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Criminal Trial - Murder of Fratricide & Nepolicide i.e. Killing of Brother & Nephew [CASE LAW]

Penal Code, 1860 - Section 302 - Murder of fratricide and nepolicide i.e. killing of his brother and nephew - Conviction can be based on the testimony of the single witness where it was straight forward.

FIR is not ante-time because no witness can give the explanation of minute to minute time which he spent in the journey specially when the complainant is 16 years old boy and he is educated only up to the class VIth and his father and elder brother have been murdered in his presence.
Evidence Law - Medical Evidence - Time of Incident - The medical evidence qua the food found in the stomach of the two deceased person cannot be made determinative factor regarding time of incident. state of contents of stomach found at the time of medical examination is not a safe guide for determining the time of occurrence. Process of digestion depends upon the nature of food which not being in uniformity varies from individual to individual.
Evidence Law - The presence of the eye witnesses cannot be doubted or suspected merely they are related to the deceased or on account of minor variation or aberration from the prosecution version. 
The utterances have consistently and umpteen times been repeated by the witnesses who had narrated and unfolded the incident in a very natural and articulatory manner. The overt act of the accused appellant at the relevant moment is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt of the accused appellant within all human probability the act has been done by the accused appellant. The manner in which the victim was done to death with lathi and axe has portrayed very inhuman and gruesome state of mind of the accused appellant. The occurrence is fully supported by the testimony of eye witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion.
Court cannot reject their evidence merely because they behaved or reacted in an unusual manner as they either become stunned, speechless or stood rooted on the spot. 
Some of the witnesses becomes hysteric and stars moaning and bewailing shouting for help. Some would remain tight lipped ,overawed either on account of the antecedents of the accused or threats given by him. To discard the evidence of the witnesses on the ground that they did not react in any particular manner would result to shield the culprit.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Naheed Ara Moonis & Ifaqat Ali Khan, JJ.
CRIMINAL APPEAL No. 2054 of 2000
18/01/2019
Brij Kishor v. State of U.P.
Counsel for Appellant :- M.A.Mishra,D.B. Yadav,Manish Tewari,S.N. Yadav,Satish Trivedi,Shesh Nath Yadav,V.C. Tewari
Counsel for Respondent :- D.G.A.
Ifaqat Ali Khan, J.
The instant criminal appeal has been preferred on behalf of the appellant Brij Kishor, against the impugned judgment and order dated 28.07.2000 passed by VIth Additional District and Sessions Judge, Banda in Session Trial No. 41/98 (State vs. Brij Kishor) arising out of Case Crime No. 51 of 1997 under section 302 IPC, Police Station Kalinzer, District- Banda whereby the appellant has been convicted and sentenced to undergo life imprisonment for the offence punishable under section 302 IPC with the fine of Rs. 20,000/-. In default of payment of fine, the appellant was further directed to undergo additional rigorous imprisonment for three years.
The appellant is involved in double murder of fratricide and nepolicide i.e. killing of his brother and nephew.The emanation of the facts emerging from the prosecution in a short conspectus is that the deceased Rajol is the father and the deceased Raj Kishore is the brother of the complainant Awadh Kishor P.W.1. The complainant lodged an FIR on 12.11.1997 at about 19:30 hours at the police station Kalinjer with respect to the incident taken place on the same day at about 5 to 5.30 p.m. vide Case Crime No. 51 of 1997 under section 302 IPC, Police Station Kalinzer, District- Banda with the accusations that the complainant Awadh Kishore s/o Rajolis the resident of village Barua, Police Station- Kalinjer . On the fateful day on 12.11.1997, the complainant, his younger brother, Lakhan and his father Rajol Prasad were looking after the tomato crops sown in the field at Gojawar Har. The father of the complainant was sitting adjacent to the demarcating line of the field. The complainant and his brother were doing work in the field. At about 05:00 p.m his uncle Brij Kishor equipped with an axe and lathi reached contiguous to the father of the complainant and jolted him. His father stumbled, then the accused appellant Brij Kishor assaulted him with axe and exposed that Rajol used to demand share in the land. The father of the complainant wriggled on account of blows inflicted on his neck with axe and succumbed to death . Subsequent thereto, his uncle (Brij Kishore) exposed that now he would liquidate to Raj Kishor and ran speedily towards Marwa Har where his brother (Raj Kishor) and mother (Laxmi w/o Rajol P.W.2) were sowing the seed of masoor in the field. When Brij Kishor (appellant) reached adjacent to Marwahar , on the shrill and alarm of the complainant and others, the brother of the complainant namely Raj Kishore ensued running leaving the plough in the field. His uncle Brij Kishor (appellant) chased him rapidly and attacked upon him with lathi and axe in the field of Bullarey as a sequel of which Raj Kishore succumbed to injuries. On the shriek and alarm of Bullarey, Brij Kishor (appellant) jostled him andsucceeded in running away towards the village. The accused Brijkishore was nurturing animus and grudge against his father and brother on the issue of division of land as a consequence thereof, the accused appellant took drastic step of eliminating them . The corpse of both the deceased namely Rajol Prasad and Rajkishore were lying on the spot in the vigil of family members. The complainant in association with others went at the police station concern to lodge the first information report. On the basis of written complaint of the complainant, the first information report was lodged at the Police Station Kalinjer Ext.Ka.5. The case was duly registered and its entry was made in the G.D. By the head constable Dinesh Kumar P.W.5.
After registration of the case, the investigation of the case was entrusted to the Station Officer, Satyaram who recorded the statement of Head Moharrir.
