- (1.) K. Narayan, J. Yasin and Sabir both sons of Mohammad Ibrahim were tried on charge under Section 302/34, I. P. C. , by the Sessions Judge, Moradabad and by a judgment and order dated 11-7-1979, have been convict ed and sentenced to imprisonment for life under the above said section.
(2.) THE charge related to an occurrence of about 4. 45 p. m. on 30-9-77 in mohalla Pakka Bagh, Police Station Kotwali, Moradabad, in which one Mohammad Umar was done to death with knife injuries. THEre is no dispute that the decased was a man of bad anticidents and may bevery hot blooded. THE prosecution contention has been that in the earlier part of 30-9-1977, there was some exchange of hot words and the deceased had given few slaps to Mohammad Ibrahim, the father of the accused. After about two hours of this incident the two accused came to the house of deceased and with an ostentation that the differences be patched up as Ibrahim was after all an old aged gentleman, respectable for all. With the pretext of the above nature the deceased was taken with them. In the same evening at about 5. 00 p. m. Mohammad Yusuf, the father of the deceased was informed by Abdul Wahid and Abdul Gaffur about the deadly assault upon the person of Mohmmad Umar. THE communication was summoned in the form the Yasin and Sabir had assaulted Mohammad Umar with knife and he was lying dead. Mohammad Yusuf went to the spot and after seeing his son dead, got the report written by Abdul Qamar, and went to the police station to lodge the same. THE first information report is shown to have been lodged at 18. 30 hours on 30-9-77. The Investigation is said to have proceeded in ususaf manner. The cace was registered at Rapat No. 32 of the G. D. by PW 8 Sri Ram Prakash Sharma. The Investigation was handed over to Sri Vijai Bahadur Singh, Sub-Inspector (PW 6) while at the same time, another Sub-Inspector of police Sri Prabhu Singh was directed to conduct the inquest upon the body of Moham mad Umar. PW 7 Shyam Narayan Singh, Sub-Inspector the Station Officer, had taken up the investigation at the last stages and submitted the charge-sheet. The post-mortem examination on the body of the deceased was con ducted by PW 1 Dr. Ramesh Chandra. In addition to the above said evidence the prosecution had examined FW 2. Mohammad Yusuf, the father of the deceased who had lodged the first infoimation report. He had also stated that the deceased had gone with the accused a few hours before the death and for this fact he has been corroborated by PW 5 Bashir Ahmad. This aspect does not seem to have been challenged in the cross- examination although as a matter of fact both the facts i. e. the alleged occurrence between deceased and Mohammad Ibrahim and ostentiate taking of the deceased by the accused were denied by them in the examination under Section 313, Cr. P. C. Be that whatever it may, the first part is not material now, as it could be only an evidence of motive which loses its value when there is occular evidence and the second could only be a form of circum stantial evidence which could lend support to the story of prosectution. In the given circumstances of the case, these facts as proved do not contradict the case of prosecution.
(3.) LEARNED counsel for the appellant has assailed the evidence of the prosecution on three main grounds. His effort has been to show that the first information report was not lodged at time shown, the witnesses PW 3. Chhotey, and PW 4, Sri Abdul Wahid, were in tact got up witnesses and had not seen the occurrence and were partisan. The testimony of PW 3, Chhotey and PW 4, Abdul Wahid has been assailed by the learned counsel for the appellant here with the contention that it has contradicted the first information report where both accused were said to have caused injuries by knife. The language employed in the first infor mation report has been "ibrahim ke ladko Yasin and Shabir ne Chakuo se Pakke Bagh main Mohammad Umar ko mara hai. " Firstly this in my opinion is no difference much less a contradiction or any improvement. The worst blame that can be put for the two is that the first information report did not give the detail, which has been given in the statement of the witness and that is nowhere the requirement of law. Apart from this, the fact also remains that the first information in this case was lodged by a person who was himself conveyed something by the eye-witnesses and who had then conveyed the facts to the scribe. It is an ordinary saying that a tale twice told is tale altered and the cases of the present nature where the person receiving and reconveying the tale, may be even the persons who were conveying it in the first instance, all had a shock, though verying in degree due to a murder in cold blood, and that too of a son. This mental state of a person cannot be divorced while weighing his evidence. The evidence of the witnesses can be appreciated with an imagination of their feelings at that time and not by application of principles and standards of an author of prose, who is expected to have thought twice in the use of every word at proper place. This presum ptive approach towards the evidence is expected with the application of Section 114 of the Evidence Act and for behaving like a man of ordinary prudence to come to the conclusion of 'proved' as defined in the Act.;