1. Present appeal has been filed by accused appellants Uma Shanker Bharti and Rajesh Bharti alias Pappu under section 374(2) Cr.P.C. against judgment and order dated 22.9.1988 passed by learned IInd Additional Sessions Judge, Ghazipur in S.T. No. 136 of 1986 (State v. Uma Shanker Bharti and others), under section 302 I.P.C., Police Station Kotwali, District Ghazipur, whereby learned IInd Additional Sessions Judge, Ghazipur has convicted accused appellants Uma Shanker Bharti and Rajesh Bharti alias Pappu for offence punishable under section 302 I.P.C. and sentenced each of them thereunder with imprisonment for life. Shri G.S. Chaturvedi, Senior Counsel assisted by Shri Anurag Shukla, learned Counsel appeared for the accused appellants and Shri Narendra Kumar Singh Yadav, learned A.G.A. appeared for State respondent.

2. We have heard the parties and perused the record.

3. Relevant facts for determination of this appeal are that Crime No. 284 of 1986, under section 302 I.P.C. was registered on 19.4.1986 at 7.15 A.M. in Police Station Kotwali, District Ghazipur on oral information of complainant Smt. Ramawati Devi wife of Vishambhar Bharti and chick F.I.R. Exhibit Ka. 1 was written by P.W. 4 Head Constable Bihari Pandey.

4. In short the substance of first information report lodged in Police Station Kotwali District Ghazipur is that complainant Smt. Ramawati Devi wife of Vishambhar Bharti was resident of Mohalla Tulsisagar, Police Station Kotwali, District Ghazipur. Her husband Vishambhar Bharti was a retired military personnel and was running a shop of copies, pencils and other articles of children in a Gomti. On the day of occurrence that is 19.4.1986 at 6.30 A.M. he went to his said shop from his house after drinking tea. He sat in Gomti and his son Suraj Prakash was coming back to house after having cleaned Gomti. At that time complainant Ramawati Devi was standing at her door. In the meantime accused appellants Uma Shanker Bharti and Rajesh Bharti came along-with Jitendra Srivastava son of Ram Uggrah Lal and an unknown person and they made four fires with cuttas (country made pistol) at Vishambhar Bharti husband of complainant. Husband of complainant sustained injuries and died on spot. Thereafter said accused chased complainant Smt. Ramawati Devi. She ran into her house and closed door. The occurrence was seen by Smt. Indra Goswami and Shri Bhirgunath Upadhyay as well as by neighbours and passers-by.

5. In first information report lodged by complainant Smt. Ramawati Devi motive of occurrence has been alleged dispute of property and it has been further alleged that accused appellants had given threatening several times. In first information report it has also been alleged that in the year 1984 an incident of fighting had taken place regarding which accused appellants Rajesh Bharti alias Pappu had lodged report against husband of complainant.

6. After registration of said Crime No. 284 of 1986, under section 302 I.P.C. inquest report of deceased Vishambhar Bharti Exhibit Ka. 15 was prepared by police. Thereafter dead body of deceased Vishambhar Bharti was sent for post-mortem in sealed cover after having completed necessary formalities. Later on investigation was completed by police in accordance with law and after having completed investigation police submitted charge sheet against accused appellants Uma Shanker Bharti and Rajesh Bharti alias Pappu as well as against Jitendra Srivastava for offence punishable under section 302/ 34 I.P.C. whereupon learned Magistrate took cognizance and after compliance of section 207 Cr.P.C. committed the case to the Court of Session for trial of all accused. Thereafter S.T. No. 136 of 1986 (State v. Uma Shanker Bharti and others) under section 302 I.P.C., Police Station Kotwali, District Ghazipur was registered in Sessions Court of district Ghazipur. Sessions Judge, Ghazipur framed charge against accused appellants Uma Shanker Bharti and Rajesh Bharti alias Pappu as well as accused Jitendra Srivastava for offence punishable under section 302 read with section 34 I.P.C.

7. All accused pleaded not guilty and claimed to be tried.

8. Prosecution examined P.W. 1 complainant Smt. Ramawati Devi, P.W. 2 B.N. Upadhyaya, P.W. 3 Dr. P.C. Tiwari, P.W. 4 Head Constable Bihari Pandey, P.W. 5 Constable 87 Jaglal, P.W. 6 Investigating Officer Deputy S.P. Pashupati Nath Pandey and P.W. 7 S.I. D.P. Pandey.

9. After prosecution evidence, statements of all accused were recorded under section 313 Cr.P.C. All the accused stated that they have been falsely implicated.

10. D.W. 1 Smt. Chandrakanta was examined on behalf of accused appellants as defence witness. Thereafter learned IInd Additional Sessions Judge, Ghazipur heard the arguments of the parties and passed impugned judgment and order whereby he has convicted and sentenced accused appellants as mentioned above.

