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2022 DIGILAW 1439 (ALL)

Radhey Shyam v. State of U. P.

2022-09-09

SADHNA RANI (THAKUR), SUNITA AGARWAL

body2022
JUDGMENT : 1. Heard Ms. Abhilasha Singh learned counsel for the appellants and Sri Roopak Chaubey learned A.G.A for the State respondent. 2. The present appeal is directed against the judgment and order dated 25.07.2009 passed by the Additional Sessions Judge, Fast Track Court Badaun whereby appellants Radheshyam s/o Dwariki Yadav, Sreepal s/o Dwariki Yadav resident of Shikarpurthana Sahaswan District Badaun have been held guilty of the offences under Sections 302, 506(2) IPC. Under Section 302, the appellants have been convicted for life imprisonment with fine of Rs.10,000/-for each. The default punishment is one year additional rigorous imprisonment. The appellants have been sentenced under Section 506(2) IPC, for two years rigorous imprisonment each. Both the punishments are to run concurrently. 3. The prosecution case begins with the first information report lodged on 20.05.2003 at about 08.15 a.m about the incident occurred on the said date at 3.30 a.m. Three persons were named as accused therein amongst whom one Devendra s/o Radheyshyam had been declared juvenile, the inquiry, thus, proceeded against the two appellants Radheyshayam and Sreepal. The first report of the incident was given by Kalyan s/o Badan Singh, P.W-1 herein in writing scribed by Jogendra s/o Mulayam Singh (P.W-2). It was stated therein that Radheyshyam s/o Dwariki, his brother, nephew etc were hooligans (Badmash) and they used to pressurize people and try to dominate them. About 2½ months prior to the incident, Radheyshyam, his brothers Sreepal, Ram Niwas and son Devendra came to the Kolhu of the informant and confronted with his brother Amarpal (deceased) without any reason. The oral and physical altercation which took place between them was pacified with the intervention of villagers. The deceased had no grudges but the assailants were carrying enmity with the deceased since then. On the fateful night i.e 20.05.2003, the informant, his brother Amarpal and nephew Jogendra were in the fields to water it and engine was on. At about 3.30 a.m, Radheyshayam, his younger brother Sreepal and his son Devendra reached at their engine carrying Country made pistol, Tamancha and Sariya (iron rod). At that time, Amarpal was sitting near the engine smoking bidi where a lantern was lit up. His nephew Jogendra was sleeping and he himself (the informant) was watering sugarcane and Peppermint field at around 50 yards from them, a lantern was also lit up at that place. At that time, Amarpal was sitting near the engine smoking bidi where a lantern was lit up. His nephew Jogendra was sleeping and he himself (the informant) was watering sugarcane and Peppermint field at around 50 yards from them, a lantern was also lit up at that place. Radheyshyam hit in the head of Amarpal through sariya while he was sitting, on being hit, Amarpal screamed and ran towards the informant, Radheyshyam chased Amarpal and caught hold of him at about 20-25 yards away and all three accused killed him by Sariya and fires from Tamancha. When the informant and his nephew Jogendra ran towards the assailants they threatened them to kill and ran away through the field of Panna. While leaving the dead body on the spot, the informant Kalyan went to lodge the written report. 4. It is proved by P.W-7, Constable Moharir, posted in the police station concerned on the date of incident, that he had prepared the check report on the basis of the written report given by the informant. The original report registered as Paper no.4Ka was proved in his handwriting and signature as Exhibit Ka-'9'. The factum of registration of the case was entered in G.D Rapat no.12 at about 8.15 hours. The original G.D was brought in the Court and carbon copy filed on record was proved as Exhibit Ka-'10' in the handwriting and signature of P.W-7. P.W-7 denied the suggestions of the FIR being ante time and the same having been lodged in consultation with the police. 5. P.W-8, Incharge Inspector, Yogendra Singh stated that on the registration of the case he started investigation, entered G.D in the case diary, recorded statement of the informant and another eye witness Jogendra. He reached at the place of the incident, investigated the dead body of Amarpal and got the inquest prepared through Sub Inspector Naubat Singh, made inspection of the site in question on his own and prepared the site plan proved as Exhibit Ka-'11' being in his handwriting and signature. Blood stained and plain earth collected from the spot by P.W-8 was proved as Exhibit Ka-'12' in his handwriting and signature. Other collected items such as empty cartridges of 315 bore, broken batt of country made pistol (tamancha), two small leaves of kamani, one sariya, all were sealed (except sariya) and memo was prepared by him proved as Exhibit Ka-'13'. Blood stained and plain earth collected from the spot by P.W-8 was proved as Exhibit Ka-'12' in his handwriting and signature. Other collected items such as empty cartridges of 315 bore, broken batt of country made pistol (tamancha), two small leaves of kamani, one sariya, all were sealed (except sariya) and memo was prepared by him proved as Exhibit Ka-'13'. P.W-8 stated that two lanterns which were on the spot were shown by the informant and the eye witnesses and they were given in the custody of the witness after preparation of the supurdignama proved as Exhibit Ka-'14'. The searches were made by him and the accused persons Devendra and Radheshyam were arrested on 22.5.2003 and 23.5.2003. The named accused Sreepal had surrendered in the Court. After completion of the investigation, chargesheet was filed by him proved as Exhibit Ka-'18' in his handwriting and signature. A sealed cloth bundle brought by P.W-8 was opened in the Court wherefrom clothes of the deceased were taken out and two boxes of plain earth and bloodstained earth were also there. These materials were identified and proved as Material Exhibits-1, 2, 3, 4, 5, 6 and 7. In cross, P.W-8 was confronted that in the inquest the name of accused was not indicated. He was also confronted that the inquest report does not contain the details of the weapons used in the crime. 