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2019 DIGILAW 2641 (ALL)

Rajwa v. State of U. P.

2019-11-26

PRADEEP KUMAR SRIVASTAVA

body2019
JUDGMENT : 1. Heard Sri Apul Misra, Ms. Shilpa Ahuja and Sri N.K. Mishra, learned counsel for the appellants, Sri Rakesh Kumar Gupta, learned counsel for the complainant and Sri M. P. Singh Gaur, learned A.G.A. for the State. 2. This criminal appeal has been filed against the judgment and order dated 04.05.1996, passed by Additional Sessions Judge, Hamirpur, in Sessions Trial No. 179 of 1990 (State vs. Rajwa and others), arising out of Case Crime No. 137 of 1988, Police Station Kabrai (Hamirpur), District Mahoba by which the appellants Rajwa, Shiva Narain, Babu Lal, Sipahi Lal, Pragi Lal and Lalloo have been convicted and sentenced for the offence under Section 147 I.P.C. for six months rigorous imprisonment each, for the offence under Section 304/149 I.P.C. for ten years rigorous imprisonment along with fine of Rs. 2000/each and in default of fine six months additional imprisonment and for the offence under Section 323/149 I.P.C. for six months rigorous imprisonment along with fine of Rs. 500/each and in default of fine one month additional imprisonment. The accused-appellant Pragi Lal has also been convicted and sentenced for the offence under Section 148 I.P.C. for six months rigorous imprisonment. However, accused persons Nanna and Bachcha have been acquitted by the learned trial court. 3. It appears that accused-appellant no. 4 namely Sipahi Lal has died and his appeal has been abated by the order dated 16.08.2019. 4. Brief facts of the case is that on 29.07.1988 at about 5 to 6 P.M. Rishi Ram had gone for natural call and Rameshwar, the another brother of informant Mewa Lal was returning after natural call. At the moment, he reached at the door of Sipahi Lal, the accused persons Rajwa, Shiva Narain, Sipahi Lal, Pragi Lal, Bachcha, Nanna, Lalloo and Babu Lal carrying spade and lathi in their hands met and said to Rishi Ram that Chunwadia, the daughter of Kalloo has been defamed by them. Rishi Ram and Rameshwar refused having done so, whereupon the accused persons started beating both of them. On hue and cry being raised, the informant Mewa Lal, Dwarika and Punna reached there and they were also beaten by the accused persons by spade and lathi. The witnesses Murli, Ram Das and others reached there on hearing noise. Mewa Lal lodged the first information report at Police Station Kabrai on 29.07.1988. On hue and cry being raised, the informant Mewa Lal, Dwarika and Punna reached there and they were also beaten by the accused persons by spade and lathi. The witnesses Murli, Ram Das and others reached there on hearing noise. Mewa Lal lodged the first information report at Police Station Kabrai on 29.07.1988. The injured persons Punna, Mewa Lal, Rameshwar, Dwarika and Rishi Ram were medically examined in Primary Health Centre, Kabrai. Seeing the serious conditions of all the injured persons, they were sent to District Hospital, Hamirpur. Finding the condition of Rishi Ram more serious, he was referred from District Hospital to Kanpur Helat Hospital, where, on 1.08.1988 Rishi Ram died during treatment because of the injuries caused by the accused persons on the date of incident. 5. Alleging motive, it was stated in the first information report that in respect of Chunuwadia, a Panchayat took place in the village but nothing was decided and her illicit relations with accused Rajwa remained a rumour and the accused persons were of the opinion that she is being scandalized because of Rishi Ram and Rameshwar and they had inimical relation with them. 6. On information of death of Rishi Ram in Helat Hospital, the police came and prepared inquest report on 1.08.1988 and with necessary paper, the dead body was sent for postmortem to District Hospital, Kanpur. The postmortem was conducted at about 04:00 P.M. and the postmortem report was prepared. On the death of Rishi Ram on 18.08.1988, the Investigating Officer made addition of Sections 147, 148 and 304 I.P.C. and the investigation was started. The I.O. recorded the statements of the witnesses, prepared site map and thereafter submitted charge sheet under sections 147, 148, 323, 324, 304 I.P.C. against all the accused persons. 7. Charges were framed against the accused persons for the offences under Section 147, 302/149, 324/149 I.P.C. and against accused Pragi Lal, charge was also framed under Section 148 I.P.C.. The prosecution examined as many as seven witnesses and documents Exhibits Ka1 to Ka13 were proved by the prosecution witnesses. The statements of the accused persons were recorded under Section 313 Cr.P.C., who did not give any evidence in defence. They, however, stated that the statements given by the witnesses were false and because of enmity, they have been falsely implicated in the present case. The statements of the accused persons were recorded under Section 313 Cr.P.C., who did not give any evidence in defence. They, however, stated that the statements given by the witnesses were false and because of enmity, they have been falsely implicated in the present case. After hearing the prosecution and defence side, the learned trial court passed the impugned judgment and convicted and sentenced the accused-appellants. 8. Feeling aggrieved by the impugned judgment, the present criminal appeal has been filed challenging the impugned judgment on the ground that the conviction and sentence is against the weight of evidence available on record. The sentence is too severe and the learned trial court did not consider the evidence on record properly. Therefore, the impugned judgment is liable to be set aside and the accused-appellants are entitled for acquittal. 