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2019 DIGILAW 39 (ALL)

Dipty Singh v. State of U. P.

2019-01-04

ARVIND KUMAR MISHRA I, SALIL KUMAR RAI

body2019
JUDGMENT : Arvind Kumar MishraI, J. 1. Heard Sri Kamal Krishna, learned Senior Counsel assisted by Sri Ghanshyam Das, learned counsel for the appellant, Sri Ajay Kumar, learned counsel for the informant, Sri J.K. Upadhyay, learned A.G.A. for the State and perused the record. 2. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order dated 15.05.2009 passed by Additional Sessions Judge, Fast Track Court No.3 Mainpuri in Sessions Trial No. 388 of 1998 (State Vs. Dipty Singh), arising out of Case Crime No.223 of 1997, Police Station-Alau, District-Mainpuri, whereby the Appellant-Dipty Singh-has been convicted and sentenced to undergo life imprisonment coupled with fine Rs.10,000/- and default clause stipulates additional six months imprisonment for offence under Section 302 IPC. 3. Facts relevant for adjudication of this appeal appear to be that Sri Bariyar Singh s/o Jeetam Singh, r/o Village-Ghutara, Police Station-Bewar, District-Mainpuri lodged written report against the accused-Appellant-Dipty Singh and three others at Police Station-Alau, District-Mainpuri on 18.11.1997 at 6.05 P.M. regarding the incident of murder having taken place at 1.00 P.M., the very same day, on the field at village-Atiya hamlet of Ilawas with allegation that on the day of occurrence the informant was working on his field and in the nearby field informant's nephew Ravindra Singh s/o Sriram Swaroop of Village-Ghutara within police station-Bewer, was ploughing field of Ram Ladaitey s/o Ram Bhorasey by his tractor. Ram Ladaitey was partner/sharer of part of crop sown in the field of Narain Singh of village Ghutara. The tractor was being driven by Mukesh s/o Ajeen Singh. At that point of time, Ram Bharosey, Kayam Singh, Dipty Singh along with three others were seen coming from the side of village-Atiya. Dipty Singh was possessing country-made gun, whereas other accused were also possessing country-made gun and rifle. The written report contains description regarding fact that Ram Bharosey and Ram Vilash are accused in the murder of Ram Bahadur Singh in 1994, who is uncle of Ravindra Singh. Father of Ravindra Singh-Ram Swaroop Singh is a witness in this case. Accused of that case are still absconding and were threatening to wipe out the family of Ravindra Singh. Having sighted the accused, Ravindra Singh started running away when he was chased by the accused-Dipty Singh and his accomplices. Father of Ravindra Singh-Ram Swaroop Singh is a witness in this case. Accused of that case are still absconding and were threatening to wipe out the family of Ravindra Singh. Having sighted the accused, Ravindra Singh started running away when he was chased by the accused-Dipty Singh and his accomplices. Ravindra Singh had, in the meanwhile, crossed 4-5 fields towards the eastern side, when the accused Dipty Singh after heavy pursuit, fired on him. The other accused also fired on him. In the meanwhile, Ram Ladaitey, Mukesh etc. arrived on the spot. The accused after realizing that the victim Ravindra Singh has since expired, fled away from the scene. The informant and the other witnesses went upto the spot in the field of Ganga Singh where they found Ravindra Singh dead. Request was made for lodging the report and taking appropriate action. 4. Contents of this written report were taken down in the concerned Check FIR on 18.11.1997 at 6.05 P.M. at case crime no.223 of 1997, under Section 302 IPC at Police Station-Alau, District-Mainpuri. The copy of the Check F.I.R. is Exhibit Ka.11. Consequent upon entries so made in the Check FIR, a case was registered against the accused at aforesaid case crime number, under aforesaid section of Indian Penal Code vide entry made in the concerned General Diary. The relevant G.D. Entry is Exhibit Ka-12 5. The investigation ensued and the same was taken over by the Investigating Officer Sri M.A. Kazami P.W.4 on 18.11.1997, who took note of the contents of the check FIR and the concerned General Diary of date 18.11.1997 and recorded the statement of the informant and the other prosecution witnesses, inspected the spot and prepared the site plan, Exhibit Ka-3. He also collected simple and blood stained clay-roll from the spot and prepared the memo of the same-Exhibit Ka-4. 