Chiranju and Another (In Jail) vs State of U.P.

U.S. Tripathi, J.—Chiranju and Sheo Prasad Appellants have preferred this appeal against the judgment and order dated 31.7.1981 passed by Sessions Judge, Kanpur in Sessions Trial No. 133M of 1981 (Metropolitan Area) convicting both the Appellants u/s 302 read with Section 34, I.P.C. and sentencing each of them to undergo imprisonment for life.

Prosecution story, briefly stated, was as under:

Appellants Chiranju and Sheo Prasad were real brothers and sons of Dwarika. Ayodhya Prasad deceased was cousin brother of Dwarika, the father of Appellants. Chhunna alias Virendra Kumar (P.W. 1) was the son of Ayodhya Prasad. There was enmity between the Appellants and Ayodhya Prasad deceased regarding land. In the year 1972 Munna alias Mahendra another son of Ayodhya Prasad and brother of Chhunna (P.W. 1) was murdered and injuries were caused on Ayodhya Prasad. Appellants Chiranju and his brother Sheo Prasad, their father Dwarika, Heera Lal and Ram Pal were tried for the said murder of Munna. Except Heera Lal, other accused of the said case were convicted and sentenced by the Sessions Court, but they were acquitted by the High Court. On 18.10.1976 Shiv Kumar another son of Dwarika and brother of Appellants was murdered in which Ayodhya Prasad deceased, Chhunna (P.W. 1) and his brother Sunder Lal were prosecuted. On account of above litigations there was strong enmity between the Appellants and the deceased.

On the morning of 11.1.1981 at about 6-6.30 a.m. Ayodhya Prasad deceased along with Chhunna (P.W. 1) and Dwarika Prasad son of Ganga Ram (P.W. 4) and Ram Shankar was going to Siddha Nath Mandir for darshan. When the deceased and above persons reached the ground of J.P.R.N. School, the Appellants Chiranju and Sheo Prasad along with their brother Heera Lal, their cousin brothers Chandra Pal and Vishambhar, and their friend Kali Charan were present on the ground of said college. Appellant Sheo Prasad was having ''Banka'' and other accused were having country made pistols. The above Appellants and accused persons abusing Ayodhya Prasad surrounded him. Chiranju Appellant fired on Ayodhya Prasad, which hit on his temporal region and he fell down. Thereafter, Vishambhar fired and Appellant Sheo Prasad inflicted Banka injuries on Ayodhya Prasad. The other accused persons were exhorting that he (deceased) should not escape, Chhunna (P.W. 1), Virendra Kumar (P.W. 3), Dwarika Prasad (P.W. 4) and Ram Shankar saw the occurrence by hiding themselves behind the urinal of the school. After committing murder of the deceased, the Appellants and other accused ran away towards Siddha Nath temple. There was sufficient light at that time.

Leaving Dwarika Prasad (D.W. 4) and Ram Shankar near the dead body, Chhunna (P.W. 1) came to his house, where he prepared written report (Ext. Ka-1) and thereafter along with his uncle Jamuna Prasad came to police station Cantonment, where he lodged report at 7.20 a.m. On the basis of written report, Head Constable Ram Autar Shukla (P.W. 5) prepared chik report (Ext. Ka-3) and made an endorsement of the same at G. D. report (Ext. Ka-4) and registered a case against the Appellants Chiranju, Sheo Prasad and other accused Kali Charan, Vishambhar, Chandra Pal and Heera Lal under Sections 147, 148, 149 and 302, I.P.C.

Investigation of the case was taken up by Sri Sagir Mohammad, Investigating Officer (P.W. 6). He reached the spot alongwith Sub-Inspector Tyagi and other police officers at 8.45 a.m. The dead body of Ayodhya Prasad was lying on the spot. Sub-Inspector R. S. Pandey and other police officers of police outpost Jajmau were also present. Sri Sagir Mohammad, Investigating Officer (P.W. 6) conducted inquest of the dead body of the deceased and prepared inquest report (Ext. Ka-6) and other relevant papers. He took into possession blood stained clothes of the deceased and prepared recovery memo. Dead body was sealed and handed over to Constable Ramji Tewari and Ram Murari for post-mortem. The Investigating Officer interrogated Chhunna (P.W. 1) on the spot and on his pointing out inspected place of occurrence and prepared site plan (Ext. Ka-17). He also collected blood stained and simple earth from the spot. An empty cartridge was also recovered from the spot.

