Krishna Kant Chaturvedi vs State of U.P.

Surendra Kumar, J.—Heard Sri Veer Singh, Advocate and Sri Ravi Chandra Srivastava, learned amicus curiae for the appellant and Sri Anand Tiwari, learned AGA for the State and perused the evidence on record. The appellant Krishna Kant Chaturvedi has preferred the instant criminal appeal against the judgment and order dated 11.8.1981 passed by I Additional Sessions Judge, Azamgarh, in Session Trial No. 428 of 1977, State v. Krishna Kant Chaturvedi and six others, relating to Crime No. 14 of 1977, under Sections 147, 148, 149, 336, 307, 302, IPC, Police Station Ahiraula, District Azamgarh, whereby the appellant has been convicted under Sections 302 read with Section 34, IPC, 307 read with Section 34, IPC and 323 read with Section 34, IPC and has been sentenced to undergo life imprisonment, five years rigorous imprisonment and one year rigorous imprisonment respectively. All the sentences were ordered to run concurrently. By the impugned judgment, the learned trial Judge has acquitted remaining co-accused namely Ram Surat, Patiram, Vikrama, Ram Samujh, Rajendra Prasad, Ramakant and Sita Ram of the aforesaid offences. Thus challenge in this appeal only by one appellant Krishna Kant Chaturvedi is to the impugned judgment and order of conviction and sentence.

The prosecution story in a nutshell is that eight accused persons belonging to Village Hamidpur, Police Station Ahiraula, District Azamgarh, formed an unlawful assembly at 7:00 a.m. on 20.1.1977 in Village Hamidpur and committed murder of Chandra Shekhar and attempted to commit murder of Ram Garib and Som Dutt by causing injuries to them. The appellant Krishna Kant Chaturvedi was alleged to have been armed with his gun. Ramakant was armed with revolver. The appellant Krishna Kant Chaturvedi fired at Som Dutt which hit the deceased Chandra Shekhar who died at the spot. A written report of the incident was lodged by Sitaldeo Yadav, father of the deceased Chandra Shekhar on 20.1.1977 at 8:30 a.m. at Police Station Ahiraula, which was at a distance of five miles from Village Hamidpur. The first informant alleged that one day before the incident i.e. 19.1.1977, a quarrel took place between Patiram Yadav (servant of Ramakant Chaturvedi, accused) and Som Dutt Chaube. Patiram Yadav went to Azamgarh city to call his masters and at about 11:00 p.m., his masters Sitaram Chaturvedi and his two sons (Ramakant Chaturvedi and Krishna Kant Chaturvedi), all the three accused resident of the same village came to their village on motorcycle and in the morning of 20.1.1977 at 7:00 a.m., all the eight accused persons came to the door of the injured Som Dutt Chaube, started abusing him and his family members and also started throwing brickbats. The villagers gathered there and the deceased Chandra Shekhar also started meddling in the dispute. At that time, the accused Ramakant had a revolver and Krishna Kant Chaturvedi had a gun and both had fired at Som Dutt Chaube. The shot of revolver and gun struck at the face and neck of Chandra Shekhar who fell down and died. Ram Garib also received pellet injury on chest and Som Dutt Chaube received brickbats injury. The incident was witnessed by Sri Ram Yadav, Rambali, Tilakdhari and other persons of the village. Thereafter, people of the village were alleged to have brought the dead body to Police Station (Thana) where Panchayatnama/inquest on the dead body of the deceased Chandra Shekhar aged about 25 years was conducted.

The incident took place on 20.1.1977 at 7:00 a.m., the first information report thereof was lodged under Sections 147, 148, 149, 336, 307, 302, IPC at Police Station Ahiraula, District Azamgarh on 20.1.1977 at 8:30 a.m. after covering a distance of five miles by Sitaldeo Yadav first informant, father of the deceased Chandra Shekhar against all the eight accused persons including the appellant Krishna Kant Chaturvedi. On the basis of the written report, Chik FIR Ext. Ka-12 was prepared by Constable Surya Nath Singh and entry thereof was made in G.D. vide Ext Ka-13.

The investigation of the case was handed over to S.I. Brijraj Singh PW-8 who was first Investigating Officer. According to the evidence of PW-8, the written report (Ext. Ka-5) of the incident was lodged in his presence, Chik report Ext. Ka-12 was also prepared in his presence. PW-8 conducted inquest on the dead body of the deceased at Police Station vide Ext. Ka-6 and prepared other papers vide Exts. Ka-14 to Ka-16. Thereafter he recorded statement of the first informant and then came to the spot and during spot inspection, he recovered three wads, pieces of bricks and blood stained and plain earth from the place of the occurrence and sealed these articles by preparing memos Ext. Ka-17, Ext. Ka-18 and Ext. Ka-19. Subsequently, this Investigating Officer prepared site plan of the place of the occurrence at the pointing out of the first informant and other witnesses vide Ext. Ka-20, and then he recorded statement of the injured Som Dutt and other persons and searched for the accused persons who were absconding.

