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2021 DIGILAW 260 (JHR)

Islam Ansari v. State of Jharkhand

2021-03-01

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

body2021
JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. Lohardaga P.S. Case No. 71 of 1998 was registered under Sections 363, 364, 448 and 387 of the Indian Penal Code against seven unknown criminals. Narayan Oraon who was one of the victims gave a written report on 15.07.1998 to the officer-in-charge, Lohardaga P.S. that in the midnight of 13.07.1998 seven unknown criminals entered his house, demanded guns which they thought the family possessed or in lieu thereof rupees one lakh and forcibly took him and his younger brother Shiv Charan Oraon with them for ransom. On the way they apprehended Narayan Bhagat also, but after some time they released him and Narayan Bhagat near river Banjar Kisko and kept Shiv Charan Oraon in their custody for ransom. The informant paid rupees five thousand to them the next day but his brother was not released. In course of investigation, the informant and his family members disclosed complicity of Turkeman Ansari, Aziz Ansari, Ram Bilash Oraon, Sattar Ansari, Balak Ansari, Mazar Ansari, Mobin Eraki and Islam Ansari. The accused were associates of Turkeman Ansari who was operating the dreaded criminal gang “Jarlhawa.” Islam Ansari was arrested on 17.07.1998 and the investigating officer obtained non-bailable warrant of arrest against the other accused on 21.07.1998. Mobin Ansari was arrested on 27.07.1998 and on the same day he suffered a disclosure statement in which he confessed his own involvement in abduction of Shiv Charan Oraon. The other absconding accused could not be apprehended during the investigation and a charge-sheet came to be filed against Mobin Eraki and Islam Ansari for the offences under Sections 363, 364, 386, 387, 452 and 458 of the Indian Penal Code. The prosecution produced eight witnesses during the trial but the investigating officer of the case did not enter the witness-box to support the prosecution case. PW-1 who is the father and PW-2 who is the brother of Shiv Charan Oraon have stated that Mobin Eraki and Islam Ansari were amongst those seven criminals who abducted Shiv Charan Oraon for ransom. The mother, sister and sister-in-law of Shiv Charan Oraon did not support the prosecution in the Court and the other two witnesses, namely: Bandey Oraon and Janardan Bhagat are a kind of hearsay witnesses. 2. In the midst of the trial, by an order dated 07.09.1999 passed by the High Court in Criminal Misc. The mother, sister and sister-in-law of Shiv Charan Oraon did not support the prosecution in the Court and the other two witnesses, namely: Bandey Oraon and Janardan Bhagat are a kind of hearsay witnesses. 2. In the midst of the trial, by an order dated 07.09.1999 passed by the High Court in Criminal Misc. No. 4031 of 1999(R) Islam Ansari was granted bail. Mobin Eraki followed him and he was also granted bail vide order dated 01.02.2000 passed in Criminal Misc. No. 9031 of 1999(R). After the last prosecution witness was examined on 29.02.2002, Islam Ansari did not appear in the trial and on two successive defaults the bail-bonds furnished by him were cancelled vide order dated 26.07.2002. He remained absent for more than 1½ years and then vide order dated 26.03.2004 his trial was split up. In Sessions Trial No. 767 of 1998, Mobin Eraki was found guilty and he was convicted and sentenced to R.I. for 10 years under Section 458 IPC, R.I. for 5 years under section 387 IPC and R.I. for life under section 364 IPC. 3. Islam Ansari was arrested on 30.10.2011 and the split up record was re-numbered as S.T. Case of 767 of 1998(S). Islam Ansari was examined under Section 313 of the Code of Criminal Procedure and offered opportunity to lead evidence which he did not avail and finally vide judgment dated 31.08.2012 he was also convicted under sections 458, 387 and 364 of the Indian Penal Code and awarded similar sentences as suffered by Mobin Eraki. 4. Criminal Appeal (DB) No. 1189 of 2005 filed by Mobin Eraki was admitted for hearing vide order dated 07.12.2005 and his prayer for suspension of sentence was accepted on 10.09.2007 by a Co-ordinate Bench of this Court. Thereafter the criminal appeal remained pending for about 5 years and the lower Court records were sent back for the trial against Islam Ansari. Thereafter the criminal appeal remained pending for about 5 years and the lower Court records were sent back for the trial against Islam Ansari. These two appeals which are filed against separate judgments written by two different Sessions Judges could have been heard separately but we have accepted suggestion of the learned counsels for both the appellants to hear these criminal appeals together, primarily for the reasons that the prosecution witnesses were examined in the same trial in presence of both the appellants together and identical pleas are urged before us on behalf of both of them - these appeals were listed together in the last two dates. Both the learned Sessions Judges have accepted the testimony of father and brother of Shiv Charan Oraon and held that a part of the evidence of the hostile witnesses who were the family members of Shiv Charan Oraon is corroborated by other independent evidences and the prosecution has proved the charges under sections 458, 387 and 364 of the Indian Penal Code. 5. The appellants with whom the prosecution witnesses claimed previous acquaintances were not named In the First Information Report and no Test Identification Parade was conducted to find out their involvement in the occurrence. In these facts, Mr. A.K. Kashyap, the learned Senior Counsel who appeared for Islam Ansari has therefore contended that the prosecution witnesses merely making an allegation in the Court against the accused is not sufficient to hold that “yes” the accused were involved in abduction of Shiv Charan Oraon. 