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2024 DIGILAW 408 (ALL)

Mihi Lal v. State of U. P.

2024-02-07

MOHD.AZHAR HUSAIN IDRISI, RAJIV GUPTA

body2024
JUDGMENT : Mohd. Azhar Husain Idrisi, J. 1. Heard Shri Apul Mishra, learned counsel for the appellants, Shri Jitendra Kumar Jaiswal, learned AGA for the State and perused the record. 2. The instant criminal appeals have been filed against the judgment and order dated 31.5.1983 passed by Additional Sessions Judge, Budaun in Session Trial No. 27 of 1981, arising out of Case Crime No. 162 of 1980, under Sections 302, 323 IPC, Police Station Jarif Nagar, District Budaun, whereby the accused-appellants have been convicted for the offence under Section 302 read with Section 34 IPC and awarded the sentence of life imprisonment and also under Section 323 read with Section 34 IPC and awarded the sentence of six months' rigorous imprisonment. 3. It has been informed that appellant No. 1 Mihi Lal in Criminal Appeal No. 1557 of 1983 had already expired and as such, the instant appeal qua appellant No. 1 Mihi Lal was dismissed as abated by this Court vide order dated 27.10.2018. 4. As per the prosecution case, as unraveled in the FIR lodged by one Dumbar Singh, vide written report (Ex. Ka-1) dated 16.10.1980 at 8:45 PM, which was registered vide Case Crime No. 162 of 1980, under Sections 302/323 IPC in Police Station Jarif Nagar, District Budaun vide G.D. No. 24 (Ex. Ka-11) of the written report and chik FIR (Ex. Ka-3) prepared by PW-6 Hari Ram Sharma at the relevant date and time. 5. The allegations made in the FIR are that about two years back, Choban Singh, son of Mihi Lal was murdered, in which, Khemai, Virendra Singh and Tara Singh along with seven other villagers were falsely nominated as accused and they were put to trial, however, about 8-9 days back, the said case ended in acquittal. Consequent to the said acquittal, the appellants and his relatives started bearing animosity against them. There were certain other cases also, on account of which, the appellants used to bear enmity against them. 6. Consequent to the said acquittal, the appellants and his relatives started bearing animosity against them. There were certain other cases also, on account of which, the appellants used to bear enmity against them. 6. It is further alleged that on 16.10.1980 in the forenoon, while the first informant Angoori alongwith his cousin father-in-law Khemai and sister-in-law Laung Shree were returning back to their village after cutting the paddy crops and reached near the boundary marks of the field of Gyani and Udaiveer, then from the eastern side of the bushes, Mihi Lal, son of Abhai Ram, armed with farsa and his sons Jhamman, Aaram Singh, armed with lathis and Banwari Lal, nephew of Mihi Lal, armed with SBBL gun, emerged and exhorted to kill his cousin father-in-law Khemai, who threw the bundle of paddy crops, which he was carrying on his head and tried to make his escape good, however, Banwari fired a shot, which hit him, due to which, he fell down near the boundary marks of the field of Udaiveer, thereafter, Mihi Lal, Jhamman and Aaram Singh started assaulting him with their respective weapons. They raised alarm after throwing away the bundle of paddy crops, which they were carrying on their head and tried to rescue Khemai by laying down on him, however, she was also assaulted by the assailants with lathis. Laung Shree, who was ahead of the two, also threw away the bundle of paddy crops, which she was carrying and raised alarm. On the alarm being raised by them, Kunwar Sen (PW-2) and Tara Singh reached the place of incident and challenged the assailants, who made their escape good towards north. Khemai died on the spot itself. 7. The aforesaid FIR was lodged alleging therein that accused-appellants along with Banwari had killed Khemai and caused injuries to the first informant Angoori Devi. The said FIR was registered in the presence of S.I. Hari Ram Sharma (PW-6), who took over the investigation and recorded the statement of Head Constable Azhar Hussain (PW-7), who had drawn the chik FIR and made the G.D. entry and thereafter, reached the place of incident at about 10:30 PM and thereafter, recorded the statement of Angoori Devi, Laung Shree, Tara Singh, Kunwar Sen and Dumbar Singh and stayed in the village. 8. 8. On the next morning at 6:30 AM, Investigating Officer S.I. Hari Ram Sharma again reached the place of incident and conducted the panchayat nama (Ex. Ka-4). He also prepared the photo-nash (Ex. Ka-5) and challan-nash (Ex. Ka-6) and sent a letter to the C.M.O. (Ex. Ka-7) and prepared a sample seal. The site plan was also prepared by the Investigating Officer and marked as Ex. Ka-8. Thereafter, the dead body of the deceased was sealed and dispatched for autopsy. The Investigating Officer has also found three bundles of paddy crops, which the deceased and two other eye-witnesses were carrying at the time of incident and drawn its recovery memo alongwith sample of plain earth, blood soaked earth and pieces of broken bangles, which were marked as Ex. Ka-9. 9. An autopsy was conducted on the person of the deceased Khemai in District Hospital on 18.10.1980. In the post-mortem report, the Doctor has noted the following injuries: (i) Lacerated wound 3.5 C.M. x 0.5 cm x bone over part of fore-head, 2.5 cm above root of nose. (ii) Lacerated would 2 cm x 1.5 cm x bone over left side of fore-head, 1 cm above eye-brow. (iii) Lacerated wound 5.5 cm x 1 cm x bone over left parietal region, 1 cm above ear. (iv) Incised wound 2.5 cm x 0.5 cm x bone over left parietal region. 