Parasuram Singh, Station Officer PW-5, was the second Investigating Officer of this crime. He started investigation from 23.1.1977. He recorded statements of the witnesses Rambali and Tilakdhari and searched for the accused persons on 23.1.1977. He again went to the place of the occurrence on 25.1.1977 when Head Constable Rajman gave him a country made pistol which the Head Constable had found in the courtyard/Ahata of Sitaram Chaturvedi. The appellant surrendered in the Court on 7.2.1977. After investigation, PW-5 submitted charge-sheet vide Ext, Ka-7 against some of the accused persons including the appellant on 4.4.1977 and subsequently he submitted charge-sheet Ext Ka-8 against Ramakant on 18.4.1977.

The post-mortem examination on the dead body of the deceased Chandra Shekhar aged about 25 years was conducted by Dr. A.K. Banerjee, PW-7, on 21.1.1977 at 1:00 p.m. who found following ante mortem injuries on the dead body:

(i) Gun shot wound of entry 1 1/2 cm x 1 cm x muscle deep on the left side face on jaw, 4 cm below the left ear, borders contused.

(ii) Gun shot wound of exit 1 cm x 3/4 cm x muscle deep on the left side of the neck in the middle, below and behind, outer to the injury No. 1. Both communicating with each other.

(iii) Gun shot wound of entry with contused borders 1, 3/4 cm x 1 cm x chest cavity deep on the left shoulder top, 5 cm outer to the base of the neck. One bullet was recovered from muscle of the back under left scapula (preserved)

(iv) Gun shot wound 1 cm x 1/2 cm x muscle deep on the left side of the neck in front 4 cm above the left clavicle from middle passing through and through the trachea, both borders contused.

(v) Gun shot wound 1 cm x 1/2 cm x muscle deep on the front and middle of the neck slightly to the right of the neck (wound of exit). Injury Nos. 4 and 5 are continuous.

(vi) Gun shot wound 1 cm x 1 cm x muscle deep on the front and upper part of neck in the middle (wound of entry).

(vii) Gun shot wound 1 cm x 1 cm x muscle deep on the left scapular region on the upper border of the left scapula in the back (wound of exit).

(viii) Lacerated wound with contused border 1 cm x 1/2 cm x pinna deep on the left ear upper part on the margin divided the pinna of the left ear.

The doctor opined that death was caused due to shock and haemorrhage as a result of gun shot injuries.

On internal examination, he found fracture of the second rib in the middle on the left side. Pleura was punctured on right and left side, congested and both the cavities containing about 1 Pt. of blood in each. Trachea was punctured through and through at fourth space. Right lung was contused in upper part. Left lung punctured through and through upper part. Both the lungs were congested.

Both the chambers of heart were empty. Neck vessel on left side was punctured. Blood clots were present in the muscle of the neck.

Dr. G.D. Prasad PW-6 Medical Officer. In-charge, P.H.C. Ahiraula, Azamgarh, had examined injury of Sri Ram Garib aged about 45 years on 20.1.1977 at 10:25 a.m. and bad prepared his injury report Ext. Ka-10. He found following injury on his person:

Circular abrasion 1/4 cm in diameter front of chest. Colour was red. Injury was simple, caused by friction against hard substance, Duration was fresh.

Dr. G.D. Prasad PW-6 also examined injury of Som Dutt Chaube aged about 30 years on 20.1.1977 at 10:40 a.m. and prepared his injury report Ext. Ka-9. He found following injury on his person:

Abrasion 1 cm x 1/3 cm on the right thumb. Red in colour. Injury according to the doctor was simple and probably caused by friction against hard substance. Duration was fresh.

The appellant Krishna Kant Chaturvedi was charged under Sections 148, 302 read with Section 149, IPC, 307 read with Section 149, IPC, 323 read with Section 149, IPC by 1st Additional Sessions Judge, Azamgarh. Charges were read over and explained to the appellant who pleaded not guilty and claimed to be tried.

In order to prove the charges levelled against the appellant, the prosecution examined Sital Deo Yadav PW-1, first informant, father of the deceased Chandra Shekhar, Rambali PW-2, Chanai PW-3 (real brother of PW-1), and injured Som Dutt Chaube PW-4 as eye-witness, S.I. Brijraj Singh PW-8 (first Investigating Officer) and S.O. Parasuram Singh PW-5 (second Investigating Officer) were also examined to prove the steps taken and evidence collected during investigation. The prosecution also examined Dr. G.D. Prasad PW-6 to prove injury report (Ext. Ka-9) of the injured Som Dutt Chaubey and injury report (Ext. Ka-10) of another injured Ram Garib. The doctor also proved presence of injuries on the person of these two injured at the time of their medical examination.