Autopsy on the dead body of deceased was conducted on 11.1.1981 by Dr. D. S. Shukla (P.W. 2) who found as many as 12 incised wounds on different parts of the dead body of deceased and one gun shot wound on left side of face of the deceased as ante-mortem injuries and cause of death due to shock and haemorrhage as a result of ante-mortem injuries. He prepared post-mortem report (Ext. Ka-3). On 14.1.1981 the Investigating Officer interrogated other witnesses and on completion of investigation submitted charge-sheet against Chiranju and Sheo Prasad Appellants and Kali Charan, Chandra Pal and Heera Lal. Accused Vishambhar was not challenged.

Cognizance of the case was taken by the Magistrate, who committed the case to the Court of Sessions.

The Appellants and other accused Heera Lal, Chandra Pal and Kali Charan were charged with the offences punishable under Sections 148 and 302 read with 149, I.P.C. Appellant Chiranju was further charged u/s 302, I.P.C. simplicitor. The Appellants and another accused pleaded not guilty and contended that they were falsely implicated on account of enmity.

The prosecution in support of its case examined Chhunna alias Virendra Kumar (P.W. 1), Virendra Kumar son of Ram Kumar (P.W. 3) and Dwarika Prasad (P.W. 4) as witnesses of fact, besides Dr. D. S. Shukla (P.W. 2), Head Constable Ram Autar Shukla (P.W. 5), Sri Sagir Mohammad, Investigating Officer (P.W. 6) as formal witnesses. Sri Ram Abhilash Dredger Driver of J. K. Rayon Factory was examined as court witness (C.W. 1). The Appellants examined Ram Adhar Maurya (D.W. 1) in their defence.

The learned Sessions Judge on considering evidence of the prosecution held that the prosecution has established guilt of the Appellants Chiranju and Sheo Prasad for the offence punishable u/s 302 read with Section 34, I.P.C. and participation of other accused namely Chandra Pal, Kali Charan and Heera Lal was doubtful. With these findings, he convicted Appellants Chiranju and Sheo Prasad u/s 302 read with 34, I.P.C. and sentenced each of them to undergo imprisonment for life. The other accused were acquitted.

Aggrieved with their above conviction and sentence, the Appellants have preferred this appeal.

Appellant Chiranju died during pendency of appeal. Therefore, appeal preferred by Chiranju Appellant stood abated.

We have heard Sri P. N. Misra, assisted by Sri Apul Misra, advocate for the Appellant Sheo Prasad and perused entire evidence on record.

The death and cause of death of Ayodhya Prasad were not disputed. Dr. D. S. Shukla (P.W. 2), who conducted autopsy on the dead body of deceased found following ante-mortem injuries on his person:

(1) Incised wound 7 cm. x 1-1/2 cm.x cavity deep on the skull 4 cm. above the right eyebrow.

(2) Incised wound 1 cm. x 1/2 cm. x bone deep on the right side, skull, 1 cm. above the upper eyebrow of right eye.

(3) Incised wound 2 cm. x 1 cm. x bone deep on the right side of face 1 cm. below the lower eye lid of right eye.

(4) Incised wound 9 cm. x 3 cm. x bone deep on the right side face, 2 cm. lateral to right nostril.

(5) Incised wound 12 cm. x 4 cm. with the upper and lower jaw cut on the face.

(6) Incised wound 2 cm. x 1 cm. x muscle deep on the left side face, 2 cm. below left eye.

(7) Incised wound 16 cm. x 6 cm. x mouth cavity deep with cut of lower jaw.

(8) Gun shot entry wound of 3 cm. x 2 cm. x cavity deep on the left side face, 4 cm. medial to left ear. Blackening present.

