High Court
Case Details
1 Reserved on 26.04.2022 Delivered on 28.07.2022 Court No. - 39 Case :- CRIMINAL APPEAL No. - 2071 of 2009 Appellant :- Puran And Another Respondent :- State of U.P. Counsel for Appellant :- R.B. Singh,Subhash Chandra Raghav,Swati Agrawal Srivastava Counsel for Respondent :- Govt. Advocate,V K Tripathi With Case :- CRIMINAL APPEAL No. - 2523 of 2009 Appellant :- Jawaher Respondent :- State of U.P. Counsel for Appellant :- Birendra Kaushik,Ashok Kumar Tripathi,Deo Kumar Tripathi,Harshita Vishwakarma,Prashant Kumar Singh,Rajesh Kumar Dubey,Rajesh Yadav,Shekhar Kumar,Subhash Chandra Raghav,Swati Agrawal Srivastava,Vishesh Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J. [By Justice Sadhna Rani (Thakur),J.] The above two appeals have been preferred by the appellants Jawaher, Puran and Govardhan, against the judgment and order dated 04.04.2009 passed by Additional Sessions Judge, Fast Track Court No.4, District Mathura in Sessions Trial No.624 of 1999 (State Vs. Puran and others) arising out of Case Crime No.51 of 1999, under Sections 364/302 I.P.C. whereby the appellants have been convicted and sentenced under Section 364/34 I.P.C. for ten years rigorous imprisonment with fine of Rs. 2,000/- each; under Section 302/34 I.P.C. for life imprisonment with fine of Rs. 5,000/-, each with default stipulation for both the sentences. The facts germane to the case are that on 06.04.1999, at 19:45 hours, a hand written report was submitted by Om Prakash s/o Damodar Das at the Police Station Farah, District Mathura, that on 06.04.1999 he himself, his father Damodar, uncle Babulal and Toti all sons of Mathrua Das and Radhey, Birjo sons of Sheetal Das were cutting crops in their fields at about 5:00 P.M. Puran son of Mangliya, Visua, Laxman, Devi, 2 Goverdhan, sons of Puran Das and Jawaher son of Ram Gopal, residents of Parkham and one Bhutani a miscreant whom they can recognize by face, came equipped with illegal weapons, caught hold of his father Damodar Das and began to drag him. When the informant and his uncle Babu Lal tried to intercept and rescue Damodar Das, the accused did not leave him and threatened them. Due to their fear no one else dared to come forward. The informant and others persons present on the spot fled towards the village begging for help. The accused persons, thrashing his father, took him towards the canal with the intention of committing his murder. This incident was witnessed by various villagers and persons cutting their wheat crop in the nearby fields. The motive of the incident indicated in the report is the enmity due to the court cases between the parties. On the basis of this written report, F.I.R. was lodged on 06.04.1999 at 19:45 hours as Case Crime No.51 of 1999 under Section 364 I.P.C. The investigation was taken over by S.O. namely S.K. Sharma. Next morning i.e. on 07.04.1999, the dead body of Damodar @ Dammo was recovered from the drain (gul) in the field of Bhishm Singh and Bahadur Singh in the presence of witnesses Om Prakash, Govind and Jagdish, all sons of the deceased Damodar @ Dammo, who recognized the body of their father. On 07.04.1999 itself, from the place of the recovery of the dead body, one blood stained bullet, one plastic cork white colour, ten pellets of 12 bore were also recovered. These all were kept and sealed in an empty match box. One green colour, striped and blood stained safi having various cuts on it and having one plastic cork affixed to it was also recovered and sealed on the spot. From the place of the recovery of the body of the deceased, blood stained and plain earth was also collected and sealed. Regarding all these recoveries, memos were prepared in the presence of the witnesses. Inquest report alongwith necessary documents was prepared and the dead body was sent for the postmortem. Site plan of 3 both the spots, viz the place from where Damodar was abducted and where his dead body was recovered were prepared on 07.04.1999. The
Facts