11. By the impugned judgment and order learned IInd Additional Sessions Judge, Ghazipur has acquitted co-accused Jitendra Srivastava but no appeal is reported to have been filed against acquittal of co-accused Jitendra Srivastava.

12. Learned Counsel for accused appellants contended that the accused appellants are innocent and have been falsely implicated.

13. Learned Counsel for accused appellants contended that F.I.R. is ante time and whole prosecution story is concocted.

14. Learned Counsel for accused appellants further contended that P.W. 1 complainant Smt. Ramawati Devi has not seen the occurrence and her statement is full of contradictions.

15. Learned Counsel for accused appellants contended that P.W. 2 B.N. Upadhyaya is a chance witness and his presence at the time of occurrence is highly doubtful.

16. Learned Counsel for accused appellants contended that post-mortem report is inconsistent with statement of P.W. 1 complainant Smt. Ramwati Devi.

17. Learned Counsel for accused appellants contended that according to prosecution Smt. Indra Goswami was present at the time of occurrence and she has seen occurrence but statement of D.W. 1 Smt. Chandrakanta as well as attendance register Exhibit Ka. 2 proved by D.W. 1 Smt. Chandrakanta shows that on the day of occurrence Smt. Indra Goswami was present in Basic Kanya Primary Pathshala Ujiyar Ghat, District Ballia. Therefore, she has been falsely named as eye witness of occurrence. Thus it is apparent that whole prosecution story is false and concocted.

18. Learned Counsel for accused appellants contended that conviction and sentence recorded by Trial Court is against evidence as well as law.

19. Learned Counsel for the accused appellants prayed that appeal should be allowed and accused appellants should be acquitted.

20. Learned A.G.A. contended that evidence adduced by prosecution before Trial Court is sufficient to convict accused appellants for offence punishable under section 302 I.P.C.

21. Learned A.G.A. contended that conviction recorded by Trial Court is based on evidence and sentence awarded by him is not excessive.

22. Learned A.G.A. further contended that there is no sufficient ground to justify interference in the impugned judgment and order passed by Trial Court

23. Learned A.G.A. prayed that appeal filed by the accused appellants should be dismissed.

24. We have considered submissions made by the parties.

25. Out of above seven witnesses examined by prosecution before Trial Court P.W. 1 complainant Smt. Ramawati Devi and P.W. 2 B.N. Upadhyaya are the witnesses of fact and occurrence. They have supported story of prosecution in their statements on oath.

26. P.W. 1 complainant Smt. Ramawati Devi has proved F.I.R. Exhibit Ka. 1 also in her statement.

27. P.W. 3 Dr. P.C. Tiwari has stated in his statement on oath that on 19.4.1986 he was posted as Medical Officer, Sadar Hospital, Ghazipur. He has stated in his statement that on that day at 2.00 P.M. he conducted post-mortem of deceased Vishambhar Bharti son of late Jagamath Bharti resident of Mohalla Tulsisagar, City Ghazipur, Police Station Kotwali, District Ghazipur. He has stated that dead-body was brought by Constables C.P. No. 334 Mewalal Sharma and C.P. No. 67 Jaglal in sealed cover and was identified by them.

28. P.W. 3 Dr. P.C. Tiwari has proved post-mortem report of deceased Vishambhar Bharti Exhibit Ka. 7. In his statement he has also proved three pellets recovered from the body of deceased Vishambhar Bharti as material Exhibit 1. He has further proved clothes found on the dead body of deceased Vishambhar Bharti as material Exhibit 2.

29. P.W. 4 Head Constable Bihari Pandey is scribe of the F.I.R. He has stated in his statement on oath that on 19.4.1986 he was posted as Head Moharrir in Police Station Kotwali, District Ghazipur. On that day he wrote chick F.I.R. Exhibit Ka. 1 in his handwriting and with his signature on oral information given by complainant Smt. Ramawati Devi. He has further stated that registration of crime was entered at rapat No. 12 in G.D. on 19.4.1986 at 7.15 A.M. by Head Constable Chandra Shekhar Singh. He has proved copy of G.D. relating to registration of crime Exhibit Ka. 8 by identifying handwriting and signature of said Head Constable.

30. P.W. 4 Head Constable Bihari Pandey has stated in his statement that on 19.4.1986 he made entry of articles brought by constables in sealed cover which had been entrusted to them by doctor after post-mortem. He has proved copy of G.D. relating to entry of said articles Exhibit Ka. 9. He has further proved rapart No. 31 of G.D. dated 19.4.1986 Exhibit Ka. 10 regarding entry of accused appellant Uma Shanker Bharti in Police Station at 15.40 P.M.

