JUDGMENT Vijay Kumar Verma, J.
1. Challenge in this Appeal is to the Judgment and order dated 07.05.2005 passed by Sri Gaur Chandra, the then Additional Sessions Judge, Court No. 3, Budaun in S.T. No. 965 of 2002 (State v. Nathu Singh and Ors.) and connected S.T. No. 21 of 2003 (State v. Arvind and Ors.), whereby the appellants-accused Nathu Singh, Vir Pal Singh, Arvind and Narendra Singh have been convicted and sentenced to undergo rigorous imprisonment for one year under Section 147 I.P.C., two years rigorous imprisonment under Section 148 I.P.C. and imprisonment for life under Section 302 read with Section 149 I.P.C. in case crime No. 125/2001 of P.S. Islamnagar (Budaun).
2. The appellants-accused Nathu Singh, Vir Pal Singh and Arvind have been acquitted by the impugned Judgment in case crime No. 129/2001, 130/2001 and 131/2001 under Section 25 Arms Act, but no appeal against their acquittal has been preferred by State of U.P.
3. The incident resulting in the death of Mahendra Singh, father of the complainant Rakesh Kumar (P.W. 1) resident of Village Ladauri, P.S. Islamnagar, District Budaun and co-accused Rishi Pal occurred on 26.05.2001 at about 4.00 p.m. in Sot river within the limits of village Ladauri. The case of the prosecution as appearing from the First Information Report (Ext. Ka-2) and statement of P.W. 1 Rakesh Kumar, in brief, is that on 26.05.2001, Sri Mahendra Singh, father of the complainant, had gone to see Vardana at wheat purchase centre, Mudia Dhureki. When at about 4.00 p.m. he was coming back to his house via village Jagat Pipri and was crossing Sot river, the accused Rishi Pal S/o Bhola Singh resident of Village Rasoli, Nathu Singh and Vir Pal Singh both S/o Prayag Singh, Narendra Singh S/o Shish Pal and Arvind S/o Vir Pal Singh residents of Village Ladauri, caught hold of Mahendra Singh in the river and fired shots on him. On hearing the noise of shrieks of his father, the complainant Rakesh Kumar and his brother Awadhesh as well as the witness Suresh (P.W. 2), leaving irrigation of their piperment-fields, rushed towards the river and saw that the accused Rishi Pal and Nathu Singh armed with tamanchas, Vir Pal Singh having paunia, Arvind armed with knife and Narendra Singh having tabal were causing marpit with Mahendra Singh. Hearing the sound of fires, many people of village Jagat Pipri also came on the river. Seeing themselves surrounded, Rish Pal and Nathu Singh firing on the people, rushed towards the garden. In that firing, shot of some miscreant hit the accused Rishi Pal, due to which he fell down on the bank of river, but other accused fled away towards Village Ladauri. After going away of the accused, when the complainant and other people came near, they saw that Mahendra Singh and Rishi Pal both were lying dead in the river. The complainant Rakesh Kumar thereafter got the written report (Ext. Ka-1) scribed by Naresh Chandra Gupta and went to P.S. Islamnagar, where he handed over the report, on the basis of which chik F.I.R. (Ext. Ka-2) was prepared by P.W. 3. Jorawar Singh, who registered a case at crime No. 125/2001 under Section 147, 148, 149 and 302 I.P.C. against the appellants-accused along with the deceased-accused Rishi Pal on 26.05.2001 at 6.30 p.m., entry of which was made in G.D. No. 24 vide Ext. Ka-3.
4. S.I. Brij Kishore Dwivedi was posted as Station Officer at P.S. Islamnagar. He took up the investigation in his hands and proceeded to the place of occurrence along with S.I. Bachchu Singh and other police personnel. On his direction, S.I. Bachchu Singh (P.W. 4) conducted inquest proceedings on both the dead bodies, during which he prepared inquest reports Ext. Ka-4 and Ext. ka-10 alongwith connected papers Ext. Ka-5 to Ext. Ka-9 and Ext. Ka-11 to Ext. Ka-15. Thereafter, both dead bodies were sent in sealed condition for post morton examination.
