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2019 DIGILAW 2283 (ALL)

Jagdish v. State Of U. P.

2019-09-27

ALI ZAMIN, B.AMIT STHALEKAR

body2019
JUDGMENT : Ali Zamin, J. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the material on record. 2. This appeal has been filed by the appellants against the judgement and order dated 21.06.2005 passed in Sessions Trial No.193 of 2001 (State vs. Jagdish and others) under Section 307/34,302/34 I.P.C. and Sessions Trial No.194 of 2000, under Section 25 and 4/25 Arms Act, Police Station Sureer, District Mathura whereby the learned Additional Sessions Judge-IV, Mathura has acquitted the appellants Jagdish, Rajendra Singh and Vijay Kumar under Section 307/34 I.P.C., u/s 4/25 and 25 Arms Act and has convicted them under Section 302/34 I.P.C. and sentenced them to imprisonment for life with fine of Rs.10,000/- and in default of payment of fine further to undergo imprisonment for one year. 3. Briefly stated the facts of the case are that on 21.12.2000 at about 4:30 p.m., Mukesh, the informant, Rohitash Kumar (deceased), his wife Mamta, sister of the first informant, niece Kavita, Sanjay son of Sumer Singh, Naresh son of Shri Indrapal Singh, Rajkumar son of Sri Kishori Lal and others were sitting on a chabutra (elevated floor) outside the house of Rohitash and talking among themselves when the three accused, namely, Jagdish, Rajendra and Vijay Kumar came there armed with weapon in their hand and stating that they would teach him a lesson with regard to Pradhan elections all the three accused persons fired at Rohitash with intention to kill. Rohitash after receiving fire arm injury in order to save himself entered into the house of Sumer Singh running through Gully, assailants also entered into the house of Sumer Singh firing behind him and they killed him there. When they reached the house of Sumer Singh, they found Rohitash lying dead and the assailants, the appellants herein, fled away firing at them with intention to kill them. 4. Informant Mukesh Kumar got scribed the report Ext.Ka-1 by Satya Deo (P.W.5) and handed it over to the police station Sureer, District Mathura, on the basis of the written report (Ext.Ka-1), chik F.I.R. Ext.Ka-19, Case Crime No.149/2000, under Sections 302,307/34 I.P.C. was registered on 22.12.2000 at 19:00 P.M. Investigation of the case was entrusted to S.H.O. Sri Shiv Kumar Singh. On the instruction of the Investigating Officer Shiv Kumar Singh, P.W.8 S.I. S.N. Singh prepared inquest report (Ext.Ka-5) of the deceased Rohitash Kumar. On the instruction of the Investigating Officer Shiv Kumar Singh, P.W.8 S.I. S.N. Singh prepared inquest report (Ext.Ka-5) of the deceased Rohitash Kumar. He also prepared relevant documents for post-mortem and dispatched the dead body for post-mortem along with Constable Shiv Kumar and Jayanti Prasad. 5. Dr. V.S. Agnihotri (P.W.7) conducted autopsy on the dead body of the deceased Rohitash on 23.12.2000 at 3:20 P.M. and prepared report (Ext.Ka-4), according to which following injuries were found on the person of the deceased: 1. Incised wound 1 c.m. X .3 c.m. X .4 c.m. left side middle of neck. 2. Incised wound 1.5 c.m. X .3 c.m. X .3 c.m. right side of the neck on the lower part. 3. Incised wound 1.5 c.m. X .3 c.m. X .3 c.m. on the upper part of the right shoulder. 4. Incised wound 3 c.m. X 1 c.m. X cavity deep on the right side of intestine mid wall 3 c.m. below the sub- costa margin. 5. Incised wound 2 c.m. X .8 c.m. muscle deep towards right of the chest above the 10th and 11th rib. 6. Incised wound 2.5 c.m. X 1 c.m. muscle deep in front of chest above the 8th and 9th rib. 7. Incised wound 2.5 c.m. X 1 c.m. X chest cavity deep over 6th and 7th rib. 8. Incised wound 1.5 c.m. X .5 c.m. X .4 c.m. in front of left middle finger. 9. Fire arm wound of entry .5 c.m. X .2 c.m. X .3 c.m. on left side back,8 c.m. from L-1 spine. In internal examination 6th,9th and 10th right side ribs were found fractured and right side lung was ruptured. In the opinion of P.W.7 Dr. V.S. Agnihotri injury no.1 to 8 are possible by knife. Injury no.9 is possible by fire arm like country-made pistol and injuries were sufficient to cause death. Death was one day old from the time of examination and it was possible at 4:30 P.M. in the evening of 22.12.2000. 6. The Investigating Officer took into his possession four live cartridges 315 bore, one empty cartridge 315 bore, two bullets in which one like 303 bore and one 315 bore from the place of incident and house of Sumer Singh and prepared memo (Ext.Ka-3). He took into his possession blood stained and plain earth from the place of dead body and prepared memo (Ext.Ka-2). He took into his possession blood stained and plain earth from the place of dead body and prepared memo (Ext.Ka-2). He also took all the accused in police custody remand on 19.01.2001 and recovered one country-made pistol and a knife on the pointing out of accused Jagdish from the clump of bulrushes situated at the south of the hydrent about 75 steps north of the culvert towards north of side walk of both canals in village Mehmoodgadhi. He also recovered a country-made pistol and a knife on the pointing out of accused Rajendra from the clump of bulrushes situated at the north of the hydrent and from nearby a knife was also recovered on the pointing out of accused Vijay Kumar. He prepared recovery memo (Ext.Ka-16), thereafter, he took into custody the accused persons under Section 25 and 4/25 Arms Act and prepared custody memo (Ext.Ka-18). On the basis of the recovery memo chik F.I.R. (Ext.Ka-21), Case Crime No.3/2001 and 4/2001 u/s 25 and 4/25 Arms Act against the accused Jagdish, Case Crime No.5/2001 and 6/2001 u/s 25 and 4/25 Arms Act against accused Rajendra and Case Crime No.7/2001 and 4/25 Arms Act against accused Vijay Kumar, was registered. 