Alam Singh @ Vijay Pratap Singh vs State Of U.P.
2011 Latest Caselaw 3676 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED

CRIMINAL CAPITAL APPEAL NO 6742 OF 2009

Alam Singh....................v.................State of U.P.

Reference No 15 of 2009

Hon Imtiyaz Murtaza J.

Hon. Jayashree Tiwari, J

(Delivered by Hon Imtiyaz Murtaza J)

Challenge in this appeal is to the judgment and order dated 30.10.2009 rendered by Addl District and Sessions Judge/Special Judge Jaunpur in Sessions Trial No 340 of 1998 (State of U.P v Gajraj Singh and others) whereby appellant Alam Singh alias Vijay Pratap Singh, has been convicted under section 302/149 IPC and again under section 307/149 and again under section 148 IPC IPC and in ultimate analysis, the appellant has been visited with the penalties of death and imprisonment for life and two years' R.I. with default stipulation of Rs 50,000/-, Rs 25000/- and Rs. 5000/- respectively.

Filtering out unnecessary details, the facts of the case are that on 24.1.1996 at about 5.30 pm, deceased Raj Kumar Singh and the informant namely, Manoj Kumar Singh (PW 2) were busy conversing with each other near a tea stall situated on Bhadohi- Jaunpur Road in Jamalpur Bazar in the district of Jaunpur. After a short-while, they were joined by Kailash Dubey of village Dhorhara and Bankey Lal Tiwari of village Kumbhpur. While all of them were busy discussing topic of election, a white Maruti Van coming from Madiyayee screeched to a halt at some distance from the place where these people were standing and out of the said Maruti Van alighted accused Gajraj Singh and his son Alam Singh who were, it is stated, armed with rifle and that immediately, accused Gajraj Singh exhorted his son to do away with these people and as a sequel to exhortation, it is alleged, Alam Singh fired aiming at Raj Kumar which hit the informant and his brother Raj Kumar. Thereafter, 4-5 other accused persons alighted from the said Maruti Van and started firing indiscriminately in which Bankey Lal Tiwari sustained fire arm injuries who immediately fell down and succumbed to injuries instantaneously. The other people present there namely, Ram Asrey Singh, Indrajeet Singh, Samar Rajbhar, Renu, Dhirendra Tiwari etc also sustained fire arm injuries. In the meanwhile, it is mentioned, the condition of Raj Kumar and Kailash Dubey became critical and the two seriously injured persons with one Shiv Ram Singh were immediately rushed on a vehicle to Jaunpur. At district hospital, it is further mentioned, the Doctor declared the two persons brought dead. It is mentioned that the incident was witnessed by the informant, his brother Shiv Ram Singh, Dinesh Singh, Indra Jeet Singh Lalta Dubey Keshav Mishra etc and other persons present in the market. The informant also cited motive of the crime to be the animosity and consequent hostility on account of the last election of Block Pramukh. The informant also mentioned that the other persons who were unknown to him and the witnesses present on the spot could be recognised if they were paraded before them.

The report was registered at case crime No 70 of 1996 under section 147, 148, 149, 302, 307/34 IPC naming Gajraj Singh Alam Singh and 4-5 unknown persons. The inquest was conducted on 24.1.96 at 10.30 am. The post mortem examination on the bodies of deceased Kailash Dubey, Bankey Lal Tiwari and Raj Kumar was conducted on 25.1.96 in the district hospital.

After completion of investigation, the charge sheet was submitted in Court. The police submitted first charge sheet against accused Gajraj Singh and Alam Singh and second second charge against accused Guddu alias Abhishekh and Rajesh Dubey vide Exts 33 and 31 respectively.

The prosecution examined as many as 19 witnesses out of which PW 1 Rama Shanker Singh, PW 2 Manoj Kumar Singh PW 3 Samar Nath, PW 4 Manoj Kumar Singh son of Nar Singh, PW 5 Gappu alias Karmendra Singh, PW 6, Renu, PW 7 Ram Asrey Singh were projected as witnesses of fact while other witnesses were brought in as formal witnesses.

It is worthy of notice here that accused Gajraj Singh and Guddu alias Abhishekh breathed their last during the course of trial and hence trial was ordered to have abated against them.

The accused denied to have committed any crime alleging that he and his father had been falsely nominated in the case on account of election rivalries and resultant hostility and animosity with the deceased and his family. It is further stated that the crime was committed by unknown persons but subsequently, when the unknown persons could not be identified, the police embroidered the entire theory and concocted the entire case and obtained the written report on dotted lines setting out all incorrect details. It is further stated that the crime was committed by firing from AK 47 and this weapon has not been found to be in their possession nor such weapon has been recovered. It is further mentioned that his father Gajraj Singh was already incarcerated in prison in Pratapgarh jail and therefore, he was falsely set up to be present on the spot. It is further mentioned that at the time of incident, SO PS Rampur was present near the place of incident but he has been obliterated from the entire scenario and is not shown to have chased the culprits nor he is said to have relayed any information to higher authorities. He also stated that all the witnesses who were by the prosecution witnesses as witnesses of fact were the partisan witnesses being the own members of the family of the deceased. His defence furrther was that he had no enmity with Raj Kumar and there was no question of opening fire at Raj Kumar. Lastly, he stated that he was falsely nominated in the case.

The accused Rajendra Dubey also abjured the guilt stating that he has been falsely nominated in the case and that the witnesses have falsely deposed against him on account of enmity and also under duress exerted by the police. He also stated that his uncle was murdered by Kailash Dubey and it was for this reason that he was nominated in the case.

The Sessions Judge relying upon the prosecution evidence recorded verdict of conviction against the appellant as aforesaid. Hence this appeal.

We have elaborately heard Sri Gopal Chaturvedi and Sri V.P.Srivastava Senior Advocate who was assisted by Lav Srivastva and Sri Vikas Chandra Srivastava for the appellant and Sri D.R.Chaudhary, Government Advocate, who was assisted by Sri Arunendra Singh, Ms Usha Kiran, Sri Anand Tiwari and Sri a.n. Mulla, Additional Government Advocates.

Per contra, learned AGA has canvassed for the correctness of the view taken by the trial Judge attended with the submission that sufficient evidence was adduced by the prosecution and the Sessions Judge rightly convicted the appellant relying on the prosecution evidence.

In order to appreciate the aforesaid rival contentions of learned counsel for the parties, we have to independently scrutinize the oral as well as the documentary evidence brought on record by the prosecution.

