Santosh @ Neta Khatik vs State Of U.P.
2015 Latest Caselaw 2577 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
(1)	Case :- CRIMINAL APPEAL No. - 552 of 2009
 

 
	Appellant :- Santosh @ Neta Khatik
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- Sanjay Mishra,I.M.Khan,Neeraj 	Singh,Upendra Kumar Singh
 
	Counsel for Respondent :- Gov  t. Advocate
 

 
Along with
 
(2)	Case :- CRIMINAL APPEAL No. - 550 of 2009
 

 
	Appellant :- Pappu @ Fakku
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- Sanjay Mishra,I.M.Khan,Neeraj 	Singh
 
	Counsel for Respondent :- Govt. Advocate
 

 
(3)	Case :- CRIMINAL APPEAL No. - 551 of 2009
 

 
	Appellant :- Nankai
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- Sanjay Mishra,I.M.Khan,Sushil 	Kumar Dwivedi
 
	Counsel for Respondent :- Govt. Advocate
 

 
(4)	Case :- CRIMINAL APPEAL No. - 611 of 2009
 

 
	Appellant :- Kallan
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- Harsh Kumar Srivastava,Hasan 	Abidi,S.K. Dwivedi
 
	Counsel for Respondent :- Govt. Advocate
 

 
(5)	Case :- CRIMINAL APPEAL No. - 282 of 2009
 

 
	Appellant :- Phool Chandra
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- Rahul Kumar Tripathi,Sushil Kumar 	Dwivedi
 
	Counsel for Respondent :- Govt.Advocate
 

 
(6)	Case :- CRIMINAL APPEAL No. - 327 of 2009
 

 
	Appellant :- Ramesh
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- Shyam Sunder 	Mishra,I.M.Khan,Sushil Kumar Dwivedi
 
	Counsel for Respondent :- Govt. Advocate
 
And
 

 
(7)	Case :- CRIMINAL APPEAL No. - 4596 of 2013
 

 
	Appellant :- Rakesh
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- Ramesh Chandra Gupta Ii,Sushil 	Kr.Dwivedi
 
	Counsel for Respondent :- Govt. Advocate
 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

(Per Surendra Vikram Singh Rathore, J.)

(A) Introduction:

1.Since all the aforesaid criminal appeals arise out of common judgment, therefore, these are being simultaneously decided by a common judgment.

2.Criminal Appeal no. 552 of 2009 has been preferred by appellant Santosh alias Neta Khatik, Criminal Appeal No. 550 of 2009 has been preferred by appellant Pappu alias Fakku, Criminal Appeal No. 551 of 2009 has been preferred by appellant Nankai, Criminal Appeal No. 611 of 2009 has been preferred by Kallan, Criminal Appeal No. 282 of 2009 has been preferred by Phool Chandra, Criminal Appeal No. 327 of 2009 has been preferred by appellant Ramesh and Criminal Appeal No. 4596 of 2013 has been preferred by appellant Rakesh.

3.Heard Mr. S.K. Dwivedi and Mr. Upendra Kumar Singh, learned counsel for the appellants, learned A.G.A. for the State and perused the lower court record.

(B) Sentence imposed by trial court:

4.Under challenge in the aforesaid criminal appeals is the judgment dated 17.12.2008 and order dated 18.12.2008 passed by the learned Additional Sessions Judge, Court No. 4, Fatehpur in Sessions Trial No. 1108 of 2001 arising out of Case Crime No. 101 of 2001, Police Station Husainganj, District Fatehpur whereby all the aforesaid appellants were convicted for the offence under Section 364 I.P.C. and they were sentenced with imprisonment for life and also with fine of Rs. 5,000/- each with default stipulation of three months additional imprisonment. All the appellants were convicted for the offence under Section 379 I.P.C. and were sentenced with imprisonment of three years. They were further convicted for the offence under Section 302/149 I.P.C. and were sentenced with imprisonment for life and also with fine of Rs. 5,000/- each with default stipulation of three months additional imprisonment and also convicted for the offence under Section 201 I.P.C. and each of them were sentenced with imprisonment for five years each and also with fine of Rs. 5,000/- each with default stipulation of three months additional imprisonment. Appellant Kallan, in Criminal Appeal No. 611 of 2009, was also convicted for the offence under Section 411 I.P.C. and was sentenced with three years imprisonment. All the sentences were directed to run concurrently. By the same judgment, accused persons, namely, Ram Swaroop, Jagroop and Naresh were acquitted of the charges levelled against them. It was directed that the recovered sheeps, goats, horse and calf be directed to handed over to the successors of the deceased persons.