9. PW1 Mewa Lal (informant and eye witness) has stated that the accused persons Rajwa, Shiva Narain, Sipahi Lal, Pragi Lal, Bachcha, Nanna, Lalloo and Babu Lal belong to his village and he knows them and they are present in the court. Accused Shiva Narain and Babu Lal are sons of accused Rajwa, whereas, accused Nanna and Bachcha are sons of the maternal uncle of Rajwa. Sipahi Lal is cousin brother of Rajwa and accused Lalloo is brotherinlaw of Rajwa, whereas, accused Pragi Lal is close companion of Rajwa. The witness has stated that the deceased Rishi Ram was his real brother and at about 6 A.M. in the morning on the date of incident when he was going for natural call and his brother Rameshwar was coming back and when both reached in front of the house of accused Sipahi Lal, he came out and on his door, all the accused persons were present with lathi in their hands whereas Pragi Lal was having a spade. They were talking about the conduct of Rishi Ram and Rameshwar making allegations that they are defaming them. When both denied accused persons Nanna and Bachcha kept standing there, whereas other accused persons namely Rajwa, Shiva Narain, Sipahi Lal, Pragi Lal, Lalloo and Babu Lal started beating Rishi Ram and Rameshwar by lathi and spade. On hue and cry, Mewa lal, his father Punna and his brother Dwarika reached there and tried to prevent accused persons but the accused persons also started beating them and caused injuries to them. On hue and cry, Mewa lal, his father Punna and his brother Dwarika reached there and tried to prevent accused persons but the accused persons also started beating them and caused injuries to them. Witnesses Murli and Ram Das reached there and saw the incident. He lodged the first information report which is Ext. Ka1. They were sent to hospital by police where they were medically examined. Injured persons including Rishi Ram were referred to District Hospital. Rishi Ram was more serious, hence, he was referred to Helat Hospital, Kanpur, where he died on 01.08.1988 because of the injuries caused by the accused persons. The witness has also stated about the Panchayat which took place in respect of Chunuwadia, the daughter of Kalloo and Rajwa having illicit relations. The accused persons were suspecting Rishi Ram and Rameshwar were scandalizing Chunuwadia. In crossexamination, he has stated that no injury was caused by spade by Pragi Lal to him. By spade Rameshwar and Dwarika sustained injuries. Punna did not suffer any injury of spade. 10. PW2 Rameshwar has also supported the statement of PW1 Mewa Lal and has stated that when he was going for natural call and Rishi Ram was returning back, in front of the door of Sipahi Lal, the accused persons carrying a lathi and accused Pragi Lal with a spade met there and on account of rumour defaming Chunuwadia, they all started beating Rishi Ram. When Mewa Lal, Dwarika and Punna reached there, they were also beaten. Witnesses Murli and Ram Das reached there who saw the incident. The injured persons were taken to hospital, where they were medically examined in Primary Health Centre, Kabrai and thereafter they were sent to District Hospital, Hamirpur. The condition of Rishi Ram was being more serious, hence he was referred to Helat Hospital, Kanpur, where he died. The witness also stated that Murli and Ram Das have come in collusion with the accused persons and they are not prepared to give evidence against them. 11. PW3 Dr. M. L. Verma examined injured Rishi Ram on 29.07.1988 at PHC, Kabrai at 10 A.M. and found following injuries on his body: 1. Lacerated wound 1.5 cm. X 0.5 cm. X bone deep at head in left side in parietal region, 7 cm. above left ear. The injury was crushed and lacerated in irregular way and on touching, the injury was bleeding. 2. Lacerated wound 1.5 cm. X 0.5 cm. X bone deep at head in left side in parietal region, 7 cm. above left ear. The injury was crushed and lacerated in irregular way and on touching, the injury was bleeding. 2. Contusion 8 cm. X 4 cm. on left side on forehead above left eyebrow. There was swelling and redness in the eyes. Xray was advised. 3. Incised would 1.5 cm. X 0.5 cm. X 0.2 cm. on left forearm in the middle and on the outer side, 12 cm. below the left joint elbow. Clean cut, fresh and slant. 4. Contusion 10 cm. X 3 cm. on left thigh in the middle and outer side. 20 cm. above the left knee joint, red in colour and swelling was present. 5. Contusion 6 cm. X 3 cm. on forehead in the left side. 4 cm. below the injury no. 1, colour redish, swelling was present, Xray was advised. 6. Contusion 6 cm. X 3 cm. on the right side of head behind temporal region. 4 cm. above the right ear, redish and swelling was present in slant, Xray was advised. According to doctor, injures no. 1, 2, 4, 5 and 6 were caused by blunt object like lathi and injury no. 3 was caused by sharp weapon like spade. The injured was unconscious at the time of medical. There was bleeding from his mouth and his condition was very poor. 12. On the same day at about 10:15 A.M. injured Rameshwar was also examined and following injuries were found on his body : 1. Crush injury 5 cm. X 1.5 cm. bond deep in the right side of head and parietal region, 13 cm. above the right ear, irregularly lacerated and crushed, bleeding was starting on touching the injury. Xray was advised. The injury was in the slant condition. 2. Abrasion 4 cm. X 3 cm. on the right side of face, 4 cm. above from the mouth angle. 3. Abrasion 10 cm. X 3 cm. on the joint of right shoulder. According to doctor injuries no. 2 and 3 were caused by blunt object and it was possible to have come by friction. Xray was advised in respect of injury no. 1. 