4.5 cm behind injury No. 3. Clean cut margins with sharp edges. (v) Incised wound 1.5 cm x 0.5 cm x scalp over left occipital region. (vi) Incised wound 1 cm x 0.5 cm x scalp over left occipital region, 1 cm below injury No. v. Clean cut margins with sharp edges. (vii) Lacerate wound 5.5 cm x 0.5 cm x bone over right parietal region, 10 cm above ear. (viii) Incised wound 2 cm x 1 cm x muscle deep over left side of body left lower jaw at its lower border clean cut margins with sharp edges. (ix) Incised wound 2 cm x 1/2 cm x skin over left side of face, 2 cm in front of tragus of left ear. (x) Gunshot abrasion due to burning 6 cm x 1 cm over left side of neck at its middle 1/3rd placed horizontally. (xi) Abrasion 2 cm x 2 cm over back of left shoulder. (xii) Abrasion 2 cm x 1 cm over front of right knee. (x) Gunshot abrasion due to burning 6 cm x 1 cm over left side of neck at its middle 1/3rd placed horizontally. (xi) Abrasion 2 cm x 2 cm over back of left shoulder. (xii) Abrasion 2 cm x 1 cm over front of right knee. On internal examination, the Medical Officer found fracture of both parietal bones and frontal bone under injury No. 1, 2, 3 and 7. Membranes were also lacerated and teared at places, brain was also congested and lacerated at places. Right chamber of heart contained clotted blood, while left chamber was empty. About 400 gm digested food material was present in the stomach. The small and large intestines were full of gases and faecal matter. Bladder was empty. According to the Medical Officer, the death was caused due to shock and hemorrhage as a result of antemortem injuries. 10. The medical officer also proved the post-mortem report (Ex. Ka-2). Smt. Angoori Devi was also medically examined by Dr. O.P. Agarwal (PW-8) of P.H.C., Dehgawan on 17.10.1980 at 6:50 PM. The Doctor has noted following injuries: (i) An abrasion on the back of left hand 3 cm below the wrist joint size 0.4 cm x 0.2 cm surrounded by painful swelling. (ii) Painful swelling of right fore-arm in 1 cm area, 4 cm above the wrist joint. (iii) The patient tells pain in right scapular region. No visible sign of injury. 11. The medical officer also proved the injury report of Angoori Devi (Ex. Ka-12). 12. After concluding the investigation, the Investigating Officer had filed the charge-sheet (Ex. Ka-10) against all the nominated accused persons under Sections 302, 323, 324 IPC. 13. On the basis of the said charge-sheet, learned Magistrate had taken cognizance and since the case was exclusively triable by the Court of Sessions, made over the case to the Court of Sessions for trial. The Sessions Court vide its order dated 28.4.1981 framed the charges against the accused persons under Section 302 read with Section 34 IPC and Section 323 read with Section 34 IPC. All the accused-appellants abjured the charges and claimed to be tried. 14. During the course of trial, the prosecution has examined as many as four witnesses of fact and four formal witnesses. Their testimony in brief is enumerated hereunder. 15. All the accused-appellants abjured the charges and claimed to be tried. 14. During the course of trial, the prosecution has examined as many as four witnesses of fact and four formal witnesses. Their testimony in brief is enumerated hereunder. 15. PW-1 Angoori Devi is an eye-witness of the incident and also received injuries at the time of the incident. The FIR was scribed at her dictation, which was scribed by one Rajendra Singh. She tried to lodge the report at the Police Station, however, since the accused persons had obstructed her way, she returned back to her house and thereafter, the report was handed over to Dumbar Singh, who reached the Police Station and lodged the First Information Report. 16. PW-1 Angoori Devi in her statement has categorically stated that while they were returning back to their house after cutting paddy crops and had reached near the fields of Gyani and Udaiveer, the assailants emerged from eastern side and exhorted to kill Khemai, who tried to make his escape good by throwing away the bundle of paddy crops, which he was carrying, however, he was fired upon by the assailant Banwari by the SBBL gun, which hit him and he fell down. Thereafter, he is said to have been assaulted by Mihi Lal, armed with farsa, Jhamman and Aaram Singh, both armed with lathi. 17. PW-1 tried to rescue his father-in-law Khemai by bending over him, however, the assailants assaulted her by lathi causing injuries on her person. An alarm was raised by the said witness and one Laung Shree, who was also accompanying her. The alarm attracted other witnesses, namely, Kunwar Sen and Tara Singh, who reached there and challenged the assailants, who made their escape good. On account of assault made by the assailants, Khemai died on the spot. The FIR in respect of the incident was scribed at the dictation of the said witness, which was scribed by one Rajendra Singh and the FIR was lodged in the Police Station by one Dumbar Singh (PW-3). 18. The said witness has been exclusively cross-examined by the defence, however, nothing adverse could be elicited from her statement. The witness however denied the suggestion that she had not seen the incident and that the FIR was lodged after three days of the incident. 18. The said witness has been exclusively cross-examined by the defence, however, nothing adverse could be elicited from her statement. The witness however denied the suggestion that she had not seen the incident and that the FIR was lodged after three days of the incident. She categorically stated that she had received three injuries on her person and she had shown her injuries to the Investigating Officer, who had reached in the village to investigate the case and was also medically examined at P.H.C. Dehgawan, Budaun. 19. She has further categorically denied the fact that she was not present at the time and scene of the incident and her injuries are fake and self-inflicted. She has further denied not to have gone with the victims to cut the paddy crops. During cross-examination, she has further stated that at the time of incident, she along with Laung Shree and Khemai were returning back to her home. She has further categorically stated that Banwari fired a shot from the distance of about 15-16 paces and in order to rescue Khemai from the assault of accused-assailants, she had, in fact, bent over him but did not lay upon him. She has further denied the factum that at the time of incident, Mihi Lal was in Khadrabad market alongwith Jhamman and Aaram Singh and Banwari was in his village. She has further categorically denied the fact that on account of inimical terms with the assailants, she had lodged the report. 