1

Reserved

AFR

Criminal Appeal No.3126 of 1982

Dhanpal ....................................... Appellant

Versus

State of U.P. .................................. Respondent.

Hon'ble Vinod Prasad, J.

Hon'ble Surendra Kumar, J.

(Delivered by Hon’ble Vinod Prasad J.)

Solitary appellant Dhanpal was tried by IV

th

Additional

Sessions Judge, Muzaffarnagar in S.T. No. 272 of 1981, State Vs.

Dhanpal and others, along with two other acquitted accused

Malkhan and Chohal, for committing murder of Smt. Santa,

widow of Bira Singh and mother of informant Anil, PW1 u/s 302

I.P.C. and was convicted and sentenced to life imprisonment,

vide impugned judgement and order dated 27.11.1982, and

hence this appeal by the appellant challenging his aforesaid

conviction and sentence.

Narration of entire prosecution case was made by the

informant Anil Kumar,P.W.1,in the Sessions Trial, according to

which informant was a resident of Wazirpur, police station Ashok

Vihar, Delhi. His great grand-father Guddhi had four sons

Sukhkhan, Chandra Bhan, Bhagwan and Har Lal. Veer Singh and

Smt. Santo (deceased) were the wife and son of Har Lal and

parents of the informant Anil Kumar,P.W.1, whereas Jaswant

(eye-witness) is the son of Chandra Bhan. Veer Singh,

Neutral Citation No. - 2012:AHC:123697-DB

2

informant’s father had purchased an agricultural land in village

Ghanshyampura, a hamlet of Samoli, P.S. Khatauli, district

Muzzaffarnagar, farming of which was looked after by the

informant and his father. Fifteen or sixteen months prior to the

present incident, Veer Singh was done to death in

Ghanshyampura, by Dhanpal (appellant), Chohal (acquitted

accused) and one Buddhu Gadaria, regarding which

investigation was pending with the police. In that investigation

widow Santo had given statement against the accused of that

crime.

On the date of the incident 1.6.1981, Anil Kumar

informant, Smt. Santo deceased, Har Lal, his wife Smt. Phullo,

grand-father and grand-mother of the informant and in-laws of

Smt. Santo (deceased), and Jaswant, uncle of the informant, all

were present in village Ghanshayampura. Smt. Santo (deceased)

was sitting on a cot in the kitchen in front of living room. At 1

p.m. in the afternoon three accused, Dhanpal armed with a gun,

Chohal armed with a danda, and Malkhan empty handed, who

all are residents of village Samoli, half a furlong away from

village Ghanshyampura, arrived at the informant’s house. They

all threatened the deceased to resile from her statement given

to the police in the murder case of her husband otherwise it will

not be in her interest, because police was chasing them.

Deceased did not come in the threat and replied that she cannot

amend her statement. At that moment Gyanu, Baljeet, Jaswant

Singh, Rampal, Jai Pal and Tej Pal also arrived there. On refusal

by Smt. Santo (deceased), appellant Dhanpal shot her dead in

3

front of the present witnesses. Assailants thereafter escaped

from the spot.

Informant Anil Kumar P.W.1, dictated F.I.R., Exhibit Ka-2,

regarding murder of his mother to Bharat Singh, who scribed it

and then he carried it to the police station Khatoli, measuring a

distance of 13 kilometres, and lodged it.

H.M. Ranvir Singh P.W. 9 registered the F.I.R. Ext. Ka-2, as

crime no.185 of 1981, by preparing Chik report, Exhibit Ka-17,

vide Rapat No.25 at 2.45 p.m. and also penned down crime

registration GD,Exhibit Ka-18. Subsequently during investigation,

this witness, P.W.9, had also prepared other GD entries,viz:

Exhibit Ka-19, regarding deposit of S.B.B.L. gun No.1813, empty

cartridge, blood stained and plain earth, GD regarding deposit of

another S.B.B.L. gun No.2024 and GD Exhibit Ka-21, by which

he had dispatched CP 317 Valiulrehman and CP 134 Dushyant

Kumar, along with the aforesaid guns and cartridges, to ballistic

expert, Lucknow, on 28.7.1981.

