JUDGMENT : (Delivered by Hon. Rajiv Gupta,J.) 1. Heard learned counsel for the appellant and learned A.G.A. 2. Under assail in the present appeal is the judgment and order dated 2.4.1983 passed by Sessions Judge, Shahjahanpur, in S.T. No. 25 of 1983, State Vs. Girwar and others, whereby the appellants have been convicted and awarded the sentence of imprisonment for life and one month's R.I. for the offence under section 302/34 I.P.C. and 323/34 I.P.C. respectively. Both the sentences to run concurrently. 3. As per the report dated 20.9.2016 received from C.J.M. Shajahanpur mentioning that the appellant no. 3, Amar Singh has died, as such, the appeal preferred by him was abated vide order dated 14.12.2016. Thus, the appeal against the appellants, Girwar and Todi Singh only survives. 4. The alleged incident is said to have taken place at 11.30 a.m. on 24.11.1982. The F.I.R. was lodged at police station, Nigohi, District Shahjahanpur on the same day at 13.30 hrs (1.30 p.m.) 5. It is contended that the distance of the police station from the place of occurrence was five kms. 6. After lodging of the F.I.R., the investigation proceeded which resulted into filing of the charge sheet against the accused persons and the accused persons did not plead guilty and claimed to be tried. 7. Learned counsel for the appellants submits that there was no motive for commission of the offence by the appellants. The murder of Nankai have taken place in which the first informant as well as the deceased Dulare and other appellants were accused in which the accused appellant no.2, Todi Singh has deposed against the informant/complainant. Therefore, from that time they have animosity against the appellants. The wife of the deceased Nankai remarried with the appellant no. 1, two months before the alleged incident. 8. It is contended that the time as alleged in the incident, the deceased Dulare was going with P.W.1 and P.W.2 and others to harvest the rice crops in the field. When they reached near the sugarcane field of Sardar Jaswant Singh they have been attacked by the appellants. The appellants no. 1 and 2 were armed with Kante and the appellant no. 3 was armed with lathi. 9. It is contended that P.W.2, Pitam was near the deceased and P.W.1, Puran was behind them. The deceased was dragged and after taking him into the sugarcane field he was murdered. The appellants no. 1 and 2 were armed with Kante and the appellant no. 3 was armed with lathi. 9. It is contended that P.W.2, Pitam was near the deceased and P.W.1, Puran was behind them. The deceased was dragged and after taking him into the sugarcane field he was murdered. The appellant no. 3, Amar Singh was catching the leg of the deceased and other appellants were assaulting the deceased by Kanta and on account of which he expired. 10. Learned counsel for the appellant has submitted that the Panchnama was prepared on the same day but no family member of the deceased were witness of the same. 11. It is further argued on the behalf of the appellant that seven prosecution witnesses were examined, out of which two witnesses of fact, P.W.1, Puran, informant who is real brother of the deceased, P.W.2, Pitam who is said to be cousin of the deceased. P.W.3, constable who has taken the dead body for post mortem. P.W.4, Dr. A.P. Misra who has conducted the post mortem. P.W.5, K.N. Tiwari is the person who examined the injuries of the injured witness Pitam who is said to be assaulted by lathi by the appellant no.3 at the time of incident. P.W.6, Parmeshwar Dayal police constable who has prepared the chick F.I.R. P.W.7, Sheesh Ram Singh is the Investigating Officer. 12. Learned counsel for the appellants has contended that other persons named in the F.I.R. and in the charge sheet have not been examined. Only the interested witnesses and relative of the deceased have been examined. According to the F.I.R. as well as statements of the witnesses of fact the deceased was dragged into the sugarcane field and thereafter he was assaulted which resulted into death. Near his dead body, the Lathi and Darati of the deceased was also found which is highly improbable because the person who has been dragged into sugarcane field will not be holding both the aforesaid weapons. It is further contended that it has been mentioned in the F.I.R. as well as in the statements of the witnesses of fact that at the place of the alleged incident, Tahmad, Kurta and shoes of the appellant No. 2 was found. It is highly improbable that as to how the Tahmad, Kurta and shoes of the appellant no. 2 were left there. It is highly improbable that as to how the Tahmad, Kurta