Investigating Officer, Satyaram (P.W.6) in association with two constables proceeded towards the place of occurrence. The investigating officer recorded the statement of the complainant as well as witnesses. On 13.11.1997, the investigating officer made spot inspection and prepared the Panchayatnama of the deceased Rajol Prasad vide Ext.Ka.7. He kept plain and blood stained earth in two separate containers vide Ext.Ka.8. The corpse of Rajol Prasad was entrusted to the constables under seal. Thereafter he reached at the place of occurrence of Rajkishore (deceased) and prepared the Panchayatnama vide Ext. Ka.10. He prepared the site plan of the place of occurrence and also took plain and the blood stained soil in two separate containers and prepared the recovery memo Ext.Ka.9. The dead body of Rajkishore was sealed and was placed in the cot beside the corpse of Rajol Prasad. The investigating officer prepared the challan lash, photo nash, sample seal, letter to Chief Medical Officer in respect to both the dead body . He handed over the corpse of Rajol Prasad and Raj Kishore to the constables Bhuwneswar and Chandrapal Mishra,separately for getting their autopsy done which were marked as Ext. Ka.11 to Ka.21. He prepared the site plan and also recorded the statement of the witnesses separately with respect to deceased Rajkishore and Rajol Prasad.
On 19.11.1997 the police personnel arrested accused-appellant Brij Kishore.
The axe used in the commission of the crime was recovered at the pointing of the accused appellant and the recovery memo was duly prepared vide Exhibit- Ka 23. The site plan of the recovery memo qua the axe was prepared and marked as Ext. Ka 24. Thereafter the investigation was taken over by Sri K. S. Sinha, Station Officer Kalinjar P.W.3. The investigating officer K.S.Sinha recorded the statement of eye witness Smt. Laxmi and witness of recovery memo Bela Prasad and Munim Prasad. The investigating officer collected credible and clinching materials showing the complicity of the accused appellant in the commission of the said offence from the statement of the witnesses as well as the incriminating articles gathered by him during the course of investigation hence he submitted the charge-sheet against the accused appellant under section 302 IPC vide Ext.-Ka 2.
The investigating officer also sent the seized articles to the Chemical Analyst Forensic Lab Agra who submitted its report that human blood was found on the apparels of both the deceased and blood was found disintegrated vide Ext.Ka.29.
The post mortem of deceased Rajol was conducted by Dr. Pramod Kumar (P.W.4) Pathologist, District Hospital Banda on 13.11.1997 at 4.00 p.m. The deceased was found middle aged man of about 45 years average built. Time since death was about one day old. Rigor mortis present on upper and lower limb. Left eye closed. Right eye half opened. Following ante-mortem injuries were found on the person of the deceased Rajol.
I) Incised wound 7 cm x 2.5 cm bone deep on front of neck. 5 cm above from eternal notch. Horizontally placed., on section Right carotid artery cut. Thyroid cartilage cut and esophagus cut. Cervical vertebrae between Vth and VIth cut tailing towards left side (out side).
II) Abrasion 1 cm x 1 cm over top at left shoulder.
III) Contusion 8 cm x 2 cm on back of left side chest over scapula region 2.5 cm above from scapula IV)Contusion 5 cm x 3 cm on right side head 3 cm over the right eyebrow on section right frontal bone fractured. on left side head.
V) Contusion 3 cm x 2 cm on left side head and 7 cm above left ear.
On internal examination Dr. Pramod Kumar found frontal bone fractured in right side head, membrance congested, haematoma on right side brain, both the chambers of heart empty about 500 gms semi-digested food in stomach; small intestine filled with pasty food, large intestine filled with faecal matter and gases.
The doctor opined that the death is due to shock and hemorrhage as a result of ante-mortem injuries.
Further the post mortem of deceased Raj Kishore was conducted by P.W.4 Dr. Pramod Kumar, Pathologist, District Hospital Banda on 13.11.1997 at 5.00 p.m. The deceased was found young man of 21 years average built. Time since death was one day old. Rigor mortis present on upper and lower limbs passed off from neck, eyes and mouth closed. Dried mud present on both lower limbs including both soles ,both hand. Following ante-mortem injuries were found on the person of the deceased Raj Kishore.
I) Lacerated wound 2 cm x 2 cm x skull deep on left side head 7 cm behind left ear.
ii) Lacerated wound 4 cm x 2 cm x bone deep on left of head 6 cm below injury no (1).
iii) Abraded contusion on 7 cm x 4 cm on left side of neck below lobule of left ear.
iv) Abraded contusion 8 cm x 2 cm on dorsum of left hand and wrist.
v) Contusion 5 cm x2 cm on dorsum of right hand in the middle.
vi) Abraded contusion 11 cm x 2 cm on back of left shoulder, 5 cm below top of left shoulder.
Vii) Contusion on 4 cm x 2 cm on back of right side of chest over scapulan region 3 cm above inferior angle of left scapula.
On internal examination left parietal and left occipital fractured. Subdural haemotoma present. 250 grams undigested rice found in stomach. Small intestine empty. Large intestine filled with faecal matter and gases.
Dr. opined that death was due to coma as a result of ante-mortem head injuries.
The case was committed to the Court of Sessions for trial.
` The trial court after hearing the prosecution as well as defence and perusing the material available on record framed charges against the accused appellant under section 302 IPC on 19.5.1998. The charges framed were read over and explained to the accused appellant. The appellant abjured the guilt and claimed to be tried hence the prosecution was called upon to lead the evidence.
In order to prove the guilt of the appellant, the prosecution had examined Awadh Kishor (P.W.1), Smt. Laxmi (P.W.2) as witnesses of fact , K. S. Sinha(P.W.3), PW-4 Dr. Pramod Kumar, PW-5 Head Constable Dinesh Kumar and PW-6 Satyaram as formal witnesses.
After conclusion of the prosecution evidence, the accused appellant Brijkishor was examined under section 313 Cr.P.C. In his statement he denied all the charges attributed against him and pleaded for innocence. He stated that he has been falsely implicated in the case due to enmity. There was no dispute with regard to partition of land between the appellant and deceased Rajol and Raj Kishor. The accused appellant disowned that any axe was recovered at his pointing. The accused appellant submitted that PW-1 Awadh Kishor and PW-2 Laxmi, have given false statement on account of animosity. At the time of occurrence the appellant was at the house of his in-laws at Jindwara on account of serious ailment of his wife .
