JUDGMENT
Vinod Prasad, J.
1. Four appellants Ram Prakash, Randhir Singh @ Peelu, Ram Babu and Satya Pal have challenged their convictions under Section 302/34 and 324/34 I.P.C. and sentences of life imprisonment on the first count and two years R.I. on the second count recorded by III Additional Sessions Judge, Mainpuri in Sessions Trial No. 442/1978, State v. Ram Prakash and Ors. relating to police station Bewar. district Mainpuri vide his impugned judgment and order dated 23.12.1 OS I. Out of the four appellants two of them, appellant No. 3 Ram Babu and appellant No. 4 Satya Pal died during the pendency of their appeal in this Court. In respect of appellant Satyapal there is a death confirmation report by C.I.M. Mainpuri vide his letter dated 25.6.2005 annexed along with the report of Gram Pradhan, Gram Panchayat Bahara, district Mainpuri dated 27.10.2004. In respect of appellant Ram Babu there is a report by Gram Pradhan, village Bahara dated 24.4.2007 along with the death confirmation application signed by 9 villagers that he had expired 11 years ago. On the basis of aforesaid two reports, the appeal of appellants Ram Babu and Satya Pal is hereby abated and is dismissed as such.
2. Three other accused persons Ram Singh, Prem Nary an and Shiv Kumar. who were also tried by the Additional Sessions Judge in the same sessions trial along with the appellants with the aid Section 120B I.P.C. were acquitted by the trial Judge.
3. The prosecution allegation in nutshell are that informant Amol Singh. P.W. 3 along with his cousin brother Har Nath Singh (deceased) had gone for shopping at 8.30 a.m. on 27.5.1978 in Uewar Bazar. Informant stopped at the shop of Makhhan for purchasing whereas the deceased Hari Nath Singh went . to the shop of Satya Narayan Bajaj for purchasing clothes. At 9.00 a.m. accused Ram Babu armed with D.B.B.L gun, Ram Prakash Singh armed with countrymade pistol, Randhir Singh @ Peelu armed with rifle, Satya Pal Singh armed with a D.B.B.L. gun came to the shop of Satya Narayan aforesaid and from their respective firearms shot dead Hari Nath Singh inside the shop of Satya Narayan Singh. One Amar Singh sustained firearm injuries in the shooting and died on the spot whereas Brij Nandan Brahamin and Sone Lal sustained firearm injuries. The murder caused a lot of commotion at the spot. Accused persons made their escape good by raising slogan Jai Bajrang Bali towards Etawah road. After the incident informant reached at the shop where he found Hari Nath Singh dead inside the shop and Amar Singh was lying dead out side it. 20-25 minutes after the said incident two people Jasraj Singh and Samam Singh came to the spot by cycling and informed the informant that these very accused also murdered Shiv Nath Singh in the grove of Ganga Rain in their presence. They also informed the informant that before murdering Shiv Nath Singh accused persons had informed Shiv Nath Singh that they had murdered his brother at Bewar crossing. On the information by the accused persons that the aforesaid two persons Sarnam Singh and Jasraj Singh had came to the informant to inform him above the murder of Shiv Nath Singh. Informant got a F.I.R. scribed through Raj Bahadur Singh and after covering a distance of one furlong lodged his F.I.R. at police station Bewar, district Mainpuri at 9.30 a.m. on that date itself.