6. There was never any doubt on identity of the accused who had abducted Shiv Charan Oraon from his house in the night of 13.07.1998. PW-2 the informant has stated in the Court that the accused threatened him and due to fear that Shiv Charan Oraon might be killed by the abductors he did not disclose name of the accused in the written report. The informant and his father both have specifically named Mobin Eraki and Islam Ansari and other accused in their statements under section 161 of the Code of Criminal Procedure which were recorded on 15.07.1998. In the written report also there was sufficient information to the police on the identity of the accused and within two days Islam Ansari was apprehended by the police. In the written report also there was sufficient information to the police on the identity of the accused and within two days Islam Ansari was apprehended by the police. In course of the investigation identity of the accused was not in doubt, non-bailable warrants were issued and processes under sections 82/83 of the Code of Criminal Procedure were taken out against them. PW-1 and PW-2 have stated in the cross-examination that they had previous acquaintances with the accused and they have indicated the place of residence (village) of the accused which was not challenged by the appellants in the trial. The informant has given description of two accused persons in the written report and stated that one of the accused who was short and aged about 20-25 years was carrying gun and another accused who was tall and dark complexioned had a burn mark on his neck below the ear. In the written report involvement of seven unknown criminals was indicated and on the same day name of the accused was disclosed by the witnesses before the police. We find that in the aforesaid circumstances explanation of the informant that out of fear he did not mention name of the accused in the written report was truthful and acceptable. The appellants were known to the witnesses and therefore, there was no need to conduct a Test Identification Parade, though the appellants were not named in the First Information Report. In Hari Nath and Others vs. State of U.P. (1988) 1 SCC 14 the Hon'ble Supreme Court has held that absence of corroboration by Test Identification Parade may not assume materiality if either the witness had known the accused earlier or where the reasons for gaining an enduring impress of the identity in the mind and memory of the witness are otherwise brought out. Above all, when PW-1 and PW-2 were examined in the Court the appellants remained absent and in this regard we find a specific remark in their deposition the learned trial Judge has written that “identification is waived by the defence.” Therefore, the intrinsic value of the evidence of PW-1 and PW-2 would not diminish because according to the appellants for the first time in the Court these witnesses have claimed to identify them and as would appear from the evidence of PW-1 and PW-2 the plea raised by the appellants is factually incorrect the appellants were known to them. 7. PW-1 and PW-2 are star witnesses for the prosecution. PW-1 is the father and PW-2 is the brother of Shiv Charan Oraon and they have deposed in the Court that in the night of 13.07.1998 when they were sleeping in the house seven unknown criminals stormed into their house and asked them to hand over guns (which they thought the family was possessing) and in lieu thereof demanded rupees one lakh. On their expressing helplessness to pay such huge sum they asked them to bring rupees sixty thousand at Chapi Hatt Bazar. They caught Narayan Oraon and Shiv Charan Oraon and forcibly took them away and on the way they apprehended Narayan Bhagat also who was trying to raise hulla. Near Banjar Kisko River, they let off Narayan Oraon and Narayan Bhagat but did not release Shiv Charan Oraon and kept him in their custody for ransom. Next day, Narayan Oraon paid rupees five thousand to the accused at Chapi Hatt Bazar yet Shiv Charan Oraon was not released by the abductors. 