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Allahabad High Court · body

2020 DIGILAW 1019 (ALL)

Ratan Lal v. State of U. P

2020-07-10

DINESH PATHAK, SUNITA AGARWAL

body2020
JUDGMENT : 1. Heard Sri Rajrshi Gupta assisted by Sri Manish Kumar and Ms. Shambhavi Gupta learned Advocates for the appellants, Sri L.D. Rajbhar and Sri Prem Shankar Mishra learned A.G.A.(s) for the State. 2. This appeal is directed against the judgment and order dated 19.2.2011 passed by the Special Judge Dacoity Prohibition Area, Jhansi in Sessions Trial No.53 of 1998 arising out of Case Crime no.42 of 1998 under Sections 147, 148, 396 read with Sections 149 and 412 IPC, as also in the Sessions Trial No.46 of 1998 arising out of Case crime nos.52 and 53 of 98 under Section 25 Arms Act, P.S-Punchh, District Jhansi. 3. The appellants herein (7 in number) have been sentenced for life imprisonment for the offence under Section 396 taking aid of Section 149 IPC along with Rs.3000/-as fine. In case of default in payment of fine, the appellants have to undergo six months of additional rigorous imprisonment. They have also been sentenced for three years simple imprisonment for the offence under Section 148 IPC. Four appellants Ratan Lal, Khadak Singh, Jitendra Kumar and Dinesh Kumar have been sentenced for life imprisonment alongwith fine of Rs.2000/-for the offence under Section 412 I.P.C. In case of default in payment of fine, they have to undergo additional six months of rigorous imprisonment. Appellants Ratan Lal and Khadak Singh have been sentenced for three years imprisonment along with fine of Rs.2000/- under Section 25 Arms Act and in case of default in payment of fine they have to undergo three months additional imprisonment. All the punishments are to run concurrently. 4. The prosecution story starts with the written report dated 14.3.1998 given by Jitendra Singh s/o Surendra Pal Singh resident of Gram Fatehpur, P.S-Punchh, District-Jhansi wherein it is averred that on 14.3.1998 at about 5.30 p.m, first informant alongwith his maternal grand father Sri Indrabhan Singh and Kishore Singh s/o Ramdas, Veerpal Singh s/o Jai Karan Singh, Rampal Singh s/o Veer Singh, Kushal Pal Singh s/o Jagdish Singh went to P.S Punch District Jhansi to register a First Information report lodged by Kishore Singh and to get release of the licencee rifle/revolver and gun of Indra Bhan Singh deposited in the Police Station during elections. 5. After lodging of the report and getting release of the rifle, they all were coming back to the village on a tractor No.UP 85 A 0902. 5. After lodging of the report and getting release of the rifle, they all were coming back to the village on a tractor No.UP 85 A 0902. When they reached on a puliya about 9 kms away from the village, all of them had seen the accused persons standing on their way. Ratan Lal and Dinesh sons of Karore were carrying guns in their hands, Narendra was having farsa, Jitendra was with Kulhari, Murat s/o Dinesh was carring country made pistol in his hand, Karan Singh was carrying farsa and Ram Khilawan was having lathi whereas Khadak Singh had gun in his hand. They stopped the tractor and while using abusive language, they told “you …. went to the police station to lodge report against us. The court will give its verdict later but we would give your verdict today, just now.” Then Ratan lal opened fire upon Indrabhan Singh with an intention to kill him, other accused persons started hitting and cutting Indrabhan Singh through farsa and kulhari while yelling at deceased that “this .… became leader” and all others had fired from the country made pistol and guns on him. Resultantly, Indrabhan Singh died on the spot and Kishore Singh and Kushal Pal Singh got injured. 6. It was further stated that the accused persons keeping the dead body of his grand father in the trolly took away the tractor and trolley to Kashipura mod, leaving the trolley with dead body there, they took away the tractor towards the river. This incident occurred at about 9.00 p.m and they all witnessed it in the torch light and the light of the tractor. They all recognized the assailants being the accused persons named in the F.I.R. It was also averred that the licencee revolver and gun of Indrabhan Singh, maternal grand father of first informant, was also looted by the accused persons. Informing the police that the dead body was lying in the trolly on the spot mentioned above, this First Information Report was drawn by Jitendra Singh in his own hand writing. 7. The chik FIR was prepared and registered at about 22.45 hours 10.45 p.m under section 396 I.P.C for the offence of loot and murder. Recovery of gun of Ratan lal, Khadak Singh and Axe of Jitendra Singh had been made on 2.4.1998 on their own pointing out from the field of co-accused Dinesh. 7. The chik FIR was prepared and registered at about 22.45 hours 10.45 p.m under section 396 I.P.C for the offence of loot and murder. Recovery of gun of Ratan lal, Khadak Singh and Axe of Jitendra Singh had been made on 2.4.1998 on their own pointing out from the field of co-accused Dinesh. The items of recovery were proved as material 'Exhibit Ka-2, Ka-3 and Ka-4' by the constable Kamal Singh, a witness of recovery. After recovery of the illegal fire arm, First Information Report under Section 25 of the Arms Act was registered against Ratan Lal and Khadak Singh on 2.4.1998 at about 20.10 hours. The tractor was recovered from the Canal on 2.4.1998. The recovery of it was proved by P.W-5 and the memo of recovery has been exhibited as Exhibit Ka-5 as P.W.-5 proved his signature on the same. Blood stained and plain earth collected from the spot were kept in the recovery memo as Exhibit Ka-19 proved by the Investigating Officer. Chaap (Belt) of SBBL gun and two used 12 bore empty cartridges were recovered from the place of incident and kept in 'Exhibit Ka-20'. Two torches belonging to Rampal Singh and Kushal Pal Singh were handed over to the police and have been exhibited as 'Exhibit Ka-21' and 'Exhibit Ka-22.' Recovery memo 'Exhibit-Ka-24' dated 2.4.1998 of recovery of murder weapons records that when the police party along with witnesses went to the field of Dinesh, after recovery of two guns and Axe belonging to the accused persons, Ratan lal and Dinesh further lead to the police party towards the northern side of the field and after walking about 25 paces, they removed some hay covered on the pit and the mud over it but nothing was found there. Upon asking, the accused told that looted gun and rifle of Indrabhan Singh and rifle of Dinesh (used in crime) were concealed there but probably some relative got to know and took them away. Thus, by means of the recovery memo, (Exhibit Ka-24) it was sought to be presented by the prosecution that the looted gun and rifle of Indrabhan Singh were misplaced from the custody of the accused persons. 