6. Record reveals that the inquest report was prepared by S.I. Raghunandan Singh Yadav P.W.5 under supervision of the Investigating Officer. The inquest witnesses opined that the dead body be sent for post-mortem examination for ascertaining real cause of death, therefore, relevant papers were prepared for sending the dead body for post-mortem examination. These relevant paper are photonash Exhibit Ka-8, Challan dead body-Exhibit Ka-9, Specimen Seal-Exhibit Ka-7 etc. 7. Thereafter post-mortem examination on the cadaver of the deceased was conducted by Dr. These relevant paper are photonash Exhibit Ka-8, Challan dead body-Exhibit Ka-9, Specimen Seal-Exhibit Ka-7 etc. 7. Thereafter post-mortem examination on the cadaver of the deceased was conducted by Dr. Kaushal Kishore P.W.3 at mortuary-Mainpuri on 19.11.1997 at 2.30 P.M., wherein, he noted the following ante mortem injuries: Ante Mortem injuries :- 1. Fire arm wound of entry 2 c.m. x 2 c.m. x through and through to injury no.2 on right side face 2 c.m. In front and above to the right ear. Margins inverted and tattooing and blackening all around to wound present. skull bones fractured, direction from right to left. 2. Fire arm wound of exit 3 c.m. x 3.5 c.m. x through and through to injury no. one, injuries everted and fractured under main skull was fractured just above the left ear. 3. Abrasion 1.5 c.m. x 1.5 c.m. on left side from wound 2 c.m. above the left eye lid. 4. Abrasion 2 c.m. x 2 c.m. on left side from 2 c.m. below the left lower eye lid. 5. Fire arm wound of entry 1.5 c.m. x 2 c.m. x through and through to injury no.6 on right side chest front side 4 c.m. below to the right nipple at 7 o'clock position. No blackening and tattooing under-mouth right sixth ribs fractured. 6. Fire arm wound of exit on left side back of chest 3 c.m. x 3 c.m. x through and through to injury no.5. It can below to angle of left scapula. Margins everted and fractured under mouth 7th left side ribs fractured. 8. In the opinion of the doctor, cause of death was stated to be due to shock and haemorrhage as a result of ante mortem firearm injuries. The post-mortem examination report is Exhibit Ka-2. 9. As the investigation progressed statement of other witnesses was also recorded by the I.O. The other accused were absconding, therefore, charge-sheet against accused (Dipty Singh) was filed, which is Exhibit Ka-5. 10. Consequent upon filing of the charge-sheet, committal proceeding took place and the case was committed to the Court of Sessions, from where, it was made over for disposal by the trial to the court of Additional Sessions Judge, F.T.C. Court no.3, Mainpuri. 10. Consequent upon filing of the charge-sheet, committal proceeding took place and the case was committed to the Court of Sessions, from where, it was made over for disposal by the trial to the court of Additional Sessions Judge, F.T.C. Court no.3, Mainpuri. Appellant was heard on the point of charge and the trial court was prima facie satisfied with the case against the accused, therefore, it framed charge under Section 302 IPC against him. Charge was read over and explained to the accused, who abjured the charge and opted for trial. 11. In turn, the prosecution was asked to adduce its testimony in support of the charge, whereupon, prosecution produced in all five prosecution witnesses, a brief Reference of them is sketched here in below :- Bariyar Singh P.W.1 is the informant and eyewitness of the incident. Ram Ladaitey P.W.2 is also witness of the occurrence. Dr. Kaushal Kishore P.W.3 has conducted autopsy on the cadaver of the deceased-Ravindra Singh. M.A. Kazami P.W.4 is the Investigating Officer of this case. He carried out the investigation and has proved various papers which he prepared during course of investigation and filed charge-sheet (Exhibit Ka-5) against accused. Sri R.S. Yadav P.W.5 has prepared the inquest under supervision of the Investigating Officer-M.A. Kazami and has proved the process. 12. After closure of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C., wherein the accused denied his involvement in the incident and claimed to have been falsely implicated in the case on account of village enmity. 13. The defence also led testimony of Manoj Kumar D.W.1, who is the Lekhpal of the concerned area and has testified on point of location/positioning of the various fields of his area. 14. The trial court after considering entire facts and circumstances of the case and after evaluating testimony on record, returned aforesaid finding of conviction and sentenced the appellant to life imprisonment coupled with fine Rs.10,000/- and default clause stipulated additional six months imprisonment for offence under Section 302 IPC. Consequently, this appeal. 