statements of the first informant and the witnesses were recorded. All the proceedings and the documents were copied in the case diary. After the transfer of the first I.O. namely Sunil Kumar Sharma, second I.O. S.I. R.K. Singh executed the process under Section 83 Cr.P.C. against accused Visua, Laxman and Devi and after due process the investigation culminated into filing of the charge-sheet against Puran s/o Mangliya, Govardhan s/o Puran and Jawaher s/o Ramgopal under Section 364 and 302 I.P.C. As rest of the accused persons namely Visua, Laxman and Devi were absconding, so the charge-sheet under Sections 364/302 I.P.C. was submitted against them in their absence. After receiving the charge-sheet and compliance of Section 207 Cr.P.C., the learned Magistrate committed the case of accused Puran, Jawaher and Govardhan only to the Court of Sessions, wherein on 23.03.2000 charges under Section 364 and 302/149 I.P.C. were framed. They denied the charges and pleaded to be tried. In support of their case, the prosecution produced as many as 8 witnesses. PW 1 Om Prakash is the first informant and son of the deceased Damodar, who is also eye witness of the incident. He has narrated the sequence of the incident and proved the report submitted by him in the police station as Exhibit Ka-1. This witness had also proved the memo regarding recovery of the dead body of his father as Exhibit Ka -2. PW 2 Babulal son of Mathura Das and PW 3 Govind Das s/o Damodar Das are also the eye witnesses of the incident of the abduction of deceased Damodar. PW 4 Dr. Arvind Barsaul conducted postmortem on the body of the deceased and proved the postmortem report of deceased Damodar as Exhibit Ka-3. PW 5 Constable Munnalal proved the check FIR as Exhibit Ka-11, 4 original GD as Exhibit Ka-12 and amended GD as Exhibit Ka- 13. PW 6 Constable Divari Lal is the witness of carrying the dead body of Damodar, from the spot to the postmortem house. PW 7 Sunil Kumar Sharma, the first investigating officer deposed that in his presence the F.I.R. was registered at the concerned police station. He proved the recovery memo of blood stained plastic cork and pellets as Exhibit Ka-14, memo regarding recovery of blood stained safi as Exhibit Ka- 15, recovery memo of blood stained and normal earth as Exhibit Ka- 16, site plan of the place of recovery of the dead body as Exhibit Ka-17, the site plan of the abduction site as Exhibit Ka -18, GD Rapat No.47 of his reporting back to the police station as Exhibit Ka -19. This witness has also proved the inquest report as Exhibit Ka- 5 and the related documents as Exhibit Ka -6 to Exhibit Ka- 9. PW 8, S.I. R.K. Singh, who conducted the subsequent investigation proved the charge-sheet as Exhibit Ka-20. As documentary evidence, the prosecution had produced the written report Exhibit Ka-1, memo regarding recovery of dead body Exhibit Ka 2, postmortem report Exhibit Ka- 3, letter to SSP Exhibit Ka- 4, inquest report Exhibit Ka- 5, copy of check FIR Exhibit Ka- 6, Police paper Exhibit Ka- 7, Photo dead body Exhibit Ka -8, letter to the C.M.O. Exhibit Ka-9, report of the Police Station Farah Exhibit Ka- 10, check FIR Exhibit Ka -11, GD 32 Exhibit Ka- 12, GD regarding addition of Section 302 I.P.C. Exhibit Ka-13, memo regarding cork and pellets Exhibit Ka- 14, memo regarding blood stained safi Exhibit Ka- 15, memo regarding blood stained and normal earth Exhibit Ka- 16, site plan of the place of recovery of dead body Exhibit Ka- 17, site plan of the place of incident Exhibit Ka- 18, GD- 27 Exhibit Ka -19 and charge-sheet Exhibit Ka- 20. As material exhibit, the prosecution had proved lavada plastic as material Exhibit- 1, cork Plastic as material Exhibit- 2, cork Board as material Exhibit 3, 44 pellets as material Exhibit- 4, dhoti as material 5 Exhibit- 5, kurta as material Exhibit -6, one Baniyan as material Exhibit -7, one pair of shoes as material Exhibit- 8, blood stained safi as material Exhibit- 9, blood stained earth as material Exhibit -10, normal earth as material Exhibit- 11, bullet as material Exhibit -12, cork as material Exhibit- 13 and 10 pellets as material Exhibit- 14. After prosecution evidence, the statements of the accused Puran, Jawaher and Govardhan were recorded under Section 313 Cr.P.C. wherein they denied the whole prosecution evidence and made the assertion of their false implication on account of enmity. As defence witness D.W. 1 Raj Kumar S/o Teja had been produced by the accused persons. After going through the above evidence, hearing the rival arguments and perusing the record, the trial court passed the impugned judgment and order dated 04.04.2009 whereby all the above three accused persons were convicted for the offence under Section 302/34 and 364/34 I.P.C. and were sentenced as above. The judgment and order dated 04.04.2009 has been assailed by the appellants on the ground that the conviction of the appellants is against the weight of the evidence on record; the trial court has misread and misinterpreted the evidence present on record; the sentence is too severe; there is no direct evidence against the appellants, they have been falsely implicated due to enmity and village party bandi; the statements of the prosecution witnesses are highly doubtful. The prayer has been made to set aside the impugned judgment on the above grounds.