20. PW-2 Kunwar Sen is another eye-witness of the incident, who has clearly deposed that at the time of the incident, he was at his field and on raising alarm by Angoori Devi and Laung Shree, he had rushed to the place of incident and saw the deceased Khemai lying on the boundary marks of field of Gyani and Udaiveer and was being assaulted by Mihi Lal by farsa and Jhamman and Aaram Singh by lathis, whereas Banwari was standing there with his SBBL gun. Angoori Devi with an intention to rescue Khemai had bent over him, who was also assaulted by lathi, consequent to which, she suffered injuries and her bangles were also broken. The assailants, on being challenged, made their escape good. At the relevant time, Laung Shree, Dumbar Singh and other villagers were also present. 21. Angoori Devi with an intention to rescue Khemai had bent over him, who was also assaulted by lathi, consequent to which, she suffered injuries and her bangles were also broken. The assailants, on being challenged, made their escape good. At the relevant time, Laung Shree, Dumbar Singh and other villagers were also present. 21. The said witness has also been extensively cross-examined by the defence and has explained the alleged inimical terms with the accused persons. He has further stated that while he was keeping guard of dead body of Khemai, the Investigating Officer had reached there at about 10-11:00 PM and interrogated him and on the next day, recorded his statement and he had clearly told him that he is an eye-witness of the incident and the fact that at the relevant time, Angoori and Laung Shree were also present there. In his cross-examination, he has further stated that at the time of incident, he was present at his field, where mustard crop were grown and had reached the place of incident, which was at a distance of 30 to 40 paces. He has further categorically stated that when he rushed to the place of incident after hearing the fire shot, he had seen Banwari standing on the road but he had not actually seen Banwari firing from his SBBL gun and could not state as to who fired the shot. He has further stated that while rushing to the place of incident, he had challenged the assailants alongwith Tara Singh. He has categorically denied the suggestion that he along with Khemai formed a gang nor he is a member of the gang. He has further denied the suggestion that there were illicit relations between the wife of Khemai with one Virendra, due to which, Virendra had caused the murder of Khemai. He has further denied the fact that Khemai was killed in an incident of dacoity and false case has been cooked up by him. 22. PW-3 Dumbar Singh is not an eye-witness of the incident, however, he is the person, who had carried written report scribed by Rajendra Singh at the dictation of PW-1 Angoori and had lodged the report in the Police Station. In his cross-examination, he has categorically stated that the FIR was scribed by Rajendra Singh at the dictation of Angoori Devi, which was heard by him. In his cross-examination, he has categorically stated that the FIR was scribed by Rajendra Singh at the dictation of Angoori Devi, which was heard by him. He has further categorically stated that he reached the Police Station in an hour and Head Moharrir had lodged the report in presence of the Investigating Officer, who had reached the village to investigate the case. He has categorically denied the suggestion that FIR was lodged after three days of the incident. 23. PW-4 Laung Shree is the daughter of the deceased and another eye-witness of the incident, who was accompanying the deceased and Angoori Devi at the time of the incident. She had categorically stated that after cutting paddy crops, she along with her father Khemai and sister-in-law Angoori Devi were returning back to their village and when they reached near the boundary marks of Gyani and Udaiveer, the assailants Banwari, Mihi Lal, Jhamman and Aaram Singh emerged from the bushes. She has further stated that Banwari was armed with gun, Mihi Lal was armed with farsa, Jhamman and Aaram Singh, both were armed with lathis. Mihi Lal exhorted to kill Khemai as he has been acquitted by the Court but could not escape from their clutches. On exhortation, her father threw away the bundle of paddy crops and started running towards the west, he was chased by Banwari, who fired a shot upon him. They also threw away the bundle of paddy crops, which they were carrying on their head. On account of fire made by Banwari, his father received injuries and fell down on the boundary marks of Gyani and Udaiveer and thereafter, Mihi Lal armed with farsa, Jhamman and Aaram Singh, armed with lathis, assaulted him. She along with her sister-in-law Angoori Devi raised alarm and Angoori tried to rescue his father by bending over him, however, she was also assaulted by lathi, consequent to which, she received injuries and her bangles were broken and fell down there. 24. She has further stated that on raising alarm, Kunwar Sen and Tara Singh reached there and on their challenge, the assailants made their escape good. Her father died on the spot. The police has reached the place of incident and recorded her statement. 25. During cross-examination, she had categorically narrated the manner how her father was assaulted by Banwari and three other assailants. Her father died on the spot. The police has reached the place of incident and recorded her statement. 