31. P.W. 4 Head Constable Bihari Pandey has stated in his statement that Constable Mangal Pandey and Constable Gopal Rai came from place of occurrence and presented articles in sealed cover which was entered into Malkhana of Police Station. He has proved G.D. relating to entry of said articles in Police Station Exhibit Ka. 11 also.

32. P.W. 5 Constable 87 Jaglal has stated in his statement on oath that on 19.4.1986 he was posted as Constable in Kotwali. He has gone to place of occurrence on that day alongwith Inspector and other police officials. He has stated that on that day at 9.30 A.M. deadbody of deceased Vishambhar Bharti was handed over to him in sealed cover. Constable Mewa Lal was also with him. They carried dead body of Vishambhar Bharti in sealed cover for post-mortem and produced it before Doctor in sealed cover on the same day. He has further stated that after post-mortem he was entrusted with articles recovered from dead body of deceased Vishambhar Bharti in sealed cover. He brought them and presented in police station.

33. P.W. 5 Constable 87 Jaglal has further stated in his statement on oath that no one was permitted to interfere with dead body so long it remained in their custody.

34. P.W. 6 I.O. Pashupati Nath Pandey, Deputy S.P. has stated in his statement that on 19.4.1986 he was posted as S.H.O. Police Station Kotwali, District Ghazipur. On that day report of this crime was lodged in Police Station Kowtwali in his presence. He has further stated that after registration of case he took investigation in his hand and recorded statement of P.W. 1 complainant Smt. Ramawati Devi and went to place of occurrence. When he reached place of occurrence S.I., D.P. Pandey and Constable Mewa Lal were present there and dead body of deceased Vishambhar Bharti was lying in Gomti.

35. P.W. 6 I.O. Pashupati Nath Pandey Deputy S.P. has stated in his statement that he deputed S.I., D.P. Pandey to prepare inquest report of deceased Vishambhar Bharti as he was busy in recording the statements of witnesses. He has stated that he inspected place of occurrence and prepared site plan Exhibit Ka. 12. He has further stated that blood stains were found in Gomti where dead body was lying. Fired cartridge and pellets were also found near dead body of deceased Vishambhar Bharti. He took into possession blood stained wood, blood stained paper and piece of plain wood and kept in sealed cover. He has stated in his statement that recovery memo of above articles Exhibit Ka. 13 was prepared by S.I. D.P. Pandey in his presence and it bears his signature also. He has proved pellets and fired cartridge as material Exhibits 3, 4, 5 and 6 before Trial Court.

36. P.W. 6 I.O. Pashupati Nath Pandey Deputy S.P. has stated that on the same day he recorded statements of witnesses Indra Goswami, Shri Bhir-gunath Upadhyay and Janardan Giri under section 161 Cr.P.C. He has stated that P.W. 1 complainant Smt. Ramawati Devi handed over two letters to him on spot. He copied these letters in CD. These letters were written by accused Uma Shanker Bharti. He has stated in his statement that after preparation of inquest report S.I. D.P. Pandey sent deadbody to District Hospital, Ghazipur for post-mortem. He has further stated that he completed investigation and submitted charge sheet Exhibit Ka. 14 on 3.6.1986 against accused Uma Shanker Bharti, Rajesh Bharti alias Pappu and Jitendra Srivastava.

37. P.W. 7 S.I. D.P. Pandey has stated in his statement on oath that on 19.4.1986 he was posted as Chowki In-charge, Police Outpost Gaura Bazar, Police Station Kotwali, District Ghazipur, on 19.4.1986 he was on examination duty in S.T.S. School since 6.30 A.M. He has stated that a constable of Gora Bazar Chowki informed him that a murder has been committed near Tulsi Sagar Convent School. On this information he went near the said Convent School and saw, the dead body of deceased was lying within Gomti.

38. P.W. 7 S.I. D.P. Pandey has stated in his statement on oath that said murder had been committed about 30 to 40 minutes earlier than his arrival at the place of occurrence. People standing there informed him that assailants have runaway towards west. He searched assailants but could not trace them. Later on he returned back on place of occurrence after 15 minutes. S.H.O. Kotwali alongwith police force came there after five minutes of his return and directed him to prepare inquest report.

39. P.W. 7 S.I. D.P. Pandey has stated in his statement on oath that in pursuance of direction of S.H.O. he prepared inquest report after having appointed panchas. He has proved inquest report Exhibit Ka. 15 in his statement and has stated that he kept dead body in sealed cover. He has further stated that he prepared Chalan Nash, Photo Nash, letter to R.I., letter to C.M.O., letter for post-mortem and specimen of seal. He has proved all the said papers as Exhibits Ka. 16 to Exhibits Ka. 20.