Legal Reasoning
From the above discussion, we find that the prosecution story was proved beyond all reasonable doubt about the guilt of the appellants. The learned trial court had rightly placed reliance on the testimony of the eye witnesses. The appellants had been rightly found guilty of the offences punishable under Sections 364 and 302/34 I.P.C. Adequate sentence has also been awarded to each of them. The appeals lack merit and are, accordingly, dismissed. The conviction and sentence recorded by the learned trial court against the appellants are upheld. Accused Jawaher and Goverdhan are in jail. Accused Puran is on bail. His bail bonds are cancelled. Sureties are discharged. Steps be taken forthwith to take him into custody to serve out the sentence passed against him. Let a copy of the judgment be sent to the court concerned and Chief Judicial Magistrate, concerned for ensuring compliance, who should report back to this Court within one month. Order Date :- 28.07.2022 Radhika
Arguments
It is also argued by the learned counsel for the appellants that the appellants are innocent and have been falsely implicated due to enmity. The place of occurrence is not fixed; the presence of the witnesses on the spot is not proved; FIR is ante- time. There is no evidence of Section 302 I.P.C. As the presence of witnesses is not proved on the spot, so the evidence of last seen can also be said to be not proved. There is no recovery of any murder weapon. There are contradictions in the 6 statements of the witnesses, hence, the finding of conviction returned by the learned lower court is erroneous. Per contra, learned A.G.A. has argued that there is no variance in the eye witnesses account of the incident. The prosecution has successfully proved its case beyond all reasonable doubt. The learned trial court has not at all erred in returning the guilty verdict against the appellants. They have been appropriately sentenced and the impugned judgment does not suffer from any factual or legal error. Now the various arguments of the learned counsel for the appellants will be taken over one by one. The death of deceased Damodar is an admitted fact, though, as per the prosecution, the appellants alongwith co-accused persons, first abducted Damodar Das and then they committed the murder of Damodar Das, whereas the appellants have denied the charges and argued that due to enmity they have been falsely implicated. Admittedly both the parties belong to one extended family. Both the parties are the descendants of the same ancestor Bukki Das. It is apposite to know the pedigree of the parties. Bukki Das Mangliya Jamuna Puran Bhagwan Das (accused) Mathura Raj Kumar Jawaher(accused) Damodar Toti Babu Lal Hira Lal Mohan (deceased) (PW2) Murari Om Prakash Jagdish Govind (first informant) 7 The first argument of the learned counsel for the appellants is that they have been falsely implicated due to enmity. In this regard, in the first information report itself, it is mentioned that Puran s/o Mangliya etc. was enimical with the first informant because of the pending cases between them. PW -1, PW-2 and PW-3 all have stated in the Court that Visua and Laxman had fired on the daughter- in-law of Toti (wife of Murari). In that case deceased Damodar Das was a witness and he had deposed against the accused persons. The cases regarding partition of certain properties were also pending between Puran and deceased Damodar Prasad. It is also an admitted fact that in a 'case of fire' in the house of Puran, deceased Damodar Das and his son Jagdish were the accused. Accused persons have also admitted, in their statement under Section 313 Cr.P.C., that due to village party bandi and enmity between the parties they have been falsely implicated. Thus, the enmity between the parties is an admitted fact. However, enmity is a double edged weapon, as due to enmity one party can falsely implicate the other, at the same time the enmity may be the reason for commission of crime by the other party. We, therefore, have