Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 551 (ALL)

Arvind v. State of U. P.

2020-02-19

ARVIND KUMAR MISHRA I, GAUTAM CHOWDHARY

body2020
JUDGMENT : 1. Heard Sri Nazrul Islam Jafri, learned senior counsel assisted by Sri M. Islam, learned counsel for the appellant, Sri Krishan Pahal, learned A.A.G. for the State assisted by Sri Bhanu Prakash Singh learned brief holder and perused the record of the appeal. 2. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order dated 03.12.1990 passed by II Additional Sessions Judge, Rampur in Sessions Trial No. 9 of 1989, (State Vs. Arvind and another), Case Crime No. 88 of 1988, police station-Patwai, district-Rampur, whereby the appellant-Arvind-has been convicted and sentenced to undergo ten years R.I. and life imprisonment for offence under Sections 449 IPC and 302/34 IPC, respectively. 3. Appropriate to mention that during the course of appeal, appellant no. 2 Sita Ram expired, therefore, his appeal stood abated against him, vide order of this Court dated 03.12.2018. 4. Facts engraved in the first information report-Exhibit Ka-1-reflect that there was pending civil litigation between father of the informant-Nem Chand-and accused-Arvind and Sitaram-both sons of Baburam-in respect of some landed property. It is stated that in the night intervening 17/18.6.1988 informant's father-Nem Chand, his uncle Mishri and Hemraj were sleeping in the courtyard of their house, it was around 1.30 a.m. that it started drizzling, therefore, the informant and his family members started moving inside the house holding their respective cots, at the same time miscreants standing at their portal outside flashed torch lights upon them, when Hemraj and Mishri too flashed their torches towards them and spotted co-accused-Arvind and Sitaram. Accused-Arvind and Sitaram-were possessing country-made gun and two others possessing swords were standing over there. All the miscreants rushed into the courtyard and asked informant's uncle-Hemraj-the whereabouts of Nem Chand. At that point of time, Nem Chand (father of the informant) emerged from inside the house. Thereupon, the accused-Arvind and Sitaram-fired on him (Nem Chand) with their country-made guns, which caused gunshot pellet injuries on the chest and stomach of the deceased. Alarm was raised, whereupon, Harprasad s/o Khyali and Kundan s/o Ishwari from the neighbourhood and the other co-villagers holding torches in their hands arrived on the spot, due to which, all the four assailants escaped away towards the west of the village towards the canal. Accused were identified in the torch light. Alarm was raised, whereupon, Harprasad s/o Khyali and Kundan s/o Ishwari from the neighbourhood and the other co-villagers holding torches in their hands arrived on the spot, due to which, all the four assailants escaped away towards the west of the village towards the canal. Accused were identified in the torch light. Laden on a cot victim-Nem Chand-was (then) taken to the police station by the informant and his uncle, but Nem Chand breathed his last on the way near the police station. The informant wrote the FIR-Exhibit Ka-1-and lodged it at the Police Station. 5. Contents of the written report were taken down in the concerned check FIR at Case Crime No. 88 of 1988, under Section 302 IPC at Police Station-Patwai, District-Rampur at 2.30 a.m. on 18.6.1988. The copy of check FIR is Ex. Ka. 13 and relevant entries were made in the concerned G.D. at serial no. 3 at 2.30 A.M. on 18.6.1988 whereby case was registered against the accused. Copy of G.D. is Ext. Ka.-14. 6. After registration of the case, Investigating Officer-Umesh Chandra Mishra P.W. 9 swung into action and took-over investigation on 18.6.1988. He recorded the statements of Gajram Singh, Hemraj and Mishri at the police station. The dead body was lying in the police station but on account of it being night hours, proceedings for inquest were postponed until the following morning. On the next day (18.6.1988) at 6 A.M. the Investigating Officer appointed inquest witnesses and prepared the inquest report, which is Ext. Ka.-5. In the opinion of witnesses, it was thought proper to send the dead body of Nem Chand for post-mortem examination for ascertaining real cause of death. 7. In the process relevant papers were also prepared by the Investigating Officer viz. Photonash (Exhibit Ka-6), challan dead body (Exhibit Ka-7), specimen seal (Exhibit Ka-8), letter to C.M.O. and R.I. (Exhibits Ka-9 and 11, respectively) etc. The dead body was sealed and was entrusted to S.I. Bhojraj Singh and Dharmveer Singh for post-mortem examination. 