25. During cross-examination, she had categorically narrated the manner how her father was assaulted by Banwari and three other assailants. She has denied the suggestion that she had not actually seen the incident. She has further stated that when the police reached the place of incident, she was present by the side of his father and had categorically denied the fact that dead body of her father was shifted to the fields of Kunwar Sen. She was examined by the Investigating Officer alongwith other witnesses. She had disclosed to the Investigating Officer that during assault, glass bangles of Angoori Devi were broken and fell on the ground in the said incident, however, she could not explain as to how the said fact has not been mentioned in her statement recorded by the Investigating Officer. She has further denied the suggestion that on the date of incident, Mihi Lal and his sons had gone to Khadrabad Bazar and Banwari was in his village. She further stated that Mihi Lal had falsely implicated his father and brother in a murder case. 26. PW-5 Dr. N.P. Singh had conducted an autopsy on the person of the deceased, who had proved the autopsy report and contents thereof and the autopsy report has been exhibited as Ex. Ka-2. He has further stated that death of the deceased could be caused on 16.10.1980 at 3-4:00 PM and lacerated wounds on the person of the deceased could be caused by lathi and incised wounds on his person could be caused by farsa. He has further denied the suggestion that the deceased died in the midnight between 15/16.10.1980. He has further stated that only one gun shot injury has been found on the person of the deceased having burning. He has further denied the suggestion that the said injury could be caused by the tip of a knife. 27. PW-6 S.I. Hari Ram Sharma is the Investigating Officer and he proved the various stages of the investigation and has inspected the spot and recorded the statement of the witnesses and prepared the site plan (Ex. He has further denied the suggestion that the said injury could be caused by the tip of a knife. 27. PW-6 S.I. Hari Ram Sharma is the Investigating Officer and he proved the various stages of the investigation and has inspected the spot and recorded the statement of the witnesses and prepared the site plan (Ex. Ka-8) and took the possession of plain earth, blood soaked earth, broken bangles and three bundles of paddy crops and has drawn its recovery memo (Ex.Ka-9) and had sent the victim Angoori Devi through constable for her medical examination. He has further stated that on 23.10.1980, the appellants surrendered before the Court and on 31.10.1980, he interrogated them and thereafter, concluded the investigation and submitted the charge-sheet (Ex. Ka-10). 28. He has further categorically stated that on the eastern side of the boundary marks of Gyani and Udaiveer, the crops were cut, where the dead body was lying. During cross-examination, he has categorically stated that the FIR was lodged in his presence and thereafter, he had left the Police Station for the investigation. He has further categorically denied the fact that when he reached the place of incident, the dead body was kept in the Madahiya of Satyam Singh and thereafter in the next morning, the dead body was kept at the boundary mark of Udaiveer in the field of Gyani, where mixed crops of Jwar and Arhar were sown. The panchayat nama was conducted on the next day because there was no adequate arrangement of light. He has further categorically stated that the FIR was sent along with dead body and the factum of sending the FIR is clearly mentioned in the panchayat nama numbered as Paper No. 9. He has further categorically denied that the suggestion that the FIR was registered after conducting the post-mortem. 29. PW-7 is the Head Constable Azhar Hussain of the Police Station Wazir Ganj, who made G.D. entry of the written report and drawn the chik FIR in connection therewith. The chik FIR and written report were exhibited as Ex. Ka-3 and Ex. Ka-11. 29. PW-7 is the Head Constable Azhar Hussain of the Police Station Wazir Ganj, who made G.D. entry of the written report and drawn the chik FIR in connection therewith. The chik FIR and written report were exhibited as Ex. Ka-3 and Ex. Ka-11. He has further stated that Dumbar Singh had given the written report on 16.10.1980 at 8:45 PM or 20:45 hours, however, in the G.D., it has not been mentioned as to how the said FIR was sent to the S.P. Office but an entry has been made that the FIR was sent on 17.10.1980 at 7:00 AM. He has further denied the suggestion that FIR was lodged on the third day after the post-mortem. 30. PW-8 Dr. O.P. Agrawal is the doctor, who examined the injuries of the victim Angoori Devi, who is said to have been examined on 17.10.1980 at 6:30 PM. He has proved the said injury report (Ex. Ka-12). In his cross-examination, he has further categorically stated that the victim was examined, when she had reached there and the time of medical examination has been noted in the injury report. He has further stated that the injuries have been noted on the other side of Majroobi Chitthi. He has further stated that the injuries has been caused by the hard blunt weapon. 31. Thereafter, the statement of accused under Section 313 CrPC has been recorded by putting all the incriminating circumstances to the surviving appellants Banwari and Jhamman. The appellants denied the incriminating circumstances and stated that they have been falsely implicated. The accused-appellant Jhamman has stated that at the time of incident, he was in Khadrabad market and in the next morning, the dead body of the deceased Khemai was lying in Madahiya of Satyam Singh and the police kept it in the field of Gyani, however, no specific plea has been taken by the appellant Banwari in his statement under Section 313 CrPC. 32. The defence, however, has not led any evidence to prove its case. The trial Court after appreciating the evidence, has held that the prosecution has successfully established the case against the surviving appellants by relying upon the testimony of prosecution witnesses, namley, Angoori Devi, who is the injured eye-witness as well as Laung Shree, who is the daughter of the deceased and natural witness. The trial Court after appreciating the evidence, has held that the prosecution has successfully established the case against the surviving appellants by relying upon the testimony of prosecution witnesses, namley, Angoori Devi, who is the injured eye-witness as well as Laung Shree, who is the daughter of the deceased and natural witness. The explanation tendered by the appellants is false and inadequate and as such, they are liable to be convicted. 