to evaluate the evidence on record to reach at the conclusion of guilt of the accused persons. It is argued by the learned counsel for the appellants that the alleged eye witnesses of the prosecution were not present on the spot. Had they been present on the spot they certainly would have rescued the deceased from being dragged by the accused persons. The conduct of the prosecution witnesses is suspicious, as during alleged abduction of deceased Damodar Das by the accused persons they acted like a silent spectator. It is highly improbable that four persons present on the spot did not even try to save Damodar Das (the deceased). Their presence on spot, thus, is highly doubtful. Moreover, in his statement under Section 161 Cr.P.C., the first informant did not mention the name of accused Jawaher among the other 8 persons who were involved in the abduction of his father Damodar. It is true that in the statement of P.W. 1 (the informant) recorded under Section 161 Cr.P.C. the name of accused Jawaher was not mentioned, but the first informant had also mentioned the name of accused Jawaher in the first information report as also in his deposition in the court also. Apart from this, PW-7, the investigating officer has accepted that another eye witness Babu Lal and Toti had mentioned the name of Jawaher among the accused persons in their statements under Section 161 Cr.P.C. so mere the absence of mentioning of the name of Jawaher by the first informant in his statement under Section 161 Cr.P.C. cannot be said to be a ground to absolve accused Jawaher from the charges framed against him. Further, in support of the prosecution case, it is well mentioned in the FIR that the first informant and Babu Lal had tried to save Damodar Das, but the accused persons did not leave him, and due to their fear, the witnesses fled towards the village making hue and cry seeking help of the villagers but as no one could dare to face the accused persons who were having weapons in their hands. PW-1, PW-2 and PW-3, all have stated, both in their examination- in-chief and cross-examination, that when they resisted the accused persons from abducting Damodar, Visua one of the accused warned them not to interfere or raise alarm and told that otherwise, they would also met the same fate. The reason of not following the accused persons is also mentioned in the F.I.R. itself and has come in the statements of all the eye-witnesses. Mere fact that the witnesses could not save deceased Damodar from abduction or did not confront the accused persons, who were admittedly carrying weapons in their hands, it cannot be said that they were not present on the spot. The argument of the counsel for the appellants to the contrary is not acceptable. It is further argued by the learned counsel for the appellants that the place of the incident of the abduction is not fixed, as in the first information report the place of occurrence had been shown to be the field 9 of Raj Kumar s/o Teja wherein the first informant, his father Damodar Das, uncle Babu Lal and Toti, Radhey, Birju and Sheetal Das were said to be present cutting the wheat crop. But in their statements, when confronted, the prosecution witnesses could not describe the location, dimension and measurements of the field of Raj Kumar. PW 1 and PW 2 in their cross-examinations have shown ignorance having knowledge of the mauja or khasra number of the field where from Damodar Das was abducted. PW 3 also, in his cross-examination, though mentioned the boundaries of the field wherein the incident of abduction had occurred, but that did not tally with the description of the boundaries of the field of Raj Kumar shown in the site plan. It is, thus, argued that as the witnesses were not aware of the khasra number, dimension, boundaries and mauja of the field wherein the alleged incident of abduction had occurred the place of occurrence become disputed. In this regard, when we go through the first information report, it is stated therein that the first informant, his father Damodar, uncle Babu Lal and Toti, Radhey and Birju sons of Sheetal Das were cutting crops in their respective fields. PW 1 deposed that the field of Raj Kumar Jatav was taken by his uncle on share basis (batai) and further that at the time of abduction, Murari Lal Jatav, he himself, his father Damodar, uncle Toti, Radhey, Birju, Keshav and brothers Govind and Jagdish were cutting crops in their fields. It