8. Post-mortem examination on the cadaver of the deceased was conducted on 18.06.1988 at 01.45 P.M. by Dr. S.P. Singh P.W. 11, wherein the following ante-mortem injuries were noted at the time of examination: Ante mortem injuries 1. Gunshot wound of entry 3 cm x 3 cm x chest cavity deep over middle of sternum, margin lacerated and inverted. No blackening or scorching. 2. S.P. Singh P.W. 11, wherein the following ante-mortem injuries were noted at the time of examination: Ante mortem injuries 1. Gunshot wound of entry 3 cm x 3 cm x chest cavity deep over middle of sternum, margin lacerated and inverted. No blackening or scorching. 2. Multiple firearm wounds of entry, each measuring ½ cm x ½ cm x left side of abdomen, margins lacerated and inverted, just below sub coastal margins. 3. Gunshot wounds of exit four in number, each measuring 2 cm x 2 cm x back of communicate injury no. 2 on the back of abdomen (right side back of abdomen), margins lacerated and everted. In the opinion of doctor, cause of death was stated to be haemorrhage and shock as a result of ante-mortem injuries. The post-mortem report is Exhibit Ka-15. 9. The copy of the post-mortem report was obtained by the Investigating Officer on 20.6.1988. Blood stained clothes of the deceased-Nem Chand were sent for Chemical Examination at Agra. The Chemical Examiner's report is Exhibit Ka-16. 10. Consequent whereupon the Investigating Officer also inspected the spot and prepared the site plan-Exhibit Ka-12. He also took sample of simple and blood stained clay-roll from the spot in two separate containers and prepared a memo of the same-Exhibit Ka-4. One empty cartridge. 12 bore and three pellets were recovered from the spot, a memo of the same was also prepared as Exhibit Ka-3. Besides, he recorded statement of Omwarti (wife of the deceased-Nem Chand) and Niranjan, Bhawani Prasad. On 19.6.1988, he arrested the accused-Arvind and Sita Ram-and interrogated them. He also recovered the torches and prepared the memo of the same as Exhibit Ka-2. 11. After completing the necessary formalities the Investigating Officer filed the charge-sheet against the accused under Section 302 IPC. 12. The case of the appellant was committed to the court of Sessions from where it was made over for trial and disposal to the aforesaid trial court. The trial court, after hearing the accused and the prosecution on point of charge, was satisfied with prima facie case for the offence under sections 449, 302/34 I.P.C., consequently it framed charges against accused under the aforesaid sections of I.P.C. The charges were read over and explained to the accused, who abjured the charges and claimed to be tried. 13. In turn, prosecution was asked to adduce its testimony in order to prove the guilt. 13. In turn, prosecution was asked to adduce its testimony in order to prove the guilt. The prosecution produced in all 11 witnesses. Brief reference of the prosecution witnesses is ut-infra:- 14. Gajram Singh P.W. 1 is the first informant and eye-witness of the occurrence. He has proved the written report Ext. Ka.-1. Hemraj P.W. 2 and Mishri P.W. 3 are the eyewitnesses and brothers of the deceased. Har Prasad is P.W. 4, he has been declared hostile, similarly Kundan Lal P.W. 5 has not supported the prosecution case. Smt. Omwati is P.W. 6. She is also the eye witness and wife of the deceased. Nem Chand is P.W. 7. He is witness of fact of recovery of empty cartridge and pellets. Sompal is P.W. 8. Umesh Chandra Mishra is P.W. 9 is the Investigating Officer of this case. Constable Bhojraj Singh is P.W. 10. Dr. S.P. Singh P.W. 11 has conducted post-mortem examination (Exhibit Ka-15) on the dead body of the deceased. 15. Except as above, no other evidence was adduced by the prosecution, therefore, evidence for the prosecution was closed and the statement of the accused was recorded under section 313 Cr.P.C. wherein they have claimed to have been falsely implicated in the case on account of enmity. 16. The defence did not lead any evidence, whatsoever. 17. The learned trial court after hearing both the sides on merit and after appraising the facts and evaluating evidence on record returned finding of conviction and sentenced the appellant to ten years R.I. and life imprisonment for offence under Section 449 IPC and under Section 302/34 IPC, respectively. 