7. The Investigating Officer after completing the investigation in Case Crime No.149/2000 submitted charge sheet (Ext.Ka-16 under Section 302/307/34 I.P.C. against the accused Jagdish, Rajendra and Vijay Kumar before the court of C.J.M. The Investigating Officer of Case Crime No.3,4,5,6 and 7 of the year 2001, after completing the investigation in Case Crime No.7/2001 submitted charge sheet (Ext.Ka-26) u/s 4/25 Arms Act against accused Vijay Kumar. Charge sheet (Ext.Ka-27) in Case Crime No.6/2001 under Section 4/25 Arms Act and charge sheet (Ext.Ka-28) in Case Crime No.5/2001 under Section 25 Arms Act against accused Rajendra, charge sheet (Ext.Ka-29) in Case Crime No.3/2001 under Section 25 Arms Act and charge sheet (Ext.Ka-30) in Case Crime No.4/2001 under Section 4/25 Arms Act against Jagdish before C.J.M., who committed the accused for trial to the court of Session where Case Crime No.149/2001 was registered as a Session Trial No.193/2001 (State vs. Jagdish and others) and Case Crime Nos. 3/2001,4/2001,5/2001,6/2001,7/2001 were registered as Session Trial No.194/2001 wherefrom the above mentioned both trials were transferred to the court of Additional Session Judge-IV, Mathura for trial who framed charge under u/s 307/34 and 302/34 I.P.C. against the accused Jagdish, Rajendra and Vijai Kumar. 3/2001,4/2001,5/2001,6/2001,7/2001 were registered as Session Trial No.194/2001 wherefrom the above mentioned both trials were transferred to the court of Additional Session Judge-IV, Mathura for trial who framed charge under u/s 307/34 and 302/34 I.P.C. against the accused Jagdish, Rajendra and Vijai Kumar. He also framed charge u/s 4/25 and 25 Arms Act against accused Jagdish and Rajendra and u/s 4/25 Arms Act against accused Vijai Kumar. Accused denied the charge and claimed trial. 8. To prove its case prosecution has examined 12 witnesses. P.W.1 Mukesh Kumar, informant, P.W.2 Narendra Kumar @ Naresh, P.W.3 Km. Kavita, P.W.4 Ram Chander and P.W.5 Satya Deo are witnesses of fact while P.W.6 Constable Jayanti Prasad brought the dead body for post-mortem, P.W.7 Dr. V.S. Agnihotri conducted autopsy, P.W.8 S.I. S.N. Singh conducted inquest, P.W.9 H.C.P. Narendra Singh witness of recovery of arms, P.W.10 S.I. Hakim Singh scribe of chik F.I.R. and G.D., P.W.11 Netra Pal scribe of chik F.I.R. and G.D. under Section 25 Arms Act and 4/25 Arms Act, P.W.12 H.C.P. Ram Vir Singh I.O. of the Case Crime No.3,4,5,6,7 of 2001 under Section 25 and 4/25 Arms Act are formal witnesses. 9. After adducing prosecution evidence, the accused were examined under Section 313 Cr.P.C. in which they have stated that due to enmity of election of Pradhan they have been falsely implicated in the present case. Accused have produced D.W.1 Sahab Singh as defence witness. 10. After hearing the parties and scrutinising the evidence on record learned Additional Session Judge-IV, Mathura has passed the impugned judgement and order as disclosed in para 1 of the judgement. Hence this appeal. 11. Learned counsel for the appellants submits that P.W.5 Satya Deo and accused Vijay Kumar had contested the election of Pradhan, deceased Rohitash had not contested the election and he was only supporter of P.W.5 Satya Deo the winner of election. Satya Deo has stated that Rohitash did not do any special work for him. He was not his polling agent. Neither he blazed flags of Vijay Kumar nor he did quarrel with any supporter of Vijay Kumar, nor he stopped his voters going to poll. So, there is no motive for the appellants to commit the offence. He also submits that according to prosecution in the house of Sumer Singh deceased Rohtash was killed but as per inquest memo dead body has been found on chabutra of Sumer Singh. So, there is no motive for the appellants to commit the offence. He also submits that according to prosecution in the house of Sumer Singh deceased Rohtash was killed but as per inquest memo dead body has been found on chabutra of Sumer Singh. P.W.5 Satya Deo has stated that on 22.12.2000 at 7:00 P.M., he came seeing the dead body of Rohitash at that time dead body was at chabutra till then police had not come in the village, thus, from the evidence led by prosecution, place of incident is not established. He further submits that as per statement of Mukesh (P.W.1) deceased Rohtash died due to fire arm injury while P.W.-7 Dr. V.S. Agnihotri has found that there are eight incised wound and one injury of fire arm and no pellet or bullet was found from the injury, cause of death has been found shock and haemorrhage due to the injuries. Thus, from the prosecution evidence the alleged manner and mode of the incident is also not proved. He also submits that according to prosecution incident has been caused in the house of Sumer Singh and at that time his wife Savitri was present but she has not been produced by the prosecution which is fatal to the prosecution case. Lastly he submits that time of incident is alleged 4:30 P.M. on 22.12.2000 and as per F.I.R. information has been given to the police at 19:00 P.M. while P.W.1 Mukesh Kumar, informant has stated that report was scribed on the dictation of the villagers at 10:00 P.M. in presence of the police. He has also stated that daroga called him to the police station when it was less than one or two days to a month from the incident, where he got his signature on papers and he went