6. P.W-8, in cross, proved that the inquest was prepared on the spot but when the inquest was being prepared he was doing investigation and, thus, was not present. The related papers of the inquest Exhibit-'Ka-12' to 'Ka-14' were prepared by him but the name of the accused were not indicated therein. He further stated that the recovered articles i.e sariya and broken pieces of tamancha were not before him at the time of deposition. He, however, stated that the FIR was lodged in his presence and check report was seen by the Chief Judicial Magistrate on 22.5.2003. This witness, P.W-8, gave description of the place of incident as per the site plan. He stated that broken pieces of tamancha, 315 bore empty cartridges and iron rod (sariya) was recovered from the spot but he did not remember as to whether there was blood on these articles. This witness, P.W-8, gave description of the place of incident as per the site plan. He stated that broken pieces of tamancha, 315 bore empty cartridges and iron rod (sariya) was recovered from the spot but he did not remember as to whether there was blood on these articles. He clarified that tamancha and sariya were not recovered from any accused persons rather it was recovered from the spot and there was no bloodstain on sariya and, therefore, it was not sent for forensic examination. He stated that empty cartridge was found 2 paces away from the dead body, pieces of country made pistol about 3 paces and sariya about 10 paces away from the dead body. He stated, in cross, that if he prepared the panchayatnama (inquest) the articles found besides the dead body must have been mentioned therein. He then stated that even if he called for explanation of the inquest writer questioning about non-mentioning of these articles in the inquest, there would have been no difference on the merits of the prosecution case. 7. The suggestion that he was giving a false statement was categorically denied by P.W-8. He then stated that there was no blood on the pieces of the Tamancha and as such they were not sent for forensic examination. He further stated that witnesses Kalyan in his statement under Section 161 Cr.P.C stated that the deceased was twice hit by Sariya. He categorically stated that the statement of Kalyan was recorded at the police station as he was the first informant, soon after lodging of the FIR before moving to the place of the incident. P.W-8 further stated that witness Jogendra in his statement under Section 161 Cr.P.C mentioned that he was sleeping in the empty field and woke up hearing the cries of his uncle Amarpal. Jogendra mentioned the second blow of Sariya given to Amarpal. P.W-8 was further confronted on every detail of the statement of Jogendra under Section 161 Cr.P.C. The suggestion that the entire investigation was tainted was categorically denied by P.W-8. 8. P.W-6 is the inquest writer who proved the inquest being in his handwriting and signatures, the inquest report was marked as Exhibit Ka 2. The other related papers were proved as Exhibit Ka-'4' to Ka-'8' being in the handwriting and signature of P.W-6. P.W-6 stated that after inquest, the body was sealed. 8. P.W-6 is the inquest writer who proved the inquest being in his handwriting and signatures, the inquest report was marked as Exhibit Ka 2. The other related papers were proved as Exhibit Ka-'4' to Ka-'8' being in the handwriting and signature of P.W-6. P.W-6 stated that after inquest, the body was sealed. He stated that after completion of the inquest the sealed body was sent through Constables Jai Prakash and Bhagwan Das for the postmortem. 9. In cross, P.W-6 stated that he had mentioned the clothes of the deceased and the bloodstained injuries in the inquest but the weapon of assault was not mentioned. One empty cartridge 315 bore was found near the dead body but memo of the same was prepared by the Investigating officer. He then stated that apart from 315 bore cartridge, there was nothing besides the dead body. The circumstances in which the injury was caused to the deceased was not mentioned in the inquest. The suggestion that he had prepared inquest in a wrong manner to misdirect the case was denied. 10. P.W-4 is a witness of inquest who stated that the Investigating Officer reached at the spot on the fateful day i.e 20.05.2003 to prepare the inquest and he was appointed as one of the inquest witnesses with other Panch witnesses. The Investigating Officer recorded the state of the body, appearance, clothes, injuries and the properties etc in the inquest. The opinion of Panchans about the death of Amarpal was taken and was noted in the inquest. He further stated that the inquest contained his signature and he had identified his signatures in the Court which was marked as Exhibit Ka-’2’. In cross, P.W-4 stated that he was present on the spot, the Investigating Officer proceeded in a whimsical manner and got his signature on a blank paper. 11. P.W-3 is also the witness of the inquest. His statement in the examination-in-chief is same as that of P.W-4, P.W-3 had also identified his signatures on the inquest marked as Ka-'2'. In cross, P.W-3 stated that the entire proceeding was conducted in his presence, the papers were prepared in his presence and then his signatures and thumb impression of others were taken on the report. 12. His statement in the examination-in-chief is same as that of P.W-4, P.W-3 had also identified his signatures on the inquest marked as Ka-'2'. In cross, P.W-3 stated that the entire proceeding was conducted in his presence, the papers were prepared in his presence and then his signatures and thumb impression of others were taken on the report. 12. P.W-5, the doctor in his examination-in-chief stated that two police personnel Jai Prakash and Bhagwan das brought the dead body of Amarpal in the sealed state at the district hospital Budaun where he was posted. The sample seal was tallied by him on his own and was found correct. The seal was opened in his presence and the dead body was identified by the police personnel. He conducted post-mortem on the same day, i.e on 20.05.2003 at around 4.30 p.m. As per the appearance, the deceased was aged about 28 years. The time of death was approximately half day old. The deceased was average built body. Rigour mortis was present in both upper and lower limbs. Eyes and mouth were closed. Ante-mortem injuries found on the person of the deceased described in the post mortem are as follows:- “Injury no.1-Lacerated wound about 2.5 cm x 1 cm x deep scalp on left side of skull above 7 cm of left ear. Injury no.2-Lacerated wound about 6 cm x 2 cm x deep scalp back side of left skull and above 8 cm left ear back side of left skull. Left occipetal bone was fractured. Brain membrane below fractured and brain tissues were found congested and big clot of blood was found there. Injury no.3-Entry wound of firearms about 1cm x 1cm deep chest cavity of left side chest towards above of left side clavicle bone, below 2cm and 10cm above from left nipple. All over the wound blackening was present and the corners of the wound were inward. Injury no.4-One exit wound of firearm of 2cm x 1.5 cm from 2cm deep chest cavity on backside of left chest, 2 cm outward of D-7 vertebrae and corners were outward. After post mortem injury nos.3 and 4 were found joint. Second rib of front side found fractured, below entry wound and membrane of lungs inside the same and lung was found ruptured. One litre clotted blood was present in left side chest cavity. After post mortem injury nos.3 and 4 were found joint. Second rib of front side found fractured, below entry wound and membrane of lungs inside the same and lung was found ruptured. One litre clotted blood was present in left side chest cavity. Injury no.5-Contusion and scratching of 4cm x 2cm was present upward on right shoulder. Injury no.6-Entry and exit wound of firearm were on outside of right elbow in shape of tunnel which was open from above and was in horizontal condition. Corners of wound was inwards in medium side and turned outward in lateral side. Blackening was not present. Injury no.7-Many contusions and scratching were present below backside in part of 5cm x 5cm. Injury no.8-Contusion and scratching of 3cm x 2cm on right hip towards outside. Injury no.9-Contusion and scratching of 0.1cm x 0.1cm on backside of knee of both legs. Injury no.10-Contusion and scratching of 4cm x4cm in middle of backside of right chest.” 