Inspector S.C. Garg, P.S. Khatauli, P.W.8, in whose

presence crime was registered, engineered the investigation and

accompanying S.I. Kshetra Singh and S.I. Chaman Lal Sharma

came to the incident village Ghanshyampura and recorded

statement of witness Har Lal. One empty cartridge case,

material exhibit-9, was produced by this witness before the I.O.,

which was seized and a seizure memo, Ext. Ka-9, in that respect

was prepared by S.I. Kshetra Singh, PW7. Spot inspection was

conducted by the I.O. and site plan along with the noting,

Ext.Ka- 12, was prepared by the Investigating Officer,P.W.8.

4

Investigating Officer, thereafter deputed, S.I. Chaman Lal

Sharma, to apprehend the accused and S.I. Kshetra Singh was

deputed to conduct the inquest on the corpse of the deceased.

Blood stained and plain earth, material Exhibit 13 and 14, were

collected from the spot and recovery memo in that respect is

Exhibit Ka-8. Subsequent thereto statements of witnesses

Jaswant Singh, Jai Pal, Tej Pal, Rampal, Baljeet and Shano were

recorded. S.I. Chaman Lal Sharma, meanwhile recovered the

gun from the house of appellant Dhanpal. Concluding

investigation on 6.6.81, P.W.8 had charge-sheeted the accused,

vide Exhibit Ka-13. During trial contradictory excerpts of

161Cr.P.C. statements of the witnesses Tej Pal, Exhibit Ka-14, Jai

Pal, Exhibit Ka-15 and Baljeet, Exhibit Ka-16, have been proved

by P.W.8.

Inquest proceedings on the cadaver of the deceased was

performed by S.I. Kshetra Singh, P.W.7 under the guidance of

I.O., P.W.8, and he had prepared inquest memo Ext. Ka-7 and

other relevant documents chalan lash, letters to C.M.O. and R.I.

for post mortem examination etc., which are Exts. Ka-4 to Ka-7.

Recovery memo of blood stained and plain earth is Ext. ka-8. He

has also proved Ext.ka-9.On2.6.1981, this witness has recovered

a gun material Ext.10, from the search of house of accused

Malkhan, the recovery memo regarding which is Ext. Ka-10.

Sealing cloth of the gun is material Ext. 11. From the search of

the house of accused Chohal, a SBBL gun no. 2467, material Ext.

12, was also recovered on 4.6.1981 by P.W.7 and recovery

memo of this recovery is Ext. Ka-11.After completion of inquest

5

proceedings dead body was handed over to CP 185 Mahtab

Singh, PW10 and CP Lajpat Singh, to be carried to the mortuary

and, therefore, the aforesaid constables had brought the

cadaver to the mortuary for post mortem examination.

Dr. R.K. Tandon, P.W.2, had performed autopsy on the

corpse of the deceased on 2.6.1981 at 11.45 A.M. Deceased,

Smt. Santo, was 38 years of age and she had demised a day

before. Her both the lungs and pleura were punctured and right

pleural cavity contained blood. Blood vessels on the right side

neck were also punctured and lacerated. Her right mandible was

fractured and stomach contained semi digested food. Small

intestine contained food matter and gases whereas large

intestines had faecal matters and gases. Cause of her death was

shock and haemorrhage as a result of sustained injuries. Dr. R.K.

Tandon P.W. 2 had noted following ante mortem injuries in her

post mortem examination report, Ext. Ka-2:-

“(1) Lacerated wound 8cm x 3cm x bone deep on the right

side mandible region.

(2) Gunshot wound of entry 4cm x 4cm x cavity deep right

side super clavicle region and base of neck margins

lacerated and inverted. Blackening and scorching present

around the wound. Wound directing medially and

downwards.