In defence brother-in-law of the appellant Mahesh Prasad was examined as DW-1. In support of his case, the appellant has filed documentary evidence viz. a charge-sheet and the FIR of Crime No. 50 of 1991 as Session Trial No. 175 of 1991 under section 392/412 IPC, Police Station Kalinzer (State vs. Shivdas and others) in which the father of the complainant was an accused.
The prosecution in order to corroborate its stand examined Avadh Kishore (P.W.1) who deposed that the accused appellant Brijkishore is his uncle in relation and the deceased Rajol is his father . The deceased Raj Kishore is his elder brother. It has been averred by him that his father Rajol and elder brother Rajkishore were done to death with axe by the accused Brijkishor on 12.11.1997 when he was looking after his tomato crops with his younger brother Lakhan in Gujawar Har. The complainant and his younger brother Lakhan were isolating the futile grass from the field of tomato . The accused appellant Brijkishore equipped with axe and lathi came at about '5' O' clock and jostled to his fatheras a result of which he stumbled. The accused appellant inflicted with axe on his neck as a result of which he succumbed to injuries grappling with life. The accused appellant had stated that he (Rajol) claimed share in the land. The said incident was witnessed by the complainant and his younger brother Lakhan. It was divulged by the accused appellant that the said incident had taken place on account of dispute over the property. Thereafter he proceeded towards Marwahar to attack upon Rajkishore. The elder brother of the complainant Rajkishore and his mother Laxmi were sowing the seed of Masoor. The complainant and his younger brother Lakhan chased the accused and accosted to his brother Rajkishor to run away because the accused appellant had already committed death of Rajol. The brother of the complainant ran towards Purwa.
The accused appellant pursued to his brother Rajkishore equipped with axe and lathi. The brother of the complainant Rajkishore was done to death in the field of Bullare. On the shriek and scream of Rajkishore, the complainant, his mother Laxmi , his younger brother Lakhan and Bullare reached at the spot. When Bullare tried to intercept the accused appellant jolted him and ran towards north after carrying out the murder of his brother. Four Bigha land was placed under mortgage by the father of the complainant to Ramswaroop which was got released by the accused appellant but was being cultivated by the father of the complainant. The accused appellant Brijkishore used to restrain him on account of which the father of the complainant and his brother were done to death. The written report was given at the police station concern under the signature of the complainant which was proved and marked as Ext.Ka.1.
The prosecution had examined Smt. Laxmi ,the wife of the deceased Rajol as P.W.2. She deposed that she was well aware about the identity of accused Brijkishore. She was sowing the seeds of Masoor in Marwahar. Her son Raj Kishor was also associating her in sowing of seeds of Masoor. She heardthe shrieks and lamentation of her sons Avadh Kishore and Lakhan. Both were crying to run away because the uncle (Brijkishor) was approaching. The accused appellant thrashed to her son Rajkishor with lathi. Both the sons of Laxmi (P.W.2) and Bullare chased the accused appellant. Her son Rajkishore surrendered before the accused appellant with folded hand but the accused appellant did not show any clemency rather liquidated him,. Prior to causing death to Rajkishore, the accused appellant had committed murder of her husband Rajol. The husband and the son of Laxmi (P.W.2) were eliminated on account of dispute of land.
The prosecution had examined Station Officer K.S.Sinha (P.W.3) who was posted on 3.12.1997 at police station Kalinjer and had taken over the investigation of this case. He had recorded the statement of Lakhan the ocular witness on 14.12.1997 . He had recorded the statement of Laxmi (P.W.2) and other witnesses of memo namely Bela Prasad and Muneem Prasad. All the witnesses had supported the prosecution version. The investigating officer after collecting credible and clinching materials showing the complicity of the appellant submitted the charge sheet no. 38 of 1997 arising out of Case Crime No. 51 of 1997 under section 302 IPC which was marked as Ext.Ka.2. He had sent the seized articles for examination to the Forensic Lab Agra.
The prosecution had examined Dr. Pramod Kumar (Pathologist) as P.W.4.
He deposed that he was posted at District Hospital Banda as Pathologist on 13.11.1997. He had conducted the autopsy of Rajol on the same day brought by constable Bholeshwar Tiwari and Chandra Nath posted at police station Kalinjer. It was confirmed by the doctor that Rajol was done to death on 12.11.1997 at about 5 to 5.30 p.m.with axe.Dr. Pramod Kumar (Pathologist) had also conducted the autopsy of Rajkishore on 13.11.1997 brought by constable Bhuneshwar Tiwari and chandra Nath Mishra, Police Station Kalinjer at about 5.00 p.m. The doctor opined that the death of Rajkishore was one day old. He was a young man of average built. The death was caused on account of ante-mortem head injuries.
Dinesh Kumar Head Moharrir (P.W.5) in his statement on oath stated that on 12.11.97, he was posted at Police Station-Kalinger District Banda as Head Moharrir. On 12.11.1997, at about 19.30 p.m., on the basis of information given by the complainant Awadh Kishor, he registered FIR no.36 /97 arising out of Case Crime No.51/97 under section 302 IPC against Brijkishor which was exhibited as Ext. Ka-5 and the same was entered in the GD exhibiting as Ext Ka-6.
Satya Ram Station Officer Kalinjer District Banda was examined as P.W.6.