13. On internal examination, intestinal membrane was normal. 150 gm semidigested food was present in the intestine. The cause of death was mentioned as shock and hemorrhage due to ante-mortem injuries. P.W-5 proved the post-mortem report having been prepared by him in his handwriting and signature, marked as Exhibit Ka-'3'. P.W-5 further stated that the possibility of death having been caused on 20.05.2003 at about 3.30 a.m through Sariya and fire arms was there. 14. A suggestion was given by the defence that there was the possibility of head injury having been caused because of fall. Amongst all hypothesis put forth by the defence, P.W-5 categorically stated that two firearm injuries were found on the person of the deceased and both were having exit wounds. It was more probable that both the fire arm injuries were caused by different fires. About the condition of the stomach, he stated that the deceased must have taken food about 2-3 hours before the incident and the exact time of death could be given by him. 15. From the evidence of formal witnesses, the documents prepared by them during the course of the investigation were proved. No inconsistency could be pointed out by the learned counsel for the appellants in the statements of formal witnesses. 16. P.W-1 and P.W-2 are witnesses of fact. 15. From the evidence of formal witnesses, the documents prepared by them during the course of the investigation were proved. No inconsistency could be pointed out by the learned counsel for the appellants in the statements of formal witnesses. 16. P.W-1 and P.W-2 are witnesses of fact. Both claimed to be present on the spot and witnessed the incident from their own eyes though at a different point of time. P.W-1 while reiterating his version in the first information report had proved that the report was scribed by Jogendra, (P.W-2) and after writing the same it was read over to him. He then put his thumb impression and went to the police station to lodge the same. After registration of the FIR, copy was given to him. The written report was proved by P.W-1 in the Court being the same report which was given by him at the police station bearing his thumb impression and was marked as Exhibit Ka-'1'. In cross, P.W-1 was confronted about false implication of Devendra s/o Radheyshyam who was later declared juvenile. He was further confronted about the death of his first wife Surajmukhi and that he was implicated in the incident of death of his wife due to hanging. P.W-1 stated that he was acquitted in the said case. P.W-1 was further confronted about his second marriage. He initially stated that he got married to Kusuma Singh, d/o Pan Singh and then in the same breath clarified that Kusuma was married to his brother Amarpal and he got married to Lajjo d/o Pan Singh. It seems that second wife of P.W-1 Lajjo and wife of deceased Amarpal namely Kusuma were real sisters from the description of their parentage in the cross examination. 17. P.W-1 was further confronted about his relations with the wife of the deceased namely Kusuma and the suggestion that he had illicit relationship with the wife of his brother and that she was living with him as his wife after death of his brother was categorically denied by P.W-1. The suggestion that the last child delivered by Kusuma after death of Amarpal was his child was also denied. The suggestion that his father had scolded Amarpal about the behaviour of his wife Kusuma was also refuted by P.W-1. The suggestion that ration card of Kusuma was prepared with his name in it also denied. The suggestion that the last child delivered by Kusuma after death of Amarpal was his child was also denied. The suggestion that his father had scolded Amarpal about the behaviour of his wife Kusuma was also refuted by P.W-1. The suggestion that ration card of Kusuma was prepared with his name in it also denied. P.W-1 stated that the name of Kusuma was in the voter list. 18. P.W. 1 further stated that he had no enmity with the appellants before the previous incident of fight occurred at Kolhu with Amarpal and he was not present at that time. He did not know the reason of fight and stated that no report was lodged about that incident. He further deposed that his statement was recorded by the Investigating Officer on the date of the incident and he had mentioned the previous incident in his statement under Section 161 Cr.P.C., and if it was not mentioned therein, he did not know the reason. P.W-1 stated that he reached at the police station at about 8.00 p.m and his statement was recorded by the Investigating Officer at the place of the incident, not at police station. He then stated that when he reached at the police station and narrated the incident, the Investigating Officer asked him to bring the written report. He came back to his house, got the report scribed by his nephew and again went to the police station to lodge the same. He then stated that when he went to the police station in the morning only then he got the report scribed by his nephew. At one point, in cross, P.W-1 stated that it was right that the Investigating Officer did not record his statement. 19. P.W-1 further stated, in cross, that he was present in the field and watering the sugarcane and peppermint field. It was a bright night and not dark. Two lanterns were lit up and the assailants came suddenly. They caught, Amarpal, hit him with the fires, two fires were opened, one by Devendra and another by Sreepal and both fires hit Amarpal. 50-60 blows of Sariya were given to deceased Amarpal. He was hit on his head and the body by sariya and by the hit by sariya, Amarpal got unconscious and fell on the grounds on first blow. 50-60 blows of Sariya were given to deceased Amarpal. He was hit on his head and the body by sariya and by the hit by sariya, Amarpal got unconscious and fell on the grounds on first blow. The deceased ran about 20-25 paces towards the informant and before that two blows of Sariya were given, one of which hit was on the head. P.W-1 had denied the suggestion that he had stated that only two blows of Sariya were given. He was further confronted about his statement under Section 161 Cr.P.C of opening of the firearm. He stated that it was wrongly mentioned in his statement, if so, that both the fires were opened by Sreepal. He clarified that one fire was opened by Sreepal and another by Devendra and the lanterns were lit up. 20. P.W-1 stated that he mentioned in the report about two lanterns being lit up on the spot and that many blows of Sariya given to the deceased. He was confronted about blows of Sariya given by Radheyshayam and stated that he could not say that Radheyshyam gave only one blow of Sariya. The suggestion that he did not witness the incident and made false statement was denied. P.W-1 also denied the suggestion that unknown assailant had killed the deceased. 