By this common judgment being passed in Criminal Appeal No.412/2000, another Criminal Appeal No. 472/2000 is also being decided as both of them
have been filed against the judgment dated 25th May, 2000, passed by Additional Sessions Judge, Gohad, district Bhind in Sessions Trial No. 27/1997,
whereby each appellant of both these appeals has been convicted and sentenced under Section 148 of the IPC, to undergo one year RI; under Section
302/149 of the IPC to undergo life imprisonment with a fine of Rs.1000/- with default stipulation. It is also directed by the judgment that both the jail
sentences of each appellant are to run concurrently.
2. Undisputedly, appellants Omprakash, Ganga Charan, Shyama Charan and Naresh, all residents of village Jhankri, are real brothers and appellant
Patlai @ Pramod is son of appellant Ganga Charan and there was prior enmity between the families of complainant Murlidhar (PW-6), resident of
Neerpura and appellants, because of land dispute and litigations regarding disputed land. Admittedly, at the same place and time appellant Ganga
Charan's son Rajesh alias Kallu was killed, in reference to which cross sessions trial was pending before the same trial Court against complainant
Murlidhar (PW-6), Mukesh (PW-7) and Vishram.
3. Prosecution's case in brief is that on 29.8.1996 at 7.55 am at Police Outpost Jhankri complainant Murlidhar (PW-6) lodged FIR (Ex.P/15) to the
effect that his son Pushpendra @ Pillu had come to his house at village Neerpura from Bhind. In the morning of 29.8.1996 complainant intimated his
son that Kallu @ Rajesh, Shyamacharan and Ganga Charan are roaming to commit his murder, hence complainant came with his son Pushpendra to
bus stand of village Jhankri to send his son back to Bhind. At about 7=30 am, at bus stand Jhankri they met with Rajesh, who was having a farsa,
Ganga Charan who was having an axe, Naresh was having a crowbar (Sabbal) and each of Shyama Charan, Omprakash, Putai and Patlai was having
a stick. Appellants started abusing Pushpendra and on objecting by complainant and his son, appellants having common intention to kill Pushpendra
assaulted him with their weapons. Pushpendra cried for not beating him, but appellants gave severe beating to him and when injured Pushpendra was
lying on earth, then appellants ran away with an impression that Pushpendra had died. At that time some other persons were also present at the bus
stand Jhankri. Complainant Murlidhar (PW-6) took the dead body of his son to Police Outpost Jhankri with help of Chowkidar Surat Ram (PW-1) and
lodged FIR (Ex.P/15) at Police Outpost Jhankri, which was recorded by ASI R.S. Bhadoriya (PW-10) and this recorded FIR was sent later on to
Police Station Mou for registration of the crime, on the basis of which Ramdas, Head Constable Police Station Mou recorded registering report
(Ex.P/27) at Police Station Mou. Sub-Inspector Arun Prakash Yadav (PW-13), SHO Police Station Mou, after receiving information reached Jhankri
and in presence of panch witnesses prepared inquest memo (Ex.P/3) and sent the dead body of Pushpendra for postmortem. On same day Arun
Prakash Yadav prepared spot-map (Ex.P/4) and seized blood-stained soil and simple soil and a leather shoe vide seizure memo
(Ex.P/5).
4. Dr. R.L. Sharma (PW-3) on 29.8.1996 at Primary Health Centre, Gohad at 3=00 pm started post-mortem of Pushpendra @ Pillu and recorded
post-mortem report (Ex. P/6) and sent the clothes found on the body of deceased in a sealed packet to relating police station, which were seized by
Head Constable Chhote Singh (PW-11) on same day vide seizure memo (Ex.P/14).
5. Investigating Officer Arun Prakash Yadav (PW-13) on 1.9.1996 arrested Ganga Charan, Shyama Charan and Omprakash vide arrest memo
(Ex.P/7) and on disclosure statement of appellant Ganga Charan, Investigating Officer recovered an axe from Ganga Charan vide seizure memo (Ex.