26 pellets and 2 cork pieces recovered from – 20

pellets and 2 cork pieces - right lung, plural cavity.

6 pellets from left lung.”

All the three recovered 12 bore guns 2024/74, 2467-66 and

6

1813 along with 12 bore KF special cartridge (E.C.-1) were

received to the Forensic Science Laboratory, Lucknow on

25.7.1981. These were tested and the report of Forensic Science

Laboratory, Lucknow dated 15.9.1981 is Ext. Ka-22, according to

which, cartridge E.C.-1 was fired from gun no. 2024-74.

Charge sheeting of the accused resulted in registration of

criminal case no.2021/9 of 1981 in the Court of C.J.M.,

Muzaffarnagar, titled as State Vs. Dhanpal and others and since,

the committal court found the offences triable by session's court,

it committed accused case to the court of session's on 13.7.1981

where it was received the same day and was registered as S.T.

No. 272 of 1981, State Vs. Dhanpal and others.

Vth Additional Session's Judge, Muzaffarnagar, to whom

the trial was transferred, charged the accused Chohal and

Malkhan under section 302/34 I.P.C. and present appellant

Dhanpal under section 302 I.P.C. on 14.9.1981. All the accused

denied those charges and claimed to be tried after being read

over and explained to them and resultantly, the trial of the

aforesaid accused, by observing session's trial procedure,

commenced, to establish their guilt and bring home the charges

against them.

Twelve witnesses were examined by the prosecution for

proving accused guilt, which included four fact witnesses Anil

Kumar informant P.W. 1, Tej Pal P.W. 3, Jai Pal P.W. 4 and Baljeet

P.W.5. Post mortem Dr. R.K. Tandon was examined as P.W.2, S.I.

Chaman Lal Sharma, who had recovered gun and cartridges,

P.W.6, S.I. Kshetra Singh who had conducted inquest P.W.7,

7

Investigating Officer S.O. S.C. Garg P.W.8, head moharir Ranvir

Singh, who had registered the crime and prepared various GDs

P.W.9, constable Mehtab Singh, who had carried the body to the

mortuary P.W.10, firearm forensic science expert O.P.M. Tripathi

P.W.11 and constable Valiulrehman, who had taken the weapons

to Forensic Science Laboratory, Lucknow P.W. 12, were the

formal witnesses.

Accused in their examination by the court, under section

313 Cr.P.C., took a common defence of false implication due to

enmity and factionalism. Present appellant Dhanpal further

stated that he was Director of Kisan Sewa Sahkari Samiti, Ward,

Sikandarpur and one Munna Singh, relative of the informant Anil

Kumar, is his opponent in the cooperative politics and, therefore,

all of them connived with each other and falsely implicated him.

Two other accused stated other defence pleas, but since they

have been acquitted, which opinion has attained finality and is

not questioned before us, therefore, we eschew recording their

defences. To establish their version, accused had examined

scribe of the FIR, Bharat Singh as D.W.1, who had deposed that

the report regarding murder of the deceased was dictated to

him by the I.O. in front of the house of the informant under a

margosa (neem) tree at 5 P.M. and thus, he had tried to bring

on record the evidence that the FIR, Ext. Ka-2, was not dictated

by the informant and the same was anti timed and thereby he

had tried to bolster up defence plea that the entire prosecution

case is cooked up and fabricated and was registered ante timed.

No other defence witness was examined by the accused to lend

credence their defence version.

8

As has already been mentioned herein above the learned trial

Judge, after critically appreciating oral and documentary evidences,

concluded that prosecution has failed to substantiate it’s allegations

against other two accused, Malkhan and Chohal, except the

appellant, and therefore, acquitted them vide impugned judgement

and order, but in the same judgment, it found guilt of the present

appellant anointed to the hilt without any ambiguity and resultantly

had convicted him for offence u/s 302 I.P.C. and had sentenced him

to imprisonment for life, which conviction and sentence is under

challenged in the instant appeal.