seems that the witnesses have their own fields. PW1 further stated that his father Damodar Das was cutting crop in the field of Raj Kumar Jatav along with Murari Lal Jatav. Clarifying further, this witness stated that they all were not cutting crops in their respective fields rather they were cutting wheat crop in the field of Raj Kumar. He also stated that all of them were cutting the crops at different places, though the field was one, which was taken on batai by Murari from Raj Kumar. PW 2 also stated that all the persons mentioned above were cutting wheat crop and the field of Raj Kumar was on share basis (batai) with 10 Toti/ Murari. It is noteworthy that Murari is the son of Toti so the witnesses have mentioned the names of both as the persons who have taken the field of Raj Kumar on share basis (batai). It is disclosed by PW2 that Raj Kumar was having 20 bighas of land, which was one and half kilometers away from village parkham. This witness had further stated that Murari s/o Toti had taken the entire fields of Raj Kumar and his brothers on batai. PW 3 also stated in his examination-in-chief that the field of Raj Kumar was taken by his cousin Murari on batai, wherein the crop of wheat was standing. Further, this witness stated that as his cousin Murari had taken 3 bighas field of Raj Kumar on batai, all of them were collectively cutting the crop in his field. It is further clarified that total 8 to 10 persons were cutting crop and in the wheat crop, they had no interest. Lastly in his deposition, PW3 stated that all of them were cutting the wheat crop separately, though in the same field and he was cutting the crop at a distance of 50-60 paces from deceased Damodar. Though the witnesses could not disclose the Mauja, khasra number and boundaries of the field of Raj Kumar where the incident of abduction took place, but they were consistent that they were cutting wheat crop in the same field of Raj Kumar, which was taken on batai by Toti/Murari from Raj Kumar s/o Teja. It is a matter of common knowledge that in the villages it is general practice that the whole family helps in cutting crops of each of the family members even if they are holding their fields separately, so was the case here that all the brothers, sons and uncles belonging to one family were cutting the wheat crop in the field which was taken by Toti/ Murari on batai from Raj Kumar s/o Teja. From the site plan also, it is clear that in the field of Raj Kumar which was taken on batai by Toti, the brother of deceased Damodar, the wheat crop was being cut by Toti, his brothers and their sons. In the site plan the harvested wheat crop having been kept at different places has been specifically mentioned by the investigating officer. 11 Raj Kumar s/o Teja had appeared as DW-1 in the trial court to defend the accused persons and stated that he had 7-8 bighas of land which he had not given to any one on batai and on the date of incident he himself was present in his field cutting the wheat crop. Further, he had stated that he used to go to his field in the morning and return back in the evening. This statement of DW 1 is belied by the fact that he did not specify the period during which he did not gave his field to anyone. In his cross-examination, this witness had admitted that this fact that he did not give his land to anyone else was disclosed by him for the first time in the trial court. As per record this witness did not depose before the police in his statement under Section 161 Cr.P.C. that he did not give his land to Toti/ Murari or to any other person on share basis (batai). The deposition of DW-1 Raj Kumar made after about four and a half years of incident makes his story unworthy of trust, being material improvement on an important fact. All the prosecution witness of fact stated consistently that the land of Raj Kumar was taken on batai by Toti/ Murari and all the persons mentioned in the FIR alongwith deceased Damodar Das were cutting wheat crop in the said field. In the FIR also, this fact is mentioned that the first informant, his father (the deceased), his uncles and other persons were cutting the crop in the field of Raj Kumar. Though there may be some variations regarding the fact that all the persons were cutting crop in their own fields or in the field of Raj Kumar but that does not go to the root of the matter as it is the consistent case of the prosecution from the First Information Report to the statement of witnesses under Section 161 Cr.P.C. and their deposition in the trial court, that all these persons were cutting wheat crop in the field of Raj Kumar which was taken by Toti and his son Murari on batai. Thus in view of the statement of all the three prosecution witnesses PW -1, PW-2 and PW- 3, the statement of DW- 1, which was made for the first time in the trial court is unworthy of belief. 