HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 45
Case :- CRIMINAL APPEAL No. - 5624 of 2004
Appellant :- Anil Kumar
Respondent :- State Of U.P.
Counsel for Appellant :- Hemendra Pratap Singh, A.N.Mishra,Amit Mishra,Dharmendra Singhal,S.K. Mishra, Satyendra Kumar
Counsel for Respondent :- Govt. Advocate,Abhishek Mayank,Anoop Trivedi,R.P.S. Yadav,Vikram Sisodia
WITH
Case :- CRIMINAL APPEAL No. - 5568 of 2004
Appellant :- Raj Kumar & Others
Respondent :- State Of U.P.
Counsel for Appellant :- Amit Misra,Dharmendra Singhal,Viresh Misra
Counsel for Respondent :- Govt. Advocate, Abhishek Mayank, Anoop Trivedi,R.P.S. Yadav, Vikram Sisodia
WITH
Case :- CRIMINAL APPEAL No. - 4798 of 2004
Appellant :- Vipin Kumar @ Vippa
Respondent :- State Of U.P.
Counsel for Appellant :- Amit Mishra,Dharmendra Singhal,Viresh Mishra
Counsel for Respondent :- Govt. Advocate,Abhishek Mayank,Anoop Trivedi,R.P.S. Yadav,Vikram Sisodia
WITH
Case :- CRIMINAL APPEAL No. - 5556 of 2004
Appellant :- Ajay Kumar
Respondent :- State of U.P.
Counsel for Appellant :- Amit Misra,Dharmendra Singhal,Viresh Mishra
Counsel for Respondent :- Govt. Advocate,Abhishek Mishra,Anoop Trivedi,R.P.S. Yadav,Vikram Sisodia
WITH
Case :- CRIMINAL APPEAL No. - 5555 of 2004
Appellant :- Ratish
Respondent :- State Of U.P.
Counsel for Appellant :- Amit Misra,Dharmendra Singhal,Viresh Mishra
Counsel for Respondent :- Govt. Advocate, Abhishek Mishra, Anoop Trivedi,R.P.S. Yadav, Vikram Sisodia
Hon'ble Vikram Nath,J.
Hon'ble Pratyush Kumar,J.
(Delivered by Vikram Nath, J.) All the above 5 appeals filed by the accused are directed against the judgment and order dated 31.08.2004/01.09.2004 passed by the Additional District Judge, Court No.8, Aligarh in Sessions Trial No.803 of 2003, State vs. Anil Kumar and others, under sections 148, 302/149, 307/149, 449, 504, 506 IPC, arising out of Case Crime No.0032 of 2003, P.S. Gonda, District Aligarh, Sessions Trial No.821 of 2003, State vs. Raj Kumar, under section 25 Arms Act, arising out of Case Crime No.44 of 2003, P.S. Gonda District Aligarh, Sessions Trial No.822 of 2003, State vs. Harpal, arising out of Case Crime No.54 of 2003, under section 25 (1) (A) Arms Act, P.S. Gonda, District Aligarh, Sessions Trial No.823 of 2003, State vs. Ratish alias Satish, arising out of Case Crime No.47 of 2003, under section 4/25 Arms Act, P.S. Gonda, District Aligarh, Sessions Trial No.824 of 2003, State vs. Ashok Kumar, arising out of Case Crime No.43 of 2003, under sections 25(1)(A) Arms Act, P.S. Gonda, District Aligarh and Sessions Trial No.25 of 2003, State Vs. Vipin, arising out of Case Crime No.46 of 2003, under section 25(1)(A) Arms Act, P.S. Gonda District Aligarh, whereby all the 10 accused appellants namely Anil Kumar, Raj Kumar, Subhash, Ashok, Rajveer, Babban, Vipin @ Vippa, Ratish, Ajay and Harpal have been convicted under sections 148, 302 read with section 149 and under section 449 IPC and further accused appellant Ashok Kumar, Raj Kumar, Harpal, and Vipin @ Vippa have been convicted under section 25 (1)A of the Arms Act and the accused appellant Ratish has been convicted under section 4/25 of the Arms Act and sentenced for life imprisonment and other allied sentences under different sections.
The prosecution story commences with the submission of a written report dated 18.03.2003 (Ex. Ka-1) presented by the complainant Pradeep Kumar (PW1) at 5.45 p.m. at Police Station, Gonda, District Aligarh, stating that at about 4.30 p.m. in the evening his elder brother Kuldeep, father Chhiddi Singh, uncle Rajendra Singh and Virendra Singh and his cousin Dhirendra Singh and Prem Pal son of Heera Singh resident of Nunera alongwith Lachcho Singh and Devendra Singh of his village after Holi Milan were sitting in his 'Varandah' and were talking to each other when Anil Kumar armed with 'Licensee Rifle', Raj Kumar armed with '315 Bore Pistol', Subhash armed with 'Licensee Double Barrel Gun', Ashok armed with 'Poniya' (short barrel country made gun), Rajveer armed with 'Double Barrel Licensee Gun', Babban armed with 'Single Barrel Gun', Vipin armed with '315 Bore Country-made Pistol', Ratish armed with 'Pharsa', Ajay armed with 'Country-made Pistol', Haripal armed with a 'Country-made Pistol' and Gulab Singh armed with a 'Country-made Pistol' came there abusing them. Accused Anil, Rajveer and Subhash said to Kuldeep that he was acting as a 'Neta' and today we will finish your 'Netagiri', on this Kuldeep and others present there tried to find out the reason for such exhortation whereupon to show their muscle power they dragged Kuldeep, Rajendra Singh, Chhiddi Singh, Virendra Singh on the strength of fire arms with them towards their house and in the lane near the house of Dharamveer, all the accused started indiscriminate firing on all the 4 persons who were forcibly taken by them, accused Ratish assaulted Virendra on his head with 'Pharsa', all the 4 fell down on account of the injuries received by them. The accused also fired towards the remaining persons of the complainant side present there with an intention to kill because of which they could not proceed to save the 4 persons who had been assaulted. In the meantime other residents of the village had also gathered but they all ran away on account of terror created by the accused persons. There was complete silence all around the village. The residents bolted their houses. The assailants left the place wielding their arms and firing in the air and further threatening that if any one tried to take any action against them he would also receive the same fate. After assailants left the place the complainant alongwith others went near Kuldeep, Rajendra Singh, Chhiddi Singh and Virendra Singh and saw that Rajendra Singh had died on the spot on account of fire arm injuries and others were also in critical condition, the family members took the injured Kuldeep, Chhiddi Singh and Virendra Singh for treatment to Malkhan Singh, Hospital, Aligarh. The dead body of his uncle Rajendra Singh was lying at the spot. The assailants were jealous of the prosperity of the complainant and it is for this reason that they bore enmity towards them. I have come to lodge the report which may be registered and appropriate action may be taken.