4. Constable Rajveer Singh prepared the Chik F.I.R. and the G.D. entry Ex. Ka-11. He dispatched injured Brij Nandan and Sone Lal for their medical examination after preparing their Chitthi Majroobi Ex. Ka-12Jand Ex. Ka-13. S.O. V.K. Gupta was interested with the investigation, who recorded the statement of the informant at the police station itself and then came to the spot where he performed the inquest on the dead bodies of both the deceased persons, which are Ex. Ka-16 and Ka-17. He also prepared Challan Lash. Photo Lash letter to C.M.O. etc. and prove them as Ex. Ka-18 to Ka-25. He also collected the blood stained cloths and prepared its recovery memo Ex. Ka-26 and Ka-27. Recovery memo of pellets wads etc. are Ex. Ka-28. I.O. also recovered the shoes and the sandles of Har Nath Singh and Brij Nandan Lal and prepared its recovery memo as Ex. Ka-29. He also recovered the blood stained and plain earth from the spot and proved its memos as Ex. Ka-10. He had dispatched Babu Ram S.I. and Sri R.L. Agnihotri for conducting the inquest on the dead body of Shiv Nath Singh deceased, which inquest report has been proved by him as Ex. Ka-31 and the other relevant papers as Ex. Ka-32 and Ka-35. He had also proved recovery memos of pellets, blood etc. as Ex. Ka-36 and Ka-37. I.O. also conducted the spot inspection and prepared the site plan Ex. Ka-39 and then he submitted charge sheet Ex. Ka-40 against the appellants. He also got the spot photographed and has proved the said photographs as exhibits Ka-2 to Ka-6.
5. The post-mortem on the dead bodies of three deceased persons were performed on 28.5.1978 at 3.00 p.m. (Shiv Nath Singh), Amar Singh at 4.00 p.m. and liar Nath Singh at 5 p.m. The autopsy doctor found that one and a quarter day had elapsed since the death of the aforesaid deceased persons and the following injures were found on the body of Shiv Nath Singh:
1) G.S.W. of enterance 5 in number size of varying from 1 × 1 cm tissue deep to .5 × .5 × tissue deep on Lt. thigh middle Medial aspect of the margins are Lacerated &. Inverted. There is no Blackening, tattooing & scorching round the wound.
2) G.S.W. of enterance 1 × I cm × through & through Lt. forearm middle Back. There is no Blackening, tattooing & scorching on the margins are lacerated & inverted.
3) G.S. of exit 1.5 × 1.5 cm × through & through injury No. (2) lateral aspect of middle of Lt. forearm, There is no blackening, tattooing & scorching and the margins are lacerated & everted.
4) G.S.W. of enterance 1 × I cm × cavity deep on Lt. side chest 5 cm lateral to Lt. nipple at 5 O’clock position. There is no Blackening, tattooing & scorching round the wound.
5) 2.5 × 2.5 cm through & through on Rt. Side 10 cm Below Rt. Scapula, There is Blackening, tattooing scorching present round the wound.
6) G.S.W. of exit 5 in number each sized 2 × 2 cm on Rt. side lower part of chest & lower part of abdomen in a area of 12 × 3 cm There is No Blackening, tattooing & scorching round the wound.
7) G.S.W. of enterance two in number sized 1 × 1 cm × cavity deep on Rt. side chest near Rt. nipple. There is no Blackening, tattooing & scorching round the wound.
6. The autopsy doctor found following injuries on the body of A mar Singh:
1) G.S.W. 20 × 12 cm × Brain deep on middle & posterior part of Head. Bone of skull are badly fractured & Broken of whole Brain matter ejected out of Brain cavity.
7. Har Nath Singh had sustained following injures:
1) G.S.W. of enterance 10 × 4 cm. × through A through on Rt. side Face. The margins are lacerated, inverted. Blackening, tattooing & scorching present round the wound Eye upper jaw fractured.
2) G.S.W. of exit 12 × 10 cm × through inj. No. (1) on Back of Head. The margins are lacerated ct everted. There is no Blackening, tattooing & scorching round the wound.
3) G.S.W. Of enterance 4×3 cm × through & through on Lt. side chest 12 cm below Lt. nipple at 4 O’clock position. The margins are lacerated & inverted. Blackening, tattooing & scorching present round the wound.
4) G.S.W. Exit 6 cm sized 1 × 1 cm × through & through inj. No. (3) on part of upper part of Rt. side chest & front of Rt. Shoulder. The margin are lacerated & Everted. There is no Blackening, tattooing & scorching round the wound.
5) G.S.W. of 16 × 6 cm × Bone deep on front of Rt. wrist & Hand. The underneath Bone fractured. The margins are lacerated. The Blackening (t tattooing A scorching present on one side of wound.
8. From the post-mortem examination the doctor had found thai 5th, 6th ribs of Shiv Nath Singh deceased were fractured and his pleura was lacerated. His right and left lungs, pericardium and heart were punctured and the chest cavity contained blood. There was ordinary digested food in the stomach and small intestine was half full and the large intestine was full. The cause of death was shock and haemorrhage due to sustained injuries.