18. Resultantly, this appeal by the accused-appellant. 19. Arguments advanced by the learned senior counsel Sri Nazrul Islam Jafri are manifold, the probability of commission of the offence by the present appellant-Arvind-is highly bleak on account of various facts and attendant circumstances of this case and the testimonial description of the prosecution witnesses of fact. The F.I.R. is ante-timed. 18. Resultantly, this appeal by the accused-appellant. 19. Arguments advanced by the learned senior counsel Sri Nazrul Islam Jafri are manifold, the probability of commission of the offence by the present appellant-Arvind-is highly bleak on account of various facts and attendant circumstances of this case and the testimonial description of the prosecution witnesses of fact. The F.I.R. is ante-timed. How is it possible that the incident occurred at 1.30 a.m. in the night intervening 17/18.6.1988 and the matter was reported at the Police Station-Patwai, district-Rampur at 2.30 A.M. and the description about the lodging of the F.I.R. is quite dramatic and it is claimed that one shop was open around 2.30 a.m. from where help was sought by purchasing certain articles thereafter report was scribed outside the police station then it was lodged. It has emerged in the testimony of the prosecution witnesses that at the time of the lodging of the FIR, daroga ji was inside the police station which aspect goes to show police interference and deliberation in scribing and lodging the written report-Exhibit Ka-1. The source of light on the spot is absolutely missing. Under what circumstances when the accused were known and resident of the same village still they will not hide/conceal their faces while committing the offence has not been properly explained. In support of his claim on point of non-concealment of faces, learned senior counsel (for the appellant) has placed reliance on the law laid down in Criminal Appeal No. 291 of 2010, Subhash vs. State of U.P. decided on 2nd November, 2017. 20. The memo of torch was deliberately and belatedly prepared by the Investigating Officer after one month of the occurrence itself. Moreover, the source of light-the torch in question has not been produced before the trial court and the concerned witness Sompal P.W. 8 has not whispered even a single word regarding the use of the torch and taking possession of the same by the Investigating Officer. Fact is that the matter was deliberated upon with the help of the police and on account of pending civil litigation involving landed property/will a false case has been thrusted upon the appellant for no worthy reason. There are material contradictions occurring in the statement of the prosecution witnesses. They are wholly unreliable, partisan and interested witnesses. Their testimony on the whole, does not inspire confidence. There are material contradictions occurring in the statement of the prosecution witnesses. They are wholly unreliable, partisan and interested witnesses. Their testimony on the whole, does not inspire confidence. The circumstances when taken as a whole point out that no one infact saw the occurrence and the incident was caused by some unknown assailant, who was not identified till the inquest was prepared and the relevant entries were kept empty at the police station and after the matter was deliberated and sorted out by the informant side and the police, things were tried to be filled up in a casual manner. The charges under Sections 449, 302/34 IPC have not been proved beyond reasonable doubt. 21. While retorting to the aforesaid argument, learned A.A.G. has submitted that in this case the main incident of shooting down the father (Nem Chand) of the informant has been proved profusely by the consistent testimony of the prosecution witnesses-i.e. particularly P.W. 1 Gajram Singh and P.W. 2 Hemraj. Their presence on the spot cannot be doubted. They are the natural persons present on the spot. 22. The learned A.A.G. also engaged our attention to the testimony of P.W. 5 Kundan Lal and claimed that by virtue of his testimony, it trickles out that Arvind was one among the assailants and he was sighted on the spot. Albeit, he turned hostile and resiled from his statement and he is not willing to come out specifically against the appellant. However, in the cross-examination participation of the present appellant-Arvind-in the incident cannot be ruled out as he has been spotted on the spot by the witnesses. 