8. It was around midnight when the accused entered the house of the informant and on that ground a plea is raised that identification of the appellants is doubtful. The appellants were members of the gang of Turkeman Ansari who was involved in more than a dozen cases. PW-2 has stated in the cross-examination that the accused remained for about half an hour in the house and their face was not covered. The appellants were members of the gang of Turkeman Ansari who was involved in more than a dozen cases. PW-2 has stated in the cross-examination that the accused remained for about half an hour in the house and their face was not covered. Though PW-1 has stated that it was a dark night and there was no electricity in his house and he has identified the accused in the torch light, looking at his cross-examination we find that his presence in his house on the day of the occurrence was not challenged by the defence and his testimony is entirely in tune with the prosecution case. While scrutinising testimony of a witness, we need to keep in mind that the truthfulness of a witness is examined on the anvil of normal human conduct and probability. There is no mathematical tool to scrutinize testimony of a witness and a witness is not expected to tender evidence with mathematical precision. The accused had no past enmity with PW-1 and PW-2 and the defence set up by Islam Ansari that to shield Shiv Charan Oraon who had by then joined a Maoist outfit he has been falsely implicated in the case appears to be a fantastic story. If Shiv Charan Oraon who till now is traceless had joined a banned outfit the police would not shield him. The evidence of PW-1 and PW-2 discloses that they searched for Shiv Charan Oraon with the help of the villagers and the police was also active. The Superintendent of Police was monitoring the case and entries in the case diary which can be looked into by the Courts disclose that the Deputy Superintendent of Police had issued instructions and supervision notes to the investigating officer. 9. In Gurja Bedia and Others vs. State of Bihar, 1990 Supp. SCC 521 on which the learned Senior Counsel has placed reliance, the accused were son of the elder sister of Sohagia, who claimed to be an eye-witness. The brother of the deceased, who was not in the house when the accused intruded the house and assaulted his brother, after making enquiries lodged a report about the occurrence. SCC 521 on which the learned Senior Counsel has placed reliance, the accused were son of the elder sister of Sohagia, who claimed to be an eye-witness. The brother of the deceased, who was not in the house when the accused intruded the house and assaulted his brother, after making enquiries lodged a report about the occurrence. Sohagia had claimed that after the incident she became unconscious, but evidence of the informant in the Court was not accepted on the ground that if Sohagia knew the accused how even after making enquiries he could lodge the information with the police stating that 5/6 unknown persons had committed the crime. The facts in Gurja Bedia (supra) are apparently different from the present case in which the informant has offered plausible and acceptable explanation why name of the intruders was not disclosed in the written report. 10. The prosecution has laid cogent, consistent and trustworthy evidence through PW-1 and PW-2 to establish complicity of the appellants in the occurrence in the night of 13.07.1998. The investigating officer was not examined during the trial but the witnesses were not cross-examined with reference to their statements recorded under section 161 of the Code of Criminal Procedure. The weapon which the accused were carrying at the time of the occurrence and the money paid to them were not recovered by the investigating officer but what prejudice was caused to the accused during the trial was not demonstrated by the defence. 11. In Behari Prasad vs. State of Bihar, (1996) 2 SCC 317 the Hon'ble Supreme Court has observed as under: “23........We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial.....” 12. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial.....” 12. The prosecution suffered a serious setback during the trial when PW-5 Pushpa Kumari who is the sister, PW-6 Sarhuliya who is the mother and PW-7 Lakhani Oraon who is the sister-in-law of Shiv Charan Oraon did not support the prosecution and took a position in the Court that they know nothing about involvement of the appellants in the occurrence. What is the worth of the witness who has not supported the case of the party calling him - sometimes called hostile witness, is a vexed question which has engaged attention of the Courts since long. The law on the subject is different in India from the common law but here also there were divers-ant views on the scope of sections 154 and 155 of the Indian Evidence Act. In Khijiruddin vs. Emperor, AIR 1926 Cal. 139 and few other cases the opinion of the Courts was that the object of cross-examination of his own witness by a party is to discredit the witness in toto and to get rid of his testimony altogether. This view was based on the decision of Campbell, C.J. in Faulkner vs. Brine, 1858 (1) F&F 254. Around the same time, Terrell J. struck the opposite view in Sohrai Sao vs. Emperor, AIR 1930 Pat. 247 and held that admissions of a witness in the cross-examination by the party calling him can be relied upon by the party calling him. A Full Bench of Calcutta High Court finally settled the law in Praphulla Kumar Sarkar vs. Emperor, AIR 1931 Cal. 401. Rankin, C.J. has written in his opinion (at p. 1428-1430 of the report): “In my opinion, the fact that a witness is dealt with under Section 154 of the Evidence Act, even when under that section he is cross-examined to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross-examined him can take no advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say.” 13. In one of the earliest cases in India, the Hon'ble Supreme Court has observed that section 154 of the Indian Evidence Act is wide in scope and the discretion is entirely left to the Court to exercise the power when the circumstances demand. It was further held that section 154 confers a discretionary power on the Court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party [Refer: Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563 ]. The law now seems to be fairly settled. 