5. The post-mortem examination on the dead body of deceased Mahendra Singh was conducted by Dr. B.S. Mishra (P.W. 5) on 27.05.2001 at 3.00 p.m. According to post-mortem report (Ext. Ka-17), the following ante-mortem injuries were found on the person of deceased:
(1) An incised wound on mid of forehead sizing 5 cm x 1 cm at base of nose, underneath frontal bone found cut.
(2) An incised wound on mid of both nostrils on ant. aspect sizing 1cm x 1 cm.
(3) A lacerated fire arm wound of entry sizing 2 x 0.5 cm, 2 cm above lateral part of left eye brow. Communicating with a firearm wound of exit on back lower part of left side skull, sizing 3 x 1.2 cm.
(4) An incised wound on right side of upper forehead size 2 cm x 0.5 cm x bone deep 4 cm above right eye brow.
(5) A fire arm wound of entry on lateral aspect of chest on left mid axillary line, 13 cm below left axillary, underneath fractured.
(6) Abrasion on back of left wrist joint sizing 2 cm x 0.5 cm just on left wrist.
(7) Two incised wounds on left side of skull in an area sizing 8 x 4 cm. 8 cm upward from left ear. Sizing 2x1 cm. to 4 x 1.5 cm. 4 cm apart from each other.
(8) Contusions on forearm of both hands. Underneath injury haematoma (+).
In internal examination, frontal and occipital bones were found fractured. Membranes, pleura, brain, both lungs and pericardium were found lacerated. 5th and 6th rib of left side were found fractured. Large vessels were collapsed. About 100 gm. semi-solid and semi-digested food was found in the stomach. Faecal matter and gases were found in large intestine. 1.5 litre fluid and clot was found on thoracic cavity. 3 wadding pieces and 26 small metallic pellets were recovered from lacerated organs and from chest cavity.
According to Dr. Mishra, death was caused due to shock and haemorrhage, as a result of ante mortem injuries.
6. During investigation, the accused persons were arrested on 28.05.2001 at about 4.30 p.m. near village Bahirpur and on their personal search, one country made tamancha 12 bore with two live catridges from accused Nathu Singh, one paunia 315 bore with two live cartridges from accused Vir Pal Singh and one knife from accused Arvind were recovered vide recovery memo Ext. Ka-16, on the basis of which cases under Section 25 and 4/25 Arms Act at crime No. 129/2001, 130/2001 and 131/2001 were registered against the accused Nathu Singh, Vir Pal Singh and Arvind respectively. The Investigating Officer S.I. B. K. Dwivedi after spot inspection prepared site plan (Ext. Ka-19) of the place of incident of murder, recorded the statements of witnesses and after completion of investigation submitted chargesheet Ext. Ka-18 against all the four appellants-accused. Investigation of the cases of crime No. 129/2001 to 131/2001 under Section 25 Arms Act was conducted by Section I. V.S. Rana (P.W. 7), who obtained prosecution sanction (Ext. Ka-20 and Ka-21) from District Magistrate, Budaun. After completion of investigation, separate chargesheets for the offence under Arms Act were submitted against the appellants-accused Nathu Singh, Vir Pal Singh and Arvind.
7. On the case being committed to the Court of Session, charges under Section 147, 148 and 302 read with Section 149 I.P.C. in S.T. No. 965 of 2002 against all the four accused-appellants and separate charges under Section 25 and 4/25 Arms Act in S.T. No. 21 of 2003 against the accused-appellants Nathu Singh, Vir Pal Singh and Arvind were framed, to which they pleaded not guilty and claimed to be tried.
8. In order to prove its case, the prosecution examined seven witnesses in all. P.W. 1 Rakesh Kumar and P.W. 2 Suresh are the eyewitnesses. P.W. 3, Jorawar Singh is the scribe of chik F.I.R. (Ext. Ka-2) and G.D. of registration of case (Ext. Ka-3). P.W. 4 S.I. Bachchu Singh has proved inquest reports (Ext. Ka-4 and Ext. Ka-10)) and connected papers as mentioned above. He was also present at the time of recovery of illicit arms, knife and cartridges from accused Nathu Singh, Vir Pal Singh and Arvind. Recovery Memo (Ext. Ka-16) has also been proved by him. P.W. 5, Dr. B. Section Mishra has proved post-mortem report (Ext. Ka-17). P.W. 6.