23. He further submitted that lodging of the FIR is prompt. There is no point in claiming it to be ante-timed and there was no reason as such. The motive imputed for committing the crime is also specific and direct. In so far as the task of hiding faces by the assailants are concerned, then the mindset of the assailants cannot be taken to work uniformly in all cases and it is not a case that the assailants attempted to commit dacoity and in the process murdered the victim. The ill-will of the appellant was of such degree that they dared commit the offence in the presence of the other inmates of the house. 24. The ill-will of the appellant was of such degree that they dared commit the offence in the presence of the other inmates of the house. 24. We have considered the rival submissions and also considered the rival claim made by both the parties. In view of above, the point for adjudication of this appeal relates to fact whether the prosecution has been successful in proving charges against the appellant beyond all reasonable doubt? 25. The genesis of the prosecution case is reflected from perusal of the first information report, Exhibit Ka-1, which, inter-alia, contains facts in form of allegation that some litigation regarding landed property was pending between the informant side and the present appellant. At the time of the occurrence, the deceased along with his family members was sleeping in the courtyard of his house at night, it was around 1/1.30 a.m. some drizzle took place and due to drizzle, his other family members sleeping over there in the courtyard took their cots and were in the process of moving inside the house when some persons, who were standing at the door (of the house) flashed their torches towards the informant side, whereupon, informant's uncles-Hemraj and Mishri-also flashed their torches towards them, then they saw the appellant (Arvind) possessing country made gun in company with others. The miscreants arrived in the courtyard asked about Nem Chand and in the meanwhile, informant's father Nem Chand arrived in the courtyard coming out of his house, when Arvind and other co-accused fired on him with their country made gun, which caused gunshot injury on the chest and stomach of the deceased. Alarm was raised, whereupon, the neighbours and the co-villagers possessing torches in their hands arrived on the spot, due to which, the assailants escaped away from the scene. The incident is stated to have been seen in the torch light and the assailants identified. It was also stated that two unknown persons were also among the assailants, who can be identified, as and when they are seen. In the concluding description, the written report entails description that the informant and his uncle were carrying the deceased on a cot to the police station, but the deceased succumbed to his injuries on way near the police station. The dead body was stated to be lying on the cot. In the concluding description, the written report entails description that the informant and his uncle were carrying the deceased on a cot to the police station, but the deceased succumbed to his injuries on way near the police station. The dead body was stated to be lying on the cot. The contents of the FIR have been entered in the concerned Check FIR and the relevant entries made in the General Diary on 18.6.1988 at 2.30 a.m. at Case Crime No. 88 of 1988 and case was registered at Police Station-Patwai against the appellant in district-Rampur. The time of the occurrence was stated to be 1.30 a.m. on 18.6.1988. 26. The basic contention raised on the point of occurrence relates to fact that the incident was not seen by anybody and the incident was caused by some unknown persons, but on account of pending civil litigation, the name of the appellant has been falsely involved in this case. It has also been claimed that there was no motive for the appellant to commit the offence. Further contention is that some unknown dacoits raided the village and they killed Nem Chand. 