14. The evidence of a witness who has not supported the prosecution is examined with care and in the context of other evidences laid by the prosecution and if the Court finds that a part of the evidence of an unsupportive witness supports the prosecution or the defence, the entire evidence of such witness, sometimes called a hostile witness, is not discarded in entirety. PW-3 Bandey Oraon is cousin brother of the informant who has deposed in the Court that the next morning he came to know that unidentified criminals were demanding ransom and that they had abducted Shiv Charan Oraon. In the same breath he has however stated that later on he came to know that Turkeman Ansari, Aziz Ansari, Ram Bilash Oraon, Sattar Ansari, Balak Ansari, Mazar Ansari, Mobin Eraki and Islam Ansari were the abductors. PW-4 Janardan Bhagat has stated in the Court that in the night of the occurrence he heard hulla and some body banged the doors of his house but he did not come out and next day morning he came to know that Shiv Charan Oraon was abducted. He has further stated that abductors were demanding extortion and Shiv Charan Oraon has not come back till today. However, on the point of payment of extortion he was declared hostile by the prosecution and when cross-examined by the prosecution he has denied every other fact stated by him under section 161 of the Code of Criminal Procedure. He has further stated that abductors were demanding extortion and Shiv Charan Oraon has not come back till today. However, on the point of payment of extortion he was declared hostile by the prosecution and when cross-examined by the prosecution he has denied every other fact stated by him under section 161 of the Code of Criminal Procedure. PW-5, PW-6 and PW-7 have stated that in the night of the occurrence they were sleeping in the house. PW-1 was sleeping on varamdah and PW-2 was sleeping in a room. They have also stated that Shiv Charan Oraon was abducted by unknown criminals. PW-5 has stated that the abductors were carrying gun. PW-6 has stated that her son is still traceless and PW-7 has stated that police had arrived in the village. Notwithstanding these witnesses, who did disclose name of the appellants and other accused before the police, professing ignorance about the abductors in the Court they have supported the prosecution story that PW-1 and PW-2 were present in the house, Shiv Charan Oraon was abducted and the abductors were carrying weapons. These witnesses have apparently out of fear decided not to involve the appellants in the crime and their saying in the Court that unknown criminals had abducted Shiv Charan Oraon a stand which is inconsistent with the testimony of PW-1 and PW-2 would in no manner create a doubt on the prosecution case. A question may arise why then PW-1 and PW-2 who are also intimately related to Shiv Charan Oraon have deposed in the Court about complicity of the appellants. No straight answer seems to coming forth, but then, these witnesses who are also intimately related to Shiv Charan Oraon and had no animus against the appellants would not go to the extent of falsely implicating them in abduction of Shiv Charan Oraon. May be after their examination in the Court the other witnesses were pressurized, threatened or put under fear. Another reason why PW-5, PW-6 and PW-7 have not fully supported the prosecution may be that the informant and his father wanted not to involve the females of the family in the episode. May be after their examination in the Court the other witnesses were pressurized, threatened or put under fear. Another reason why PW-5, PW-6 and PW-7 have not fully supported the prosecution may be that the informant and his father wanted not to involve the females of the family in the episode. We need not venture into this enquiry and would proceed further keeping in mind that a close relative who would not shield the real culprit when turns hostile the Court needs to be on guard that such aberrations do not influence judicial scrutiny of other evidences and undue prominence is not given to abrasions in the prosecution evidence. In Narayan Nathu Naik vs. State of Maharashtra, (1970) 2 SCC 101 some part of the evidence of the prosecution witnesses who had resiled from their previous statements was used for corroborating the other witnesses. 