21. He further stated that no one apart from him had seen the incident and stated that he showed the place of the incident to the Investigating Officer. P.W-1 further stated that when Amarpal ran, his blood fell on the ground which was shown to the Investigating Officer, who had collected the same. Both the firearms were of 315 bore. He stated that after the deceased Amarpal had died, he saw two marks of firearm injuries, one on the elbow and another on the chest as also the marks of injuries of Sariya. 22. P.W.-1 was further confronted about his statement of assault by batt of Tamancha. The suggestion of false implication of appellants due to jealousy was denied by P.W-1. He has categorically denied that wife of Amarpal was residing with him and he produced children from her. 23. P.W-2, Jogendra after narrating the previous incident of fight between the deceased Amarpal and the appellants stated that on the fateful day, he and his uncle Amarpal and Kalyan Singh were in the field and giving water to sugarcane and peppermint crops. 23. P.W-2, Jogendra after narrating the previous incident of fight between the deceased Amarpal and the appellants stated that on the fateful day, he and his uncle Amarpal and Kalyan Singh were in the field and giving water to sugarcane and peppermint crops. One lantern was lit up at the engine and another in the field which was being watered. It was around 3.30 a.m, when he was sleeping near the engine, Radheyshyam hit Amarpal by Sariya in his head and Amarpal run towards Kalyan. He then stated that he saw Amarpal being chased by Radheyshyam, his brother Sreepal and son Devendra Radhey had Sariya, Sreepal and Devendra were carrying Tamanchas. Radheyshyam hit Amarpal by Sariya, Sreepal opened fire from Tamancha in his hand and Sreepal and Devendra both assaulted Amarpal by the batts of Tamancha which was broken and fell down. He and Kalyan (P.W-1) came forward to save Amarpal, then the assailants threatened them to kill by fire, they held themselves back. The deceased had died on the spot and the assailants ran through the field of Pannal lal. P.W-2 categorically stated that both Sreepal and Devendra opened fire and after sometime hearing the sounds of fire villagers reached the spot. The report of the incident was scribed by him on the dictation of Kalyan (P.W-1) and it was read over to him and then Kalyan Singh put his thumb impression. The report Exhibit Ka-1 was showed to this witness, he had proved his writing and signature of the same and that it was scribed by him. P.W-2 stated his uncle Kalyan Singh took the written report to the police station to lodge the report the incident and that the murder was caused on account of enmity due to previous incident of fight at the Kolhu. P.W-2 then stated that empty cartridge, wooden batt of Tamacha and Sariya were recovered by the police from the fields of Mulayam and Pannalal and the recovery memo were witnessed by him and Kalyan. P.W-2 proved his signature on the recovery memo Paper no.16Ka/6. In cross, P.W-2 stated that he was not sleeping rather was awake while lying down. He had refuted the content of his statement under Section 161 Cr.P.C that he was sleeping and woke up hearing cries of Amarpal. 24. P.W-2, then described that when one blow of Sariya was given to Amarpal, he ran. In cross, P.W-2 stated that he was not sleeping rather was awake while lying down. He had refuted the content of his statement under Section 161 Cr.P.C that he was sleeping and woke up hearing cries of Amarpal. 24. P.W-2, then described that when one blow of Sariya was given to Amarpal, he ran. He, however, could not give the description of number of blows of sariya given to the deceased. He then stated he told the Investigating Officer that Radheyshyam hit Amarpal but why it was not mentioned in his statement under Section 161 Cr.P.C was not known to him. He then stated that two accused had mercilessly beaten Amarpal by the batt of Tamancha. On being hit, the blood were oozing out from the wounds of Amarpal. His clothes were soaked with the blood and he fell on the ground. The broken batt of Tamancha was shown to the Investigating Officer by him. 25. P.W-2 further clarified that two fires were made and both hit Amarpal and that both the fires were opened by Sreepal, He stated that the fire which was opened by Devendra did not hit the deceased and Devendra made only one fire. He then stated that he wrote the report while sitting in the field at about 6.00 a.m. On further confrontation, P.W-2 stated that the Investigating Officer recorded his statement on the date of the incident and apart from him, the statement of P.W-1 Kalyan was also recorded. P.W.-2 stated that he and Kalyan both were interrogated by the Investigating Officer in the field, they showed the place of the incident to him. 26. P.W-2 then described that the place where he was sleeping was about 50 paces from where the field was being watered. He was lying to sleep near the engine but was not asleep. The place where he was lying was an empty field. P.W-2 again stated that he was awake and was not sleeping. As to how the Investigating Officer had mentioned in statement under Section 161 Cr.P.C that he was sleeping was not known to him. 27. P.W-2 further stated that two lanterns were lit up at the time of the incident and both were shown to the Investigating Officer though he mentioned only one lantern and the reason for the same was not known to him. 27. P.W-2 further stated that two lanterns were lit up at the time of the incident and both were shown to the Investigating Officer though he mentioned only one lantern and the reason for the same was not known to him. Both Devendra and Sreepal were carrying 315 bore Tamancha and Sariya was in the hands of Radheyshyam. Sreepal and Devendra both opened fires. The fire of Sreepal hit the deceased and the fire of Devendra did not hit him. Sreepal opened two fires and not more than that. The empty cartridges were thrown away after opening fires by Sreepal and the Investigating Officer find them from the spot. The suggestion that he gave statement to the Investigating Officer that Devendra did not open fire was denied by P.W-2 and stated that if that was written in his statement, reason was not known to him. 28. P.W-2 further stated that in the field which was being watered they had sown crop of sugarcane and peppermint. Radheyshyam hit Amarpal from Sariya where he was lying and again at the place where they caught hold of Amarpal. He could not count the number of blows of sariya given by Radheyshyam to Amarpal who stated that they were at the head, shoulder and waist of Amarpal. He then stated that blood oozed out at the place where Amarpal was caught by the appellants after running 20-25 paces. He further stated that the report was dictated by Kalyan and scribed by him. The site plan was prepared by the Investigating Officer and pieces of batt were sealed. He then stated that his signatures were not obtained on these documents of recovery. He further stated that Kalyan and Amarpal ate their food at around 3-4 p.m and they all went to a feast where Amarpal had also gone. They had dinner at around 4.00 p.m and after that P.W-2 did not eat anything. The suggestion that he did not witness the incident and make a false statement in the Court was categorically denied by P.W-2. P.W-2 further stated that Amarpal was hit after he was caught and not while he was running. 