9. From the autopsy of Amar Singh doctor had found that rigor mortis had passed off from the body and decomposition had set in. lie also found skull bone fractured and broken and membranes lacerated and was bulging out. He also found that stomach and small intestine were empty and large intestine was full.
10. The autopsy doctor found that rigor mortis has also passed of from the body of liar Nath Singh deceased and decomposition had started. Me found the brain membrance lacerated and skull bone fractured and broken. 8 and 9lh ribs of left side and 4th and 5th ribs Rt. side were fractured. Pleura and right lungs of the deceased were punctured and the chest cavity contained blood. The stomach and small intestine were empty but large intestine was full. These, post-mortem examination reports have been proved by the doctor as Ex. Ka-7, Ka-8 and Ka-9 respectively.
11. Meuieal examination of the injured Brij Nandan was conducted on the date of incident i.e. 27.5.1978 at 11.30 a.m. and following injuries were found onhisbody:
1) L.W. 9.5 × 5.5 cm × Bone deep present on the outer side of left ankle irregular shape, part of skin flap present. No blackening, tattooing or burning present. Hard pieces of bone felt. Bleeding profusely.
2) G.S.W. of entry 0.1 × 0.1 cm × skin deep present on the right cheek 5.5 cm away from the right ear. No tattooing, burning or smudging present.
3) G.S.W. of entry present on the back & medially of the right lower arm S cm below the right wrist joint 0.1 × 0.1 × skin deep. No smudging, burning or Tattooing present.
12. Injuries are caused by firearm, kept under observation duration fresh. The other other injured Soney Lal was medically examine on the same day at 11.45 a.m. with following injuries:
1) G.S.W. of entry present on the front of right forearm 7.5 cm above the right wrist joint. No burning, smudging or tattooing present size 0.1 cm × 0.1 cm × skin deep.
2) Multiple G.S.W. of entry present in an area of 4.5 cm × 2.5 cm × skin deep. Varying size from 0.1 cm × 0.1 cm to 0.1 cm × 0.2 cm. No burning, smudging or tattooing present.
3) Two G.S.W. of entry 2.5 cm apart present on the left temple size 0.1 × 0.1 cm each. No burning, smudging or tattooing present.
Injury kept under observation.
13. After the charge sheet was laid in the Court accused persons were Summoned and were committed to the court of sessions for trial and II Additional Sessions Judge, Mainpuri framed charges against them on 8th February 1980 for offences under Sections 302/34, 307/34/120B I.P.C., which charges were denied by the appellants who claim to be tried.
14. In the trial to bring home the guilt of the appellants prosecution examined 8 witnesses Jasraj Singh P.W. 1 , Sarnath Singh P.W. 2, Amol Singh P.W. 3, Suresh Chand Chowdhary P.W. 4 were the witnesses of fact. Doctor S.K. Agrawal (the post-mortem doctor) P.W. 5, Constable Rajveer Singh (Chik F.I.R. and G.D. entry) P.W. 6, doctor V.K. Purang (doctor, who examined the injured) P.W. 7 and S.O. V.K. Gupta (the I.O. of the case) were examined as formal witnesses.