13. On the same day at about 10:45 A.M., injured Dwarika was examined and following injuries were found on his body : 1. Crushed injury 8 cm. According to doctor injuries no. 2 and 3 were caused by blunt object and it was possible to have come by friction. Xray was advised in respect of injury no. 1. 13. On the same day at about 10:45 A.M., injured Dwarika was examined and following injuries were found on his body : 1. Crushed injury 8 cm. X. 1.5 cm. X bone deep on the right side of head on temporal region in slant position, above 8 cm. from the right ear. The edges of the injury was irregular and there was bleeding on touching the injury. 2. Crushed wound 4 cm. X 1.5 cm. X bone deep on the back side of head in the occipital area horizontally and 9 cm. away from injury no. 1. The edges of the injury was irregular and bleeding was present on touching the same. 3. Contusion 6 cm. X. 3.5 cm. on the 1/3 area of right forearm, 5 cm. Above the right joint. The injury was redish and swelling was present. Xray was advised. 4. Contusion 8 cm. X 3 cm. on the back of the joint of right shoulder, 3 cm. Behind the scapula. The injury was redish and swelling was present. According to doctor all the injuries wee caused by blunt object like lathi and were simple in nature. 14. On the same day at about 11:20 A.M., injured Punna was medically examined and following injuries were found on his body : 1. Lacerated wound 3 cm. X. 1.5 cm. X bone deep on the left side of head in the parietal region, 10 cm. above the left ear. The edges of the injury were irregular and badly crushed. Bleeding was present on touching the injury. The injury was in slant position. 2. Contusion 10 cm. X 9 cm. on the left forearm on the back side, 21 cm. below the left elbow joint. The injury was redish and Xray was advised. 3. Contusion 7 Cm. X 3 cm. in the right hand on the back of outer side of 1/3 forearm, 2 cm. above the wrist joint. Swelling was present. The injury was redish and Xray was advised. 4. Contusion 7 cm. X 3.5 cm. behind the right forearm, 6 cm. below the right elbow. Injury was redish, swelling was present and Xray was advised. 5. Contusion 7 cm. X 3 cm. above the wrist joint. Swelling was present. The injury was redish and Xray was advised. 4. Contusion 7 cm. X 3.5 cm. behind the right forearm, 6 cm. below the right elbow. Injury was redish, swelling was present and Xray was advised. 5. Contusion 7 cm. X 3 cm. outside the right hand and in the middle chest above the right elbow joint. 6. Abraded contusion 4 cm. X. 3 cm. above the right shoulder. The injury was redish and swelling was present. 7. Contusion 8 cm. X. 3 cm. behind the abdomen in slant position, 14 cm. below the scapula angle. The injury was redish, swelling was present and Xray was advised. According to doctor all the injuries were caused by blunt object like lathi and were simple in nature. 15. On the same day at about 12:15 P.M. injured Mewa Lal was examined and following injuries were found on his body : 1. Contusion 6 cm. X 4 cm. on the left side of the face on the angle of medieval bone, below 2.5 cm. from the left ear. The injury was redish, swelling was present and Xray was advised. 2. Contusion 8 cm. X. 3 cm. in the middle of right thigh, 2.5 cm. above the right knee joint. The injury was redish and swelling was present. 3. Contusion 11 cm. X. 3 cm. in the right thigh, 2 cm. Below the injury no. 2. The injury was redish and swelling was present. According to doctor all the injuries were caused by blunt object like lathi and were simple in nature. 16. The doctor has stated that the injuries of all the injured persons were found to be fresh and the same were possible to have been caused on 29.07.1988 at about 6 A.M. He has also proved the injury reports as Ext. no. Ka2 to Ka6. In the cross-examination, however, he has stated that the injuries of Rishi Ram are also possible at 3 to 4 A.M. in the morning. There was no incised wound to injured Rameshwar and Dwarika. Similarly, after seeing the postmortem report, the witness has stated during cross-examination that no incised wound is mentioned on the body of Rishi Ram. 17. In the cross-examination, however, he has stated that the injuries of Rishi Ram are also possible at 3 to 4 A.M. in the morning. There was no incised wound to injured Rameshwar and Dwarika. Similarly, after seeing the postmortem report, the witness has stated during cross-examination that no incised wound is mentioned on the body of Rishi Ram. 17. PW4 Surendra Bahadur Singh SI has stated that on 29.07.1988, he was deputed as S.I. in Police Station Kabrai and Case Crime No. 137 of 1988 was registered in his presence and he was assigned investigation on 03.08.1988. He has recorded the statements of witnesses Rameshwar, Dwarika, Punna and Murli and prepared the sitemap Ext. Ka7. On 29.07.1988, he obtained the postmortem report of Rishi Ram and copied the same in the case diary and accordingly an addition of offence under Section 304 I.P.C. was made. He could not get the Xray report on that date. On 10.10.1988, he recorded the statements of witnesses Ram Das and others and after completing the investigation, he submitted charge sheet. He has also stated that initially investigation was made by S.I. Ram Naresh Yadav and he recorded the statement of informant. The witness has also proved the GD as Ext. Ka9 by which the offence was modified and chik F.I.R. as Ext. Ka10 and G.D. report as Ext. Ka11 have also been proved by him. 18. PW5 Chandra Shekhar Gautam, Chief Pharmacist has stated that the postmortem of Rishi Ram was conducted by Dr. S.M. Agarwal in the mortuary of U.H.N. Hospital on 01.08.1988. Dr. S.N. Agarwal has died and since he worked with him and had seen him writing and signing, therefore, he has proved the postmortem report as Ext. Ka12. 