P.W.1 Ramashanker alias Lalta Prasad Dubey, to begin with, gave backdrop of the events leading to occurrence. He deposed that Kailash Dubey was his nephew. His nephew, he further deposed, had won election defeating his immediate rival Ram Surat Singh. He further deposed that the election agent of Ram Surat Singh was the Gajraj Singh who was arrayed as co-accused in the instant case. The appellant Alam Singh is the son of accused Gajraj Singh. At the time when the occurrence had taken place, his nephew Kailash Dubey was the elected member of District Panchayat. He also deposed that Raj Kumar and Kailash Dubey were very friendly and were on intimate terms and both owed allegiance to Congress party while Gajraj Singh and Alam Singh belonged to Samajwadi Party. Recalling past events, he deposed that accused Alam Singh and Gajraj had opened fire at the supporters of Kailash Dubey in village Madiyar and village Kamarpheenpur during election whereupon case under section 307 IPC had been registered against them. He also deposed that on the day of occurrence, they had started from Madiyaoon for his residence in the car of Kailash Dubey alongwith other persons and seeing Raj Kumar Singh near the platform (Chabutra) aforesaid, Kailash Dubey stopped his car there. Raj Kumar, he further deposed was busy conversing with his brother Manoj Kumar Singh. After alighting from his car, Kailash Dubey also joined Raj Kumar Singh in conversation. He also gave precise details about other persons who were standing nearby and were busy talking. It is deposed that while they were busy talking, a white Maruti Van arrived from Madiyaoon and stopped at a place nearby, from which accused Gajraj Singh and Alam Singh alongwith some unknown persons alighted and out of them, Gajraj Singh exhorted his son Alam Singh and his accomplices to do away with all the persons standing there and while exhorting, he also picked up his rifle and opened fire at Kailash Dubey. On the other hand, Alam Singh opened fire at Raj Kumar Singh. The other persons opened fire indiscriminately at other persons and in the indiscriminate firing, Bankey Lal Tiwari was hit and he fell on the east side of the platform. Raj Kumar Singh after being hit by firing, fell down at the place where he was standing while Kailash Dubey tried to rush towards his car for shelter but before he could reach his car, he was also hit by the bullet and fell down. He also deposed that in the firing, other persons namely Samar Nath, Ram Asrey Singh and Dhirendra Tiwari and one girl Renu were injured. He also deposed that Bankey Lal Tiwari succumbed to injuries on the spot. He also deposed that Raj Kumar Singh and Kailash Dubey were taken to hospital at Jaunpur in a vehicle by him and Manoj Singh. The witness also stated that his statement was recorded by the investigating officer. He recognised one of the persons in court as one of 4-5 unknown persons who had opened indiscriminate firing was present on the spot. The witness beaconed towards Prem Singh alias Munna stating that he was one of the unknown persons who had opened fire.

In the cross examination, he explained that in his academic testimonials, his name was mentioned as Sabha Shanker and his alias as Lalta Prasad is nowhere mentioned. He however stated that in the revenue records his name was at some place mentioned as Sabha Shanker and at some other place as Lalta Prasad. He also stated that in and around the area, he was known by his name Lalta Dubey. He further stated that the Station officer knew him by his name Lalta Dubey and therefore, he mentioned his name as Lalta Dubey. He also stated that after the incident, he had gone to hospital while Manoj Kumar Singh had gone to lodge the FIR at the police station accompanied by several persons. He also stated that at the time when the report was scribed at the scene of occurrence, he was present. He also stated that the Maruti Van in which the injured was taken to hospital belonged to some Patel of village Sarauni and he gave number of car as 2213. He also stated that Raj Kumar, Kailash Dubey and other injured persons remained lying at the scene for quarter to one hour. He also stated that in the meantime, SO Awadhesh Narain Singh alias Loha Singh had come at the place but he was not accompanied with any constable. However, he denied that there was any police personnel present at the time when firing was going on. He also stated that the police station lay at a distance of about 6 to 7 kms from the place of occurrence and the police was not given any information about the incident for about quarter to one hour. He also stated that rifle of Kailash Dubey was in the custody of his guard Keshav Mishra and he had also fired in retaliation. He denied knowledge whether the rifle was taken into custody by the police or not. He also denied knowledge as to what happened to Maruti Van. He however stated that since Maruti Van belonged to Kailash Dubey he could not tell whether Maruti Van remained intact in the incident or it was also damaged in the firing. He also denied knowledge whether Maruti Van was taken into custody by the police or not. He however, stated that it entailed about half an hour in arranging vehicle for transporting injured to the hospital. He also stated that he had gone to Varanasi next day for cremating the deceased. He also stated that he had disclosed the name of assailants to Station officer and not to any other officers of the police station. He also stated that in his presence, none of the police personnel visited the place of occurrence. He also stated that while going to Jaunpur from district hospital, police station Rampur fell in mid-way but he did not give any information at the police station about the incident. He also stated that he could not recollect whether investigating officer had interrogated him or not. He also stated that on 2.2.96, he came to know that Gajraj was lodged in Pratapgarh Jail from prior to the incident. He tried to explain that he had seen the person who had close similarity with the features of Gajraj Singh and therefore he mentioned the name of Gajraj Singh as the assaillant. He also stated that he could not tell the investigating officer about his misconception about Gajraj Singh and he for the first time, was revealing this fact in his deposition before the court. He conceded that Gajraj Singh was not involved in the incident nor he had fired shot at Kailash Dubey with his rifle. However, he denied the suggestion that he had named Alam Singh son of Gajraj Singh on account of his enmity with Gajraj Singh. He also stated that he had not gone to the house of Alam Singh alongwith police force and that the police force had gone to the house of Kailash Dubey between 26th and 27th Jan 1996 and it was there that he was asked to call on the investigating officer at that house. He also stated that the investigating officer had enquired from him as to who had opened fire and he narrated the details of incident. However, he could not say with certainty whether this fact was noted by the investigating officer or not. He also dwelt upon precise details about distance of the place of occurrence, about the time of occurrence and also who had lodged the FIR. He also explained why they happened to be at the place of occurrence. To sum up the lengthy cross examination, the witness denied the suggestion that he had not accompanied Kailash Dubey in his Martui Van to Marhiyahoo Tahsil and further that the incident had not taken place on way back from the village. He also denied that he heard of the incident late in the night and therefore, he rushed to Jaunpur where he found Kailash Dubey and Raj Kumar already dead. He also denied the suggestion that on being primed by the police, he was deposing falsely and had nominated Alam Singh as the assaillant in the incident. He also denied the suggestion that he had no personal knowledge about the incident. He further denied the suggestion that the crime was committed by some unknown assailants and it was for this reason that he was silent and did not disclose the names of the accused persons. He also denied the suggestion that on account of being uncle of Kailash Dubey, he was falsely deposing against the appellant.

P.W. 2 Manoj Kumar Singh in his deposition mentioned about the topography of the place where the incident took place. About deceased Kailash Dubey, he deposed that prior to the occurrence Kailash Dubey was member of District Panchayat and he had won the election against accused Gajraj Singh and prior to his being elected as member of Panchayat, he held the office of Block Pramukh Rampur Block. He also deposed that Kailash Dubey had won the election defeating Ram Surat Singh and in the said election accused Gajraj was polling agent of Ram Surat Singh. In the said election, it is deposed, Gajraj and Alam Singh had fired at the chest of Kailash Dubey and as a consequence, a case under section 307 IPC was registered against them. He also deposed that both Kailash Dubey and Raj Kumar Singh had contested election in their respective areas and had won the election. Besides, they had become very friendly. He also deposed that on the other hand, Alam Singh and Gajraj Singh were inimically disposed and thus there was a running feud between Kailash Dubey and Raj Kumar on one hand and Gajraj Singh and Alam Singh on the other hand. He also reiterated the details of incident as contained in the testimony given by PW 1. As regards the identity of Gajraj Singh, he deposed that some person with selfsame features as Gajraj Singh had alighted from the Maruti Van and had committed the crime and it was on account of this reason that Gajraj Singh was named as one of the assailant alongwith Alam Singh and others.