12 It is the consistent case of the prosecution that at the time of the incident, the prosecution witnesses were cutting wheat crop in the field of Raj Kumar and this fact is further verified by the version of the investigating officer in the site plan, which was proved by the investigating officer in the court. Thus, the prosecution had by cogent evidence proved the place of occurrence and the arguments of the counsel for the appellant to dispute the presence of the witnesses on the spot and the place of occurrence have no force. Otherwise also, by shifting the place of occurrence the prosecution would not gain anything as admittedly, only the incident of abduction had taken place at the place stated by the witnesses and the dead body of abducted Damodar Das (deceased) was found somewhere else. It is further argued by the learned counsel for the appellants that F.I.R. is ante-time. It is urged that though as per check FIR, after the incident occurred at 5:00 PM on 06.04.1999, the FIR was said to have been registered at 19:45 hours on the same day, but there is cutting/ over- writing on the check report, site plan and the inquest report. In the G.D. Exhibit Ka- 12, no time of commission of the offence has been mentioned. Per contra, the learned A.G.A. argued that the FIR is a prompt report. After the commission of offence at about 5:00 P.M. the FIR had been registered after 2 hours and 45 minutes at 7:45 hours. From the perusal of the check FIR, site plan and inquest report, we find that in the check FIR, there is an over-writing over the digit '6' in Section 364 I.P.C. in the site plan 'Section 302' I.P.C. is struck off after Section 364 I.P.C., in the inquest report again there is an overwriting over the digit '6' in Section 364 I.P.C. and also in the time of starting of the inquest as 8:50 AM. In the GD Exhibit Ka-12 no time of commission of offence is mentioned. So far as the inquest report is concerned, it was admittedly prepared after the dead body had been recovered and the dead body was said to have recovered at about 7:00- 8:00 AM on 07.04.1999, and after 13 the recovery of the dead body, Section 302 I.P.C. had been added to Section 364 I.P.C. in the check FIR, so any over-writing in the inquest report over the digit '6' of Section '364' would no way adversely effect the prosecution case and the same logic applies about the time of starting of the inquest, whether the inquest was started at 8:30 or 8:50 AM it does not make any difference on the prosecution case. So far as the site plan is concerned, in the statement of the investigating officer, it has come that as the FIR was lodged at about 7:45 PM, the site plan was prepared on the next day. Next day early in the morning at about 7-8 AM, the dead body of the abducted Damodar Das was recovered, both the site plans, viz the site plan of the place of abduction and the site plan of the place of recovery of the dead body were prepared at the same time and in the site plan of the place of abduction, Section 302 was rightly struck off by the police official while preparing it, as the FIR was lodged on 6.4.1999 giving information of the offence of abduction. Further going through the check FIR, we may record that it was registered on 06.04.1999 at 19:45 PM., in this document there is an over- writing over the digit '6' in Section 364 I.P.C. The preparation of the check FIR had been proved by PW 5 Constable Munna Lal, who stated in his examination-in-chief that on the basis of the written report of the first informant, he had registered the case as Case Crime No.51 of 1999 under Section 364 I.P.C. This witness had proved the check FIR being in his hand writing and signatures as Exhibit Ka-11. He had also proved the GD No.32 having been endorsed on 06.04.1999 at 19:45 hours as Exhibit Ka 12. This witness had categorically denied the suggestion of the defence counsel that the GD was stopped and the case was registered later on. The investigating officer (PW 7) also proved the check FIR and GD as Exhibit Ka- 11 and 