(C) Facts as narrated in the F.I.R.:

5. In brief, the case of the prosecution was that complainant Jugal Kishore lodged a F.I.R. at Police Station Husainganj on 9.6.2001 at 13:00 hours alleging therein that complainant had asked (1) Chinni Pal, (2) Bheda Pal (3) Ram Raj Pal, (4) Narendra Pal, (5) Chhote Lal Pal, (6) Jitendra Pal and (7) Ram Prasad Pal to keep their sheeps in his field for manuring. On 8.6.2001, above-named seven persons had come to the house of the complainant to take ration for them. On 9.6.2001 when the complainant went to his field then he found that neither the above named persons were there nor their sheeps and animals were there. Their belongings and their clothes were scattered in the field. One dog was also sitting in the field, who was barking at the persons. These circumstances raised a suspicion in the mind of the complainant that the above-named seven persons have been abducted and animals have been stolen.

(D) Facts revealed during Investigation:

6.After registration of the case, the investigation proceeded. The Investigating Officer went to the place of occurrence and took the scattered belongings of the above-named seven persons and its recovery memo was prepared. On the same day, while S.O. Maksudan Singh, along with other police personnel, was busy in the search of the accused persons and the victims and reached at the Bhitaura road at Tiraha, then S.O. got a secret information that three miscreants are going from the road towards Nauwagaon and from there they will go to Kolkata on trucks. Immediately police party took the informer with them and went towards the place as informed by the informer. When these persons reached near the culvert of canal then they saw that three persons were going by the side of the canal. Seeing the police party, the miscreants leaving the animals started running away. The police party with the help of Bal Kishan, Ram Raj arrested appellant Kallan. The other appellants, namely, Khalil and Mehandi Hasan were successful in fleeing away from there. They were recognized by the witnesses and the police personnel. From the possession of appellant Kallan 700 sheeps (300 female + 200 male and 200 lambs) and one small horse and calf and five goats were recovered. Accused Kallan was enquired about the recovered animals then he disclosed that he along with his other companions Khalil, Mehandi Hasan, Pappu alias Fakku and Phool Chandra with five other miscreants, who were brought by Pappu alias Fakku and were not known to appellant Kallan, had assembled at the house of Phool Chandra where from they went to Gram Chhauwa where the sheeps were sitting in the field. Pappu alias Fakku and Phool Chandra were armed with country made pistols. In the said field there were eight shepherds. All were sleeping in the field. Out of eight shepherds, seven were abducted by them and the 8th one was successful in fleeing away from there. Appellants Kallan, Khalil, Mehandi Hasan took the animals towards Nauwagaon and other accused persons took seven abducted persons towards Gaya. The recovery memo was accordingly prepared and the recovered animals were handed over to Bal Kishan, memo to this effect was also prepared in the presence of Ram Raj and Bal Kishan. On the very next day i.e. on 10.6.2001, the police party was engaged in the search of the remaining accused persons and also of abducted persons. When the police party reached at 7 Mill Chauraha, then they got an information through secret informer that one of the miscreant named Phool Chandra was standing near 7 Mill Canal Culvert waiting for a transport and by immediate action, he can be arrested. The police party left the jeep there and went along with the informer to the place where accused Phool Chandra was present. The informer pointed towards the said person and at about 11:00 a.m., he was taken into custody by the police. He disclosed his name as Phool Chandra. He was enquired about the remaining accused persons and also about the abducted persons. Initially he avoided to disclose anything but subsequently he disclosed that in the intervening night of 8/9.6.2001 he along with Kallan, Khalil, Mehandi Hasan, Pappu alias Fakku, Santosh alias Neta Khatik, Rakesh and Ramesh went to village Chhibuwa and in the night at about 11:00 p.m., they abducted seven shepherds while they were sleeping in the field. One of the shepherds, was successful in making good his escape. They took the seven shepherds, after tying their hands and closing their eyes, with them. However, Kallan, Khalil and Mehandi Hasan were asked by him to take the sheeps towards Nauwagaon and they will come and join them after disposing of the seven shepherds. The second group, under the leadership of appellant Phool Chandra, took seven abducted shepherds to Raano well near Mahadevpur. At that time, it was 12:00 in the night. It was disclosed by appellant Phool Chandra that appellant Pappu alias Fakku, with axe caused the death of three shepherds and remaining four shepherds were thrown in the well in the same condition with their hands tied and other three injured shepherds were also thrown in the same well. Phool Chandra also offered that he can get the dead bodies of all the seven persons recovered. So the police party asked appellant Phool Chandra to sit in the jeep and as pointed out by Phool Chandra, came to the Raano well. Because of the mud on the way, the jeep was stopped and from there they went on foot to the said well. Accused Phool Chandra was ahead of the police party and told the police party that this is the well in which they have thrown all the seven persons. Thereafter the police party made arrangement of several persons of the village and with the help of hook and rope and with the help of one Sheetala Prasad Dwivedi, who went inside the well, all the seven dead bodies were taken out. In the meantime, one Sant Ram and Durjan, who are relatives of one of the deceased reached there and identified the dead bodies. A fard (Ex. Ka-6) was prepared on 10.6.2001. Inquest proceedings of all the seven dead bodies were conducted and the dead bodies were sent for postmortem.