P/11). On disclosure statement of Shyama Charan a Barchhi was seized vide seizure memo (Ex.P/12). A stick was seized from Omprakash vide
seizure memo (Ex.P/13). The seized material were sent to Regional Forensic Science Laboratory, Gwalior with Superintendent of Police Bhind's letter
dated 2.11.1996. After completing formalities, charge sheet was filed before JMFC Gohad, who committed the case to the Sessions Court, Bhind, who
transferred arisen sessions trial to above mentioned trial Court.
6. Each appellant denied the charge framed by the trial Court under Sections 148 and 302/149 of IPC against him. It was the defence of the appellants
that they have been falsely implicated. It was the specific defence of the appellants Ganga Charan, Shyama Charan and Omprakash that in the
morning of 29th August, 1996 in village Jhankri when Ganga Charan's son Rajesh was bringing water from handpump to his house, then complainant
Murlidhar and Mukesh each having a countrymade pistol in his hand, Pushpendra (deceased) having a 12 bore single barrel gun and Vishram having a
mouser gun came to the house of Ganga Charan and started abusing and when Rajesh resisted, then Pushpendra fired a shot from his gun which hit
the chest of Rajesh and Rajesh fell down; thereafter Murlidhar, Mukesh and Vishram instigated Pushpendra to again fire on Rajesh and as
Pushpendra was prepared for firing second shot, then Ganga Charan, Shyama Charan and Omprakash reached on scene of occurrence to save
Rajesh and at the same time from roof of their houses ladies threw stones which caused injuries to Pushpendra and he fell down, thereafter Murlidhar,
Mukesh and Vishram ran away and thereafter they lifted injured Rajesh and took him to police outpost Jhankri and report was lodged and injured
Rajesh was sent to Gohad Hospital where he was declared dead and due to previous enmity they have been falsely implicated. No defence witness
was examined for the appellants. After hearing, the trial Court placing reliance on eye-witness account given by complainant Murlidhar (PW-6)
convicted and sentenced each appellant as aforesaid.
Hence, this appeal.
7. Shri R.K.Sharma, learned senior counsel for the appellants vehemently contended that the sole testimony of complainant Murlidhar (PW-6) as eye-
witness was not reliable as he was inimical to the appellants and his evidence was not corroborated by medical evidence relating to injuries found on
dead body of his son Pushpendra, as no incised or punctured or penetrated wound was found, hence the use of axe and barchhi was not established. It
was further contended that according to the evidence of complainant Murlidhar (PW-6), some independent eye-witnesses were present on the spot,
but no independent witness was examined for the prosecution, though allegedly incident occurred at bus stand Jhankri. It was also argued that actually
there exists no permanent bus stand at village Jhankri and complainant, his son Pushpendra and their companions came to the house of appellants with
four separate firearms and it is also argued that for taking bus for Bhind, it was not necessary to go to village Jhankri, as the buses for Bhind were
easily available on alternative road and actually appellant Ganga Charan's son Rajesh @ Kallu was murdered by Pushpendra and his companions but
the appellants were implicated in a false case with the help of police officials. Placing reliance on some citations it is argued that it was totally unsafe
to rely on evidence of the complainant Murlidhar (PW-6). Therefore, it is prayed that both the appeals filed by different appellants be allowed and
each appellant be acquitted.
8. On the other hand, Shri J.M.Sahni, appearing Public Prosecutor on behalf of the respondent/State, supporting the impugned conviction and sentence
contended that the trial Court has properly and legally appreciated and analysed the entire evidence available on record including the cross FIR
(Ex.D/3) of cross-case lodged by present appellant Omprakash at Police Outpost Jhankri and trial Court after property evaluating preponderance of
probabilities rightly found that actually the present appellants and Rajesh were aggressors who attacked on Pushpendra, who fired from his gun on
Rajesh to save himself.