to the police station for the first time when his signatures were obtained on papers which creates doubt regarding time of incident and giving information at the police station. There is also overwriting in the inquest memo in the column of distance of police station from the place of incident. There is also overwriting in the inquest memo in the column of distance of police station from the place of incident. In the column 18 has been made 16 while in chik F.I.R. distance of police station from the place of incident has been mentioned 15 kilometers, if F.I.R. was in existence and available at the time of preparing inquest memo of dead body, then such overwriting could not have been made. These anomalies make the F.I.R. anti-timed also. In fact Rohitash was killed somewhere outside the village by some unknown persons. Accused Vijay Kumar had contested the Pradhan election against P.W.5 Satya Deo, who barely won the election. Neither deceased Rohitash contested the election nor he was agent. Due to election enmity Vijay Kumar and his supporter Jagdish and Rajendra have been implicated falsely in the case. He prays that prosecution has miserably failed to prove its case beyond reasonable doubt against the appellants-accused. Learned Additional Session Judge-IV, Mathura without proper appreciation of evidence has passed the impugned judgement and order which is not sustainable and liable to be set aside. Appellants are liable to be acquitted. 12. On the contrary learned A.G.A. for the respondent-State, submitted that P.W.1 Mukesh, P.W.2 Narendra, P.W.3 Km. Kavita (niece of the deceased) have supported the prosecution version. P.W.4 Ram Chander, who is an independent witness has stated that on 23.12.2000 blood stained and plain earth were taken into possession by the Investigating Officer in his presence from the place where the dead body was lying in the room, inside the house of Sumer Singh. He has proved the two containers in which blood stained and plain earth were kept and sealed in his presence as material (Ext-4 and 5). He has also stated that when darogaji came, he kept the dead body on the door of Sumer Singh, but before the police came the dead body was in the house of Sumer Singh. From the testimony P.W.4 Ram Chander place of occurrence is established. The learned A.G.A. further submits that statement of P.W.1 Mukesh Kumar started on 10.07.2001 and was completed in five different dates on 12.09.2002. From the testimony P.W.4 Ram Chander place of occurrence is established. The learned A.G.A. further submits that statement of P.W.1 Mukesh Kumar started on 10.07.2001 and was completed in five different dates on 12.09.2002. Informant Mukesh Kumar supported the prosecution story with regard to time of incident and lodging report at police station but when he settled the marriage of his sister (wife of the deceased) then he retracted from his previous statement and stated that the report was scribed on the dictation of villagers in the presence of police after 2 to 3 hours of the incident and again stated the time as 10:00 P.M., which is liable to be discarded. He prays that from the evidence produced by the prosecution charge under Section 302/34 I.P.C. against the appellants-accused is fully proved and the learned Additional Sessions Judge-IV, Mathura has rightly convicted and sentenced the appellants-accused in which no interference is required by this Court and the appeal is liable to be dismissed. 13. The incident is alleged to have occurred on 22.12.2000 at 4:30 P.M. and as per Ext.Ka-19 its information has been given at 19:00 P.M. on the same day. P.W.1 Mukesh has stated that after he got report scribed by Satya Deo Singh, reported the incident to the police station and proved it as Ext.Ka-1. In cross-examination on 11.01.2002 he has stated that he himself scribed the report. He did not scribe the report by asking anyone but in cross-examination on 12.06.2002, he has retracted from his previous statement and has stated that the report was scribed by the villagers in presence of police. He does not know the name of anyone who scribed the report. He has further stated that after 2 to 3 hours of the incident and again stated that at 10:00 P.M. the report was scribed. He has also stated that after one or two days short of a month from incident darogaji called him and obtained his signatures on papers in the police station. On the recovery papers of country-made pistol and knife his signatures were obtained. First time he went to police station when his signatures were obtained on the papers. 14. He has also stated that after one or two days short of a month from incident darogaji called him and obtained his signatures on papers in the police station. On the recovery papers of country-made pistol and knife his signatures were obtained. First time he went to police station when his signatures were obtained on the papers. 14. In State of U.P. v/s Ramesh Prasad Misra and others, (1996) 10 SCC 360 , it has been held that it is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. 15. In K. Anbazhagan v/s Superintendent of Police, (2004) 3 SCC 767 , Hon'ble Supreme Court has held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. The finding of K. Anbazhagan vs. Superintendent of Police (supra) has been relied on by the Hon'ble Supreme Court in Ramesh and others vs. State of Haryana, (2017) 1 SCC 529 . 