Constable 503 Anirudh Singh (PW 8) prepared the Chick F.I.R. (Ex. Ka-6). Investigation started and was taken over by Sub Inspector Arun Kumar Singh (PW 11) who at the relevant time was Station Officer of Police Station Gonda. According to the Investigating Officer when he reached the spot there was strong crowd of about 500-700 people and the situation was critical. According to him as some of the residents said that Rejendra Singh was still breathing he was also sent to the Malkhan Singh Hospital, Aligarh alongwith police force. Statement of the informant was recorded at the spot and the site plan was prepared (Ex. Ka-14). Seven blank cartridges were recovered and memo was prepared (Ex. Ka-14 and Ka-15). The 'blood stained' earth and 'plain' earth was collected and a memo was prepared (Ex. Ka-16). He tried to search for the accused but could not find any one of them. On 19.03.2003 i.e. next day inquest of Rajendra Singh's body was prepared (Ex. Ka-11) and other papers were also prepared (Ex. Ka-18 to Ka 22). In the meantime 2 of the 3 injured, namely, Kuldeep and Chhiddi also died and their inquest Ex. Ka-14 and Ka-34 respectively was prepared by Sub Inspector K.P. Singh (PW 15). All the 3 dead bodies were sent for post-mortem. The following ante-mortem injures were recorded in the post-mortem of Kuldeep, Chhiddi and Rajendra Singh Ex. Ka-3, 4 & 5 respectively-
Ante-mortem injury of Kuldeep
1. A gun shot wound of entry 4.0 cm. x 4.0 cm x chest entry deep over left 8 cm above left nipple at 1 o'clock position. Inverted angle.
2. Abrasion 4cm x 4 cm over front knee joint.
3. Abrasion 4.00 cm. x 4.00 cm. front of knee joint
4. Abrasion 8 cm x 4 cm over lateral aspect of right abdomen 6 cam above ....................
Ante-mortem injury of Chhedi
1. A gun shot wound of Entry 40 cm. x 4.0 cm x chest cavity deep over Right side of front of chest 3.0 cm. above right nipple at 2 o' clock position margin inverted front & back.
2. A Abrasion 1.5 cm x 1.5 cm on back of Hand at the root of left thumb.
Ante-mortem injury of Rajendra Singh
1. A gun shot wound (gutter shaped) which track exposed ) from front to back over right side of face and neck starting from Middle of mouth extending up to neck. Size 14 cm x 6 cm x muscle-bone deep. Right side Mandibler and Maxila fractured into pieces. ...........right side of neck in ...............
Virendra Singh was examined at 6.25 p.m. on 18.03.2003 at Malkhan Singh Hospital, Aligarh in which following two injuries were noticed-
1. L/W 5 cm. x 0.7 cm x muscle deep on top of head, 9 cm above of nose-bleeding is ......kept under observation.
2. L/W 3 cm x 0.5 cm muscle deep left side of Head, 6 cm above left ear. KUO.
The accused Raj Kumar, Ashok and Babban were taken on police remand and on their pointing out 'Poniya' 12 bore was recovered on 1.4.2003 which Ashok said that he had used in committing crime on 18.03.2003 in which Kuldeep, Chhiddi and Rajendra Singh died. On the same day on the pointing out of accused Raj Kumar he got a country-made pistol 315 bore recovered 50 meters away from the place where 12 bore 'Poniya' was recovered which he claimed to have used in the crime. Fard (Ex. Ka-23) was written by Head Constable Amar Singh on the dictation of the Station Officer, Yashveer Singh. A case under section 25 Arms Act was registered against Ashok and Raj Kumar. On the same day the Station Officer Yashveer Singh made recovery of 12 bore country-made pistol on the pointing out of accused Harpal. 30 steps from that place accused Vipin pointed out the place from where 315 bore country-made pistol was recovered and further towards the western side of that place accused Ratish got recovered the 'Pharsa' which all the 3 accused claimed that they had used in the crime. Fard (Ex. Ka-24) was prepared by the Station Officer Yashveer Singh.
During the investigation it appears that Smt Malwati wife of deceased Rajendra Singh had also got gun shot injuries, she was examined on 22.03.2003 (Ex. Ka-11) and the following three injuries were noticed-
1. A L.W. 0.2 cm. x 0.2 cm not probed, on L-side upper arm in lower 1/3 hard crest tut Advice X-Ray & K.V.
2. Abrasion 0.2 cm x 0.1 cm on front of left forearm in lower 1/3 Hand crest tut
3. Abraded contusion 1.0 cm x 0.5 cm on the tip index finger Lt. Hand. Advise X ray & ....Hand crest tut. ..........
In the X-ray report of Malwati (Ex. Ka-11) irregular radio opaque shadow of metallic density were seen on the left upper arm and left index finger.
The Investigating Officer had sent blood stained earth and plain earth for chemical examination to the Laboratory. Report from Forensic Laboratory dated 14.08.2003 (Ex. Ka-55) indicated that plain earth and blood stained earth upon physical examination by a Microscope with regard to their density, colour, nature were found to be similar. The fire arm recovered alongwith the used cartridges recovered from the place of occurrence were also sent to Forensic Laboratory for ballistic opinion. The report dated 23.1.2004 (Ex. Ka-56) is also on record. Although according to it nothing of relevance could be reported.
After conclusion of the investigation, charge-sheet was submitted against all the ten accused (Ex. Ka-25). The accused were read out the charges which they denied and claimed to be tried.
The prosecution examined the following 15 witnesses in support of its case-
1. PW 1 Pradeep Kumar- the informant and eye witness.
2. PW 2 Virendra Singh-injured.
3. PW 3 Smt. Malwati- injured
4. PW 4 Dr. Laxmi Kant Ssxena, who had examined Smt. Malwati (Ex. Ka-2).
5. PW 5 Dr. V.K. Singh, who conducted the post-mortem of deceased Kuldeep, Chiddi and Rajednra Singh.
6. PW 6 Constable 1083 Mool Chand who had prepared Chick F.I.R. under section 25 Arms Act on 1.4.2003.
7. PW 7 Dr. S.B. Sharma who had examined the injured Virendra Singh on 18.03.2003.
8. PW 8 Constable 503 Anirudh Singh who had prepared the Chick F.I.R. dated 18.03.2003.
9. PW 9 Dr. S.K. Gupta, Radiologist who had conducted the X-ray of Smt. Malwati (Ex. Ka-11).
10. PW 10 Head Constable Vijay Kumar who prepared the Chick F.I.R. under Section 25 Arms Act on 1.4.2003.
11. PW 11 Sub Inspector arun Kumar Singh who was the first Investigating Officer.
12. PW 12 Sub Inspector, Yashveer Singh, second Investigating Officer.
13. PW 13 Sub Inspector Hakim Singh, third Investigating Officer who submitted the charge-sheet (Ex. Ka-25).
14. PW 14, Head Constable Amar Singh who conducted the investigation on the FIRs. lodged under the Arms Act.
15. PW 15 Sub Inspector K.P. Singh who had prepared the inquest report of deceased Kuldeep, Chiddi Singh and further carried out the investigation relating to the two FIRs registered under the Arms Act.