He explained in detail how he had lodged the FIR. The explanation offered by him is that there was a melee similar to stampede in the market and the condition of Raj Kumar and Kailash Dubey was very critical. After arranging vehicle from nearby village, the injured were taken to hospital at Jaunpur. On reaching hospital the Doctor declared both injured dead. He also deposed that at the time of incident, the police personnel including Station officer were present but they were quite far away from the place of occurrence and they could arrive only after the assaillants had escaped. He also deposed that after reaching hospital, he scribed the report. Initially, he thought he would send the written report through someone to police station but subsequently, he personally went to the police station and handed over the written report. The written report was handed over to Head Moharrir who after lodging the report, handed over the copy of the report to him. He also stated that at that time, the station officer was not present at the police station. He also stated that after handing over the written report, he set out for Jaunpur and on way to Jaunpur, he made a halt at Jamalpur where Station officer wanted to take his statement but since he was in a distraught state and was weeping bitterly, the statement was not taken. He also deposed that after the cremation was over on 25.1.96, he again arrived at Jamalpur where the Station officer prepared site plan etc on his pointing out. He also deposed that before the Station officer could record his statement, he again became emotional and began weeping and was thus not in a fit state of mind to give statement.. He further deposed that on 26.1.96, he went to police station where the station officer recorded his statement. He also deposed that on 2.2.96, the station officer again recorded his statement. In the second statement, he had explained that he had seen some person similar to the physiognomy of Gajraj Singh. He conceded that he had mentioned the name of Gajraj Singh in his report but as a matter of fact it was a person resembling Gajraj Singh.

The substance of what he stated in his cross examination is that Rajesh Singh was murdered in the year 1986 and his brother Raj Kumar Singh was a witness of the aforesaid murder. He denied knowledge whether any crime was committed or registered against his brother during election. He also denied knowledge whether Raj Kumar Singh had been imprisoned in connection with the said crime or he was subsequently admitted to bail. He also denied knowledge whether a person of the name of Dhirendra had been nominated as accused in the murder of Rajesh Singh or Dhirendra was also murdered after the murder of Rajesh Singh. He also denied knowledge that in the murder of Dhirendra Singh, Gopal Singh, Sarvesh Singh and others were nominated as accused. He also denied knowledge that Gopal Singh had been shot dead in police encounter after a year thereafter.. He also denied that Sarvesh and others were sentenced to life imprisonment in the murder case of Dhirendra. He denied that he had noted the number of Maruti Van of deceased Kailash Dubey. He also denied knowledge about the whereabouts of Van belonging to Kailash Dubey after the incident. He however stated that Kailash Dubey had come to the place of occurrence on his Van. He also stated that he knew Dhirendra Tiwari from prior to the occurrence and that Dhirendra Tiwari had also sustained injuries in the incident. He also stated that father's name of injured Samarnath Rajbhar was not known to him. He also stated that he also did not know the name of father of Keshav Mishra. It was further stated that he had stayed at the place of occurrence for half an hour to quarter to an hour after the incident. He also stated that no one from the family of injured had come to the place of occurrence. However, he stated that his attention was rivetted on arranging vehicle for transporting the injured to the hospital at the earliest. He also stated that there was a village nearby the place of occurrence known as Sarauna Mauja where he had gone and it was from there that he had taken the vehicle belonging to one Vishwakarma of Sarauna. However, he could not give name of the driver. He also stated that he had stayed at district hospital Jaunpur upto 8 pm. He also stated that till he was present at the hospital no one from the family of the injured had come to see the injured. He denied knowledge whether Kailash Dubey had valid licence for rifle etc.. However,he stated that at the time of occurrence, shadow of Kailash Dubey was present and his name was Keshav Mishra. At the place of occurrence, the witness stated, SO Alakhnath Singh and one constable was present. However, he could not recollect whether both the police personnel were in uniform or not. He also stated that the SO did not even look at the injured people and had immediately left the place of occurrence. He also gave precise details about the timing of his leaving the place of occurrence and of reaching the hospital and thereafter, of his arrival at place station for lodging of report. He however stated that the police personnel aforesaid had come after 10 to 15 minutes of firing. He reiterated all other details as set out in examination in chief. It is worthy of notice that in the course of cross examination, when the witness was asked whether it was Gajraj Singh or some other person who was involved in crime, the witness replied that Gajraj Singh was not present on the spot but it was some other person resembling Gajraj Singh. He denied to have given any statement to the investigating officer on 2.2.96 to the effect that it was Gajraj Singh who was involved in crime. He also stated that he was told by the investigating officer on 2.2.96 that Gajraj Singh was incarcerated in jail from prior to the occurrence. He had admitted that he had mentioned his name as being involved in the crime in his written report. He denied the suggestion that he was not present at the spot and that in collusion with police, a false report was submitted for being lodged.. He admitted that he had known Gajraj Singh for the last 10 years. He also stated that at the time of occurrence, there existed a Chabutra (Platform) and now the said Chabutra has been demolished and a samadhi has been erected in commemoration of the deceased persons. He also stated that at the time of occurrence, all the shops in the market were open and the market was crowded. He also stated that at that time, there was approximately a crowd of 500 people present in the market. He also stated that after the incident, no vehicle was found available in and around the market. He explained that the Maruti van of Kailash Dubey was not used for transporting the injured as no driver was available.

The witness also replied to certain queries posed by the Court and one of the query was whether he reiterates his testimony that Bankey Lal after being hit had fallen and died instantaneously. On second query whether it is true that Bankey Lal after being hit fallen at a distance of about 10 to 12 steps away. On a further query by the court how the above two facts can be true, he explained that since Bankey Lal had died on the spot and that there were two other injured persons, hence he gave the statement to the aforesaid effect. He however stated that he did not mention the fact in his report that he was conversing with his brother standing at a tea stall near Chabutra. He admitted that he did not mention the fact that Shivraj Singh, Indra Jeet Singh, Dinesh Singh were sitting on the Chabutra. He also did not mention that Kailash Dubey had come to the place on his Maruti van. He also stated that SO and one police personnel had come on bullet motor cycle and they immediately left even without looking at the injured people. He also stated that Keshav Misra shadow of Kailash Dubey had fired from his rifle and he was also fired upon. He also stated that Keshav Mishra had fired 2 to 3 shots from his rifle. Both Keshav Mishra and accused were standing facing each other at a distance of 14-15 steps. He denied knowledge whether any criminal case at case crime No 182 of 93 had been registered against Kailash Dubey. He also denied knowledge about any case registered against Kailash Dubey in case crime No 149 of 94. He also denied knowledge about case crime no 89 of 89 and 178 of 89. He also denied knowledge about different criminal cases registered at different police stations against Kailash Dubey. He also denied knowledge that Kailash Dubey was a person of criminal proclivity and he had many opponents in Varanasi. He stated that no one chased the Marshal jeep in which after committing crime, the accused had fled away.

The next witness is PW 3 Samar Nath. To begin with he deposed that the deceased and accused persons were known to him. He gave testimony propping up the version of PW 1 and PW 2. He claimed himself to be accompanying Kailash Dubey in his Maruti Van. He also deposed that he had seen a person who was a photo-fit of Gajraj Singh alighting from the Maruti Van alongwith other accused persons and that the said persons exhorted the other accused persons and at the same time, opened fire at Kailash Dubey deceased.