and shoes of the appellant no. 2 were left there. Learned counsel for the appellants further contends that the P.W.1 did not stay near the dead body of the deceased after the incident, but he returned back to the village although P.W.2 has stated that he remained with the dead body and the Investigating Officer has recorded the statement at the place of alleged incident. There is contradiction between the statement of two witnesses which shows that both witnesses were not present at the place of occurrence and the appellants have been falsely implicated in this case. 13. It is further contended on behalf of the appellants that there are contradictions between the prosecution version as well as statements of the witnesses of fact which does not corroborate with the medical evidence on record. The motive which has been assigned in the commission of the alleged offence is very weak and nobody could be indulging into such crime once they were acquitted from the case and would not murder the witness who was witness in the case in which the complainant and others were acquitted. 14. Learned A.G.A., on the other hand, has contented that the motive as assigned is very specific which finds place in the F.I.R. as well in the statement of the witness of fact. The injured witness Pitam was assaulted by lathi by the accused appellants and his injuries has also been examined which is on record as Exh. Ka.3. Therefore, his presence can not be ruled out at the time and place alleged in the incident. P.W. 2, Pitam is not related with the deceased. Therefore, it can not be said that he is an interested witness. The prosecution version fully corroborates with the medical evidence on record. The learned trial court has rightly convicted the accused appellants vide impugned judgment and order dated 2.4.1983 and imposed on them the aforesaid sentence. Consequently, the present appeal. 15. It will be pertinent to record at this stage that while exercising the appellate jurisdiction the High Court is expected to critically appraise the evidence afresh on its merit and draw the inference independently without being influenced by the findings of conviction bearing in mind the basic principles of criminal jurisprudence that the accused is innocent, unless it is established otherwise by direct and cogent evidence. Hon'ble Apex Court has been pleased to lay down the guidelines for High Court for exercising the appellate jurisdiction in criminal side in the cases of Padam Singh v. State of U. P. reported in 2000 (1) SCC 621 , Rama & Others v. State of Rajasthan reported in 2002 (4) SCC 571 , Majjal v. State of Haryana reported in 2013 (6) SCC 798 & Kamlesh Prabhudas Tanna and Anr v. State of Gujrat reported in 2014 Cr. L. J. 443] 16. Bearing in mind the aforesaid proposition of law the evidence available on record is being critically appraised afresh. 17. We have carefully considered the arguments advanced by learned counsel for the appellants as well as learned A.G.A. 18. During the course of trial the prosecution has produced two eye witnesses viz. P.W.1, Puran, and P.W.2, Pitam and other witnesses are formal witnesses. P.W.1, Puran in his examination-in-chief has clearly stated that at the time of incident, he alongwith his brother Dulare (deceased) and his son Mahendra Babu and Pitam were going to the field of Dori for harvesting his paddy crops. Dulare and Pitam were ahead of him and he and his nephew Mahendra Babu were following them. He has further sated that when they reached near the sugarcane field of Jashwant Singh, the accused appellants came out from the sugarcane field of Jashwant Singh. The accused appellants Todi and Girwar were armed with Kanta whereas accused appellant Amar Singh was armed with Lathi. The accused appellants states that the deceased Dulare has been acquitted in the murder case of Nankai but now they will kill him. The accused appellant Amar Singh gave lathi blow on Dulare and when Pitam tried to rescue him, then he was assaulted by lathi by the accused appellant Amar Singh on his neck and thereafter the accused appellants, Girwar and Todi Singh dragged the deceased Dulare in the sugarcane field and on alarm raised by Pitam he alongwith Mahendra Babu reached there and he alongwith Pitam entered in the sugarcane field and saw that the accused appellant Amar Singh was sitting on the leg of the victim Dulare and the accused appellants Girwar and Todi were assaulting him with their Kanta. The witnesses raised alarm. But the accused appellants after assaulting his brother left the place of occurrence leaving behind Tahmad, Kurta and shoes of the accused appellant Todi Singh. The witnesses raised alarm. But the accused appellants after assaulting his brother left the place of occurrence leaving behind Tahmad, Kurta and shoes of the accused appellant Todi Singh. The said witness has been subjected to lengthy cross examination. However, the defence has not been able to elicit any material contradiction in his testimony. 