19. From the perusal of postmortem report, it appears that the deceased Rishiram was aged about 43 years. Following antemortem injuries were found on the body of deceased: 1. Lacerated wound 2 cm x 2 cm x bone deep present on the right side of scalp in parietal region 5 cm above from left year. 2. Contusion on left eye (blackening) 5 cm x 2.5 cm. 3. Contusion on the right eye 3 cm x 2 cm (blackening). 4. Lacerated wound 1 cm x 0.5 cm on the left forearm 10 cm below elbow joint. The cause of death has been shown to be shock and hemorrhage resulted because of antemortem injuries. 2. Contusion on left eye (blackening) 5 cm x 2.5 cm. 3. Contusion on the right eye 3 cm x 2 cm (blackening). 4. Lacerated wound 1 cm x 0.5 cm on the left forearm 10 cm below elbow joint. The cause of death has been shown to be shock and hemorrhage resulted because of antemortem injuries. 20. PW6 and I.O. Ram Naresh Yadav has stated that on the date of incident he was given investigation of the offence. He copied the medical report in the case diary and arrested accused Nanna. Thereafter, SI S.B. Singh conducted the investigation. In his crossexamination, the witness has stated that he did not take statement of Chunuwadia. 21. PW7 Ram Narayan has stated that Rishi Ram died in Helat Hospital and the police of District Kanpur prepared the inquest report and other papers on which he also signed which is Ext. Ka13. 22. The submission of the learned counsel to the appellants is that all the witnesses examined by the prosecution are interested and related witnesses and none of the independent witnesses has been produced. The motive for the offence is not clear and confusing. On the same evidence, two accused persons have been acquitted. There is only one injury which can be said to be fatal and on vital part resulting in death of the deceased, but the learned trial court has convicted 6 persons for the offence under section 304 I.P.C.. The sentence is too severe. Only Pragilal has been said to be having spade, but he has been convicted for both the offence under section 147 and 148 I.P.C.. It has been also argued that the F.I.R. is delayed for which no explanation has been given by the prosecution. 23. So far as the delay in lodging the F.I.R. is concerned, the learned trial court has found on evidence that the F.I.R. was lodged in 34 hours from the time of incident on the same day. The police station was 21 km. away from the place of occurrence and 6 persons were injured of complainant side and they went to police station on bullockcart. Therefore, the learned trial court rightly concluded that in the facts and circumstances of the case, there was no delay in lodging F.I.R. 24. The police station was 21 km. away from the place of occurrence and 6 persons were injured of complainant side and they went to police station on bullockcart. Therefore, the learned trial court rightly concluded that in the facts and circumstances of the case, there was no delay in lodging F.I.R. 24. So far as motive for the offence is concerned, the learned trial court, after clarifying on the basis of statement of PW1, has pointed out that that the reason for the incident was the illicit relation between Rajawa and Chunuvadiya due to which she was enough scandalized and this brought bad name and frame to her and family. The mention of Chunuvadiya in F.I.R. and the expression 'badnami karni hai' was concluded by the learned trial court that it was not happily worded and it has come in the statement of informant that it was to indicate that the complainant side has scandalized her and it meant 'Chunuvadiya ko badnam kar diya hai' (Chunuvadiya has been scandalized) and in respect of it, a panchayat also took place in the village on the initiation of the accused persons 15 days before. It needs mention that Chunuvadiya is the sister of accused Pragi and it was a rumour in the village that she had illicit relation with accused Rajawa and accused persons believed that rumour has been spreaded by the complainant side in the village. Therefore, on the basis of evidence on record, the learned trial court found that this became a motive for this criminal incident. 25. Moreover, in a case based on direct evidence, the settled law is that existence or proof of motive is not necessary. In Saddik Vs. State of Gujarat, (2016) 10 SCC 663 , it has been held that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubt raised in this regard. If the eyewitnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. In a case of direct evidence the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubt raised in this regard. If the eyewitnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. It is pertinent to mention that where case is based on direct evidence it is not incumbent for the prosecution to allege or prove motive. It can, however, be pointed out that in this case, the motive has been alleged and proved by the prosecution. 26. In the case in hand, the prosecution has examined PW1 Mewalal and PW2 Rameshwar who are eyewitnesses and injured witnesses and they have supported the prosecution version and have stated that they saw the whole incident and the accused persons also caused injuries to them. The submission of the learned counsel for the appellant is that both these witnesses are related and highly interested witnesses as they are the brothers of the deceased. The law in this regard is well settled that the testimony of a witness cannot be discredited only on the ground that the witnesses are related or interested. The only requirement is that the testimony of such witness should be scrutinized cautiously and carefully. Thus, In Masalti V. State of U.P. ( AIR 1965 SC 202 ) Supreme Court Observed: “But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.” 