40. P.W. 7 S.I. D.P. Pandey has further stated in his statement on oath that he recovered fire cartridge, pellets tikli and frontal portion of bullet from the place of occurrence and kept them in sealed container. He has proved recovery memo of said article Exhibit Ka. 21 as well as container of above article material Exhibit 7 in his statement. He has proved search memo of house of accused Rajesh Bharti Exhibit Ka. 22 also. He has further stated that he arrested accused Uma Shanker Bharti and recovered 2 L.G. cartridges 12 cartridges of No. 4 one gun and licence of gun from his possession. He has proved recovery memo of above cartridges gun and licence Exhibit Ka. 23 also. He has stated in his statement that 2 L.G. Cartridges recovered from possession of accused Uma Shanker Bharti were illegal. Therefore, offence punishable under section 25 Arms Act was also registered against him in police station.

41. All accused appellants have stated in their statements under section 313 Cr.P.C. that they have been falsely implicated due to animosity.

42. Accused appellant Uma Shanker Bharti has stated in his statement under section 313 Cr.P.C. that his uncle Jagan Nath has executed a Will on 5.5.1983 in favour of his wife Smt. Dropati. After death of Jagan Nath accused appellant Uma Shanker Bharti attempted to get mutation of his wife in place of Jagan Nath. Because of this reason his brother (now deceased) Vishambhar Bharti and complainant Smt. Ramawati Devi became annoyed with him.

43. Accused Uma Shanker Bharti has further stated in statement under section 313 Cr.P.C. that Darogiji had come to his house on the day of occurrence and had taken into possession licencee gun and cartridges. Thereafter he detained him in police station. He has further stated that he has been acquitted from offence punishable under section 25 Arms Act.

44. D.W. 1 Smt. Chandkkanta is Headmistress of Basic Kanya Vidyalaya, Ujiyar Ghat, Ballia. She has stated that on 19.4.1986 she was posted as Headmistress of that school. She has further stated that Indra Goswami was assistant teacher in her school and on 19.4.1986 she was present in the said school from 6.30 A.M. to 11.00 A.M. and has signed attendance register.

45. D.W. 1 Smt. Chandrakanta has further stated in her statement that she was also present in the aforesaid school at that time. She has proved entries at attendance registers as Exhibit Kha. 2 and Exhibit Kha. 3.

46. We have examined evidence adduced by the parties carefully.

47. P.W. 1 complainant Smt. Ramwati is wife of deceased Vishambhar Bharti. Specific mention has been made in first information report Exhibit Ka. 1 that complainant was standing at his door at the time of occurrence. P.W. 1 complainant Smt. Ramawati has stated in his statement that on 19.4.1986 at 6.30 A.M. her husband went to his Gomti shop after drinking tea. Her son was coming back to house after having cleaned Gomti. Her husband was arranging goods in Gomti. She was standing at her door. In the meantime accused caused occurrence. P.W. 1 Complainant Smt. Ramawati has stated in cross-examination at page 19 (page 22 of paper book) that when her husband came out of house for going to shop her son was on shop. She also came out of house to the gate situated at the road. The conduct of P.W. 1 complainant Smt. Ramawati appears very natural. She must have come out of house to see off her husband. It also appears natural to remain out of house at door in the morning. Site plan Exhibit Ka. 12 shows that place of occurrence is near the house of complainant and is fully visible from the house of complainant. In view of above P.W. 1 Smt. Ramawati is a natural witness of occurrence. Her presence at the time of occurrence may not be denied.

48. P.W. 2 Bhirgunath Upadhya is resident of Mohalla Kazi Tola, Police Station Kotwali. He has stated that on 18.4.1986 he went to Jamla Pur and was coming back from Jamla Pur at the time of occurrence. P.W. 2 Bhirgunath Upadhya has stated in cross-examination at page 40 (page 43 of paper book) that he went to the road of place of occurrence because he had to go to one Pati for making demand of his dues. On the same page he has further stated that after occurrence he remained on place of occurrence for about three hours and thereafter he went to his house. He did not go to the house of Pati.

49. In view of above statements of P.W. 2 Bhirgunath Upadhya it is apparent that he is a chance witness and reason assigned for his presence at the time of occurrence appears to be doubtful.

50. In the case of Brahm Swaroop and Another Vs. State of U.P., Honble Apex Court has held that "merely because the witnesses were closed relatives to the deceased that cannot be ground to discard their evidence".

51. In the case of Ranjit Singh and others v. State of Madhya Pradesh, 2010 (96) AIC 94 (SC) : 2010 (71) ACC 947 (SC) Honble Apex Court held that "undoubtedly, all the eye witnesses including injured witnesses are closely related to the deceased. Thus, in such a fact situation, the law requires the Court to examine their evidence with care and caution. Such close relatives and injured witnesses would definitely not shield the real culprits of the crime and name somebody else because of enmity."