The statement of the accused were recorded under section 313 Cr.P.C. in which they stated that they had been falsely implicated on account of enmity.
The accused produced Awadhesh Chauhan, Advocate, Civil Court, Aligarh as DW 1, Chaudhary Harnam Singh, Advocate Civil Court, Aligarh as DW 2, and Abhendra Kumar Sharma, Manager, Varun Singh Arms Store Kurawali, District Mainpuri.
Learned Trial Judge upon consideration of the material evidence on record came to the conclusion that the prosecution had established the charges under sections 302 read with section 149, 307 read with section 149, section 148 and section 449 IPC as also under section 25(1)A and 4/24 of the Arms Act against the accused and accordingly convicted them and awarded sentence. While arriving at a conclusion the learned Trial Judge drew support from the statement of the injured PW 2 Virendra and PW 3 Malwati and also relied upon the recovery of the weapons used in the crime on the pointing out of some of the accused.
We have heard Sri Viresh Mishra, learned Senior Counsel assisted by Sri Sandeep Kumar Dubey, learned counsel for all the appellants, Sri Rajiv Kumar Mishra, learned A.G.A. for the State and Sri Brijesh Sahai, learned counsel assisted by Ms. Katyayani, learned counsel appearing for the complainant.
We first discuss the eye witness account as given by the prosecution witnesses PW1, PW2 and PW3.
PW1 Pradeep Kumar is the informant and claims to be present at the time of the occurrence. According to him it was following day of Holi festival. At about 4.30 p.m. he was sitting in the Varandah of his house alongwith Lachhi Singh, Virendra Singh, Devendra Singh, Rajendra Singh Kuldeep Singh, Chhiddi Singh, Dhirendra Singh and Prem Pal Singh. At that moment accused Anil, Subhash and Rajvir came and behind them Gulab Singh, Ratish Singh, Babban Singh, Vipin Kumar, Harpal Singh, Ashok Kumar, Raj Kumar and Ajay also came. Anil was armed with rifle, Rajvir had a gun, Subhash was also armed with a gun, Babban also had a gun, Ratish was armed with a pharsa and the remaining accused were carrying country-made weapons. They all said to his elder brother Kuldeep "Bada Neta Banta Hai Aaj Teri Netagiri Nikal Denge". They dragged his elder brother Kuldeep towards front of the house of Dharamvir. Thereafter Chhiddi Singh, Virendra Singh and Rajendra Singh went to save Kuldeep whereupon the assailants fired at Kuldeep, Chhiddi Singh and Rajendra Singh and Virendra was assaulted by Ratish with a pharsa from the reverse side. Rajendra Singh died on the spot, the other three were injured. The 3 injured Kuldeep, Chhiddi and Virendra were taken to the M.S. Hospital by his family members and he went to lodge the report at the Police Station, Gonda. The complaint was written by him. He verified the complaint and said that it was in his handwriting and contained his signatures. It was marked as Ex. Ka-1. He further stated that at the place of occurrence Malti @ Malwati had also come. The accused were jealous of their prosperity and on this account they bore enmity and had committed the crime. He further went on to say that the accused Raj Kumar and Anil were sons of Gulab Singh. Babban and Vipin were sons of Rajvir. Accused Harpal and Ashok were nephews of Gulab Singh and Ratish accused was brother of Gulab. Subhash was also nephew of Gulab Singh. Accused Ajay was son of cousin of Gulab Singh. Name of Ajay's father is Surendra Singh. He further stated that after lodging the report he returned to his house where Rajendra Singh was not there. Lastly he stated that Chhiddi Singh and Kuldeep Singh died on way to Aligarh.
PW 2 Virendra Singh is the injured. In his examination-in-chief he has stated that the fateful day was the following day of Holi festival. It was about 4-4.30 p.m. in the evening he was sitting in the Varandah of Pradeep and Kuldeep. At that time Kuldeep, Pradeep, Rajendra, Devendra and Lachhi were also sitting. Chhiddi was also sitting in the Varandah. At that time Gulab Singh, Anil, Raj Kumar, Rajvir, Babban, Vipin, Ratish, Harpal, Ashok, Subhash and Ajay came. Rajvir, Subhash and Babban were armed with gun whereas Ajay was armed with rifle. Ratish had a pharsa and remaining persons were armed with country-made weapons. All of them upon arriving abused and said to Kuldeep that "Tu Bada Neta Banta Hai Sale Teri Netagiri Nikalta Hun". Saying this the accused dragged Kuldeep, Chhiddi, Rajendra and Virendra Singh. They took them to the front of the house of Dharamvir. There they shot Kuldeep, Chhiddi and Rajendra and he was assaulted by Ratish with pharsa. The pharsa was used from the reverse side. Rajendra Singh died on the spot. Chhiddi, Kuldeep and he were injured. At the time of assault Malti @ Malwati also came. After committing crime the accused went towards their house firing from their weapons. He, Chhiddi and Kuldeep were taken to the M.S. Hospital, Aligarh. Jogendra and Devendra had taken them. He was medically examined in the Hospital and was admitted. On the next day he came to know that Rajendra was also brought to the Hospital. All the accused are related to each other and belong to the same family. He stated that he belonged to an affluent class because of which the accused bore an enmity. All the accused belong to one family. The accused wanted to kill all of them.