8. At this juncture, it would be relevant to mention here that the entire prosecution case is silent about the recovery of gun and rifle of deceased Indrabhan. 8. At this juncture, it would be relevant to mention here that the entire prosecution case is silent about the recovery of gun and rifle of deceased Indrabhan. At one point of time, during cross examination of P.W-2 Jitendra Singh, he was shown a rifle no.315 Bore No.1665 from material Exhibit, which was released by the Court in favour of Aniruddha Singh s/o deceased Indrabhan Singh. P.W-2 Jitendra Pal Singh identified it as the looted gun of his maternal grand father deceased Indrabhan Singh. Learned counsel for the appellant vehemently argued that the silence of prosecution about the place and time of recovery of alleged looted gun of Indrabhan Singh speaks volume about falsity of the prosecution case. 9. Submission is that the offence of loot of gun and rifle allegedly committed by the accused persons is based upon a concocted story. There is no recovery of the looted articles (gun and rifle) either at the pointing out of the accused persons or from their custody or possession. The above noted narration of concealment of looted gun and rifle of Indrabhan Singh in the field of accused Dinesh in the recovery memo (Ka-24) is without any basis. The narration in this regard in the recovery memo 'Exhibit Ka-24' is of no consequence as it does not add any credit to the prosecution case. The said narration itself cannot, by any stretch of imagination, attribute the recovery (alleged) of the looted gun to the accused persons. No one knows as to when and from where or at whose instance the looted gun rifle no.315 Bore No. 1665 (shown to P.W-2) was recovered by the police. Learned counsel has further drawn attention of the Court to the deposition of P.W-1 and P.W-2, wherein they had denied that the said gun was released and handed over to Indrabhan Singh at the P.S Punch, District Jhansi in their presence. Submission is that in absence of any evidence regarding the recovery of looted articles i.e. licencee gun and rifle of Indrabhan Singh, entire prosecution case under Section 396 I.P.C would fall. 10. Submission is that in absence of any evidence regarding the recovery of looted articles i.e. licencee gun and rifle of Indrabhan Singh, entire prosecution case under Section 396 I.P.C would fall. 10. It was further argued that as far as tractor No.UP 85 A 0902 belonging to the victim party, it was recovered from the Canal as per own case of the prosecution, the said recovery on the alleged pointing out of the accused persons under the recovery memo 'Exhibit Ka-5' is also of no relevance. The entire prosecution case based on the alleged loot of gun, rifle and tractor falls apart and the conviction of accused persons under Section 396 read with Section 149 I.P.C is liable to be set aside being without any basis. 11. It is further argued that the first informant stated that two persons namely Kushal Pal Singh and Kishore Singh got injured in the incident-in-question, however, only one of the alleged injured Kishore Singh was produced in the witness box. As far as injured Kishore Singh P.W-1 is concerned, his injuries as per the injury report are (i) a contusion in the right knee and (ii) abrasion in the left leg lower outer part. These injuries were minor in nature and, moreover, from the deposition of P.W-1, it is evident that these injuries had been caused during the course of a previous altercation which took place on the same day at about 4.30 p.m. P.W-1 Kishore Singh admitted in the cross examination that an incident of 'Marpeet' (physical assault) with him had occurred at about 4.30 pm on 14.3.1996, though he denied having sustained any injury in the same. The statement of P.W-1 that accused Jitendra and Karan both hit him by Axe and he sustained injuries from Axe at his back is not proved from the injury report. His deposition of having sustained injuries during the course of occurrence of the incident in question reported by Jitendra Singh does not seem to be a true story. Submission is that P.W-1 cannot be placed in the category of an injured witness to accord any credit for the same in the present trial. Moreover, his deposition is full of falsehood and cannot be taken as a proof of his presence at the place of incident. 12. Submission is that P.W-1 cannot be placed in the category of an injured witness to accord any credit for the same in the present trial. Moreover, his deposition is full of falsehood and cannot be taken as a proof of his presence at the place of incident. 12. With regard to the deposition of P.W.-2 first informant Jitendra Singh, it is argued that admittedly a previous incident of Marpeet (physical assault) had occurred during the course of the day and as per narration of P.W-2, seven (7) persons accompanied Kishore Singh (appeared as P.W-1) to lodge the First Information Report whereas deceased Indrabhan Singh went to the Police station for a different purpose, P.W.-2, however, did not prove either of the reason set up by the prosecution to go to the police station in his testimony. On one hand he denied that the gun was released and handed over to his maternal grand father in his presence and on the other he also showed ignorance about the contents of the F.I.R lodged by Kishore Singh. Even the copy of the said F.I.R has not been brought on record by the prosecution. All these inconsistencies in the deposition of the prosecution witnesses make them highly unreliable. Atleast one of the witnesses could come out with the clear version about the genesis of the incident. If the version in the F.I.R is to be believed, the accused persons were annoyed from deceased Indrabhan Singh as he led Kishore Singh and others to the police station to lodge report. It is not disclosed as to who were the accused persons implicated in the said report and whether the appellants herein have been assigned any role in the said incident. Even if the version of P.W-2 about the genesis of incident is taken as true, there is no question of bringing Section 396 I.P.C which talks of offence of dacoity and murder committed in the course of dacoity. The narration in the First Information Report and the deposition of P.W.-2 the first informant, does not indicate any nexus or any connection between death and alleged loot of gun and tractor. 13. Submission is that when prosecution failed to establish any nexus between the death and commission of dacoity, the prosecution case instituted under Section 396 would automatically fall. The narration in the First Information Report and the deposition of P.W.