In the backdrop of preceding facts, we have heard Sri G.S.

Hajela, learned counsel for the appellant and Sri Sangam Lal

Kesharwani, learned AGA for the respondent State.

Assailing the impugned judgment, appellant's counsel

contended that the appellant has been falsely implicated because of

earlier enmity, FIR was fabricated by the I.O. and was registered

ante timed. Informant could not have proved it’s contents, because

he had not dictated it and consequently entire prosecution story is

prevaricated to implicate the appellant, who had no motive to

commit the crime. On the same evidence, two other accused were

acquitted by the learned trial Judge and consequently there was no

occasion for the trial court to rely upon evidences of fact witnesses to

convict the appellant. Medical report is inconsistent and repugnant

to the ocular testimonies of fact witnesses in as much as lacerated

wound remains unexplained in the FIR. Said lacerated wound, on the

right side mandible region, sustained by the deceased, was neither

insignificant nor eschewable, and hence it contradicts eye witness

account about the manner in which incident had occurred. It was

further submitted that prosecution witnesses are wholly unreliable

9

and it is puerile to cogitate that three persons will form a group to

annihilate the deceased but out of them, one will go at the murder

scene empty handed and the other will carry only a danda. Learned

counsel submitted, that at the worst, the entire prosecution

evidences, taken in it’s entirety, projects that the crime was

committed by a single accused and therefore, prosecution allegation

of participation of three accused in the incident is a cooked up story

which does not inspire any confidence. Accused defence is more

credible and has been supported by D.W.1, regarding concocting a

story to frame-in the appellant, because of earlier murder. It has

been further argued that in the murder case of Veer Singh, even the

informant was a witness but no endeavour was made to assault or

annihilate him and therefore, the motive alleged for committing the

crime is false. On the basis of the aforesaid submissions it was urged

that appellant appeal be allowed and he be acquitted of the charge

and be set at liberty.

Arguing conversely, Sri Sangam Lal Kesharwani, learned AGA

canvassed that present is a day light incident with prompt FIR and an

eye witness account, therefore, prosecution version is un-

embellished, credible and truthful and cannot be castigated at all.

Specific role of shooting down the deceased has been assigned to

the present appellant. It will be imprudent and bereft of common

man’s parlance, to cogitate that a son will spare real assailants and

feign a story to falsely implicate innocent persons in the murder

offence of his own mother, canvassed learned AGA. Motive to commit

the crime was very much in existence and to avoid going to gallows

one may adopt any course of action howsoever unreasonable it may

be. The appeal therefore, lacks merit and deserves to be dismissed

in toto, urged learned AGA while concluding his counter submissions.

10

We have considered rival arguments and have critically

examined entire trial Court record ourselves.

What is discernible from witness’s testimonies and various

exhibits are that husband of the deceased, who was father of the

informant, namely Veer Singh, was murdered by the present

appellant with his other socio criminises Chohal and Buddhu

Gadaria. Investigation into that murder crime was going on and the

present deceased, Santo, widow of Veer Singh, during course of that

investigation had charged present appellant and his associates as

murderers of her husband. Because of said evidence police was in

the look out to arrest them and consequently, present appellant had

enough and compelling reasons to threaten the deceased to refrain

her from proceeding further against them and resile from her

investigatory statements and perusing her allegations. In the FIR of

present murder, there is clear and categorically assertions in that

respect, as it records with clarity that the appellant had hurled

threats to the deceased to withdraw her statement given to the

police, otherwise, face the consequences. This is a natural and un-

concocted deposition, which inspires confidence. It can thus be held,

without hesitation, that the appellant had compelling reasons and a

very strong motive to orchestrate the murder to save himself from

being booked in penitentiary.

Coming to the presence of the appellant during the incident

armed with a gun, it has been deposed without any ambiguity by all

the fact witnesses and there is no reason to mistrust them. This is

another significant attending circumstance to prove that appellant

was one amongst three assailants. His role during the incident is

specific and at no point of time prosecution witnesses stated any fact

incongruent to it. It was he who had shot dead the deceased. Inspite

11

of lengthy and tiring cross examination defence had not been able to

dislodge any of the fact witnesses on the said score.