PW 3 Malwati is the wife of deceased Rajendra Singh. She stated in her examination-in-chief that on the fateful day it was about 4.30 p.m. in the evening she was in her house. She heard the sound of fire arm being shot. She came out and went to the front entrance of the house of Dharamvir. There she saw Kuldeep, Rajendra, Chhiddi and Virendra of her family. Rajendra was her husband, Kuldeep was son of her husband's elder brother, Chhiddi was her husband's elder brother and Virendra was her husband's younger brother. She further states that apart from the above persons she saw Gulab Singh, Anil, Raj Kumar, Rajvir, Vipin, Babban, Harpal, Ashok, Subhash, Ratish and Ajay. Anil was carrying a rifle, Rajvir, Subhash and Babban were armed with guns, Ratish was carrying a pharsa and remaining had country-made weapons. They fired shots. The shots fired by them hit Kuldeep, Rajendra and Chhiddi. Ratish assaulted Virendra with pharsa. Rajendra died on the spot. She and Virendra suffered injuries. Chhiddi and Kuldeep after being injured had fallen down. When she had fallen on her husband Gulab Singh fired at her and she received pellet injuries. She became unconscious. She remained unconscious for 3 days. After she became conscious after 3 days of the incident she told Virendra and Sukhvir that she had pellet injuries and was suffering from pain then Virendra and Upendra took her to the Police Station, Gonda. From the police station she was sent to M.S. Hospital, Aligarh alongwith Police Constable where she was medically examined and X-ray was conducted. She further stated that apart from Gulab all other accused are present in Court. The family of the accused on their own have about 120 Bighas land whereas her family owned about 300 Bighas land. That on account of this jealousy the accused had committed the crime.
Apart from the above 3 witnesses of fact the prosecution produced 12 other witnesses PW4 to PW 15 as formal witnesses.
PW 4 Dr. Laxmi Kant Saxena examined the injuries of Malwati (PW3) on 22.03.2003 and proved the injury report (Ex. Ka-2). According to him the injuries were 3-5 days old with a margin of 24 hours on either side. He also stated that the injury nos.2 & 3 were superficial and with regard to the injury no.1 he could not say whether it was superficial or not as he had not measured its depth PW 5 Dr. V.K. Singh had conducted the post-mortem on the body of deceased Kuldeep Singh on 19.03.2003 at 1.00 p.m. He proved the post-mortem-report which was marked as Ex. Ka-3, on the same day he had conducted the post-mortem on the body of the deceased Chhiddi at 2.30 p.m. and on the body of the deceased Rajendra Singh at 2.00 p.m. and proved the post-mortem-reports which were marked as Ex. Ka-4 and Ka-5. He also stated that their death was caused as a result of the ante-mortem injuries and could have been taken place one day before.
PW 6 is CP 1083 Mool Chand who had prepared the Chick F.I.R. under the Arms Act against accused Harpal, Vipin and Ratish on the basis of Fard prepared by Station Officer, Yashvir Singh which he proved and was marked as Ex. Ka-6. He also proved the G.D. entry made on its basis which was marked as Ex. Ka-7.
Dr. S.B. Sharma was examined as PW 7 who had medically examined the injured Virendra Singh (PW 2) at 6.25 p.m. on 18.03.2003 and he proved the injury report which was marked as Ex. Ka-8. According to him the injuries could have been caused around 4.30 p.m. on the same day. He was also shown the pharsa said to have been used in the crime and to have caused injury to Virendra Singh which he stated that if the said weapon was used from blunt side, such injury could have been caused.
PW 8 Constable 503 Aniruddh Singh had prepared the Chik F.I.R. on the basis of the written complaint given by PW 1 Pradeep Kumar, which he proved and was marked as Ex. Ka-9. He also proved that the G.D. entry was made by him and it was marked as Ex. Ka-10.
PW 9 Dr. S.K. Gupta, Radiologist had conducted the X-ray on the left forearm and the left index finger and stated that he had seen Radio Opaque shadows in the left fore-arm and left index finger. He proved the X-ray report which was marked as Ex. Ka-11 and X-ray plate was marked as material Ex.-1. He also stated that the Radio Opaque shadow could have been caused by a fire arm.
PW 10 HCP 19 Vijay Kumar stated that he had prepared Chick F.I.R. on 1.4.2003 under section 25 Arms Act against accused Ashok and Raj Kumar on the basis of Fard prepared by Station Officer, Yashvir Singh and he proved the same which was marked as Ex. Ka-12. He also proved the G.D. entry which was marked as Ex. Ka-13.
PW 11 Sub Inspector, Arun Kumar Singh is the Investigating Officer who stated about his visit to the place of occurrence immediately after the incident took place where he noticed a gathering of 500-700 people and also stated that the atmosphere was tense. He also stated that he sent the dead-body of Rajendra Singh to M.S. Hospital as some persons of the crowd stated that he was still alive and breathing and for this reason he did not prepare the inquest of Rajendra Singh at that time. He further stated that on the pointing out of the complainant he prepared the site plan and proved the same which was marked as Ex. Ka-14. He also stated that he took into possession 7 blank cartridges from the site and prepared the memo which he proved and it was marked as Ex. Ka.-15. He also stated that he collected plain earth and blood stained earth from the place of occurrence and prepared Fard which he proved and was marked as Ex. Ka-16. He further stated that the proceedings continued for the entire night, he tried to search for the accused on 19.03.2003. He got the inquest of Rajendra Singh prepared at the M.S. Hospital Mortuary, and proved the same which was marked as Ex. Ka-17. He also prepared the other police papers for post mortem, they were marked as Ex. Ka-18 to Ka-22. He further stated that the inquest of the other two deceased were prepared by S.I. K.P. Singh (PW15). He further stated that he recorded the statement of the injured Virendra Singh (PW2). He further stated that on 20.03.2003 he reached the village and took statement of the witnesses of the Fard namely Bhanwar Singh and Ramkishan and also Lachhi Singh as witness. He further stated that he was transferred on 20.03.2003. He further stated that he came to know about the death of Chhiddi Singh and Kuldeep Singh on the night of 18/19-03.2003 in the village itself.
PW 12 Sub Inspector, Yashvir Singh is the second Investigating Officer. He took charge as In-charge Station Officer of Police Station, Gonda on 21.3.2003 and took over the investigation from the previous Investigating Officer. He has stated that on 22.03.20103 he received information from the Court that accused Harpal, Ratish, Ashok and Vipin have surrendered before the Court. He recorded their statements on 26.03.2003 with the permission of the Court. He further stated that accused Ashok, Raj Kumar, Babban, Harpal, Vipin and Ratish were taken on police remand by order of the Court. According to him on 1.4.2003 after recording the statements of the accused Ashok, Raj Kumar and Babban he took them to the place where they stated that they had hidden the weapon used in the crime for its recovery. Accused Ashok and Harpal led them on the banks of the canal and Ashok pick up 12 bore 'Pauniya' from shrubs on the banks of the canal which was sealed at about 8.15 a.m. About 50 metres West from the said place accused Raj Kumar picked out a 315 bore country-made weapon from shrubs at about 8.40 a.m. Upon opening it one blank cartridge was found stuck in the barrel which was also sealed. Accused Babban did not point out any recovery. The Fard was prepared in his handwriting which he proved and marked as Ex. Ka-23. It was on its basis that case under section 25 Arms Act was lodged against accused Ashok and Raj Kumar.