12; respectively and stated that the case was registered in his presence at the police station on the date and time mentioned therein. This witness had further clarified in his cross- examination that the incident occurred at about 5:00 PM and the case was 14 registered at about 7:45 PM. Thus, in the view of the clear statement of the officer lodging the FIR and preparing G.D. as also the officer in whose presence the FIR was lodged and G.D. was scribed, the time of registration of the FIR at 19:45 hours stood proved. The oral arguments of the counsel for the appellants that the first information report is anti- time, does not have any substance. It is further argued by the learned counsel for the appellants that there is no evidence of 'last seen' on the record as the persons mentioned in the F.I.R. including the PW- 1, PW- 2 and PW- 3 never saw the accused persons, abducting Damodar Das. As their presence on the spot is not proved, so neither the offence under Section 364 I.P.C. nor the offence under Section 302 I.P.C. can be said to have been proved against the appellants. It is also argued that there is no eye witness of the offence under Section 302 I.P.C. From the above discussion, it has been proved earlier that all the three witnesses PW- 1, PW- 2 and PW- 3 were present on the spot where- from deceased Damodar was abducted and once on the basis of the above discussion the place of abduction is proved and all the three witnesses PW- 1, PW- 2 and PW- 3 have successfully proved their presence on the spot at the time of the abduction of Damodar Das, the argument of the learned counsel for the appellants, that there is no evidence of last seen on the record fails. In State of U.P. Vs. Satish, (2005) 3 Supreme Court Cases 114 it is opined by the Apex Court that the last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. As per facts of that case the six year old victim did not return from the school and next morning her dead body was found. There was positive evidence that the deceased and the accused were seen together by the witnesses. The time span from 1:00 15 PM, when the school was over and the girl found missing upto the next morning when the dead body of the victim was recovered, was found by the Apex Court to be sufficient time to hold the accused persons guilty of the offence on the basis of fact of 'last seen' of the accused persons with the deceased by the witnesses. In the case at hand, the accused persons were last seen by the eye witnesses abducting the deceased Damodar Das from the field of Rajkumar in the evening and in the morning the dead body of Damodar Das was found. Thus, in the absence of any contradictory evidence, it can very well be said that the offence under Section 302 I.P.C. was committed by the accused persons. It is also argued by the counsel for the appellants that there is no recovery of murder weapon so the crime cannot be said to have been proved. Some judgments of the Apex Court are apposite to mention here. In Umar Mohammad And Others Vs. State of Rajasthan, (2007) 14 Supreme Court Cases 711, the Apex Court has held that “in any event, non- recovery of incriminating material from the accused cannot be a ground to exonerate them of the charges, when the eye-witnesses examined by the prosecution are found to be trustworthy”. From Krishna Mochi Vs. State of Bihar, (2002) 6 SCC 81, the following paragraph can be looked into- “37. It has been then submitted on behalf of the appellants that nothing incriminating could be recovered from them, which goes to show that they had no complicity with the crime. In my view, recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found by me to be unimpeachable." In Sanjeev Kumar Gupta Vs. State of Uttar Pradesh, (2015) 11 Supreme Court Cases 69, the Apex Court has held that as the investigation suffers from certain flaws such as non-recovery of the weapon used by the accused- appellants and recovery of the blood stained shirt after six days of the date of the incident. However, merely on the basis of these 16 circumstances, the entire case of the prosecution cannot be brushed aside when it has been proved that the deceased had died a homicidal death. In the present case, the death of the deceased is said to have caused due to shock and hemorrhage as a result of ante- mortem injuries. As per the postmortem report, the deceased sustained eight injuries. Injuries no.3, 5, 6, 7, 8 were opined to be caused by firearm, as per statement of the doctor PW- 4. 