15. Jasraj Singh P.W. 1 deposed regarding the murder of Shiv Nath Singh, which was committed in the grove of Ganga Ram of Daulat Pur. He had evidenced that at 8.45 a.m. on the date of the incident, he was present in the aforesaid grove along with Samam Singh and Kasturi Singh and were looking after the wheat crop. Shiv Nath Singh had come to take fodder fftr cows and was filling it in the ginny bag, when the appellants Ram Babu, Randhir @ Pilu, Ram Prakash, Satya Pal Singh came their armed their respective weapons and shot dead the deceased Shiv Nath Singh after informing him that they had murdered his brother Har Nath Singh at the crossing and he may go and pick up his corpse. Ram Babu Singh, Randhir Singh @ Pillu, Satya Pal Singh had shot at Shiv Nath Singh after informing him and thereafter raising slogans they had left the spot. Leaving his uncle Kasturi Singh at the place of the incident he along with Sarnam Singh came to seek the body of Har Nath Singh and there he had informed the informant Amol Singh P.W. 3 regarding the incident of murder of Shiv Nalh Singh. He had identified all the appellants, who were present in the court. He had staled that Har Nath was lying dead inside the shop of Satya Narayan whereas Amar Singh was lying dead beneath the shop. He had also met Sone Lal injured at the spot. In the cross-examination he has deposed that he was not wearing the watch at the time of the incident. He had further evidenced that in the grove he had got his khaliyan and at the time of the incident the wheat was being carried to his house. He had further evidenced that Shiv Nath Singh deceased had arrived at the place of the incident 5 or 7 minutes before the accused and no sooner his arrival he has started collecting fodder for the cattle. He had further evidenced that from a distance of 30 yards he had seen the accused appellants and before assaulting the deceased they had uttered that they had murdered the brother of Shiv Nath Singh deceased. He had further evidenced that Shiv Nath Singh was fired upon 4 or 5 shots from a distance of 4 or 5 paces. He had further evidenced that Randhir accused was holding a rifle in his hand and all the accused had fired simultaneously. He had also deposed that blood had oozed out on the spot, which had sprinkled in some area. He had further deposed that after committing the murder accused persons had left the place of the incident dancing. He had reached Bewar within 5 or 7 minutes from the grove where he had met the informant who was dictating the F.I.R. Some omissions have been asked from him, which he has accepted. He had admitted that in the murder of Ayodhya Singh father of appellant Satya Pal, Shiv Nath, liar Nath (deceased) he and Jagpal were accused. He also admitted that Ram Prakash i and Ram Babu are the real brothers whereas Ram Pal and Kanhai are their cousins. He has further evidenced that the parents of Shiv Nath Singh deceased arrived prior to his intimation to them. The accused persons had not endeavoured to assault him or the other witnesses present in the grove at the time of the murder.
16. Sarnam Singh P.W. 2 supported the version given by Jasraj Singh P.W. 1 on all the material aspects of the matter. In his cross-examination he had evidenced that Hujuri Singh and Lalla Singh are his real brother and in the murder case of Ayodhya Singh his nephew Sugreev Singh is an accused. He had further evidenced that Surat Singh and Ram Charan are the real brothers of’Ayodhya Singh and Ishwari Singh is his cousin brother. He had further deposed that Kamal Singh, Kasturi and Prag Singh are the real brothers. He had admitted that in l970 he was involved in a case under Section 323, 325 I.P.C. but denied that Ram Babu appellant had given evidenced against him in that case and that case was acquitted. He had denied that he has been convicted earlier. He had also evidenced that at the time of the incident Kasturi Singh was also present in the grove, near the temple of goddess. Regarding the manner of assault he had deposed the same manner of assault which had been stated by P.W. 1. He had further stated that he had gone to Bewar on his own accord. He had further deposed that because he was very terrorised, therefore, he had not informed the Investigating Officer regarding the murder of Shiv Nath and when he had met the informant he was dictating the F.I.R. He had denied that Shiv Nath Singh and Har Nath Singh were accused in a dacoity case. Some omissions and contradictions had been put to him, which are not material. He had also deposed that the firing was made indiscriminately. He denied the suggestion that Shiv Nath Singh was not murdered in the grove of Ganga Ram and that he was not present on the spot when the said murder was committed.