16. P.W.5 Satya Deo scribe of the report has stated that on the dictation of P.W.1 Mukesh, he has scribed the report on 22.12.2000 at about 5:00 P.M. at Khaira while returning from Delhi to his village and he had also proved it as Ext.Ka-1. He has denied the suggestion by defence that report was not scribed on dictation. From the cross-examination by defence nothing has been extracted, so that any adverse inference can be drawn that on dictation of P.W.1 Mukesh Kumar report was not scribed by him at about 5:00 P.M. on 22.12.2000 at Khaira. Thus, previous statement of P.W.1 Mukesh scribing report Ext.Ka-1 from P.W.5 Staya Deo is consistent with the prosecution case. 17. From the cross-examination by defence nothing has been extracted, so that any adverse inference can be drawn that on dictation of P.W.1 Mukesh Kumar report was not scribed by him at about 5:00 P.M. on 22.12.2000 at Khaira. Thus, previous statement of P.W.1 Mukesh scribing report Ext.Ka-1 from P.W.5 Staya Deo is consistent with the prosecution case. 17. P.W.10 Hakim Singh has stated that he was posted on 22.12.2000 at P.S. Sureer and he had registered chik F.I.R., Case Crime No.149/2000, under Section 302,307/34 I.P.C. on the basis of the written report of the informant Mukesh Kumar and proved it as Ext.Ka-19. He has also stated that he entered the case in G.D. No.32 on 22.12.2000 at 19:00 P.M. and proved it as Ext.Ka-20. He has further stated that he copied the same as was scribed in the written report and denied the suggestion that chik and G.D. have been scribed anti-time. He has also stated that two persons had come along with the informant. In G.D. Ext.Ka-20, it is mentioned that Sri Mukesh son of Bhudev Singh, resident of Jait, P.S. Vrindavan, District Mathura and other companion Rakesh son of Sukhveer Singh, Raju son of Kishori, resident of Mehmoodgadhi, P.S. Sureer, District Mathura came and handed over an application written and signed by Satya Deo. Defence has also cross-examined this witness, nothing has been elicited from his cross-examination, so that adverse inference can be drawn that P.W.1 Mukesh (informant of the case) had not gone to the police station on 22.12.2000 along with his companion Rakesh son of Sukhveer Singh and Raju son of Kishori, resident of Mehmoodgarhi, District Mathura and he did not hand over the written report to the witness. As such the testimony of P.W.1 Mukesh giving information of the incident to police station is also consistent with the prosecution case. 18. According to P.W.9 H.C.P. Narendra Singh, he recognizes the writing of Sri Shiv Kumar and has seen him writing and reading. He has died. 19. P.W.8 S.I. S.N. Singh has stated that he was posted at police station Sureer as S.I. on 23.12.2000 and on the instruction of Inspector Shiv Kumar he conducted the inquest of deceased Rohitash Kumar @ Pappu. He was posted with him and recognizes his hand writing. He has proved the spot map Ext.Ka-6 and other papers. He has died. 19. P.W.8 S.I. S.N. Singh has stated that he was posted at police station Sureer as S.I. on 23.12.2000 and on the instruction of Inspector Shiv Kumar he conducted the inquest of deceased Rohitash Kumar @ Pappu. He was posted with him and recognizes his hand writing. He has proved the spot map Ext.Ka-6 and other papers. In cross-examination he has stated that he cannot tell where the statement of the informant was taken. He can however tell seeing the case diary. He cannot tell whether the informant went from the police station by his own vehicle or how he went. Since, the Investigating Officer has died and this witness has not disclosed where statement of informant was recorded, in such a situation for this purpose case diary has to be seen and according to it informant and scribe of F.I.R. H.M. 65 Hakim Singh were present in the police station on 22.12.2000 and their statements were recorded at the police station from which also presence of the informant Mukesh at the police station is supported and prosecution evidence regarding presence of informant at the police station is consistent. 20. In view of the finding of Hon'ble Supreme Court in State of U.P. v/s Ramesh Prasad Misra and others, K. Anbazhagan vs. Superintendent of Police and Ramesh and others v/s State of Haryana (supra) and considering the statement of P.W.5 Satya Deo, P.W.10 Hakim Singh and close scrutiny of the statement of P.W.1 Mukesh, the statement of P.W.1 Mukesh given in the cross-examination before 12.06.2002 being consistent with the prosecution case is convincing and reliable that he got scribed the report Ext.Ka-1 from P.W.5 Satya Deo and reported the incident on 22.12.2000 at 19:00 P.M. to police station Sureer, District Mathura going along with aforesaid Rakesh and Raju and the statement given on 12.06.2002 that after one or two days short of month the daroga called him and obtained his signatures on papers and first time he went to the police station when his signatures were obtained on the papers and written report Ext.Ka-1 was scribed on dictation of villagers in presence of police are neither consistent nor convincing nor acceptable. Bestowing our consideration on the whole statement of P.W.1 Mukesh Kumar as well as P.W.5 Satya Deo, P.W.10 Hakim Singh and documents available on record, as discussed above, in our opinion, from prosecution evidences, it is established that the written report Ext.Ka-1 was scribed by P.W.5 Satya Deo on the dictation of P.W.1 Mukesh which was given by him at the police station going along with Rakesh and Raju and as such we find no force in the contention of learned counsel for the appellants that the time of incident and giving information at the police station is in any manner doubtful. 