9. It is clear from the evidence of Dr. R.L.Sharma (PW-3) and his post-mortem report (Ex.P/6) that at 3=30 pm on 29th August, 1996 at the time of
starting of postmortem of Pushpendra, he found that rigor mortis was present and blood was oozing from right ear and nose of the deceased and found
following injuries:-
(i) A lacerated wound, size 3cm x 2cm bone deep on left leg, beneath which tibia and fibula both bones were broken;
(ii) Radius and ulna bones of left forearm were also broken in the middle;
(iii) A lacerated wound on right ear's pinna, size 1x1/2x1/2 cm;
(iv) A lacerated wound on right side of face, near the eye, size 3x2x2 cm;
(v) A lacerated wound over frontal region of head, size 4x3x2 cm.
(vi) A lacerated wound on right parietal region of head, size 3x2x2 cm. On dissection of skull, fracture of right parietal bone was found and brain
matter was also lacerated.
10. Dr. Sharma (PW-3) opined that all injuries of deceased Pushpendra were ante-mortem and caused by hard and blunt objects and reason of death
was coma due to injury to brain and nature of death was homicidal and deceased had died within 24 hours from starting of his post mortem. He also
deposed that on right side of parietal region of skull due to injury bone had broken and brain has also lacerated and this injury was sufficient to cause
death in ordinary course of nature. 11. Dr. Sharma (PW-3) deposed in cross-examination that an axe causes incised wound and similarly Barchhi
causes penetrated wound but the dead body of Pushpendra was not having any such injury caused by axe and Barchhi and he opined that the wounds
found on dead body of Pushpendra could be caused by striking with stones or due to fall on stone. Much emphasis has been given by the appellants'
learned counsel that above mentioned facts came in cross-examination of Dr. R.L. Sharma (PW-3) corroborate his contention that ocular evidence
given by complainant Murlidhar (PW-6) is not corroborated by medical evidence.
12. Dr. R.L.Sharma (PW-3) also deposed in crossexamination that on same day at 2=30 pm he started post-mortem of deceased Rajesh and found an
entry wound caused by firearm on left side of chest having a diameter of 2 cm., whose margins were inverted and tattooing and charring was present
and third rib was broken and he found an exit wound on back, whose margins were outverted having a diameter of 4 cm. and he opined that Rajesh's
death was also homicidal caused by firearm. He also proved post-mortem report (Ex.D/1) of Rajesh, which was annexed in the record of cross
Sessions Trial No. 43/1997. Â
13. Prosecution witnesses Suratram (PW-1), Pratap Singh (PW-2), Vachan Singh (PW-4), Mukesh (PW-7) and Bikharilal (PW-12) examined in trial
against the appellants were declared hostile by the prosecution as they did not support the prosecution's case. Suratram (PW-1) deposed that he is
watchman of village Jhankri but he is having no knowledge regarding cause and manner of murder of Pushpendra, though he admitted his signature on
Safina Form (Ex.P/2) and Inquest Memo (Ex.P/3). Hostile declared Pratap Singh (PW-2) was panch witness of spot map (Ex.P/4), Safina Form (Ex.
P/2), Inquest Memo (Ex. P/3) and seizure memo (Ex.P/5), who deposed that he had signed on these papers only on asking of Police Head Constable.
Hostile declared Vachan Singh (PW-4) and another hostile declared Bikharilal (PW-12) were witnesses of arrest memos, disclosure statements and
seizure memos relating to different appellants, who have not supported relating prosecution version.
