Hon'ble Ram Krishna Gautam,J.
(Delivered by Hon'ble Ram Krishna Gautam, J.)
1. This jail appeal under Section 383 of Code of Criminal Procedure (hereinafter referred to as "Cr.P.C."), has been filed by convict-appellant Satyendra @ Chinu, through Superintendent of Central Jail, Fatehgarh, against judgment of conviction and sentence dated 29.04.2010 passed by Sri Vijay Bahadur Yadav, Sessions Judge, Farrukhabad in Sessions Trial No.310 of 2006 under Section 302/34 IPC arising out of Case Crime No.52 of 2006, P.S.Rajepur, District-Farrukhabad as well as in Sessions Trial No.311 of 2006 arising out of Case Crime No.53 of 2006 under Section 4/25 Arms Act 1959, P. S. Rajepur, District-Farrukhabad whereby accused-appellant Satyendra @ Chinu has been convicted for offence of murder punishable under Section 302/34 IPC (Sessions Trial No.310 of 2006) and for offence punishable under Section 4/25 Arms Act (Sessions Trial No.311 of 2006). He has been sentenced with life imprisonment, alongwith fine of Rs.10,000/- for offence punishable under Section 302/34 IPC (Sessions Trial No.310 of 2006) and in default of payment of fine, he has to undergo further rigorous imprisonment of six months. Under Section 4/25 Arms Act (Sessions Trial No.311 of 2006), he has been sentenced to six month's rigorous imprisonment alongwith fine Rs.2000/- and in default in payment of fine, he has further to undergo imprisonment for three months with direction of concurrent running of sentences.
2. Grounds of appeal as argued by learned counsel for appellant are as under :
(I) There was no motive for commission of offence of murder by accused.
(II) The very foundation of prosecution, First Information Report (hereinafter referred to as "F.I.R.") was suspicious and it was ante timed for which there was sufficient evidence of manipulation and embellishment, but Trial Court failed to appreciate it.
(III) Co-accused Santosh Singh is not named in F.I.R. or in statement recorded under Section 161 of Cr.P.C. or in statement of witnesses though he has been acquitted by Trial Court vide impugned judgment and there is no appeal by State against his acquittal, hence, the very testimony of prosecution witnesses regarding accused Santosh was not accepted by Trial Court whereas same has been accepted for accused-appellant.
(IV) Presence of prosecution witnesses, Amar Pal, Bhola Nath and Prempal and their being eye witnesses were full of doubt because their testimony are not in co-relations to each other, though each of them were related witnesses and their testimony was unreliable.
(V) Prosecution failed to examine independent witnesses of vicinity to support and corroborate prosecution version nor there was any explanation for this non examination of those independent witnesses.
(VI) The occurrence was said to be of midnight with no source of light. The alleged source of light i.e. torch was neither seized by Investigating Officer (hereinafter referred to as "I.O.") nor produced and proved before Court in trial, hence, there was suspicion regarding source of light.
(VII) False implicating of alleged recovery of knife on the basis of disclosure made in confessional statement of accused was there and it was not proved beyond doubt, even then Trial Court failed to appreciate it. Investigation was faulty and full of suspicion, but the Trial Court did not appreciate it.
(VIII) Sentencing too was improper.