15. Sri Kamal Krishna and Sri Ghanshyam Das, learned counsel for the appellant have vehemently urged that there was no motive for committing the offence. Consequently, this appeal. 15. Sri Kamal Krishna and Sri Ghanshyam Das, learned counsel for the appellant have vehemently urged that there was no motive for committing the offence. Prior to the incident of murder, accused were absconding in the murder case of Ram Bahadur that took place in 1994, appellant Dipty Singh was not an accused in that case, therefore, there was no motive direct or indirect for him to commit the offence. 16. Learned counsel further added that in so far as ocular testimony of the prosecution witnesses is concerned, the same is grossly inconsistent and contradictory to each other in material particulars. The same cannot be believed to be worthy of credit. The witnesses of fact are partisan and chance witnesses. They did not in fact, saw any such incident. They came to know only about the murder of Ravindra Singh and only then they arrived on the spot and concocted a false story. There is no point in believing that the shot was fired from the front side to the deceased because the very narration of the incident described by the prosecution witnesses of fact is explanatory of fact that the shot was fired while the deceased was running away from the assailants, therefore, the seat of shot on the front side of body/head of the deceased is highly inconsistent with the ocular version of murder set up by the prosecution and it cannot be believed as such. It is admitted case that P.W.1 Bariyar Singh was at the time of the occurrence, present on his field, which was located at a distance of about 500 meters away from the place of occurrence. Then from such distance, it is virtually impossible to see the occurrence and to identify the accused. 17. It was also argued by the counsel for the appellant that the medical evidence, as noted in the post-mortem examination report-Exhibit Ka-2-hardly matches the oral description of the incident by the prosecution witnesses. Since no one saw the incident, the Investigating Officer could not show with precision the exact place from where the witnesses saw the occurrence. It only shows the spot from where the witnesses arrived on the spot. The prosecution would have to stand on its own leg. Shortcomings of defence case would not come to the rescue of the prosecution case. It only shows the spot from where the witnesses arrived on the spot. The prosecution would have to stand on its own leg. Shortcomings of defence case would not come to the rescue of the prosecution case. Particular aspect of this case is that the witness-Mukesh-whose statement was recorded by the Investigating Officer and who is stated to have been driving the tractor in question on the spot, was not examined by the prosecution, though, his testimony is the centre point and pivotal to the prosecution case. Since testimony of Mukesh has been dispensed with, adverse inference will be drawn under Section 114(1)(g) of the Indian Evidence Act, 1872. The prosecution witnesses have developed their version and the same is tainted with improvement in order to explain the ante-mortem injuries and have come out with the theory of 'surrounding' the victim at the time of the occurrence, whereas, this particular aspect of surrounding the victim, while committing the offence, is altogether missing in the first information report as well as in the statement of the prosecution witnesses recorded under Section 161 Cr.P.C. Police out-post-Kusumara is nearer to the place of occurrence and the informant would have conveniently reported about the incident at the Kusumara police outpost, but the report was deliberately not lodged at the police outpost, whereas, it was lodged at the police Station-Alau, which was 18 kms. away from the place of occurrence. 18. It was also argued by the counsel that the doctor witness P.W.3 Dr. Kaushal Kishore has opined that the nature of the ante-mortem injuries gives rise to possibility that the deceased might have survived 20 to 25 minutes after the occurrence and the witnesses say that they found the victim dead on arrival on the spot, it means that the witnesses did not see the occurrence and they arrived on the spot after the incident had occurred and the victim had breathed his last. 19. The charge under consideration has not been proved beyond reasonable doubt. 