14. Complainant Murlidhar (PW-6) deposed that on the date of incident, i.e., 29.8.1996 in the morning at 7=30, he had come to bus stand Jhankri to
drop his son Pushpendra @ Pillu in a bus and on their reaching, Kallu @ Rajesh, Ganga Charan, Shyama Charan, Omprakash, Naresh, Patlai and
Putai were standing, who hurled abuses to his son, then he objected, thereafter Omprakash assaulted with his stick on thigh of Pushpendra, then
Pushpendra sat down. Thereafter, appellant Patlai assaulted with stick on right arm of Pushpendra and at the same time Rajesh was trying to assault
on Pushpendra with his farsa, but Pushpendra was having a gun, who fired in his defence, and the caused shot hit on chest of Rajesh, thereafter
Rajesh ran away towards his house and after that Omprakash, Ganga Charan, Shyama Charan, Naresh, Putai and Patlai encircled his son Pushpendra
and assaulted him with sticks, Barchhi, axe and crowbar (Sabbal). The complainant deposed that appellant Ganga Charan was having an axe, Shyama
Charan was having a Barchhi, Naresh was having a crowbar (Sabbal) and remaining each of the appellants Omprakash, Patlai and Putai was having
a stick and due to beating given by appellants, Pushpendra got unconscious, thereafter appellants ran away then he took injured Pushpendra with
watchman (Chowkidar) to Police Outpost Jhankri and lodged FIR (Ex. P/15) and Pushpendra died in the Outpost and at the same time, he was locked
in lock-up room of police outpost Jhankri because Ganga Charan's son Rajesh had died after receiving firearm injury. Complainant proved his
signatures on FIR (Ex.P/15) and spot map (Ex. P/4). 15. It is clear from the total evidence of the complainant Murlidhar (PW-6) that his son
Pushpendra @ Pillu was residing at Bhind in a rented house and was doing tuition work and occasionally visited his house at village Neerpura. In
cross-examination, complainant deposed that his son Pushpendra had come to Neerpura with Mukesh (PW-7) on the date of festival of Raksha
Bandhan in the noon at 12 o'clock by scooter of Mukesh and on the day of Raksha Bandhan his son had gone to village Pipahada with Mukesh and
had returned back to Neerpura in the evening at 5 pm by scooter as buses do not go to village Pipahada and at the previous night prior to the date of
incident, Pushpendra and Mukesh slept at his house and on next morning he had gone to drop Pushpendra in a bus at Jhankri Bus Stand but at that
time Mukesh was at his house in village Neerpura.
16. Much emphasis has been given by learned senior counsel for the appellants on the fact that as it is clear from the evidence of complainant that
Pushpendra had come to Neerpura on Raksha Bandhan with Mukesh after riding on Mukesh' scooter, hence on the date of incident Pushpendra could
have gone back to Bhind by Mukesh's scooter, therefore, there was no occasion for the complainant and his son for visiting village Jhankri in early
morning.
17. It is significant to mention here that Mukesh (PW-7), who was co-accused with the complainant in cross-case for the offence of murder
of Ganga Charan's son Rajesh, in his deposition clearly deposed that he is having no knowledge that when and how Pushpendra died though
Pushpendra was brother-in-law of his brother-in-law. Mukesh was declared hostile and when suggestions in the form of leading questions were given
to Mukesh by public prosecutor then he admitted that he had gone to Pushpendra's house at Neerpura for tying the Rakhi, but he denied all the
suggestions of the prosecution to the effect that the incident of murder of Pushpendra by appellants occurred in his presence at Jhankri bus stand.