(E) Result of Postmortem:

The postmortem on the dead body of Medha was conducted on 11.6.201 at 3:15 p.m. and following injuries were found on his person:-

(i) Lacerated wound 15 c.m. x 6 c.m. x bone deep on left side head, 8 c.m. away from left ear. Left parietal bone fractured.

(ii) Abrasion 4 c.m. x 5 c.m. on right wrist joint.

(iii) Abrasion 4 c.m. x 3 c.m. on left wrist joint.

Postmortem on the body of Ram Raj Pal was conducted on the same day at 3:45 p.m. and following injuries were found on his person:-

(i) Lacerated wound 8 c.m. x 2 c.m. x bone deep on right side head, 5 c.m. away from right ear. Right parietal bone was fractured.

7.Postmortem on the body of Chinni was conducted on the same day at 4:10 p.m. and following injuries were found on his person:-

(i) Lacerated wound 6 c.m. x 3 c.m. x bone deep on left side head, 9 c.m. away from left ear. Right and left parietal bones were fractured

(ii) Lacerated wound 2 c.m. x 1 c.m. x gone deep on left side head, 7 c.m. away from left ear.

In the opinion of the doctor, the cause of death of all above-named three persons was due to comma as a result of ante-mortem head injuries and duration was two and a half days old.

Postmortem on the body of deceased Bhaiya Lal was conducted on the same day at 2:30 p.m. and following injuries were found:-

(i) Abrasion 6 c.m. x 4 c.m. on right forearm above right wrist joint.

Postmortem on the body of Chhote Lal was conducted on the same day at 4:30 p.m. and no ante mortem injury was seen on his body.

Postmortem on the body of Ram Prasad was conducted on the same day at 3:30 p.m. and no external ante mortem injury was seen on the body.

Postmortem on the body of Narendra was conducted on the same day at 5:00 p.m. and no ante mortem injuries were visible on his body.

In the opinion of the doctor, the cause of death of these four persons was asphyxia as a result of ante mortem drowning.

8.After concluding the investigation, charge sheet was filed against all the seven accused persons, whose names emerged during investigation.

(F) Defence of appellants:

9.The case of the appellants was of total denial and their false implication. Appellant Phool Chandra has also pleaded that his father was murdered by the police and the police has falsely implicated him in this case because an F.I.R. was lodged against police personnel for the murder of his father.

(G) Prosecution evidence:

10.In order to prove its case, the prosecution has examined PW-1 Jugal Kishore, who has lodged the F.I.R. PW-2 is Bal Krishan, as per case of the prosecution, initially the recovered animals were given in the custody of this witness. PW-3 is Dhunni, as per prosecution case, appellant Phool Chandra was arrested in his presence and in his presence on his pointing out, the dead bodies were recovered. PW-4 Bhagwati was also a witness of the same fact. PW-5 Sheetala Prasad Dwivedi, is the person, who had assisted the police party in taking out the dead bodies from the well. PW-6 Sant Raj, is also a witness of the recovery of seven dead bodies from the well. PW-7 Babu Lal, he is the 8th shepherd, who was successful in fleeing away from the place of occurrence. PW-8 is Daya Shankar, he is the witness on the point that he saw the accused persons taking away the abducted persons in the night. PW-9 Ram Raj, is a witness regarding recovery of 700 sheeps and other animals from the possession of appellant Kallan. PW-10 Ram Kishan, is the witness regarding recovery of scattered articles of seven abducted persons from the field of complainant Jugal Kishore. All these independent witnesses except the complainant have not supported the case of the prosecution and have been declared hostile. PW-11 is S.O. Madhusudan Singh, who has recovered the animals from the possession of appellant Kallan and also arrested appellant Phool Chandra, thereafter recovered seven dead bodies on his pointing out. PW-12 Nand Kishore, has stated that on 13.6.2001, recovered animals were given in his custody from the first Supurdar Bal Kishan and he has supported this part of the prosecution case and he has also produced the said recovered shepherds before the court during trial. PW-13 S.I. Ranveer Singh, is the Investigating Officer of this case. PW-14 is Dr. P.A. Lari, who had conducted the postmortem on the dead bodies of Merha Pal, Ram Raj Pal, Ginni Pal and Jitendra Pal. PW-15 Dr. A.S. Khan, who has conducted postmortem on the dead bodies of Chhote Lal Pal, Narendra Pal and Ram Prasad Pal, PW-16 Head Constable Amit Kumar, who has prepared chik report and G.D. of this case and PW-17 is S.I. R.K. Mishra, who had conducted the inquest proceedings of seven dead bodies under the supervision of S.O. Madhusudan Singh.