In the cross examination, on a specific query made to him whether Kailash Dubey at the time of incident was Block Pramukh or not, he replied that Kailash Dubey was not the Block Pramukh but was a member of District Panchayat. He further explained that he was a Block Pramukh prior to 5-6 moths of the incident. He stated that deceased Kailash Dubey had not been assigned any gunner or shadow. At the time of incident, he had a rifle which was held by his Driver Keshav Mishra. He also stated that Keshav Mishra used to drive Maruti van of Kailash Dubey. He could not tell whether Keshav Mishra had fired any shot from the rifle or not. He stated that the SO Loha Singh was present at the time of incident. He also stated that after the incident he alongwith one girl namely Renu who had also suffered bullet injury was taken to Rampur block in a jeep in injured condition by 4 or 5 persons and that no other injured was taken with him in the said jeep and after about one hour of stay at Rampur Block he and Renu were taken to Jaunpur Hospital. He denied that he or any one from his family had given any information to police. He also stated that he revealed the manner in which he had suffered bullet injury to the doctor attending on him. He denied knowledge about the owner of the Jeep or the name of its driver. He also stated that he had not seen SO Loha Singh at Jaunpur Hospital. However some police personnel were seen nearby in the hospital. He further stated that he was discharged from hospital next day and he was taken to his village escorted by one sub inspector and two constables. During journey from hospital to village, none of the police personnel tried to ascertain how he sustained fire arm injuries. He also stated that he had walked out of home to arrange for medicine and had gone to Bhadohi. About Gajraj Singh he stated that he knew him well as he was a teacher and whenever he had occasion to be in the market, he and Gajraj Singh used to take welfare of each other. He also stated that after 10 minutes of the incident, Kailash Dubey was taken to Rampur hospital while the witness was taken in a Jeep to Rampur Block. Immediately after the incident, the people in the market had come with a jeep and it was in that jeep that he was taken to Rampur Block. He also stated that he could not keep count of vehicles which had come at the spot but he approximated its number from 25 to 50. He also stated that in the Maruti Van of Kailash Dubey, injured Lalta Dubey, Shiv Ram Singh Manoj Singh, Kailash Dubey and Raj Kumar were rushed to hospital at Jaunpur. One jeep also followed the Van in which some people were sitting.

On being further cross examined, he stated that his injuries were examined in the dispensary at Rampur Block and he was handed out the injury report. He also stated that SO Loha Singh had arrived at the scene of occurrence after 10 minuts of the incident. The aforesaid SO was seen at the scene for one or two minutes. However, he could not tell whether the SO was armed or not. On a specific query made to the witness by pointing toward Gajraj Singh whether he was the person or his photo-fit who had indulged in crime, he replied that some person of the physiognomy of Gajraj Singh had indulged in the crime. He however stated that he did not know the father's name of Gajraj Singh. On a further specific query whether the accused present in court was Gajraj Singh or not he replied that the accused present in the court was no doubt Gajraj Singh but he entertained doubt about the person who appeared to be resembling Gajraj Singh. On a further specific query whether at the time of crime, Gajraj Singh was present or he was some other person he replied that the person present at the scene of occurrence was one resembling Gajraj Singh. When he was asked query about father's name, the witness replied that he did not know the father's name of the accused. He also stated that he had stated in his statement before the investigating officer that Keshav Mishra had fired at fleeing accused persons. However, he could not say with certainty how many shots he fired. He also could not tell whether any one was hit from the shot fired by Keshav Mishra. He reiterated that the person who had indulged in crime resembled Gajraj Singh. He denied knowledge that Gajraj Singh had been arrested one day prior to the incident by police of Raniganj police station. He denied the suggestion that he could not recognise the assaillants. He also denied the suggestion that he was hit by stray bullet in the melee. He also denied the suggestion that the assaillants were unknown he could not disclose the names of the accused persons immediately to the police and that he had named the accused persons subsequently after consultation with the police. He also denied the suggestion that the occurrence took place in the dark and that there was cross firing involving unknown assaillants. He also denied the suggestion that the witnesses named to be present on the occurrence were not at all present on the spot. He also denied the suggestion that it was with a view to give cogency to the prosecution case that witnesses Lalta Dubey and Manoj Singh were introduced. He also denied the suggestion that he had been medically examined at Rampur Block he had not been taken to Jaunpur hospital for treatment. He also denied the suggestion that his statement was recorded by the investigating officer on his own. When he was confronted with the statement recorded by the Investigating officer, he expressed that the investigating officer had embroidered many facts which he did not say. He also denied the suggestion that the occurrence did not take place in the manner deposed by him.

PW 4 is Manoj Kumar Singh. This witness was cited to be ocular witness of the occurrence. In his deposition he deposed that on 22.1.96 at 7 pm he was in Bombay and was not present on the spot. He denied that he was present at the hotel run by Ram Bali Dubey at Dhaurhara and therefore, he had not heard any conversation between the accused nor had he witnessed the occurrence. On this deposition, the witness was declared hostile as having been gained over and was extensively cross examined by DGC (Criminal).

The quintessence of the extensive cross examination is that he was acquainted with the kinshp of Rajesh Dubey and Kailash Dubey and further Sadhu Dubey uncle of Rajesh Dubey had been murdered and he had heard that Kailash Dubey was behind the murder. He denied that he was not aware of any animosity between Kailash Dubey and Gajraj Singh. He also denied knowledge whether Ram Surat Singh was the alter-ego of Gajraj in the election. He stated that he was come back from Bombay after two months of the murder. He denied that his statement was recorded after five days of the occurrence. When he was confronted with his statement recorded by the investigating officer, he denied to have given any statement and stated that the investigating officer has recorded the statement on his own. He stated that Rajendra was known to him as he belonged to his village. Munna Singhalias Bajrangi was also known to him. He denied knowledge that Munna alias Bajrangi was arrested by Delhi police after an encounter. He also denied knowledge that the police was on the look out for Munna alias Bajrangi in connection with several criminal cases. He also denied that he was falsely deposing on account of fear of reprisal from Munna Bajrangi. He also denied that he was deposing falsely in order to screen Rajesh and Gajraj from penalties of law.

Pw 5 is Gappu alias Karmendra. This witness stated that Gajraj Singh and Prem Singh alias Munna Singh were known to him. He denied knowledge that he had heard anything regarding conspiracy hatched by Gajraj Singh and Bacha alias Ziledar Tiwari to eliminate Kailash Dubey. This witness was also declared hostile as having been gained over and he was extensively cross examined by DGC (Crl).

The quintessence of what he stated in his cross examination is that deceased Kailash Dubey, Raj Kumar Singh and Bankey Lal Tiwari were known to him. He stated that he had heard that on 24.1.96 the aforesaid deceased were murdered in Jamalpur Bazar at about 5.30 pm. He denied to be present on the spot. He denied knowledge that Kailash Dubey had defeated his rival Gajraj Singh in the election. He denied knowledge whether Kailash Dubey and Raj Kumar were on intimate terms. However, he stated that to all appearances, there was amicableness between the two. He denied knowledge whether Kailash Dubey and Raj Kumar Singh on one hand and Gajraj Singh, Alam Singh and Rajesh Dubey on the other hand were pitched against each other. He denied knowledge whether Rajendra Dubey and Kailash Dubey descended from the same antecedents. He also denied knowledge whether Kailash Dubey had been involved in the murder of uncle of Rajendra Dubey. He further denied that the investigating officer had recorded his statement on 28.1.96 in connection with the incident. When the witness was confronted with his statement recorded under section 161 CR.PC he denied to have given any such statement. He denied that he was involved in any criminal case. He also denied that Munna alias Bajrangi was known to him. He also stated that he gained knowledge about involvement of Munna alias Bajrangi in the incident from the newspapers. He denied knowledge about criminal antecedents of Munna alias Bajrangi. He further denied knowledge that Munna Bajrangi was arrested by Delhi police after an encounter. He also denied that he was deposing falsely on account of fear of reprisal from Munna alias Bajrangi.

P.W 6 is Renu daughter of Chhedi Halwai. At the time of incident she claimed to be 8-9 years old. Her deposition was to the effect that at the time of occurrence she was playing with children across the road and she was hit by stray pellets in the firing. She also deposed that she was medically examined. However, she deposed that she could not see the assaillants as it was a crowded place. She also stated that investigating officer had made enquiries from her. She gave timing of occurrence as 5.30 pm.