The appellant in his statement recorded u/s 313, Cr.P.C. clearly admitted that the injured witness Som Dutt Chaube and the appellant were resident of the same village Hamidpur and their houses were in the same neighbourhood. The appellant also admitted that two ladies Mst. Karma and Mst. Nauranga executed a sale deed of their houses and land in favour of the injured witness Som Dutt Chaube and others. Thereafter, the appellants and others got the same land purchased through subsequent sale deed. Since injured Som Dutt purchased the land of the two ladies through legitimate and genuine sale deed, hence he challenged the subsequent sale deed purportedly executed in favour of the appellant calling the subsequent sale deed a sham and fake document and a civil suit was pending prior to the incident of this murder in that respect. Som Dutt Chaube was contesting the civil suit on behalf of the aforesaid two ladies in the civil Court. The appellant in his statement admitted that he got the subsequent sale deed executed in his favour. Thus genuineness of the subsequent sale deed allegedly executed in favour of the appellant was under challenge in the civil Court prior to the present incident. The appellant pleaded his false implication on account of old enmity and litigation. The appellant has further admitted in his statement in the trial Court that there was litigation between two sides prior to this incident. Around 6:00 a.m. on the day of the incident, Som Dutt Chaubey armed with gun, Sri Ram, Chandra Shekhar each armed with Addhi (firearm) along with 27 other persons (30 accused persons in the cross case) holding lathis and spears etc. came at the door of the appellant''s house and entered into courtyard/enclosure of the house after having demolished a wall and started firing and looting. The appellant along with servants Ramjit and Pati Ram entered inside his house while his two relatives who were already in his house, entered in the adjacent room of the house of the appellant. The appellant further stated that he closed the door of his house from inside when the aforesaid thirty persons, in order to commit dacoity, started breaking and opening his door. After sometime, door of his house was broken. The appellant sensing immediate danger to his life took his gun, which was already placed inside the house, in his hand and fired from his gun from inside the room of this house. As a result of firing made by the appellant from his gun, those thirty persons and crowd assembled there immediately dispersed, thereafter the appellant came out of his house and when the appellant wanted to go to the Police Station Ahiraula to lodge the first information report, he saw the accused persons obstructing/surrounding the way to the Police Station Ahiraula but the appellant instead of going to Police Station Ahiraula, directly reached Police Station Kotwali. Azamgarh where he lodged the report at Police Station Kotwali, Azamgarh and got himself and Ramji medically examined at Sadar Hospital, Azamgarh.

Anwar Ali DW-1, Mohammad Sharif DW-2, Narad Muni Dwivedi DW-3 were examined in defence evidence in the trial to prove the plea of alibi taken by the accused Ramakant Chaturvedi (real brother of the appellant). The certified copy of cross Chik FIR lodged by the appellant Krishan Kant Chaturvedi at Police Station Kotwali, Azamgarh on 20.1.1977, in which he had named thirty accused persons including the deceased Chandra Shekhar, certified copy of injury report of the appellant who was alleged to have been got examined at District Hospital on 20.1.1977 at 1:20 p.m., certified copy of the site plan of cross case (Cross Session Trial No. 275 of 1978 State v. Ram Achal and others) were filed as defence evidence in the trial Court.

Before we proceed further, a look at the evidence of eye-witnesses is necessary. As stated above, Sital Deo Yadav PW-1, first informant, father of the deceased Chandra Shekhar, Rambali PW-2 and Som Dutt Chaube PW-4 were examined as eye-witness in the trial Court.

According to testimony of Sital Deo Yadav PW-1, there was enmity between the accused Ram Surat Yadav and Vikrama Yadav on the one hand and the injured Som Dutt Chaube and PW-1 on the other hand. The houses of the accused Ram Surat Yadav and Vikrama Yadav were one and half furlong away towards the west to the house of PW-1. The house of PW-1, appellant Krishna Kant Chaturvedi and injured Som Dutt Chaube were in the same Mauja Chaubepurwa. One Hubai Yadav who was resident of Pachimpurwa of the same village was murdered three years prior to the instant murder and in the murder of Hubai Yadav, two accused persons Ram Surat and Vikrama Yadav and others were accused and Som Dutt Chaube was a witness. The trial of murder case of Hubai Yadav started in which evidence of eye-witness Som Dutt Chaube was to be recorded and his evidence was not recorded till the date of the present incident. This was the first enmity between the two sides.

The second enmity as deposed by Sital Deo Yadav PW-1 was that two widow ladies Nauranga and Karma had executed sale deed of their houses in favour of the injured witness Som Dutt Chaube, Ram Achal, Yuvraj, Kodai and others though the co-accused Ramakant Chaturvedi (real brother of the appellant) wanted to purchase the property in question. The appellant set up two imposter women and got fictitious sale deed of the property in question subsequently executed. Therefore, Mst. Nauranga and Mst, Karma filed a civil suit for cancellation of the fictitious sale deed which was pending at the time of the present incident between two sides. Due to execution of the aforesaid sale deed, the entire family members of the accused persons including the appellant had become angry with Som Dutt Chaube.

