present. (3) Incised wound of 2 x .4 cm. in size present over left ring finger skin deep. Margins were sharp. (4) Abrasion of 13.2 cm. x 1 cm. in size, present over left side of chest, red in colour. (5) Abrasion of 5 x 1 cm. in size present on left side of chest near injury no.4. (6) Incised wound of 3 x 1 cm. in size present over right leg, skin deep, bleeding was present. (7) Incised wound of 3 x .5 cm. in size present over left leg, skin deep and bleeding was present. (8) Black eye on right side was closed." 21- Dr. G.N. Saxena P.W.-6 is an official witness. His testimony has been subjected to cross-examination. He has also conducted the postmortem examination of Hardeep Singh. During the cross-examination he has proved his postmortem report. The witness has not been suggested that he did not conduct the postmortem examination of the dead body of the Hardeep Singh. His deposition is almost unchallenged, therefore, on its basis, we hold that the deceased sustained the ante-mortem injuries indicated above, as a result whereof he died. These injuries could have been sustained by the deceased on the specific date and time. 22- Dr. S.C. Gupta PW-3 has medically examined Jarnail Singh. During the cross-examination he has denied that these injuries could be self-inflicted. His testimony is uncontroverted, hence injury report Ext.Ka-2 stands proved. 23- Dr. R.N. Bhardwaj PW-4 was also subjected to cross-examination. He has not suggested that he prepared false and fictitious injury reports. His testimony is uncontroverted, therefore, relying on that we hold that on the stated date and time Ajit Singh sutained injuries mentioned in Ext.Ka-3 and Amrik Singh sustained injuries mentioned in Ext.Ka-5. Both the injured could have sustained these injuries on the stated date and time. 24- Evidence of S.I. Hukum Singh Yadav P.W.-5 is only formal in nature. 25- Ajit Singh P.W.-1 is an injured witness. His presence is natural and probable on spot at the relevant time. In the light of tractor he had sufficient opportunity to see the assailants. During cross-examination his testimony remained unshaken. He has no reason to spare the real culprits and falsely implicate the appellants for the murder of his brother. We find him to be a trust-worthy witness. His presence is natural and probable on spot at the relevant time. In the light of tractor he had sufficient opportunity to see the assailants. During cross-examination his testimony remained unshaken. He has no reason to spare the real culprits and falsely implicate the appellants for the murder of his brother. We find him to be a trust-worthy witness. 26- For the same reason, we also find Amrik Singh PW-2 to be a trust-worthy witness. 27- Now, we come to the arguments advanced in support of the appeal. The first argument is that prosecution has not come with clean hands and on the available opportunity it was not disclosed that the accused party also sustained injuries. This argument is misconceived. In the FIR Ajit Singh has specifically mentioned that in the defence, they also did marpit with the assailants side. Non-disclosure of injuries sustained by Jarnail Singh is not fatal for the prosecution since the first informant himself sustained injuries, he took his brother and proceeded to police station and might not have been aware that his uncle had also sustained injuries. Explanation of the injuries sustained by the assailants side have also been explained in the statements of the witnesses, since this has been mentioned in the FIR, we think in the present matter prosecution cannot be said to have conceal correct facts and non-explanation of the injuries sustained by the accused party could not be good ground to disbelieve the prosecution version. 28- Ownership of Patela is disputed but from the site plan it is clear that incident took place at place 'A' according to the site plan. This field belongs to the first informant. Place of occurrence indicates that it was appellants' side who tress-passed on the land of the first informant. For this reason, the case law referred by the learned counsel for the appellants does not help the appellants. In this reference, case of Pratap Vs. State of U.P. AIR 1976 SC 966 and Lakshmi Singh and others Vs. State of Bihar AIR 1976 SC 2263 have been referred. The facts of those cases are quite different from the facts of the present case. For this reason, the appellants could not be given benefit of doubt. 29- In reference to the argument that prosecution could not prove place of occurrence beyond reasonable doubt, cannot be accepted by us. State of Bihar AIR 1976 SC 2263 have been referred. The facts of those cases are quite different from the facts of the present case. For this reason, the appellants could not be given benefit of doubt. 29- In reference to the argument that prosecution could not prove place of occurrence beyond reasonable doubt, cannot be accepted by us. Ajit Singh P.W.-1 and Amrik Singh P.W.-2 are emphatic on this point. Site plan also corroborates their assertion. The Patela, broken gun, shoes, sleepers, one bed cover have been taken from the spot as reflected from the testimony of S.I. Hukum Singh Yadav, the spot was inspected in the light of torch and lantern, for that reason the blood stains on the mud might have escaped the attention of the Investigating Officer. His omission cannot be made valid to discard the testimony of Ajit Singh P.W.-1 and Amrik Singh P.W.-2, specifically when they had been found to be credible witnesses. In this way, we hold that the prosecution has proved the place of occurrence. 30- So far as ante-timing of FIR is concerned, non arrest of Rikashpal Singh is not enough to persuade us that when Rikashpal Singh reached police station FIR was not taken because in the present case the Investigating Officer after interrogating the injured witnesses sent them for medical examination and proceeded to the place of occurrence. In law the Investigating Officer was entitled to form his opinion and thereafter make an arrest. In view of these facts, we hold that FIR was not ante-timed. 31- In view of above, we find that arguments advanced on behalf of the appellants are without substance. The appeal is bereft of merit and deserves to be dismissed. 32- Accordingly, the appeal is dismissed. The conviction and sentence awarded by the learned Additional Sessions Judge, Rampur against the accused appellants Rikashpal Singh and Suchcha Singh are affirmed. The accused/appellants Rikashpal Singh and Suchcha Singh are directed to serve out the remaining part of the sentence awarded by the learned trial court by the impugned judgment. The accused appellants Rikashpal Singh and Suchcha Singh are on bail. The accused/appellants Rikashpal Singh and Suchcha Singh are directed to serve out the remaining part of the sentence awarded by the learned trial court by the impugned judgment. The accused appellants Rikashpal Singh and Suchcha Singh are on bail. They shall surrender themselves before the trial court for serving out the sentence within 30 days from the date of this judgment, failing which the trial court shall ensure their arrest and to send them to jail for serving out the remaining sentence in accordance with law. 32- The copy of the judgment and entire record be transmitted back to the concerned trial court through Sessions Judge, Rampur for compliance within ten days. The concerned court will thereafter report the compliance to this Court within a month.