17. Amol Singh, P.W. 3, informant in his examination-in-chief has supported the prosecution version completely and stated that he was informed regarding the death of Shiv Nath Shighwhen he was dictating the F.I.R. In master Ram Bahadur. He had deposed that Ayodhya Singh was the father of Satyapal appellant who was murdered one and a half years prior to the date of present murder and in that murder case of Ayodhya Singh he along with his brothers Jagpal Singh, Shiv Nath Singh and Har Nath Singh (deceased) were the accused and Satya Pal appellant was the informant of that case. He has further evidenced that they were released on bail in the aforesaid crime. He had shown his ignorance regarding the involvement of Shiv Nath and Har Nath in any case of dacoity. He had further evidenced that he had come to the market to purchase condiments and his house was 4 or 5 furlongs away from the market. He had further evidenced that he had reached Bewar at 8.30 in the morning. Satya Narayan had a drapper shop whereas Makkhan was a grocer. He had further evidenced that Har Nath was murdered at about 8.30 a.m. and the time, mentioned by him in the F.I.R. was the estimated time. He had further deposed that the shops of Makkhan and Satya Naryan are near the G.T. Road crossing at a distance of 8 or 10 paces from each other and Har Nath Singh deceased had informed him that he was going to purchase cloths from the shop of Satya Naryan. He has further deposed that the accused persons had arrived at the scene of the incident from Etawah road and by the time murder is committed he had not purchased anything. He had further deposed that the place of the incident was half a furlong away from the police station and one furlong from Bewar Hospital. He had further evidenced that none of the assailants had made any fire on him and witness Raj Bahadur had reached at the place of the incident 2 or 4 minutes after the shooting spree. He had further deposed that he was standing 5 or 6 paces away from where Har Nath Singh was done to death. He had taken 10 or 15 minutes in dictating the F.I.R. and as soon as it was scribed he had proceeded for the police station to lodge it. He could not go to the police station during the incident because the incident occurred within one or one and a half minutes and if he had gone to the police station in the midst of the incident he would also have been done to death. He had further testified that after registration of the F.I.R. 1.6. had came to the spot at 10.00 a.m. and before that he had met Sarnam Singh P.W. 2 and Jasraj Singh P.W. 1 at the crossing. He had further deposed that he had no enmity with Ram Bharose, Satya Naryan and Makkhan. He showed his ignorance regarding the fact as to whether deceased Har Nath Singh had purchased any cloths or not. He had testified that the deceased Har Nath Singh was shot dead from a distance of 2 or 3 hands. He had dictated the F.I.R. without any consultation and deliberations. He had further evidenced that he was accompanied by Sone Lal and Brij Nandan to the police station who were sent for their medical examination from the police station itself. He has further testified that from the place of the incident pellets, wads, empty cartridges of gun and rifle were collected and inquest on the dead bodies were conducted in his presence. He had denied the suggestion that Har Nath Singh, Shiv Nath Singh and Amar Singh were murdered because of sharing of bounty of a dacoity at the shop of Satya Naryan. He had further deposed that when the deceased Har Nath Singh and Amar Singh were fired at, they were inside the shop along with Prem Dull son of the shop owner. He knew that the shop was that of Satya Narayan from before. At the time of shooting Har Nath Singh was sitting towards east whereas Amar Singh was sitting towards west at a distance of 2 1/2 or 3 hands. He could not tell as to whose shots had hit the deceased persons first. He testified that both of them were shot dead while they were sitting in this shop. He had evidenced that Amar Singh deceased had fallen down under the shop after sustaining the gun shot injury and Har Nath Singh had also endeavoured to come out of the shop but he fell down inside it near the shutter as he had endeavoured to pull down the shutter to save himself. He has further stated that both the deceased persons had not made any attempt to retaliate and blood has oozed out at the place of the incident. In his further evidence he has stated that he did not know from where the scribed had brought paper. Same omissions and contradictions were put to him which he denied.
18. Dalvir Singh P.W. 4 had stated that after the incident he was called by the S.O. of police station Bewar who had ordered him to take the photographs of the spot and therefore he had taken five photographs. He has proved the negatives as material Ex. 1 to 5 and the developed photographs as Ex. Ka-2 to Ka-6. Nothing material has come out from his cross-examination.
19. Dr. S.S. Agrawal P.W. 5 had conducted the autopsy on the dead body of all the three deceased persons as has been mentioned above and testified those facts in his evidence and have proved his post-mortem examination reports. In his cross-examination he had stated that the injuries of all the victims could be caused by gnu and rifle. He has also stated that the deceased were fired at from the front as well as from the back.
20. Rajveer Singh P.W. 6 has proved the Chik F.I.R. and G.D. entry and had denied the suggestions that the F.I.R. was registered after due consultation and deliberation. He had further stated that special report was sent at 10.00 a.m. through a constable who had returned at 7.00 p.m. that day.