Constable Mahendra Singh is formal witness, who has proved chargesheet (Ext. Ka-18) and site plan (Ext. Ka-19) by recognizing the handwriting and signature of Investigating Officer S.I. Brij Kishore Dwivedi, who could not come to Court for evidence due to fracture in his spinal cord. P.W. 7, S.I. V. Section Rana has proved prosecution sanction (Ext. Ka-20 and Ka-21).
9. In their statements recorded under Section 313 Cr.P.C, the appellants-accused have denied their participation in the alleged incident and they have stated that due to enmity, they have been falsely implicated in this case.
10. In defence, the appellants did not examine any witness. However, they have filed certified copy (paper No. 38B) of the F.I.R. of case crime No. 125-A/2001 under Section 147, 148, 149 and 302 I.P.C. of P.S. Islamnagar, Budaun. This F.I.R. was lodged for the murder of Rishi Pal by Smt. Rajbeti against Mahendra Singh (deceased), Rakesh (complainant herein), Awadhesh, Ashok and Rajesh.
11. The learned Trial Court after considering the evidence on record, convicted and sentenced the appellants-accused as aforesaid. Hence, this appeal.
12. We have heard Shri Kamal Krishan, learned Counsel for the appellants, learned A.G.A. for the State and perused entire evidence including impugned judgement carefully.
13. Regarding the incident in which the death of Mahendra Singh, father of the complainant and accused Rishi Pal was caused, two witnesses namely Rakesh Kumar (P.W. 1) and Suresh (P.W. 2) have been examined by the prosecution. The testimony of these witnesses has been believed by learned Trial Court. We have carefully gone through the statements of these witnesses and we also are of considered view that testimony of these witnesses is worth-relying. P.W. 1 Rakesh Kumar is the son of deceased Mahendra Singh. His statement in Trial Court was recorded on 03.02.2004. He has stated that on 26.05.2001, his father Mahendra Singh had gone to see the vardana at wheat purchase Centre, Mudiya Dhureki and when he was coming back to his house at about 4.00 p.m. and was crossing Sot river, the accused Rishi Pal, Nathu Singh, Vir Pal Singh, Narendra Singh and Arvind, who were hidden in the river, caught hold of his father and fired shot on him. The accused Rishi Pal (now deceased) and Nathu Singh were armed with tamanchas, whereas the accused Vir Pal, Narendra and Arvind were having paunia, tabal and knife respectively. It is further stated by this witness that when on hearing the sound of shrieks of his father, he and his brother Awadhesh and Suresh rushed towards the river, they saw that the accused persons were assaulting his father. It is also stated by him that on hearing the sound of fire, many people of village Jagat Pipri came at the place of incident, on which the accused persons began to fire towards them and in that firing, one shot of any accused hit Rishi Pal. It is further stated by the witness Rakesh Kumar that after going away of the accused, when he and other persons went in the river, they found that Mahendra Singh and accused Rishi Pal were lying dead in river. Regarding the motive of committing murder of his father, Rakesh Kumar has stated that his father and Nathu Singh had contested the election of Village Pradhan due to which there was enmity between them and in a case under Section 307 I.P.C. in which attempt to commit the murder of his cousin brother was made, Nathu Singh was pressuring to compromise and was giving threatening to kill.
14. The statement of the witness Rakesh Kumar has been corroborated by P.W. 2, Suresh, whose statement in Trial Court was recorded on 20.05.2004. He has stated that about three years ago, at about 4.00 p.m. when he was irrigating his maitha field and Rakesh Kumar alongwith his brother Awadhesh was also irrigating his maitha field, they heard the sound of shrieks of Mahendra Singh from the river and when on hearing the noise, they rushed towards the river, they saw that Nathu Singh and Rishi Pal armed with tamancha, Vir Pal having paunia, Narendra Singh armed with tabal and Arvind having knife were assaulting Mahendra Singh, who fell down on the bank of river and died instantaneously. It is further stated by this witness that on hearing the noise, the people of village Jagat Pipri also reached there and on their challenge, the accused persons began to fire towards them and in that firing, the accused Rishi Pal also sustained injuries and died instantaneously.