33. Learned counsel for the appellants has submitted that actual incident of the assault has not been witnessed by anyone and only on the basis of cooked up and concocted story, an attempt has been made to the create an eye-witness of the incident in the form of statement of PW-1, PW-2 and PW-4, who are the closed relatives of the deceased being his daughter and daughter-in-law, who are highly partisan and interested witnesses. 34. Learned counsel for the appellants has further submitted that injuries shown to be received by the victim Angoori Devi are superficial, self-inflicted and manipulated, though the deceased is said to have been brutally assaulted. 35. Learned counsel for the appellants has further submitted that in the FIR, it is stated that the victim Angoori Devi, in order to rescue his father-in-law Khemai, laid upon him, however subsequently, it has been stated that she, in order to rescue his father-in-law, bent over him and she was also assaulted, which is a clear improvement just to falsely implicate the appellants. Learned counsel for the appellants has next challenged the presence of second eye-witness Laung Shree, being daughter of the deceased, who is highly interested and partisan witness. 36. Learned counsel for the appellants has next submitted that the appellants are on the inimical terms with the deceased and eye-witnesses, therefore, the appellants have been falsely implicated. There is a delay in lodging the FIR, which has not been explained at all. 37. Learned counsel for the appellants has further submitted that in the instant case, Angoori Devi had lodged the FIR despite the fact that Laung Shree, daughter of the deceased was present there, which further makes the prosecution case doubtful. The factum of assailants stopping Angoori Devi to lodge the FIR stands falsified from the circumstances that Dumbar Singh went to lodge the FIR, who otherwise could have also been stopped by the assailants. 38. The factum of assailants stopping Angoori Devi to lodge the FIR stands falsified from the circumstances that Dumbar Singh went to lodge the FIR, who otherwise could have also been stopped by the assailants. 38. Learned counsel for the appellants has next submitted that FIR was infact lodged after conducting the post-mortem of the deceased but has been shown to be registered at the relevant time by making it anti-time. 39. Learned counsel for the appellants has further submitted that there is no reason for Banwari to join the said incident being nephew (sister's son) of the other assailants, who are on inimical terms. 40. In the backdrop of the said circumstances, it is thus submitted that prosecution has miserably failed to prove its case against the appellants and as such, they are liable to be acquitted. 41. Per contra, learned AGA has submitted that prosecution has successfully proved the case against the appellants by cogent and reliable evidence. He has placed implicit reliance upon the testimony of PW-1 Angoori Devi and PW-4 Laung Shree, who were accompanying the deceased at the time of the incident and are natural witnesses. 42. Learned AGA has further submitted that injuries of Angoori Devi, received at the time of incident and her unimpeachable testimony as an injured eye witness, clinchingly proves the case against the appellants. 43. Learned AGA has further submitted that Investigating Officer as well as Head Moharrir had categorically stated that FIR was lodged in their presence on 16.10.1980 at 8:45 PM and there is nothing to show that the said FIR has been lodged by making it anti-time. 44. Learned AGA has further submitted that even PW-2 Kunwar Sen is also a reliable witness, which is evident from the circumstances that he had categorically stated that at the time of the incident, when he rushed to the place of incident on the alarm raised by Angoori and Laung Shree, he saw Banwari standing there with a gun and thereafter, stated that he had seen the other assailants, namely, Mihi Lal, Jhamman and Aaram Singh assaulting the deceased by farsa and lathi. Had he not been a truthful witness, he would have safely stated that he had even seen Banwari firing upon the deceased, which clearly shows that PW-2 is a truthful witness and has only mentioned that part of the incident, which he had actually seen and observed without making any attempt of false implication or exaggeration. 45. Learned AGA has further submitted that Laung Shree is a young girl aged about 20 years and grief stricken on account of death of her father and as such, there is no reason to doubt the lodging of the FIR by Angoori Devi, who was also accompanying the deceased at the time of the incident and being a grown up lady had witnessed the entire incident of assault on the deceased and was also injured in the said incident, whose injuries has been examined and proved by the Doctor. 46. Learned AGA has further submitted that enmity between the parties is a double edged sword and therefore, merely on the ground of inimical terms, the prosecution story can not be doubted and thrown over board, which otherwise has been truthfully and cogently proved by the prosecution. 47. Learned AGA has further submitted that time, place and manner of the incident has been clinchingly established by the prosecution. The post-mortem and the injury report of the victim clinchingly corroborates the prosecution story and as such, it can not be said that the prosecution has failed to prove its case beyond reasonable doubt and has supported the impugned order. 48. Having considered the rival submissions made by learned counsel for the parties and having gone through the material available on record, the only question that falls our consideration is whether the trial Court committed any error in passing the impugned judgment and order. 