21. Dr. V.K. Purang, P.W. 7 had proved the injuries of injured Brijnandan and Sone Lal as has been detailed above and has proved their injury reports as Ex. Ka-14 and Ka-15. He had stated that both the injured had sustained firearm injuries. Me had further evidenced that the injured had sustained injuries from a distance of 12 feet or near about that.
22. V.K. Gupta, S.O. P.W. 8 in his deposition has detailed various steps which he had taken during the investigation which has already been mentioned above. He has been cross-examined at length. But from his cross-examination we have not been able to find out anything which may demolish the prosecution version. Some omissions during the investigation has been put to him (sic) non-mentioning of weapons in the inquest, non-collection of blood from the fodder etc., which he had accepted. The omissions and contradictions in the statement of witnesses of fact have been put to him which he has admitted.
23. Under Section 313 Cr.P.C. the applicants took the defence of false implication and stated that Sher Singh, Girandra Singh, Shiv Nath Singh, Hari Nath Singh were accused in the murder case of Ayodhya Singh and therefore, they have been falsely implicated because of that reason as they were informant and witness in that murder case.
24. Trial Court believed the prosecution evidence and convicted and sentenced the appellants for the charge of murder, which conviction and sentence has been challenged by the appellants in this appeal.
25. We have heard Sri S.P. Srivastava, learned Counsel for the appellants at a great length in supports of this appeal and Sri Sudhir Kumar learned A.G.A. in opposition and have gone through the evidence and other materials on the record ourselves.
26. As has been mentioned above the appeal of appellant No. 3 Ram Babu and appellant No. 4 Satyapal has been abated and therefore, we are only considering the appeals of appellant No. l Ram Prakash and appellant No. 2 Randhir @ Peelu.
27. From the narration of facts it is clear that it is an incident which had occurred in day light at 9.00 a.m. The accused persons in their defence has not challenged the time, place and date of the incident. The suggestion, which has been given to Amol Singh P.W. 3 informant is that the deceased persons were murdered because of sharing of booty of a dacoity at the shop of Satya Narayan. which suggestion clearly indicates that the defence has not challenged the date, time and place of the incident. Thus, the prosecution version so far as happening of the incident and its place is concerned is well established and cannot be denied. The only question, which remains to be decided is as to whether the crime was committed by the appellants or not.
28. For the said purpose when we look to the evidence of the three witnesses of fact we find that so far as witnesses Jasraj Singh P.W. 1 and Sarnam Singh P.W. 2 are concerned they are the eye-witnesses of the incident regarding the murder of Shiv Nath, which was executed in the grove of Ganga Ram. The aforesaid two witnesses have got no enmity with the accused persons. Jasraj Singh P.W. 1 and Sarnam Singh P.W. 2 have given acceptable and cogent reasons for their presence in the grove. Jasraj Singh P.W. 1 has deposed that he was looking after his wheal crop in the aforesaid grove and was separating the chaffs. Shiv Nath Singh came subsequently for taking fodder. He had detailed the manner of assault on the deceased Shiv Nath Singh and had stated that Ram Babu, Randhir @ Peelu and Satyapal Singh accused had shot him dead. The version given by Jasraj Singh P.W. 1 is inconsonance with the injuries sustained by deceased Shiv Nath Singh. His post-mortem examination reports indicates that he was shot at from the gun and rifle both. This witness was cross-examined at a very great length. From his cross-examination we have not been able to find out anything which can dislodge his testimony regarding his presence in the grove at the time of the incident. Infact, by a closure scrutiny of his cross-examination we find that this witness had seen the murder of Shiv Nath without any doubt. We have no reason to disbelieve his testimony and consequently we are of the opinion that his deposition is truthful and creditworthy on which implicit reliance can be placed without a second thought. The same is the conclusion in respect of P.W. 2 also whose presence on the spot is proved beyond reasonable doubt and he had also witnessed the murder.