(H) Defence evidence:

11.On behalf of appellant Phool Chandra, DW-1 Head Moharir Shiv Bhawan Singh was examined in his defence, who has proved the extract of crime register Ex. Kha-1 and Kha-2. On the strength of the said register, he has stated that a F.I.R. was lodged on 29.9.1996 by Nankai son of Vindeshwari and after the investigation, C.O. Sadar, District Fatehpur had filed final report in the said case, which was accepted vide order dated 4.12.1997. The said F.I.R. was lodged against six named police personnel and 18 other police personnel of Police Station Hussainganj.

(I) Finding of the trial court:

12.After appreciating the evidence on available on record, learned trial court has convicted the accused appellants as above, hence these criminal appeals. Howsever, accused Ram Swaroop, Jagroop and Naresh were acquitted. Allegation against these three acquitted persons was that they were asked to make arrangement of trucks and the only evidence against them was confession of co-accused Pappu alias Fakku.

(J) Submissions on behalf of the appellants:

13.Submission of learned counsel for the appellants was that in the instant case, recovery is alleged to have been made only from the possession of appellant Kallan and dead bodies were recovered on the pointing out of appellant Phool Chandra, therefore, the only evidence against remaining five appellants was the confession of the accused appellants Kallan and Phool Chandra whereby they have named these appellants. Since the said confession does not stand corroborated by any other evidence, so the same cannot be made basis for conviction of these appellants. So far as appellants Phool Chandra and Kallan are concerned, learned counsel for these appellants have argued that apart from the evidence of police personnel, not even a single independent witness has supported the factum of recovery or the arrest of the appellants. No independent witness has supported the factum of recovery of dead bodies on the pointing out of the appellant Phool Chandra. In this background, the sole evidence of police personnel cannot be treated to be wholly reliable. It has further been submitted that except the evidence of these police witnesses there is no evidence to connect the appellants Kallan and Phool Chandra with this case. The prosecution has proposed to prove its case on the basis of the circumstantial evidence produced by the prosecution. The chain of circumstances was not complete. The trial court only on the basis of the recovery from the possession of appellant Kallan and Phool Chandra has drawn an inference that they are the persons, who are responsible for the death of seven persons and only on the strength of such shaky evidence, has convicted the appellants. Thus, the judgment of the trial court becomes unsustainable under law as learned trial court has given undue weightage to the evidence of police personnel and has not appreciated the evidence in accordance with the settled principles of appreciation of evidence.

(K) Submission on behalf of the State:

14.Learned A.G.A. has submitted that the trial court has recorded the conviction keeping in view the evidence available against the appellants and also keeping in view the pronouncement of Hon'ble the Apex Court in some cases and the said approach of the trial court cannot be said to be illegal or irregular. It was a very serious offence wherein seven persons were done to death brutally. Appellant Kallan and Phool Chandra could not furnish any explanation for their false implication and the recoveries. Appellant Kallan could not furnish any explanation regarding recovery of such huge quantity of animals from his possession and he has nowhere claimed that he was the owner of these animals. It has also been argued that appellant Phool Chandra has stated that his father was murdered by the police personnel, therefore, he has been falsely implicated in this case. It is submitted that DW-1 has stated that the said F.I.R. was lodged on 29.9.1996 for an offence of murder alleged to have been committed on 24.9.1996. After investigation of the said case it was found to be false and final report was filed which was accepted on 4.12.1997. So the said report cannot be the reason for false implication as the said F.I.R. was lodged by Nankai, brother of appellant. So the trial court has right convicted the appellants.

(L) Discussion of evidence and legal points involved:

15.In view of the rival submissions, we have considered prosecution evidence. Before proceeding further in the matter, we would like to address ourselves regarding the standard of proof, which is required to prove a case based on circumstantial evidence.

(L i) Standard of proof required in cases of circumstantial evidence:

16.Hon'ble the Apex Court in the case of S.K. Yusuf v. State of West Bengal reported in AIR 2011 SC 2283 in para 26 has held as under:

"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

17. Hon'ble the Apex Court in the aforesaid case has followed its earlier pronouncements in the following cases:

"Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430 and Wakkar and another v. State of Uttar Pradesh (2011) 3 SCC 306."