He stated on oath that on 12.11.97, he was posted at Police Station-Kalinger District Banda Station Officer. He divulged that after attending the seminar, he reached at the police station concerned and came to know that in village Baruwa both, father and his son were done to death and the first information report was also registered. Head Moharrir Dinesh Kumar (P.W.5) made him available the necessary documents at the police station concern . The station officer Satyaram (P.W.6) reached at the place of occurrence in association with two constables. P.W.6 Satyaram firstly reached at the corpus of Rajol where constables Panna Lal and Rajaram were present. Subsequent thereto he reached at the corpus of Rajkishor where Buneshwar Tiwari and Ram Milan were present. In addition to those constables local people were also present.
Thereafter P.W.6 Satyaram in association with other police personnel proceeded to nab the accused appellant Brijkishore but the accused appellant could not be arrested . Panchanama was not prepared at night on account of lack of properlight. Mukeem was present at the place of occurrence. On 13.11.1997, the statement of the complainant was recorded. Subsequent thereto visited place of occurrence . Panchnama of deceased Rajol was prepared . The dead body of Rajol was placed under seal. The blood stained and plain earth were collected in two different containers and were sealed. The statement of the witnesses were recorded . Panchayatnama, blood stained earth of Rajol (deceased), blood stained earth of Rajkishore were marked as Ext. Ka.7,8 & 9. The signatures of the witnesses were obtained on the Fard on which the Station Officer Satyaram (P.W.6) had also put his signature. The Panchayatnama of both the dead bodies i.e. Rajol and his son Rajkishor was prepared separately which were marked as Ext. Ka.10 to 21. Both the corpus of Rajol and Rajkishor were handed over to Constable Bhuneshwar Tiwari and Chandra Nath Mishra for autopsy. Subsequent thereto, the Station Officer Satyaram (P.W.6) in association with the police personnel proceeded at the place of occurrence and prepared the site plan . He also recorded the statement of Shree Shyam s/o Nageshwar Lodh & Shree Ram Ashrey s/o Sarjooo Prasad resident of village Baruwa Police Station Kalinjer . The site plan was marked as Ext.Ka.22. The statement of Bullare s/o Bhauram was also recorded. The accused appellant Brijkishor s/o Ram Kumar was nailed at Kalinjer Naraini Chawki . On the pointing of accused appellant Ram Kishor axe was recovered which was marked as Ext.Ka.23.The site plan of place of murder was prepared and marked as Ext.Ka.24. The P.W.6 Satyaram Station Officer confirmed that the accused appellant was not arrested from Tindwara.
On the aforesaid material on record the learned trial judge found the appellant guilty for murdering his own brother Rajol and nephew Rajkishor s/o Rajol and held that the prosecution has been able to prove the guilt beyond the shadow of reasonable doubt thus convicted him under section 302 IPC asnarrated in the opening paragraph.
We have heard Ms. Abida Syed, Amicus Curiae and learned A.G.A. Sri Devendra Kumar Singh and perused the record.
Learned Amicus Curiae, appearing on behalf of the accused-appellant contended that the judgment and order passed by the learned trial judge is per se illegal and erroneous whereby the appellant has been awarded life imprisonment merely on suspicion while there are serious irregularities and lapses on the part of the prosecution. All the witnesses produced by the prosecution are highly interested and inimical who succeeded in accomplishing their evil design. There are material inconsistency in the prosecution version and the statement of the witnesses which itself creates doubt about the incriminating circumstances framed against him. The first information report had been lodged with due deliberation and consultation and the explanation given by the prosecution does not unravel verity and truthfulness about the prosecution version. The presence of the witnesses is highly doubtful. The learned trial court has committed manifest error in disbelieving the defence plea of alibi which was proved by D.W.1 Mahesh Prasad.
The main thrust of the argument is that no strong motive has been attributed for committing the said incident. The motive assigned to the appellant for committing the murder of father and the brother of the complainant namely Rajol and Raj Kishore respectively does not inspire any confidence corroborating its truthfulness and probity. The accused-appellant is absolutely innocent and had been made scapegoat on account of conspiracy of the complainant and other witnesses.
The motive is also not proved. In the FIR it is mentioned that the accused Brij Kishor murdered Rajol and Raj Kishor due to the dispute of the partition of land between the Rajol and accused Brij Kishor. PW-2 Smt. Laxmi in her crossexamination has admitted that her father in-law Ram Kumar separated her husband and accused Brij Kishor in his life time and he gave the separate house and land to her husband Rajol and accused Brij Kishor. In the life time of the Ram Kumar, deceased Rajol and accused Brij Kishor use to live in separate houses and they also use to do the farming on separate land. Thus, when the property was distributed by Ram Kumar in his life time among his both sons namely Rajol and Brij Kishor, then there was no occasion to commit the murder of Rajol and Raj Kishor by accused Brij Kishor for the partition of the land.
The complainant Awadh Kishore l (P.W.1) is the son and Laxmi (P.W.2) is the wife of the deceased Rajol. Both the witnesses are highly interested and biased . As per prosecution story at the time of incident Awadh Kishor (P.W.1) and Lakhan and Smt. Laxmi were alleged to be present in the field of tomato, the place of occurrence but none of them came forward for their rescue as such testimony of Avadh Kishor (PW-1) and Smt. Laxmi ( PW-2) cannot be taken into account for the purpose of any reliability and credibility about their presence at the time of incident.
Medical evidence does not corroborate the prosecution case. As per prosecution, occurrence took place at 05:00 pm. PW-2 Smt. Laxmi who is the mother of deceased Raj Kishor and wife of deceased Rajol has stated in her statement that she and her son Raj Kishor took the meal (dal roti) prepared by her daughter and after taking the meal at about 10:00 am they went to the field.