15. Lengthy cross-examination has been made from aforesaid witnesses by the learned Counsel for the accused appellants, but nothing material adversely affecting their testimony could be elicited from them. There is no material contradiction in the statements of these witnesses and their testimony is trustworthy and convincing. On the basis of reliable testimony of these witnesses, it is fully proved beyond reasonable doubt that murder of Mahendra Singh was committed by the appellants-accused and co-accused Rishi Pal (now deceased) in prosecution of their common object on 26.05.2001 at about 4.00 p.m. in Sot River at the time when he was coming back after seeing vardana at wheat purchase centre, Mudiya Dhureki. P.W. 2 Suresh is an independent witness and having no enmity with the appellants-accused, he has no reason to give false evidence against them. There is no reason to disbelieve his testimony, which is wholly reliable. Although the witness Rakesh Kumar is the son of deceased, but on this ground, his testimony cannot be discarded, because his testimony also is worth relying. It is settled principle of law that if the testimony of any witness is found reliable and trustworthy, then his testimony cannot be discarded on the ground that he is related to the deceased or victim. Regarding the testimony of interested and related witnesses, the Hon'ble Apex Court in the case of Dalip Singh and Ors. v. State of Punjab , has made the following observations:
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 relation 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 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. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts.
16. The above decision has been followed in Guli Chand and Ors. v. State of Rajasthan , in which Vadivelu Thevar v. State of Madras was also relied upon. Again in Masalti and Ors. v. Stae of U.P. , the Hon'ble Apex Court observed:
But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or in terested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
17. Hence, having regard to the observations made by the Hon'ble Apex Court, the testimony of the witness Rakesh Kumar cannot be discarded merely on the ground that he is the son of deceased Mahendra Singh as his testimony is convincing and trustworthy.
18. The testimony of aforesaid eyewitnesses finds corroboration from medical evidence. Ante mortem injuries No. 1, 2, 3, 4 and 7 mentioned in post-mortem report (Ext. Ka-17) are incised wounds whereas injury No. 5 is firearm wound of entry. These injuries are possible to be caused by firearm, tabal and knife as opined by Dr. B. Section Mishra who conducted post mortem examination on the dead body. It is also stated by Dr. Mishra that the death of deceased was possible to be caused on 26.05.2001 at about 4.00 p.m. Ante mortem injury No. 6 is abrasion on back of left wrist joint which may be caused by falling down on earth. Ante mortem injury No. 8 are contusions on forearm of both hands. Although the prosecution has not furnished any explanation regarding ante mortem injury No. 8, but on this ground it cannot be said that there is any material inconsistency in ocular and medical evidence, because if paunia is used as weapon of assault, then contusions on forearm may be caused.
19. It was vehemently contended by learned Counsel for the appellants-accused that due to non-examination of the Investigating Officer, the appellants have been seriously prejudiced. We are not impressed with this submission. It has come in the testimony of Constable Mahendra Singh (P.W. 6) that Investigating Officer S.I. B. K. Dwivedi is unable to move due to fracture in his spinal cord. In our view, non-examination of Investigating Officer is not fatal to this case, because there is no material contradiction in the statements of the witnesses Rakesh Kumar and Suresh recorded under Section 161 Cr.P.C. from their statements, recorded in the Court. In the case of Bahadur Nayak v. State of Bihar 2000 JC RC 312, reliance on which has been placed by learned Trial Court also, the Hon'ble Apex Court has held that if there is no material contradiction in the testimony of the witnesses, then non-examination of the Investigating Officer will not be fatal to the prosecution. In our view, in instant case also, the appellants-accused have not been seriously prejudiced due to non-examination of Investigating Officer, because as mentioned above, there is no material inconsistency in the statements of the witnesses Rakesh Kumar and Suresh recorded in Trial Court and during investigation under Section 161 Cr.P.C.