According to evidence of Sital Deo Yadav PW-1, reason for third enmity was that quarrel between Pati Ram servant of the appellant and injured Som Dutt Chaube took place one day earlier to the present incident, because of which the accused Pati Ram had gone to Azamgarh city to call his masters namely appellant and his brother Ramakant Chaturvedi who used to reside at Azamgarh city. On 19.1.1977 around 11:00 p.m., the accused persons Ramakant Chaturvedi, Sita Ram and the appellant came to the village on a motorcycle and PW-1 saw them coming to the village. According to PW-1, on the day of the incident i.e. 20.1.1977 around 7:00 a.m., the deceased Chandra Shekhar was warming at the door of Sri Ram. Sri Ram and Tilakdhari were also present and PW-1 was washing his face at the nearby hand pump at that time. At the same time, all the accused persons, Ramakant Chaturvedi armed with revolver, appellant Krishna Kant Chaturvedi armed with gun, Pati Ram, Ram Surat, Vikrama Yadav, Ram Samujh and Rajendra forming unlawful assembly assembled and came at the door of the injured Som Dutt Chaube and started abusing Som Dutt and started pelting brickbats. The deceased Chandra Shekhar and other villagers went at the spot when the accused Ramakant Chaturvedi and appellant Krishna Kant Chaturvedi fired with their respective firearms namely revolver and gun respectively. The fire shots hit Chandra Shekhar who fell down in the western Sahan near Mahua tree and died at the spot. This incident was witnessed by Rambali, Sri Ram, Tilakdhari, injured Ram Garib, Som Dutt Chaube and other villagers. PW-1 also reached at the spot and saw that Ram Garib and Som Dutt Chaube also sustained injuries in the said incident. Several broken brickbats were lying at the place of the incident. On query of PW-1, other persons assembled at the spot told him about the incident. Thereafter PW-1 wrote report Ext. Ka-5 of the incident and took dead body of his son at Police Station Ahiraula and handed it over at Police Station. Inquest on the dead body of Chandra Shekhar was conducted at Police Station and inquest report Ext. Ka-6 was prepared. PW-1 was interrogated by Investigating Officer at the Police Station.

Rambali PW-2 is eye-witness of the incident. He also corroborated the prosecution story as narrated by PW-1 in his promptly lodged first information report and also in his evidence at trial. According to testimony of Rambali PW-2, his house as well as houses of the appellant, first informant and Som Dutt Chaube were in the same Chuabewala Purwa. On the day of the incident at 7:00 a.m., PW-2 was cleaning his drainage for irrigating his field from tubewell of the injured Som Dutt Chaube when he heard hue and cry, he reached the place of the incident where all the eight accused persons including appellant Krishna Kant Chaturvedi armed with gun and the accused Ramakant Chaturvedi armed with revolver and remaining accused persons holding brickbats etc. were present. The deceased Chandra Shekhar, Sri Ram, Tilakdhari and injured Ram Garib were also present at that place where Som Dutt Chaube was standing. Some quarrel between the accused persons and Som Dutt Chaube took place when the accused persons were hurling brickbats at Som Dutt Chaubey. The appellant and his brother Ramakant Chaturvedi fired shots from gun and revolver respectively and fire shots hit the deceased Chandra Shekhar resulting in his instantaneous death. Som Dutt Chaube and Ram Garib were also injured in the same incident. PW-2 was also interrogated by the Investigating Officer and his statement u/s 161, Cr. P.C. was recorded.

Chanai PW-3 who is real brother of PW-1 repeated the same story as narrated by PW-1 in the trial Court. According to testimony of PW-3, house of the appellant, first informant and witnesses were in the same hamlet of village Hamidpur. PW-3 is witness of taking blood stained earth from the place of the incident vide Ext. Ka-6, brickbats from place of the incident vide Ext. Ka-7, Tikali from the place of the incident vide Ext. Ka-8 by the Investigating Officer.

Som Dutt Chaube PW-4 is the injured eye-witness. He corroborated the prosecution story and deposed about enmity with the appellant on account of purchasing of house of Mst. Nauranga and Mst. Karma. According to testimony of PW 4, these two widow ladies filed civil suit against the appellant Krishna Kant Chaturvedi and his family members for cancellation of the fictitious sale deed alleged to have been got executed by the appellant Krishna Kant Chaturvedi. PW-4 clearly deposed that the appellant fired at him but incidentally he escaped fire shots and fire shots hit the deceased Chandra Shekhar who fell down and died at the spot. PW-4 was also hit by some brickbats hurled by the accused persons and the injured Ram Garib was also hit by some pellets in his chest. This injured witness narrated the whole story to PW-1 Sital Deo Yadav who had immediately reached the spot. According to testimony of this injured witness, he was medically examined by the doctor and the said incident took place in his eastern Sahan where he was feeding fodder to his cattle.