This witness also stated that her husband took the meal along with Lakhan and Awadh Kishor and after taking the meal her husband Rajol went to the field of tomato crop. Thus, as per the statement of this witness both the deceased have taken the meal before the 10:00 am and the occurrence has taken place at 05:00 pm but in the postmortem report of Rajol, 500 gram semi-digested food was found in the stomach and the small intestine was filled with pasty foodwhereas in the postmortem report of Raj Kishor about 250 gram undigested rice was found in the stomach and his small intestine was found empty. PW-4 doctor Pramod Kumar who has carried out the postmortem of deceased Rajol and Raj Kishor, in his statement submitted that in his opinion Raj Kishor would have taken the meal before half hour of his death and Rajol has taken the meal before 1 to 2 hours before his death. Thus, the postmortem report shows that occurrence has not taken place at 05:00 pm but it would have occurred near about at 11:00 am in the morning which creates an absolute doubt about the veracity of the prosecution case.
The next argument is that there is major contradictions in the statements of PW-1 regarding the time of occurrence which creates doubt about the testimony of the PW-1. PW-1 Awadh Kishor in his statement on page one at third line has submitted that the occurrence took place at 08:00 pm on 12.11.1997 whereas in the FIR 05:00 pm is mentioned as time of occurrence.
PW-1 Awadh Kishor in his statement admitted that there is a difference of near about one kilometer between the fields where his father was murdered and where his brother was murdered and it is unnatural that no one tried to check and stop Brij Kishor. It has been stressed that according to prosecution version accused Brij Kishor murdered Rajol at that time complainant Awadh Kishor and his younger brother Lakhan were working in the field near his father but to prove this fact that Rajol was murdered by Brij Kishor only the complainant Awadh Kishor is examined as PW-1 and even Lakhan has not been examined to prove the case hence the conviction cannot be based on the testimony of single witness.
The accused-appellant Brijkishor after murdering Rajol started running towards the Marwahar to murder Raj Kishor then Awadh Kishor and Lakhan chased him and on reaching near Brij Kishor raised alarm to tell his brother RajKishor that their uncle Brij Kishor is coming to murder him. Smt. Laxmi mother of Raj Kishor was working there in the field with Raj Kishor. As per FIR Bullare challenged Brij Kishor while he was murdering Raj Kishor. PW-2 Smt. Laxmi in her statement has admitted that at the time of murder of Raj Kishor by Brij Kishor in the adjacent fields Jiyalal, Dayaram and Gilla were working in their fields. This witness also admitted that Kedar, Bela Prasad Chandare and Bhagwadin etc saw the occurrence. But none of the independent witnesses were examined by the prosecution to prove its case. Only the two witnesses PW-1 Awadh Kishor and PW-2 Laxmi have been examined to prove the murder of Rajol and Raj Kishor by accused-appellant Brij Kishor. PW-1 Awadh Kishor and PW-2 Smt. Laxmi are the partisan witness. Non examination of the independent witness by the prosecution creates the doubt on the prosecution case.
FIR in this case is ante-time because as per the prosecution, occurrence took place at 05:00 pm. PW-1 Awadh Kishor who is the first informant has admitted that after the occurrence for one hour he stayed at the place of occurrence then he came to his house from the place of occurrence and it took 10 minutes time to reach his house and he stayed in his house about 30 minutes and changed his clothes again he went back to the place of occurrence then further took 10 minutes in reaching the place of occurrence and from the place of occurrence he went to Mau-Kakcha police out post which is near about half kilometer away i.e. 5 minutes time would have spent in reaching Mau- Kakcha out post from there hired tempo. From Mau-Kakcha out post Kalinjer is about 10 kilometer meaning thereby at least 10 minutes were spent in reaching the Kalinjer Bus stand. From the Kalinjer bus stand police station is 3 kilometer away. Thus, complainant reached Kalinjer bus stand after two hours and 20 minutes of the occurrence i.e. at 07:25 pm from there he reached to the policestation and lodged the FIR at 07:30 pm which was not possible. PW-1 Awadh Kishor in his statement has said that when he went to police station Kalinjer to lodged the FIR then in the night he stayed at the police station and he along with Daroga Ji reached at his village at 08:00 am. Whereas PW-2 Smt. Laxmi says that on the date of occurrence at 11-12 pm Daroga Ji came to the village by Jeep, Bullare Ram Asare and her son complainant Awadh Kishor also came to the village with Daroga Ji by the Jeep of police. Secondly PW-1 Awadh Kishor in his statement at page no. 9 says that the site plan of both place of occurrence where his father Rajol was murdered and his brother Raj Kishor was murdered were prepared by Daroga Ji on his pointing but just thereafter three lines he says that he has said this fact by mistake that the Investigating Officer prepared the site plan of the place of occurrence of murder of Raj Kishor at his pointing.
These contradictions creates the testimony of PW-1 doubtful. The prosecution has failed to prove its case beyond reasonable doubt against the accusedappellant, therefore, the appeal against the impugned judgment and order stands on justifiable grounds and may be allowed.
Per contra AGA appearing on behalf of the State contended that from the prosecution evidence, available on record, the case of prosecution is proved beyond reasonable doubt against the appellant-accused. The impugned judgment and order passed by the trial court is based upon proper appreciation of evidence available on record. The finding recorded by the trial court does not suffer from any legal, procedural or factual infirmity or vulnerability. . There is no embellishment in the testimony of Awadh Kishor (P.W.1) and Smt. Laxmi (P.W.2). Awadh Kishor (complainant-PW.1) in his statement on oath averred that deceased Rajol was his father and Raj Kishor was his elder brother. Smt Laxmi is the widow of the deceased Rajol and mother of Raj Kishor who is the son of deceased. The father of complainant namely Rajol Prasad (deceased)was engaged in the look-after of tomato crops. The complainant and his younger brother Lakhan were engaged in doing the work in the field. Awadh Kishor (P.W.1) was present on the spot at the moment when the incident had taken place. The accused appellant had formed guilty intention to eliminate Rajol and Raj Kishor. They had succumbed to unnatural and ghastly death. The complainant Awadh Kishor (P.W.1) was thunderstruck to see the fiendish and grim act of the accused appellant. It is fully corroborated that the deceased Rajol and Raj Kishor succumbed to injuries as a result of blows inflicted with lathi and axe. Blood was scattered around the corpus of Rajol and Raj Kishor. Accusedappellant is the resident of same locality and the complainant was well aware about him since childhood being his uncle as the latter is the brother of deceased Rajol. At the time of arrival of accused-appellant, the complainant was doing work in the field in association with his younger brother Lakhan. The accused appellant had developed mens rea to eliminate them hence he took drastic step of causing fatal injuries to Rajol and Rajkishore with lathi and axe.