29. They had dinner at around 4.00 p.m and after that P.W-2 did not eat anything. The suggestion that he did not witness the incident and make a false statement in the Court was categorically denied by P.W-2. P.W-2 further stated that Amarpal was hit after he was caught and not while he was running. 29. Placing the statements of these witnesses and the documents and material on record, it was argued by the learned counsel for the appellants that there are contradictions in the statements of two eye witnesses about the manner in which the incident had occurred. There was suggestion of illicit relationship of wife of deceased Amarpal with the first informant who was brother of Amarpal. In fact, the wife of Amarpal gave birth to a child 1½ month after the death of Amarpal and it had come in the evidence that P.W-1 during cross examination admitted that he got married with the wife of the deceased as he had mentioned the name of his wife as Kusuma (wife of Amarpal) and then corrected it as Lajjo. There are further contradictions about firearm opened by the appellants. In the statements of P.W-1 and P.W-2, two alleged eyewitnesses, there are apparent contradictions when P.W-1 stated that out of two fires, one was opened by Sreepal and another by Devendra where P.W-2 stated that Sreepal opened two fires which hit the deceased whereas one fire opened by Devendra did not strike the deceased. In fact, Jogendra, P.W-2 was sleeping at the time of the incident as admitted by him in his statement under Section 161 Cr.P.C as also from the statement in chief of P.W-1. His narration about the incident, therefore, cannot be said to be of an eyewitness. The sole witnesses, thus, remains P.W-1 whose narration is found doubtful. It was argued that on account of illicit relationship with the wife of Amarpal, P.W-1 himself had killed his brother and then created a story of assault by the appellants. 30. It was further argued that the injuries found on the person of the deceased could not be related to the weapon used and the manner in which the deceased was hit as described by alleged eyewitness. The iron rod, i.e Sariya which was said to have been used by Radheyshyam was not produced in the Court. Only bloodstained and plain earth was proved. The iron rod, i.e Sariya which was said to have been used by Radheyshyam was not produced in the Court. Only bloodstained and plain earth was proved. The empty cartridges allegedly recovered from the place of the incident and other pieces of firearm were also not produced in the Court. The source of light/lantern was not produced. The food content was found in the stomach whereas according to P.W-2 they had dinner at around 3.00-4.00 p.m. The statement of the doctor that the deceased must have eaten food about 2-3 hours of the incident gives a definite picture that the deceased killed in the dead of night by someone when no one was present and no one had seen the incident. Both the witnesses are lying when they are projecting themselves as eyewitnesses. 31. As far as the recovery of articles from the spot, it was vehemently argued by the learned counsel for the appellants that the main weapon of assault i.e Sariya was not recovered at the instance of any of the accused and as per the statement of witnesses, it was recovered lying in the open field. The Investigating Officer admitted that Sariya was not bloodstained and hence was not sent for forensic examination. The Sariya was not sealed nor produced in the Court. The entire story of the witnesses about the deceased having been hit by Radheyshyam, thus, proved false. The recovered articles once not produced in the Court nor exhibited and the witnesses of recovery not produced to prove the contents of the recovery memo, all recoveries made by the Investigating Officer can be clearly found to be planted. 32. It was further argued that the first information report was Ante time, inasmuch as, the information of lodging of the report was not given to the Judicial Magistrate within 24 hours. This is case of non compliance of Section 157 Cr.P.C, the delay in which could not be explained. Reference has been given to the decision of the Apex Court in Marudanal Augusti vs State of Kerala reported in (1980) 3 SCC 425 to assert that such minute details as mentioned in the FIR show that it was a result of deliberations. The narration in the FIR itself show that it was lodged after deliberation and, moreover, the delay in sending the FIR to the Judicial Magistrate proved that the FIR was ante time. The narration in the FIR itself show that it was lodged after deliberation and, moreover, the delay in sending the FIR to the Judicial Magistrate proved that the FIR was ante time. About the food content in the stomach, it was based on the decision of the Apex Court in case of State of Uttar Pradesh vs Ashok Kumar and another reported in (1979) 3 SCC 1 it was argued that the presence of food contents in the stomach of the deceased runs contrary to the version of the witnesses about the time of the incident. The doctor's opinion has to be given due weightage. 33. Looking to the condition of the dead body and discrepancies found in the statement of the eyewitnesses, the presence of eyewitnesses has to be discarded. Once the recovery is discarded as planted one, the place of occurrence becomes doubtful. Further, the incident had occurred in the dead of night and the source of light/lantern was not produced in the Court. Based on the decision of the Apex Court in case of Durbal vs State of Uttar Pradesh reported in (2011) 2 SCC 676 , it was argued that the statement of the witnesses that they had seen the occurrence in the light of the lantern, therefore, is required to be discarded. It was further argued that both the assailants were carrying different arms, one Sariya and another Tamancha. The blow of sariya was found on head but the firearm injuries were found to be fatal. There is no statement of the doctor that the injury found on the head of the deceased was fatal, i.e sufficient to cause his death. The role of two appellants namely Radheshyam and Sreepal in the incident, thus, has to be seen independently. Individual liability of the appellants has to be seen as the aid of Section 34 cannot be taken in the facts and circumstances of this case to implicate one accused for the act of another. 