Now turning towards actual incident, consistent case of the

prosecution from the FIR itself is that it was the appellant who had

shot at the deceased after she refused to resile from her statement

given to the police in the murder investigation of her husband. At no

point of time prosecution has embellished or altered such a version.

Specific role of shooting at the deceased, thus, has been pointedly

assigned to the appellant. The injury sustained by the deceased was

fatal and is corroborated by the autopsy report. Albeit, informant and

other witness have been searchingly cross examined by the defence

but it failed to cull out any damaging evidence from them. None of

the witnesses have budged at all on such an allegation and have

repeated the same whenever they were questioned on the said

aspect. Consistency with which fact witnesses have testified this

version makes it credible and confidence inspiring and we don’t find

any reason to negate truthfulness of it. Murder had taken place

inside informant’s house is also established without any ambiguity. In

the site plan, Ext. Ka-12, (*A) is the place where the deceased was

shot at, which is right in front of kitchen and living room. Blood had

also been collected from the said spot from beneath the cot, on

which deceased was sitting at the time of the incident. Gun of

appellant acquitted accused, was used by the appellant to shoot

down the deceased, which fact is proved by the expert report, as the

empty cartridge found on the spot tallied with the said gun. Thus in

respect of actual incident prosecution has successfully demonstrated

that it was the appellant who had executed the murder of the

deceased. Recapitulating incriminating evidences, it becomes evident

that medical consistency with fair investigation, recovery of gun and

12

cartridges and tallying of gun and the cartridge found on the spot, all

are attending circumstances, which unambiguously without any

doubt establishes prosecution charge against the appellant.

FIR of the incident was registered without any delay, as the

distance of the police station from the place of occurrence was 13

kms and the FIR was lodged after 4 hours and 45 minutes and

therefore, in our opinion, there was no delay in lodging of the same.

Furthermore there was paucity of time for the prosecution to

fabricate a story. Testimony of defence witness DW1, Bhrat Singh,

who is the scribe of the FIR is prevaricated and is a fib. At no earlier

point of time he had made any complaint regarding fabrication of FIR

by the I.O. as was deposed by him. It was for the first time in the

court that he had stated such a story, ostensibly to shield the culprits

of two murders. It may be because of threats or his own perilous

situation that he had tried to help the accused and endeavoured to

make FIR a concocted piece of corroborative evidence, but from his

cross examination it becomes evident that whatever he had deposed

is all an afterthought and untrue narration. Accused never ventured

to suggest such a defence version to the prosecution witnesses to

dislodge the prosecution story and countenance their defence plea.

DW1 was a witness of inquest also and even at that time he had not

made any complaint regarding manipulation done by the I.O. In view

of our analysis we are not impressed by the evidence of DW1 and

hence reject it out right and hold that the claim of DW1, that he had

scribed the FIR at the instance of the I.O. at 5 p.m. is a mendacious

testimony. He seems to have made a conscious and deliberate

attempt to create a false story to save the accused persons. Eikly,

DW1, is also a witness of recovery of blood stained and plain earth

and therefore, it will be unwise to give credence to his testimonies,

13

because both, inquest and recoveries succeeded registration of FIR.

Evidence of DW1 is paradoxical and does not satiate inquisitive

inquiry to separate the grain from the chaff and hence we discard his

entire defence version.

Yet another contention on behalf of appellant that since two

other accused have been acquitted and therefore, appellant be also

given the same treatment and no reliance should be placed on the

same fact witnesses to convict the appellant, we are of the view that

the said submission is bereft of well settled trite law that maxim

falsus in uno falsus in omnibus does not apply to our criminal

jurisprudence. Merely because other accused have been acquitted,

because prosecution had failed to establish their participation in the

incident by leading cogent and reliable evidences is no reason to

absolve even that accused also whose guilt has been convincingly

established by trustworthy, reliable and creditworthy evidences.