29. So far as evidence of Amol Singh P.W. 3 is concerned he is the informant and witness of incident which had occurred at the shop of Satya Narayan. From the photographs as well as from the site plan coupled with the recovery of blood, pellets and wads from the shop of Satya Narvan establish that the incident had taken place there and the two deceased were murdered inside the said shop. This witnesses even though is inimical but simply because of the fact that he was an accused in the murder case of the father of appellant Satya Pal namely Ayodhya Singh, we cannot discard his testimony, which is cogent and reliable. Earlier murder was the motive for committing the crime by the appellants in a dare devil manner who after murdering the deceased persons had raised slogans. This part of the prosecution story that the appellants had raised the slogans have not been challenged at all and this shows the intensity of animosity to murder the deceased persons by the appellants. We have not been able to find out any reason why the informant will implicate innocent persons in a day light incident if the appellants were not there. The cross-examination of this witness had brought out all the necessary details of the incident which on a proper scrutiny brings out the facts that at the time when the two deceased were fired at they were inside the shop at the distance of two and a half or three hands from each other and they even tried to pull down the shutter to save themselves. But their such endeavour failed as they fell down dead in that feat. Amar Singh even tried to come out from the shop and in that venture he also fell down dead outside the shop. These details which had been asked from the informant knitted the prosecution versions so closely that it is not difficult at all to come to a conclusion that the first informant was present on the spot and he had witnessed the incident from his own eyes. The searching cross-examination by the accused persons have established his presence at the spot. We do not find any reason at all to disbelieve his testimony.
30. Sri S.P. Srivastava, learned Counsel for the appellants had argued that in this case prosecution has examined only inimical witnesses who had all the motive to falsely implicated the appellants, therefore, the prosecution version should not be accepted. He had also argued that the incident had occurred in the market place but no independent witness had been examined by the prosecution but for the informant who is inimical which shows that the prosecution had falsely implicated the appellants.
31. We have considered his submissions. We are of the opinion that both the parties were indulging into annihilation of the other and there was unrelenting enmity between (hem. In such a view we are of the opinion that was very difficult for the independent persons to take sides with either of them. Nobody would like to risk his own life by taking side of the prosecution not the defence. In such a view if the independent witnesses have not come forward to support the prosecution case it does not mean that the incident had not been witnessed by the informant. Further we are of the opinion that merely because the informant was an accused, in the earlier murder case his whole testimony cannot be brushed aside. It is the quality of evidence which is to be seen and not the quantity. As has been pointed out above that quality of .evidence of the informant has stood the test searching cross-examination on every minute point of the incident and he had withheld the lengthy cross-examination quarries. In such a view, we have no reason to disbelieve the evidence of Amol Singh P.W. 3, who is the informant of the case.
32. So far as medical evidence is concerned the post-mortem reports and the injury reports, which have been evidenced by Dr. S.S. Agrawal and Dr. V.K. Purang P.W. 7 they are completely inconsonance with the prosecution version. They farther the prosecution case that the incident was executed by resorting to shooting by two types of firearm the gun and the rifle. Both the doctors have been cross-examined by the defence and both of them had stated that the ‘injuries sustained by three deceased and the two injured can be caused by guns and rifle. In such a view the medical evidence also supports the prosecution version.
33. From the evidence of Investigating Officer, V.K. Gupta, S.O. P.W. 8 the defence has not been able lo bring out anything which may even remotely damage the prosecution version. Some lapses were there on his part in conducting the investigation but those lapses do not make the testimony of the eye-witnesses suspect.
34. In such a view we are of the opinion that conviction of the two surviving appellant No. 1 Ram Prakash and appellant No. 2 Randhir @ Pcelu is absolutely justified. We find no merit in this appeal in their respect.
35. Resultantly, this appeal lacks merit and it is dismissed in respect of appellant No. l Ram Prakash and appellant No. 2 Randhir @ Peelu. The appellants are stated to be on bail. They are required lo surrender to their bail bonds and surety bonds forthwith, Trial court is directed to take necessary-steps for their arrest. As soon as the appellants are arrested they shall be sent to jail to serve out the sentence awarded to them by the impugned order and Confirmed by us in this appeal. As soon as the appellants are arrested or they surrender before the trial court concerned their surety and bail bonds shall be cancelled.
36. Let a copy of this judgment be certified to the trial court.