19. The prosecution has then produced P.W.2, Pitam who is the injured witness. In his statement he has stated that on the date of incident he alongwith Dulare was going for harvesting the paddy crops and his son Mahendra Babu and Puran were following them. He has further stated that when they reached near the sugarcane field of Jashwant Singh, the accused appellants came out from the sugarcane field and stated that in earlier case, the deceased Dulare has been acquitted but today he will be killed. He has further stated that Todi Singh and Girwar were armed with Kanta and Amar Singh was armed with lathi. The accused appellant Amar Singh assaulted the deceased Dulare by his lathi and when he tried to rescue him, Amar Singh was hit on his neck and when he withdrew himself, the accused appellants Girwar and Todi Singh dragged the deceased Dulare in the sugarcane field and assaulted him with Kantas and he has witnessed the incident from 7-8 paces. They raised alarm but the assailants after assaulting the deceased Dulare made their escape good. Due to the assault made by the accused appellants, the deceased Dulare died. It is further stated that co-accused, Todi Singh while making his escape had left his Tahmad, Kurta and Shoes at the place of incident. The darati and Lathi of the deceased Dulare was also there left behind at the place of incident. The said witness has also been subjected to lengthy cross examination by the defence but no material contradiction could be elicited from his statement. It is evident that the testimony of the aforesaid two witnesses corroborates the prosecution story as set up in the F.I.R. which has been promptly lodged within the span of two hours of the incident. 20. The prosecution then examined P.W.3, Ram Kishor Pandey, Constable who has taken the dead body for post mortem and thereafter P.W.4, Doctor A.P. Misra who has conducted the post mortem on the person of the deceased and noted the following injuries on the person of the deceased: 1. 20. The prosecution then examined P.W.3, Ram Kishor Pandey, Constable who has taken the dead body for post mortem and thereafter P.W.4, Doctor A.P. Misra who has conducted the post mortem on the person of the deceased and noted the following injuries on the person of the deceased: 1. Incised wound 7 cm x 1 cm x bone cut 1 cm above the upper border of forehead. Margins were clean cut. 2. Incised wound 6.5 cm x 1 cm x bone cut in the upper border of the forehead. Margins were clean cut. 3. Incised wound 5 cm x 1 cm on the bridge of the nose and right eye-brow, bone cut deep and clean cut margins. 4. Incised wound 12 cm x 1.5 cm on the middle of the nose and extending both sides just below orbital, margins, bone cut and clean cut margins. 5. Incised wound 6 cm x 1 cm x bone cut on the tip of the nose, upper tip and mandible below nose towards left side, clean cut margins, close to injury no. 4. 6. Incised wound 20 cm x 3 cm x bone cut, extending from 1 cm from the right ear below tragus passing through lower part of maxilla to the close to left ear. Margins were clean cut, and close to injury no.5. 7. Incised wound 14 cm x 1.5 cm x bone cut on the upper part of the chin extending both sides up to angle of mandible with clean cut margins and close to injury no. 6. 8. Incised wound 4 cm x .75 cm just below the tip of the chin, bone cut and clean cut margins. 9. Incised wound 10 cm x 1 cm x bone cut on the back of the middle of the head oblique from left to right side, clean cut margins. 10. Abrasion 5 cm x 1 cm on medial surface of the lower 1/3 of right arm. 11. Multiple abrasions 1.5 cm x 1 cm to 1 cm x .5 cm on anterior surface of the middle of left leg 2 to 4 cm apart. All injuries excepting no. 9-11 were transversely placed close to each other. The occipital bone, nasal bone, parietal bone, maxilla, mandible bone and temporal bone were fractured. The membranes were lacerated. 11. Multiple abrasions 1.5 cm x 1 cm to 1 cm x .5 cm on anterior surface of the middle of left leg 2 to 4 cm apart. All injuries excepting no. 9-11 were transversely placed close to each other. The occipital bone, nasal bone, parietal bone, maxilla, mandible bone and temporal bone were fractured. The membranes were lacerated. The Doctor has opined that the injuries were sufficient, in the ordinary course of nature, to cause death. 