20. Per contra, Sri J.K. Upadhyaya, learned A.G.A. has submitted that the testimony of prosecution witnesses is clear, consistent and clinching on the point of occurrence. They are not improving on their version. The first information report cannot be said to be an encyclopedia that it would entail all particulars and details of the incident. 20. Per contra, Sri J.K. Upadhyaya, learned A.G.A. has submitted that the testimony of prosecution witnesses is clear, consistent and clinching on the point of occurrence. They are not improving on their version. The first information report cannot be said to be an encyclopedia that it would entail all particulars and details of the incident. Moreover, in so far as presence of P.W.1 Bariyar Singh is concerned, nothing adverse of the sort has been suggested to him by the defence that may be treated as challenge to the presence of P.W.1 Bariyar Singh on the spot at the time of occurrence. It has been categorically testified that Dipty Singh fired on Ravindra Singh and in the cross-examination of Ram Ladaite P.W.2 his presence is virtually admitted on the spot. Therefore, testimony of both the prosecution witnesses cannot be treated to be that of chance witnesses but their presence on the spot is natural. 21. As regards motive, learned A.G.A. has submitted that the Appellant-Dipty Singh belongs to the pedigree and family of Jaswant Singh. Jaswant Singh was having one daughter only. He had no male issue. Ram Swaroop (father of the deceased-Ravindra Singh) had purchased house and field from the daughter of Jaswant Singh, which created animosity in the mind of Dipty Singh. 22. In so far as the site plan is concerned, may be that there is no pin pointing about the exact place from where the witnesses saw the occurrence, but the very marks dotted by figure 'zero' in the site plan, Exhibit Ka-3, are fair enough to show the presence of the accused on the spot from where they arrived on the spot. Moreover, latches committed by the Investigating Officer would not throw away the case of the prosecution. Latches committed by the I.O. cannot be construed fatal for prosecution case, in the face of otherwise innocuous testimony of the eye-witnesses. 23. Considered the rival submissions and also considered rival claims, in the light of above, the moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to prove its case beyond reasonable doubt under the aforesaid charge under section 302 Indian Penal Code? 24. 23. Considered the rival submissions and also considered rival claims, in the light of above, the moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to prove its case beyond reasonable doubt under the aforesaid charge under section 302 Indian Penal Code? 24. Bare perusal of the first information report is indicative of fact that the accused has been named in the first information report, which contains description that the informant was working on his field on 18.11.1997 and it was around 1.00 P.M. his nephew Ravindra Singh was ploughing field of Ram Ladaite. Ram Ladaite is co-sharer of crop of the field of Narayan Singh. The tractor was being driven by Mukesh. At that point of time, the accused Dipty Singh along with others arrived on the spot. He was possessing country-made gun. Others were also possessing gun and rifle. At the sight of the assailants, Ravindra Singh started running away, whereupon, the four persons including the present appellant-Dipty-Singh chased him and in the meanwhile, Dipty Singh accelerated his speed and fired on Ravindra Singh. The other accused also fired on the victim. In the meanwhile, Ram Ladaite, Mukesh etc. arrived on the spot and accused made their escape good after seeing that Ravindra Singh has perhaps expired. The F.I.R. also contained description that the two accomplices of present accused (Dipty Singh) Ram Bharosey and Ram Vilash were involved in murder of Ram Bahadur Singh in 1994, who was the uncle of Ravindra Singh, wherein, Ram Swaroop (father of Ravindra Singh) was a witness and the accused were absconding since then and were threatening Ravindra Singh and his family of dire consequences. 