In cross examination, she stated that Manoj Kumar Singh and Raj Kumar were not present on the spot. She also stated that even after the incident Manoj was not seen on the spot. She also stated that Manoj was known to her from before the incident.

PW 7 is Ram Asrey Singh. He deposed that he had left with Kailash Dubey in his Maruti Van and had arrived at the spot at about 5.30 pm. At that time, Kailash Dubey was accompanied with the witness, Samar Nath, Rajbhar and two of his body guards. Kailash Dubey and others alighted from the car. He deposed that while Kailash Dubey and Raj Kumar stayed near the car and were conversing, he and Samarnath walked a little ahead with a view to chew betel leaf from a nearby betel shop He also deposed that Samarnath after taking betel had gone back while he stood there waiting for return of money as the shop keeper had no change. It was at that time that he heard sound of shot being fired and immediately, there occurred a stampede. He further deposed that he also ran for his life but he was hindered by a loose electricity wire and fell down and as such he could not see as to who was firing and who was hit by firing. He denied to have given any statement to the investigating officer. The witness was declared hostile as having been won over and he was extensively cross examined.

In cross examination when he was confronted with his statement alleged to have been given under section 161 Cr. P.C he denied to have given any statement to the investigating officer. He stated that the deceased were known to him and they had been murdered in Jamalpur Bazar in the incident which occurred on 24.1.96 at 5.30 pm. He denied the suggestion that he had been gained over by the accused persons and was deposing falsely.

This witness was also cross examined by defence. When he was asked whether accused Gajraj Singh and Alam Singh were present on the spot and were involved in firing at the deceased, he denied to have seen them on the spot. He also stated that he was present on the spot till after 10 t0 15 minutes of the occurrence. He denied that Lalta Dubey and Manoj Singh were present in the same Maruti Van in which Lalta Dubey was travelling. He further quipped that till the time he was present on the spot, he had not seen Lalta Dubey and Manoj Singh on and around the spot. He also stated that he had not seen any injured whether they had sustained any injury or not. He denied to have gone at the police station or that the police had come to his house for making enquiries. He also denied knowledge as to who had taken the deceased or injured to the hospital. He further stated that he knew and recognised Gajraj Singh and his son Bhavan Singh from before the occurrence. He also stated that at the time when the occurrence took place, it had grown slightly dark. He denied to have gone to hospital at Jaunpur to take welfare of Kailash Dubey and others. He denied any knowledge as to at what time Kailash Dubey, Raj Kumar and Bankey Tiwari died. He also denied to have discussed about the involvement of any of the accused in the incident with any of his family members. He denied that he was deposing falsely under any duress or coercion or for fear of reprisal from the accused persons.

PW 8 is Munawar Ali who was then posted as Head Moharrir at PS Rampur Distt Jaunpur. He deposed that on the basis of written report submitted by Manoj Kumar Singh case at case crime No 70 of 96 was registered under section 147, 148, 149, 302,307/34 IPC nominating accused Gajraj Singh Alam Singh and four - five other unknown persons. He deposed that investigation was entrusted to SO Alakhnath Singh.

In cross examination, he denied any information having been received from phone about the incident before lodging of the FIR. He also stated that SO was not present at the police station as he had left for Jaunpur in the morning. He denied knowledge as to when SO had gone to the spot on way to police station from Jaunpur. He also stated that he had sent copy of the FIR and other relevant papers with constable Ramratan Singh and 4 other constables. He also explained overwriting in the report. He could not tell whether any other case was registered before or after the report of the present incident for want of GD. He denied the suggestion that the report was anti timed. He also denied the suggestion that SO had not gone to Jaunpur as alleged. He also denied the suggestion that the SO and other police personnel were present at the spot at the time of occurrence. He also denied the suggestion that the SO had not galvanized into action immediately after the occurrence and hence investigation was entrusted to another investigating officer.

PW 9 is Dr Narendra Singh, Medical Officer CHC Suriyawan Sant Ravi Das Nagar Bhadohi. He deposed that he had medically examined Samarnath and found fire arm injuries which had situs 17 cm above the knee of the dimension 1 x 1 cm. According to the Doctor, the injury was caused by firearm. The injured was referred to District Hospital Jaunpur for xray and operation.

In cross examination, he conceded that there was overwriting whereby date 22 was struck off and 24 was overwritten. He stated that he had put his initial over the cutting. He stated that the injured had come on his own and he was not escorted by any police personnel. He could not opine exact time of the injury. He also stated that no pellet was recovered from the wound. He also could not tell as to what type of firearm was by which the injury was caused. He denied the suggestion that the fire arm injury was wrongly shown.

PW 10 is SI Alakhnath Singh who was then SO PS Jaunpur. He deposed that he had conducted inquest on the body of deceased Bankey Lal Tiwari. He also deposed that after completing formalities he had sent the body for post mortem. He also deposed that the case was registered in his presence at the police station. He also deposed that when he was on way back from Jaunpur where he had gone in connection with a pending case under section 302 IPC, he received papers relating to the case at Jamalpur and he immediately embarked upon investigation. He gave details of the proceedings relating to investigation. In the course of investigation, he deposed, he was transferred and therefore, the investigation was left half way through.

The quintessence of his cross examination is that he arrived at the spot at about 9 pm and the distance between the place of occurrence and police station is about 7 kms. When he arrived at the spot, two police personnel were already present. When he enquired from the constable about the incident they informed that in the firing, Bankey Lal Tiwari had been shot dead and his body was lying on the spot. He stated that on that day he was on way back from Jaunpur to police station and he had stopped for a while at the spot and by that time, he had not been intimated of the incident nor any papers were made available to him. He explained that he had gone to Sessions Court Jaunpur in connection with pending criminal case under section 302 IPC. He could not tell exact time when he left for Jaunpur and also the time of his arrival at police station. However he said that he could tell the exact time after looking into the General diary. He stated that he did not prepare any site plan on 24.1.1996 nor he recorded statement of any of the witnesses as none was found present on the spot. He also denied to have taken into custody the Maruti Van in which deceased had been taken to hospital. He also denied that there was any Maruti Van found at the place of occurrence belonging to Kailash Dubey. He also stated that he did not interrogate any of the witnesses or the injured person on 24.1.1996 or 25.1.1996. He however stated that he had interrogated certain people at some distance from the spot but they could not tell anything about the assaillants. He had inspected the spot on 24.1.1996 but he did not go to the district hospital at Jaunpur to see the injured admitted there. He had prepared site plan on 25.1.1996 and thereafter had gone to the houses of the witnesses but none was found present. However, he could not tell whether he had made enquiries from the people in and around the area. He stated that on the day of occurrence, he had no wireless set as he had not travelled by official jeep. He stated that at about 9 pm CO Mariyaoo had arrived and thereafter he worked under his direction. He denied the suggestion that he had no clue about accused on 24.1.96 and further that the FIR was not in existence at that time and it was for this reason that site plan was not prepared. He also denied the suggestion that the recovery was make-believe and stage-managed.

PW 11 is Dr Satya Prakash Awasthi who was then posted as Orthopedic Surgeon posted at District Hospital Jaunpur. He deposed that he conducted post mortem on the body of deceased Kailash Dubey on 25.1.96 and he found four ante mortem injuries on the body of the deceased. He opined that the death was caused due to shock and hemorrhage. On being queried as to what type of firearm was used in the incident he denied knowledge about the firing range of country made pistol , rifle or AK 47. He however denied the suggestion that the post mortem report was shoddily prepared.