21. The prosecution has examined, P.W.5, K.N. Tewari, Medical Officer, P.H.C. Nigohi who has examined the injuries of injured Pitam and he has stated that the injury found on the person of the victim Pitam could be caused by lathi and possibly to have been caused on 24.11.1982 at 11.00 a.m. 22. P.W.6, Parmeshwar Dayal, Head Constable has proved the execution of chick F.I.R. Exh.Ka 4 and Exh.Ka 5 and thereafter the prosecution has produced P.W.7, Shish Ram Singh, Investigating Officer who has conducted the investigation and submitted the charge sheet against the accused appellants. 23. After completion of the prosecution evidence, the statements of the accused appellants have been recorded under section 313 Cr.P.C. in which they have denied the prosecution case and has stated that on account of animosity they have been falsely implicated in the present case. The accused appellants have not led any evidence in their defence. 24. Learned counsel for the appellant has vehemently argued that there is no motive on the part of the accused appellants to have committed such offence. Considering the said argument, it is to be noted that from perusal of the F.I.R. as well as statements of the witnesses, it is evident that in the present case, the incident is the outcome of the earlier incident in which the accused appellant Todi Singh had deposed against the deceased Dulare in the murder case of Nankai which had ended into acquittal. Further more it is alleged that the wife of Nankai had remarried with Girwar due to which the accused appellants developed animosity and committed murder of Dulare. Moreover, it is germane to point out that the present case is based on direct evidence and as such motive pales into insignificance. However, the prosecution has come out with clear motive resulting in the present incident and the entire prosecution can not be discarded even if the prosecution fails to establish the motive beyond doubt. Moreover, it is germane to point out that the present case is based on direct evidence and as such motive pales into insignificance. However, the prosecution has come out with clear motive resulting in the present incident and the entire prosecution can not be discarded even if the prosecution fails to establish the motive beyond doubt. Moreover, the two eye witnesses, Puran and Pitam have led cogent and trustworthy version of the incident which inspires confidence as such there is not much substance in the argument of the learned counsel for the appellants that there is no motive for the appellants to commit the present offence. 25. The next limb of argument of learned counsel for the accused appellants is that P.W.1 and P.W.2 are highly interested and partisan witnesses. The P.W.1 being the real brother of the deceased and P.W.2 is also related to P.W.1. As such in the absence of testimony of independent witness, the prosecution story can not be believed and the accused appellants are liable to be acquitted. 26. On the point of interested witnesses, Hon. Apex Court in the case of State of Uttar Pradesh Vs. Jagdeo, reported in 2003 Cr.L.J. 844(SC) observed that only on the ground of interested or related witnesses, their evidence of witnesses which otherwise appears to be reliable can not be discarded. Most of the times, the eye witnesses happen to be family members or close associates because unless a crime is committed near public place, the strangers are not likely to be present at the time of occurrence. Thus, what follows from the perusal of the aforesaid judgment of Hon'ble Apex Court is that the relationship can not be a factor which affects the credibility of the witnesses. The evidence of interested or related witnesses can be relied upon subject to their evidence being trustworthy in accordance with law. 27. So far as the aforesaid argument of the learned counsel for the appellants is concerned, it is well settled principle of law that the testimony of partisan and interested witnesses can not be thrown over board and their testimony is only to be considered with caution. 27. So far as the aforesaid argument of the learned counsel for the appellants is concerned, it is well settled principle of law that the testimony of partisan and interested witnesses can not be thrown over board and their testimony is only to be considered with caution. From perusal of the testimony of P.W.1 Puran and P.W.2 Pitam who is also an injured witness and whose presence is clearly established, it is crystal clear that they in most explicit terms has corroborated the prosecution story in all material particulars except minor contradiction which are bound to occur. The testimony of both the witnesses P..W. 1 and P.W.2 is cogent, consistent, trustworthy and inspires confidence and the defence has not been able to create any serious dent in their testimony which shakes their credibility.. 