25. In the backdrop of aforesaid description contained in the first information report, we would like to scrutinize the ocular testimony of the occurrence, as narrated by the prosecution witnesses of fact-say-P.W.1 Bariyar Singh and P.W.2 Ram Ladaite regarding the incident. Both these witnesses have testified to the ambit that the incident took place on 18.11.1997 around 1.00 P.M. At that point of time, the informant was working on his field. P.W.2 Ram Ladaite was getting his field ploughed by the tractor of Ravindra Singh, which was being driven by driver Mukesh. The informant also arrived on the spot, when he saw the accused in company with others coming on the spot possessing country-made gun. P.W.2 Ram Ladaite was getting his field ploughed by the tractor of Ravindra Singh, which was being driven by driver Mukesh. The informant also arrived on the spot, when he saw the accused in company with others coming on the spot possessing country-made gun. At the sight of the accused, Ravindra Singh began to run away from the spot. While Ravindra Singh was running away, Dipty Singh and others chased him and surrounded him in the field of Ganga Singh from southern side and Dipty Singh fired on him, due to which, Ravindra Singh fell down on the spot. These witnesses ran towards the place of occurrence after raising alarm. In the meanwhile, Ram Bharosey also fired from close range on Ravindra Singh, in fallen position. When the witnesses arrived on the spot, the assailants fled away from the scene. The witnesses arrived near the deceased, when they found him dead. The informant came to the village leaving behind Mukesh and Ram Ladaite on the spot and got the report scribed by Shailendra. After the report was dictated to P.W.1 Bariyar Singh, he made his endorsement on it. The report is Exhibit Ka1. Both the witnesses have been cross-examined by the defence, wherein also they have supported their description of the incident given in their examination-in-chief. 26. The core consideration before us relates to the ocular testimony of the eye-witnesses on point of occurrence. Whether the occurrence stands proved beyond reasonable doubt or not? 27. P.W.1 Bariyar Singh has stated that the location of his field from the field of Ganga Singh is about 500 meters. P.W.1 Bariyar Singh has stated in his cross-examination that Dipty Singh is a pedigree member of the family of Jaswant Singh and he has also proved fact that Jaswant Singh had only one daughter and had no male issue. The father of Ravindra Singh -Ram Swaroop-had purchased house and field from the daughter of Jaswant Singh, which very much annoyed Dipty Singh. He has also testified on fact that Mukesh Singh was driving the tractor on the day of occurrence. He has been specifically cross-examined on page-13 of the paper book about his exact position at the time of occurrence. He has also testified on fact that Mukesh Singh was driving the tractor on the day of occurrence. He has been specifically cross-examined on page-13 of the paper book about his exact position at the time of occurrence. He has stated that at that point of time he was in the vicinity of the field of Narain where tractor was being driven and at that point of time, the accused were 10 to 15 paces away from him. This passage lies to the northern side of the field of Narain, at the same time Ravindra Singh after having sighted the assailants, ran away towards the eastern side and the accused chased him. There was a gap of four to five paces in between the accused and the assailants. While so proceeding, Dipty Singh fired on Ravindra Singh and at that point of time this witness was on the field of Narain Singh. He saw the incident along with Mukesh and Ram Ladaite. After the Ravindra Singh had fallen on the ground, Ram Bharosey fired on him, which hit him on his head. This fire was shot from close range. The others did not fire in that position. 28. P.W.1 Bariyar Singh has also testified that his statement was recorded by the I.O. the very same day around 6.30 P.M. and the site plan was prepared on his pointing out. Scrutiny of the entire testimony of P.W.1 Bariyar Singh is indicative of fact that not a single challenge has been made about the presence of P.W.1 Bariyar Singh on the spot at the time of the occurrence. Therefore, the presence of P.W.1 Bariyar Singh appears to be natural on the spot and the same cannot be doubted. Moreover every particular of the incident has been described with clarity. His testimony is worthy of credit and inspires confidence. 