27. The above observation has been affirmingly quoted in subsequent judgments. Thus, for instance, in M.C. Ali v. State of Kerala : AIR 2010 SC 1639 ; and Himanshu v. State (NCT of Delhi) (2011) 2 SCC 36 : (2011) 1 SCC (Cri) 593, (Bhajan Singh and others Vs. State of Haryana; (2011) 7 SCC 421 , it was laid down that evidence of a related witness can be relied upon provided it is trustworthy. State of Haryana; (2011) 7 SCC 421 , it was laid down that evidence of a related witness can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinized and appreciated before reaching to a conclusion on the conviction of the accused in a given case. 28. Again in Jayabalan vs. U.T. of Pondicherry; 2010(68) ACC 308 (SC), Jalpat Rai v/s State of Haryana AIR 2011 SC 2719 and Waman v/s State of Maharashtra AIR 2011 SC 3327 , it was observed that the over-insistence on witnesses having no relation with the victims often results in criminal justice going away. The testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case, court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of testimony of such related witness. This view has been reiterated in Shyam Babu Vs. State of UP, AIR 2012 SC 3311 , Dhari & Others Vs. State of UP, AIR 2013 SC 308 and Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537 . Recently, in Rupinder Singh Sandhu vs State of Punjab, (2018) 16 SCC 475 , it has been reiterated by the supreme court that relationship by itself will not render the witness untrustworthy. It is true that PW1 and PW2 are the real brothers of deceased. But, there is nothing in their statements which can create any amount of doubt, although, both have been crossexamination at length on every point very minutely. 29. So far as trustworthiness of the fact witnesses is concerned, it needs to be pertinently mentioned that both these witnesses are injured witnesses and law gives a very high value to a witness who has sustained injury in the same incident. As held in State of Haryana Vs. Krishan, AIR 2017 SC 3125 ,Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 (ThreeJudge Bench), Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537 and Jarnail Singh Vs. As held in State of Haryana Vs. Krishan, AIR 2017 SC 3125 ,Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 (ThreeJudge Bench), Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537 and Jarnail Singh Vs. State of Punjab, 2009 (6) Supreme 526 , deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence on the scene stands established in the case and it is proved that he suffered the injuries during the said incident. Moreover, both the witnesses are illiterate villagers and keeping in view the law laid down in State of U.P. Vs. Chhoteylal, AIR 2011 SC 697 , Dimple Gupta (minor) Vs. Rajiv Gupta, AIR 2008 SC 239 the court should keep in mind the rural background and the scenario in which the incident had happened and should not appreciate the evidence from rational angle and discredit the witness's otherwise truthful version on technical grounds. 30. From the statement of doctor who has examined both the witnesses, it is clear that their injuries were possible by the weapons which have been assigned to the accused persons and must have been caused on date and time as alleged by the prosecution. 31. The learned counsel for the appellants has mentioned certain discrepancy and contradiction in the testimony of witnesses with regards to who reached first and who gave how many blows and who caused injuries to whom and the like. It needs to be pointed out that where one person of the same family died on the spot and four other received injuries, in such a horrendous situation, the witnesses are not supposed to be perfectionist to give the exact account of the incident. Some sort of contradiction, improvement, embellishment is bound to occur in the statement. As laid down in State of U.P. v. Naresh; 2011 (75) ACC 215) (SC), in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. As laid down in State of U.P. v. Naresh; 2011 (75) ACC 215) (SC), in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. 32. In Gosu Jayarami Reddy and another Vs. State of Andhra Pradesh; (2011) 3 SCC(Cri) 630, it was observed that Courts need to be realistic in their expectation from the witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. A witness who is terrorized by the brutality of the attack cannot be disbelieved only because in his description of who hit the deceased on what part of the body there is some mixup or confusion. 33. Further, in Parsu Ram Pandey v/s State of Bihar AIR 2004 SC 5068 , Shivappa v. State of Karnataka; AIR 2682, Ramchandaran v/s State of Kerala AIR 2011 SC 3581 , it was held that minor discrepancies or some improvements would not justify rejection of the testimonies of the eyewitnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in Court. In Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 (Three-Judge Bench) and Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 53, it was reiterated that minor contradictions in the testimonies of the Prosecution Witness are bound to be there and in fact they go to support the truthfulness of the witnesses. 34. It has been further argued on behalf of the learned counsel to the appellant that no independent witnesses, though alleged in F.I.R., have been examined nor other injured witnesses except PW1 and PW2 have been produced by the prosecution. 