20. It was further submitted by learned Counsel for the appellants-accused that there is contradiction in site plan (Ext. Ka-19) and statements of witnesses Rakesh Kumar and Suresh, because according to the site plan, the dead bodies of both the deceased were found lying on the bank of river, whereas witnesses Rakesh Kumar and Suresh have stated that dead-bodies of Mahendra Singh and Rishi Pal were lying in river. In our view, there is no contradiction on this point in site plan and statements of aforesaid witnesses. It is nowhere stated by the witnesses Rakesh and Suresh in their statements recorded in Trial Court that dead bodies of deceased Mahendra Singh and accused Rishi Pal were lying in water of river. In common parlance the term 'river' includes the places on both side of water. According to site plan, the dead bodies of deceased Mahendra singh and Rishi Pal were found lying on the bank of Sot river in southern side. Therefore, it cannot be said that there is any material inconsistency in site plan and oral evidence. Due to some minor contradictions, if any, the reliable testimony of the witnesses Rakesh Kumar and Suresh cannot be discarded. In the case of Leela Ram v. State of Haryana , the Hon'ble Apex Court in para 9 of the report has held as under:
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 detail. 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.
The Court further observed:
It is a common practice in trial Courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
21. Next submission made by learned Counsel for the appellants-accused was that although many persons of Village Jagat Pipri are said to have arrived at the place of incident, but no independent witness has been examined by the prosecution, which is serious infirmity in this case. We are not impressed with this argument also. It is settled principle of law that even if independent witnesses do not come to Court to depose, conviction can be based on the testimony of the witnesses, which have been examined by the prosecution and this principle will apply in the case of relative witnesses also. The Hon'ble Apex Court in para 31 in the case of Krishna Mochi v. State of Bihar 2002 SCC (Cri) 1220 has made the following observations:
It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons maybe that they do no have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power.
In para 33 it is further held:
It is well settled that in a criminal trial credible evidence of even a solitary witness can form the basis of conviction and that of even half a dozen witnesses may not form such a basis unless their evidence is found to be trustworthy inasmuch as what matters in the matter of appreciation of evidence of witnesses is not the number of witnesses, but the quality of their evidence.
Therefore, in instant case, in our view, non-examination of any person of Village Jagat Pipri, who arrived at the place of incident on hearing the sounds of fire is not fatal, as on the basis of the reliable and convincing testimony of the witnesses Rakesh Kumar and Suresh, it is fully established that murder of the deceased Mahendra Singh was committed by the appellants-accused and co-accused Rishi Pal, who also died as a result of fire arm injury, which he received in the firing.
22. Although no positive defence has been taken by the appellants-accused in their statements recorded under Section 313 Cr.P.C. in Trial Court, but during arguments, it was submitted by their learned Counsel that on the day of occurrence at about 4.00 p.m., the deceased Mahendra Singh, Rakesh, Awadhesh, Ashok and Rajesh were assaulting Rishi Pal tying him to the tree in their field situated on the bank of Sot river and when hearing hue and cry, people went there, Rakesh shoot Rishi Pal by 315 bore tamancha and when some people of village Jagat Pipri came there, firing started from both side, in which Mahendra Singh sustained injuries to which he succumbed instantaneously. In support of this argument, the learned Counsel for the appellants-accused has drawn our attention towards the certified copy of the F.I.R. (Paper No. 38-B) in ST. No. 965 of 2002, which was lodged on 26.06.2001 at P.S. Islamnagar. According to that F.I.R., a case under Section 147, 148, 149, 302 I.P.C. was registered at crime No. 125-A/2001 against Mahendra Singh, Rakesh Kumar, Awadhesh, Ashok and Rajesh for committing the murder of Rishi Pal. The learned Trial Court has considered this aspect in impugned Judgment and defence theory as mentioned above has not been believed. In our view, the learned Trial Court has not committed any illegality in not placing reliance on the aforesaid defence theory. According to the F.I.R. of case crime No. 125A/2001, which was lodged by the order of Chief Judicial Magistrate, Budaun on the application moved by Smt. Rajbeti w/o Shish Pal Singh r/o Village Ladauri under Section 156(3) Cr.P.C., marpit is said to have been caused with Rishi Pal by the accused named in the F.I.R. and Rakesh is said to have shooted him by 315 bore tamancha, but these averments made in that F.I.R. are not corroborated from the post-mortem report of Rishi