3. From perusal of record of Trial Court as well as impugned judgment, prosecution case, as surfaced on record, is that F.I.R. of Case Crime No.52 of 2004 under Section 302 IPC was got registered at Police Station-Rajepur on 05.02.2006 at about 8.30 A.M. for occurrence of 11.00 P.M. in night of 04/05.02.2006 occurred near house of Ram Mohan and Brijpal Singh situated within village-Rai, within area of Police Station-Rajepur, at about 9 km from police station, upon report of Informant Amar Pal son of Chhotey Lal Kahaar, resident of Village-Rai, Police Station-Rajepur, District-Farrukhabad, against Satyendra @ Chinu son of Yadunath Singh, resident of same village with one other, that they have murdered Jaukhi alias Swami Dayal, Informant's brother, by assaulting by knife, with this contention that Informant Amar Pal on 04.02.2006 with his brother Jaukhi alias Swami Dayal was at his home and was to take meal when Satyendra alias Chinu came and took him. At about 11.00 P.M., a rescue call was heard from near the houses of Ram Mohan and Brijpal Singh. Informant, his uncle and nephew Prempal son of Ochh Lal along with his cousin Sunil Kumar son of Ganga Ram rushed thereat and found that Satyendra alias Chinu and one other, in which Chinu was armed with knife and other was with lathi, were assaulting Jaukhi alias Swami Dayal while Chinu was saying that further accusation of taken money was illegally levelled by Jaukhi alias Swami Dayal. Informant and others intervened and tried to apprehend those assailants, but they ran towards river. Jaukhi was serious. He was gasping, hence, was taken at home where he succumbed to above injuries at 2.00 A.M. in the night. Owing to fear, matter could not be reported in the night. It was reported in the morning. Dead body was lying at home and this report, under thumb impression of Amar Pal son of Chhotey Lal Kahaar, resident of Village-Rai, Police Station-Rajepur, dated 05.02.2006, under Scribe Bhola Nath son of Bachchu Lal resident of same village, was submitted. This case crime number was investigated. Then accused Satyendra @ Chinu son of Yadunath Singh was taken with a view to recover weapon of offence, from Police Station at 6.10 A.M. On 09.02.2006 by I.O. along with police team in continuation of confessional statement made by him and disclosure made therein by making entry at Report No.7 at about 6.10 A.M. of G.D. Entry of police station concerned. Then Satyendra alias Chinu took police team in front of house of Mannu Singh and from there, near potato field of Shyam Babu son of Rampal, under heap of refuse, he got the knife recovered where it was kept under hide. This knife was recovered with blood stains. This recovery was of 7.00 A.M. and said to be the same knife by which murder of deceased was committed by accused. Despite efforts, no public witnesses came forward to witness recovery. Recovery memo was got prepared on spot. Specimen seal was prepared. Knife was kept under seal and by presenting this recovery memo at police station, case crime number for offence under Section 4/25 of Arms Act was got registered at police station.
4. This case crime number was further investigated; in which inquest was got conducted on 05.02.2006 in between 8.30 A.M. to 10.00 A.M., by Sub Inspector, I.O. Rakesh Kumar Bharti in which death owing to ante mortem injuries found on the person of deceased was held to be there. But for determination of real cause of death autopsy examination was needed, hence, Inquest Report (Exhibit Ka 13) followed by relevant papers were got prepared by PW-7, S.I. Rakesh Kumar Bharti, the then Officer-In-Charge of Police Station-Rajepur on 05.02.2016. Dead body under intact sealed condition along with those papers were sent for autopsy examination, which was got conducted by Dr. Brijesh Singh, PW-3, at Ram Manohar Lohia Hospital, over dead body of deceased Jaukhi @ Swami Dayal on 05.02.2006 at 4.30 PM and prepared autopsy examination report under his handwriting and signature. He found that deceased was about 30 years of age; half day had passed since his death; average built body; eyes closed and mouth open; dry clotted blood at places over body; rigor mortis passed of face and neck muscles, but present in both extremities; fracture of back; P. M. staining present. a P M stains present in back of chest and abdomen. Mouth and eyes closed. He found following ante mortem injuries :-
(i) lacerated wound 4.0 cm x 1.0 cm x bone deep, top of left side head, 10.0 cm above left ear. On dissection, left temporal parietal bone fractured, meninges of brain lacerated.
(ii) incised wound 4 in number over side side of fact and forehead involving outer angle of left eye, measuring 4.0 cm x 1.0 cm to 2.0 cm x 0.5 cm , muscle to bone deep.
(iii) Abraded contusion 4.0 cm x 3.0 cm over left angle of mandible
(iv) lacerated wound 3.0 cm x 1.0 cm over left side upper lip, left incisor teeth broken.
(v) abraded contusion 5.0 cm x 3.0 cm over top of left shoulder.
(vi) incised wound 4.5 cm x 1.0 cm into muscle deep, dorsum side, right forearm upper 1/3
(vii) lacerated wound 5.0 cm x 1.0 cm front of right leg, middle part.
(viii) Abraded contusion 4.0 cm x 2.5 cm outer side of left elbow
5. On internal examination, heart was found empty, stomach contained blood mixed pasty food matter 200 g; small intestine contained gaseous pasty matter; large intestine contained gaseous faecal matter; gall bladder was half full. In opinion of this Medical Officer, cause of death was owing to shock and haemorrhage as a result of ante mortem injuries. PW-3 proved Post Mortem Examination Report, Exhibit Ka 2.
