D.V. Sharma, J. - (1.) All these appeals arise out of the same judgment and order dated 30.9.1981 rendered by IIIrd Additional Judge Unnao, in S.T. No. 311 of 1980 State v. Om Prakash and four others , where by all the five accused-appellants have been convicted under sections 148 and 395, I.P.C. and sentenced them to undergo 2 years' and 7 years' R.I. respectively; accused Kishan has further been convicted under section 302, I.P.C. simpliciter and rest of the accused under section 302/149, I.P.C. and all of them have been sentenced to imprisonment of life, accused Om Parkash and Raj Kumar have further been convicted under section 307, I.P.C. and sentenced to undergo 10 years' R.I. and accused Khinna, Matai and Kishan have further been convicted under section 307/149, I.P.C. and sentenced to undergo 7 years' R.I. All the sentence have been ordered to run concurrently. Factual matrix is as under : According to the prosecution case, accused Om Parkash and Raj Kumar having shabby antecedents used to indulge in thefts and dacoities. Accused Om Parkash was arrested in a dacoity case prior to this incident and gathered impression as if information with regard to it was given by the complainant. On release from jail, he threatened the complainant to teach a lesson. Harbouring ill-will on 18.3.1980 at about 8.00 p.m. while Bhikha, the father of the complainant was warning himself by bonfire, known as tapta along with Shyam Lal, Chandika, Ram Bhajan and Hemraj under a Peepal tree and complainant was sitting on the roof of his house along with Shatrughan and Sardar, who had adjacent roofs and the wife of the complainant was taking her food inside the kitchen, where a lamp was burning, accused Om Prakash, Raj Kumar Matai and Khinna along with two other persons came near his father. They were identified in the light of the woodfire and by voice. All of them were armed with unauthorized half guns and country made pistols and had torches in their hands. The accused Om Prakash and Raj Kumar fired at Bhikha, who sustained firearm injuries. The complainant along with Shyam Lal, Ram Bhajan and Hemraj raised alarm and tried to escape but accused Kishan followed Shyam Lal and as soon as he reached near the house of Gajodhar, he fired at him causing injuries on his chest and thereafter all of them came back to the door of the complainant. Five of them entered the house of the complainant with intention to commit dacoity and in furtherance of the common object by sealing down the eastern wall of his house and broke one the lock of the door. They began to loot the booty inside the house including utensils, ornaments and clothes. The complainant jumped from the roof of his house and went in the village raising alarm, which attracted Lekhaj, Jagnu and others on the scene of occurrence. On being challenged the accused persons managed to escape. Due to fear the complainant did not go to the police station in the night and started in the morning along with Shyam Lal and his father Bhikha. Shyam Lal succumbed to his injuries near Ranibagh. The complainant lodged the F.I.R. on 19.3.1980 at 8.00 a.m. at P.S. Asiwan, district-Unnao lying at a distance of about 10 Kms., on the basis of which a case under section 396, I.P.C. was registered and the investigation followed Bhikha was sent for medical examination as his condition was precarious. Thereafter the Investigating Officer proceeded to the place where the dead body of Shyam Lal was lying near the wood-stall of Shambhu. The inquest report was prepared and after preparing necessary papers in connection with postmortem sent the dead body to the mortuary. The Investigating Officer recorded the statement of the witnesses, examined the torches of the witnesses which were found in working order. He also examined kuppy which was burning inside the house of the complainant. He took the blood stained and simple earth from the place of occurrence. He also found an empty cartridge and its cork along with 32 led shots near the Chabutra where the Tapia was burning. He also inspected the place of occurrence and with the help of the witnesses prepared the site-plan Ext. Ka16. After completion due investigation, the police submitted a charge-sheet Ext. Ka-27.
