The evidentiary value of hostile witnesses can support the prosecution case if found credible, notwithstanding the non-recovery of weapons or procedural lapses.

JUDGMENT

Umesh Chandra Sharma, J.

Heard Mr. Vinod Kumar Tiwari, learned counsel for the appellants, Ms. Anupriya Jaiswal, learned AGA, Sri Devanshu Pratap Singh Brief Holder for the State and perused the record.

2. This appeal has been preferred against the judgment and order of conviction and sentencing dated 19.05.2000 passed by the Special Judge (PC Act)/Additional Sessions Judge, Lucknow in ST No. 655 of 1997 alongwith ST No.655A of 1997 (State v. Dharmesh and others), arising out of Case Crime No.80 of 1997, Police Station Banthra, District Lucknow by which the learned trial Judge convicted all the three accused persons under Section 323 read with Section34 IPC and sentenced them for rigorous imprisonment of one year, under Section 308 read with section34 IPC for rigorous imprisonment of five years, under Section 504 IPC for rigorous imprisonment of six months, under Section 506 IPC for rigorous imprisonment of one year and awarded ten years rigorous imprisonment under Section 304 read with section34 IPC. It was also directed to run all the sentences concurrently.

3. During the pendency of appeal convicts Jang Bahadur and Subhash Yadav have died and the appeal survives only in respect of appellant no.2, Darmesh Yadav.

(I) Grounds of appeal-

4. The appellants have taken grounds in the appeal that; (i) that PW-3, Sushil Kumar had simply written the FIR on the dictation of the IO even then the trial Judge has concluded that the FIR was proved according to the Indian Evidence Act; that such approach of the trial court is perverse; that the learned Sessions Judge has also erred in holding that from the evidence of PW-1, PW-3 and CW-1 the alleged occurrence has been proved because these witnesses have not supported the prosecution version; that PW-4 and PW-5 have not supported the statements of each other and there are material contradictions in their evidence which create serious doubts of their presence and the learned Sessions Judge has ignored such contradictions which rendered the conviction of the appellants; that the learned Judge has wrongly relied on the statement of PW-4 who was not interrogated by the IO as he has accepted in his statement that he was not interrogated by the IO during the investigation since there is no evidence on record to prove that any lacerated wound had occurred to the deceased even then the trial Judge recorded that the blood was oozing and had fallen on the earth from the person of the deceased and the same was collected by the IO; that in absence of that, the place of occurrence cannot be said to have been proved; that the finding of the Sessions Judge that not taking the towel in the custody would not disprove the prosecution case is incorrect and it has resulted into great miscarriage of justice; that the Sessions Judge has also erred in misreading the death memo (Ex.Ka-5); the name of the deceased Om Prakash @ Ram Prakash while the death memo is of Ram Prakash only which has resulted into great miscarriage of justice; that the learned Sessions Judge has also erred in law and fact in holding that the deceased died at 11:12 a.m. contrary to the doctor PW-6 noting to the time of death at 03:00 a.m. thus, the trial Judge has misread the evidence on record; that the learned Sessions Judge has also erred in law and fact that the statement of the IO recorded in the court was correctly recorded; that the learned Sessions Judge has erred in holding that