6. I.O.,P.W.-7 Rakesh Kumar Bharti visited place of occurrence and prepared Site Plan; entered statements of eye witnesses in Case Diary, arrested accused Satyendra @ Chinu on 08.02.2006. His statement was recorded and he made confession including disclosure of plausible recovery of weapon of offence i.e. knife and on his pointing weapon of offence i.e. knife was recovered from heap of refuse, written as above, from potato field of Shyam Babu (D.W.-1) situated at Village-Rai on 09.02.2006 at about 7.00 A.M. This case crime of offence under Section Arms Act was investigated by S.I., PW-6, Shiv Ram Singh. Investigation of offence under Section 302 IPC resulted into submission of charge sheet by I.O. Ram Baran Singh Parihar (P.W.4) against accused Satyendra @ Chinu and Santosh Singh for offence of murder punishable under Section 302 IPC. Investigation of offence punishable under Section 4/25 Arms Act resulted into submission of charge sheet for offence punishable under Section 4/25 of Arms Act against accused Satyendra @ Chinu. Cognizance over both charge sheets were taken by Chief Judicial Magistrate, Farrukhabad. As offence punishable under Section 302 IPC was exclusively triable by Court of Sessions in which charge sheet under Section 4/25 of Arms Act was submitted in connection of same offence of murder, hence, both cases were committed to Court of Sessions.
7. Additional Sessions Judge, Court No.5, Farrukhabad, after hearing learned Public Prosecutor as well as learned counsel for defence framed charge against accused persons in Sessions Trial No.310 of 2006 on 14.12.2006, which read as under :-
"मैं, हेतराम, अपर सत्र न्यायाधीश, कक्ष संख्या ५, फर्रुखाबाद आप सत्येंद्र उर्फ़ चीनू एवं संतोष सिंह पर निम्न आरोप लगता हूँ :-
यह कि दिनांक 04.02.2006 को समय करीब 11 बजे रात्रि वहद स्थान राममोहन व बृजपाल सिंह के घर के पास ग्राम राइ थाना राजेपुर जिला फर्रुखाबाद की सीमा में आपने सामान आशय को अग्रसर करते हुए वादी के भाई जौखी को चाकू मारकर हत्या कर दी इस प्रकार आपने ऐसा अपराध किया तो भारतीय दंड संहिता की धारा 302 सपठित धारा 34के अधीन दंडनीय अपराध है और इस न्यायालय के प्रसंज्ञान में है एतदद्वारा आपको निर्देश दिया जाता है कि उक्त आरोप हेतु आपका विचारण इस न्यायालय द्वारा होगा "
"I, Hetram, Additional Sessions Judge, Room No.5, Farrukhabad charge you Satyendra @ Chinu and Satosh Singh as follows :-
that on 04.02.2006 at about 11.00 PM in furtherance of common intention you have committed murder of Informant's brother Jaukhi by inflicting knife near houses of Ram Mohan and Brijpal situate in Village-Rai, P. S. Rajepur, District-Farrukhabad. Thus, you have committed an offence punishable under Section 302 read with Section 34 IPC which is within cognizance of this Court.
You are hereby directed to be tried by this Court for aforesaid charges."
(English Translation by Court)
8. Charge was read over and explained to accused persons, who pleaded not guilty and claimed for trial.
9. Charge framed by Court of Additional Sessions Judge, Court no.5, Farrukhabad in Sessions Trial No.311 of 2006 on 14.12.2006 reads as under :-
"मैं, हेतराम, अपर सत्र न्यायाधीश, कक्ष संख्या ५, फर्रुखाबाद आप सत्येंद्र उर्फ़ चीनू पर निम्न आरोप लगता हूँ :-
यह कि दिनांक 09.02.2006 को समय करीब 7 बजे प्रातः वहद स्थान खेत श्यामबाबू के कोने में पड़े घूरे ग्राम राइ थाना राजेपुर जिला फर्रुखाबाद की सीमा में आपने पुलिस अभिरक्षा में हत्या में प्रयुक्त चाकू को बरामद कराया जिसका फल ९ सेमी. के आसपास था इस प्रकार आपने ऐसा अपराध क्या जो शास्त्र अधिनियम की धारा 4/25 के अधीन दंडनीय अपराध है और इस न्यायालय के प्रसंज्ञान में है एतदद्वारा आपको निर्देश दिया जाता है कि उक्त आरोप हेतु आपका विचारण इस न्यायालय द्वारा होगा "
"I, Hetram, Additional Sessions Judge, Room No.5, Farrukhabad charge you Satyendra @ Chinu as follows :-
that on 09.02.2006 at about 7.00 AM while in police custody you have caused recovery of a knife with edge about 9 cm which was used in murder, from heap of rubbish lying in the corner of field of Shyam Babu situate in Village-Rai, P. S. Rajepur, District-Farrukhabad. Thus, you have committed an offence punishable under Section 4/25 of Arms Act, which is within cognizance of this Court.