29. In so far as testimony of P.W.2 Ram Ladaite is concerned, he happens to be in a position of independent witness. He has also supported the version of the F.I.R. He has given live description of the incident as to how it occurred and on being asked about his position when he first sighted the assailants, he has stated that he sighted the assailants for the first time at a distance of 10-15 paces. He has also supported the version of the F.I.R. He has given live description of the incident as to how it occurred and on being asked about his position when he first sighted the assailants, he has stated that he sighted the assailants for the first time at a distance of 10-15 paces. He has categorically testified to the fact that deceased Ravindra Singh ran towards eastern side and the accused chased him and fire was made by the accused, which hit him. The first fire was shot on the deceased from a distance of 4 to 5 paces. He has also described fact that after the deceased had fallen on the ground, Ram Bharosey fired on him. He has also stated that daroga ji arrived on the spot around 6 P.M. on the day of occurrence, which has been taken as a ground of defence by the accused that the FIR is ante-timed since the FIR was lodged at 6.05 P.M. on 18.11.1997 and the presence of daroga ji on the spot has been described at 6.00 P.M. But this argument is not tenable in view of fact that a witness is not expected to come out specifically with the precise time, but it is a guess work and anticipated time, and in all probability it cannot be fixed to sharp 6.00 P.M. But it may vary and that isolated fact alone would not render the lodging of the first information report as ante-timed. 30. In so far as the theory of 'surrounding' the victim by the accused as mooted by the prosecution witnesses (P.W.1 and P.W.2) is concerned it can be conveniently observed that, it does not adversely affect the prosecution case for the reason that the first shot was fired from a distance of 4 to 5 paces, which shot has been described as ante-mortem injuries numbers 5 and 6 as firearm wound of entry and firearm wound of exit. The second shot was fired by the another assailant, after the deceased had fallen on the ground, which are ante-mortem injuries nos.1 and 2 in the post-mortem examination report. 31. The second shot was fired by the another assailant, after the deceased had fallen on the ground, which are ante-mortem injuries nos.1 and 2 in the post-mortem examination report. 31. The point raised for our consideration by the defence rests on the anvil that in case, the deceased was shot first by Dipty Singh while the deceased was being chased by him then how can the seat of firearm injury be on the front side of the body of the deceased. This argument does not hold good, in view of fact that bare perusal of the ante mortem injuries particularly injury no.5 shows that this firearm wound of entry 1.5cm x 2cm x through and through to injury no.6 on right side chest has been explained by the learned A.G.A. that a person, who is in imminent danger to his life while running away in order to save himself from the wrath of the assailants, would always try to see the actual position of the assailants who are following him and in that bid, there is possibility that firing caused by the assailants, would hit him while the deceased would have turned to ascertain actual position of the assailants and in case such firing hits him, it can hit him in the shape of ante-mortem injuries No.5 and 6. The explanation afforded by the prosecution is found to be fit one under the prevailing facts and circumstances of this case and the same is sustained by us. 32. In so far as the contention regarding description of 'post-mortem staining present' in the post-mortem examination report is concerned, the argument does not carry force for the reason that post-mortem staining has its nexus with the body structure of a person and it would be read vis-a-vis the time gap between the occurrence and the post mortem examination. Here, the incident took place at 1 P.M. on 18.11.1997 and the report was lodged at 6.05 P.M. the very same day and the inquest was prepared the same day, as per the testimony of P.W.5 S.I. R.S. Yadav around 8.00 P.M. (on 18.11.1997). Therefore, post-mortem staining appears to be natural one and the same cannot be construed to the magnitude that the deceased was killed at some unknown time. 33. Therefore, post-mortem staining appears to be natural one and the same cannot be construed to the magnitude that the deceased was killed at some unknown time. 33. In so far as the contention regarding non mention of the exact place/spot of the prosecution witnesses in the site plan, Exhibit Ka-3, is concerned, it can be observed that obviously the very place from where the witnesses arrived on the spot has been