Even he denied from giving police statement (Ex.P/16) to Investigating Officer. In crossexamination by defence counsel, Mukesh (PW-7) deposed
that three days after the death of Pushpendra, when he was locked in police station then police officials took his signatures on some papers. It is
surprising that according to the FIR (Ex.D/3) lodged by present appellant Omprakash, above mentioned prosecution witness Mukesh S/o Tularam was
named as co-accused with deceased Pushpendra, complainant Murlidhar and one Vishram and ASI R.S.Bhadoriya (PW-10) examined in this case in
his cross-examination admitted that on the date of incident at 7=45 am injured Rajesh @ Kallu was also brought by Omprakash and his companions
and Omprakash lodged this report against Pushpendra, Murlidhar, Vishram and Mukesh. According to Ex. D/3 and facts mentioned by present
appellants Ganga Charan, Shyama Charan and Omprakash in their examination conducted under Section 313 of the CrPC by the trial Court, at that
time Mukesh and Murlidhar was also having a country made pistol in his hand and Vishram was having a mouser gun, but no suggestion regarding
these facts mentioned in Ex.D/3 and examination of above mentioned three accused/ appellants was given to Mukesh (PW-7) by learned defence
counsel regarding his alleged role in murder of Rajesh @ Kallu, son of present appellant Ganga Charan. 18. Patwari Yashwant Singh (PW-8), who
during investigation prepared an outline diagram (Ex. P/16-A) of the scene of occurrence, admitted in his crossexamination that there are 3 to 4 ways
available for reaching the village Neerpura from Itayanda Road and he also admitted that on this road whenever any passenger at any place raises his
hand to stop the bus, the relating bus gets stopped and takes that passenger. Hostile declared prosecution witness Charan Singh (PW-9) has
deposed in his cross-examination that in village Jhankri there is no bus stand near Ramdin Rathor's house and he also deposed that the people residing
in Neerpura take buses from the road going towards Itayanda and they do not go to Jhankri for getting buses. On these facts it has been strongly
argued by learned senior counsel that complainant's evidence that he had come in the morning at Jhankri Bus Stand is not believable. But, complainant
Murlidhar had shown the place of incident in his FIR (Ex.P/15) lodged at Police Outpost Jhankri as Bus Stand Gram Jhankri.
Investigating Officer Arun Prakash Yadav (PW-13), who prepared spot map (Ex.P/4) and seizure memo (Ex.P/5) has clearly mentioned the place of
seizure in Ex.P/5 as Bus Stand Gram Jhankri. Similarly, in handwritten description regarding point No.1 shown in outline diagram, in spot map he has
clearly written that the scene of occurrence is in front the house of Jeevanlal Rathor shown in map, and on the side of same road in front the house of
Jeevanlal there is a bus-stand. The Investigating Officer is an independent witness and public officer, he has shown the place of scene of occurrence
as Bus Stand Jhankri, which could not be disbelieved.
19. Pratap Singh (PW-2), who was declared hostile by prosecution, has clearly admitted in para 2 that bus stand Jhankri is situated near the Police
Station (Outpost) Jhankri. He deposed in his cross-examination that Jeevanlal Rathor had expired and his son is Ramdeen Rathor. He also deposed in
cross-examination that the distance between the house of Jeevanlal Rathor and appellants' house is about 100 feet. In spot map (Ex. P/4) the distance
of scene of occurrence from the appellants' house is mentioned as about 50 paces. The scene of occurrence is shown just adjacent to right side of the
public road. Hence, the argument advanced by learned senior counsel that the deceased and his companions had come to the house of appellants for
assault, appears to be at maximum possible distance from the truth. It would be significant to mention here that present appellant Omprakash in his
FIR (Ex.D/3) has clearly mentioned the scene of occurrence adjacent to the door of Ramdeen Rathor's house. Therefore, it is also clear from the
report lodged by present appellant Omprakash that incident had not occurred in front of appellants' houses.