-2 the first informant, does not indicate any nexus or any connection between death and alleged loot of gun and tractor. 13. Submission is that when prosecution failed to establish any nexus between the death and commission of dacoity, the prosecution case instituted under Section 396 would automatically fall. At the most the trial court could have charged the appellants for committing murder under Section 302 I.P.C which has not been done. In absence of recovery of gun and rifle of Indrabhan from the possession of the accused persons, the offence of loot or dacoity under Section 396 is not established. 14. It is urged that presence of both P.W-1 and P.W-2 at the time of murder of deceased Indrabhan Singh is highly doubtful from their own statement in the Court. Injuries of Kishore Singh (P.W-1) are concocted and there is a clear contradiction in his (ocular) version and medical evidence on record. The previous incident and the entire story of P.W-1 going to the police station Punchh to lodge F.I.R along with deceased Indrabhan Singh is a concocted story created to make his presence natural with deceased at the time of murder. Projection of P.W-1 as an injured witness was nothing but a failed attempt of the prosecution to add strength to its case. First Information Report itself becomes a suspicious document as it narrates a different story. It is difficult to sustain conviction as there are serious doubts about the genesis of the incident and the presence of witnesses. The injury report of P.W-1 is also doubtful. Statements of prosecution witnesses are full of contradictions and inherent infirmities in them are sufficient to discard the version of prosecution witnesses as untruthful and untrustworthy. 15. Further, it is urged that the F.I.R is Ante-time and Ante dated. In fact, no one had seen the incident. The dead body of Indrabhan Singh was found near the place of incident in the morning on 15.3.1998 and all appellants herein have been roped in by framing a concocted story by the first informant in the report lodged on 15.3.1998. The lodging of First Information Report at the time when the chik F.I.R is prepared is not proved by the competent witness. There were interpolations in the general diary and, moreover, original general diary was not brought by the prosecution witness. The lodging of First Information Report at the time when the chik F.I.R is prepared is not proved by the competent witness. There were interpolations in the general diary and, moreover, original general diary was not brought by the prosecution witness. The special report of the incident was not sent. The prosecution witness P.W-7, constable Mohiuddin who had prepared the Chik F.I.R had admitted that though it was written in the F.I.R that report under Section 157 Cr.P.C was sent to the higher official through post but there was no receipt of C.A office nor any entry with regard to the dispatch post was brought by him to prove the same. Submission is that intimation of registration of FIR to the higher officials under Section 157 Cr.P.C ensures that the F.I.R was lodged at the time mentioned in the Chik report. This check and balance is provided to rule out any interpolation by the police authority. In fact, entire investigation is tainted. 16. Further, it is argued that the place of incident has been shifted, none of the documents containing F.I.R and crime show that F.I.R was in existence in the letter sent to the doctor, case particular has not been given. There was not one but several factors which show that the prosecution has not come with true version of the incident. There is no explanation as to why seven (7) persons with different work would go together to go to the police station. Motive to commit the crime though stated but has not been proved either cumulatively or individually. The common object to commit the crime is, thus, not proved. Taking aid of Section 149 to convict seven (7) accused of the offence of loot and murder under Section 396 is a patent error of law. The recovery of weapons cannot be related to the transaction, in as much as, it was from an open place and hence is a planted one. Similarly, the recovery of tractor from an open place namely canal though made after arrest of the accused persons but cannot be attributed to them for convicting for the offence of loot, and murder caused in commission of the loot. 17. Further from the evidence of doctor, it is clear that fire shot was made from a close range as scorching was present around the gunshot wound. 17. Further from the evidence of doctor, it is clear that fire shot was made from a close range as scorching was present around the gunshot wound. There is no injury of Axe on the person of deceased which has clearly been ruled out by the doctor. There is no recovery of farsa, alleged weapon allegedly used to injure the deceased. As per opinion of the doctor, the recovery of bloodstained Axe (kulhari), therefore, cannot connect accused to the crime. In any case, medical evidence also rules out all possibility of the crime being committed in the manner as narrated by the prosecution. It is further pointed out that the doctor has categorically stated that there was no indication of gunshot in the clothes of the deceased, which is impossible in light of the facts put forth by the prosecution. 18. Lastly, it is argued that the Investigating Officer, P.W-8 had admitted that he did not collect blood from the trolly. This shows that the dead body was not found in the tractor trolly. Thus, appreciating all evidence cumulatively, it is more than evident that the first informant had not narrated the true story of the incident. The entire story of going on the tractor to the police station and the murder having been committed at puliya when victim party was going the tractor trolly is a concocted story. In any case, offence of dacoity and murder in connection with the same under Section 396 I.P.C is neither suggested nor proved to have been committed by the accused party. The entire prosecution case is liable to be discarded and while setting aside conviction of the appellants, appeal deserves to be allowed. 19. In any case, offence of dacoity and murder in connection with the same under Section 396 I.P.C is neither suggested nor proved to have been committed by the accused party. The entire prosecution case is liable to be discarded and while setting aside conviction of the appellants, appeal deserves to be allowed. 