52. In the case of Dharma Veer and others v. State of U.P., 2010 (88) AIC 267 (SC) : 2010 (69) ACC 347 (SC) Honble Apex Court has held that enmity with accused cannot be sole ground to reject the testimony of witness.

53. As concluded above P.W. 1 complainant Smt. Ramawati is a natural witness of occurrence and in view of above pronouncements of Honble Apex Court her testimony may not be discarded merely on the ground that she is wife of deceased and is inimical to accused.

54. Learned Counsel for accused appellants has contended that postmortem report as well as statement of doctor is inconsistent with statement of P.W. 1 complainant Smt. Ramawati Devi on following grounds:

(A) That P.W. 1 complainant Smt. Ramawati Devi has stated in cross-examination at page 21 (page 24 of paper book) that her husband was arranging goods of his gomti shop at the time of occurrence. His face was towards east and at the time of making fire accused Uma Shanker Bharti also was facing towards east. Therefore injuries of deceased should be on back side. But post-mortem report shows that deceased Vishambhar Bharti husband of complainant P.W. 1 Ramawati Devi had ante mortem injuries on frontal part of his body.

(B) That P.W. 1 complainant Smt. Ramawati Devi has stated in cross-examination at page 19 (page 22 of paper book) that her husband had gone to gomti shop after taking tea but post-mortem report shows that stomach of deceased Vishambhar Bharti was found empty.

(C) That P.W. 1 complainant Smt. Ramawati Devi has stated in cross-examination at page 20 (page 23 of paper book) that in the morning her husband had gone to latrine to case himself but post-mortem report shows that faecal matter has been found in his large intestine.

55. We have considered submissions of accused appellants carefully. Certainly P.W. 1 complainant Smt. Ramawati Devi has stated in her cross-examination that at the time of occurrence her husband was arranging goods of Gomti shop and his face was towards east. She has also stated that assailants were also facing towards east. But postmortem report Exhibit Ka. 7 as well as statement of P.W. 3 Dr. P.C. Tiwari shows that ante mortem injuries found on the body of deceased Vishambhar Bharti are on frontal part of his body. But on this ground post-mortem report cannot be said to be inconsistent with statement of P.W. 1 complainant Smt. Ramawati Devi because it is natural that on arrival of some one near Gomti deceased Vishambhar Bharti must have taken turn towards him and after seeing accused appellants he must have faced them. Therefore ante mortem injuries found on frontal part of body of deceased Vishambhar Bharti is natural course of occurrence.

56. P.W. 3 Dr. P.C. Tiwari has stated in cross-examination made by defence at page 46 (page 49 of paper book) that deceased Vishambhar Bharti had neither eaten or drunk within six hours of his death. P.W. 1 complainant Smt. Ramawati Devi has specifically stated in cross-examination at page 19 (page 22 of paper book) that her husband Vishambhar Bharti (now deceased) had gone to shop after drinking bare tea. The tea was without milk. He had not eaten anything with tea. In such circumstances it is apparent that deceased had taken black tea. Generally people drink a cup of tea at a time and a cup of black tea is negligible in post-mortem. Therefore it is just possible that doctor has failed to take notice of it. Therefore, post-mortem report as well as statement of doctor may not be said to be inconsistent with statement of P.W. 1 complainant Smt. Ramawati Devi on the ground of above statement of P.W. 3 Dr. P.C. Tiwari. Moreover deceased Vishambhar Bharti had gone to Gomti shop after taking tea or without taking tea is not very material.

57. P.W. 1 complainant Smt. Ramawati Devi has stated in cross-examination that her husband had gone to latrine in morning on the day of occurrence to case himself. But postmortem report may not be said to be inconsistent with her statement because faecal matter was found in large intestine of deceased Vishambhar Bharti. Going to latrine is one thing and passing of stools is an other thing.

58. Learned Trial Court in its impugned judgment has considered all above contentions of defence in detail.

59. In view of discussions made above, we are of the view that the Trial Court has rightly held that post-mortem report as well as statement of P.W. 3 Dr. P.C. Tiwari may not be said to be inconsistent with ocular evidence adduced by prosecution.

60. In the case of Satnpath Kumar v. Inspector of Police, Krishnagiri, 2012 (113) ACC 160 (SC) : 2012 (77) ACC 251 (SC) Honble Apex Court has held that "minor contradictions are bound to appear in the statement of truthful witnesses as memory sometimes plays false, sense of observation differs from person to person."

61. In the case of State of U.P. v. M.K. Anthony, 1985 (22) ACC 50 (SC) Honble Apex Court has held that "every honest and truthful witnesses may differ in some details unrelated to main incident because power of observation, retention and reproduction differ with individuals".

