JUDGMENT
Imtiyaz Murtaza, J.
1. This appeal is filed against the judgment and order dated 11.8.1981 passed by IVth Additional Sessions Judge, Pilibhit in S.T. . No. 249 of 1980 whereby the appellants are convicted under Sections 302/34 I.P.C. and sentenced to imprisonment for life. Appellants Sewa Ram and Ram Prasad are further convicted under Section 323/34 I.P.C. and sentenced to undergo R.I. for six months and a fine of Rs. 500/- and in default of payment of fine further R.I. for one month.
2. The appellant no. 2, Ram Prasad has died during the pendency of this appeal in the month of May, 1984 and his appeal has already been abated by this Court on 16.12.2003.
3. Brief facts, mentioned in the first information report lodged by Shaukat Ali, are that he was in the service of Jagannath prasad, a relative of Smt. Genda Devi, deceased. There was litigation going on between Smt. Genda Devi and Smt. Savitri Devi, her stepdaughter, who was resident of village Nauganiya. It is alleged that on 22.8.1980 informant Shaukat Ali alongwith Smt. Genda Devi and Jagannath had gone to tehsil Beesalpur and they were returning from there at about 4.00 O’clock. When they reached near the sugar cane field of Babu Jee, Smt. Genda Devi was going ahead of them, Jagannath was behind her and he was behind Jagannath. At about 6.00 O’clock Rari Prasad, Sewa Ram and Parmeshwari armed with Lathis and Sundar Lal carried Kanta came out from the sugar cane crop and started assaulting Smt. Genda Devi. Alarm was raised by the informant and Jagannath. He was also assaulted by Ram Prasad and Sewa Ram by Lathis. After the occurrence, he informed the residents of village Chandpura. The Chowkidar, Pradhan and other people of the village reached at the place of occurrence. Due to night he could net come to the police station to lodge the F.I.R. and he remained sit? there whole night, looking after the dead body. He lodged the report at the P.S. Beesalpur on 23.8.80 at 7.20 A.M. The distance of the police station from the place of occurrence is 4 miles. After the registration of the case Ram Lakhan Singh, S.H.O., started investigation. He reached at the place of occurrence alongwith S.I. Sahibdin and prepared the inquest report (Ext. Ka 8) of the dead body of Smt. Genda Devi. He also prepared relevant papers like photo lash, challan lash and letter for the post-mortem etc. (Exts. Ka. 9 to Ka. 13). The investigating officer also prepared site plan (Ext. Ka. 5). Post-mortem on the dead body of Smt. Genda Devi was conducted by Dr. D.P. Agarwal and he noted the following ante-mortem injuries :
1. Incised wound 14.0 x 4.0 x 5.0 cms. deep on the (L) side cutting through lower one third of (L) ear extending up to 2.0 cm lateral to outer angle of (L) eye to back of (left) side of neck the under lined maxilla bone…(paper torn) clean Cut and great vessels of neck viz carotids and jugulars are clean cut in the wound.
2. Incised wound 7.G x 2.0 cm x bone deep on the top head, The 5.0 cm length of wound on (L) side of head and 2.0 cms length on the right side. The under lined bone is clean cut. The membranes and both parietal lobes of brain are clean cut underneath the injury.
3. Lacerated wound 4.0 cm x 2.0 cm x bone deep on the (L) side of head 1.0 cm behind injury No. (2).
4. Lacerated wound 4.5 x 1.0 cm x bone deep on the (L) side of head. 10 cms lateral to outer and lateral limits of injury no. (3).
5. Lacerated wound 5.0 x 1.0 cms on the back of head. The wounds are bone deep with fracture of bone underneath.
6. Incised wound 3.0 x 0.5 cm x muscle deep on the back of (L) shoulder joint,
7. Lacerated wound 3.0 x 0.5 cm x bone deep with missing terminal phalynx of left ring finger on the middle phalanx, the middle phalynx is fractured.