You are hereby directed to be tried by this Court for aforesaid charges."
(English Translation by Court)
10. Charge was read over and explained to accused, who pleaded not guilty and claimed for trial.
11. Prosecution has examined PW-1, Informant Amar Pal and eye-witness account PW-2 Bhola Nath as well as PW-10 Prempal.PW-4 S. I. Ram Baran Singh Parihar, PW-5, Head Constable Brijendra Singh, PW-6 S. I., Shiv Ram Singh is Investigating Office, PW-7 Rakesh Kumar Bharti is first Investigating Officer of Case Crime No.52 of 2006, PW-8 is Constable Clerk Ram Babu and PW-9 Constable Heera Lal.
12. With a view to have explanation other incriminating evidence led by prosecution and explanation of accused, if any, statements of accused persons were got recorded under Section 313 Cr. P. C. in which accused took defence of false implication with specific mention that daughter of Brij Pal Singh was enticed and taken away from Farrukhabad. Brij Pal Singh and Pankaj murdered Balwa and his brother. On the date of occurrence they told deceased to bring liquor to which he failed to fetch and being enraged, Brij Pal Singh and Pankaj committed his murder and accused persons have been falsely implicated for this offence.
13. In defence, one Shyam Babu Singh and Kishanpal Singh, one of the co-villager of accused, have been examined as DW-1 and DW-2 respectively.
14. After hearing learned Public Prosecutor as well as learned counsel for defence, Sessions Judge passed impugned judgment of conviction against Satyendra @ Chinu for offence of murder punishable under Section 302 IPC as well as offence under Section 4/25 Arms Act and acquitted accused Santosh for charge levelled under Section 302 IPC.
15. Learned Public Prosecutor as well as learned counsel for defence were heard on quantum of punishment. Thereafter convict-appellant Satendra @ Chinu was sentenced with life imprisonment and fine of Rs.10,000/- under Section 302/34 IPC and in default additional rigorous imprisonment for six months and with six month's rigorous imprisonment alongwith fine Rs.2000/- under Section 4/25 Arms Act and in default in payment of fine, he has further to undergo imprisonment for three months with direction of concurrent running of sentences.
16. No appeal has been filed by State against judgment of acquittal for accused Santosh Singh. This Jail Appeal is against judgment of conviction and sentence against accused-appellant Satyendra @ Chinu.
17. Heard Sri Ambrish Kumar Kashyap, learned counsel appearing for appellant and Sri Rishi Chhadha, learned Additional Government Advocate for State.
18. In Anil Rishi vs. Gurbaksh Singh, AIR 2006 SC 1975, Court has held that onus to prove the fact is on the person who asserts it under Section 102 of Evidence Act, 1872. Initial onus is always on plaintiff to prove his case and if he discharges, onus shifts to defendants. In criminal case onus is upon prosecution to prove different ingredients of offence and unless it discharges that onus it cannot succeed to prove its case as has been held in Kali Ram Vs. State of Himachal Pradesh AIR (1) 1972 SCC 2773. Prosecution has to prove its case beyond all reasonable doubt whereas accused accused is required to prove only till establishing preponderance of probabilities as has been propounded by Apex Court in Vijayee Singh and others Vs State of U. P. AIR 1976 SC 966.
19. In appeal the burden is on appellant to prove how judgment under appeal is wrong? Appellant must show where assessment has gone wrong as has been propounded in Narbada Prasad Vs. Chhaganlal, AIR 1969 SC 393.
20. State of Punjab Vs Bhajan Singh AIR 1975 SC 258, Court has propounded that suspicion howsoever strong, cannot take place of proof. Prosecution has to prove its case beyond all reasonable doubts.
21. In the present case, appellant, in its memo of appeal, said that Trial Court failed to appreciate the facts and evidence placed before it and sentencing too was severe. Meaning thereby main assail was about failure of Trial Court in appreciation of evidence.