49. So far as the appreciation of oral evidence is concerned, the Hon'ble Apex Court in a recent decision in Criminal Appeal No. 1910 of 2010 (Balu Sudam Khalde and another v. State of Maharashtra) has held that: 25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. So far as the appreciation of oral evidence is concerned, the Hon'ble Apex Court in a recent decision in Criminal Appeal No. 1910 of 2010 (Balu Sudam Khalde and another v. State of Maharashtra) has held that: 25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: “I. 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 scrutinize 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. II. 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. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. 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. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical 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. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical 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. V. 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. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.” [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753 , Leela Ram v. State of Haryana, AIR 1995 SC 3717 and Tahsildar Singh v. State of U.P. AIR 1959 SC 1012 ] 26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind: (a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded. 50. Thus, while appreciating the evidence of eye-witnesses, two principal considerations are to be kept in mind (i) whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence and (ii) whether there is anything inherently improbable or unreliable in their evidence. 51. Keeping the aforesaid principle of law in mind, we are now analyzing the oral evidence of three eye-witnesses i.e. PW-1 Angoori Devi, PW-2 Kunwar Sen and PW-4 Laung Shree. Going through the oral evidence of all the three eye-witnesses, we find that they are consistent and truthful in their statements and there is no good reason for us to disbelieve the ocular version as narrated by the aforesaid three eye-witnesses. 52. Learned counsel for the appellants also could not point out any material inconsistency in the statement of all the three eye-witnesses, except the fact that in the FIR, which was registered at the instance of PW-1 Angoori Devi, it has been stated that while the deceased Khemai was being assaulted, she in order to rescue him laid upon him, however, in her subsequent statement before the trial Court, it has been stated that in order to rescue him, she bent over him, consequent to which, she was also assaulted and received injuries, however, the said inconsistency is of very trivial nature and that too in the FIR, which can not said to be a substantive piece of evidence. 53. Moreover admittedly, PW-1 is a rustic witness and as such, inconsistency as pointed out by the learned counsel for the appellants is meaningless and has no bearing on the outcome of the trial. From her entire evidence, nothing has been elicited to doubt the credibility of the said witness. 53. Moreover admittedly, PW-1 is a rustic witness and as such, inconsistency as pointed out by the learned counsel for the appellants is meaningless and has no bearing on the outcome of the trial. From her entire evidence, nothing has been elicited to doubt the credibility of the said witness. Her presence with the deceased at the time of the incident is quite natural and there is nothing to doubt the presence of the said witness at the scene of occurrence and there is nothing inherently improbable or unreliable in her evidence. 54. So far as the credibility of PW-2 Kunwar Sen is concerned, he admittedly was present in his field at the time of the incident and on hearing the alarm raised by the two eye-witnesses, namely, PW-1 Angoori Devi and PW-4 Laung Shree, had rushed to the place of the incident and had challenged the assailants, who thereafter made their escape good. In his testimony, he has clearly stated that when, he reached the place of incident, he had seen Banwari, armed with his gun, was standing on the way, whereas Mihi Lal was assaulting the deceased with farsa and Jhamman and Aaram Singh with their lathis and when Angoori Devi tried to rescue him, she was also assaulted by lathis, consequent to which, she also suffered injuries and her bangles were broken, and was medically examined, which has been duly proved. 55. The truthfulness of the said witness is evident from the fact that he had narrated in his statement only that much of fact, which he had actually seen and observed. Had he not been the truthful witness, he could well have stated that he had even seen Banwari firing upon the deceased but the said fact was not at all stated by him and only noted his presence at the place and time of incident armed with a gun. 56. So far as the question of inimical terms between the assailants and the said witnesses is concerned, he, though being the uncle, has truthfully narrated the incident and there is no reason for him to spare the actual assailants and falsely implicate the present appellants. 57. 56. So far as the question of inimical terms between the assailants and the said witnesses is concerned, he, though being the uncle, has truthfully narrated the incident and there is no reason for him to spare the actual assailants and falsely implicate the present appellants. 57. So far as the PW-3 Dumbar Singh is concerned, he is the person, who had lodged the FIR in the Police Station on the basis of written report given to him by the first informant Angoori Devi as she was unable to personally visit the Police Station on account of the fact that the assailants were obstructing the way in order to ensure that the FIR be not registered. The testimony of the said witness has also been proved to this extent and there is nothing on record to establish that the FIR was lodged by making it anti-time. 58. So far as the PW-4 Laung Shree is concerned, she is daughter of the deceased and her presence with the deceased at the time of the incident is quite natural, who along with her sister-in-law and the father had gone to cut the paddy crops and while she was returning to her village, the incident has taken place, wherein her father was done to death. She had precisely and truthfully narrated the entire incident in her testimony and nothing could be elicited to doubt the credibility of the said witness also. 59. Thus, from the testimony of the aforesaid witness, her presence at the scene of occurrence has been clearly and cogently established and there is nothing inherently improbable or unreliable in her evidence. 