The accused-appellant fled away from the scene of occurrence unleashing reign of terror and horror. The complainant Awadh Kishor (P.W.1) remained present at the place where the corpus of Rajol and Raj Kishor were lying in a pool of blood. A number of persons of the locality gathered at the place of occurrence .
The Head Morarrir Dinesh Kumar who had registered the Chik FIR Report no.36 of 1997 vide Case Crime No.51 of 1997 under section 302 IPC and written report no.26 at 19.30 and entered in the G.D. proved by him as Ext.Ka.5 & Ka.6, on the information of Awadh Kishor (P.W.1).
Smt Laxmi (P.W.2) in her statement on oath averred that the name of her sons were Raj Kishor, Awadh Kishor and Lakhan. The name of her husband was Rajol. She was well aware about the identify of accused appellant Brij Kishor.
She was sowing the seeds of Masoor at the time of incident. She had narratedthe incident in a very natural and coherent manner. The murder was committed at night. At that juncture, she was present in the field. She was sowing the seeds of masoor. Her sons Awadh Kishor and Lakhan were present. The vivid description of P.W.2 Laxmi cannot be ignored who had seen the ghastly and fiendish murder of her husband and son with her own eyes. The testimony of Laxmi (P.W.2) is the best piece of evidence .The chain of evidence is so complete that there is no room of doubt that the act must have been done by the accused appellant.
K.S.Sinha S.I (P.W.3) was entrusted with the investigation of this case on 3.12.1997. He had recorded the statement of the ocular witnesses who had supported the prosecution version. After collecting the credible and cinching evidence he submitted the charge sheet against the accused appellant.
Dr. Pramod Kumar (P.W.4) in his statement on oath proved Ext. Ka 3 & Ka 4 divulging that he had conducted the autopsy of the deceased Rajol aged about 45 years s/o Ram Kumar and Raj Kishor son of Rajol aged about 21 years both r/o Village-Baruwa, Police Station-Kalinger, District-Banda . The ante-mortem injuries of the deceased Rajol and Rajkishor were sufficient to cause their death . Dr. Pramod Kumar (P.W.4) had also identified the blood stained shirt, Baniyan ,underwear which were recovered from both the deceased namely Rajol and Rajkishor. These articles were marked as Ext. 4,5 & 6 and were sealed an envelop and were opened in the court.
Dinesh Kumar Head Moharrir (P.W.5) in his statement on oath stated that on 12.11.97, he was posted at Police Station-Kalinger District Banda as Head Moharrir. On 12.11.1997, at about 19.30 p.m.., on the basis of information given by the complainant Awadh Kishor, he registered FIR which was exhibited as Ext. Ka-5 and the same was entered in the GD exhibiting as Ext Ka-6. On the analysis of the aforesaid facts and circumstances of the case, it emerges outthat the appellant-accused had formed motive to commit the alleged offence as the accused appellant had property dispute with the deceased persons.
Ultimately he took drastic steps of eliminating them which is corroborated from the prosecution evidence. The direct and trustworthy evidence of PW-1 Awadh and PW-2 Smt Laxmi supported by the medical evidence pointing guilt against the accused-appellant are consistent with the prosecution version hence the plea of the accused appellant with regard to presence of mens rea stands fully proved. The conviction and sentence has been awarded to the accused appellant after appreciation of entire evidence on record hence the same deserves to be maintained.
In order to appreciate the evidence, the Court is required to bear in mind the set-up and the environment in which the crime is committed, the level of understanding of the witnesses, over zealousness of some of the near relations to ensure that everyone even remotely concerned with the crime be also convicted and everyone gives different way of narration of the same facts.
Bearing in mind these broad principles the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct states of affairs. It is for the Court to separate the grain from the chaff.
The Court cannot draw adverse inference only because all the witnesses have not been examined, if the evidence of the witnesses produced are trustworthy, the Court can rely on the said evidence to convict the accused. This is because it is quality and not the quantity of evidence that is material.
FIR Ext-1 indicates that at the time of alleged incident Awadh Kishor & Lakhan, Rajkishor sons of deceased and Smt. Laxmi were also present. It is evident from the record that PW-1 Informant Awadh Kishor and PW-2 Smt Laxmi are the eye-witnesses of the incident and their evidence fully supports the prosecution case and they have no motive to make false statement againstthe appellant-accused. Medical evidence (postmortem reports) and the testimony of other prosecution witnesses fully corroborates the prosecution version as well as the testimony of the aforesaid prosecution witnesses. In our opinion both these eye-witnesses are trustworthy and their testimony inspires confidence.
In the case of Veer Singh and others vs. State of U.P., (2014) 2 SCC 455, Hon'ble Apex Court has held as under:- "Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is not the number of witnesses but -quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under Section-134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable." In the case of Shamsher Singh @ Shera vs. State of Haryana (2002) 7 SCC 536, Hon'ble Apex Court has held as under:- "Even if there is absence of motive, it would not benefit the accused when there is reliable and acceptable version of the eye witnesses, which is supported by the medical evidence, pointing against him." In the case of State of Haryana vs. Sher Singh & others AIR (1981) SC 1021, Hon'ble Apex Court has held as under:- "The prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is known only to the perpetrator of the crime and may not be known to others if the motive is proved by the prosecution, the court has to consider it and see whether it is adequate."It is also authenticated from the record that prosecution had examined the Informant Awadh Kishor as PW-1 who in his statement on oath proved the FIR exhibited as Ka-1. He also averred that he witnessed the occurrence and got the FIR scribed by Head Moharrir Dinesh Kumar (P.W.5) which was exhibited as Ka-1.