15. Mr. A.K. Kashyap, the learned Senior Counsel has contended that intention to cause death of Shiv Charan Oraon is missing in the prosecution evidence and in terms of section 108 of the Indian Evidence Act a presumption on his civil death cannot be raised and while so conviction of the appellants under section 364 of the Indian Penal Code is bad in law. 16. If a person is abducted in order that he may be murdered or may be so disposed of as to be put in danger of being murdered the person who abducts would commit the offence under section 364 of the Indian Penal Code. A plain reading of section 364 reveals that the offence under section 364 does not require that the abducted person must have been killed. The expression used under section 364 is “in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered.” The statutory illustrations appended to section 364 explains the point, that death may not be a certain consequence of abduction of a person. All that the section requires is that the kidnapper/abductor had the intention or knowledge that the abducted may be murdered. Section 362 of the Indian Penal Code provides that whoever by force compels, or by any deceitful means induces, any person to go from any place would be said to abduct that person. The abductors had captured the informant and his brother and removed them forcibly from the house. Section 362 of the Indian Penal Code provides that whoever by force compels, or by any deceitful means induces, any person to go from any place would be said to abduct that person. The abductors had captured the informant and his brother and removed them forcibly from the house. The threat held out by them, keeping Shiv Charan Oraon in custody and demand of ransom for his release are proved during the trial. The aforesaid acts of the abductors would no doubt constitute the offence under section 364 as well as 364-A of the Indian Penal Code - though no charge under section 364-A was framed. After going through the materials on record we are of the opinion that the investigating officer, the Public Prosecutor and the trial Judge all have seriously faltered in discharge of their statutory duty. This was a case under section 364-A of the Indian Penal Code and not under section 364 of the Indian Penal Code and at any stage this mistake was not sought to be corrected. We would now not go into this aspect of the matter and lay the issue at rest by observing that there is a need for effective and continuous training of the Judicial Officers and the training programs in the Judicial Academy needs to be invigorated to meet the challenges faced by the Judicial Officers. 17. The extortion money was tendered to Aziz Ansari in the presence of Turkeman Ansari and Bilash Oraon and it is not the prosecution evidence that the appellants were present when ransom was paid to the abductors. This piece of evidence led to an argument that when foundation of the prosecution case does not involve the appellants they are entitled for the benefit of doubt. 18. In abduction several persons may be involved each playing their own assigned role and therefore the plea that since ransom was not paid to the appellants their involvement in the crime is doubtful cannot be accepted. The prosecution evidence is consistent that Shiv Charan Oraon was seen last in the company of the abductors and thereafter he was not seen alive. The abductors therefore must say what had happened after Shiv Charan Oraon was taken away by them. The appellants have remained completely silent in their examination under section 313 of the Code of Criminal Procedure. The prosecution evidence is consistent that Shiv Charan Oraon was seen last in the company of the abductors and thereafter he was not seen alive. The abductors therefore must say what had happened after Shiv Charan Oraon was taken away by them. The appellants have remained completely silent in their examination under section 313 of the Code of Criminal Procedure. They do not put forth a plausible and acceptable defence excluding their involvement in the crime and in view of the facts proved by the prosecution reverse burden lies on them to explain the incriminating circumstances. 19. In Phula Singh vs. State of H.P. (2014) 4 SCC 9 the Hon'ble Supreme Court has observed as under: “11......If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law.” 20. There was no delay in registration of the First Information Report. The family of a victim of abduction for ransom may not rush to the police immediately. The abductors had demanded ransom and rupees five thousand was paid to them the next day. The informant has stated that he paid ransom but his brother was not released. He discussed the issue with his family and then gave a written report to the police. The family of Shiv Charan Oraon was fearing for his life and waiting for his return. There is nothing unusual in the conduct of a terrified family if they did not immediately inform the police about abduction of Shiv Charan Oraon. In Lalita Kumari vs. Government of U.P. (2014) 2 SCC 1 , the Hon'ble Supreme Court has observed that the object behind prompt registration of a First Information Report is to set the criminal process into motion and to minimize the possibility of any embellishment later on. 21. The fear, anxiety and trauma the family members of Shiv Charan Oraon were undergoing can be easily visualized. 