21. As per F.I.R. Ext.Ka-19 the distance of the police station from the place of incidence is 15 kilometers. In cross-examination P.W.8 S.I. S.N. Singh has stated that in the body of the inquest memo initially 18 kilometers was written but subsequently 16 kilometers is written correctly. He has also stated that while preparing inquest memo chik F.I.R. was with him and he had read it and he has denied the suggestion of defence that in inquest memo and other papers blank space were left for crime number and sections. On going through the inquest memo, we find that it has been prepared in the same hand writing and ink. Although, he has stated that he read the chik F.I.R. but from his statement it is not clear that while reading the chik F.I.R. he entertained the distance of police station from the place of incident mentioned in it. It appears that by mistake in the inquest memo Ext.Ka-5 regarding the distance of police station from the place of incident previously 18 kilometers and subsequently 16 kilometers has been recorded. Contention of the learned counsel for the appellants also does not appeal to us for the reason that if the F.I.R. was not with the witness P.W.8 S.I. S.N. Singh and blank spaces were left in the inquest memo and other papers for crime number and sections, in that condition distance 15 kilometers as recorded in the F.I.R. Ext.Ka-19 should have been recorded in the inquest memo Ext.Ka-5 in place of subsequent recording it as16. 22. 22. Thus, upon considering the evidences led by the prosecution as discussed above, we also find no substance in the contention of the learned counsel for the appellants that as per F.I.R. distance of police station from the place of incident is 15 kilometers and there is overwriting in the column of distance of police station from the place of incident in the inquest memo, so the F.I.R. is anti-timed. 23. P.W.5 Satya Deo has stated that he is the present by elected Pradhan of village Amanallapur (Mahmoodgadhi) and accused Vijay Kumar was defeated in the last election. He has admitted that Rohitash was his supporter who was not his polling agent. He did not do any special work for him. Rohitash did not set blazed any flag of Vijay Kumar nor quarrelled with his supporters. He also did not stop his voters going to poll. In view of the statement of P.W.5 Satya Deo apparently it appears that the act and conduct of the deceased was not such as to impel the accused Vijay Kumar, defeated candidate of Pradhan election, to bear enmity towards him. 24. In the case of Praful Sudhakar Parab v/s State of Maharashtra, (2016) 12 SCC 783 , the Hon'ble Supreme Court has held that motive for committing a crime is something which is hidden in the mind of the accused and it has been held by this Court that it is an impossible task for the prosecution to prove what precisely have impelled the murderer to kill a particular person. 25. In State of H.P. v/s Jeet Singh, (1999) 4 SCC 370 , the Hon'ble Supreme Court in para 33 has held as under: "No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended." 26. In Rajagopal vs. Muthupandi @ Thavakkalai and others, (2017) 11 SCC 120 , the Hon'ble Supreme Court has held that motive need not be established where direct evidence is available and in the case of Rajesh Govind Jagesha vs. State of Maharashtra, (1999) 8 SCC 428 , the Hon'ble Supreme Court has held that "motive" in a criminal case based on ocular testimony of witnesses is not at all relevant. 27. In the instant case prosecution version is that on 22.12.2000 at 4:30 P.M. informant Mukesh, deceased Rohitash Kumar his sister Mamta, niece Kavita, Savita, Sanjay, Naresh, Rajkumar and others were talking among themselves sitting on the chabutra outside the house of Rohitash. At that time the accused persons came and stating that they would teach lesson of Pradhan election fired at him. From which it is clear that the incident is of the day hours and it happened in the presence of witnesses, as such it is a case of direct evidence. In view of the opinion of the Hon'ble Supreme Court in the case of Rajagopal v/s Muthupandi @ Thavakkalai and others and Rajesh Govind Jagesha v/s State of Maharashtra (supra) in the instant case motive need not be established and motive is not at all relevant. 28. Apart from it as per F.I.R. Ext.Ka-1 accused persons stating that they would teach the deceased a lesson with regard to Pradhan election fired at him which has been supported by P.W.2 Narendra Kumar also through his testimony. According to P.W.5 Satya Deo deceased Rohitash was his supporter and as per statement of accused Vijay Kumar under Section 313 Cr.P.C. P.W.5 Satya Deo barely won the election. All accused have stated that due to Pradhan election they have been implicated falsely. Deceased Rohitash is said to be supporter of elected Pradhan P.W.5 Satya Deo, accused Vijay Kumar is the defeated candidate of Pradhan and accused Jagdish and Rajendra are his supporters, thus, deceased Rohitash being supporter of P.W.5 Satya Deo winner of Pradhan election there appears an ire of Pradhan election for the accused towards the deceased. Deceased Rohitash is said to be supporter of elected Pradhan P.W.5 Satya Deo, accused Vijay Kumar is the defeated candidate of Pradhan and accused Jagdish and Rajendra are his supporters, thus, deceased Rohitash being supporter of P.W.5 Satya Deo winner of Pradhan election there appears an ire of Pradhan election for the accused towards the deceased. As such, in view of the opinion of Hon'ble the Supreme Court in State of H.P. v/s Jeet Singh (supra) we find that prosecution succeeded in proving an ire of Pradhan election for the accused towards the deceased to impel them to commit the offence. Accordingly, we do not find substance in the contention of learned counsel for the appellants also that there is no motive against the appellants to commit the offence. 