The prosecution in its documentary evidence also filed certified copy of the plaint of the civil suit instituted by Mst. Nauranga and Mst. Karma against the appellant Krishna Kant Chaturvedi and others for cancellation of the alleged deed dated 4.6.1976 alleging that two imposters (ladies) were set up by the appellant, fictitious and fake sale deed was got prepared by the appellant. The civil suit was filed on 20.7.1976. All these contents find place in the certified copy of the plaint Ext. Ka-1 filed by the prosecution. The prosecution also filed the certified copy of the application (Ext. Ka-2) dated 5.1.1977 moved by Mst. Nauranga and Mst. Karma in the civil Court alleging that they had legally and properly executed the sale deed of their property on 24.12.1976 and prayed for impleadment of Som Dutt Chaube and others as plaintiffs. The prosecution also filed the certified copy of the written statement of the appellant (Ext. Ka-3), certified copy of the application of the defendant-appellant Krishna Kant Chaturvedi (Ext. Ka-4) alleging that original sale deed executed in his favour had lost from a bag when he was going to see fair in his village. Thus, the appellant failed to file original sale deed allegedly executed in his favour by the aforesaid two widow ladies in the civil Court.

Learned counsel for the appellant raised the following contentions before us:

(i) that motive of crime has not been established;

(ii) that the appellant exercised his right of private defence of his person and property. According to the cross version, as set up by the appellant, he fired from his licenced gun from inside his house when he apprehended danger to his life and property at the hands of the mob comprising of thirty miscreants including the deceased and both injured persons namely Som Dutt Chaube and Ram Garib. The place of the incident was situated inside enclosure of the appellant, Som Dutt Chaube and his group members comprising of thirty per-sons allegedly attacked at the house of the appellant;

(iii) that the prosecution story, cannot be believed because the injured witness Ram Garib and other eye-witnesses Sri Ram, Tilakdhari Yadav were not examined by the prosecution;

(iv) that Sital Deo Yadav PW-1, Rambali PW-2, and Som Dutt Chaube PW-4, being inimical to the appellant, are interested witnesses, they are not reliable and their testimony cannot be acted upon;

(v) that the place of the incident was not near house of the injured Som Dutt Chaube but was inside enclosure/Ahata of the appellant;

(vi) that the first information report was not lodged at 8:30 a.m. by the first informant but was ante timed and was lodged after consultation.

We have seriously and deeply considered the contention of the learned counsel for the appellant about motive. The motive of the crime in this case is well established and proved from the evidence of eye-witnesses including the injured witness. According to the evidence of Sital Deo Yadav PW-1 who is first informant and father of the deceased Chandra Shekhar, there was enmity between the accused on the one hand and the injured Som Dutt Chaube PW-4 and first informant on the other hand. The injured Som Dutt Chaube PW-4 got the sale deed of the property of the two old ladies executed in his favour and the appellant got fictitious sale deed of the same property of those two widow ladies Nauranga and Karma by setting up two imposters women executed subsequently. Thus after execution of the first sale deed in favour of the injured Som Dutt Chaube PW-4, it was the appellant who setting up two imposters women subsequently got fictitious sale deed of the property in question executed in his favour putting the title of ownership of the injured PW-4 in clouds and the same resulted into filing of the civil suit for cancellation of the fictitious sale deed in the civil Court by those two widow ladies Mst. Nauranga and Mst. Karma in which they prayed for impleading the injured PW-4 as plaintiff. There was old enmity between the parties prior to the present incident including criminal litigation. All these facts find place in the evidence of Sital Deo Yadav PW-1 mentioned hereinabove. Thus there was sufficient motive for the appellant to commit the said murder besides injuring two persons including PW-4. This is a case based on direct evidence and in such a case, motive pales into insignificance.

Hon''ble Supreme Court in the case of Gosu Jairami Reddy and Another Vs. State of A.P., has recently observed in paragraph No. 13 that it is settled by a series of decisions of the Apex Court that in cases based on eye-witness account of the incident proof or absence of a motive is not of any significant consequence. If a motive is proved it supports the prosecution version. But existence or otherwise of a motive plays a significant role in cases based on circumstantial evidence.

In the present case, the prosecution examined Sital Deo Yadav PW-1, first informant, father of the deceased Chandra Shekhar, Rambali PW-2, Chanai PW-3 and Som Dutt Chaube PW-4 in support of its case that the deceased was done to death by the appellant by way of making fire shots from his licenced gun. The presence of these eye-witnesses including the injured witnesses on the date, time and place of the incident is fully established and proved from their evidence as recorded in the trial Court. The eye-witness account is further corroborated by medical evidence. Thus the motive has been established by evidence of the prosecution witnesses and the contention of the learned counsel for the appellant regarding absence of motive fails.

Hon''ble Supreme Court in the case of Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, had observed regarding motive that proof of motive satisfies the judicial mind about the likelihood of the authorship but its absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient. Motives of men are often subjective, submerged and unamenable to easy proof that Courts have to go without clear evidence thereon if other clinching evidence exists.

Hon''ble Supreme Court in the case of Atmaram and Others Vs. State of Madhya Pradesh, has recently observed that the motive for commission of the offence which, of course, is not an essential but is a relevant consideration.