In the case of Haresh Mohandas Rajput v. State of Maharashtra 2011 (12) SCC 56, Hon'ble Apex Court following its earlier decision in the case of Krishnan v. State represented by Inspector of Police (2008) 15 SCC 430 observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

Though a conviction may be based solely on circumstantial evidence, however, the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence in a gruesome manner.

18. Hon'ble the Apex Court in the case of Manthuri Laxmi Narsaiah Vs. State of A.P. reported in (2011) 14 SCC 117 has held in paragraph no. 6 as under:-

"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."

19.Likewise in the case of Mustkeem Vs. State of Rajasthan reported in (2011) 11 SCC 724 Hon'ble the Apex Court in paragraph no. 24 has held as under:-

"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p. 185)

The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;

The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

the circumstances should be of a conclusive nature and tendency;

they should exclude every possible hypothesis except the one to be proved; and

There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

The aforementioned judgments have been followed in a recent judgment in the case of Sangili alias Sanganathan Vs. State of Tamilnadu reported in (2014) 10 SCC 264.

20.Keeping in view the aforementioned legal proposition, the evidence of the prosecution has to be appreciated. In the instant case, none was named in the F.I.R. The F.I.R. was lodged on the next day at about 1:00 p.m. at the Police Station Husainganj, which was situated at a distance of about one kilometer. It is true that the F.I.R. was slightly delayed in the instant case. The delay in lodging the F.I.R. has absolutely no relevance because in the F.I.R. no allegation has been made against any person and the complainant has simply informed the police that the sheeps and shepherds were missing and their belongings were lying scattered in his field. The purpose of F.I.R. is very limited and it is only to set the criminal law into motion. The complainant must have come to know this fact only when he would have visited his field. Thus delay in F.I.R. becomes immaterial.

21.In the instant case, investigation revealed that in the intervening night of 8/9.6.2001, seven persons were abducted from the field of complainant Jugal Kishore and their animals, which contained 700 sheeps and some other animals were stolen. This offence was committed under the leadership of appellant Phool Chandra. The investigation revealed that all the accused persons assembled at the house of appellant Phool Chandra. Thereafter they went to the field of complainant Jugal Kishore, abducted seven shepherds and have stolen their 700 sheeps and some other animals. They went towards Nauwagaon where appellant Phool Chandra made a separate party of three accused persons under the leadership of appellant Kallan and asked them to go towards Nauwagaon and told them that he shall soon join them after disposing of these seven abducted persons. Appellant Phool Chandra came along with other accused persons and brought seven abducted persons to Ranewell where some of the abducted persons were given blows with axe and thereafter all the seven persons were thrown into the well of Ranewell. Appellant Kallu was arrested on the very next day of the incident on 9.6.2001 at about 11:00 p.m. in the night and thereafter on the next day, on 10.6.2001 appellant Phool Chandra was arrested and after his arrest, on his pointing out, the dead bodies of seven abducted persons were recovered. Perusal of the record shows that after registration of the case, a message was flashed through R.T. Set regarding this incident that seven persons have been abducted along with their animals and S.O. during investigation got the information about the same through his secret informers.

22.Thus in the instant case, there are definitely two different sets of accused persons. One is of appellant Phool Chandra and appellant Kallan. Appellant Kallan was arrested by the police and from his possession the stolen animals were recovered. Likewise, appellant Phool Chandra was also arrested by the police and on the basis of his information, a recovery under Section 27 of the Indian Evidence Act was made and seven dead bodies were recovered. The other set of five remaining appellants stands on different footing. Nothing incriminating is alleged to have been recovered from their possession. The name of six accused persons came into light in the statement of co-accused persons, who were arrested by the police. So the case of both the set of accused persons has to be dealt with separately. Regarding the accused persons, who were either not arrested by the police or from whose possession, nothing incriminating is alleged to have been recovered, it has been submitted that the only evidence available against them was either their own confession or confession of the accused persons made in the police custody. Apart from it, there is no other evidence to connect them with the instant offence.

23.Submission is that the confession of the co-accused person, by itself, cannot be held to be sufficient to record a conviction. On this point, learned counsel for the appellants has placed reliance on the pronouncement of Constitution Bench of Hon'ble the Apex Court in the case of Haricharan Kurmi, Jogia Hajam Vs. State of Bihar reported in AIR 1964 SC 1184. Our attention was drawn towards the following part of the judgment, which reads as under:-

"As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against other accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chockerburty, ILR 38 Cal 559 a confession can only be used to "lend assurance to other evidence against a co-accused". In Periyaswami Moopan v. Emperor. ILR 54 Mad 75 Reilly, J., observed that the provision of S. 30 goes not further than this, "where there is evidence against the co-accused sufficient, "if believed, to support his conviction, then the kind of confession described in S. 30 may be thrown into the scale as a additional reason for believing that evidence." In Bhuboni Sahu v. The King, 76 Ind App. 147 the Privy Council has expressed the same view. Sir. John Beaumont who spoke for the Board, observed that

"a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in S. 3 of the Evidence Act. It is not required to be give on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. S. 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Chearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence."