Thereafter on the same day at the location indicated by Harpal, Vipin and Ratish they were taken to that place. On the pointing of Harpal a 12 bore country-made pistol, on the pointing of Vipin a 315 bore country-made weapon and on the pointing of accused Ratish one pharsa was recovered. All the weapons were sealed and Fard was prepared in his handwriting at about 1.30 p.m., 2.00 p.m. and 2.40 p.m. Signatures of all the witnesses were taken. He proved the Fard which was marked as Ex. Ka-24. On its basis case under sections 4/25 Arms Act and 25 Arms Act was registered against said accused. He also stated that accused mentioned that they had used these weapons in the crime.
The recovered items which were in a sealed condition were opened before the Court, the 'Pauniya' was marked as Material Ex.-2, the 12 bore country-made pistol was marked as Material Ex-3 and the two 315 bore country-made pistols were marked as Material Ex.-4 & 5. From the other sealed packet pharsa was taken out and was marked as Material Ex.-6. Another sealed packet was opened from which 13 blank cartridges and 5 blank cartridges of 315 bore were taken out and were marked as Material Ex.-7 to Ex-24. He further stated that on 11.04.2003 he recorded the statements of the witnesses Malwati and Dhirendra and others and thereafter he states that the investigation was transferred from him.
PW 13 Sub Inspector Hakim Singh stated that under the orders of the SSP, Aligarh dated 30.04.2003, the investigation was handed over to him. He states that after perusing the Case Diary of the earlier Investigating Officers he started the investigation on 10.05.2003. He recorded the statements of witnesses Kripal Singh, Sarnam Singh and others who had given the affidavits.
On 13.06.2003 he received the X-ray plate and X-ray report of the injured Virendra Singh and copied its contents in the Case Diary. He also recorded the statements of witnesses Lachhi Singh, Dhirendra Singh and Prempal. After completing the investigation he submitted charge-sheet against all the 10 accused which he proved and was marked as Ex. Ka-25.
PW 14 Head Constable Amar Singh proved the site plan which he had prepared on the pointing out of the complainant which were marked as Ex. Ka-26, Ka-27 and Ka-28 relating to the recovery. He further proved the sanction received from the District Magistrate S.M. Bobde Vovdey for prosecuting accused Harpal and Vipin which he proved and marked as Ex. Ka-29 and Ka-30. He further stated that after completing the investigation he submitted the charge-sheet against the 3 accused Harpal, Vipin and Ratish which were marked as Ex. Ka-31, Ka-32 and Ka-33.
PW 15 Sub Inspector K.P. Singh proved the inquest memo of the deceased Chhiddi Singh which was prepared in his handwriting on 19.03.2003 and marked as Ex. Ka-34. He also proved other police papers Ex. Ka-35 to Ka-40.
He had also prepared the inquest memo of deceased Kuldeep which was marked as Ex. Ka-41. He also proved the police papers relating to the said deceased which was marked as Ex. Ka-42 to Ka 48. He also proved the case registered under the Arms Act against the accused Ashok and Raj Kumar which was marked as Ex. Ka-49. He also proved the charge sheet against the accused Ashok and Raj Kumar which were marked as Ex. Ka-51 and Ka-52. He also proved the sanction obtained from the District Magistrate Sri S.M. Bobde against the two accused which were marked as Ex. Ka-53 and Ka-54.
The statement of the accused were recorded under section 313 Cr.P.C. Accused Anil stated that he has been falsely implicated and that he was not present at the place of occurrence. He also stated that with regard to the temple an altercation had taken place with the residents of the Village Nunera and the case registered under section 307 had been settled. On account of this enmity he has been falsely roped in. He also stated that he was not present at the place of occurrence but was at his tubewell which was very far away towards West. That his rifle was already deposited since 15.03.2003.
Accused Babban also denied his involvement and stated that he has been falsely implicated on account of the altercation which had taken place last year over the temple. The altercation had taken place with his Tau (uncle) Gulab Singh. Residents of Nunera had assaulted them and had lodged a report. It is for this reason that he has been falsely implicated.
Accused Rajvir stated that there was a fight in the village because of which a report had been lodged. He also stated that he was not present at the place of occurrence. He was at his fields alongwith his son Babban and Vipin and was reaping potato with them.
Accused Ajay stated that he had been falsely implicated on account of village politics and that he was a heart patient.
Accused Subhash denied his involvement. He stated that about a year ago residents of Nunera had fought with his relatives and on account of the same he was falsely implicated. He also stated that he had a licensee gun which he had deposited on 12.03.2003.
Accused Ratish also denied his involvement and stated that he had been falsely implicated on account of village politics. In reply to question no.25 he stated that no recovery was made on his pointing out and that he was sitting at the police station. He also stated that there were two Lawyers with him.
Accused Ashok also denied his involvement and stated that there were two Lawyers with him and that he was sitting at the police station and that no recovery was made on his pointing out. He also stated that he has been falsely implicated on account of enmity.
Accused Raj Kumar also denied his involvement and stated that he was sitting at the police station, that there were two Lawyers with him and that no recovery was made on his pointing out. He also stated that in the altercation with the residents of Nunera his relatives were involved, that he had been falsely implicated on account of enmity. Accused Vipin also denied his involvement and stated that he was sitting at the police station alongwith two Lawyers and that he was falsely implicated on account of village politics.
Accused Harpal also denied his involvement and stated that he was sitting at the police station and there were two lawyers with him. That he had been falsely implicated on account of altercation which had taken place last year with the residents of Nunera at the temple.
The defence examined Awadhesh Chauhan, Advocate, Civil Court, Aligarh as DW 1, Ch. Sarnam Singh, Advocate, Civil Court, Aligarh as DW 2 and Abhendra Kumar Sharma, Manager, Varun Singh Arms Store, Kurawali, District Mainpuri as DW 3.
DW 1 and DW 2 stated that at the time of passing the orders for police remand the C.J.M. had passed an order that they would remain present with the accused. They also stated that throughout they were with the accused and that no recovery was made on the pointing out of the accused. DW 3 stated that accused Subhash has deposited his D.B.B.L. Gun No.64012 on 12.03.2003. The entry of deposit was made in his register which he proved and was marked as Ex. Kha-3.