4. The informant was also medically examined by Dr. C.K. Chaturvedi on 23.8.1980 at 8.30 A.M. and he had noted the following injuries :
1. Lacerated wound 7 cm x .5 cm x muscle deep on top of & scalp 15 cm from root of nose margins in irregular.
2. Abrasion contusion 4 cm x 2 cm Rt. Forehead 2 cm-above the Rt. Upper eyebrow.
3. Contusion 7 cm x 3 cm x back and middle of Lt. Forearm.
5. In the opinion of doctor all the injuries are caused by hard blunt weapon and of simple. The duration is about 24 hours.
6. After the conclusion of the investigation, charge-sheet was submitted against the accused persons (Ext. Ka. 14).
7. After the submission of the charge-sheet, case was committed to the court of Session and the prosecution had examined 7 witnesses to support its case.
8. P.W. 1, Shaukat Ali and P.W. 3 Jagannath are the eyewitnesses. P.W. 2, Dr. C.K. Chaturvedi had medically examined Shaukat Ali. P.W. 4, Dr. D.P. Agrawal, had conducted post-mortem examination on the dead body of Smt. Genda Devi. P.W. 5 is Constable Kanchan Singh. He had prepared chik F.I.R. and G.D. entry. P.W. 6, Ram Pal Sharma, had escorted the dead body for the post-mortem examination. P.W. 7, Ram Lakhan Singh, is the investigating officer of the case.
9. P.W. 1, Shaukat Ali, is informant of the case. He had supported the allegations of the first information report and deposed that on the date of occurrence he was returning from Beesalpur tehsil alongwith Smt. Genda Devi, deceased, and Jagannath. At about 6.00 P.M. when they reached near the field of Babu Jee in village Kangawan, Genda Devi was going ahead of them, he was behind her and Jagannath was following them. Parmeshwari Dayal, Sewa Ram, Ram Prasad armed with Lathis and Sundar Lal armed with Kanta emerged out and started assaulting Genda Devi and thereafter Sewa Ram and Ram Prasad assaulled him. Genda Devi died on the spot. He and Jagannath raised alarm. He lodged the report at P.S. Beesalpur in the next morning.
10. P.W. 3, Jagannath, deposed that he alongwith Genda Devi and Shaukat Ali had gone to Beesalpur. Genda Devi was his sister in law. They had gone to Beesalpur to move an application in a case. He stated that when they reached near the chak of Ram Sahai, four persons emerged out. He recognised only three persons namely Sewa Ram, Parmeshwari and Ram Prasad. He could not identify the fourth. All the three were armed with Lathis and fourth person was armed with Kanta. They started assaulting Genda Devi and thereafter Shaukat Ali was assaulted by Ram Prasad and Sewa Ram. He further stated that Genda Devi was assaulted on account of litigation of land. A case was pending between Savitri and Genda Devi. Parmeshwari Dayal and Sewa Ram are sons of Savitri and Ram Prasad is her brother-in-law. Genda Devi had succumbed to her injuries.
11. P.W. 2, Dr. C.K. Chaturvedi, had medically examined Shaukat Ali and in his opinion duration of the injuries was 24 hours.
12. P.W. 4 is Dr. D.P. Agrawal who had conducted the postmortem on the dead body of Genda Devi.
13. P.W. 5 is H.C. Kanchan Singh. He had prepared the F.I.R. (Ext, Ka, 3) and also entered the same in G.D. and copy of the G.D. entry is Ext. Ka. 4.
14. P.W. 6, Con. Ram Pal Sharma, deposed that on 23.8.1980 he had brought the dead body of Genda Devi for the post-mortem examination to Pilibhit.
15. P.W. 7, Ram Lakhan Singh, is the investigating officer of the case. He deposed that he had started the investigation of the case after the registration of the F.I.R. He had prepared the recovery memo of blood stained earth and plain earth (Ext. Ka. 6). He had also prepared the recovery memo of one pair of Chappal (Ext. Ka. 7) and after the investigation he submitted charge-sheet against the accused.