34. Learned AGA, in rebuttal, argued that the cause of death was assigned to both of the assailants. There were injuries on the person of the deceased. Injury no.2 was fatal and repeated blows of Sariya were found on the person of the deceased. Blackening and tattooing were found in the injury no.3, it was firearm injury. Injury no.6 of firearm was assigned to Devendra, the third accused. There were injuries on the person of the deceased. Injury no.2 was fatal and repeated blows of Sariya were found on the person of the deceased. Blackening and tattooing were found in the injury no.3, it was firearm injury. Injury no.6 of firearm was assigned to Devendra, the third accused. The contention of the learned counsel for the appellants that Section 34 is not made out, thus, is misconceived. As regards the source of light, it was argued by the learned A.G.A that admittedly lanterns were not produced in the Court but they were handed over to the witnesses after preparation of supurdginama. The memo prepared as Supurdginama proved by the Investigating Officer could not be discarded on the confrontation by the defence. 35. Both the eyewitnesses namely P.W-1 and P.W-2 as also the Investigating Officer, in their testimony, proved the source of light being lanterns. No contrary suggestion has been given to any of the witnesses about the source of light. Both the P.W-1 and P.W-2 categorically stated that they had seen the blood oozing out at the place and recovery of bloodstained earth was made from that place itself. About non production of Sariya and other material articles in the Court, learned A.G.A urged that it can only led to a conclusion of the fault on the part of the Investigating Officer or the prosecuting officer but that fact by itself would not be sufficient to discard the consistent oral testimony to P.W-1 and P.W-2 about recovery. P.W-2, admitted his signature on the recovery memo paper no.16 Ka/6, recovery of empty cartridge, wooden batt sariya from the field of Mulayam and Pannalal. 36. P.W-2 further proved that recovered articles were sealed on the spot and the entire paper work was also done on the spot but clarified that his signature was not taken on the recovery memo. 37. About the weapon of assault not produced in the Court, it was argued by the learned AGA that the said act itself would not discard the oral testimony. There is no reason of false implication of the accused persons. About the statement of P.W-4, in cross, of his signatures on the inquest report, it was argued by the learned AGA that this witness in his examination-in-chief has clearly narrated about the inquest but he has not proved anything about recovery. There is no reason of false implication of the accused persons. About the statement of P.W-4, in cross, of his signatures on the inquest report, it was argued by the learned AGA that this witness in his examination-in-chief has clearly narrated about the inquest but he has not proved anything about recovery. In cross, when he had stated that his signature on blank papers was taken it can not be discerned as to which document was referring to. From the statement of P.W-4, in cross, neither the witness nor the defence can be given any benefit, as his statement in cross is not clear about any particular document. 38. Learned A.G.A further argued that the recovery of Sariya, parts of tamancha and cartridge were proved by the Investigating Officer. The recovery memo was proved, the place of incident was proved, the blood stained and plain earth was exhibited. The credibility of two witnesses that they had identified and seen the accused persons being residents of the same village cannot be doubted. The first information report was a prompt report of the incident. It was though in detail but cannot be said to be exhaustive and, moreover, the details in the first information report cannot be a reason to discard the prosecution case. For non compliance of the Section 157 Cr.P.C as alleged it was argued that it was not fatal to the prosecution case, inasmuch as, in view of the ocular evidence, it cannot be said that merely because the Judicial Magistrate had seen the report after two days, the delay would be fatal to the entire prosecution case. It was urged that the said provision is a measure of checks and balances just to ensure that there is no manipulation at the stage of lodging of the FIR. The defence theory that the murder of his brother had been caused by the first informant because he had illicit relation with the wife of his brother is wild and baseless. There is no proof of such a suggestion and moreover, it is a stigmatic statement. By birth of a child after 1½ month of the death of her husband by a lady, no aspersions can be cast on her chastity. 39. There is no proof of such a suggestion and moreover, it is a stigmatic statement. By birth of a child after 1½ month of the death of her husband by a lady, no aspersions can be cast on her chastity. 39. In rejoinder, the learned counsel for the appellants has vehemently argued that looking to the nature of injury nos.1 and 2 and the manner in which the assault was made by Radheyshyam, his conviction cannot go beyond the offence under Section 304 Part II as these injuries were not fatal. She further argued that the trial court had erred in taking aid of Section 34, for conviction of both the appellants for the offence under Section 302 and in the facts of the present case, looking to the admission of witnesses that one accused was carrying Sariya and others firearms, individual liability of the accused persons has to be seen. 40. Lastly based on the decision of the Apex Court in case of Thanedar Singh vs State of M.P, reported in (2002) 1 SCC 487 , it was argued by the learned counsel for the appellants that where two views are possible, benefit has to go to the accused. It is vehemently submitted by the learned counsel for the appellants that in the evidence on record, the conviction of both the appellants under Section 302 I.P.C with the aid of Section 34 cannot be sustained. The judgment of the trial court is liable to be set aside. The appeal deserves to be allowed. 41. Heard learned counsel for the parties and perused the record. 42. This is a case where two eyewitnesses had vividly narrated the entire incident. Both the witnesses are related to the deceased and it is categorical statement of the eyewitnesses that they were present in the field at the time of the incident. The informant P.W-1, brother of the deceased stated that he, his brother (deceased) and nephew Jogendra (P.W-2) were present in the field for irrigation purposes. The time was about 3.30 a.m and two lanterns were lit up. The presence of the eyewitnesses on the spot could not be discarded by the defence by contradicting them in the cross examination. The informant P.W-1, brother of the deceased stated that he, his brother (deceased) and nephew Jogendra (P.W-2) were present in the field for irrigation purposes. The time was about 3.30 a.m and two lanterns were lit up. The presence of the eyewitnesses on the spot could not be discarded by the defence by contradicting them in the cross examination. Only some minor contradictions in the statement of both the eyewitnesses were highlighted by the learned counsel for the appellants to assert that P.W-2 was lying about having seen the incident of assault on the deceased. As regards P.W-1, it was argued by the learned counsel for the appellants that he is lier and a suggestion was given that P.W-1 himself had murdered his brother due to his illicit relationship with the wife of the deceased. The suggestion given to P.W-1 in the cross examination is based on pure hypothesis created by the defence, without any cogent evidence to establish the defence story. For the defence hypothesis and the minor contradictions pointed out in the testimony of P.W-1 and P.W-2 their presence on the spot cannot be discarded. 