28. Learned counsel for the appellants has tried to castigate the testimony of P.W.1 and P.W.2 by pointing out certain contradictions and submitted that in the statement of P.W.1 it is stated that he stayed near the dead body for about half an hours and thereafter he alongwith Pitam P.W.2 left for his house where the F.I.R. is said to have been transcribed by P.W.2 and thereafter P.W.1 is said to have gone to the police station to lodge the F.I.R. However, in the statement of P.W.2 it is stated that for the first time when he reached near the dead body of the deceased Dulare, he stayed there for only 1-2 minutes and thereafter left with Puran to his house and did not accompany Puran to lodge the F.I.R. As such, there is material contradiction in the statement of P.W.1 and P.W.2 in respect of the time period for which two witnesses stayed near the dead body of the deceased. However, as per the argument of learned counsel for the appellants, the aforesaid contradiction can not be said to be a major contradiction and does not otherwise shake the credibility of the two witnesses on any material particular which goes to the root of the case and only on the basis of the said minor contradiction the credibility of two witnesses can not be doubted. 29. 29. Learned counsel for the appellants has further tried to shake the credibility of P.W.1, Puran by pointing out that he in his cross examination has stated that prior to this deposition before the court his statement has earlier not been recorded by any one and only for the first time the witness is deposing in the court. Counsel for the appellants as such submits that in the absence of his statement recorded under section 161 Cr.P.C. his testimony can not be given any weight. 30. The aforesaid argument of learned counsel for the appellants also does not hold good in view of the fact that the Investigating Officer P.W.7, Shish Ram Singh, in his statement before the trial court has categorically stated that the statement of P.W.1 under section 161 Cr.P.C. was recorded by him at the police station itself when he had reached there to lodge the F.I.R. and thereafter he alongwith first informant, Puran had reached at the place of incident. The Investigating Officer has filed the extract of statement of the said witness Puran recorded under section 161 Cr.P.C and the same has been marked Exh. Kha 1. It appears that the said witness P.W.1 under some confusion has stated that prior to this date his statement in respect of the present incident has not been recorded which from the document available on record is proved otherwise. As such on this account also the testimony of P.W.1 can not be discarded. Moreover, both the eye witnesses P.W.1 and P.W.2 have corroborated the prosecution story in all material particulars and their testimony completely corroborates the prosecution story. 31. Learned counsel for the appellants has further argued that while drawing the Panchayatnama, the family members of the deceased has not been appointed as Panch witness which further sakes the credibility of the prosecution story. This argument of learned counsel for the appellants also does not have much substance as it is well neigh settled that while conducting the Panchayatnama the independent witnesses are appointed as Panches, and their statements are recorded as Panch witnesses, as such, not appointing any family members of the deceased as Panch witness does not in any way shake the credibility of the prosecution story. 32. 32. Learned counsel for the appellant has further submitted that as per prosecution story marpit in the present case has taken at a distance of 40-50 paces from the place of murder and the Investigating Officer has found lathi and sickle of the deceased on the place of incident where the dead body was found which appears to be highly improbable in this case. 33. It is relevant to note that the factum of lying of the lathi and sickle belonging to the deceased near the dead body has been categorically pointed out by P.W.2 Pitam in his statement in the Court has clearly stated that ^^ tgkW ij nqykj ejs iMs+ Fks ogkW VksMh flag dk rgen dqrkZ o twrk NwV x;k Fkk nqykj e`rd dh ogka ykBh o njkrh ogkW jg xbZ Fkh ^^ Further more, when the Investigating Officer reached at the