62. In the case of Faquira Vs. State of U.P., Honble Apex Court has held that "minor discrepancy guarantees that witnesses are not tutored."

63. In the case of State of U.P. v. Krishna Master and others, 2010 (94) ACC 257 (SC) : 2011 (72) ACC 519 (SC) Honble Apex Court has held that "prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof."

64. In the case of State of U.P. v. Krishna Master and others (supra), Honble Apex Court has further held that "the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole."

65. We have gone through entire statements of P.W. 1 complainant Ram-awati Devi. Statement of P.W. 1 complainant Ramwati Devi is fully inconsonance with F.I.R. Exhibit Ka. 1. In view of above pronouncements of Honble Apex Court we are of the view that there is no material contradictions in her statement to disbelieve her.

66. It is apparent from version of F.I.R. Exhibit Ka. 1 as well as from statement of P.W. 1 complainant Smt. Ramawati Devi that deceased Vishambhar Bharti has been caused injuries with fire arms (cuttas). Post-mortem report Exhibit Ka. 7 as well as statement of P.W. 3 Dr. P.C. Tiwari shows that 13 ante-mortem injuries were found on the body of deceased Vishambhar Bharti. Out of which 12 injuries were gun shot injuries and injury No. 13 was abrasion 1 cm x 0.5 cm 1/2 cm above injury No. 12. Abrasion may also be caused by friction of pellets. Thus post-mortem report Exhibit Ka. 7 as well as statement of P.W. 3 Dr. P.C. Tiwari corroborates the version of first information report Exhibit Ka. 1 as well as statement of P.W. 1 complainant Smt. Ramawati Devi that deceased has been caused injuries by fire arms. Number of injuries found on the body of deceased Vishambhar Bharti also corroborates the fact that he has been caused fire arm injuries by four fires as alleged in first information report as well as instatement of P.W. 1 complainant Smt. Ramawati Devi.

67. In post-mortem report Exhibit Ka. 7 time of death has been mentioned about six hours. P.W. 3 Dr. P.C. Tiwari has stated in his statement on oath also that time of death was about six hours. He has further stated in his statement that death of deceased Vishambhar Bharti might have occurred on 19.4.1986 at 6.45 A.M. Thus time of death is also corroborated by post-mortem report Exhibit Ka. 7 as well as statement of P.W. 3 Dr. P.C. Tiwari.

68. In view of discussions made above it is apparent that statement of P.W. 1 complainant Smt. Ramawati Devi is fully corroborated by post-mortem report as well as statement of P.W. 3 Dr. P.C. Tiwari.

69. P.W. 6 Investigating Officer Pashupati Nath Pandey the then S.H.O. of Police Station Kotwali, District Ghazipur has stated on oath that dead body of deceased Vishambhar Bharti was lying in Gomti. He deputed S.I. D.P. Pandey for preparation of inquest report. He has further stated in his statement that he found blood stains in Gomti where dead body was lying. He has further stated that he took into possession blood stained wood, blood stained paper and plain wood from the place of occurrence and get prepared Fard Exhibit Ka. 13. by S.I. D.P. Pandey. Fard Exhibit Ka. 13 shows that P.W. 7 S.I. D.P. Pandey had taken blood stained wood, blood stained paper and plain wood from the place of occurrence and kept in sealed cover.

70. P.W. 6 Investigating Officer Pashupati Nath Pandey has stated in cross-examination at page 12 (page 61 of paper book) that on the floor of Gomti he find little blood. He did not find blood on any other article of Gomti. He did not find blood on earth under Gomti. He has further stated in cross-examination on the same page that he did not remember as to whether there was any tat (in Gomti) for sitting.

71. P.W. 6 Investigating Officer Pashupati Nath Pandey has not taken into possession blood stained tat (Jute bag) and blood stained earth from the place of occurrence. But P.W. 1 complainant Smt. Ramawati Devi has stated in cross-examination at page 22 (page 25 of paper book) that blood was flowing in Gomti and under Gomti. The blood was falling down to earth from gapes of wood of Gomti. She has further stated in cross-examination on the same page that there was blood tat (Jute bag) also. As mentioned above Investigating Officer has taken only blood stained wood and blood stained paper from Gomti. He has not taken blood stained earth and blood stained tat (Jute bag). He has not prepared any memo in writing showing that no blood was found on earth or no blood stains were found on tat (Jute bag). After taking blood stained wood and plain wood as well as blood stained papers Investigating Officer might have thought that it is enough and he has discharged his duty. Therefore, he might not have cared to take blood stained earth and blood stained tat (Jute bag). Therefore, it appears laxity or negligence of Investigating Officer.