29. P.W.5 Satya Deo in his cross-examination has stated that he came seeing the dead body of Rohitash on 22.12.2000 at 7:00 P.M., at that time the dead body was kept on the chabutra till then police had not come in the village while P.W.4 Ram Chander has stated in the cross-examination that he met the daroga at 8:00 P.M. on the day of incident and next day morning at 8:00 A.M. When the daroga came, he kept the dead body of Rohitash at the door of Sumer Singh. Thus, according to P.W.5 Satya Deo, dead body of the deceased Rohitash was lying at the chabutra before coming of the police while as per statement of P.W.4 Ram Chander police came and kept the dead body on the chabutra. Hence, there is contradiction in the statement of both witnesses regarding keeping the dead body of deceased Rohitash on the chabutra. So, we have to look for other evidences in this regard. 30. P.W.4 Ram Chander has stated that Rohitash was murdered and Investigating Officer on 23.12.2000 collected blood stained and plain earth from the place of incidence, in the room inside the house of Sumer Singh sealed and stamped in his and Pradhan Satya Deo's presence; prepared memo and obtained their signatures on the memo, and has proved it as Ext.Ka-2. P.W.5 Satya Deo has also stated that Investigating Officer taking into his possession the blood stained and plain earth from the place of incidence in his and Ram Chander's, presence, prepared the memo and after reading out to him obtained his signature and thumb impression of Ram Chander. P.W.5 Satya Deo has also stated that Investigating Officer taking into his possession the blood stained and plain earth from the place of incidence in his and Ram Chander's, presence, prepared the memo and after reading out to him obtained his signature and thumb impression of Ram Chander. He has also proved the recovery memo as Ext.Ka-2. From the cross-examination by defence of both witnesses i.e. P.W.4 Ram Chander and P.W.5 Satya Deo, nothing has been extracted by which any adverse inference can be drawn that on 23.12.2000 the blood stained and plain earth was not taken in the presence of the witnesses from the place of incidence, in the room inside the house of Sumer Singh and it's recovery memo Ext.Ka-2 was not prepared. 31. P.W.8 S.I. S.N. Singh has stated that he prepared the inquest memo of deceased Rohitash on the instruction of Inspector Shiv Kumar. In cross-examination he has stated that he had gone to the place of incidence, when police party reached the spot the dead body was kept outside of the house on the chabutra. He has specifically stated that murder of deceased was committed in the house of Sumer Singh; before inquest of the dead body he did not ask from the informant or any other person as to who brought the dead body on chabutra from the place of occurrence. He has also stated that he had taken the blood stained and plain earth from the place of occurrence. From the cross-examination of this witness too nothing has been extracted by defence, so that his statement regarding taking of blood stained and plain earth from the place of occurrence in the room inside the house of Sumer Singh as stated by P.W.4 Ram Chander and P.W.5 Satya Deo also can be doubted. In Ext.Ka-2 recovery memo of blood stained and plain earth, it is mentioned that in the presence of witnesses Satya Deo and Ram Chander in Case Crime No.149/2000, under Section 302/207 I.P.C. blood stained and plain earth were taken into police custody from the room inside the house of Sumer Singh (uncle of the deceased), kept in containers; were sealed and stamped, recovery memo was prepared, and signatures of witnesses were obtained. In the spot map Ext.Ka-6 proved by P.W.8 S.I. S.N. Singh, place-A has been shown where the murder of the deceased was committed, which is shown in the room inside the house of Sumer Singh. Prosecution evidence of P.W.4 Ram Chander, P.W.5 Satya Deo and P.W.8 S.I. S.N. Singh is consistent regarding taking of blood stained and plain earth from the room inside the house of Sumer Singh. P.W.1 Mukesh and P.W.2 Narendra Kumar have stated very categorically that after receiving fire arm injury, Rohitash entered the house of Sumer Singh and after following the accused they found Rohitash dead in the house of Sumer Singh. From their cross-examination nothing has been extracted. 32. In defence D.W.1 Sahab Singh has been produced to prove that Rohitash was murdered somewhere else and due to enmity of Pradhan election the accused have been implicated falsely in the case. Sahab Singh has stated that he and his brother were in their field, at about 7:00 P.M. in the evening when they heard sound of firing from the side of canal. They undertook it to be miscreants and came towards the village. When they reached close to the village they saw that people of the village are coming bringing Rohitash in a fire arm injured condition and they kept the dead body of Rohitash on the chabutra of pahalwan Sumer Singh. When the daroga came in the morning he told about it to him but in cross-examination by prosecution he has stated that he had not told the daroga but he had told about it to the police only. He has also stated that he is stating for the first time in court about telling the police. Thus, his statement being contradictory at the same stage and made first time in court is neither convincing nor believable. Contrary to it, the prosecution