19. Learned counsel for the appellant has placed reliance on the judgment of the Apex Court in Shahid Khan vs State of Rajasthan reported in 2016 LawSuit (SC) 202, Harbeer Singh, State of Rajasthan vs Sheeshpal & Ors reported in 2016 Law Suit(SC) 1031, Jhandu and others vs State of U.P reported in Criminal Appeal no.209 of 1983 decided on 25 April, 2018, Shivlal and other vs State of Chhattisgarh in Criminal Appeal no.610 of 2007 decided on 19 September, 2011 and Mahabir Singh vs State of M.P in Criminal Appeal no.1141 of 2007 decided on 9.11.2016 to lay thrust on various lapses pointed out in the investigation and submit that delay in recording statement of the first informant under Section 161 Cr.P.C remained unexplained. The report of crime was not submitted to the Ilaka Magistrate as mandated under Section 157 Cr.P.C. after lodging of the First Information Report. The time of registration of F.I.R. is, thus, not substantiated. The lapses in investigation coupled with the fact of non sending of report about F.I.R to the concerned Magistrate shows that the First Information Report is Ante timed. It was, thus, the result of embellishment and a creature of an afterthought. That being the position, entire prosecution would become uncreditworthy. 20. Learned A.G.A, on the other hand, submits that the First Information Report is a prompt report of the incident and the recoveries related to the incident clearly prove that the looted tractor was concealed in the Canal by the accused party. It was proved that licencee gun and revolver of Indrabhan were looted by the accused party. Above all, homicidal death of Indrabhan Singh at the site of occurrence is proved by the prosecution. There are three eye witnesses who made their depositions before the Court to clearly prove the place and time of the incident and the involvement of the accused appellant in the murder of Indrabhan Singh. All material facts point towards the guilt of the accused. There are three eye witnesses who made their depositions before the Court to clearly prove the place and time of the incident and the involvement of the accused appellant in the murder of Indrabhan Singh. All material facts point towards the guilt of the accused. All inculpatory materials put together clearly established the prosecution version of the incident and ruled out any other hypothesis put forth by the defence. 21. Learned A.G.A placing reliance on the judgment of Apex Court in case of Umar Mohammad and others vs State of Rajasthan reported in 2008 (4) SCJ 253 submits that the non-recovery of incriminating material from the possession of accused persons by itself would not exonerate them of the charges when the eye witnesses examined by the prosecution prove their complicity with the crime. Mere non-recovery of the incriminating material from the accused would not be a ground to throw the prosecution evidence with regard to the presence of prosecution witnesses at the time of occurrence or their knowledge with regard to the incident. 22. Heard learned counsel for the parties and perused the record. 23. To deal with the arguments put forward by the counsels for the rival parties, we may note at the beginning that the incident-in-question had occurred on the fateful day at about 9.00 p.m. The first report of the incident was given by Jitendra Singh in writing which was proved as 'Exhibit Ka -1'. The said report was registered in P.S-Punchh District Jhansi as Chik No.15 of 1998 at 22.45 hours (10.45 p.m). Eight persons were named as accused in the First Information Report. The first informant narrated the place of incident and the manner in which the murder was executed as also the motive to cause murder of Indrabhan. However, it appears that because of loot of licencee gun and rifle of Indra Bhan Singh, the First Information Report was registered for an offence under Section 396 I.P.C which deals with the offence of committing Dacoity/Robbery coupled with the murder in so committing Dacoity/Robbery. The inquest was done at about 7.00 a.m on 15.3.1998. It is recorded in the report that the inquest was done on the spot in the morning and the body was found lying in the trolly of a tractor near Kashipura mod on a kachha rasta. The inquest was done at about 7.00 a.m on 15.3.1998. It is recorded in the report that the inquest was done on the spot in the morning and the body was found lying in the trolly of a tractor near Kashipura mod on a kachha rasta. As there was no sun light, the inquest could not be done before 7 a.m. The post mortem report indicates fatal injuries of gunshot and sharp-edged weapon on head, neck and abdomen of deceased. It was a brutal and cold blooded killing of 65 years old man. 24. Three eye witnesses produced by the prosecution are Kishore Singh (P.W.-1) Jitendra Singh (P.W-2) and Veer Pal Singh (P.W.-3). The first witness (P.W-1) Kishore Singh was produced as an injured witness and in the words of learned counsel for the appellants he was falsely projected as an eye witness and was given the colour of being injured witnesses so as to add strength or give credit to the testimony of other eye witnesses namely P.W.-2 and P.W-3, whose presence on the spot also is doubtful. Submission is that in cross-examination of P.W.-1, he admitted that he sustained injuries in the previous incident which occurred at about 4.30 p.m, the report of which was lodged by him at about 5.30 p.m. when P.W-1 went along with Indrabhan and others to the P.S Punchh, District Jhansi. Submission is that the act of the prosecution to project P.W-1 as an injured witness itself demolishes the whole prosecution case being untruthful as this witness is proved to be a liar. 25. Having said that, it was vehemently contended by learned counsel for the appellants that this witness (P.W-1) had a previous enmity with one of the accused Dinesh and, therefore, entered in the witness box to depose against the accused party, whereas another alleged injured person Kushal Pal Singh did not enter in the witness box. As per the prosecution story, seven persons without any reason or purpose had joined at one place in order to execute the crime, i.e. killing of deceased Indrabhan Singh. The victim party consisted of seven persons who according to the prosecution were coming back from the P.S-Punchh District Jhansi on a tractor no.UP 85 A 0902. As per the prosecution story, seven persons without any reason or purpose had joined at one place in order to execute the crime, i.e. killing of deceased Indrabhan Singh. The victim party consisted of seven persons who according to the prosecution were coming back from the P.S-Punchh District Jhansi on a tractor no.UP 85 A 0902. One of them, Kishore Singh went to lodge the First Information Report of a previous incident of assault occurred during day time whereas deceased Indrabhan Singh had joined them to get his rifle and gun released from the police station. It is the same rifle and gun which was projected as items of loot/dacoity by the prosecution. 