(2.) Injured Bhikha was medically examined by Dr. V.K. Bhatia P.W. 1 who found two gun shot wounds of entry, one on the left and auxiliary line, 11 cms. below left axilla, and the other over ulner side, palmer aspect of the right hand below the base of right little finger respectively. Laceration and tattooing were present around the wounds. He also found a gun shot wound of exit over radial side of dorsum of right wrist and lenier abrasion in front of right shoulder. His injury report is Ext. Ka-1. In the opinion of the doctor, gun shot injuries were grievous and could have been caused at the time of incident. He also opined that gun shot wounds could be caused by firearm and levier abrasion could be caused by fall. Complainant Pyare Lal was also medically examined by Dr. Satya Prakash P.W. 2 on the same day, who found an abrasion in an area of 10 cm. x 2 cm. involving medial side of lower and upper part of left thigh. He prepared the injury report Ext. Ka-2. According to the doctor, this injury could be caused by friction. Dr. S.M. Tripathi P.W. 5 conducted the autopsy on the cadaver of Shyam Lal and found the following ante- mortem injuries on his person : 1. Abrasion 1/4" x 1/2" on the front and middle of right arm. 2. Abrasion 1/4" x 1/4" on the back of right elbow. 3. Abrasion 1 1/2" x 1/2" on the right hand at the root of pointing finger. 4. Circular firearm wound of entry on right side chest, 1 1/4" in diameter, 1 1/4" medial to right nipple, direction from forward to back- ward medially. Margins were inverted and blackening and charring were present around the wound. The prosecution in support of its case, examined Dr. V.K. Bhatia P.W. 1, Dr. Satya Prakash P.W. 2, Pyare Lal the complainant P.W. 3, injured Bhikha, father of the complainant P.W. 4, Dr. S.M. Tripathi P.W. 5, Constable Mohd. Mustafa P.W. 6, Smt. Rajpati, wife of the complainant P.W. 7 and S.I., Shiv Lakhan Singh P.W. 8, who conducted the investigation. Out of them P.W. 3 Pyare Lal, P.W. 4 Bhikha and P.W. 7 Smt. Rajpati are the witnesses of fact and rest are formal ones. The accused persons pleaded not guilty and claimed to be tried. They stated in their statements under section 313, Criminal Procedure Code that they have been implicated falsely on account of enmity. They have, however, not adduced any oral evidence in defence, but filed three papers marked as Exts. Kha-1 to Kha-3 showing litigation under section 107, Criminal Procedure Code between them. Learned Trial Court after considering the entire evidence on record and hearing arguments of both the parties, came to the conclusion that the prosecution has been successful in bringing home the guilt of the accused persons, consequently, it convicted and sentenced them as mentioned above. Feeling aggrieved of the aforesaid order of conviction and sentences the appellants have preferred these appeals on the following grounds : 1. The appellants have been falsely implicated due to enmity. 2. It is amply borne out from the record that because of paucity of light the alleged eye-witnesses had no opportunity of recognising the assailants. 3. Non-production of any independent witness in the instant case makes the prosecution story unbelievable. 4. The investigation in this case is highly tainted and does not inspire confidence. During pendency of the appeal, appellant No. 1, Khinna @ Sukhdeo and appellant No. 3 Matai of Criminal Appeal No. 797 of 1981 have died, hence their appeals stands. abated. Consequently, Criminal Appeal No. 241 of 1982 filed by Matai through jail also stands abated. We have heard the learned Counsel for the parties and perused the entire record carefully. On reappraisal of evidence on record, we find that the factum of the dacoity and the fact that at the time of incident Bhikha suffered injuries and Shyam Lal was murdered, has not been denied; rather it has been conceded by the learned Counsel for the defence at the time of arguments before the Trial Court as indicated in paragraph 9 of the judgment of the Trial Court.
(3.) The F.I.R. version regarding date, time and place is fully supported by the ocular evidence of constable Mohd. Mustafa P.W. 6, who had prepared the check report on the basis of written report and entered the case in the general diary, S.I. Sheo Lakhan Singh, who investigated the case, prepared the inquest report, site-plan of the place of occurrence and found empty cartridges, its cork and wads at the places where Bhikha sustained injuries and Shyam Lal was fired. The injury reports of Bhikha P.W. 4 prepared by Dr. V.K. Bhatia, complainant Piyare Lal P.W. 3, prepare by Dr. Satya Prakash and the postmortem report of deceased Shyam Lal, prepared by Dr. S.M. Tripathi, fully established the date, time and manner of occurrence. It is also relevant to mention that these doctors have not been cross-examined at all by the defence. F.I.R. in a criminal case and particularly in murder case is vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial, The object of insisting upon prompt lodging of the F.I.R. is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye- witnesses. The occurrence in this case is said to have taken place at 8.00 p.m. on 18.3.1980 and the F.I.R. was lodged at police station Asiwan, lying at a distance of about 10 kilometers, in the next morning at 8.00 a.m. containing full details of occurrence, naming actual culprits and parts played by them as well as the weapons used and names of the witnesses. Since it was a dark night, it was quite natural for the complainant not to proceed in the dreadful night while two persons were seriously injured and their condition was precarious, due to which one of them, namely Shyam Lal subsequently succumbed. Consequently, it cannot be said that the F.I.R. was lodged with undue delay and there was no question of embellishment, deliberation or consultation and there was no question of ante-timing. The appellants failed to demonstrate as to how the genuineness of the check report, which gives strength to the prosecution version, should be viewed with suspicion. On the contrary, the genuineness of the first information report can not be brushed aside in the given circumstances. The F.I.R. transpires that the prosecution has come with actual version before the Court and not with jaundice eyes. Thus, the reliance can be placed upon it. ;