Motive plays an important role in criminal jurisprudence. It is normally expected that for no reason a person would not assault another person and that too to the extent of killing three persons of the same family. In the present case Chhiddi Singh, Rajendra Singh and Kuldeep were done to death and Virendra was caused life threatening injuries. Chhiddi Singh and Rajendra Singh were brothers, Kuldeep was son of Chhiddi Singh and Virendra Singh is cousin and the other injured Malwati is wife of deceased Rajendra Singh. To commit such a heinous crime of murdering three persons and causing life threatening injury to other persons belonging to the same family there has to be a very strong reason. Right from the genesis i.e. F.I.R. the only motive indicated up to the stage of the trial is that the complainant side were more prosperous because of which the accused bore jealousy and so committed this drastic act. Further according to the prosecution case it was not a fit of rage or in an inebriated state or on account of any heated argument that this crime was committed but in the late afternoon all the 10 assailants came with a premeditated intention of committing crime of such nature and extent. Dragged the 4 victims i.e. the 3 deceased and the injured Virendra, up to the house of one Dharamvir and in the lane infront of the house of Dharamvir they were shot at because of which 3 persons died and the injured Virendra was assaulted with a pharsa. We find it very difficult to accept the motive or the reason for commission of this crime to come in a preplanned and premeditated manner and enact such heinous crime. In our considered opinion the motive to commit such crime as set up by the prosecution does not inspire confidence. It appears to be a very weak and lame motive.
We are also conscious of the fact that in a case of direct evidence and that too where two injured have also deposed before the Court and the transaction that took place, the motive or the reason to commit the crime loses its significance but at the same time we may record that once the prosecution has set up the motive for committing crime then that motive needs to be established. From the evidence of PW1 to 3 we notice the following significant facts relating to the motive.
PW 1 in his examination-in-chief stated that the assailants were jealous of their prosperity and it is for this reason they committed the crime in the following words-Abhiyuktgan Hamari Sampannata Se Jalte The Isi Ranjis Ke Karan Unhonne Ghatna Karit Ki". The same witness PW 1 in the opening part of the cross-examination stated that they were 3 brothers and had 90 Bighas (Kachcha) of joint holding. They had a Tractor and a Motorcycle, all the 3 brothers had a joint house and had one Gher and a Tubewell. As regards the assailants, PW1 says that he did not know that the assailants had a joint holding of 140 Bighas. He further admits that the assailants had 5 houses, one Gher, One tubewell and that they had a Tractor which had been sold. He further states that comparatively assailants were more prosperous in the following words: "Yeh Kahna Sahi Hai Ki Abhiiyuktagad Hamse Zyada Sampann Hai". He also admits that accused Gulab Singh was a Block Development Officer but as he had embezzled he was sent to jail.
PW 2 injured Virendra Singh in his examination-in-chief states that as they belong to a well to-do affluent family the accused bore enmity in the following words-Hamlog Khate Pite Paise Wale Hai Jis Karan Muljim Hamse Ranjis Mante Hain". Apart from the above PW 2 has not talked about the status of both the families or his holding or the holdings of the accused.
PW 3 Smt. Malwati in her examination-in-chief stated that the family of the accused had 120 Bighas land whereas her family had 300 Bighas of land and on account of this jealousy the accused committed the crime. The exact statement reads as follows: "Abhiyuktgan Ke Kul Pariwar Par 120 Bigha Zamin Hai Hamare Kul Pariwar Par 300 Bigha Zamin Hai Isi Jalan Ke Karan Abhiyuktgad Ne Vardat Ki".
From the above evidence of the witnesses of fact who are the family members of the deceased and the injured, we find that both the parties had large families and held substantial holdings and assets. Both were well to do. It can not be inferred in any manner that there could be any reason of jealousy. As a matter of fact PW 1 Pradeep Kumar son of Chhiddi Singh (deceased) and brother of Kuldeep (deceased) had admitted that the assailants were more prosperous than the complainant side. Thus, the lame reason or the weak motive set up by the prosecution also has no legs to stand.
The finding recorded by the Trial Court on the issue of motive is basically based on the legal proposition that where there is direct evidence of the incident of crime, the motive loses its significance that is to say that even the Trial Court has not been able to fish out any evidence which may establish the motive howsoever weak it may be, as set up by the prosecution. We may quote here with affirmance judgment in the case of Badam Singh v. State of Madhya Pradesh, reported in AIR 2004 SC 26 wherein the Apex Court held that-
"even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case.
It is well settled legal proposition that even if absence of motive as alleged is accepted the same is of no consequence and fades into insignificance when direct evidence establishes the crime. In other words if genesis of the motive of the occurrence is not proved the ocular testimony of the witnesses as to the occurrence cannot be discarded only on account of absence of motive provided that otherwise ocular evidence is worthy of reliance. Thus reliable and credible ocular testimony is a sine quo non for proving the charge even in the absence of an established motive. Reference may be had to the following cases of the Supreme Court-
1. Hari Shankar vs. State of U.P., (1996) 9 SCC 40
2. Bikau Pandey & Ors. State of Bihar, (2003) 12 SCC 616.
3. Abu Thakir & Ors. Vs. State of Tamil Nadu, (2010) 5 SCC 91.
Further in the case of Shivji Genu Mohite vs. State of Maharashtra, reported in AIR 1973 SC 55 it was held that-
"in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such case if a motive is properly proved such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if a motive is not established the evidence of any eye-witness Is rendered untrustworthy.
Again the Supreme Court in the case of State of U.P. Vs. Kishanpal & Ors., reported in (2008) 16 SCC 73 held that -
"The motive may be considered as circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive looses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
Having considered the law on the point we now proceed to deal with ocular testimony and test whether it is reliable or not so as to prove the charge even in the absence of the motive, with regard to which we have already recorded a finding that the prosecution failed to set up a strong motive and even the evidence with regard to the weak motive set up by the prosecution does not inspire confidence.
There are three witnesses of fact, namely, PW 1 Pradeep Kumar (informant), PW 2 Virendra (injured) and PW 3 Smt. Malwati (injured). All three of them have claimed to have seen the incident. The entire incident is in two parts. The first part relates to the arrival of the accused and forcibly dragging the four persons from the complainant side namely, the three deceased Kuldeep, Chhiddi Singh and Rajendra Singh and the injured Virendra. The second part is of firing and causing injuries by use of Pharsa to the injured Virendra at the place where they were dragged.
We now proceed to examine as to whether all the three witnesses of fact PW 1, PW 2 and PW 3 had actually witnessed the entire incident comprising both the parts.