34. It has been further argued on behalf of the learned counsel to the appellant that no independent witnesses, though alleged in F.I.R., have been examined nor other injured witnesses except PW1 and PW2 have been produced by the prosecution. It is true that in the F.I.R., it has been alleged that on hearing noise, witnesses Murali and Ramdas reached there and their name finds mention in the chargesheet. In respect of these witnesses, PW1 and PW2 have stated that they are not prepared to give evidence in support and they are in collusion with the accused persons. In such circumstances if they have not been examined, it will have no effect on prosecution case. 35. In Mukesh v State for NCT of Delhi & Others, AIR 2017 SC 2161 , Bhagwan Jagannath Markad v State of Maharashtra, (2016) 10 SCC 537 and Hukum Singh v State of Rajasthan, 2001 CrLJ 511 (SC), the Supreme Court has explained the law on this point and has laid down that if a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Nonexamination of material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that non-examination of eyewitness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on statement of sole witness even if he is relative of the deceased and non examination of independent witness would not be fatal to the case of prosecution. It has been further laid down in Dharnidhar Vs. State of U.P, (2010) 7 SCC 759 that non-examination of independent eye witnesses is inconsequential if the witness was won over or terrorised by the accused. In Hukum Singh (supra), the Supreme Court expressed following view: “If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. In Hukum Singh (supra), the Supreme Court expressed following view: “If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution for relieving itself of the strain of adducing repetitive evidence on the same point but also helps the Court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly those Courts crammed with cases, but without impairing the cause of justice.” 36. Another submission is in respect of cause of death of Rishiram as in paper no 18A, it has been reported by the Helat Hospital that his death occurred due to sudden cardiac respiratory arrest. It is a routine communication made by the Hospital to the police for necessary action as the deceased was referred and brought in critical condition accompanied by Dr. Bajpayee in the Hospital where he died during treatment because of head injury. In postmortem report it has been mentioned that the cause of death was shock and hemorrhage resulted because of antemortem injuries. A person who has suffered serious injuries on his head resulting in fracture and is sent for better treatment in attendance of a doctor and dies during treatment there, falsifies the argument of appellant as it cannot be concluded that he died not because of injuries but died his natural death. The learned trial court has very rightly rejected this argument and has concluded that death of deceased occurred because of injuries caused to him in the criminal incident. 37. It has been further submitted that non of the injuries sustained by the deceased can be said to have been caused by spade and therefore, the participation of accused Pragi Lal is doubtful. 37. It has been further submitted that non of the injuries sustained by the deceased can be said to have been caused by spade and therefore, the participation of accused Pragi Lal is doubtful. From the perusal of the postmortem report it appears that 4 antemortem injuries have been found on the body of Rishipal two lacerated wound and two contusion. Prior to his death, he was also examined by the doctor and his medical report Ext. Ka2 is on record in which at least one injury has been found to be caused by sharp weapon. The said injury reads“Incised would 1.5 cm. X 0.5 cm. X 0.2 cm. on left forearm in the middle and on the outer side, 12 cm. below the left joint elbow. Clean cut, fresh and slant.” Moreover, it has been rightly concluded by the learned trial court that, in such situation where a number of accused persons have attacked with lathi, spade could have been used in both mannerlike blunt object and also like a sharp weapon. The participation of accused Pragi Lal has been also found to have been established in view of the fact that some of the other injured persons have sustained crushed injuries and after a logical discussion, on the basis of size, shape and impact of injuries, the learned trial court has given a finding that those injuries were possible by a spade when used by the reverse side like a heavy blunt object. Therefore, I find no force in this argument. 38. The learned counsel for the appellant has submitted that as many as 8 persons have been roped by prosecution who have been alleged to have caused injuries to the deceased and injured persons, but, the number of injuries found is not so to indicate that so many persons were involved in the commission of the offence. In this incident, 5 persons have sustained injuries and the total number of injuries including the injuries of the deceased are 27. The learned trial court has scruitnised the evidence on record and has arrived at a conclusion that in such kind of cases where the accused persons are assaulting by lathi except Pragi Lal who assaulted by spade, there remains always a possibility that some of the assault may be missed and by some assaults, visible injuries may not be sustained. The learned trial court has scruitnised the evidence on record and has arrived at a conclusion that in such kind of cases where the accused persons are assaulting by lathi except Pragi Lal who assaulted by spade, there remains always a possibility that some of the assault may be missed and by some assaults, visible injuries may not be sustained. Moreover, causing injuries to five persons including death of one in the same incident and total number of injuries being 27, is quite in consonance with the numbers of the accused persons. As such, the learned trial court rejected the contentions of the appellant on this point. I find myself in total agreement with the finding recorded by the learned trial court. 