20. It is well settled that prosecution has to prove its case beyond reasonable doubt, but in cross-cases, when there are cross reports lodged by each
party against the other, then in such situation preponderance of probabilities could be examined on the basis of cross report lodged by the accused. In
present case, the cross FIR (Ex. D/3) got proved in cross-examination of R.S. Bhadoriya (PW-10) by the defence counsel. According to the cross
FIR and facts mentioned by present three appellants in their examination under Section 313 of the CrPC, wherein they have specifically mentioned
that at the time of incident complainant Murlidhar was having a country made pistol, Mukesh (PW-7) was also having a country made pistol and their
companion Vishram was having his mouser gun and admittedly deceased Pushpendra was having licensed 12 bore gun of his father. In FIR lodged by
appellant Omprakash, it is mentioned that after first firing of the shot by Pushpendra from his gun, complainant and his companions were instigating
Pushpendra for causing second shot with his gun on Rajesh @ Kallu. It is surprising that if allegedly each of Pushpendra's companions was having
separate firearm then why he would instigate Pushpendra for second fire. Similarly, if complainant and his companions would have been aggressors
and each was having a separate firearm, then it would not have been possible for any one to murder Pushpendra. In such situation, other appellants
like Rajesh @ Kallu would have also received firearm injuries caused by any alleged companion of Pushpendra. The trial Court has considered all
possibilities in right perspective and rightly concluded that the appellants were aggressors and Murlidhar was not having any firearm, otherwise story
would have been different.
21. Much emphasis has been given by learned senior counsel on the fact that complainant Murlidhar had not mentioned facts in his FIR about firing
made by his son over Rajesh @ Kallu and complainant's FIR is not having any explanation regarding fatal injury received by Rajesh @ Kallu, though
Rajesh @ Kallu S/o Ganga Charan is also shown as co-accused in FIR (Ex.P/15) lodged by Murlidhar (PW-6). In the light of the citations referred to
by the trial Court, it is clear that it is not necessary that the FIR should be an encyclopedia mentioning each fact. Similarly, present appellant
Omprakash has not given any explanation in his FIR (Ex. D/3) regarding fatal injuries received by Pushpendra, though in cross FIR (Ex.D/3) it is
mentioned that after receiving entry wound of firearm by Rajesh, appellants Omprakah, Shyama Charan and Naresh came on spot to save Rajesh. In
cases of cross reports generally informer does not offer any explanation regarding injuries received by persons of opposite side but in present case in
cross-examination and even in examination-in-chief, Murlidhar (PW-6) has given total account that how and in which manner his son Pushpendra fired
on Rajesh @ Kallu. Three appellants disclosed facts in their examination that they had come on spot to save Rajesh, but it is mentioned in their
examination only that ladies of their families from roof of their houses pelted stones on Pushpendra and, therefore, Pushpendra received fatal injuries
but this explanation regarding Pushpendra's injuries is totally missing in cross FIR (Ex.D/3) lodged by present appellant Omprakash. Fractures of tibia
and fibula bones of same leg and fractures of radius and ulna bone of forearm could not be possible only due to pelting of stones from the roof,
whereas it is established that distance of spot from the appellants' house is about 100 feet. In the light of cases of Gururam Singh and another vs.
State of Punjab [ 1995 Supp (3) SCC 743 ] and State of M.P. vs. Hanif Khan and others [1999 (2) JLJ 310], the explanation of injuries to opposite
party given in Court deposition by prosecution witnesses is enough.
22. Even it is clear from the FIR of the cross-case (Ex.D/3) that complainant Murlidhar was present at the scene of occurrence, hence his presence
could not be doubted. Admittedly, there was enmity between families of the complainant and appellants regarding land dispute and previously pending
litigations, but only due to enmity his total evidence could not be discarded whereas even from the FIR (Ex. D/3) of the cross-case, presence of three
appellants Omprakash, Shyama Charan and Naresh and their intervention in the incident is established. If previous enmity could be the reason for
false implication, then on other hand it could also be the reason for causing murder of Pushpendra by the appellants. In the light of the case of
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC 753), due to minor and trivial contradictions and inconsistencies, otherwise truthful
evidence could not be discarded.