PW 1 Pradeep Kumar in his statement-in-chief has stated that he was present at the Chabutara of Chhiddi Singh from where Kuldeep, Chhiddi Singh, Rajendra Singh and Virendra Singh are said to have been forcibly dragged away. PW1 does not say that he followed the accused persons to the place where the assailants dragged the three deceased and the injured Virendra. PW 1 further does not say that he had a clear vision of the place i.e. lane infront of the house of Dharamvir where the firing and assault is said to have taken place. From a perusal of the site plan (Ex. Ka-14) we notice that the house of Dharamvir was in a lane perpendicular to the lane adjoining the Chabutara of Chhiddi Singh and thereafter it again took a turn to the west. The lane is not very wide but according to the statement of PW1 and PW2 itself, it is about 10-12 feet wide. The house of the accused Gulab Singh is infront of the Chabutara of Chhiddi Singh and after the lane running infront of the Chabutara of Chhiddi Singh connected to another lane running north-south, across the house of Gulab Singh is the house of Heera Singh. Further the place where the assault is said to have taken place is after where north-south lane takes a further turn towards west. The site plan Ex. Ka-14 also is indicative of the fact that PW1 Pradeep Kumar from the Chabutara where he was sitting could not have a clear vision of the actual place of assault. There were houses which would cause the obstruction. It would thus be safe to conclude that PW1 Pradeep Kumar did not see actual incident of shooting and assaulting. He is only a witness of the 1st part of the transaction.
PW 2 Virendra injured is the witness who claims to have seen the entire occurrence comprising of part one and part two i.e. dragging away the three deceased and the injured PW 2 and thereafter causing fire arm injuries and assaulting by Pharsa resulting into death of Kuldeep, Chhiddi Singh and Rajendra Singh and injures to Virendra Singh PW 2. We will discuss the veracity of the statement of Virendra Singh PW2 at a later stage.
PW 3 Smt. Malwati also an injured in her statement has not stated anything about the dragging of four persons from Chabutara of Chhiddi Singh by the accused persons. She has very clearly stated that after hearing sound of 8-10 fire arm shots she came out of her house and reached the spot where her husband Rajendra was lying on the ground and she fell upon him and at that stage accused Gulab Singh is said to have fired on her causing injuries to her index finger of the left hand. To quote from her examination-in-chief PW3 stated as follows-"Ghatna Kareeb Ek Varsh Pahle Ki Hai, Sham Ke Kareeb Sadhe Char Baje Ka Samay Tha. Us Waqt Main Apne Ghar Par Thi. Maine fire Ki Awaz Suni. Main Apne Ghar Se Nikal Kar Dharamvir Ke Darwaje Par Ayee". Further in her cross-examination she stated as follows-"Maine Ath Dus Fire Ki Awaz Suni Tab Main Bhagkar Ghatna Sthal Par Gai". From the above statement of PW3 it can be safely inferred that she actually did not witness the incident. She started from her house after hearing sound of 8-10 gun shots. The incident of causing injuries by fire arm had thus already taken place. She was thus, not an eye witness of the entire incident relating to dragging of the injured and the deceased from Chabutara of Chhiddi Singh and causing the fire arm injuries and injuries of Pharsa. The only part of the entire transaction which Malwati could have seen as per her own statement was the alleged assault by Gulab Singh firing at her causing injuries in her index finger of left hand. Her statement to the effect that the accused fired which caused fatal injuries to Kuldeep, Rajendra and Chhiddi and Pharsa injury to Virendra cannot in any manner be considered reliable.
There are other strong reasons to discredit the presence of PW 3 Malwati. She has not been shown in the FIR to be present or having received injuries. Even in the statement under section 161 Cr.P.C. the complainant PW 1 or the other injured PW 2 have not taken the name of Malwati to be an injured eye witness. She has been introduced after 3 days. The explanation given is that she was unconscious for 3 days and after gaining consciousness she informed the informant. It is only then that she was taken to the police station, papers were prepared for examination of her injuries and she was medically examined.
From the above it is clear that it is only PW2 Virendra who could have witnessed the entire transaction. Other two witnesses namely, PW1 and PW2 have actually not seen the incident of causing fatal injuries to Kuldeep, Chiddi Singh, Rajendra Singh and Pharsa injuries to Virendra. We thus, have now the solitary testimony of Virendra with regard to actual assault and firing.
PW 2 Virendra Singh, the injured, is also of the same family as the deceased Chhiddi Singh, therefore, he would fall in the category of interested witnesses. His testimony is to be scrutinised with caution and care. The FIR mentions that the assailants had forcibly dragged the three deceased and the injured. No distinction was drawn as to who was taken first and who was taken later. PW1 Pradeep Kumar stated in his examination-in-chief that the assailants first dragged Kuldeep Singh to the place where firing took place i.e. is in front of the house of Dharamvir. He further states that Chhiddi Singh, Virendra Singh and Rajendra Singh followed in order to save Kuldeep and then the firing took place in which Kuldeep, Chhiddi Singh and Rajendra Singh received fire arm injuries whereas Virendra, the injured received Pharsa injuries from Ratish. He also specifically states that the Pharsa was used from the reverse side which is not the natural manner in which a Pharsa would be used. To be accurate the extract of the statement of PW1 Pradeep Kumar is reproduced below-
"Yeh Sab Log Akar Mere Bade Bhai Kuldeep Se Bole Ki Bada Neta Banta Hai Aaj Teri Netagiri Nikal Denge. Yeh Sab Lok Mere Bade Bhai Kuldeep Singh Ko Dharamvir Ke Ghar Ke Samne Kheenchkar Le Gai. Kuldeep Ko Bachane Chhiddi Singh, Virendra Singh Va Rajendra Singh Bachane Gai To Kuldeep, Chhiddi Singh Va Rajendra Singh Ko Muljiman Ne Goli Mar Di. Tatha Virendra Ko Ratish Ne Pharsa Se Mara. Pharsa Ulti Ore Se Mara."
In the statement-in-chief PW 2 Virendra stated that the assailants after challenging Kuldeep dragged all four of them to the front of the house of Dharamvir where they assaulted Kuldeep, Chhiddi and Rajendra by fire arm and he was assaulted by a Pharsa by Ratish. The Pharsa was used by the reverse side. To be exact extract of statement of PW2 is reproduced below-
"In Sab Logo Ne Aakar Gaali Di Tatha Kuldeep Se Kaha Ki Tu Bada Neta Banta Hai Sale Teri Netagiri Nikalta Hun. Yeh Kahkar Abhiyuk Gan Kuldeep Chhiddi Rajendra Tatha Mujhe Kheenchkar Le Gaye. Yeh Log Hame Dharamvir Ke Darvaje Ke Samne Le Gaye. Vahan In Logo Ko Kuldeep Chhiddi Va Rajendra Ko Goli Mar Di Mere Ratish Ne Pharsa Mara. Mere Pharsa Ulti Taraf Se Mara Tha."
In the first sentence of his cross-examination PW 2 Virendra stated that they were all dragged together. Later on he stated that Kuldeep was taken one minute before and other three were taken after one minute. This part of the statement is also reproduced below-
"Muljiman Sabko Sath Kheenchkar Le Gaye The Kuldeep Ko Yek Minute Pahle Tatha Ham Teeno Ko Yek Minute Bad Kheenchkar Le Gaye The."