27. We carefully scrutinized the testimony of the prosecution witnesses of fact and particularly the informant Gajram Singh P.W. 1, Hemraj P.W. 2, Mishri P.W. 3, Har Prasad P.W. 4, Kundan Lal P.W. 5 and Omwati P.W. 6 etc. They have given in their description of the occurrence every particular of the occurrence. All have stated about the accused that he (Arvind) participated in the offence and he in company with other co-accused opened fire on Nem Chand. It has also been claimed on behalf of the appellant that certain witnesses were not present-say-the presence of Omwati P.W. 6 is doubtful. But, we are not impressed with the argument for the reason that merely because the presence of Omwati P.W. 6 on the spot if doubtful, what about the presence of the other witnesses of fact-say-P.W. 1 Gajram Singh, P.W. 2 Hemraj and P.W. 3 Mishri etc. 28. We have to scrutinize the fact from particular angle whether, the presence of the witnesses of fact on the spot is natural and their testimony regarding the occurrence is worthy of credence and their version can be taken as truthful version or not? 29. With that view in mind, we have also scrutinized the entire facts and circumstances of the case. 29. With that view in mind, we have also scrutinized the entire facts and circumstances of the case. Now, the admitted prevailing/existing circumstance is that the occurrence took place in the night intervening 17/18.6.1988 and it so happened that the deceased along with his family members was sleeping on the cot in the courtyard of the house and this house is inhabited by a number of family members of the deceased-Nem Chand. It Drizzled in the night around 1.30 a.m. (on 18.6.1988), when the family members, sleeping in the courtyard, were awakened and they tried to move inside the house with their cots when the incident is stated to have been caused by the appellant by opening fire on the deceased after arriving in the courtyard of the house. 30. Sri N.I. Jafri, learned senior counsel has earnestly urged that it so happened that all the family members, who were sleeping in the courtyard had by that time moved inside the house in their respective rooms when the incident was caused by some unknown persons and nobody could see the real assailants. 31. We are not ready to accept this piece of argument in the wake of the specific testimony of the prosecution witnesses of fact-say-P.W. 1 Gajram Singh and P.W. 2 Hemraj. They have in their examination-in-chief as well as in cross-examination, consistently and satisfactorily detailed about the very manner in which the incident commenced and culminated into death of Nem Chand. As per their testimony, it started drizzling around 1.30 a.m. On 18.6.1988 while the deceased along with Gajram Singh P.W. 1 and Hemraj P.W. 2 and other members of the family were sleeping in the courtyard and they tried to move inside their house, simultaneously, it so happened that four persons flashed their torch lights on them (prosecution side) and they entered in the courtyard, when the informant-Gajram Singh P.W. 1, Hemraj P.W. 2 and Mishri P.W. 3 also flashed their torch light on the miscreants, when they saw accused-Arvind and Sitaram-possessing country made gun in company with two others and one of the two unknown possessing sword. The miscreants asked P.W. 2 Hemraj and P.W. 3 Mishri about Nem Chand, in the meanwhile, the informant's father-Nem Chand also came out of the room in the courtyard, when fire was opened by the appellant and one co-accused on him, which fire hit Nem Chand on his chest and stomach. 32. This piece of testimony virtually goes unimpeachable. Merely because certain trivial aberrations occur in the testimony of the prosecution witnesses-say-P.W. 3 Mishri and P.W. 6 Omwati; that alone would not be suffice for over throwing the entire prosecution case. For the shake of argument, we can assume and hold that even P.W. 6 Omwati was not present on the spot, even then the presence on the spot of the other prosecution witnesses-say-Gajram Singh P.W. 1 and Hemraj P.W. 2 is proved satisfactorily beyond doubt. Their conduct on the spot is natural, it has emerged in the cross-examination of Mishri P.W. 3, as appearing on page No. 33 of the paper book that the family members had gone inside their rooms, but that is a casual and isolated statement. No further cross-examination on this aspect done. His testimony virtually proves the presence of P.W. 1 Gajram on the spot and may be that few members of the family were inside the house at the time of the occurrence, but the presence of P.W. 3 Mishri in the courtyard is very much there and his testimony regarding the occurrence is innocuous and inaccessible. 