24.Regarding appellants Phool Chandra and Kallan, learned counsel for the appellants has submitted that all the public witnesses, who were made witness of the recovery by the police, have not supported the case of the prosecution. Thus the sole evidence to prove these circumstances, remains the evidence of only police personnel and the sole evidence of police personnel cannot be acted upon by the court. So the first point to be considered is whether the evidence of police personnel can be acted upon.

(L ii) Whether evidence of police personnel can be acted upon:

25.Before proceeding further in the matter, we would like to address ourselves on the point as to whether the evidence of police personnel can be acted upon or the same should be discarded only on the ground that they are police personnel. In the case of Govindaraju alias Govinda Vs. State (By Sriramapuram Police Station and another) reported in (2012) 4 SCC 722 Hon'ble the Apex Court in paragraph nos. 30 and 31 has held as under:-

"30. It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.

31. This Court in the case of Girja Prasad (2007) 15 SCC 760 while particularly referring to the evidence of a police officer, said that it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favor of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration."

26.In the case of Rohtash Kumar Vs. State of Haryana reported in (2013) 14 Supreme Court Cases 434, Hon'ble the Apex Court in paragraph no. 35 has held as under:-

"35. The term witness, means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in Court, or otherwise. In Pradeep Narayan Madgaonkar and Ors. v. State of Maharashtra (1995) 4 SCC 255, this Court examined the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Court herein held, that the same must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belonged to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars, should be sought. (See also: Paras Ram v. State of Haryana (1992) 4 SCC 662; Balbir Singh v. State (1996) 11 SCC 139; Kalpnath Rai v. State (Through CBI) (1997) 8 SCC 732; M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence (2003) 8 SCC 449; and Ravinderan v. Superintendent of Customs (2007) 6 SCC 410)."

(underlined by us)

27.Similar view was expressed by Hon'ble the Apex Court in the case of Yakub Abdul Razak Memon Vs. State of Maharashtra reported in (2013) 13 Supreme Court Cases 1.

28.It is true that in the instant case, the public witness regarding recovery and arrest of appellant Phool Chandra and arrest of appellant Kallan, recovery of dead bodies on the pointing out of appellant Phool Chandra have turned hostile, inspite of the fact that their signatures were present on the recovery memos but they have stated that their signatures were obtained subsequently. Keeping in view the facts of the instant case, where the accused persons are alleged to have murdered seven persons simply for animals, then how a person of rural background with virtually having no protection against such criminals can dare to depose against them. In our considered opinion, this was the main reason as to why these witnesses have not supported the case of the prosecution.

(L iii) Whether evidence of hostile witness stands wiped out from record:

29. Law is settled on the point that even if the witnesses have been declared hostile, even then their evidence does not stand wiped out from the record and the court would be lawful in seeking corroboration from the said evidence on any point where the evidence of such witness supports the case of the prosecution. Reference may be made on this point to the pronouncement of Hon'ble the Apex Court in the case of Rohtash Kumar (supra) wherein Hon'ble the Apex Court has observed that the evidence of a hostile witness cannot be rejected in toto merely because the prosecution choose to treat him as hostile and cross examined him. This point has been considered in the aforementioned case in paragraph nos. 25, 26 and 27, which reads as as under:

"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof.

26. In State of U.P. v. Ramesh Prasad Misra and Anr. (1996) 10 SCC 360, this Court held, that evidence of a hostile witness would not be rejected in entirety, if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny, and thereafter, that portion of the evidence which is consistent with the either case of the prosecution, or that of the defence, may be relied upon. (See also: C. Muniappan and Ors. v. State of Tamil Nadu (2010) 9 SCC 567; Himanshu @ Chintu v. State (NCT of Delhi) (2011) 2 SCC 36; and Ramesh Harijan v. State of U.P. (2012) 5 SCC 777).

27. Therefore, the law permits the court to take into consideration the deposition of a hostile witness, to the extent that the same is in consonance with the case of the prosecution, and is found to be reliable in careful judicial scrutiny."