Entire prosecution case cannot be discarded on such a facetious

view. On the contrary, Apex Court, as well as, this Court, in

innumerable decisions, have held unanimously that if the prosecution

case is acceptable and truthful in respect of some of the accused,

they cannot be absolved of their crime while acquitting others

against whom evidence is deficient, incredible and shaky. We do not

want to loath this judgment by citing such innumerable decisions but

are unable to resist the temptation of referring some of those

decisions which are referred to herein below:-

In Gunnana Pentayya @ Pentadu and Ors. v. State of

A. P.:AIR 2009 SC(Suppl) 940 it has been held by the apex

court as under:-

“15. The next plea as noted above related to the acquittal of

number of persons. Stress was laid by the accused-appellants oh the

14

non-acceptance of evidence tendered by PW1 to a large extent to

contend about desirability to throw out entire prosecution case. In

essence prayer is to apply the principle of falsus in uno falsus in

omnibus" (false in one thing, false in everything). This plea is clearly

untenable. Even if major portion of evidence is found to be deficient,

in case residue is sufficient to prove guilt of an accused, his

conviction can be maintained. It is the duty of Court to separate

grain from chaff. Where chaff can be separated from grain, it would

be open to the Court to convict an accused notwithstanding the fact

that evidence has been found to be deficient, or to be not wholly

credible. Falsity of material particular would not ruin it from the

beginning to end. The maxim "falsus in uno falsus in omnibus" has

no application in India and the witness or witnesses cannot be

branded as liar(s). The maxim "falsus in uno falsus in omnibus" has

not received general acceptance nor has this maxim come to occupy

the status of rule of law. It is merely a rule of caution. All that it

amounts to, is that in such cases testimony may be disregarded, and

not that it must be disregarded. The doctrine merely involves the

question of weight of evidence which a Court may apply in a given

set of circumstances, but it is not what may be called 'a mandatory

rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh [AIR

1957 SC 366]. In a given case, it is always open to a Court to

differentiate accused who had been acquitted from those who were

convicted where there are a number of accused persons. (See

Gurucharan Singh and Anr. v. State of Punjab [AIR 1956 SC 460].

The doctrine is a dangerous one specially in India for if a whole body

of the testimony were to be rejected, because witness was evidently

speaking an untruth in some aspect, it is to be feared that

administration of criminal justice would come to a dead-stop.

15

Witnesses just cannot help in giving embroidery to a story, however,

true in the main. Therefore, it has to be appraised in each case as to

what extent the evidence is worthy of acceptance, and merely

because in some respects the Court considers the same to be

insufficient for placing reliance on the testimony of a witness, it does

not necessarily follow as a matter of law that it must be disregarded

in all respect as well. The evidence has to be sifted with care. The

aforesaid dictum is not a sound rule for the reason that one hardly

comes across a witness whose evidence does not contain a grain of

untruth or at any rate exaggeration, embroideries or embellishment.”

In Triloki Nath Versus State of U.P. :AIR 2006 SC 321

it has been observed by the apex court as under:-

“30. 'Falsus in uno, Falsus in omnibus' is not a rule of evidence in

criminal trial and it is the duty of the court to disengage the truth

from falsehood, to sift the grain from the chaff.”

Another snipping of prosecution case for the reason that the

lacerated wound sustained by the deceased remains unexplained in

as much as FIR does not record a mention of it, we find said

submission untenable. In a broad day light, mother was murdered in

the witnessing of her son, after 14 or 15 months of the annihilation

of the father, by the same culprits. Perilous situation and agonizing

circumstances in which informant was pushed in, suddenly and

unexpectedly, inside his house, screens the terror of the accused and

traumatized mental faculty of the informant, who had lost both of his

parents by annihilation in his witnessing. No prudent person in such

a situation can maintain calmness and compose himself to register

each and every minute detail regarding execution of the murder. FIR

is neither an epic nor an encyclopedia. It is meant only to set the ball

of investigation rolling into an offence. In the present appeal it was

16

dictated without losing much of a time and was lodged with

promptness. In such a situation, it will be totally indiscreet and

imprudent to expect that FIR will contain each and every minute

detail. When informant PW1 was cross examined on this aspect he

replied that lacerated wound was caused by Chohal with danda.