Now we consider contention of the learned counsel for the appellant in respect of the theory of exercise of right of private defence of person and property as set up by appellant through cross version. According to the cross version set up by the appellant that he fired from his licenced gun from inside his house on apprehending danger to his life and property at the hands of the mob comprising of thirty miscreants including the deceased Chandra Shekhar and both injured Som Dutt Chaube and Ram Garib. The place of the incident was situated inside enclosure of the appellant when the appellant was attacked by mob of thirty miscreants including the deceased and both the injured persons. The same theory was stated by the appellant in his statement recorded u/s 313, Cr.P.C.

We have pondered again and again over statement of the appellant u/s 313, Cr.P.C. and the theory of exercise of right of private defence by him but the same appears to be totally false, incredible, unnatural and unreliable in the facts and circumstances of the case in hand. According to the appellant, on the date of the incident around 6:00 a.m., PW-4 armed with gun, Sri Ram Chandra Shekhar each armed with addhi along with other twenty seven persons holding lathis and spears came at the door of the appellant and entered into courtyard/enclosure of his house after having demolished the wall and started firing and looting. The appellant along with his servants entered inside his house while his two relatives who were already inside the house entered into the adjacent room of the house, then the appellant closed door of his house from inside and when mob of thirty miscreants in order to commit dacoity at the house of the appellant started breaking open his door, the appellant sensing immediate danger to his life took his gun, which was already placed inside the same room, in which the appellant closed himself by locking the same from inside and fired with his gun from inside room of the house. As a result of firing made by the appellant with his gun, mob dispersed immediately from there.

The appellant in his statement u/s 313, Cr.P.C. did not clearly state that shots fired by the appellant hit the deceased causing his instantaneous death. The appellant made a futile attempt in pleading his right of private defence. He could not dare to clearly state that shots fired by him from his licenced gun hit the deceased, which caused fatal injuries to the deceased resulting into his immediate death. He simply staled that after he made firing with his gun from inside his house, mob comprising of thirty persons and other crowd assembled, immediately dispersed from there and when the appellant came out of his house and wanted to go to Police Station Ahiraula to lodge the first information report, he saw members of that mob blocking the way to Police Station Ahiraula. It is again surprising that mob of thirty persons in which four persons armed with firearms and other were armed with lathi and spears attacked the house of the appellant and the appellant was escaped unhurt and the mob easily got dispersed just on the firing made by the appellant with his licenced gun that too from inside a closed room.

According to the appellant, some hole was caused in the wall of the room by mob while damaging some part thereof, through that hole, the appellant fired shots from his gun. If this theory as set up by the appellant is taken into consideration that the deceased Chandra Shekhar who is said to be a member of that mob of thirty persons and armed with firearm, sustained as many as seven gun shot wounds and one lacerated wound, out of the seven gun shot wounds, three were entry wounds and three were exist wounds and one gun shot wound of size 1 cm x 1/2 cm x muscle deep on the left side of the neck in front, 4 cm above the left clavicle from middle was through and through trachea, so many gun shots could not have been fired by the appellant from the above stated hole made inside the wall. No person will remain standing just to receive gun shots and allow himself to be killed in such simple way particularly when he was also armed with firearm. The appellant did not like to adduce any kind of evidence in support of the alleged exercise of right of private defence. Thus evidence on record clearly falsifies theory of right of private defence by the appellant.

The appellant Krishna Kant Chaturvedi aged about 20 years was examined on 20.1.1977 at 1:20 p.m. by the Medical Officer, Emergency Duty, District Hospital Azamgarh, who found the following injuries on his person:

(i) Complaint of pain left upper arm but no mark of injury detected.

(ii) Complaint of pain body but no mark of injury detected.

(iii) Abrasion (triangular in shape) 1/2 cm x 1/2 cm on palmer aspect of left middle finger near its tip.

According to the opinion of the doctor, injury was simple caused by friction. Duration fresh.

Hon''ble Supreme Court in the case of Mano Dutt and Another Vs. State of U.P., has recently observed in paragraph No. 16 thereof that when a person claims exercise of private self-defence, the onus lies on him to show that there were circumstances and occasions for exercising such a right. In other words, these basic facts must be established by the accused. Just because one circumstance exists amongst the various factors, which appears to favour the person claiming right of self-defence, does not mean that he gets the right to cause the death of the other person. Even the right of self defence has to be exercised directly in proportion to the extent of aggression.

Hon''ble Supreme Court in the case of Arjun Vs. State of Maharashtra, in paragraph Nos. 22 to 26 observed which read as follows:

(xxii) The law clearly spells out that the right of private defence is available only when there is a reasonable apprehension of receiving injury. Section 99, IPC explains that the injury which is inflicted by a person exercising the right should commensurate with the injury with which he is threatened. True, that the accused need not prove the existence of the right of private defence beyond reasonable doubt and it is enough for him to show as in a civil case that preponderance of probabilities is in favour of his plea. The right of private defence cannot be used to do away with a wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence.