In our opinion this FIR is not ante-time because no witness can give the explanation of minute to minute time which he spent in the journey specially when the complainant is 16 years old boy and he is educated only up to the class VIth and his father and elder brother have been murdered in his presence.
In the case of Dalip Singh vs. State of Punjab AIR 1953 SC 364, Hon'ble Apex Court has held as under:- "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule.
Each case must be limited to and be governed by its own facts." In the case of Kartik Malhar vs. State of Bihar 1996 CRL. L.J. 889, Hon'ble Apex Court has held as under:-"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case, (Supra) in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses." In the case of Shyam Babu vs. State of U.P. AIR 2012 SC 3311, Hon'ble Apex Court has held as under:- "Where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. There is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend etc".
The submission made by the learned counsel for the appellant stood rebutted by the pronouncement of Hon'ble Supreme Court in Surendra Singh and Another vs. State of U.P. 2004 SCC (Cri) page 717 that the relationship of witness is not a factor to affect the credibility of a witness. It is also worth mentioning that PW-1 Awadh Kishor is the son of deceased Rajol and brother of deceased Raj Kishor. PW-2 Smt. Laxmi is the wife of deceased Rajol and mother of deceased Raj Kishor. They will not spare the real culprit and will implicate an innocent person. No plausible and convincing material could bebrought forth by the defence witness to substantiate that the accused appellant has been made scapegoat on account of peshbandi.
Further the stand of learned counsel for the appellant stood revulsed by Hon'ble Supreme Court in Ram Kumar vs. State of Haryana 1997 SCC (Cri) page 1087 that where the statement of several persons were recorded by Investigating Officer but at the trial only the brother and father of the deceased were examined who were in the company of deceased at the time of assault and had witnessed the assault. Non-examination of other witnesses is not fatal.
It is pertinent to mention here that PW-1 Awadh Kishor and PW-2 Smt.
Laxmi were put to lengthy cross-examination, but nothing could be elicited by way of cross-examination so as to create doubt about their presence at the place of occurrence. Their testimonies have been well supported by the medical evidence. Appellant-accused is named in the FIR, there is complete consistency and coherence in the examination-in-chief and cross-examination of the aforesaid prosecution witnesses, the name, time, date and place on which the offence was committed and by whom the offence was committed, has been revealed in the FIR, lodged by PW-1 Awadh Kishor which is also in coherence with the prosecution version. There is nothing on record to show if the prosecution witnesses had any animus against the appellant-accused so as to implicate falsely in the present case.
In our opinion contradictions if any is not much relevant because PW-1 Awadh Kishor is the first informant of this case he has lodged the FIR and in the FIR he has mentioned that occurrence took place at 05:00 pm on 12.11.1997. It is true that in the third line of his statement PW-1 Awadh Kishor, has stated that occurrence took place at 08:00 pm on 12.11.1997 but in the seventh line of his statement he has corrected this mistake and has stated that occurrence took place at 05:00 pm on 12.11.1997. One sentence of the statement of theprosecution witness cannot be read separately to derive any benefit. The whole statement of the witness has to be read to reach to any conclusion. After going through the FIR and the whole statement of the PW-1 Awadh Kishor, it is clear that as per version of PW-1 also occurrence took place at 05:00 p.m on 12.11.1997 hence at one place mentioning the 08:00 pm as a time of occurrence cannot be said to create doubt about the time of incident.
In view of the above facts and circumstances of the case, there appears no justification to disbelieve the otherwise cogent, credible and trustworthy statements of the aforesaid prosecution witnesses having a ring of truth.
Considering the entire facts and circumstances of the case, we are of the considered opinion that contradictions are not so material which goes to the root of the case and materially affect the core of the prosecution case. Therefore, minor contradictions cannot be taken to be a ground to reject the testimony of the prosecutions witnesses of facts.
In the case of State of Rajasthan vs. Smt. Kalki and another (1981) 2 SCC 752, Hon'ble Apex Court has held as under:- "In the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses".
In the case of Mritunjoy Biswas vs. Pranab alias Kuti Biswas and another 2013 CRI. L.J. 4212, Hon'ble Apex Court has held as under:- It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test ofprudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect prosecution case but not every contradiction or omission." In the case of Appabhai versus state of Gujarat 1988 (25) ACC 168 SC observed that the court must bear in mind that witnesses to serious crime may not react in a normal manner . Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. Therefore, Court cannot reject their evidence merely because they behaved or reacted in an unusual manner as they either become stunned, speechless or stood rooted on the spot. Some of the witnesses becomes hysteric and stars moaning and bewailing shouting for help. Some would remain tight lipped ,overawed either on account of the antecedents of the accused or threats given by him. To discard the evidence of the witnesses on the ground that they did not react in any particular manner would result to shield the culprit.
As per statement under Section-313 Cr.P.C. property dispute between the deceased Rajol and the accused appellant has been denied. The accused appellant has taken the plea of his presence at the residence of his father in law situate at village Tindwara on account of ailment of his wife . There is nothingon record to substantiate the plea of the appellant-accused on account of which it could be inferred under any circumstance that he had been implicated falsely in the present case. It is also worth mentioning that no evidence has been adduced on behalf of the appellant-accused in defence to substantiate his plea.
Mahesh Prasad (D.W.1) who is the brother in law of accused appellant has tried to support him in the guise that his sister fell ill on account of untimely termination of fetus. He divulged that the accused appellant was present at the house of his parent in laws situate at Tindwara on 10.11.1997. He remained present till 13.11.1997 and he was arrested from there on 13.11.1997. This fact stood confronted from the statement of P.W.6 Station Officer Satyaram who unravelled that the accused appellant was arrested on 19.11.1997 at Kalinger Naraini Road and on his pointing the axe used in the aforesaid offence was recovered and was exhibited as Ka.23. The report of the Chemical Analyst confirmed that human blood was found on the axe including the apparels of both the diseased.