(9) Incised wound 3 cm. x 1-1/2 cm. x muscle deep on the right arm 15 cm. above the right elbow.

(10) Incised wound 2 cm. x 1 cm. x bone deep on the upper part of right thigh.

(11) Incised wound 4 cm. x 1 cm. x muscle deep on the lower part of abdomen, 11 cm. below the umbilicus.

(12) Incised wound 3 cm. x 1 cm. x bone cut on the medial side of right foot.

(13) Incised wound 9 cm. x 3 cm., 1 cm. above the ankle joint.

He further stated that internal examination showed that frontal bone was fractured. Membranes and brain were lacerated. 42 pellets and three wad pieces were recovered from mouth cavity. The stomach contained one ounce digested food. Small intestine and large intestine were half full and cause of death was due to shock and haemorrhage as a result of ante-mortem injuries.

The above medical evidence has not been challenged. The above medical evidence clearly established that Ayodhya Prasad deceased died on account of gun shot and incised injuries and his death was homicidal.

The learned Counsel for the Appellant contended that all the ocular witnesses were related and partisan and their presence on the spot is doubtful. That Virendra Kumar (P.W. 3) had excluded presence of Chhunna (P.W. 1) and Dwarika Prasad (P.W. 4) and role of shooting has been changed subsequently, and that report was ante-timed and could not be lodged at the time alleged by the prosecution.

Before adverting to the contentions raised by the learned Counsel for the Appellant, we would like to give the gist of ocular testimony.

Chhunna alias Virendra Kumar (P.W. 1) stated the inter se relationship of the Appellants and the deceased. He further stated that there was enmity between his father Ayodhya Prasad deceased and Dwarika, father of Appellant in respect of landed property. In the year 1972 his brother Munna alias Mahendra Kumar was murdered by Chiranju, Sheo Prasad, Heera Lal Dwarika Prasad and Ram Pal. Except Heera Lal, other persons were convicted and sentenced by the trial court. They were acquitted in the appeal. On the date of occurrence at 6.30 a.m. he along with his father Ayodhya Prasad deceased, Ram Shankar and Dwarika Prasad (P.W. 4) was going to Siddha Nath temple for worshipping. When they reached near J.P.R.N. School, the Appellants Chiranju and Sheo Prasad along with Kali Charan, Heera Lal, Vishambhar and Chandra Pal were present on the ground of the school. Sheo Prasad was having Banka and other persons were having country made pistols. The Appellants and other accused surrounded his father Ayodhya Prasad and abused him. Chiranju fired on the head of his father which hit on his temporal region and he fell down. Thereafter, Vishambhar fired, but he could not see whether the second shot hit the deceased or not. Sheo Prasad inflicted banka blows on the deceased and other accused persons were saying that he should not escape alive. He and other witnesses saw the occurrence from behind the urinal of the school. After murdering his father, the Appellants and other accused ran towards north west towards Siddha Nath temple.

Virendra Kumar (P.W. 3) stated that he was knowing Ayodhya Prasad deceased and Appellants and other accused from before. On the morning of occurrence, he was going to Siddha Nath temple for darshan and from there he had to go to Siddha Devi temple for darshan. Ayodhya Prasad along with Chhunna (P.W. 1) Ram Shankar and Dwarika Prasad (P.W. 4) were also coming. When Ayodhya Prasad and others came on the ground of J.P.R.N. school, the Appellants and other accused surrounded him and started causing injuries on him. Sheo Prasad was having Banka and other accused were having country made pistols. Chiranju fired at Ayodhya Prasad due to which he fell down. Thereafter, Sheo Prasad inflicted banka injuries on him. He and other witnesses saw the occurrence. Thereafter, accused persons ran away. Ayodhya Prasad died on the spot. Blood had fallen on the spot from the injuries of deceased. Empty cartridge had also fallen on the spot.