60. Now, we may consider the submission of learned counsel for the appellants that PW-1 and PW-4 are relatives of the deceased and they are highly partisan and interested witnesses of the incident, being daughter-in-law and daughter of the deceased, hence, their statement could not relied upon. 61. The above submission was considered by the Hon'ble Apex Court in the case of Dalip Singh v. State of Punjab, AIR 1953 SC 364 , wherein the Court observed that ordinarily a close relative would not spare the real culprit, who has caused the death and implicate an innocent person. 62. The above noted submission was considered by Hon'ble Supreme Court elaborately way back in Dalip Singh v. State of Punjab, AIR 1953 SC 364 . 62. The above noted submission was considered by Hon'ble Supreme Court elaborately way back in Dalip Singh v. State of Punjab, AIR 1953 SC 364 . The Court observed that ordinarily a close relative would not spare the real culprit who has caused the death and implicate an innocence person. His/her evidence can only be discarded, when it is established that the witness has a cause, due to enmity to implicate him falsely. In Dalip Singh (supra) case also, the testimonies of two women witnesses was impeached on the ground that they were close relatives of the deceased. Following principles were enunciated in Dalip Singh (supra): “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.” 63. In Piara Singh v. State of Punjab, (1977) 4 SCC 452 , same principles were reiterated: “4. The central evidence against the appellant consisted of the three eye-witnesses, namely, PW-3 Harbhajan Singh, PW-5 Chanan Kaur and PW-6 Kesar Kaur. It is true that the three witnesses were relatives of the deceased and bear enmity against the accused but as the occurrence had taken place near the door of the house of the deceased, these persons were the natural witnesses and were in fact sitting in the Court-yard, when the occurrence took place. It may be difficult to get witnesses from the village, when an assault of the type suddenly takes place in the house of the deceased. It is well settled that the evidence of interested or inimical witnesses is to be scrutinized with care but cannot be rejected merely on the ground of being a partisan evidence. It may be difficult to get witnesses from the village, when an assault of the type suddenly takes place in the house of the deceased. It is well settled that the evidence of interested or inimical witnesses is to be scrutinized with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence, the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence. The High Court was fully alive to these principles and has in fact found that the evidence of these three witnesses has a ring of truth. After having perused the evidence also, we fully agree with the view taken by the High Court. In fact, the learned Sessions Judge has not made any attempt to dwell into the intrinsic merits of the evidence of these witnesses but has rejected them mainly on general grounds most of which are either unsupportable in law or based on speculation. The evidence of the eye-witnesses is sought to be corroborated by the evidence of PW-7 Kundan Singh to whom the whole occurrence was narrated immediately after the accused left the house. There is also the evidence of Balbir Singh, PW-17, who is a Sarpanch of the village and an independent witness and who proves that the appellant Piara Singh had made an extra judicial confession before him, in which, he admitted to have committed the murder of the deceased Surjit Singh along with his companions Kashmir Singh, Gian Singh and Joginder Singh. This witness also proves that Kashmir Singh on being narrated by the details made a disclosure which resulted in the recovery of the Kirpan from the sugar-cane field of Meja Singh for which a search list was prepared and the Kirpan was also found stained with human blood. According to the Investigating Officer an empty cartridge was also found at the spot and he sent the same to the Ballistic Expert along with the rifle recovered from Piara Singh who was a constable in the Border Security Force and the Ballistic-Expert found that the empty could have been shot from the rifle in question. These circumstances fully corroborate the evidence of the eye-witnesses. Finally, there is the medical evidence of Dr. These circumstances fully corroborate the evidence of the eye-witnesses. Finally, there is the medical evidence of Dr. Jatinder Singh who performed the post-mortem examination on the deceased and he found as many as 7 incised wounds on the various parts of the body of the deceased and 7 incised punctured wounds on some vital parts of the body. Apart from these injuries the deceased had also sustained a gun shot injury with a wound of entry and exit on the left buttock, which according to Dr. Jatinder Singh could be; caused by a fire-arm including a rifle. The Doctor further deposed that the contusions and abrasions were caused by a blunt weapon and the other incised wounds were caused by a sharp cutting instrument like the Gandasa. Another Doctor was examined by the Sessions Judge as Court Witness No. 1 who on seeing the post-mortem report of Dr. Jatinder Singh was of the view that Injury No. 11 could not have been caused by a rifle and much capital was made by the accused but of the evidence given by Dr. Paramjit Singh.” 