72. Learned Trial Court has dealt with this issue at length. It is apparent from statement of P.W. 3 Dr. P.C. Tiwari that in right and left plural cavities 2.5 litres and 1000 c.c. blood liquid were found. In view of this statement of P.W. 3 Dr. P.C. Tiwari learned Trial Court has formed opinion that major portion of blood was within cavity and blood has not come out of body at large scale. Having gone through all facts and circumstances of the case and evidence on record, learned Trial Court has rightly accepted place of occurrence alleged by prosecution and has rightly held that contention of defence that deceased has been murdered elsewhere in darkness and dead body has been kept in Gomti is not acceptable.

73. In view of discussions made above after having gone through whole evidence as well as facts and circumstances of the case we are of the view that place of occurrence alleged by prosecution is fully proved and no adverse inference may be drawn due to laxity or negligence on the part of Investigating Officer. The place of occurrence alleged by prosecution finds full support from Site Plan Exhibit Ka. 12 prepared by P.W. 6 Investigating Officer Pashupati Nath Pandey.

74. In first information report Exhibit Ka. 1 it has been specifically stated that motive of occurrence was dispute of property between accused appellants and deceased Vishambhar Bharti and accused appellants had given threatening several times. This version of first information report has been proved by P.W. 1 complainant Smt. Ramawati Devi in her statement on oath. In statement under section 313 Cr.P.C. accused appellant Uma Shanker Bharti has also stated that his uncle Jagan Nath Bharti had executed a Will in favour of his wife Daropati on 5.5.1983. After death of Jagan Nath he tried to get mutation of his wife due to which his brother Vishambhar Bharti (now deceased) and P.W. 1 complainant Smt. Ramawati Devi were annoyed with him. Thus dispute of property between the parties is admitted to accused appellant Uma Shankar Bharti also.

75. Learned Trial Court has dealt with issue of motive also and after having gone entire evidence on record has concluded that prosecution has succeeded in proving motive of occurrence alleged by him.

76. In view of discussion made above conclusion drawn by learned Trial Court is correct and is in accordance with evidence on record.

77. P.W. 4 Head Constable Bihari Pandey has stated that on 19.4.1986 he has written chick first information report Exhibit Ka. 1 on the basis of oral information given by P.W. 1 complainant Smt. Ramawati Devi. He has stated that entry of registration of crime was made at the same time that is on 19.4.1986 at 7.15 A.M. Chick first information report Exhibit Ka. 1 as well as G.D. relating to registration of crime Exhibit Ka. 2 which has been proved by him show that P.W. 1 complainant Smt. Ramawati Devi had lodged oral information of occurrence in Police Station Kotwali at 7.15 A.M. on 19.4.1986.

78. P.W. 6 Investigating Officer Pashupati Nath Pandey has also stated on oath that crime was registered in Police Station Kotwali, District Ghazipur in his presence. He has stated that he came to place of occurrence from Police Station Kotwali alongwith P.W. 1 complainant Smt. Ramawati Devi. There is nothing on record to show that first information report is ante time.

79. It is relevant to mention that lodging of oral first information report by P.W. 1 complainant Smt. Ramawati Devi shows that she had no legal aid or assistance after occurrence. She has gone to police station straight way and has lodged oral report in police station. There is nothing on record to show that local police had enmity with accused appellants.

80. In view of discussion made and conclusion drawn above we are of the view that first information report is quite prompt and there is no chance of concoction.

81. P.W. 1 complainant Smt. Ramawati Devi has stated in cross-examination at page 22 (page 25 of paper book) that after her arrival at Gomti after occurrence, his son Suraj came on Gomti after 10 to 15 minutes. She has further stated in cross-examination that she remained on Gomti for 10 to 15 minutes. Above time mentioned by complainant is not exact time. It is an estimated time which may differ with actual time. Chick F.I.R. Exhibit Ka. 1 shows that distance of police station from the place of occurrence is 3.00 kilometres. In city area 3.00 kilometres may easily be covered within 10 to 15 minutes. Therefore, lodging of first information report at 7.15 A.M. after occurrence is not an abnormal thing and on this ground inference may not be drawn that first information report is ante time.

82. P.W. 1 complainant Smt. Ramawati Devi has named Indra Goswami as eye witness of occurrence in first information Exhibit Ka. 1. She has stated in her statement on oath that Indra Goswami was present at the time of occurrence but D.W. 1 Smt. Chandra-kanta has stated that on the date of occurrence Indra Goswami was assistant teacher at her school and on that day she was present in school from 6.30 to 11.00 A.M. She has proved attendance register of Indra Goswami as well as that of her own as Exhibits Kha. 2 and Kha. 3.