16. The Sessions Judge after considering the evidence on the record convicted the appellants as aforesaid and acquitted Sunder Lal. Hence (his appeal.
17. The counsel for the appellants has challenged the presence of the witnesses at the spot. It is pointed out that at the alleged tine no case was pending between the parties, therefore, there was no occasion for the witnesses to be present at the alleged place of occurrence, P.W 1 had stated that he had gone to Beesalpur from Chandpur for moving one application alongwith them. The occurrence took place when they were returning from Beesalpur and when they reached near the field of one Babu ji in village Kangawan. Similarly P.W.1 stated that he had gone to Beesalpur for moving an application. The counsel for the appellants submitted that in fact no case was pending between the parties therefore there was no occasion for moving any application in Court. The case was decided on 22.8.80 by the S.D.M. Beesalpur. We have considered the submission of the counsel of the parties and also perused the evidence on record. This submission of the counsel for the appellants has no substance. Against the order of the S.D.M. a revision was filed before the sessions judge and the said order of the S.D.M was set aside and the case was remanded back to the S.D.M. therefore, it can not be said that no case was pending between the parties. The order of the revisional court was not filed by the defence. The presence of the informant is also proved by the injuries suffered by the PW1 at the alleged time of the occurrence. He was medically examined by P.W 2 Dr. C. K. Chaturvedi on 23.8.80 at 8.30 A.M. and he found three injuries including one lacerated wound 7cm, muscle deep, on top of the scalp. In his opinion these injuries are possibly caused on 22.3 80 at 6,00 P.M. He also stated that these injuries can not be more than 18-20 hour old. Thus, we find that his presence at the time of occurrence is also corroborated by the medical evidence. Therefore, the submission of the counsel for the appellants that the presence of the witnesses is doubtful at the alleged place of occurrence has no substance and is rejected.
18. The counsel for the appellants further submitted that investigation in this case is tainted and first information report was not in existence at the time of preparation of the inquest report. It is submitted that crime number and name of accused is not mentioned in the inquest report and the papers connected therewith. This submission of the counsel for the appellants has no substance because in the inquest report there is no column to mention the name of the accused and it has been held by the apex court in various decisions that any deficiency or irregularity in investigation need not necessarily lead to the rejection of the case of prosecution when it is otherwise proved. In the present case report of the case is lodged by P.W.1 Shaukat Ali at 7.20 A.M. on 23.8.80. P.W. 5 const. Kanchan Singh had deposed that on the basis of the first information report he had prepared the G.D. No. 9 on 23.8.80 at 7.20. A copy of G.D. entry is Ex, Ka. 4, The prosecution has fully proved that first information report was registered at the alleged time. The investigating officer was not asked about cutting and over writing in Ex. Ka. 13. Therefore no adverse inference can be drawn that first information report was not in existence at the time of preparation of this document. The Session Judge also rightly rejected this submission of the defence counsel after giving detailed reasons and we also concur with the same. There is nothing on the record to suggest that the first information report was not in existence at the time of preparation of the inquest report.