22. Homicidal death amounting to murder of deceased Jaukhi alias Swami Dayal in present occurrence was undisputed fact before Trial Court and it was not challenged even in defence, rather it was admitted by defence witnesses to be an offence of culpable homicide amounting to murder. But the convict-appellant was of no concern with above offence. The date and time of occurrence i.e. occurrence to be of midnight on 04/05.02.2006 at 11.00 P.M. at the place of occurrence i.e. nearby house of Ram Mohan and Brijpal Singh which was situated at Village-Rai was proved by prosecution witnesses, PW-1 Amar Pal, PW-2 Bhola Nath and PW-10 Prempal. But this place of occurrence was not challenged before Trial Court as has been written in page 4 of the judgment; Nor it was challenged before this Appellate Court. Autopsy Examination Report, followed after Inquest proceedings, was with mention of those ante mortem injuries written in it and death under above ante mortem injuries. This was proved by testimony of Dr. Brijesh Singh (PW-3), who conducted Autopsy Examination over dead body of deceased. This Autopsy Examination Report was formally proved by PW-3 Dr. Brijesh Singh. Plain and blood stained earth was recovered from place of occurrence by I. O., Rakesh Kumar Bharti (PW-7). The site map of place of occurrence (Exhibit ka 10) was prepared and was proved under handwriting and signature of this witness, which reveals the occurrence to be on above spot on which recovery memos, Exhibit Ka 11 and 12 were prepared by prosecution witness, PW-7 Rakesh Kumar Bharti at the time of spot inspection on 05.02.2006.
23. Motive as has been argued by learned counsel for appellant is of no avail in a case based on direct ocular testimony as has been repeatedly propounded by Apex Court specifically in T. P. Divetia Vs. State of Gujarat, 1997(7) SCC 156 in which Court has held that when trial is based on direct ocular evidence, motive loses its significance. Whereas in a trial based on circumstantial evidence, motive plays vital role and once it is established it becomes a pointer for scanning remaining evidence. Present case is based on ocular testimonies of Informant, PW-1, PW-2 and PW-3, hence, motive is of no avail.
24. Regarding ante timed FIR, on the basis of non mention of case crime number, name of accused etc, was vehemently argued. Testimony of PW-5 Head Constable Brajendra Singh is for this fact that while being posted as Constable Clerk at above police station, he got case crime lodged on 05.02.2006 at 8.30 AM at Police Station-Rajepur on the basis of FIR, Exhibit Ka 1 brought by Informant Amar Pal (PW-1) and this registration of case crime was entered in G. D. entry, Exhibit Ka 5 after preparation of Chik Report, Exhibit ka 11, under handwriting and signature of this witness. Regarding it there is no material contradiction, exaggeration or embellishment, though learned counsel has vehemently argued that Inquest report, Exhibit Ka 13, Police form Exhibit Ka 14, Photo dead body Exhibit Ka 15, Letter of Chief Medical Officer Exhibit Ka 16, recovery memo of currency Rs.5 and bidi bundle Exhibit ka 11 and recovery memo of blood stained and simple earth Exhibit ka 12 is without mention of case crime number. This was further corroborated by examination in cross of PW-2, who has said that police had rushed on the spot before lodging of FIR. It is true that those case crime number etc. were not mentioned over above prosecution papers. But the purpose of preparation of Inquest Report under Section 179 Cr.P.C. has been propounded in Amar Singh Vs. Balbinder Singh, AIR 2003 SC 1164 that requirement of Section 179 Cr.P.C. is that Police Officer shall record apparent cause of death describing wounds as may be found on body and also the weapon or instrument by which they appear to have been caused and that has to be done in presence of two or more respectable inhabitants of neighbour. The section does not contemplate that manner in which the incident has taken, place or names of accused, should be mentioned in Inquest Report. The basis purpose of holding Inquest is to report regarding apparent cause of death, namely whether it is suicidal, homicidal, accidental or by some machinery etc. Therefore, merely because the facts about the occurrence were not mentioned in Inquest Report, it could not be said that at least by the time the report was prepared, Investigating Officer was not sure of the facts of case. This has again been reiterated by this Court in State of U.P. Vs. Krishna Master and others, 2010 Cr.L.J. 3889 SC, that purpose of Inquest is to ascertain death of deceased and nature and not other recital material, hence, non mentioning of case crime number, name of accused etc. over inquest proceedings is of no importance.