39. The plea of defence of false implication on account of enmity and family dispute has been rightly disbelieved by the learned trial court in absence of any cogent evidence. Moreover, these accused persons, except accused Pragi Lal, were close relatives and family members. Accused Pragi Lal is also closely associated with them in view of Chunuvadiya episode who was his sister. There is no reason why accused persons will be falsely implicated by complainant side. Their involvement and participation has been proved by injured eyewitnesses and despite detailed crossexamination, nothing has come out to create any suspicion on prosecution version. This finding also finds support by the fact that the crime took place in front of the house of accused persons. Both the side belong to same village and locality and their presence during occurrence at the place is natural. 40. It is pertinent to mention that the convicted appellants have been tried for the offence under section 302 I.P.C. and have been convicted for the offence under section 304 Part II. On the basis of above discussion, to put it in simple terms. The Indian Penal Code recognizes three degrees of culpable homicide namely, (1) culpable homicide of the first degree, a gravest form of culpable homicide which is defined under section 300 as murder, (2) culpable homicide of the second degree, a lower or lessor form of homicide not amounting to murder as defined in section 299, punishable under the first part of section 304 and (3) culpable homicide of the third degree, a lowest type of culpable homicide, punishable under the second part of section 304. The appellants have been convicted by the learned trial court under the category of lowest type of culpable homicide and have been sentenced accordingly for the reason that the trial court found that the accused persons intended to give lesson to complainant side because of Chunuvadiya episode. Moreover, no deadly weapon was arranged and the accused persons were carrying bamboo stick and one was having a spade which is more an agriculture tool rather than weapon. 41. There is yet another submission and it has been submitted that accused Pragi Lal has been said to carry spade and to have caused injury. The learned trial court has not only framed charge against him for both the offence under section 147 and section 148 I.P.C., but has also convicted for both the offences. The learned counsel to the appellant has argued that the conviction under both section is not possible and the accused could only be convicted for the either offence. Section 147 incorporates punishment for simple rioting whereas, section 148 provides punishment for offence of rioting by a person armed with deadly weapon. The offence of 'Rioting' has been defined by section 146 of the Indian Penal Code as below: “146. Rioting-Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.” 42. The use of force and violence by unlawful assembly constituted by the accused persons is very much established in this instant case. In Sunder Singh v The State, AIR 1955 All 232 and Barendra Kumar v State of Assam 1978 Cri LJ (noc) 90 (Gauhati), it has been clarified that where offence has been committed by a member of unlawful assembly, the persons having deadly weapon, shall be punished for the offence under section 148 and others not carrying deadly weapon, shall be punished under section 147. In this case, accused Pragi Lal was having spade which was a deadly weapon and being member of unlawful assembly, committed the offence. As such, his act constituted an offence of rioting committed with spade, a deadly weapon, and that is punishable under section 148. In this case, accused Pragi Lal was having spade which was a deadly weapon and being member of unlawful assembly, committed the offence. As such, his act constituted an offence of rioting committed with spade, a deadly weapon, and that is punishable under section 148. Therefore, a charge under section 147 I.P.C. was unnecessarily framed against accused Pragi Lal, and if framed, he could not be convicted and sentenced for the same and could only be punished for the offence under section 148 I.P.C.. In view of this, the conviction and sentence of Accused Pragi Lal for the offence under section 147 I.P.C. is not sustainable and is liable to be set aside. 43. From the above discussion, I am of the considered view that the learned trial court has rightly concluded that the prosecution has been able to prove the charges beyond shadow of any doubt. Excluding the accused persons who have been acquitted, the number of the convicted accused persons/appellants has been 6 and 2 eyewitnesses who were injured in the same incident have stated the whole incident in a very natural and spontaneous way. It has been established that the accused persons were present at the place of occurrence with bamboo stick and one Pragi lal with spade in a planned way. It has come in the evidence that when PW2 and deceased reached on spot, all the accused persons entered into a short conversation regarding Chunuvadiya and thereafter started beating them. On noise, other injured persons of the family of deceased reached there and they were also beaten by the accused persons. It goes to establish that the accused persons formed an unlawful assembly with common object to commit offence by causing injuries to complainant side. It is also clear that the F.I.R. for the occurrence