place of incident he had found lathi and sickle belonging to the deceased lying near the dead body of the deceased and accordingly he has prepared and proved the recovery memo of lathi and daranti as Exh. Ka 10. Moreover, the Investigating Officer in his statement has also categorically stated that ?kVuk LFky ij tgkWa yk'k iM+h Fkh ogka ls ,d ykBh ckal ,d njkrh ¼gla;k½] ykBh ckal bDt 1 o gl;kW bDt 2 gSA bl ykBh ij dVs ds fu'kku cus gq;s gSaA eSaus bldh QnZ eqjRro dh tks esjs gkFk dh fy[kh o nLr[krh gSA ftl ij bDt d&10 Mkyk x;kA 34. In view of aforesaid categorical statement of the witnesses regarding the finding of lathi and sickle near the dead body of the deceased, there is no apparent reason to disbelieve the sworn testimony of the two prosecution witnesses on this account. As such, the said argument of learned counsel for the appellants in this regard also does not have much substance and the said factum has been clinchingly proved by the prosecution. 35. Learned counsel for the appellants has further submitted that the prosecution story does not corroborate the medical evidence as apart from incised wound, there are two abrasions and multiple abrasions also found on the person of the deceased. 36. 35. Learned counsel for the appellants has further submitted that the prosecution story does not corroborate the medical evidence as apart from incised wound, there are two abrasions and multiple abrasions also found on the person of the deceased. 36. In this respect it is germane to point out that P.W.4 in his statement has categorically stated that the said abrasions noted on the person of the deceased may be result of dragging by the accused appellants ( batjh ua0 10 o 11 ykBh ls vkuk lEHko ugha gSA fxjus] jxM+us o ?klhVus ls vk ldrh gSA mNVrh gqbZ ykBh ls vk ldrh gS ). The said factum completely corroborates the prosecution story with the medical evidence in as much as it is the specific case of the prosecution that the deceased was first assaulted by lathi by the accused appellant Amar Singh and thereafter he was dragged by the accused appellant, Todi Singh and Girwar in the sugarcane field of Jaswant Singh where he was done to death due to which he received said injuries. The victim is said to have been assaulted by two surviving appellants by Kanta and the injuries found on the person of the deceased are the result of Kanta injuries. Thus, there is no ambiguity in the prosecution case qua the medical evidence and this argument of learned counsel for the appellants also does not have much substance. 37. Learned counsel for the appellants has further argued that there is no reason for the appellant,Todi Singh to have left his Tahmad, Kurta and shoes at the place of incident. As per the prosecution case, the said Tahmad, Kurta and shoes of the appellant, Todi Singh has been found at the place of incident and the Investigating Officer on the basis of recovery of the said had prepared the Fard recovery memo which has been proved as Exh. Ka 12 by the Investigating Officer. Leaving of the said articles at the place of incident by the accused appellant, Todi Singh depends upon the mental status of the accused which can not be explained by the prosecution and recovery of the said article from the place of incident clinchingly establishes the presence of the accused appellant at the time of incident in committing the crime and does not in any way materially effect the veracity of the prosecution story proved by two witnesses. Thus from the entire evidence adduced during the course of trial the prosecution has been able to prove its case beyond all reasonable doubt and the two surviving accused appellants caused injuries to P.W.2 Pitam Singh and in furtherance of the common intention of the accused appellant persons, namely Girwar and Todi Singh committed murder of Dulare. 38. Under the aforesaid circumstances, we are of the considered view that the trial court has rightly held the accused appellants, Todi Singh and Girwar vicariously liable for committing the murder of Dulare. Both appellants have rightly been convicted by the trial court and for the reasons mentioned above, we affirm the trial court judgment. 39. The appeal lacks merit and is liable to be dismissed and is hereby dismissed accordingly. 40. The appellants are on bail. Their bail bonds are canceled. The C.J.M. Shahjanpur shall cause the appellants Todi Singh and Girwar to be arrested and lodge them in jail to serve out the sentences. 41. Let the copy of this order be sent to learned trial court for information and necessary compliance. 42. The judgment is certified and placed on record