evidence regarding place of incidence in the house of Sumer Singh as discussed above is consistent, cogent, convincing and reliable. Although the statement of P.W.4 Ram Chander appears trustworthy that the daroga came and kept the dead body on the chabutra as the dead body was not in the house of deceased but it was in the house of some other person yet, if it is ignored, even then, the place of incident of deceased Rohitash is established in the room inside the house of Sumer Singh. Therefore, once the place of incidence is established in the room inside the house of Sumer Singh then who kept the dead body on chabutra outside the house of Sumer Singh will not carry much importance and it will not affect the prosecution case. Accordingly, we also find no substance in the contention of learned counsel for the appellants that place of incidence is not established. 33. In cross-examination P.W.1 Mukesh has stated that he knew that death occurred due to fire arm shooting injury. According to medical report Ext.Ka-4 proved by P.W.7 Dr. V.S. Agnihotri, a fire arm wound of entry .5 c.m. x .2 c.m. x .3 c.m. on left side back,8 c.m. from L-1 spine and two on neck, one on upper part of shoulder, one on intestine mid, three on chest and one on left middle finger, incised wounds have been found. In internal examination 6th,9th and 10th right side ribs were found fractured and right side lung was ruptured. Injuries were sufficient to cause death. P.W.7 Dr. V. S. Agnihotri has stated that injury no.9 can be possible by fire arm and in injury no.9 no pellet or bullet was found. Since, depth of the injury was less, so it was not thought proper to have x-ray for search of pellets. In view of nature of injury no.9 as opined by doctor, it may not be the cause of death of the deceased Rohitash. 34. As per written report Ext.Ka-1 deceased Rohitash after receiving fire shot injury entered into the house of Sumer Singh in order to save his life; the assailants also entered into the house of Sumer Singh and killed him there and fled away firing at the informant and others. After the accused persons left, the informant P.W.1 Mukesh and others on going inside the house found the dead body of Rohitash. P.W.1 Mukesh has deposed in support of Ext.Ka-1, the written report and has stated that when Rohitash stepping down from the chabutra started running, the accused persons started firing. Rohitash received fire arm injury and entered into the house of Sumer Singh. The accused also entered into the house of Sumer Singh behind Rohitash. The accused fled away after coming out from the house of Sumer Singh firing upon them. Rohitash received fire arm injury and entered into the house of Sumer Singh. The accused also entered into the house of Sumer Singh behind Rohitash. The accused fled away after coming out from the house of Sumer Singh firing upon them. When the informant and his sister went inside the house of Sumer Singh after 10-15 minutes, they found the dead body of Rohitash. In cross-examination by defence nothing has been extracted so that the statement of P.W.1 Mukesh can be doubted. 35. P.W.2 Narendra Kumar @ Naresh has also stated that on 22.12.2000 at 4:30 P.M. he was sitting on the chabutra of Rohitash. Rohitash, his brother in law Mukesh, wife Mamta, niece Kavita, Savita, Sanjay and Raj Kumar were also sitting there. Rohitash was talking with Mukesh when at that time accused Jagdish, Rajendra and Vijay Kumar of the village came carrying country made pistols in their hand and addressed Rohitash to teach him lesson of Pradhan election. On exhortation of the accused Rohitash fled away towards the gully; the accused chased and fired at him, shot of Jagdish hit in the waist of Rohitash. In order to save his life Rohitash entered into the house of Sumer Singh. The three accused also entered into the house of Sumer Singh behind him, going there the accused persons inflicted knife injuries. The incident was witnessed by him, Kavita, Mukesh and Savitri wife of Sumer Singh. On their alarm the accused persons fled away and on going near Rohitash found him dead. Although, the witness has exaggerated in respect of witnessing the incident while causing knife injuries by the accused but from cross-examination by defence on material point like while sitting on chabutra coming of accused having country-made pistols in their hand; stating that they would teach lesson of Pradhan election; fleeing of deceased towards gully; while fleeing Rohitash being fired upon by accused persons and on receiving fire injury, entering into house of Sumer Singh; entering of accused also into the house of Sumer Singh behind Rohitash and after fleeing away the accused persons finding dead body of Rohitash in the house of Sumer Singh, his testimony is intact. 36. P.W.3 Km. 36. P.W.3 Km. Kavita has also supported the prosecution version through her testimony and from her cross-examination by defence too nothing has been extracted, so that her testimony regarding her presence on 22.12.2000 at 4:30 P.M. on the chabutra along with deceased Rohitash, Mukesh, Narendra, Mamta at that time coming of accused persons having country-made pistols in their hand; accused stating to teach lesson of Pradhan election to Rohitash; while fleeing Rohitash being fired upon by accused and on receiving fire injury his fleeing towards house of Sumer Singh can be doubted. 