30.Similar view was expressed by Hon'ble the Apex Court in the case of Paulmeli and another Vs. State of Tamil Nadu through Inspector of Police reported in (2014) 13 SCC 90 and also in the case of Shyamal Ghosh Vs. State of West Bengal reported in (2012) 7 Supreme Court Cases 646.

31.In view of the aforementioned legal proposition, we first consider the case of five appellants, namely, Santosh alias Neta Khatik, Pappu alias Fakku, Nankai, Ramesh and Rakesh, from whose possession or on whom pointing out nothing incriminating is alleged to have been recovered. Learned trial court in its judgment has observed that all the appellants have very strong criminal history against them including the offences of murder. Perusal of the record also shows that appellant Ramesh and Pappu alias Fakku were arrested during investigation and made confessions in police custody but admittedly nothing incriminating is alleged to have been recovered from their possession or on their pointing out. Thus, their confessions, in police custody, are hit by the provisions of Sections 25 and 26 of the Indian Evidence Act. The only evidence that remains against the above-named five appellants is the confession of co-accused.

(L iv) Evidentiary value of confession of co-accused:

32.The Constitution Bench of Hon'ble the Apex Court in the case of Haricharan Kurmi (Supra)has held that the confession of co-accused is a weak type of evidence. The view expressed by Hon'ble the Apex Court in the aforementioned case of Haricharan Kurmi has been followed by Hon'ble Apex Court in its subsequent judgment in the case of Prakash Kumar Vs. State of Gujarat reported in (2007) 4 SCC 266. Hon'ble the Apex Court in paragraph no. 7 has held as under:

"7. The prosecution could not adduce any other supporting evidence to prove the guilt of the appellant. Even based on the confession of the co-accused, the only allegation against the appellant is that he was in the company of the other co-accused and had pointed out towards the victim by making a sign whereupon the other accused over-powered the victim and took him forcibly in the Maruti van. To prove that the appellant was in the company of other accused, there is no other independent evidence. Even though the prosecution adduced other evidence to prove that the victim Babulal Misrimal Jain was forcibly taken and kept in unlawful custody, the complicity of the appellant could not be proved. The prosecution has failed to prove the case against the appellant."

33.In another case in the case of Mohtesham Mohd. Ismail Vs. SPL. Director, Enforcement Directorate and another reported in (2007) 8 Supreme Court Cases 254 Hon'ble the Apex Court has held in paragraph no. 19 as under:-

"19. Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is now a well- settled principle of law that a confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom. [See Haricharan Kurmi etc. v. State of Bihar AIR 1964 SC 1184; Haroom Haji Abdulla v. State of Maharashtra AIR 1968 SC 832; and Prakash Kumar alias Prakash Bhutto etc. v. State of Gujarat (2007) 4 SCC 266]."

34.In the case of Pancho Vs. State of Haryana reported in (2011) 10 Supreme Court Cases 165, Hon'ble the Apex Court has placed reliance upon the pronouncement in the case of Haricharan Kurmi and has observed in paragraph no. 27 and 28 as under:-

"27. This Court in Haricharan case AIR 1964 SC 1184 further observed that Section 30 merely enables the court to take the confession into account. It is, not obligatory on the court to take the confession into account. this Court reiterated that a confession cannot be treated as substantive evidence against a co-accused. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right.

28. This Court in Haricharan case AIR 1964 SC 1184 clarified that though confession may be regarded as evidence in generic sense because of the provisions of Section 30 of the Evidence Act, the fact remains that it is not evidence as defined in Section 3 of the Evidence Act. Therefore, in dealing with a case against an accused, the court cannot start with the confession of a co-accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence."

35.Perusal of the aforementioned case laws makes it abundantly clear that the confession of co-accused cannot be made basis for conviction. The reason behind is that the said confession was recorded by the police officer while the maker was in police custody. The second reason is that the accused has no opportunity to test the same through cross-examination nor evidence of such maker of the confession is recorded in his presence. Thus so far as the five appellants (from whom or on whose pointing out no recovery has been made) are concerned, the trial court was swayed away by the seriousness of the offence and also by the fact that the appellants have a very strong criminal background. But this, by itself, cannot be a ground to hold a person guilty. If the independent witnesses would have cooperated the prosecution and would have supported the case of the prosecution then the position would have been different. The apathy of the public in cooperating the prosecution is a great hurdle in the effective administration of criminal justice and because of this apathy of the public, the courts are left with no option but to acquit the hardened criminals accused of heinous offences.

36.In the case of Dharam Deo Yadav Vs. State of Uttar Pradesh reported in (2014) 5 Supreme Court Cases 509, Hon'ble the Apex Court in paragraph no. 30 has expressed its views on this aspect as under:-

"30. Criminal Judicial System in this country is at crossroads, many a times, reliable, trustworthy, credible witnesses to the crime seldom come forward to depose before the court and even the hardened criminals get away from the clutches of law. Even the reliable witnesses for the prosecution turn hostile due to intimidation, fear and host of other reasons. ............................"