(xxiii) It is for the accused claiming the right of private defence to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution, if a plea of private defence is raised. ( Munshi Ram and Others Vs. Delhi Administration, , State of Gujarat Vs. Bai Fatima and Another, , State of U.P. Vs. Mohammad Musheer Khan and Others, , Mohinder Pal Jolly Vs. State of Punjab, and Salim Zia Vs. State of Uttar Pradesh, .

(xxiv) A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and moral injury on the aggressor. In order to find out whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting.

(xxv) Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property of the person exercising the right or of any other person, and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to the property.

(xxvi) Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To plea a right of private defence extending to voluntarily causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him.

In the case in hand, the appellant only claimed the right of private defence but failed to place necessary material on record either by himself adducing positive evidence or by eliciting any necessary facts from the witness examined by the prosecution. He only raised plea of right of private defence without any justification of exercise thereof. There was no reasonable apprehension of receiving any injury by the appellant and right of private defence was not available to him. There was no reasonable apprehension of death or grievous hurt to the appellant. There was property dispute between rival parties and in the assault, the appellant caused death of the deceased Chandra Shekhar besides pellet injury on chest to non-examined injured witness Ram Garib.

The third contention of the learned counsel for the appellant is that the prosecution story cannot be believed because another injured witness Ram Garib and other independent eye-witnesses were not examined by the prosecution. This contention has no legs to stand.

Hon''ble Supreme Court in the case of Gosu Jairami Reddy and Another Vs. State of A.P., in paragraph No. 31 thereof has observed that:

31....it is well-settled that every witness that the prosecution may have listed in the charge-sheet need not be examined. It is entirely in the discretion of the Public Prosecutor to decide as to how he proposes to establish his case and which of the listed witnesses are essential for unfolding the prosecution story. Simply because more than one witnesses have been cited to establish the very same fact is no reason why the prosecution must examine all of them. The prosecution in the present case examined three eye-witnesses to prove the incident in question. There was no particular fact that could be proved only by the deposition of the driver and not by other witnesses, That Shanker was the driver of the vehicle at the relevant time, and that he reversed the vehicle and parked it facing the gate, were facts regarding which each one of the occupants of the vehicle was a competent witness. PWs. 1, 2 and 3 have in their depositions testified that the vehicle was parked facing the gate by Shankar driver of the vehicle after reversing the same. So also the non-examination of Hanumantha Reddy does not, in our opinion, make any dent in the prosecution case or render the version given by three eyewitnesses who have supported the prosecution version unworthy of credit. As a matter of fact once the deposition of the eye-witness examined at the trial is accepted as trustworthy the non-examination of other witnesses would become inconsequential. This Court in Nirpal Singh and Others Vs. State of Haryana, stated the principles in the following words:

The real question for determination is not as to what is the effect of non-examination of certain witnesses as the question whether the witnesses examined in Court on sworn testimony should be believed or not. Once the witnesses examined by the prosecution are believed by the Court and the Court comes to the conclusion that their evidence is trustworthy, the non-examination of other witnesses will not affect the credibility of these witnesses. It is not necessary for the prosecution to multiply witnesses after witnessed on the same point. In the instant case, once the evidence of the eye-witnesses is believed, there is an end of the matter.

To the same effect are the decisions of the Apex Court in State of U.P. Vs. Hakim Singh and Others, ; Nandu Rastogi @ Nandji Rastogi and Another Vs. State of Bihar, ; Hem Raj and Others Vs. State of Haryana, ; State of Madhya Pradesh Vs. Dharkole @ Govind Singh and Others, and Raj Narain Singh Vs. State of U.P. and Others, .

Learned AGA has meekly submitted that the injured Ram Garib could be produced but since he received pellet injury on the chest and escaped death in this incident, therefore, he did not appear to depose against the appellant. It is a matter of common knowledge that some people do not want to involve themselves in the dispute of others. It is evident from testimony of PW-1, PW-2 and PW-4 that there were several civil and criminal cases pending between group of the appellant and injured Som Dutt Chaube, therefore, independent person of the village might not have appeared to involve themselves in the group politics of this faction ridden village. Since witnesses Sri Ram and Tilakdhari Yadav were inimical to the accused Ram Surat, their examination would not have added to the quality of the prosecution evidence. From evidence of eyewitnesses including the injured witness PW-4, it is proved that the incident had taken place on the date, time and place of the incident and in the same manner as alleged by the prosecution. The testimonies of these witnesses are creditworthy, natural and reliable and nothing has been elicited from their cross-examination so as to cause any dent in the well proved and established prosecution case.

It would not be out of place to mention here that the appellant Krishna Kant Chaturvedi has not produced any witness of the cross FIR and cross version, strangely neither Pati Ram nor Krishna Kant Chaturvedi lodged any report of the previous day''s incident though firing was also done at the house of the appellant Krishna Kant Chaturvedi on the previous day. The appellant Krishna Kant Chaturvedi was absconding and had not surrendered in the Court, therefore, he could have easily manufactured the marks of firearm shots on his wall within two and half months to create evidence of self defence. This contention of the learned counsel for the appellant is also repelled.