marked by figures 'Zero'. Therefore, it cannot be said that there is total absence of the position of the witnesses in the site plan and in the absence of exact specification regarding specific position held by each witness, the site plane would not be termed defective, but it would be treated to be the latches committed by the Investigating Officer. On that count the description and the testimony and particularly the testimony of the prosecution witnesses of fact that has emerged in their cross-examination on the point of occurrence would alone have the final say. 34. As we have already observed that the testimony of both the eye-witnesses of fact is clear and consistent in so far as the description of the occurrence is concerned, the occurrence stands proved to have been caused by the accused on 18.11.1997 at 1.00 P.M. Certainly there are minor inconsistencies in their testimony, which may be treated to be trivial in nature and cannot be termed material or substantial one so as to create any serious dent in the prosecution story. 35. In so far as the motivating part of the incident is concerned, we can conveniently observe that it is a case based on the testimony of eye-witnesses where the incident has been witnessed by P.W.1 Bariyar Singh and P.W.2 Ram Ladaite, who happen to be an impartial witness and whose presence on the spot is found to be natural and the same cannot be viewed with suspicion. We can also add that the presence of the prosecution witnesses on the spot has not been specifically challenged by the defence, therefore, there is no reason to doubt the natural presence of the prosecution witnesses of fact on the spot at the time of occurrence. 36. It is trite criminal jurisprudential law that it is the wisdom and liberty of the prosecution to produce its witnesses and to withhold its witnesses. 36. It is trite criminal jurisprudential law that it is the wisdom and liberty of the prosecution to produce its witnesses and to withhold its witnesses. Since eye account testimony was found worthy of credit then there was no use introducing other testimony on the same fact. It is the quality and not the quantity, which matters in cases of production of witnesses. Here the quality of the testimony is to be judged not the number of the witnesses produced. 37. Testimony of Manoj Kumar D.W.1 has nothing to do with the fact of occurrence in question and his testimony becomes insignificant in view of the clinching eye-account testimony of the prosecution witnesses. 38. In so far as lodging of the first information report not being lodged at police outpost Kusumera is concerned, it has been submitted by the learned A.G.A. Sri J.K. Upadhyaya that Kusumera police out-post falls within the jurisdiction of another police station, whereas, the police station within which the place of occurrence falls is within police Station-Alau and the first informant had every reason to lodge the report at the correct police station within whose jurisdiction the place of occurrence falls. The submission of learned A.G.A. carries element of truth and the same is sustained. 39. Cumulative reading/scrutiny of the testimony of both the witnesses of fact coupled with circumstances of the case inspires confidence and proves beyond reasonable doubt, the very occurrence that took place on 18.11.1997 around 1.00 P.M. in village-Atiya Hamlet Ilawas caused by accused Dipty Singh by firing on deceased Ravindra Singh due to which he fell down on the ground and expired. Nothing adverse of the sort has emerged in the cross-examination of these prosecution witnesses, which may cast any doubt or aspersion on their otherwise consistent testimony on point of occurrence. 40. The learned trial Judge while appraising the facts and circumstances of the case and evaluating testimony of the prosecution witnesses has rightly convicted the accused and passed just sentence, which finding and sentence is upheld by us in appeal. Consequently, the appeal sans merit and is dismissed accordingly. 41. Appellant-Dipty-Singh is on bail. His bails bonds and surety bonds are hereby cancelled. He shall be taken into custody forthwith for serving out the remaining part of his sentence. 42. Consequently, the appeal sans merit and is dismissed accordingly. 41. Appellant-Dipty-Singh is on bail. His bails bonds and surety bonds are hereby cancelled. He shall be taken into custody forthwith for serving out the remaining part of his sentence. 42. Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.