26. It is vehemently contended that from the narration of the incident by the first informant itself, atleast this much is clear that it was not a case of commission of dacoity or loot. None of the incriminating material suggesting loot or dacoity was recovered from the possession of the accused persons. The entire story of loot had been created at the behest of the victim party to grant severe punishment to five persons of the accused party with whom they had previous enmity. The recovery of looted articles namely rifle and gun of Indrabhan Singh from the possession of accused persons has not been proved by the prosecution. In fact prosecution is silent over the issue. As far as tractor is concerned, the same was recovered from an open place and not from the possession of the accused persons and that too the recovery of it is a planted one and has illegally been shown to be at the pointing out of the accused. With these, learned counsel for the appellant has pointed out various discrepancies in the statements of the three eyewitnesses which would be dealt in this judgment at the relevant juncture. 27. Coming to the testimony of P.W-1, Kishore Singh, we find that purpose of him joining the victim party to the police station Punchh was to lodge a first information report. In cross, this witness has stated that a report was lodged by him under Section 307 I.P.C on the fateful day at about 5.30 p.m and after that while returning from the police station they stayed on way to Sirsa village for a short duration. They reached at the place of the incident at about 8.30 pm. In cross, this witness has stated that a report was lodged by him under Section 307 I.P.C on the fateful day at about 5.30 p.m and after that while returning from the police station they stayed on way to Sirsa village for a short duration. They reached at the place of the incident at about 8.30 pm. He states that the persons of accused party attacked Indrabhan Singh while yelling at him that they would teach him lesson for becoming leader of the villagers. All accused persons were armed with deadly weapons such as gun, farsa, Axe (kulhari), country made pistol and lathi. According to P.W-1, Dinesh Kumar fired a shot at the deceased and others had attacked him by farsa and kulhari. With regard to his own injury, P.W-1 states that he was hit by Jitendra and Karan by Axe (kulhari) whereas the injury report clearly proved that there was no injury corresponding to the weapon Axe (kulhari). P.W.-1 suffered two injuries of which one was a contusion on the back side of right knee joint and another was an abrasion of 2cm x 2 cm on the left side of leg upper 1/3 area of Fibula bone. Both these injuries cannot be said to have been caused by Axe (kulhari), moreso, when P.W-1 stated that he was hit on his back by kulhari and clot of blood was created. The cross examination of this witness (P.W-1)gives a clear suggestion that his injuries in all likelihood had been caused during the previous altercation occurred at about 4.30 p.m, which was reported by P.W-1 (Kishore Singh) with the allegation of offence under Section 307 I.P.C. We, thus, find force in the arguments of the learned counsel for the appellants that P.W-1 cannot be placed in the category of an injured witness as projected by the prosecution so as to attach credibility to his version of necessarily present at the scene of occurrence. However, by saying so we do not mean to say that we can discard the whole testimony of this witness being an eye witness for the above reason only. However, by saying so we do not mean to say that we can discard the whole testimony of this witness being an eye witness for the above reason only. It is settled principle of appreciation of evidence that falsity in the statement of witnesses on some point would not make his whole testimony untrustworthy, in as much as, it is proved that Kishore Singh (P.W-1) went to the police station on 14.3.1998 with P.W -3 Veerpal Singh and lodged a First Information Report under section 307 I.P.C. It is stated by P.W-3 Veer Pal Singh in his examination-in-chief that they went to lodge the report of the altercation which took place between Dinesh and Kishore Singh. Dinesh and his son are accused in the present trial. The statement of P.W-1, P.W.-2 and P.W-3 for going to the P.S-Punchh on the fateful day and being present at the place and time of incident is consistent. They categorically stated in their testimony in examination-in-chief that they went to the police station to lodge the report by Kishore (P.W-1). Nothing could be elicited from their cross examination so as to discard this version. The presence of P.W-1, Kishore Singh as one of the members of the victim party at the place of incident is, thus, proved. 28. As far as Jitendra Singh, P.W-2 is concerned, he is grand son of deceased Indrabhan. Three eye witnesses (P.W-1, P.W-2, P.W-3) proved in their testimony that Indrabhan went to the police station to get his gun and rifle released, which were deposited during the course of election. Various questions were put to these witnesses as to whether the licencee gun and rifle of Indrabhan Singh were handed over to him in their presence but no plausible answer could be given by anyone of them. Their shaky answers have been placed before us to vehemently contend that they were making a story on their own and were actually not present with deceased Indrabhan Singh. In our opinion, the minor inconsistencies in the statement of eye witnesses regarding the return/release of rifle and gun to the licencee Indrabhan Singh and their presence at the relevant point of time inside the police station is immaterial and does not discredit the prosecution story. 29. Further noticeable is the fact that P.W.-2 was cross-examined over the stretch of a period of one year. 29. Further noticeable is the fact that P.W.-2 was cross-examined over the stretch of a period of one year. His examination in chief was recorded in October, 2003 whereas cross was completed in April, 2004. He was again recalled in the year 2005. When one witness is examined on different dates for different accused persons over a long period of one year, some discrepancies in his statement are bound to occur. However, nothing much could be elicited from his statement recorded on recall. 30. As far as another injured witness Kushal Pal Singh is concerned, it has come on record that he could not enter in the witness box as he died after 4-5 months of the incident. In this case, the oral testimony of the prosecution witnesses commenced only in the year 2001, i.e. after about three years of the incident. 