43. The presence of both the eyewitnesses on the spot was natural and the narration of assault by P.W-1 is corroborated from the medical evidence where the injuries of fire arm as also Sariya were found on the person of the deceased. Injury nos.1 and 2 on the scalp of the deceased can be said to have been caused by Sariya, the weapon assigned in the hands of Radheyshyam. It was categorical statement of P.W-1 that the deceased was first hit by Sariya and when he ran, the appellants caught him and then Sreepal and Devendra opened fires. Two firearm wounds of entry were found on the person of the deceased as is clear from the post mortem report. P.W-1 stated that two fires were opened at the deceased, one by Devendra and another by Sreepal and both hit the deceased. There is consistency in the statement of both the eyewitnesses that fires were opened by both the accused namely Sreepal and Devendra who were carrying Tamancha but there is some inconsistency in their statement as to how many fires were opened by the accused persons and whose fire had hit the deceased. There is consistency in the statement of both the eyewitnesses that fires were opened by both the accused namely Sreepal and Devendra who were carrying Tamancha but there is some inconsistency in their statement as to how many fires were opened by the accused persons and whose fire had hit the deceased. P.W-2 stated that both the fires which hit the deceased were opened by Sreepal and one fire opened by Devendra did not hit the deceased. This contradiction in the testimony of the eyewitnesses being minor is not to be given much weightage and cannot be said to be fatal to the prosecution case. 44. As to the statement of P.W-2 having witnessed the incident, he categorically stated that he was lying in the field at the time when accused appellants had entered in the field and he saw the deceased running and the accused chasing him. The deceased was hit by Sariya in his head by Radheshyam. The clarification given by P.W-2 in his cross examination that he was not sleeping but only lying to sleep when the incident had occurred is to be accepted in absence of any contradiction pointed out in his testimony. The statement of P.W-2 in his previous version under Section 161 Cr.P.C that he was sleeping in the field and woke up on the cries of the deceased when he was hit by Sariya has to be read along with his clarification given in the cross examination. 45. The principle of appreciation of occular evidence, as discussed by the Apex Court in the case of Leela Ram (Dead) through Duli Chand vs State of Haryana and another reported in (1999) 9 SCC 525 is that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. The observation of the Apex court in State of U.P vs M.K Antony reported in (1985) 1 SCC 505 in para-'10' was noted by the Apex Court in Leela ram (supra) with approval as under:- "10.While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals." 46. Further observation in para-'10' of Leela ram are as under: “10. In a very recent decision in Rammi v. State of Madhya Pradesh this Court observed : "24. When an eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Further observation in para-'10' of Leela ram are as under: “10. In a very recent decision in Rammi v. State of Madhya Pradesh this Court observed : "24. When an eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny".” It was further observed in para-'12' as under: “12. It is indeed necessary to note that hardly one conies across a witness whose evidence does not contain some exaggeration or embellishments -sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give slightly exaggerated account. The Court can sift the chaff from the corn and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness -If this element is satisfied, they ought to inspire confidence in the mind of the Court to accept the stated evidence though not however in the absence of the same.” 47. In the matter of appreciation of evidence of an eyewitness, the settled position of law, thus, is that the Courts while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. Such discrepancies are due to normal errors of perception or observation could not be given importance. The errors due to lapse of memory may be given due allowance. As observed in Appabhai vs State of Gujarat reported in 1988 Supp SCC 241, that the Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witnesses. The errors due to lapse of memory may be given due allowance. As observed in Appabhai vs State of Gujarat reported in 1988 Supp SCC 241, that the Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witnesses. When a doubt arises in respect of the certain facts alleged by such witness the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. 48. The contradictions pointed out by the learned counsel for the appellants in the testimony of two witnesses having been found to be minor on appreciation of prosecution evidence in totality, we find that the contradictions in the version of two witnesses do not go into the root of the matter. The prosecution story, thus, cannot be discarded for the above noted contradictions in the oral testimony of P.W-1 and P.W-2, rather their testimony is complementary to each other. Both the eyewitnesses are found wholly reliable in so far as the narration of the incident by them is concerned. 49. The next submission of the learned counsel for the appellants is about the source of light namely lanterns. Though, it was argued that the lanterns were alleged to have been shown to the Investigating Officer and he had prepared the supurdiginama but the lanterns were not produced in the Court by the witnesses and hence the statement of the eyewitnesses about seeing the assailants in the light of lanterns cannot be accepted. 50. Dealing with this submission, suffice it to note that as per the version of the eyewitnesses they were present in the field for the purpose of irrigation and in the said situation, the presence of source of light, as stated being lanterns was natural. Mere fact that the lanterns were not produced in the Court would not be a reason to discard the consistent version of the eyewitnesses about the presence of source of light. Both the eyewitnesses could not be contradicted in cross on this aspect by the defence. Moreover, the assailants were well known to both the witnesses. The witnesses had seen the incident from a close range in the field and also stated that they were threatened by the appellants. Both the eyewitnesses could not be contradicted in cross on this aspect by the defence. Moreover, the assailants were well known to both the witnesses. The witnesses had seen the incident from a close range in the field and also stated that they were threatened by the appellants. The two witnesses were not contradicted on the issue that they had no chance to recognize the assailants being the appellants herein. About the weapon of assault, mere fact that it could not be produced in the Court would not discard the oral testimony of the eyewitnesses. 