PW 12 is Dr R.N Verma Senior Radiologist District Hospital. He conducted post mortem on the body of Raj Kumar deceased deceased. He noted in all three injuries as ante mortem injuries on the person of the deceased. He opined that the injury could be caused by rifle. On being cross examined, he could not tell whether injury nos. 2 and 3 could be caused by one and the same weapon. He opined that fire arm injury could be caused from a distance of more than 3 feet. He also stated that the bullet recovered from post mortem examination was handed over to the police.

PW 13 is Constable Shyam Ji Sharma. He deposed that he had gone to the spot alongwith SO Alakhnath Singh where the body of Bankey Lal Tiwari was found lying. He deposed that after the inquest proceedings were completed, he was entrusted the dead body for being escorted for post mortem. In cross examination he stated that the body was taken in a private jeep.

Pw 14 is SI Laxi Narain Pandey. This witness was posted as SI at PS Kotwali Jaunpur. He deposed that he had conducted inquest on the body of deceased Raj Kumar Singh at Mortuary Jaunpur at about 12.30 in the night in the intervening night of 24/25/1/1996. He gave precise details of inquest proceeding. In cross examination he stated that he could not recollect whether investigating officer had recorded his statement or not. He also could not tell whether the witnesses of inquest were related to the family of the deceased or not.

PW 15 is Dr R.P.Sharma. This witness conducted the post mortem on the body of deceased Bankey Lal Tiwari. He found only one ante mortem injury which was fire arm wound of entry 1.2 cm x 08cm on the right side of the belly. He opined that the injury could be caused by rifle. He also opined that the deceased could have breathed his last instantaneously or could have been alive from 10 to 15 minutes after sustaining the injury.

PW 16 is Prakash Chand Rai Chief Pharmacist posted at district hospital Jaunpur. He produced injury register in the court in which injuries sustained by Ram Asrey Indra Jeet Singh, Dhikrendra Tiwari and Ritu who were examined are entered.

PW 17 is Dr D.P Yadav who was then posted at district hospital as EMO and on the relevant date, he medically examined Ram Asrey Singh, Indrajeet Singh, Dhirendra Tiwari and injured girl Renu and noted injuries in the injury report which was prepared beween 7.45 to 9.20 pm on 24.1.96. He could not tell as to what was the weapon which caused injuries to the injured persons. He denied that the investigating officer recorded his statement.

Pw 18 is Inspector R.K.Singh who was then posted at Badlapur and was transferred and assumed charge of the station officer Police Station Rampur. He stated that since SO Alakhnath Singh had been suspended, he took over charge of the police station and immediately after taking over, he took steps to clear off the blockade set up by the local people who were protesting against the triple murder. He immediately searched for the accused persons and initiated action under section 82/83 Cr.PC and attached the property of the accused persons. In the course of search for accused persons, he came to know that Gajraj accused was already languishing in jail. He explained that when a query was put to the complainant as to how he named Gajraj Singh as assaillant when he was already incarcerated in jail, the complainant explained that he mistook a stout person aged about 50 years who was then alongwith Alam Singh accused and was firing indiscriminately at the deceased, and named Gajraj Singh as the assaillant. He deposed that Alam Singh was arrested on 4.2.96. The statement was accused Gajraj Singh was recorded in jail and he confessed to his crime.

In cross examination, the quintessence of what he stated is that complainant was interrogated by the earlier SO as would transpire from GD entry and at that time, the complainant had not nominated any person as accused. He also stated that the complainant had told at that time that since he was grief stricken, he was not in a position to make the statement and that he would give statement only after 2-3 days as would transpire from GD entry. He also stated that during investigation, it transpired to him that Gajraj Singh was already lodged in Pratapgarh Jail. He also stated that at the time when he recorded the statement of the complainant and other witnesses, they had named Gajraj Singh and they had not stated that it was the person who resembled Gajraj Singh. He also stated that Lalta Dubey and Samarnath had stated in their statements recorded on 30.1.96 that it was not Gajraj but it was someone else resembling Gajraj Singh. He denied the suggestion that it was dark enough and none could recognise the assaillants. he also denied the suggestion that the accused persons named in the FIR were not involved in the commission of offence. He also denied the suggestion that the FIR was anti-timed.

The next witness is Dr Hasnain Khan. He deposed that on 14.3.96 he was posted as SO Rampur Distt Jaunpur and he had taken up investigation of the present case on the said date. He completed the remaining investigation and submitted charge sheet in the court on 13.4.96.

In cross examination he stated that he had gone to prison to make enquiries from jail officials and examined certain records but denied to have taken into custody any record from Jail.

The court also examined Bacha Singh alias Om Prakash as CW 1. This witness deposed that Gajraj Singh was known to him as he was serving as PT Teacher in Inter college in village Moda Gaon. He denied that any conspiracy was hatched by the accused in his presence. He also denied that he heard any one of them conspiring to murder the deceased.

This witness was cross examined by DGC (Crl). He stated that Gajraj Singh and his son Alam Singh were known to him. He denied to have known Prem Singh alias Munna Singh alias Bajrangi. He also stated that deceased Kailash Dubey Raj Kumar Singh Bankey Lal Tiwari were known to him. He denied to have known accused Rajesh Dubey nor his kinship with deceased Kailash Dubey. He stated that he came to know of murder of the deceased on 24.1.96. However he denied to have witnessed the occurrence or to be present on the spot. He also denied to have gone to the house of Gajraj Singh. He also denied to have given any statement to the Investigating officer. He denied the suggestion that he was giving apocryphal statement on account of fear of reprisal from Munna Singh alias Bajrangi. He also stated that he was prosecuted under the Goonda Act.

The learned counsel for the appellant began his submission canvassing that the FIR was lodged with inordinate and inexplicable delay of a little more than 3 hours while the fact remains that the distance of police station from the place of occurrence is only 7 km. Before dealing with this submission we would like to notice that according to prosecution case, occurrence took place on a road connecting Jaunpur to Bhadohi in a crowded market place at about 5.30 p.m. and the report of the occurrence was lodged at 8.45 p.m by Manoj Kumar Singh, P.W. 2. The submission precisely made is that the report has been lodged after consultation and deliberation attended with submission that the occurrence has been anti-timed to suit the prosecution version and that the time of occurrence has been wrongly mentioned as 5.30 p.m with the avowed object of showing that there was enough light at the time of occurrence. It is also canvassed that on 24.1.1996, the sun is scheduled to set in early and it is also on account of this fact that the occurrence has been said to have taken place at 5,30 pm. At the risk of repetition, it may be stated that the incident took place in the last week of January, 1996 and by the time which is shown to be the time of occurrence, according to the almanac calendar, it grows dark enough and therefore, it cannot be said that there was enough light at the time of occurrence. By this reckoning, it is further canvassed, it cannot be gainsaid that the witnesses were not in a position to identify the assailants and they have falsely nominated the appellants as the assaillants.

In so far as place of occurrence is concerned, there is no misgiving about it. However, it needs hardly be said that the investigating officer had collected blood and empty cartridges from the place of occurrence. To cap it all, the place of occurrence has not been disputed or challenged in this case. However, we do not find any substance in the submission for two reasons; firstly that the place of occurrence is a market place. A glance through site plan would leave no manner of doubt that there were large numbers of shops around the place of occurrence. It has come in the evidence that the deceased and witnesses had stopped in front of a tea shop. Even if it be assumed that the occurrence had taken place at a time when it had grown dark, there being large numbers of shops nearby, it cannot be expected that the market was without any light. The market must have sufficient lights. In this connection, we may also advert to the testimony of PW 6 Renu who is an injured witness having sustained fire arm injuries during occurrence. Concededly, she had not recognized the assaillants but at the same time, she had given time of occurrence as 5.30 pm. By this reckoning, we have not an iota of misgiving that the occurrence had taken place at 5.30 pm.