Dwarika Prasad (P.W. 4) stated that he was knowing Ayodhya Prasad deceased and Appellants and other accused from before. On the date of occurrence at about 7.30 a.m. he along with Ayodhya Prasad was going to Siddha Nath temple for darshan. Chhunna (P.W. 1) and Ram Shankar were also with him. When they reached the ground of college, Appellants Chiranju and Sheo Prasad alongwith Heera Lal, Chandra Pal, Kali Charan and one another person surrounded Ayodhya Prasad on the ground. Sheo Prasad was having Banka and other accused were having country made pistols. Abusing Ayodhya Prasad Chiranju fired at him, due to which he fell down. One another person also fired. Sheo Prasad inflicted several Banka blows on the deceased. He, Chhunna (P.W. 1), Ram Shankar and Virendra (P.W. 3) hid behind urinal of the school. Appellants and other accused after killing Ayodhya Prasad ran away towards north west. He and other witnesses came to Ayodhya Prasad and found him dead. Blood and one empty cartridges was lying on the spot. Morning light had spread, but sun had not risen.

According to prosecution, the occurrence took place on 11.1.1981 at about 6-6.30 a.m. on the ground of J.P.R.N. college. The learned Counsel for the Appellant contended that occurrence took place at some other place in the night and dead body of the deceased was subsequently brought on the spot and it was noticed subsequently and that the report was lodged ante-timed. The autopsy on the dead body of the deceased was conducted on same day at 3.25 p.m. and Dr. Shukla (P.W. 2) stated that the death of deceased had taken place half day before the post-mortem. He also clarified that death of deceased would have taken place at 6-6.30 a.m. on 11.1.1981. The Investigating Officer visited the spot on the same day at 8.45 a.m. and he found blood and one empty cartridge on the spot. The above evidence of Dr. Shukla and Investigating Officer Sri Sagir Mohammad (P.W. 6) has not been challenged. The report of the occurrence was also lodged at 7.20 a.m. However, the learned Counsel for the Appellant contended that report was ante-timed, but Head Constable Ram Autar Shukla (P.W. 5) stated that Chhunna alias Virendra Kumar (P.W. 1) came to police station Cantonment at 7.20 a.m. and handed over a written report (Ext. Ka-1). He further stated that he prepared chik report and made an endorsement of the same at G.D. report (Ext. Ka-4). The distance of police station from the spot was 10 kms. Chhunna (P.W. 1) clarified in his cross-examination that after the occurrence he came to his house and prepared report (Ext. Ka-1) and then went to police station along with his uncle Jamuna Prasad, where he handed over written report. It is mentioned in the G.D. report (Ext. Ka-4) that Chhunna alias Virendra Kumar along with Jamuna Prasad came to police station on a motor cycle bearing Registration No. U.P.K. 346 and handed over written report. Considering the manner in which and the conveyance by which Chhunna (P.W. 1) travelled the distance of police station, it was probable that report was lodged at 7.20 a.m. Sri Ram Autar Shukla (P.W. 5) had further stated that the special report of the case was sent at 7.55 a.m. through Constable Raisuddin, the endorsement of which was made at G.D. report (Ext. Ka-6). The Investigating Officer Sri Sagir Mohammad (P.W. 6) stated that he reached on the spot at 8.45 a.m. Sending special report at 7.55 a.m. and arrival of Investigating Officer on the spot at 8.45 a.m. confirm the lodging of report at 7.20 a.m. However, it was pointed out that Chhunna (P.W. 1) stated in his cross-examination after the occurrence he stayed at the spot for about 20-25 minutes and thereafter came to his house. It took about 15 minutes in the preparation of the report and then he proceeded to police station at about 7.30 a.m. and this shows that informant had not reached the police station at 7.20 a.m. In our opinion, the above time stated by the witness was on his speculation and time of lodging of the report at the police station was mentioned according to watch time. Therefore, difference of 15-20 minutes in the statement of the witness does not rule out the lodging of the report at 7.20 a.m. because evidence of witness cannot be appreciated by calculation on mathematical basis. Moreover, dead body of the deceased was received in the police lines at 11.45 a.m. as per endorsement of the Reserve Inspector in Challan form (Ext. Ka-14). There is nothing on record to doubt the above documentary evidence. Moreover, the evidence of Ram Autar Shukla (P.W. 5) and Investigating Officer Sri Sagir Mohammad (P.W. 6) have not been challenged. Therefore, the bald suggestion from the side of Appellants that report was lodged ante-timed has no force and it is established from the above evidence of Chhunna (P.W. 1), Ram Autar Shukla (P.W. 5) and Investigating Officer Sri Sagir Mohammad (P.W. 6) and documents referred to above that the report was promptly lodged at 7.20 a.m.