The next contention of the learned counsel for the appellant is that PW-1, PW-2 and PW-4 are interested witnesses, hence they are not reliable and their testimony cannot be acted upon. It is true that Sital Deo Yadav PW-1 is father of the deceased Chandra Shekhar but he is not an eye-witness. PW-1 was some paces away from the place of the occurrence and he rushed to the place of occurrence where his son Chandra Shekhar had reached to hold negotiation to settle the matter. Som Dutt Chaube PW-4 is injured witness and presence of injuries on his person guarantees and establishes his presence on the place of the incident and there is no cogent or sufficient reason to disbelieve or discard his testimony. Likewise, testimony of Rambali PW-2 is also creditworthy and natural. Evidences of these witnesses appear to be truthful, natural and reliable and the same cannot be discarded on the ground of their being interestedness and relative witnesses. Their testimonies required deep and cautious scrutiny which we have undertaken.

On the point of interested witnesses, the Hon''ble Supreme Court in State of U.P. Vs. Jagdeo and Others, observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye-witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence.

In Mst. Dalbir Kaur and Others Vs. State of Punjab, following observations were made:-

(i) Interested witness;-Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon.

The term ''interested'' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other reason. In the reported case the incident took place at mid night inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness.

In Gyasuddin Khan @ Md. Gyasuddin Khan Vs. The State of Bihar, , it was observed by the Hon''ble Apex Court that when accused caused death by firing gun shots, it is not reasonable to expect from the eye-witnesses that the scared eye-witnesses would be able to give a meticulous and precise account of details of shots that landed on the deceased.

Hon''ble Supreme Court in Waman and Others Vs. State of Maharashtra, has observed in paragraph No. 9 which reads as follows:

In Balraje @ Trimbak Vs. State of Maharashtra, , this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.

It has been further observed in Waman and Others Vs. State of Maharashtra, that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives'' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. Vs. Naresh and Others, .

Hon''ble Supreme Court in the case of Waman and Others Vs. State of Maharashtra, has reiterated that if evidence of eye-witnesses is found to be trustworthy and corroborated, certain contradictions minor in nature and not related to major overt act attributed to each accused would not discard their testimony more so when all prosecution witnesses, hailing from agricultural family and are villagers, cannot be expected to state minute details in their earlier statements and before Court.

The, contention of the learned counsel for the appellant that place of the incident was not near the house of the injured PW-4 but was enclosure/Ahata of the appellant is also not acceptable. As discussed above, the incident in question took place on the date, time, place and in the manner as alleged by the prosecution and proved by evidence of the eyewitnesses.

The last contention of the learned counsel for the appellant is that the first information report was ante timed and lodged after consultation. The incident in question occurred on 20.1.1977 at 7:00 a.m., the first information report thereof was lodged on the same day within one and half hour after covering a distance of five miles by Sital Deo Yadav PW-1 (father of the deceased Chandra Shekhar). The first information report discloses old enmity, sufficient motive, date, time, place of the incident, name of the accused persons, firearms used by them and role played by each of them. Sital Deo Yadav PW-1 in his evidence deposed just one sentence that he had given report at Police Station Ahiraula before execution of Panchayatnama. Panchayatnama commenced at 9:00 a.m. and ended at 11:30 a.m. If this village witness stated that he had given the written report of the incident about 3 to 5 minutes before completion of Panchayatnama, no valid inference can be drawn to the effect that he really meant to say that the first information report was lodged at 11:30 a.m. The first information report was lodged within one and half hour of the incident of murder by father of the deceased. The first information report is quite prompt and detailed one excluding every chance of embellishment, exaggeration or any kind of consultation or deliberation. The investigation was promptly commenced and statements of the eye-witnesses were also recorded promptly by the Investigation Officer who found Tikali etc. at the spot during spot inspection.

Hon''ble Supreme Court in the case of Jai Prakash Singh Vs. State of Bihar and Another etc., has observed that the FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant''s version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question.

After carefully analyzing the aforesaid evidence and discussing the same, we agree with the findings recorded by the learned trial Judge in the impugned judgment. There is no reason to deviate or distract from the findings recorded by the learned trial Judge. The instant appeal has no merit and is, accordingly, dismissed.

Since the appeal is dismissed, the bail bonds and surety bonds of the appellant are cancelled. The appellant Krishna Kant Chaturvedi is directed to surrender before the trial court immediately to serve out the remaining part of the sentence awarded to him. If he fails to surrender, the trial Court is directed to get the appellant Krishna Kant Chaturvedi arrested and send him to jail for serving out the remaining part of the sentence awarded by the trial Court by means of the impugned judgment and order dated 11.8.1981. Let a copy of this order be sent to the trial Court forthwith for compliance.