64. A three Judge Bench in Hari Obula Reddy v. State of A.P. (1981) 3 SCC 675 , observed as under: “13... .it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.” 65. Again in S. Sudershan Reddy and others v. State of A.P. (2006) 10 SCC 163, the Hon'ble Supreme Court has held as under: “12. We shall first deal with the contention regarding interests of the witnesses for furthering the prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. We shall first deal with the contention regarding interests of the witnesses for furthering the prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. 15. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses.” 66. In this context the reference may be made to the judgment of Hon'ble Supreme Court in the cases of Kamta Yadav v. State of Bihar, (2016) 16 SCC 164 and Nand Kumar v. State of Chhatisgarh, (2015) 1 SCC 776 . 67. In the case of Ashok Rai v. State of U.P., (2014) 5 SCC 713 , the facts are some what similar. In that case also wife of deceased was sleeping near to her husband when her husband was shot. The testimony of wife was relied by the Court in following terms: “13. The most important witness is PW-4 Bijula Devi, the wife of deceased Kailash Rai. She was sleeping in the ahata in the Courtyard, on the same cot along with her husband deceased Kailash Rai in the night in question. She is the most natural witness. Her clothes were found bloodstained. According to the serologist's report, the blood group of the blood found on her clothes matched the blood group of the blood found on her husband's clothes. Her presence in the house at the dead of night cannot be doubted.” 68. In Mritunjoy Biswas v. Pranab alias Kuti Biswas and another, (2013) 12 SCC 796 , also, there was similar fact. In this case, husband was eye witness when his wife was shot by the accused persons from a window. The incident had taken place in the night when husband and wife were sleeping in bed room on cot. In Mritunjoy Biswas v. Pranab alias Kuti Biswas and another, (2013) 12 SCC 796 , also, there was similar fact. In this case, husband was eye witness when his wife was shot by the accused persons from a window. The incident had taken place in the night when husband and wife were sleeping in bed room on cot. In that case, also a lamp was burning near the cot as the home did not have any electric light. The Supreme Court set aside Judgment of the High Court amongst other ground that High Court has referred some discrepancies which were found by the Supreme Court in the realm of minor discrepancies. The Court held as under: “28. As is evincible, the High Court has also taken note of certain omissions and discrepancies treating them to be material omissions and irreconcilable discrepancies. It is worthy to note that the High Court has referred to the some discrepancies which we find are absolutely in the realm of minor discrepancies. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission of discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies, It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission [See Leela Ram v. State of Haryana, (1999) 9 SCC 525 , Rammi v. State of M.P., (1999) 8 SCC 649 and Shyamal Ghosh v. State of W.B. (2012) 7 SCC 646 ].” 69. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission [See Leela Ram v. State of Haryana, (1999) 9 SCC 525 , Rammi v. State of M.P., (1999) 8 SCC 649 and Shyamal Ghosh v. State of W.B. (2012) 7 SCC 646 ].” 69. In the case of Inder Singh v. State of Rajasthan, (2015) 2 SCC 734 , the Hon'ble Supreme Court held as under: “Some argument was advanced on there being lack of any clear motive but that is not at all necessary or material when the offences have been proved by clear and cogent evidence including eye-witnesses.” 70. Thus, we find that Hon'ble Apex Court in its enumerable decisions has categorically held that evidence of eye-witness, if found truthful, can not be discarded simply because the witnesses were relatives of the deceased. The only caveat is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. 71. Furthermore, close scrutiny of the eye-witnesses PW-1 and PW-4 goes to show that they witnessed the incident in question. The evidence of PW-5 Dr. N.P. Singh, who conducted the post-mortem and the post-mortem report points out conclusively to the culpability of the appellants for the commission of the offence. 72. Even the evidence of PW-8 Dr. O.P. Agrawal, who medically examined the injured PW-1 Angoori Devi, also points out conclusively to the culpability of the appellants for the commission of the offence. 73. From the statement of PW-1 and PW-4, we are satisfied about the commission of the offence by the appellants. We have carefully gone through the judgment of the trial Court and we are satisfied that the trial Court has appreciated the material on record in right perspective and learned counsel for the appellants could not point out any perversity in the finding of the trial Court. Thus, we do not find any infirmity, illegality or perversity in the judgment and order dated 8.7.1983 passed by 2nd Additional Sessions Judge, Budaun in S.T. No. 27 of 1981, under Section 302 read with Section 34 IPC and Section 323 read with 34 IPC recorded conviction of the appellants and the sentence awarded to them by the impugned judgment. 74. In view of the foregoing discussions, these appeals lack merits and are accordingly dismissed. There shall be no order as to costs. 74. In view of the foregoing discussions, these appeals lack merits and are accordingly dismissed. There shall be no order as to costs. 75. The surviving appellants Banwari and Jhamman Lal are on bail. Chief Judicial Magistrate, Badaun is directed to take them in custody in the aforesaid case and send them to Jail to serve out the sentences awarded by the trial Court and affirmed by us. 76. Let a copy of this judgment and order be sent to the Court concerned alongwith the lower Court record within a week for compliance. The compliance report shall be sent by the Court concerned to this Court within a further period of fifteen days.