Pal. Carbon copy of the post mortem report of Rishi Pal is annexed in lower Court record as paper No. 8-A/8. Post mortem examination on the person of deceased Rishi Pal was conducted on 27.05.2001 at 3.30 p.m. According to the post mortem report, one fire arm wound of entry on right side of skull and another fire arm wound of exit on left temporal region were found on the person of deceased and no injury of any other kind was found at the time of post mortem examination. It shows that no marpit was caused with Rishi Pal as alleged in the F.I.R. of case crime No. 125-A/2001. Had the deceased Rishi Pal was being beaten tying to the tree as alleged in the said F.I.R., some other injuries must have been found on his person at the time of post mortem examination, but as mentioned above, only fire arm wounds of injury and exit were found on his person at the time of post mortem examination, which falsifies the defence theory as mentioned in the F.I.R. of case crime No. 125A/2001. In that F.I.R., it is nowhere mentioned that the deceased Mahendra Singh was assaulted by sharp edged weapons in defence and according to that F.I.R. the deceased Mahendra Singh is said to have sustained injury in the firing, which is alleged to have been made from both sides. This case of the F.I.R. of crime No. 125-A/2001 is also false, because according to the post mortem report (Ext. Ka- 17), in addition to one fire arm wound of entry, six incised wounds also were found on the person of deceased Mahendra Singh. In Trial Court no witness was examined by the appellants-accused to substantiate the defence theory as contained in the F.IR. of case crime No. 125-A/2001. For all these reasons, the defence theory has been rightly discarded by the learned Trial Court.
23. It was further submitted by learned Counsel for the appellants-accused that the presence of Rakesh Kumar at the time of incident is doubtful, because he did not sustain any injury. The * contention of the learned Counsel was that had the witness Rakesh Kumar was present at the time of incident he also would have been murdered and he would not have been left alive to give evidence. We are not at all impressed with this argument. In our view, the presence of the witness Rakesh Kumar or Suresh at the place of incident is not rendered doubtful merely because they did not sustain any injury. The target of the appellants-accused was the deceased Mahendra Singh. The witness Rakesh Kumar was not accompanying his father Mahendra Singh and he along with his brother Awadhesh was irrigating his piperment field. They both and the witness Suresh had reached on the place of incident on hearing the sounds of shrieks of the deceased Mahendra Singh and they had seen the incident from some distance and they came near to the deceased Mahendra Singh after the appellants-accused had fled away from the place of incident. Under these circumstances, if the witnesses Rakesh Kumar and Suresh did not sustain any injury, then their presence at the time of incident cannot be doubted.
24. Next submission made by learned Counsel for the appellants-accused was that the field of the witness Suresh has not been shown in the site plan and hence, on this ground his presence at the time of incident is highly doubtful. Although in the site plan (Ext. Ka-19), the filed of the witness Suresh has not been shown, but in our considered view, due to this lapse on the part of the Investigating Officer, the case of the prosecution cannot be thrown out. It is well settled by the catena of decisions of this Court and Hon'ble Apex Court that due to any lapse or latches on the part of Investigating Officer, the case of the prosecution cannot be thrown out. The Full Bench of this Court in the case of Gopal and Ors. v. State of U.P. 1999 (1) J.I.C. 858 has held that weakness of the Investigation is no ground to reject the direct testimony of the prosecution witnesses. Reference in this regard may be made to the cases of State of Rajasthan v. Kishore and Ors. 1996 (33) ACC 284 and State of West Bengal v. Meer Mohammad Omar and Ors. 2000 (41) ACC 598 also. Therefore, having regard to the well settled principle of law, the appellants-accused are not entitled to get any benefit due to any weakness of the investigation and latches or lapses on the part of Investigating Officer.
25. No other point worth mentioning was urged by parties counsel before us.
26. For the reasons which we have mentioned hereinabove, there is no scope to make any interference by this Court in the impugned judgement, because the learned Trial Court has not committed any illegality in appreciating the evidence and convicting the appellants-accused for the offences with which they have been charged.
27. In the result, the appeal is hereby dismissed. Conviction and sentence of the appellants-accused Nathu Singh, Veer Pal Singh, Narendra Singh and Arvind awarded by the Trial Court is affirmed. The appellants-accused are undergoing sentence in jail. They shall be kept there to serve out the remaining sentence.
28. Office is directed to return Trial Court record expeditiously along with a copy of this Judgment for necessary action.