We have considered the testimony of the defence witness in the light of arguments advanced by the learned counsel for the appellant. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place.
In the case of Jayantibhai Bhenkarbhai Versus State of Gujarat 2002 (45) ACC 1026 (SC) the Hon'ble Apex Court dealt with the plea of alibi in extenso.
The axe was recovered at the pointing of the accused appellant. The axe is shown to be stained with human blood. The investigating officer had sent the Axe including other incriminating articles to the Chemical Analyst The learned Sessions Judge had rightly rejected the testimony of D.W.1.when two murder had been committed in the family of the appellant, he ought to have immediately rushed to his village. If the police had kept Brijkishor in the illegal custody ,thenno application was moved to higher authorities of the police in natural course.
The plead of alibi taken by the accused-appellant needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused-appellant beyond any reasonable doubt, it may not be necessary to go into the question whether the accusedappellant has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused-appellant taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving of the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused-appellant is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the Court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused-appellant is undoubtedly heavy. This flows from section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused-appellant, the prosecution would fail and the accused-appellant would be entitled to benefit of that reasonable doubt which would emerge in the mind of the Court. This fact is fully corroborated that the blood stained axe was recovered on the pointing of the accused appellant which was marked as Ext.Ka.23.Thus the plea of alibi canvassed from the side of theappellant stood fully negated.
The medical evidence qua the food found in the stomach of the two deceased person cannot be made determinative factor regarding time of incident.
The Hon'ble Apex Court in Ram Bali versus State of U.P. (2004) (3) Supreme 547 (para 10 and 11) held that state of contents of stomach found at the time of medical examination is not a safe guide for determining the time of occurrence. Process of digestion depends upon the nature of food which not being in uniformity varies from individual to individual.
After considering the entire facts and circumstances of the case, we are of the considered view that the testimony of all the prosecution witnesses supports the prosecution case. There is nothing on record to show that the prosecution witnesses had any animus against the appellant-accused so as to implicate him falsely in the present case hence there appears no justification to disbelieve the testimony of the prosecution witnesses.
From the above facts and circumstances of the case, it is fully established that Rajol and Rajkishor succumbed to unnatural death with lathi and axe. The presence of the eye witnesses cannot be doubted or suspected merely they are related to the deceased or on account of minor variation or aberration from the prosecution version. The utterances have consistently and umpteen times been repeated by the witnesses who had narrated and unfolded the incident in a very natural and articulatory manner. The overt act of the accused appellant at the relevant moment is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt of the accused appellant within all human probability the act has been done by the accused appellant. Themanner in which the victim was done to death with lathi and axe has portrayed very inhuman and gruesome state of mind of the accused appellant. The occurrence is fully supported by the testimony of eye witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion. In the course of cross examination, the defence side has tried to evolve a story of false implication in order to overshadow the testimony of the eye witnesses. D.W.1 Mahesh Prasad in his cross examination divulged that his brother in law (Brijkishor) remained at his house from 10.11.1997 to 13.11.1997 in connection with ailment of his sister who was suffering from pain on account of untimely abortion. The accused appellant was arrested from his house on 13.11.1997 . He had given an application before the Police Superintendent Banda on 14.11.1997. It cannot be doubted that the eye witnesses had not seen the accused appellant who had perpetuated the crime in a very relentless and devilish manner.
The argument of learned counsel for the appellant stood repelled by the dictum of Hon'ble Supreme Court in Parveen vs. State of Haryana 1997 SCC (cri) page 63 that if the testimony of solitary witness is corroborated by other evidence then conviction can be based upon the solitary witness. Hon'ble Supreme Court in Marwadi Kishor Parmanand and Another vs. State of Gujrat 1994 has held that Court may convict on the statement of solitary witness if the evidence is wholly reliable. Hon'ble Supreme Court in Bahula Bhusan @ Bahuna Krishna vs. State of Tamil Nadu 1989 SCC (Cri) 353 has held that this is no rule of law that the testimony of single witness cannot be accepted. Conviction can be based on the testimony of the single witness where it was straight forward. Cogent reason has been put forth by the prosecution to prove the case which stood corroborated by the medical evidence. There is no reason of giving the false evidence by PW-1 Awadh Kishor against theaccused-appellant Brij Kishor who is his uncle.
On the basis of verbose and prolix discussions made above and also considering the material evidence on record, we are of the considered opinion that findings of conviction for the offence punishable under Section-302 of the Indian Penal Code recorded by the Trial Court are well substantiated by the evidence on record. The Trial Court has appreciated the evidence in the right perspective. The prosecution has succeeded to prove the charge against the accused appellant under section 302 IPC beyond the shadow of reasonable doubt. We don't find any justifiable ground to interfere with the findings of conviction recorded by the trial court for the offence punishable under Section- 302 of the Indian Penal Code, therefore, the conviction and sentence recorded by the trial court against the appellant-accused under section 302 IPC is hereby maintained and affirmed . The appeal is accordingly dismissed with above observations.
Since the appellant is on bail, the bail bonds are cancelled. The appellant be taken into custody to serve out the sentence awarded by the court below vide order dated 28.8.2000 in Sessions Trial No. 41/98 (State versus Brij Kishor) arising out of Case Crime No. 51 of 1997 under section 302 IPC Police Station Kalinjer District Banda.
Let a copy of judgment and order along with original record be transmitted to the Trial Court for information and necessary compliance.
Learned Amicus Curiae Dr. Abida Syed shall be paid a sum of rupees 10,000/- towards her assistance to this Court in disposing of this appeal.

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