At this stage an application was moved by the defence for adjournment and the case was posted for next day i.e. 18.03.2004. On the said date an application was moved on behalf of the prosecution to further continue the examination-in-chief of PW2 as incorrect statement has been given by him which needs to be corrected. Upon being questioned he stated that Kuldeep was taken one minute before the other three. He has tried to confuse this part of the statement and in cross-examination has stated that his statement to the effect that all four were dragged together and the dragging of Kuldeep one minute before the other three are both correct with further clarification that Kuldeep was dragged one minute before in the lane. The extract of his statement to the aforesaid effect is reproduced below-
"Charon Ko Yek Sath Kheenchkar Le Jane Wali Baat Va Kuldeep Ko Teeno Se Yek Minute Pahle Kheenchkar Le Jane Wali Baat Dono Baat Sahi Hai. Kuldeep Ko Abhiyuktgan Yek Minute Pahle Kheenchkar Raste Me Le Gaye.
PW2 in his statement has assigned specific weapons to all the ten assailants but has not been able to state as to which of the ten assailants dragged him from Chabutara of Chhiddi Singh to the place infront of the house of Dharamvir where the assault took place. He has also not stated as to which of the assailants dragged Kuldeep and the other two deceased namely Rajendra and Chhiddi. From the FIR version that all the four were dragged together, the statement of PW1 that Kuldeep was dragged first and thereafter to save him other three Chhiddi Singh, Virendra Singh and Rajendra Singh went, clearly meant that Chhiddi Singh, Virendra Singh and Rajendra Singh were not dragged but had gone on their own to save and help, Kuldeep and the statement of PW2 that the assailants had dragged all four of them forcibly, and that Kuldeep was dragged first and other three were dragged one minute thereafter do not reconcile with the actual happening. This is a material inconsistency in the statement of PW1 & PW2 from the version as recorded in the FIR. PW2 has tried to improve his statement to cover up and corroborate with the statement of PW1 and in that process his testimony on this first part of the transaction appears to be tutored.
In the FIR there is no mention that the injured Virendra Singh PW2 was assaulted by Pharsa by accused Ratish from the reverse side. The statement of PW1 & PW 2 that Pharsa was used from reverse side was only an improvement to cover up the medical evidence which did not indicate any incised injury (Ex. Ka-8). It indicated two lacerated wounds caused by hard and blunt object. The prosecution took that risk of improving the statements of PW1 & PW2 to state that Pharsa was used from the reverse side. In our opinion this statement further weakens the prosecution evidence as it has been sought to improve and explain the injury of Virendra. The prosecution was at liberty to have maintained its stand of a Pharsa injury by not introducing its reverse side and thereafter would have argued that medical evidence being corroborative in nature could not prevail or disapprove the direct evidence with regard to the manner of use of Pharsa. Attack by Pharsa may not necessarily result into the sharp metal part hitting the body but the longer part which is Lathi a wooden stick could always cause injury. This could have been explained by the prosecution.
The defence had suggested to PW2 that in fact on that day of incident a Tableau (Chaupayiya) procession was being taken out in which some untoward incident had taken place, firing had also taken place and thereafter followed by stampede in which he suffered injuries.
We may also record here that the statement of PW2 nowhere mentions as to which of the assailants fired at each of the deceased. A generalised statement has been given that the assailants fired at Kuldeep, Chhiddi and Rajendra.
Such generalised statement with regard to the firing by 8-9 persons causing merely three gun shot wounds, one each to the three deceased makes the prosecution case doubtful and extends benefit to the accused. There is one more reason to discredit the oral testimony of PW 1 to PW 3. All three witnesses of fact appear to be tutored. They in fact did not see the occurrence. All have equivocally stated the specific weapon with which each of the ten assailants were armed. However none of the three witnesses including injured Virendra PW 2 could describe the manner of the dragging of each of the four victims and also as to which of the assailants caused injury to each of the three deceased.
As already discussed above, PW 2 Virendra one of the injured is the only witness of the entire prosecution. It is well settled that conviction can be based on testimony of a single witness and specially where the witness is an injured witness. At the same time the Court is also to be conscious of the fact that the testimony of the injured witness should be truthful, credible and worthy of reliance so as to record conviction. In case the deposition of the single injured witness is not found wholly reliable or credible then support will be drawn and his testimony be corroborated by other eye-witnesses. In the present case we do not have any other eye-witness worthy of reliance who could depose about the entire transaction. The Apex Court in the Case of Joseph vs. State of Kerala, reported in AIR 2003 SC 507 was of the view that-
"When prosecution case rests mainly on the sole testimony of an eye-witness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.
Further in the case of Muthu Naicker @ Ors. v. State of Tamil Nadu, reported in AIR 1978 SC 1647 the Supreme Court explained by stating that-
"in a situation where a witness has been attacked by the members of an unlawful assembly composed of a large number of persons, the court should carefully consider the question of the credibility of such a witness. Where the court is of the view that the testimony of such a witness is in the facts and circumstances of the case not reliable, it should insist that such testimony be corroborated by one or more other witness before it can be accepted by the Court."
A similar view has also been by the Apex Court in the case of Binay Kumar Singh v. State of Bihar, reported in AIR 1997 SC 322, wherein the Apex Court has held as follows-
"There is no rule of evidence that no conviction can be based unless a certain minimum number cf witnesses have identified a particular accused as member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as member of an unlawful assembly. All the same when size of the unlawful assembly is quite large(as in this case) and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as participant in the rioting.
Similarly, in Kamaksha Rai & Ors. v. State of Uttar Pradesh, reported in (1999) l8 SCC 701 Supreme Court observed that-
"Taking into consideration the nature of attack and the possibility or otherwise of the identification of these accused persons by the prosecution witnesses and bearing in mind the principles laid down by this Court in the above- cited judgments, we are of the opinion that it is not safe to rely on the evidence of witnesses who speak generally and in an omnibus way without specific reference to the identity of the individuals and their specific overt acts in regard to the incident ..."
A similar view has been reiterated by the Supreme Court in Chandra Shekahar Bind & Ors. V. State of Bihar, reported in (2001) 8 SCC 690.
In the case of Dahari and others vs. State of U.P. reported in (2012)10 SCC 256 the Apex Court observed-
"It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case."
Once we are not convinced with the direct evidence led by the prosecution that it had proved beyond all reasonable doubt the charges levelled against the appellants we are unable to arrive at a conclusion of conviction. The appellants are entitled to be given benefit of doubt. We accordingly set aside the judgement of the Trial Court, allow the appeals and acquit all the accused. The accused are on bail. Their bail bonds are cancelled and the sureties discharged.
Appeals stand allowed as above.
Order Date :- 14.8.2015 RPS