51. No reason could be assigned by the defence for false implication of the accused persons at the instance of the witnesses who did not have any enmity with the accused persons. The suggestion of enmity of the accused was only with the deceased. The accused persons in their version under Section 313 Cr.P.C have only stated that they were falsely implicated due to village party bandi and when the statements of P.W-1 and P.W-2 were put to the accused persons they simply replied that the witnesses made a wrong statement. There is no statement of any of the accused persons that two eyewitnesses namely P.W-1 and P.W-2 had any enmity with them. The appellant Sreepal in his statement under Section 313 (in his defence) stated that they were falsely implicated by villagers due to enmity. 52. The place, date and time of the incident could not be disputed by the defence. The injuries found on the persons of the deceased relates to the weapons used as per the statements of the eyewitnesses. The inconsistencies pointed out in the medical and ocular evidence as noted above are immaterial. The suggestion of illicit relationship of the informant with the wife of deceased was a wild suggestion. In view of the categorical denial by P.W-1 in absence of anything contrary on record, the defence hypothesis of involvement of P.W-1 in the incident has to be discarded. The motive assigned to the appellants in the statements of the eyewitnesses could not be demolished by the defence. Even otherwise in case of eye witness account, the motive looses its importance. The first information report was a prompt report of the incident. The motive assigned to the appellants in the statements of the eyewitnesses could not be demolished by the defence. Even otherwise in case of eye witness account, the motive looses its importance. The first information report was a prompt report of the incident. P.W-1 stated that he went to the police station in the morning after getting the report scribed by his nephew (P.W-2) and on the written report filed by him, the first information report was lodged. The scribe of the report namely Jogendra is also one of the eyewitnesses of the incident. The narration of the incident in the written report by an eyewitness, if given in detail, cannot be said to be fatal to the prosecution story as contended by the learned counsel for the appellants. The submission of the learned counsel for the appellants that the detail description in the written report shows that it was an act of deliberation of witnesses does not seem to be convincing. 53. The statement of the doctor about the content in the stomach of the deceased was only an opinion and cannot be said to be conclusive proof about the time of the incident, so as to discard the consistent ocular version of the witnesses. It is settled law that the oral evidence, if not, totally irreconcilable with the medical evidence, oral evidence would have primacy. It is only when contradictions between the two is so extreme that the medical evidence completely rules out all possibility of the ocular evidence, the ocular evidence is liable to be disbelieved. The position is not so in the instant case as the doctor (P.W-5) himself stated that it was not possible for him to give exact time of death, and according to his own version, the deceased might have eaten food 2-3 hours before the incident. The semi digested food present in the stomach of the deceased would not shift the time of the incident as suggested by the learned counsel for the appellants. 54. It may be noted that both the eyewitnesses were related to the deceased, their fields were common. Their presence on the spot was natural. Their version about the occurrence is consistent. It is difficult to believe that the eyewitnesses would falsely implicate the accused persons without there being any enmity with them and leave the real assailants go scot free. 55. Their presence on the spot was natural. Their version about the occurrence is consistent. It is difficult to believe that the eyewitnesses would falsely implicate the accused persons without there being any enmity with them and leave the real assailants go scot free. 55. Lastly, the submission of the learned counsel for the appellants about the individual role of the appellants and the submission that since the blows of Sariya were not proved fatal, the appellant Radheshyam cannot be convicted for the act of murder by the co-accused Sreepal who had opened fires upon the deceased. 56. To deal with this submission, suffice it to note that both the appellants namely Radheyshyam and Sreepal reached together at the place of the incident carrying Sariya (iron rod) and fire arm in their hands, the deceased was firstly hit on his head by Sariya and when he ran, he was caught hold of by the appellant by hitting him with Sariya from behind, Sreepal then opened fires on the deceased. It has also come in the evidence that third accused Devendra, who has been declared juvenile also opened fire at the deceased. The manner in which the deceased was assaulted by the appellants established the simultaneous role of all assailants of participating in the criminal act. 57. The two ingredients of Section 34 IPC of (i) common intention of two accused/appellants and (ii) participation of both in the crime is proved in the facts and circumstances of the case. Mere fact that as per the opinion of the doctor, the injuries caused by Sariya/iron rod were not fatal and the death had occurred due to injuries caused by firearms would not be a reason to relieve the appellant Radheyshyam from the charge of the offence under Section 302 IPC. The ingredients of Section 34 once established would make both the accused persons vicariously liable for the act of each other. It is proved by the prosecution that both the accused persons had committed the murder in furtherance of the common intention and as such each of the appellant is liable to be prosecuted for the offence under Section 302 IPC. 58. The submission of the learned counsel for the appellants on the application of Section 34 IPC, thus, has to be discarded. 59. 58. The submission of the learned counsel for the appellants on the application of Section 34 IPC, thus, has to be discarded. 59. In the totality of facts and circumstances of the case, no other view is possible, the prosecution has proved its case beyond all reasonable doubt. No infirmity is found in the judgment of conviction and sentence awarded to the appellants. 60. The judgment and order dated 25.07.2009 passed by the Additional Sessions Judge, Fast Track Court, Budaun in Sessions Trial no.661 of 2003 arising out of Case Crime no.156 of 2003 under Sections 302, 506 IPC Police Station-Sahaswan District-Budaun is hereby affirmed. 61. The appeal stands dismissed. 62. The appellants are in jail. 63. Certify this judgment to the court below immediately for necessary action.