19. It is further submitted that there is inordinate delay in sending the special report. The First Information Report had reached in the court of Munsif Magistrate on 26.8.80. Therefore, it was contended that there is inordinate delay in dispatching of the F.I.R. P.W.5 Kanchan Singh stated that the special report was sent by him on 23.8.80 through constable Krishna Datt Shukla. P.W. 7 Ram Lakhan Singh also stated that the special report was sent through R.T. set. It is also important to point out that special report was sent through the office of C.O, Beesalpur, The office of the C.O. had sent the special report on 25.8.80. In our opinion, there is no delay in dispatching the F.I.R. to doubt that the First Information Report was not registered at the time as alleged by the prosecution. We have already held that the prosecution has fully proved that the First Information Report; is registered at the time as alleged by the prosecution. The Sessions Judge also rightly rejected the submission of the counsel for the accused. Apart from this the Apex court in the case reported in 2004 S.C.C (Cr) 149 Balram Singh and Anr. v. State of Punjab has held that “At any rate, while considering the complaint of the appellants in regard to the delay in the F.I.R. reaching the Jurisdictional Magistrate, we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance, the element of delay in *registering a complaint or sending the same to the Jurisdictional Magistrate by itself would not in any manner weaken the prosecution case.” It is further submitted that both the eye witnesses are interested and there is no independent corroboration of their testimony and the Session Judge should not have recorded the findings of conviction only on the basis of the testimonies of interested witnesses. We have-considered the submission of the counsel of the appellants. It is true that both the eyewitnesses were doing pairvi of the case of the deceased Smt. Genda Devi. She was sister in law of P.W. 3 Jagannath. P.W.I Shaukat Ali was servant of P.W.3 Jagannath. The testimonies of these witnesses can not be rejected solely on the ground of their interestedness. The evidence, in each case, has to be considered from the point of view of trustworthiness and from the angle as to whether it inspires confidence in the mind of the court to accept and that the question of credibility and reliability of a witness has to be decided with reference to the way he fared in the cross-examination and the nature of impression created in the mind of the court. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties on either side. Where it is shown that there is enmity and the witnesses arc relatives too, the court has a duty to scrutinize their evidence with great care, caution and circumspection and be very careful too in weighing such evidence.
20. We have carefully examined the testimonies of both the eyewitnesses, A perusal of their statements show that both have fully supported the prosecution case. Both have explained their presence at the time of occurrence. Their testimonies inspire confidence. Both were subjected to lengthy cross-examination but nothing could be elicited to discredit their testimony. PW 1 Shaukat Ali received injuries in the occurrence and P.W.3 Jagannath did not receive any injury. The statement of P.W. 2 Dr C.K. Chaturvedi shows that his injuries were caused by blunt weapon like Lathi. The evidence of their testimony shows that he was assaulted by Sewa Ram and Ram Prasad who were armed by Lathi. Similarly both these witnesses stated that deceased was assaulted by Lathi and Kanta and the deceased had received injuries which are attributable to the weapons assigned to the accused. The eyewitness account finds full corroboration from the medical evidence. The sessions judge rightly relied upon their testimonies for recording the findings of conviction.
21. Lastly, the counsel for the appellants submitted that on the basis of same evidence session judge acquitted Sunder Lal, therefore, on the basis of the same evidence appellants should not have been convicted. We have considered the submission of the counsel for the appellants and perused the evidence on record and the order of the sessions judge. The sessions judge acquitted sunder Lal on the ground that details of Sunder Lal were not mentioned in the F.I.R. He is resident of a different village and not the relative of other accused and P.W.3 Jagannath could not recognise the accused who was armed with Kanta. He had not supported the statement of P.W.I regarding the identity of the person who was armed with Kanta. Therefore, the Sessions Judge had held that the prosecution failed to prove satisfactorily that it was the accused Sunder Lal who was armed with Kanta and he had struck Kanta injuries on the person of the deceased Smt. Genda Devi. The Sessions Judge has categorically indicated the distinguishing features in evidence so far as acquittal of Sunder Lal and conviction of other accused are concerned. It is well settled that merely on account of acquittal of one accused entire prosecution case can not be discarded. The principles of “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution Therefore, this submission of the counsel for the appellants has no substance and is rejected.
22. In view of the above this appeal has no substance and is dismissed. The conviction and sentences awarded by the Sessions Judge are hereby maintained in all respects.
23. The appellants were granted bail by this court. The C.J.M. Pilibhit, therefore, is directed to cause the apprehension of the appellants, Sewa Ram and Parrneshwar Dayal, forthwith on receipt of a copy of this judgment and remand them to judicial custody for serving out the sentences as awarded by the trial court and confirmed by us.
24. A report to this effect be also submitted to this court.