25. Learned Trial Judge has analyzed this aspect and in view of law laid down in Radha Krishan Prasad Vs. State of U. P., 1996 ALJ SC 433 as well as Dukhmohan Pandey Vs. State of Bihar, (1997) 8 SCC 405 that non mention of crime number in Inquest Report is not fatal and only on the basis of this non mentioning of title of crime in Inquest Report, FIR is not to be treated as ante timed. Trial Court has not given weight to this argument of learned counsel for defence and same is in full conformity with proposition of law. This is further corroborated by proved Exhibit Ka 4 and 5, Chik Report as well as G.D. Entry respectively prepared and proved by PW-5 Head Constable Brajendra Singh, which reveals lodging of report at 8.30 A.M. On 05.02.2006 at Police Station-Rajepur, situated at a distance of 9 km from place of occurrence on the basis of report Exhibit Ka 1, submitted by Informant, PW-1 Amar Pal, who had brought this report along with him. Though argument on the basis of statement of PW-2 Bhola Nath has been raised in which he has said that police reached on spot before lodging of report. This has been negated by testimony of PW-5 and it is a natural variation in statement of PW-2 which was put to him in fatiguing cross-examination.
26. Regarding submission of Chik FIR to Court of C.J.M., the Trial Judge has held that in view of law propounded in Harapal vs. Devender Singh (1997) 6 SCC 660 as well as P.C. Maharte and others vs. State of Maharashtra, (2009) 10 SCC 773 delay in despatching FIR to Magistrate does not affect the testimony of person, who lodged the FIR.
27. In Munsi Pal Vs. State of Bihar, 2002 (1) SCC 351 while interpreting Section 157, 154 Cr.P.C., Court has propounded that delay in despatching FIR to Magistrate in cases which is otherwise reasonable proved by trustworthy witnesses will be of no fatal affect. Inquest Report compared with Post Mortem Report are not basic or substantive evidence. Discrepancy occurred in Inquest Report are not fatal to prosecution case nor suspicious circumstance so as to benefit the accused.
28. PW-1 Amar Pal in his testimony has categorically stated that his brother Jaukhi alias Swami Dayal was at his home on the day of occurrence when Chinu @ Satyendra son of Yadunath Singh, resident of same village, came and summoned him. His brother went with him. Regarding this statement there is no cross-examination or contradiction in his cross-examination. Hence, it is an unrebutted statement. At about 11.00 PM a rescue call of him was heard from nearby home of Ram Mohan and Brijpal Singh. This witness along with his uncle Bhola Nath (PW-2), nephew Prempal (PW-10) and Sunil Kumar rushed with torch and found Chinu armed with knife and Santosh armed with lathi. Assault by them were made over Jaukhi and when these witnesses reached on spot they all ran towards river. Injured was taken to home and owning to non-availability of conveyance in night and threat, he could not take injured at police station. His death occurred in the night at 2.00 A.M. and report in the morning was got lodged. Distance of place of occurrence was 9 km from Police Station, hence, it was a very reasonable and prompt FIR with specific name of accused and precise date, time and place of occurrence, sequence of events which were proved by him. Report Exhibit Ka 1 and registration of case crime number by presenting the same in morning was fully proved by this witness. This witness was not cross-examined on the date of examination-in-chief, rather adjournment was moved by defence and cross-examination was resumed on so many dates. In cross-examination, this witness has said that he and other witnesses were with torch and under light to same as well as accused being resident of same village, identity was fixed. Present convict-appellant was armed with knife and knife blow was being given by him. Post Mortem Report reveals as well as corroborates that ante mortem injuries owing to knife blow resulting into death. Hence, testimony of this witness is fully corroborated by medical evidence. Though argument has been advanced that torches were neither taken in custody nor recovery memo was prepared by I.O. and this has been admitted by this witness as well as PWs.-2 and 10. But this ought to be done by I.O., who did not do this. This may be laches on the part of I.O., but there is no lack of source of light. More so, for identifying a person of same village, no need of any light is there. Persons of close neighbourhood remain capable to identify co-villagers of close vicinity, even in absence of any source of light. In over all assessment of testimony of this witness, there is no material contradiction, exaggeration or embellishment. Rather it's a natural witness with no material contradiction. The minute variation being argued vehemently by learned counsel for appellant are of hair splitting nature, having no affect over his testimony regarding accusation against accused-appellant. This witness is fully intact and worth reliable.