31. Thus, analysing the testimony of P.W-2 the first informant, it is proved that he left the spot of crime at about 9.30 p.m to lodge the First Information Report. There is no doubt about the report being registered at 10.15 p.m. No circumstance could be placed before us to establish that it was an Ante-time report. The prompt report of the incident by P.W-2 who himself was driving the tractor carrying seven members of the victim party is proved by the prosecution and is an assurance of earliest reporting of the crime without any embellishment or cooked up story. 32. As far as the discrepancy in the statement of P.W-1 and P.W-2 as to who had opened the first fire on Indrabhan, we may note that the members of the victim party were taken by surprise and when Indrabhan was attacked, all of them rushed to save their life. P.W-2 was driving the tractor, he stated that he jumped from the tractor and hid to save himself, others followed the suit. In this scenario, it is not possible for the prosecution witness to describe the manner of assault vividly. The discrepancy which has occurred in the statement of eye witnesses (P.W-1 to P.W-3) as to which of the assailants first assaulted deceased and how, was natural and was bound to occur. In this scenario, it is not possible for the prosecution witness to describe the manner of assault vividly. The discrepancy which has occurred in the statement of eye witnesses (P.W-1 to P.W-3) as to which of the assailants first assaulted deceased and how, was natural and was bound to occur. Atleast this much is proved that only person of the victim party namely Indrabhan came in the hands of the accused persons as he was first hit on the trolly of the tractor and could not run to save his life. Further, the accused party attacked Indrabhan and while assaulting took him on the tractor with trolly to another place and caused his death. It, therefore, could not be ascertained clearly as to how many shots were fired by whom or actually who killed deceased by inflicting fatal injuries. 33. The post mortem report indicates that there were seven injuries on the person of deceased and all of them were on his vital parts:- (i) Injury no.1, is Incised wound of 1 cm x 7 cm bone deep on the neck with bone cut in the middle. (ii) Injury no.2 is Incised wound 3 cm x 2 cm skin deep on chin deep with bone cut. (iii) Injury no.3 is lacerated wound 11 cm x 5 cm skull bone deep, brain cut. Brain matter was coming out. (iv) There is one gun shot injury (entry wound) (Injury No.5) on the abdomen left side below ribs corresponding to which an exit wound (Injury no.6) was found at the back, scorching present around the entry wound (Injury no.5). 34. Internal examination revealed that Riotal occipetal bone of skull was broken below injury no.3. Brain & its membranes were damaged. Rib no.9 was broken below injury no.5. Bronchea was cut below injury no.1. Heart was empty. Gases present in small intestine. Faecal matter was present in large intestine. Cause of death was shock and hemorrage due to Ante-mortem injuries. 35. This shows that deceased was hit from the front while he was on the trolly. Since P.W-2 was driving the trolly he could not have seen as to how the attack was made. And further, as he and other members of victim party hid to save their life, they could not give the details as to how murder was caused. 36. Since P.W-2 was driving the trolly he could not have seen as to how the attack was made. And further, as he and other members of victim party hid to save their life, they could not give the details as to how murder was caused. 36. There is one more argument which was placed to dispute the presence of the eye witness, that is the entry wound of gunshot, which was inverted and scorching was present around the same. The submission of learned counsel for the appellants is that it was a close range firing which is in clear contradiction to the statement of eyewitnesses that Indrabhan Singh (deceased) was fired first while he was on tractor and then was assaulted with sharp-edged weapons. As per the witnesses the members of the accused party were on the road. In that event, the injury no.5 entry wound of gun shot could not be a close range firing as it could not have occurred from the distance mentioned in the narration of the eye witnesses. 37. To deal with the same, we may reiterate that it was not possible for the prosecution in an incident diabolical planned to explain each and every injury suffered by the victim. Eye witnesses, in the instant case, consistently stated that attack on deceased was made in the trolly and accused party took the tractor and trolly to another place while attacking him. The deceased Indrabhan Singh could not left the trolly. Such consistent evidence can not be discarded on the ground that the oral depositions of eye witnesses do not match with the medical evidence regarding the distance from which deceased was fired. Rather, in the facts and circumstances of the instant case, looking to the nature of assault it was natural that the witnesses missed the details of attack and when they were cross examined for a long period of seven years from the incident. The statement of P.W-3 was recorded in the year 2005. 38. Moreover, scorching around the firearm wound would also depend upon the constituent of the propellant charged. Some discrepancies as to the distance of gun shot on the facts of this case would not weaken the prosecution case. The medical evidence cannot be given primacy to discredit the value of the eye witness testimony when their presence at the time of the incident otherwise has been established. 39. Some discrepancies as to the distance of gun shot on the facts of this case would not weaken the prosecution case. The medical evidence cannot be given primacy to discredit the value of the eye witness testimony when their presence at the time of the incident otherwise has been established. 39. From the above analysis of evidence of the prosecution witnesses, this much is clear that deceased was brought to death at the time and the place narrated in their testimony, by the accused persons from the weapons carried by them. 40. It is also proved that deceased was challenged by the accused persons when the victim party expressed their annoyance for the support given by him to Kishore Singh (P.W-1). 