The medical evidence and the time of lodging of the report confirmed the time of occurrence. The Investigating Officer recovered blood and empty cartridge from the spot, which confirmed the place of occurrence. Thus, the date time and place of occurrence has also been established.

The learned Counsel for the Appellant contended that the presence of ocular witnesses on the spot was doubtful and the deceased was murdered somewhere in the night and his dead body was subsequently thrown on the ground of the college, which was noticed subsequently. We have, therefore, to consider whether the above ocular witnesses were present on the spot.

Chhunna (P.W. 1) clarified in his cross-examination that Siddha Nath temple was at a distance of 300-350 paces from his house and the J.P.R.N. college was at a distance of about 300 paces from his house. The rasta for the temple passed through the ground of the school. There was also a rasta for the temple through road, but the rasta through ground of the college was shorter and there was no restriction in going through the ground of the college and that there was also no gate in the boundary wall. It has also come in the evidence of Dwarika Prasad (P.W. 4) that Ayodhya Prasad daily used to go to Siddha Nath temple for darshan and since he had enmity with the Appellants, he used to accompany him. In these circumstances, presence of Chhunna (P.W. 1), the son of Ayodhya Prasad deceased was not unnatural. The lodging of the report by Chhunna (P.W. 1) within an hour of the occurrence also confirmed his presence on the spot. Though Chhunna (P.W. 1) had not sustained any injuries, but he had explained the absence of injuries on his person that when the Appellants and other accused surrounded his father Ayodhya Prasad deceased, he and other witnesses had hidden themselves behind urinal of the college and, therefore, no injury was caused on him. In these circumstances, the presence of Chhunna (P.W. 1) on the spot appears natural and probable.

Virendra Kumar (P.W. 3) is the other eye-witness. He stated that he was going to Siddha Nath temple for darshan and thereafter he had to go Siddha Devi Mandir for darshan. In his cross-examination, he stated that though he was residing to Mohalla Yasodanagar Juhi, Kanpur, which was at a distance of 10-10-1/2 kms. from the spot, but he was working as dredger in pumping house at Jaj Mau and started for his duty from his house at about 5 a.m. That he used to go to Siddha Nath temple for darshan daily. He further clarified that occurrence took place on Sunday, but he had to perform duties on some Sundays also. The evidence of Ram Abhilash (C.W. 1) Dredger Driver, J. K. Rayon confirmed the presence of Virendra Kumar (P.W. 3) in the above factory on 11.1.1981. He further stated that the first shift started from 7 a.m. and ended at 3 p.m. He again stated that the workers working on dredger have no holiday on Sunday prior to agreement dated 25.2.1981. It was pointed out that the page of attendance register dated 11.1.1981 was subsequently pasted, but name of Virendra Kumar (P.W. 3) finds place in the F.I.R. (Ext. Ka-1), which was lodged at 7.20 a.m. on the date of occurrence and therefore, it cannot be said the evidence of attendance of Virendra Kumar in the factory was subsequently introduced. The Investigating Officer had also stated that he interrogated Virendra Kumar (P.W. 3) on 12.1.1981 at 2.30 at Jajmau Pumping House. The above evidence confirmed the presence of Virendra Kumar on the spot.

Dwarika Prasad (P.W. 4) the other eye-witness clarified in his cross-examination that his house is situate at a distance of 7-8 paces from the house of Ayodhya Prasad deceased and he used to go to Siddha Nath temple for darshan daily. His above evidence has not been challenged. Therefore, the witness being neighbour of the deceased was daily visitor of Siddha Nath temple and, therefore, his presence on the spot along with deceased can also not be doubted.