Although we disagree with learned trial court in it’s reasoning

regarding acquittal of Chohal, as is recorded in impugned judgment,

but since, his acquittal has not been challenged, we do not take this

matter any further and consign it at this stage, but, none the less,

we are of the opinion that lacerated wound sustained by the

deceased has been sufficiently explained by the informant during trial

and omission on his part to pen it down in the FIR does not dent the

prosecution story at all and resultantly repel appellants criticism.

Another castigation by the appellant's counsel that three of the

eye witnesses Tej Pal P.W. 3, Jai Pal P.W. 4 and Baljeet P.W. 5 had

turned hostile and therefore, on the basis of a single testimony of an

inimical, partisan, interested and related witness, appellant should

not be convicted, when two others have been acquitted, we find said

contention sans any merit and contrary to the actual evidences. So

far as, evidence of Tej Pal, P.W. 3 is concerned, he in no un-certain

terms had deposed in his examination-in-chief that at the time of the

incident he was selling ice in the midst of the village, when he heard

a gunshot fire sound followed by commotion and when he paddled

his cycle in that direction he saw Jaswant standing at his door

uttering that appellant had shot dead the deceased. When P.W. 3

inquired from him, Jaswant informed him that appellant had shot

dead Santo. From such a deposition, which remains unquestioned, it

is but natural to conclude that it was the appellant who had

committed the murder. In our view this witness lends credence to

17

prosecution story as a witness of res gestie and we failed to perceive

any viable reason to treat him as a hostile witness. Contrary to it, he

had lend assurance to the incident as the appellant being perpetrator

of the crime. His evidence is a strong circumstance against the

appellant.

Jai Pal P.W.4 further has countenanced prosecution story when

he had testifies that he had seen the three accused coming from the

north. Dhanpal was armed with a gun whereas Chohal was carrying a

danda. Malkhan was empty handed. Malkhan and Dhanpal entered

into Veer Singh's house and immediately a gun fire sound emanated

from inside the room and no sooner there after all the three accused

barged out of Veer Singh's house and sprinted away towards South.

He had endeavored to chase them but desisted from his such

unthought of attempt. He came to the informant’s house where he

found deceased with sustained gunshot injury on her neck because

of which she had demised. At that moment informant too was

present inside his house. How can this witness be treated to be

hostile witness is beyond comprehension. His evidence by itself is

good enough to nail in the accused for the charge of murder and we

don’t see it reasonable to discard his evidence. He has established

presence of the accused as well as that of the informant at the scene

of the incident and hence are of the opinion that he too had eiked

additional incriminating evidence against the accused cementing his

participation in the crime.

Adverting to the evidence of last witness Baljeet P.W. 5, he has

corroborated and supported other witnesses in all the material

particulars of the incident. His evidence is akin to the evidence of

PW4. In such a view, declaring of these witnesses P.W. 4 to P.W. 6 as

hostile by the public prosecutor is of no consequence. Their

18

depositions also prove prosecution case regarding date, time and

place of the incident, presence of appellant in the house of the

deceased and his escaping from there handling a gun soon after

deceased was murdered in the presence of the informant.

On the aforesaid discussions we find present appeal meritless

which stands dismissed. Appellant's conviction and sentence, as is

recorded in the impugned judgment and order, is hereby confirmed.

Appellant is on bail, his personal and surety bonds are discharged

and he is directed to be taken into custody and lodge in jail to serve

out his remaining sentence.

Let a copy of this judgment be certified to the trial court for

further action at it's end.

Dt.26.9.2012

Rk/Arvind/Tamang/-