44 pellets were found from different parts of the body of the deceased. Rest of the injuries were found to have been caused by the butt of gun and also by dragging the deceased. From the initial stage of the proceedings i.e. from lodging of the FIR to the statements of the witnesses in the court, it is the consistent prosecution version that all the accused persons were equipped with illegal weapons. Thus, the injuries mentioned in the postmortem report tallied with the ocular version of the witnesses. Though, the police could not recover the murder weapon from any of the accused persons but mere non-recovery of the murder weapon does not absolve the accused persons of their guilt of committing the offence. It is further argued by the learned counsel for the appellants that in the memo of recovery of the dead body, in the memo of recovery of articles from the place of recovery of the dead body, the memo of recovery of safi and the memo of taking blood stained and plain earth by the related officer, the date mentioned below the signatures of the officer preparing these memos is 07.02.1999 which had been later on changed to 07.04.1999, thus, all these documents are forged one. Admittedly, the incident of the abduction was dated 06.04.1999 and the dead body of the abducted person was recovered in the morning on 07.04.1999, so the documents deserved to be prepared after the recovery of the dead body and cannot be said to have been prepared on 07.02.1999 i.e. two months prior to the incident. In fact this was a style of writing of the concerned officer who writes digit '4' in the manner which appears to be written digit '2' first and then cut in the manner that it looks like '4'. 17 Thus, the memos dated 07.04.1999 prepared after the death of deceased Damodar cannot be said to have been prepared on 07.02.1999 i.e. the date two months prior to the death of the deceased Damodar Das. So this argument of the counsel for the appellants is reckless and is rejected outrightly. It is lastly argued by the counsel for the appellants that there are contradictions in the statements of the witnesses. As PW 3 in his deposition stated that at the place of recovery of the dead body, there was crowd of persons gathered, but PW 7, the investigating officer stated that to his knowledge, there was no person of the nearby village near the dead body at the time of recovery. In the statement of PW 3, it had come that when alongwith the police they started searching for their father Damodar Das, at about 7:00 A.M. one person informed them about the dead body, while the investigating officer stated that the dead body was recovered at about 8 o'clock in the morning that Jagdish son of the deceased had given the information of the dead body. Admittedly, these contradictions exist in the statements of witnesses but so far as the contradictions regarding presence of crowd on the spot is concerned, it does not make any difference, as this discrepancy does not go to the root of the case. At the same time, the argument, whether information regarding the dead body was received at 7:00 A.M. or 8:00 A.M. is concerned, it was 7 in the morning or 8 am, it could not be the fixed time rather it could be only the tentative time which cannot be said to be adversely affecting the prosecution case. Apart from this, the witnesses PW-1, PW-2 and PW-3 are the rustic villagers, who do not even know to watch the time in a clock rather they guess the time by connecting the one incident with some other incident. Admittedly, a railway line goes nearby the field of Rajkumar where the witnesses were cutting the crop on the fateful day and as per PW 1 a train used to pass through this railway line at 5:00 PM and this was the time when the train was expected to cross so the witnesses fixed the time of abduction at 18 about 5:00 PM. According to PW 1, he could not read a clock properly. If such a rustic witness disclosed the time of getting information of the recovery of the dead body of his father to be about 7:00 AM, then it cannot be said to be exact 7:00 AM, it may be 8:00 AM also as disclosed by the Investigating Officer in the trial court. So in our opinion, these minor discrepancies in the statements of rustic, uneducated villager cannot be said to be of much importance going down to the root of the matter. Thus, this argument of the counsel for the appellants also has no force.