83. We have considered statement of D.W. 1 Smt. Chandrakanta and attendance register proved by her. In usual practice it is experienced that some time signatures are made on attendance register ante time to save leave. Therefore, on the basis of statement of D.W. 1 Smt. Chandrakanta as well as attendance register proved by her alleged presence of Indra Goswami at the time of occurrence may not be said to concocted and false. In addition to it is relevant to mention that Indra Goswami has not been examined by prosecution. Therefore, even if statement of D.W. 1 Smt. Chandrakanta is accepted, it would have no adverse affect on the prosecution case and merely on this ground whole prosecution case may not be discarded.

84. In the case of Ranjit Singh and others v. State of Madhya Pradesh, 2010 (96) AIC 94 (SC) : 2010 (71) ACC 947 (SC) Honble Apex Court has placed reliance on its previous judgment rendered in the case of Prem Singh and Others Vs. State of Haryana, wherein Honble Apex Court has held as under.

"It is now a well settled principle of law that the doctrine "falsus in uno, falsus in omnibus" has no application in India.

In view of above, the law can be summarised to the effect that the aforesaid legal maxim is not applicable in India and the Court has to assess to what extent the deposition of a witness can be relied upon. The Court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate the grain from the chaff because they are inextricably mixed up, that the whole evidence of such a witness can be discarded."

85. In view of discussion made and conclusion drawn above after having gone through whole evidence as well as fact and circumstances of the case we are of the view that P.W. 1 complainant Smt. Ramawati Devi is natural witness of occurrence and she has seen the occurrence. Her testimony regarding occurrence is highly reliable and there is no reasonable ground to disbelieve her testimony.

86. P.W. 1 complainant Smt. Ramawati Devi is wife of deceased Vishambhar Bharti. She shall not spare real assailants.

87. In the case of Harpal Singh v. State of Haryana, 1977 Cr.L.J. 642 (SC) at p. 649 Honourable Apex Court has held that if witnesses examined are believed the question of inference for non-examination does not arise.

88. As concluded above P.W. 1 complainant Smt. Ramawati Devi is highly reliable witness. Therefore in view of above pronouncement of Honourable Apex Court no adverse inference shall be drawn for non-examination of other witnesses.

89. Acquittal of co-accused Jitendra Srivastava by Trial Court shall have no adverse affect on prosecution case against accused appellants and on this ground whole testimony of P.W. 1 Smt. Ramawati Devi may not be discarded.

90. In the case of Takdir Samsuddin Sheikh Vs. State of Gujarat and Another,

Honble Apex Court has held as follows:--

"(ii) This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the Court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy of otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused inspite of testimony of several witnesses if it is not satisfied about the quality of evidence."

91. As concluded above it is apparent that P.W. 1 complainant Smt. Ramawati Devi is natural witness of occurrence and her statement is fully corroborated by medical evidence as well as statement of I.O. and there is no sufficient ground to disbelieve her testimony. Therefore, in view of this pronouncement of Honble Apex Court we are of the view that single testimony of P.W. 1 complainant Smt. Ramawati Devi is sufficient to convict accused appellants.

92. It is apparent from version of F.I.R. Exhibit Ka. 1 as well as statement of P.W. 1 complainant Smt. Ramawati Devi that both accused appellants came alongwith two other persons and fired at Vishambhar Bharti husband of complainant Smt. Ramawati Devi who suffered fire arm injuries and died on spot.

93. P.W. 3 Dr. P.C. Tiwari has stated in his statement on oath that ante mortem injuries found on the body of deceased Vishambhar Bharti were sufficient to cause death in ordinary course.

94. In view of discussion made and conclusion drawn above after having gone through whole evidence on record as well as facts and circumstances of the case, we are of the view that evidence on record is sufficient to hold accused appellants guilty for offence punishable under section 302 I.P.C.

95. Perusal of impugned judgment and order of learned Trial Court shows that learned Trial Court has gone through entire evidence on record and has considered all aspects and relevant points for determination in detail. The conclusions drawn and findings recorded by Trial Court are based on judicious analysis of evidence and law. In view of conclusion drawn above we are of the view that learned Trial Court has rightly convicted accused appellants for offence punishable under section 302 I.P.C.

96. Sentence awarded by Trial Court is not excessive and State has not filed appeal for enhancement of sentence.

97. In view of discussion made and conclusion drawn above we find no justification for interference in impugned judgment and order of Trial Court. Appeal has no merit and is liable to be dismissed.

98. Appeal is dismissed accordingly.

Accused appellants Uma Shanker Bharti and Rajesh Bharti alias Pappu are on bail They shall surrender before the Trial Court for serving sentence within 30 days from the date of judgment of this Court, failing which Trial Court shall ensure their arrest and shall send them to jail for serving sentence in accordance with law.

99. Office is directed to send copy of judgment to Trial Court for securing compliance. Lower Court record shall be returned to the concerned Court immediately.