33. Now, the point of FIR being ante-timed is merely an argument not whispered by any cogent evidence or circumstance. The dead body was taken to the police station and the FIR was scribed outside the police station. No infirmity or inconsistency of any sort giving rise to any adverse circumstance is perceptible in the testimony of the prosecution witnesses. 34. Major thrust has been given to the entire testimony of Omwati P.W. 6 that a wholesome reading of her testimony negates the presence of the other prosecution witnesses of fact on the spot. We have also scrutinized carefully the entire testimony of P.W. 6 Omwati as forthcoming about the occurrence. Obviously, she is vacillating on certain points, but she is not vacillating on the point of the commission of the offence and her deviation is minor, trivial and cannot be treated to be of dubious nature. We have also scrutinized carefully the entire testimony of P.W. 6 Omwati as forthcoming about the occurrence. Obviously, she is vacillating on certain points, but she is not vacillating on the point of the commission of the offence and her deviation is minor, trivial and cannot be treated to be of dubious nature. She is partly reliable on point of occurrence, but because of certain deviations and contradictions in her statement in court and recorded under Section 161 Cr.P.C. Contradictions in the statement of the P.W. 1 Gajram Singh, P.W. 2 Hemraj and P.W. 3 Mishri with the statement under Section 161 Cr.P.C. are also there but all these contradictions are of minor and trivial nature but the substantive evidence regarding the occurrence being caused by appellant is established beyond doubt. 35. The ocular testimony of the prosecution witnesses also finds support from the medical testimony on record. The post-mortem examination on the body of the deceased was done on 18.6.1988 at 1.45 P.M., wherein, Dr. S.P. Singh P.W. 11 noted the three ante-mortem injuries and all these three ante-mortem injuries have been found in the shape of gunshot wounds. Injury no. 1 and injury no. 3 are the gunshot wound of entry and gunshot wound of exit. Thus, resembling to one shot and the injury no. 2 is multiple firearm wound of entry; each measuring 1/2 cm x 1/2 cm x left side of abdomen. Injury no. 2 must have been caused by diffraction of pellets. There is no blackening and tattooing found in the ante-mortem injuries. The post-mortem examination report has been prepared by Dr. S.P. Singh, and it is Exhibit Ka-15. In the opinion of doctor, the injuries caused on the deceased could have been caused around 2 A.M. in the concerned night (of the occurrence). 36. There is no blackening and tattooing found in the ante-mortem injuries. The post-mortem examination report has been prepared by Dr. S.P. Singh, and it is Exhibit Ka-15. In the opinion of doctor, the injuries caused on the deceased could have been caused around 2 A.M. in the concerned night (of the occurrence). 36. Now, the overall outcome is that the testimony of the prosecution witnesses regarding participation of the present appellant-Arvind-in the occurrence at the relevant point of time has been innocuously proved and established by the consistent testimony of P.W. 1 Gajram Singh, P.W. 2 Hemraj and P.W. 3 Mishri and the court is duty bound to concentrate on the point of actual occurrence and in case, actual occurrence is found to have been proved after evaluating the entire evidence, then to claim that by virtue of certain minor inconsistencies appearing in the testimony of the prosecution witnesses, the case of the prosecution becomes opaque and doubtful, is not an acceptable contention under prevailing facts and circumstances of this case. 37. Here the incident has been proved beyond reasonable doubt. The presence of the prosecution witnesses at the time of occurrence, on the spot, is most natural though it has been claimed that there was no motive for committing the offence, but we come across evidence that some enmity on account of pending litigation was going on and apart from that certain light discrepancy also took place between the informant side and the accused prior to the incident. Moreover, it is case of eye-account testimony where gravity or triviality of the motive imputed shall not create much difference in the commission of the offence amply proved by the testimony of the prosecution witnesses. There is no specific suggestion to the prosecution witnesses that they were inside the house when the occurrence took place and they did not see the occurrence. 