29. Testimony of PW-1 has been corroborated by PW-2 Bhola Nath, who in examination-in-chief has reiterated prosecution version fully intact, that deceased Jaukhi alias Swami Dayal was at his home in the night at 8.00 P.M. and was to take meal when Chinu alias Satyendra, resident of same village, came at the door of his house, called him and took him. Thereafter rescue call was heard at about 11.00 P.M. from nearby houses of Ram Mohan and Brijpal Singh, then this witness along with family member, Informan PW-1 and others rushed on spot and found assault being given by present convict-appellant and Santosh. Present convict-appellant Chinu alias Satyendra was giving blow of knife. Assailants went towards river Ramganga. They were identified in light of torch as well as lunar light. Injured was taken at home where he died in the night and in the morning, witnesses rushed at Police Station where this report was got lodged, on the report of Amar Pal (PW-1), scribed by this witness, in his handwriting and signature. The same being on record as Exhibit Ka 1 with thumb impression of Amar Pal. This witness was not cross-examined at the time of examination-in-chief, rather adjournment application was moved and he was resumed for cross-examination on subsequent dates. His cross-examination continued on so many dates and learned counsel for defence repeatedly sought adjournments and break. Hence, there occurred some variation, though not material one, but vehemently argued by learned counsel for appellant. Whereas recital made by Presiding Officer reveals that there was a direction by this Court to conclude trial within four months from 24.10.2007. Even then repeated adjournment was made by learned counsel for defence and for which cross-examination was got made of those prosecution witnesses. But in over all appreciation of testimony of this witness there is no material contradiction, rather the same is with natural variation proving the witness to be natural witness and worth reliable.
30. PW-10 Prempal is witness of fact who has supported testimonies of PWs 1 and 2 in its all material particulars. There is consistency and coherence in his testimony regarding date, time and place of occurrence, sequence of events, manner of assault, weapon used in above assault. Though there was some variation regarding co-accused Santosh and same was capable of separation and that part was separated on the basis of which judgment of acquittal for co-accused Santosh was passed. But regarding present convict-appellant, the testimony was fully intact.
31. Regarding present convict-appellant Satyendra @ Chinu there is consistency and uniformity in testimonies of PWs 1, 2 and 10. This accused was neighbour of deceased. He was lastly seen in company of deceased when he called him and took with him at 8.00 P. M. on fateful night then after this occurrence at 11.00 P.M. Occurred and owing to ante mortem injuries inflicted by convict-appellant, he succumbed at about 2.00 A.M. in the night. There is nothing on record to show that he has been implicated on the basis of any enmity or grudge. Regarding source of light, witnesses of prosecution of fact have categorically said to have identified convict-appellant in the light of torch as well as lunar light and it was highly probable in case the accused and Informant are of close proximity then even without any source of light identification was not suspicious. Accused-appellant Satyendra alias Chinu and witnesses are resident of one and same village even then if it is held that alleged story of torch as source of light is not acceptable, it is of no avail for disbelieving reliability of prosecution case. Supreme Court and this Court have repeatedly propounded that persons of close vicinity, particularly of same village or neighbourhood, never require any source of light for their identification by inhabitants of close proximity.
32. Non-examination of independent witness have been vehemently argued by learned counsel for appellant. In a catena of decisions of Apex Court as well as this Court it has been laid down that quality of evidence and not quantity of evidence is necessary for proving or disproving prosecution case. It is not number but quality that is material. Time honoured principle is that evidence has to be weighed and not to be counted. In present case, three witnesses of fact i.e. PWs 1, 2 and 10, right from registration of case crime number till trial have proved the case and all were fully reliable and consistent witnesses, hence, merely they being related witnesses, is not a ground for making any suspicion for rejecting their testimonies.
33. PW-3 Dr. Brijesh Singh by his oral testimony as well as documentary evidence of Post Mortem Report, Exhibit Ka 2 has proved presence of two incised wounds, three lacerated wounds with three abraded contusions as ante mortem injuries over person of deceased and thus assault by knife and lathi said by prosecution was under full corroboration by medical testimony.