23. So far as the question of non-corroboration of ocular evidence of complainant by medical evidence is concerned, in the light of the case of Masalti
and others vs. State of UP (AIR 1965 SC 202), it is clear that when more than five persons were giving beating to sole deceased then it is not possible
for eyewitnesses to depose accurately that which specific injury to the deceased or injured is caused by whom and by which weapon. The medical
evidence is considered as an evidence of opinion and it is clear from the evidence of Dr. R.L.Sharma (PW-3) and his post mortem report (Ex.P/6)
that though he found fracture of radius and ulna both bones of left forearm of the deceased, but he had not mentioned nature of any external injury
visible on left forearm of the deceased. The deceased's both bones of left leg and left forearm were broken, hence possibility of use of a heavy solid
object like crowbar (Sabbal) could not be ruled out. On this point, the cases of Forest Range Officer vs. Mohd. Ali and others (AIR 1994 SC 120);
Mohan Singh and others vs. State of Madhya Pradesh (1999 SCC (Cri) 261) are referable.
24. So far as the question of non-production of any independent witness is concerned, complainant Murlidhar (PW-6) has deposed in cross-
examination that at the time of incident in a nearby house under construction of one Kori slabs were being fixed and there 10 to 15 persons including
Bachchu Kushwaha and Hero Kori were present. In the FIR (Ex.P/15) it is also mentioned that at the bus stand of Jhankri other persons were
present. In this reference, Investigating Officer Arun Prakash Yadav (PW-13) has clearly deposed in cross-examination (para 13) that for recording
police statement of independent witnesses he has enquired during investigation from Jeevanlal Rathor, Prem Rathor, Ramdeen Rathor, Babu Singh
Jaat and others but they have disclosed that at the time of incident they were not present on the scene of occurrence, hence their police statements
could not be recorded. Investigating Officer also deposed that complainant had disclosed in his police statement (Ex.D/2) that Anil Sharma and
Mukesh Sharma, both residents of other villages were present but these witnesses could not be traced out, hence their police statements were not
recorded. It is significant to mention here that the watchman (Chowkidar) of village Jhankri, Surat Ram (PW-1), who had helped complainant in
carrying body of the injured Pushpendra from spot to Police Outpost Jhankri, has not supported the prosecution's case, though above mentioned fact is
clearly recorded by R.S.Bhadoriya (PW-10) in FIR (Ex.P/15) recorded at Police Outpost Jhankri within 25 minutes after the incident. Surat Ram
(PW-1) is resident of village Jhankri whereas complainant and his deceased son were residents of village Neerpura. It is common experience that
people are generally reluctant to come forward to depose before the Court to get rid of ill-will or enmity. In such circumstances, only due to absence
of any so-called independent witness otherwise appearing reliable evidence of the complainant could not be thrown out.
25. As regards the circumstances relating to the recovery of axe, Barchhi and stick (lathi) from appellants Ganga Charan, Shyama Charan and
Omprakash is concerned, it is clear that on this point the evidence of Investigating Officer Arun Prakash Yadav (PW-13) is not supported by
prosecution witnesses Vachan Singh (PW-4) and Bikharilal (PW-12) who were declared hostile by the prosecution. It is clear in the light of FSL
report that though blood was found on Barchhi and a stick but its source and blood group could not be determined. Hence, the circumstantial evidence
regarding alleged recovery appears to be meaningless, but only due to this reason the eye-witness account given by complainant Murlidhar (PW-6)
could not be rejected.
26. We are of the considered opinion that the trial Court has properly and legally appreciated and analyzed the entire evidence available on record in
right perspective and has not committed any error in convicting and sentencing each appellant for the charged offence. Both these appeals are having
no substance, hence deserves dismissal.
27. In the result, Criminal Appeals No. 412/2000 and 472/2000 filed by relating appellants are hereby dismissed and the aforesaid conviction and
sentence as recorded by the trial Court against each appellant is hereby affirmed.
28. Each appellant of both the appeals is on bail after suspension of his sentence. Each appellant is directed to immediately surrender before the trial
Court to serve out his remaining jail sentence. The trial Court's order regarding disposal of seized property is also affirmed.
With a copy of this judgment record of the trial Court be sent back immediately.