38. We further notice that the lodging of the FIR is prompt and Sri Umesh Chandra Mishra P.W. 9-who entered the relevant GD entry (Exhibit Ka-14) and lodged the case against the accused has proved the check FIR (Exhibit Ka-13). 39. 38. We further notice that the lodging of the FIR is prompt and Sri Umesh Chandra Mishra P.W. 9-who entered the relevant GD entry (Exhibit Ka-14) and lodged the case against the accused has proved the check FIR (Exhibit Ka-13). 39. The two witnesses P.W. 4 Har Prasad and P.W. 5 Kundan Lal though named in the description of the FIR, have not supported the prosecution case, but they have been confronted with their statement regarding the occurrence as noted by the Investigating Officer under Section 161 Cr.P.C. A cumulative reading of their testimony also establishes fact that the incident took place in the night intervening 17/18.6.1988 and P.W. 5 Kundan Lal has specifically stated in his cross-examination that he saw the assailants scampering away from the house of the deceased-Nem Chand. It appears that these two witnesses (P.W. 4 and P.W. 5) have been won-over by the defence and they are not telling the real story. However, their testimony would not minimise the significance of the testimony of the other prosecution witnesses and particularly P.W. 1 Gajram Singh and P.W. 2 Hemraj, who have given immaculate and innocuous version of the incident and have proved fact of participation of the appellant in the incident beyond all reasonable doubt. 40. So far as the claim of the appellant regarding fact that the assailants had not concealed their faces while committing the offence is concerned, we may observe that it is not a case where the intention was to commit robbery or dacoity, but here the intention was to kill Nem Chand; and it being so the mind-set of the assailants cannot be interpreted and judged from their gesture while they did not hide their faces. Further, there is no point or circumstance in disbelieving the prosecution witnesses on the point of occurrence, on the contrary we find that the testimony of witnesses profusely establishes participation of the appellant in the offence. There is no plausible reason that the prosecution witnesses will leave the real culprit and falsely implicate the present appellant. Therefore, the above contention loses significance and is not helpful to the appellant. 41. We have also perused carefully the aforecited judgment placed by the learned senior counsel for the appellant. There is no plausible reason that the prosecution witnesses will leave the real culprit and falsely implicate the present appellant. Therefore, the above contention loses significance and is not helpful to the appellant. 41. We have also perused carefully the aforecited judgment placed by the learned senior counsel for the appellant. In all humbleness, we may submit that the facts of this case in hand, after evaluation of the entire testimony is found to be highly distinguishable from the one referred by the learned senior counsel. Therefore, the same is not applicable to the given facts and circumstances of the case in hand. 42. It is cardinal principle of criminal jurisprudence that prosecution would have to prove its case beyond all reasonable doubt by producing convincing and clinching testimony in order to prove guilt of the accused. Here in this case testimony of witnesses of fact is consistent, clinching and creditworthiness of the witnesses of fact is found to be intact and inspiring confidence. 43. The above critical scrutiny regarding the evidence, facts and circumstances of the case goes to unravel the truth in favour of the prosecution that it has successfully proved the incident to have been caused by the appellant in the night intervening 17/18.6.1988 at 1.30 A.M. at village-Patwai, district-Rampur, whereby, appellant-Arvind murdered Nem Chand by using country made gun; consequently, the conviction recorded and the sentence awarded by the learned trial Judge in Sessions Trial No. 9 of 1989, (State Vs. Arvind and another), Case Crime No. 88 of 1988, police station-Patwai, district-Rampur is wholly justified. 44. Arguments advanced in support of the appellant sans merit and in the final outcome this appeal is dismissed. 45. Appellant-Arvind is on bail. His bail bonds and surety bonds are hereby cancelled. He shall be taken into custody forthwith for serving out the sentence. 46. Let a copy of this order/judgment be certified to the court below for necessary information an follow up action.