34. I.O. Rakesh Kumar Bharti (PW-7) proved arrest of accused-appellant Satyendra alias Chinu on 08.02.2006. Confession in the form of disclosure made by him regarding recovery of knife used as weapon of offence and concealed in heap of refuse in potato field of Shyam Babu; on the basis of which this witness took accused at above spot under his custody on 09.02.2006 at about 7.00 A.M. and this convict-appellant got recovered blood stained knife from heap of refuse, which was kept under sealed wrapper with preparation of recovery memo on spot. This recovery memo Exhibit Ka 7 as well as Material Exhibit of knife was fully proved by this witness. This case crime number under Section 4/25 Arms Act was formally registered which was proved by this witness which was having corroboration with testimony of PW-9, Constable Heera Lal. There was no inconsistency in testimonies of PWs 7 and 9, though DW-1 Shyam Babu tried to prove otherwise, but upon over all appraisal of testimony of DW-1 there creates no confusion or suspicion regarding testimony of PWs 7 and 9.
35. Formal witness I.O. Ram Varan Singh Parihar (PW-4) in his testimony has proved investigation made by him and submission of charge sheet Exhibit Ka 3 under his handwriting and signature in Case Crime No.52 of 2006 under Section 302/34 IPC. Regarding it there is no material contradiction, exaggeration or embellishment.
36. PW-5 Head Constable Brajendra Singh has proved Chik FIR and G.D.entry of Case Crime No.52 of 2006, Exhibit Ka 4 and Exhibit ka 5, which was having corroboration with testimony of PW=6 S.I. Shiv Ram Singh and I.O. Of Case Crime No.53 of 2006 under Section 4/25 of Arms Act. PW-6 has categorically proved the investigation made by him in which he prepared Site Plan Exhibit Ka 6 of place of alleged recovery of knife as well as Charge sheet Exhibit ka 7 after investigation under Section 4/25 Arms Act against accused Satyendra alias Chinu to be under his handwriting and signature. This was in corroboration with Site Plan Exhibit Ka 8 and proved Exhibit ka 9 and Exhibit ka 10 where dead body was kept. He has formally proved Exhibit ka 12 to 16 along with recovery memos which have also been proved by PW-7. Material Exhibit Ka 1 to 7 coupled with recovery memo Exhibit ka 17 has been proved by prosecution witnesses. PW-5 scribe of Exhibit ka 18 and G. D. entry Exhibit ka 19 in Case Crime No.53 of 2006 under Section 4/25 Arms Act whereas Constable Heera Lal, PW-9 is witness of recovery of knife and has proved Exhibit ka 17 and corroborated testimony of PW-7.
37. Apex Court in catena of decisions has observed that laches on the part of I.O. or any other instrumentality of State cannot affect credibility of prosecution witnesses or of prosecution case.
38. The plea taken by defence counsel that it was murder by Brij Pal Singh and his son Pankaj as was said by accused-appellant in statement recorded under Section 313 Cr.P.C., was to be proved by defence or ought to be proved up to this extent which may raise a reasonable doubt but convict-appellant failed to adduce any evidence to that effect. There was no evidence on record for above proof whereas Apex Court has considered the ambit and scope of reasonable doubt in criminal cases and has categorically laid down that reasonable doubt is not imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must be grown out of evidence in the case. In the present case, there was no reasonable doubt, rather prosecution was successful to prove the charge levelled against the convict-appellant successfully without any doubt. Trial Court with a very reasoned judgment and categorical analysis of oral and documentary evidence under correct perspective of law has based impugned judgment of conviction, hence, this appeal merits its dismissal on this point.
39. Regarding sentencing under Section 302 IPC, Legislature has given two sentences, either capital punishment or life imprisonment with fine. Upon appreciating aggravating and mitigating circumstances of present case, this case was certainly not a case of capital punishment and Trial Court has sentenced for life imprisonment with fine, which was minimum sentence provided by Legislature, hence, on the basis of sentencing too, this appeal merits its dismissal.
40. It is worth mentioning that convict-appellant was enlarged on bail and he is missing since 05.05.2016 and in spite of all efforts neither he nor his sureties could be traced for ensuring his presence. This jail appeal was pending since long, hence, Amicus Curiae was appointed and was heard along with argument of learned A.G.A. Now this appeal merits its dismissal as above. Appeal is being dismissed. Judgment of conviction and sentence made therein by learned Sessions Judge is being confirmed.
41. Certified copy along with record be sent to Court concerned for follow up action. Copy of this judgment be also supplied to accused-appellants through concerned Superintendent of Jail, if he is apprehended.
42. Sri Ambrish Kumar Kashyap, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs.10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Sri Ambrish Kumar Kashyap, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date : 26.04.2019 Manish Himwan