41. From the narration in the First Information Report and the statement of three eye witnesses, it is proved to be a case of brutal and cold blooded killing of Indrabhan Singh for the reason of annoyance of accused party on account of lodging of the First Information Report against Dinesh a co-accused. Dacoity or robbery was not the motive. The offence committed with an intention to kill Indrabhan Singh which is clear from the testimony of the prosecution witnesses. As it is clearly averred, that the accused persons had attacked Indrabhan while yelling at him and exhorting each other that he should be killed for his act of leadership. The injuries on the person of deceased and manner in which murder was executed, it cannot be said to be a murder which occurred during the course of committing robbery or dacoity. We say so for more that one reason that is that the prosecution nowhere suggested that the accused persons had any information regarding the rifle and gun being in possession of deceased or release of the same from the police station. The offence of loot or robbery has not been established by the prosecution, in as much as, looted articles were not recovered from the possession of the accused persons nor there is any proof of 'loot'. Though during the course of cross examination, P.W-2 was shown a rifle no.1665 315 bore which was released by the Court in favour of the son of deceased Indrabhan Singh, but it has not come in evidence as to in which proceeding the said rifle was released and how and from where it was recovered. Though during the course of cross examination, P.W-2 was shown a rifle no.1665 315 bore which was released by the Court in favour of the son of deceased Indrabhan Singh, but it has not come in evidence as to in which proceeding the said rifle was released and how and from where it was recovered. The recovery memo dated 2.4.1998 (Exhibit Ka-24), police does not disclose recovery of rifle from the possession of the accused or at their pointing out. The prosecution is completely silent about motive and recovery for conviction under Section 396 I.P.C, which requires that two ingredients are satisfied: (i) Commission of dacoity/robbery; (ii) Commission of murder in so committing dacoity/robbery. If one of the two elements are not found present or not proved conviction under Section 396 I.P.C is not possible. 42. For the above reasoning, we found it difficult to sustain the conviction of the accused under Section 396 I.P.C, however, in our opinion, for committing murder of Indrabhan in an organised manner, the accused persons are liable to be convicted for the offences under Section 302 I.P.C read with Section 149 I.P.C. The life sentence awarded to the accused persons under Section 396 I.P.C, read with Section 149 I.P.C is to be treated as sentence for the offence under Section 302 read with Section 149 I.P.C. We propose to modify the operative portion of the trial Court judgment to that extent. 43. At this stage, a question may come up about the power of the Court to modify the conviction and uphold the life sentence under Section 302 I.P.C read with Section 149 I.P.C, as the accused persons have not been charged under the said sections. The charge against the accused persons was for committing offences under Section 396 read with Section 149 I.P.C. This issue, however, can be answered safely with the aid of the decision of the Apex Court in Rafiq Ahmad @ Rafiq vs State of U.P reported in AIR (2011) SC 3114, wherein a short question before the Court was whether the appellant therein who was charged for an offence under Section 396 I.P.C could be convicted for the offence under Section 302 I.P.C without reformulation/alteration of the charge. The ground to challenge the conviction was that the appellant therein was deprived of a fair opportunity of defence. The ground to challenge the conviction was that the appellant therein was deprived of a fair opportunity of defence. Conviction under Section 302 I.P.C in absence of framing of a charge had caused him serious prejudice. It was urged that Section 302 I.P.C is graver than an offence punishable under Section 396 I.P.C and as such entire trial and conviction of the appellant is vitiated in law. 44. In the said case, while dealing with the meaning of prejudice to an accused it is held that “prejudice” is incapable of being interpreted in its generic sense and applied to criminal jurisprudence because of the protection available to an accused under the Indian Criminal Jurisprudence. The accused has the freedom to maintain silence during the investigation as well as before the Court. He may choose to maintain silence or make complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded. Right to fair trial, presumption of innocence until pronouncement of guilt and the standards of proof, i.e. the prosecution must prove its case beyond reasonable doubt are the basic and crucial tenets of our criminal jurisprudence. The Courts are, thus, required to examine both the contents of the allegation of prejudice as well as its extent in relation to these aspects of the case of the accused. It will neither be possible nor appropriate to state such principle with exactitude as it will always depend on the facts and circumstances of a given case. In any event, the Court has to ensure that the ends of justice are met as that alone is the goal of criminal adjudication. 45. It was further observed that whenever plea of prejudice is raised by the accused, it must be examined with reference to the above rights and safeguards, as it is the violation of these rights alone that may result in weakening of the case of the prosecution and benefit to the accused in accordance with law. 46. It was further considered that as far as settled principle of criminal jurisprudence that in all cases, non-framing of charge or some defect in drafting of the charge per se would not vitiate the trial itself, will have to be examined in the facts and circumstances of a given case. 46. It was further considered that as far as settled principle of criminal jurisprudence that in all cases, non-framing of charge or some defect in drafting of the charge per se would not vitiate the trial itself, will have to be examined in the facts and circumstances of a given case. [Reference was made to the decision in Dinesh Seth vs State of NCT of Delhi, (2008) 14 SCC 94 ] 47. Having said that, it was also considered therein that a person charged with a heinous or grave offence can be punished for a less grave offence of cognate nature whose essentials are satisfied with the evidence on record i.e. where the offences are cognate offences with commonality in their feature, duly supported by evidence on record. The Court can always exercise its power to punish the accused for one or the other offence provided the accused does not suffer any prejudice as afore indicated. 