The learned Counsel for the Appellant pointed out that Virendra Kumar (P.W. 3) had denied the presence of Chhunna (P.W. 1) and Dwarika Prasad (P.W. 4) and this shows that Chhunna (P.W. 1) and Dwarika Prasad (P.W. 4) were not present on the spot. But having gone through the entire evidence of Virendra Kumar (P.W. 3), we find no force in the above contention. The witness has stated that he was going to Siddha Nath temple for darshan and when reached the spot, he saw Ayodhya Prasad along with Chhunna (P.W. 1), Dwarika Prasad (P.W. 4) and Ram Shankar coming from other side. He further stated that besides him, Dwarika, Ram Shankar and Chhunna had also seen the occurrence. However, he stated that he and accused persons ran away. But his above statement does not show that Chhunna (P.W. 1) and Dwarika Prasad (P.W. 4) were not present on the spot. His above evidence simply shows that when the accused started causing injuries upon the deceased he and another witnesses ran away. It has also come in the evidence of Chhunna (P.W. 1) and Dwarika Prasad (P.W. 4) that when the Appellants and other accused started causing injuries upon the deceased, they hid behind wall of urinal of the school and as such presence of Chhunna (P.W. 1) and Dwarika Prasad (P.W. 4) has not been excluded by Virendra Kumar (P.W. 3).

The learned Counsel for the Appellant contended that the role of shooting has been changed as in the F.I.R. role of shooting was assigned to Appellant Chiranju and Vishambar, but subsequently, this version was changed and a subsequent version was introduced that only Chiranju fired on the deceased. That this subsequent development was made to make his evidence in consonance with the medical evidence. The post-mortem report of the deceased shows that he had sustained only one gun shot wound of entry. It is true that in the F.I.R., it was mentioned that Chiranju and Vishambhar fired on the deceased, but in his evidence Chhunna (P.W. 1) stated that Chiranju fired first shot and second shot was fired by Vishambhar, but he could not see whether the shot fired by Vishambhar hit the deceased or not. Virendra Kumar (P.W. 2) stated that Chiranju fired on the deceased, which hit Ayodhya Prasad deceased and Dwarika Prasad (P.W. 4) stated that Chiranju fired at the deceased, due to which he fell down and one another person also fired. Vishambhar was not challaned by the Investigating Officer probably either because his name was exaggerated or due to pressure on the police, because he was brother of Sri Manohar Lal, the then Member of Parliament, as stated by Constable Ram Adhar Mauraya (D.W. 1). In any way, it is clear from the evidence on record that first shot, which hit the deceased, was fired by Chiranju. Even if it is assumed for the sake of argument that name of Vishambhar was exaggerated, it does not affect the veracity of ocular witness, as there is tendency of the witnesses to exaggerate number of accused, but the duty of the Court is to find out grain of truth from the chaff of falsehood.

The next contention of the learned Counsel for the Appellant was that Chhunna (P.W. 1) was real son of the deceased. He was relative of the deceased as well as inimical with the Appellants and other witnesses were also inimical and partisan and, therefore, their testimony is not worth reliable. As mentioned above, cross-examination of Chhunna (P.W. 1), Virendra Kumar (P.W. 3) and Dwarika Prasad (P.W. 4) do not reveal any good reason for rejecting their evidence. The ground for attack against their evidence that they being relations of the deceased are interested witnesses, is not acceptable, as held by Apex Court in the case of Tapubhai Bhagvansi and Ors. v. State of Gujarat AIR 2003 SCW 3165 . It was held by the Apex Court in the case of Amzad Ali @ Amzad Kha and Others Vs. The State of Assam, , that there is no rule of any presumption that the evidence of a related witness will always be an interested one or that such witness will have only a hostile attitude towards the accused facing trial. In the case of Bhagwan Singh and Ors. v. State of M. P. 2003 (2) SC 860: 2002 (2) ACR 1224 (SC): AIR 2002 SCW 1532 , it was held that merely because P. Ws. happened to be the relations of the deceased, cannot be made a ground to discard their evidence. In the case of Gangadhar Behera and Others Vs. State of Orissa, , the Apex Court held that relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