21. The fear, anxiety and trauma the family members of Shiv Charan Oraon were undergoing can be easily visualized. When seven armed criminals of a dreaded gang stormed the house, demanded guns or in lieu thereof rupees one lakh and abducted two male members of the family for ransom, there is every justification for their conduct in not raising hulla or calling the neighbors for help and informing the police soon thereafter. The informant himself was a victim and the trial Court has rightly placed implicit faith in his testimony. The evidence of a victim of crime has always been put on a higher pedestal and though there is no rule of evidence that testimony of the victim should be examined in a manner different from an eye-witness, it is a kind of common sense rule of practice which prompts the Courts to think twice before doubting or discarding testimony of a victim. The testimony of a victim rendered on oath if remains unscathed during the cross-examination on the core of the prosecution case, it is a factor which would always bear heavily in the mind of the Courts - minor inconsistency or omission in his evidence are then best kept aside. 22. The inconsistency/omission in the evidence of PW-1 and PW-2, whether the accused threatened not to lodge a report with the police, whether Test Identification Parade was conducted, whether the accused were seven in number or eight etc. are insignificant aberrations in their testimony. The kind of evidence these witnesses have tendered on complicity and involvement of the appellants in the crime leaves little for the Court to doubt their truthfulness - no suggestion is coming forth from the defence why the witnesses who were not even co-villagers would falsely implicate the appellants. We also find that there was no cross-examination of PW-1 and PW-2 regarding delay in lodging the First Information Report. In State of U.P. vs. Nahar Singh, (1998) 3 SCC 561 the Hon'ble Supreme Court has observed that in the absence of cross-examination on the explanation of delay the Court should believe and accept evidence of the witnesses. 23. In every case the prosecution is not required to bring proof of motive for proving the guilt of the accused, in particular in cases where the prosecution relies upon eye-witness account of the occurrence. 23. In every case the prosecution is not required to bring proof of motive for proving the guilt of the accused, in particular in cases where the prosecution relies upon eye-witness account of the occurrence. The offence of abduction in order to murder may require the prosecution to prove motive of the crime but abduction/kidnapping for ransom by itself becomes a motive for the crime, which precisely was the case in hand. The prosecution evidence in the present case on the motive for the crime is otherwise sufficient. We find the genesis for the occurrence to a dispute for tractor and the abductors believing that the informant's family was rich as two male members were engineers. These facts are not brought out in the evidence of the prosecution witnesses but can be discerned from the statement of the witnesses under section 161 of the Code of Criminal Procedure and the confessional statement of Mobin Eraki - which the Courts can look into in view of section 172(2) of the Code of Criminal Procedure and the judgment in Sandeep vs. State of U.P. (2012) 6 SCC 107 . 24. In the trial charges were spelt out clearly, evidence of the witnesses was taken in presence of the appellants/their advocates and witnesses were cross-examined by the defence. In our opinion, the sessions trial was conducted in a manner which gave unnecessary benefits to the appellants - charge for a lesser offence was framed, witnesses were not extended protection and important witness and investigating officer were not examined, still, the evidence tendered by the eye-witnesses is sufficient to record conviction of the appellants. PW-1 and PW-2 are reliable and trustworthy witnesses and no prejudice was caused to the appellants if the investigating officer was not examined during the trial. In Aftab Ahmad Ansari vs. State of Uttaranchal, (2010) 2 SCC 583 the Hon'ble Supreme Court has held that if the combined effect of all the proved facts taken together is conclusive conviction of the accused can be recorded even though one or more of such facts were not decisive. 25. In view of the aforesaid discussions, we find no merit in these criminal appeals and accordingly, Criminal Appeal (DB) No. 1067 of 2012 and Criminal Appeal (DB) No. 1189 of 2005 are dismissed. 26. 25. In view of the aforesaid discussions, we find no merit in these criminal appeals and accordingly, Criminal Appeal (DB) No. 1067 of 2012 and Criminal Appeal (DB) No. 1189 of 2005 are dismissed. 26. Islam Ansari who is the appellant in Criminal Appeal (DB) No. 1067 of 2012 shall serve the remaining sentence and Mobin Eraki who is the appellant in Criminal Appeal (DB) No. 1189 of 2005 shall surrender within four weeks to serve the sentence. 27. A copy of the judgment shall be sent to the concerned Jail Superintendent and the Court concerned for necessary action. 28. Let the lower Court records be sent to the Court concerned forthwith. I agree - Ratnaker Bhengra, J. Appeals dismissed.