48. Referring to the previous decisions of the Apex Court along the same line it was held therein that there is no absolute bar or impediment in law, in punishing a person for an offence less grave than the offence for which the accused was charged during the course of the trial provided the essential ingredients for adopting such a course are satisfied. Having stated that, it was further considered whether an accused charged with an offence punishable under Section 396 I.P.C can be convicted in alternative for an offence under Section 302 I.P.C. Answering this question, it was observed in paragraph 32' and 33' of the report as under:- ““32. In the present case, we are primarily concerned with an offence punishable under Section 396 IPC and in alternative for an offence under Section 302 of the IPC. The offence under Section 396 consists of two parts: firstly, dacoity by five or more persons, and secondly, committing of a murder in addition to the offence of dacoity. If the accused have committed both these offences, they are liable to be punished with death or imprisonment for life or rigorous imprisonment for a term which may extend to ten years and be liable to pay fine as well. Under Section 302 IPC, whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to pay fine. The offence of murder has been explained under Section 300 IPC. Under Section 302 IPC, whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to pay fine. The offence of murder has been explained under Section 300 IPC. If the act by which the death is caused is done with the intention of causing death, it is murder. It will also be a murder, if it falls in any of the circumstances secondly, thirdly and fourthly of Section 300 and it is not so when it falls in the exception to that Section. 33. On the conjoint reading of Sections 396 and 302 IPC, it is clear that the offence of murder has been lifted and incorporated in the provisions of Section 396 IPC. In other words, the offence of murder punishable under Section 302 and as defined under Section 300 will have to be read into the provisions of offences stated under Section 396 IPC. In other words, where a provision is physically lifted and made part of another provision, it shall fall within the ambit and scope of principle akin to 'legislation by incorporation' which normally is applied between an existing statute and a newly enacted law. The expression 'murder' appearing in Section 396 would have to take necessarily in its ambit and scope the ingredients of Section 300 of the IPC. In our opinion, there is no scope for any ambiguity. The provisions are clear and admit no scope for application of any other principle of interpretation except the 'golden rule of construction', i.e., to read the statutory language grammatically and terminologically in the ordinary and primary sense which it appears in its context without omission or addition. These provisions read collectively, put the matter beyond ambiguity that the offence of murder, is by specific language, included in the offences under Section 396. It will have the same connotation, meaning and ingredients as are contemplated under the provisions of Section 302 IPC.” 49. It was, thus, held that the offence of murder has been lifted and incorporated in the provisions of Section 396 I.P.C and, therefore, the offence punishable under Section 302 will have to be read into the provisions of offence stated under Section 396 I.P.C. 50. It was, thus, held that the offence of murder has been lifted and incorporated in the provisions of Section 396 I.P.C and, therefore, the offence punishable under Section 302 will have to be read into the provisions of offence stated under Section 396 I.P.C. 50. We may also note that the murder defined under Section 300 is an act done with such knowledge, and has been committed without any excuse for incurring the risk of causing the death or bodily injury to fall under Section 302 I.P.C. The requirement of Section 302 is that the act of homicidal death should be wholly inexcusable [Reference AIR 1940 All 486 , Emperor vs Dhirajia] 51. In view of the above discussion of the evidence and legal position, we are not convinced to accept or act upon the hypothesis put forward by the learned counsel for the appellants that it was a blind murder and that the incident had occurred in the night hours and no one had seen it. The said alternative hypothesis brought by the defence is not possible to believe as the prosecution has proved the presence of witnesses with deceased at the place and time of the incident. As stated above, minor inconsistencies and variations in the statement of eyewitnesses in the instant case are not such which would shake the basis of the prosecution case. 52. We, therefore, convict the appellants of the offence under Section 302 read with 149 I.P.C. The accused persons have been sentenced with life imprisonment for the offence under Section 396 read with Section 149 I.P.C, by the trial court. The minimum punishment under Section 302 I.P.C is life imprisonment. No modification of sentence is, thus, needed. As far as the conviction of some of the appellants under Section 412 I.P.C is concerned, the same is set aside, in as much as, there is no evidence of receipt of stolen articles after dacoity by them and as the offence of dacoity has not been proved by the prosecution. 53. For conviction of appellants Ratan lal and Khadak Singh under Section 25 Arms Act, the fire weapons recovered on their pointing out were without licence, their conviction under Section 25 Arms Act is, therefore, upheld. 53. For conviction of appellants Ratan lal and Khadak Singh under Section 25 Arms Act, the fire weapons recovered on their pointing out were without licence, their conviction under Section 25 Arms Act is, therefore, upheld. The fine imposed by the trial court for conviction under Section 396 read with Section 149 I.P.C shall be deemed to be the fine for conviction of the offences under Section 302 read with Section 149 I.P.C. The condition imposed on default in payment of fine would operate. The sentence under Section 25 Arms Act and the fine and the condition of default imposed by the trial court for that offence is also upheld. 54. Resultantly, the appeal is dismissed with modification in the trial court judgment as indicated above. 55. The appellant nos.1, 3, 4 and 6 Ratan lal, Narendra @ Vinnu, Jitendra and Ram Khilawan; respectively, are in jail. 56. The appellant nos.2, 5 and 7 namely Dinesh, Karan and Khadak Singh; respectively, are on bail. Their bail bonds are cancelled and sureties are discharged. They shall surrender before the court concerned forthwith from where they shall be sent to jail to undergo the sentence. The office is directed to transmit back the lower court record along with a certified copy of this judgment for information and necessary compliance. 57. Necessary steps shall be taken by the court below to notify this judgment to all concerned. 58. The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.