It is a case in which three persons lost their lives. The allegation is that all the assailants had started indiscriminate firing resulting in serious injuries to several persons including innocent passers-by. After the incident of such a magnitude, the witnesses cannot be expected to remain normal, and calm and being distraught, are bound to react in an unnatural manner. It can well be envisaged how much time a distraught person would take to reach some level of placidity and regain confidence so as to speak of what he knew. It has come in evidence that a Maruti van was arranged for taking the injured to the Hospital.

Counsel for the appellants also made fierce onslaught on the explanation of the witnesses stating that it is on record that deceased and injured had come to the place of occurrence in a Maruti Van and by this reckoning, that very Maruti Van was very much available for transporting the injured to the hospital and that even Driver namely, Keshav Mishra Driver of Kailash Dubey was also available on the spot who at the relevant time was holding rifle of the deceased Kailash Dube. It was also argued that according to the prosecution case the injured persons were not immediately taken to the Hospital, and they remained lying at the place of occurrence for more than half an hour. In our considered opinion, this contention of learned counsel for the appellant is not loaded with any substance inasmuch as before lodging the first information report, the injured were taken to the Hospital and after their treatment F.I.R. was prepared and by this reckoning, it does not commend to us for acceptance that there is inordinate delay in lodging the report so as to be potent enough to cast doubt on the veracity of the prosecution case.

Next submission of the counsel for the appellants advanced across the bar is that all the witnesses were partisan and interested persons and no independent witness has come forward to prop up the prosecution case. So far as the main incident is concerned, the prosecution had examined P.W. 1 Lalta Prasad Dubey, P.W. 2 Manoj Kumar, who is the first informant and P.W. 3 Samarnath who were cited to be ocular witnesses of the occurrence. According to the prosecution case the crime is an off-shoot of political rivalry and inter se enmity between the parties. In the incident, three persons have lost their lives, and therefore, no local people would come forward to give evidence and to depose against such dare devils. In our considered view, the testimony of the witnesses cannot be rejected merely on the ground that they were not independent witnesses. What the law mandates in such situation is that the testimony of such witnesses should be scrutinized more closely and carefully. In this perspective, we do not find any substance in the submission that all the witnesses examined by the prosecution are interested and partisan, therefore, their testimonies could not be accepted.

The Apex Court in the case of Appabhai v State of Gujrat reported in 1988 (Supp) Supreme Court cases 241, has held that "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think crime like civil dispute which is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life town or cities."

The counsel for the appellant mounted onslaught on the testimony of Rama Shanker alias Lalta Dubey, PW1 on the premises that his name was not mentioned in the FIR as Rama Shanker. The precise argument is that the name of some Lalta Prasad Dube was mentioned in the report and he has been set up as Rama Shanker in order to present him as a witness in the case. This witness was extensively cross examined on this aspect. To a direct query that he had cited himself as Lalta Dubey prior to recording of evidence, he answered that he had disclosed his identity as Lalta Dubey in Salex Tax Department Bhadohi explaining further that he is known both as Rama Shanker and Lalta Prasad. He also admitted that in his educational testimonials, he has mentioned his mentioned is mentioned as Rama Shanker and his name as Lalta Dube or alias Lalta is not mentioned. In the revenue record also, he deposed, his name is mentioned as Rama Shanker alias Lalta Dubey in some papers and in some papers, his name is described only as Lalta Dube. He however conceded that in electoral roll his name is described as Rama Shanker son of Satya Narain and his alias is not mentioned. In the light of above deposition, we do not find the submission loaded with any substance inasmuch as this witness was extensively cross examined and he answered all the questions with truthfulness and set out the prosecution case in all its minute details. It was not suggested that there is another person of the name Lalta Dubey son of Satya Narain Dubey in the village. By this reckoning, the submission of the learned counsel for the appellant that name of PW 1 is not mentioned in the first information report cannot be sustained.

The defence has also challenged the presence of Manoj Kumar, P.W. 2 on the ground that in the first information report, he had mentioned that he was sending the report through someone but in court he stated that he had lodged the report himself. He has also explained that initially he was inclined to send the report through some one but after preparation of the report he changed his mind and decided to go himself to the police station to lodge the FIR. His presence is mentioned in the G.D at the time of registration of First Information Report. Another ground for challenging the report is that the name of P.W. 1 Lalta Prasad Dubey has been mentioned as witness in the report and the defence has suggested that his name is Rama Shanker and in order to make himself as a witness he has shown his alias as Lalta Prasad Dubey. In connection with the above submission, we would like to mention that P.W.1 has been subjected to extensive and incisive cross examination but nothing could be elicited so as to throw doubt on the veracity of his testimony.

The learned counsel for the appellants submitted that according to the prosecution case, one Gajraj had also participated in the incident. In the first information report, the substance of what is mentioned is that when the witness and deceased were busy talking to each other near a tea shop, Gajraj Singh son of Ishwar Deo Singh, and his son Alam Singh got down from the vehicle carrying Rifles in their hands and then Gajraj after exhorting his son and other accomplices fired at Kailash while Alam Singh fired at Raj Kumar. The precise submission of appellants' counsel is that the prosecution has deliberately implicated the appellants alongwith his father. The presence of the witnesses is also belied by the fact that the specific role of firing was attributed to Gajraj but later on when they realized that Gajraj did not participate in the incident, they have modulated their version before the police and mentioned that one person resembling Gajraj was amongst the assailants and that the witnesses in court conceded the fact that Gajraj had not participated in the incident because prior to occurrence he was incarcerated in Pratapgarh jail. On this count, it was vehemently argued that if witnesses were present at the time of incident they would not have committed this mistake by introducing the name of Gajraj. It is submitted that the testimonies of the witnesses deserve to be discredited and should not be accepted as they had falsely named Gajraj Singh as one of the assaillants. We would like to draw attention to what the law mandates in such situation. The law is well settled that on account of false implication of one accused persons, the entire prosecution case cannot be thrown over-board. It is settled principle of law that theory of falsus in uno and falsus in omnibus is not acceptable in India when there is general tendency to implicate large number of persons. The court can always be on the qui vive to find out who were the real assailants and who were not. It would suffice to say that if a part of a testimony of a witness is not found correct, the entire evidence cannot be rejected.

Before we proceed further, we would like to refer to the decision of the Apex Court in Ganesh v State of Karnataka and others (2008) 17 SCC 152 wherein the Apex Court ruled that as a rule of universal application, it can be said that when a portion of the prosecution evidence is discarded as unworthy of credence, there cannot be any conviction. It is always open to the court to differentiate between the accused who has been convicted and those who have been acquitted. The maxim "falsus in uno falsu in omnibus" is merely a rule of caution. It was further ruled that when the prosecution is able to establish its case by acceptable evidence, though in part, the accused can be convicted when if co accused is acquitted.

In the case of Dalveer v State of Haryana (2008) 11 SCC 425, the Apex Court held that even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. Para 13 being relevant is excerpted below.

Coming to applicability of the principle of falsus in uno falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence.

It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar.The maxim "falsus in uno falsus in omnibus" (false in one thing/false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (See Gurucharan Singh and another v. State of Punjab, AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. The witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sahrab s/s Belli Nayata and another v. The State of Madhya Pradesh, (1972) 3 SCC 751, and Umar Ahir and others v. The State of Bihar, AIR 1965 SC 277). An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence in toto. (See Zwieolae Ariel v. State of Madhya Pradesh, AIR 1954 SC 15; and Balaka Singh and others v. The State of Punjab, AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."