It is true that Chhunna (P.W. 1) besides relative of deceased was also inimical with the Appellants as he was also cited as accused in the murder of Sheo Kumar, brother of Appellants. But the presence of the witness on the spot has been established and the above enmity could also be cause of murder of Ayodhya Prasad deceased. Moreover, suggestion given to Chhunna (P.W. 1) was that deceased was murdered at some other place in the night and his dead body was brought on the spot and Appellant and other accused were falsely implicated on account of enmity. But there is no evidence to establish the above suggestion. If the witness was present on the spot he would have hardly spared out real assistant. As such we find that foundation of false implication of Appellant has not been established and relation and enmity of the witness does not affect his credibility.

The learned Counsel for the Appellant further contended that independent witnesses were not examined and it would seriously impair credibility of the prosecution case. In this connection, reliance was placed on the Apex Court decision in Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A. P. Hyderabad 2002 (3) ACR 2420 (SC): 2002 SCC (Crl) 1370. But the facts of present case are distinguishable. In the said case several independent persons had witnessed the incident but none of them was examined on the ground that those witnesses did not come forward to give evidence because of fear of accused. This explanation was not accepted by the Apex Court. In the instant case, ocular witnesses cited in the F.I.R. were Chhunna (P.W. 1) his brother Ram Shankar, Virendra Kumar (P.W. 3) and Dwarika (P.W. 4). Except Ram Shankar, younger son of deceased other witnesses were examined. As such, witnesses who had seen the occurrence and were not of the family of deceased were also examined.

Lastly, it was argued that on the basis of same evidence, the trial court has acquitted as many as four accused, as their participation was found doubtful and therefore, there was no guarantee that the Appellants participated in the crime, because part of the evidence of the ocular witnesses has been disbelieved by the trial court. From the evidence on record, we find that participation of Appellants Chiranju and Sheo Prasad has been established and evidence of ocular witnesses was corroborated by medical evidence, F.I.R. and other circumstances. The allegations against the accused who were acquitted by the trial court was only that of exhortation and the trial court found that participation of above accused cannot be believed because they have been assigned role of only exhortation. Assuming that the ocular witnesses have exaggerated number of accused, the complicity and participation of the Appellant cannot be disbelieved. The Apex Court held in the case of Gangadhar Behera and Others Vs. State of Orissa, as below:

Even if a major portion of evidence is bound to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called ''a mandatory rule of evidence. Nisar Ali Vs. The State of Uttar Pradesh, . Merely because some of the accused person have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate accused who had been acquitted from those who were convicted. Gurcharan Singh and Another Vs. State of Punjab, . The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects of the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. Sohrab and Another Vs. The State of Madhya Pradesh, and Ugar Ahir and Others Vs. The State of Bihar, . An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. Balaka Singh and Others Vs. The State of Punjab, . As observed by this Court in State of Rajasthan Vs. Smt. Kalki and Another, , normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party''s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Others Vs. State of Bihar, .

In the instant case, we find that the accusation of the Appellants has been clearly established and the case of other accused who have been acquitted by the trial court is clearly distinguishable because only role of exhortation was assigned to them and though they were having country made pistols, but had not used the same. Therefore, the case of those accused, who have been acquitted had distinguishing feature in evidence so far as acquitted and convicted accused are concerned. Therefore, acquittal of other persons will have no implication on the complicity of the Appellants.

In view of our above discussions and observations, we find that the prosecution has established the guilt of Appellants and we find no force in the appeal.

The appeal preferred by Chiranju stands abated.

The appeal preferred by Sheo Prasad is, accordingly, dismissed. The conviction and sentence of Appellant Sheo Prasad are confirmed.

The Appellant Sheo Prasad is on bail. He shall surrender before the C.M.M. concerned to serve out the remaining sentence. The C.M.M., Kanpur Nagar is also directed to issue non-bailable warrants against the Appellant Sheo Prasad to procure their attendance and send him to jail for serving out the sentence awarded by the trial court.

Copy of the order be sent to C.M.M., Kanpur Nagar for compliance and report.