37. Thus the evidence of P.W.1 Mukesh, P.W.2 Narendra Kumar and P.W.3 Km. Kavita is consistent, corroborated by each other, convincing and reliable that on 22.12.2000 at 4:30 P.M. when deceased Rohitash was sitting on the chabutra along with Mukesh, wife Mamta, Kavita, Savita, Sanjay and Raj Kumar and talking among themselves, accused persons came having pistols in their hand and stated to teach him lesson of Pradhan election when Rohitash fled in the gully they fired at him and on receiving fire arm injury on his waist, he entered into the house of Sumer Singh, the accused persons also entered into the house of Sumer Singh and when they fled away dead body of Rohitash was found in the house of Sumer Singh. 38. P.W.4 Ram Chander, P.W.5 Satya Deo and P.W.8 S.I. S.N. Singh have supported the fact that dead body of Rohitash was lying in the room inside the house of Sumer Singh. Since, the incident has occurred in a room and the place in room will not be visible from outside as depicted in spot map Ext.Ka-7 but before entering into the house of Sumer Singh, it is the consistent case of the prosecution that the accused persons had fired at Rohitash and receiving fire arm injury is supported by medical report Ext.Ka-4 proved by P.W.7 Dr. V.S. Agnihotri also, in such circumstances, not mentioning knife injury in Ext.Ka-1 will not be fatal to the prosecution case which has been explained by P.W.1 Mukesh Kumar also through his statement, in his cross-examination as he has stated that he has not mentioned knife in his report no one told him about knives. V.S. Agnihotri also, in such circumstances, not mentioning knife injury in Ext.Ka-1 will not be fatal to the prosecution case which has been explained by P.W.1 Mukesh Kumar also through his statement, in his cross-examination as he has stated that he has not mentioned knife in his report no one told him about knives. He has also stated that he had seen the accused persons firing shot and he had also seen the shot hitting Rohitash @ Pappu that is why he had written in the report about shot fired by accused persons at Rohitash @ Pappu. Since the accused persons fired at the deceased Rohitash before his entering into the house of Sumer Singh and Rohitash received fire shot injury, accused persons also entered into the house of Sumer Singh behind him and soon after the accused persons fled away, deceased Rohitash was found dead by informant P.W.1 Mukesh and P.W.2 Narendra Kumar. In such a situation the inescapable inference will be that it is the accused persons who have caused death of deceased Rohitash. The place of incidence being not visible from outside the house and injury by knife being possible non mentioning of knife injury as explained by P.W.1 Mukesh Kumar also as discussed above, in the facts and circumstances of this case as well as aforesaid discussion and injury no.9 being fire arm injury in Ext.Ka-4, it cannot be said that the manner and mode of the incident has not proved. 39. P.W.2 Narendra Kumar @ Naresh has stated that the incident was witnessed by him, Mukesh (brother-in-law of Rohitash), Savitri (wife of Sumer Singh) and Kavita (daughter of Dinesh). Prosecution has not produced Savitri as a witness. 40. In Krishna Mochi vs. State of Bihar, (2002) 6 SCC 81 , the Honble Supreme Court has held as under: "It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power." 41. Prosecution has produced informant P.W.1 Mukesh Kumar, P.W.2 Narendra Kumar @ Naresh and P.W.3 Km. Kavita who were present at the time the incident occurred. In view of the opinion of the Hon'ble Supreme Court in Krishna Mochi v/s State of Bihar (supra) and witnesses of fact produced by prosecution as discussed above non production of witness Savitri Devi will not affect the prosecution case, as such non-production of Savitri Devi will not be fatal to the prosecution case. Accordingly, there is no force in the contention of learned counsel for the appellants. 42. In view of the above discussion, it is established that on account of Pradhan election, there was an ire of Pradhan election for the accused persons against the deceased to commit the murder. It is a day light case of direct evidence. P.W.1 Mukesh, P.W.2 Narendra @ Naresh and P.W.3 Km. Kavita are the eye witnesses of the incident who have supported the case which is also corroborated by the medical and formal evidence. 43. Therefore, on a conspectus of facts and analysis of the evidence on record, we do not find any illegality or infirmity in the judgement and order of the trial court dated 21.06.2005 passed by the Additional District Judge-IV, Mathura in Sessions Trila No.193 of 2001 (State v/s Jagdish and others) under Section 307/34,302/34 I.P.C. and Sessions Trial No.194 of 2000 under Section 25 and 4/25 Arms Act, Police Station Sureer, District Mathura. 44. The appeal fails and is accordingly dismissed. The conviction and sentences awarded by the trial court are upheld. 45. The appellants no.2 and 3, Rajender Singh and Vijay Kumar respectively are on bail. The C.J.M., Mathura is directed to take the appellants no.2 and 3 in the above case into custody forthwith and send them to jail to serve out the sentence, as awarded by the trial court and affirmed by us. 46. 45. The appellants no.2 and 3, Rajender Singh and Vijay Kumar respectively are on bail. The C.J.M., Mathura is directed to take the appellants no.2 and 3 in the above case into custody forthwith and send them to jail to serve out the sentence, as awarded by the trial court and affirmed by us. 46. So far as the appellant no.1 Jagdish is concerned, he is already in jail. He shall be kept there to serve out the sentence as awarded by the trial court and affirmed by us in the above case. Office is directed to send a copy of this order to the court concerned within a week for compliance.