In the case of Bathula Nagamalleswara Rao and others v State represented by Public Prosecutor (2008) 11 SCC 722, it has been held by the Apex Court that it is a settled that even if a major portion of the evidence is found to be deficient in case, the residue is sufficient to prove guilt of the accused, conviction can be maintained. It is the duty of the court to separate the grain from chef. Where chef can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence of some of the witnesses has been found to be deficient. Falsity of a particular material witness or material particular would not ruin it from the beginning to the end. The maxim "falsus in uno falsus" in omnibus has not application in India and the witnesses cannot be branded as liars. In a recent decision in Ranjit Singh v State of M.P (2011) 4 SCC 336, the Apex Court after considering various cases, has held that legal maxim is not applicable in India and the Court has to assess as to what extent the deposition of a witness can be relied upon and in this connection, the Court placed credence on the following decisions.

"15. In Balaka Singh v State of Punjab 1975 SCC (Cri) 601, this Court observed as under:

"It is true that, as laid down by this Court in Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 = (1954 Cri LJ 230) and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth, from the falsehood yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from he context and the background against which they are made, then this principle will not apply.

16. In Ugar Ahir v State of Bihar-AIR 1965 SC 277, this Court held as under:

"6. The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence doer not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

17. A similar view was taken in Nathu Singh Yadav v State of M.P 2003 SCC (JCrl) 1461.

18. The maxim has been explained by this Court in Jakki v State.

"The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'."

19. It is well settled in law that the maxim falsus in uno, falsus in omnibus (false in one, false in all) does not apply in criminal cases in India, as a witness may be partly truthful and partly false in the evidence he gives to the court (vide Kulwinder Singh v State of Punjab (2008) 1 SCC (Crl) 51, Ganesh v State of Karnataka, (2010) 4 SCC (Crl) 474, Jayaseelan v State of T.N (2010) `1 SCC (Crl) 224, Mani v State (2010) 1 SCC (Crl) 563 and Balraje v State of Maharashtra (2010) 3 SCC (Crl) 211.

20. This position of law has been reiterated by this Court in Prem Singh v State of Haryana (2010) 1 SCC (Crl) 1423 wherein, the Court clearly held as under:

"14. It is now a well settled principle of law that the doctrine ' falsus in uno, falsus in omnibus' has no application in India."

21. In view of the above, the law can be summarized to the effect that the aforesaid legal maxim is not applicable in India and the court has to assess as to what extent the deposition of a witness can be relied upon. The court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate the grain from the chef because they are inextricably mixed up, that the whole evidence of such a witness can be discarded."

In the light of the above, we have carefully scrutinized the evidence of the witnesses. It is worthy of notice that in the first information report, it has been specifically mentioned that Alam Singh was armed with a rifle and he fired at Raj Kumar and he sustained injury. PW 1, Rama Shanker alias Lata Prasad Dube also deposed that Alam Singh fired at Raj Kumar from his rifle. PW 2 Manoj Kumar Singh is the first informant of the case and he is brother of deceased Raj Kumar. His deposition quintessentially is that Alam Singh fired at his brother Raj Kumar from his rifle. All the three witnesses have consistently deposed that Alam Singh was armed with a rifle and he had fired at Raj Kumar. PW 12, Dr R.N Verma who conducted autopsy on the dead body of Raj Kumar noted three ante mortem injuries and in the internal examination, he recovered a bullet and it has been opined that it could be fired from a rifle. Thus the testimonies of the ocular witnesses that Alam Singh fired from rifle at Raj Kumar deceased finds reinforcement from the post mortem examination report. In this conspectus, the Sessions Judge has rightly held him guilty and we also affirm the findings recorded by the trial court.

Now the question arises for serious consideration is whether the sentence of death awarded to the appellant by the trial court would meet the ends of justice?

Under the old code of criminal Procedure ample discretion was given to the courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is to be awarded. A Constitutional Bench of the Supreme Court in the case of Bachan Singh Vs. State of Punjab A.I.R. 1980 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.

Coming to the aspect whether penalties of death should be sustained in the facts and circumstances of the case, we feel called to advert to the guidelines laid down in stream of decisions commencing from Bachan Singh v. State of Punjab 1980 (2) SCC 684 and thereafter reiterated in subsequent decisions namely Machchi Singh v. State of Punjab 1983 (3) SCC 470 and Devender Pal Singh v. State of N.C.T. Of Delhi 2002 (5) SCC 234. The guidelines laid down in Bachan Singh's case (Supra) may be culled out as under:

(i)The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."

In Machchi Singh and others v. State of Punjab (1983), the Supreme Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience" of a community may be shocked. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances.

In Devender Pal Singh's case (Supra), the Apex Court regard being had to both the cases supra, expanded the formulation for imposing extreme penalty. The guidelines may be abstracted below as under:

(1)When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness e.g. Murder by hired assassin for money or reward, or cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.

(3)When murder of a member of a Scheduled Caste or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride burning or dowry deaths or when murder is committed in order to re-marry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when mutiple murders, say of all or almost all the members of a family or alarge number of persons or a particular caste, community, or locality are committed.

(5)When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."

We may advert to the reasons recorded by the Sessions Judge for awarding extreme penalty. The reasons for awarding extreme penalty are that it was a pre-planned murder in which three persons lost lives and other five persons sustained injuries and that the incident was committed at a crowded place and it does manifest their recidivist attitude and criminal proclivity to the commission of the heinous crime of the nature. The Sessions Judge also noticed that the appellant at the time of commission of the crime was between 20 to 21 years of age and it amply shows that he had no compassion for mankind. The Sessions Judge also noticed that award of condign punishment is intended to act as a deterrent for others who are prone to committing the crime and it is also intended to save the society from the prospective offenders. He also mentioned that the crime committed by the appellant was at its crudest form and hence severe punishment like capital punishment would be the appropriate punishment.

In connection with the above, another decision on the point may be referred to. The Apex Court in the case of Ram Pal Vs. State of U.P. 2003(47) A.C.C. 567 for the reasons mentioned in paragraph 8 and 9 of the judgment reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident.

Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance.

The security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. There is gainsaying that the living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. It brooks no dispute that contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. It further brooks no dispute that sentencing process should be stern where it should be and tempered with mercy where it warrants to be. The assessment can be made by the court on the facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused etc.

Coming to the facts of the present case, it would transpire that the causative factor of murder was political rivalry. Though appellant was not involved directly in political rivalry with the murdered persons, but he appears to have been dragged into committing offence impassioned by the defeat of his father in the election. Though the offence committed by them deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare case though it is perilously near the region of this category. It is not shown nor it has been suggested that the appellant had any criminal antecedents or was involved in the crime of this nature as a habit. Besides there is no clinching evidence to manifest that he would prove to be a prospective menace to the society. No such material has been placed before us to draw such a conclusion. In our considered view these are the mitigating circumstances for substituting the death sentence by the sentence to imprisonment for life.

Considering the over all circumstances of the case this case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life term stood altogether foreclosed and we are of the view that a sentence of imprisonment for life to the appellants would meet the ends of justice.

We therefore, reduce the sentence of death of the appellant to imprisonment for life.

The appeal is partly allowed. In consequence the conviction recorded by the Sessions Judge is maintained but in the facts and circumstances and for reasons recorded above, the sentence of death awarded to the appellant by the learned Sessions Judge is commuted to imprisonment for life.

The appellant is in jail and he shall serve out the sentences accordingly in terms of the above.

Reference made in this Court shall stand rejected.

MH

August...10.....2011