was lodged without any delay and even if for the sake of argument there was any delay, the same stands reasonably explained by the prosecution witnesses and in the facts and circumstances of the case. The injuries found on the body of the deceased person namely Rishiram and other injured persons find support from the medical evidence and from the postmortem report by which the date and time of causing the injuries and death is very much corroborated. Medical evidence clearly indicates that because of injuries caused by the accused persons, Rishiram died. The injuries found on the body of the deceased person namely Rishiram and other injured persons find support from the medical evidence and from the postmortem report by which the date and time of causing the injuries and death is very much corroborated. Medical evidence clearly indicates that because of injuries caused by the accused persons, Rishiram died. The place of occurrence has been fully established. There is no substantial contradiction or discrepancies in the evidence of the prosecution and some of the minor contradiction and discrepancies which have been discussed above goes to establish the reliability of the witnesses and that also shows that they are not tutored. Thus, the witnesses examined by prosecution are natural, credible and trustworthy. There appears to be no infirmity in the evidence of eyewitnesses who are injured witnesses also, on the basis of which their ocular testimony could be discarded. The conviction recorded by the learned trial court is legal and absolutely justified. 44. It has been further argued that the sentence awarded by the learned trial court is too severe in the facts and circumstances of the case. The learned trial court has awarded 6 months for the offence under section 147, whereas, the punishment under this section could extend for two years. The same sentence has been awarded under section 148, while the maximum sentence provided under law is 3 years. One year punishment has been provided under section 323 I.P.C. and the learned trial court has awarded sentence of 6 months. Therefore, the sentence awarded for these offence appears to be appropriate, proportionate and reasonable and I find no force in the argument of the learned counsel in respect of offence under section 147,148,323/149 I.P.C.. 45. So far as the sentence awarded for the offence under section 304 Part II is concerned, the learned trial court has awarded sentence of 10 years rigorous imprisonment. Section 304 Part II provides a maximum sentence of ten years. It means that maximum sentence has been awarded by the learned trial court for this offence. The learned trial court while hearing on sentence, has mentioned that it was first offence of accused persons, they had no criminal antecedent and they committed offence due to social circumstances. Section 304 Part II provides a maximum sentence of ten years. It means that maximum sentence has been awarded by the learned trial court for this offence. The learned trial court while hearing on sentence, has mentioned that it was first offence of accused persons, they had no criminal antecedent and they committed offence due to social circumstances. It has not been mentioned anywhere the reasons why it thought necessary to award maximum sentence when the finding was recorded that the death was caused without intention to cause death. This instant appeal pertains to a crime which took place in the year 1988 and the appeal itself is of the year 1996. I find that in State of Karnataka v Bhaskar Kushali Kotharkar, AIR 2004 SC 4333 , sentence of 7 years has been reduced to 5 years and in Ananta Deb Singha Mahapatra v State of WB, AIR 2007 SC 2524 , sentence of 8 years has been reduced to 6 years by the Supreme Court for the offence under section 304 Part II. Therefore, the sentence awarded by the learned trial court being maximum, if reduced to 7 years, the same will be proportionate in view of the nature of culpability. 44. Amongst the appellants, one appellant Sipahi has died during the pendency of this appeal and his appeal has been already abated. 45. In view of the above discussion, I find no illegality or perversity in the impugned judgment so far as finding of conviction is concerned. As concluded above, the sentence of accused Pragi Lal for the offence under section 147 I.P.C. is set aside. The sentence under section 147, 323/149 I.P.C. of convicted appellants Rajwa, Shiva Narain, Babu Lal, and Lalloo and sentence of accused Pragi Lal for the offence under section 148, 323/149 I.P.C. is upheld. The sentence of convicted appellants Rajwa, Shiva Narain, Babu Lal, Lalloo and Pragi Lal under section 304 Part II I.P.C. is reduced to seven years. The default sentence in lieu of fine as awarded by the learned trial court for the above offences will remain undisturbed. As directed in the impugned judgment, all the sentences shall run concurrently and the period already undergone by convicted appellant shall be adjusted against the awarded sentence. 46. With the aforesaid modification, this criminal appeal is finally disposed of. 47. As directed in the impugned judgment, all the sentences shall run concurrently and the period already undergone by convicted appellant shall be adjusted against the awarded sentence. 46. With the aforesaid modification, this criminal appeal is finally disposed of. 47. The appellants Rajwa, Shiva Narain, Babu Lal, Lalloo and Pragi Lal to surrender before the concerned court forthwith to be sent to jail to undergo the sentence. 48. The office is directed to return the lower court record to the concerned court along with a certified copy of the judgment for information and necessary compliance.