37.Law is settled on the point that no person can be convicted unless and until the prosecution succeeds in proving its case beyond reasonable doubt against the accsued persons. Since the only evidence available against the above-named five accused was either their own confession or confession of co-accused, therefore, keeping in view the legal pronouncement of Hon'ble the Apex Court, mentioned above, the conviction of these five appellants, rendered by the trial court become unsustainable under law. Accordingly Criminal Appeal No. 552 of 2009 preferred by Santosh alias Neta Khatik Criminal Appeal No. 550 of 2009 preferred by appellant Pappu alias Fakku, Criminal Appeal No. 551 of 2009 preferred by appellant Nankai, Criminal Appeal No. 327 of 2009 preferred by appellant Ramesh and Criminal Appeal No. 4596 of 2013 preferred by appellant Rakesh deserve to be allowed.

38.So far as the second set of accused appellants, namely, Kallan and Phool Chandra is concerned, the property of the seven deceased persons was recovered from the possession of appellant Kallan and on the basis of the information furnished by appellant Kallan involvement of appellant Phool Chandra came into light and he was arrested. On his pointing out, seven dead bodies were recovered.

39.In the instant case, the police has taken a very quick action. The F.I.R. was lodged at 1:00 p.m. Immediately thereafter, a message was flashed through R.T. Set and only after about ten hours of the registration of the F.I.R., appellant Kallan was arrested along with 700 sheeps and some other animals. Here it is pertinent to mention that appellant Kallan has nowhere claimed the ownership of the recovered animals. The defence of appellant Kallan was that the said recovery has been falsely planted against him. Submission of learned counsel for the appellants was that PW-2 Bal Kishan and PW-9 Ram Raj have not supported the factum of recovery.

40.As stated earlier, these witnesses, namely, Bal Kishan and Ramraj, have not supported the case of the prosecution but the evidence of hostile witness, so far as it corroborates the case of the prosecution, can be taken into consideration. Perusal of PW-12 Nand Kishore shows that on 13.6.2001, the custody of the said recovered sheeps and other animals was transferred from PW-2 Bal Kishan to this witness. This witness has not only supported this fact but has also produced the recovered animals before the court during trial. This witness has also stated that prior to him the recovered sheeps and animals were in the custody of Bal Kishan. Thus the statement of this witness gives corroboration to the evidence of PW-11 S.O. Madhusudan Singh that the sheeps were recovered from the possession of appellants Kallan and were given in the custody of Bal Kishan on the date of recovery. This recovery was made very promptly after the incident and it is a huge recovery. It cannot be believed, by any stretch of imagination, that the police personnel instead of investigating this case made efforts to collect such large number of sheeps and animals to show a false recovery. Apart from it, had it been so then the original owner of the said sheeps must have come forward to claim the custody of these recovered sheeps and animals but neither it has been so pleaded by the defence nor there is any evidence that the recovered animals were the property of someone else. Thus on this point, the evidence of PW-11 S.O. Madhusudan Singh is found to be wholly reliable. The only submission of learned counsel for appellant Kallan, to discard the evidence of this witness, was that he is a police officer but we have already discussed the legal proposition on this point wherein it has been observed that the evidence of police officer cannot be discarded solely on the ground that he belongs to the police force but his evidence has to be considered as the evidence of any other witness. So after going through the evidence of PW-11 S.O. Madhusudan Singh, we are satisfied that the said evidence, regarding recovery of sheeps and animals from the possession of appellant Kallan is wholly reliable.

41.Now there remains the case against appellant Phool Chandra. According to the evidence of the prosecution, appellant Kallan informed the police regarding involvement of Phool Chandra and thereafter on the basis of secret information, appellant Phool Chandra was arrested. He, in his confession, has submitted that three of the deceased persons were given blows with axe and remaining were thrown into the well alive. It has nowhere the case of appellant Phool Chandra that he had seen any other person throwing the dead bodies in the well or he came to know this fact by some other means. But he has only made a bald denial that he has been falsely implicated and no such recoveries were made on his pointing out. On this point again there is evidence of PW-11 S.O. Madhusudan Singh, which has been challenged on the ground that he is a police officer. But as discussed earlier, this by itself is no ground to discard his testimony. Apart from it, the evidence of PW-5 Sheetala Prasad also supports the fact of recovery of the dead bodies from the well. However, he has not stated that appellant Phool Chandra was present at the said time. But he has supported the fact recovery of the dead bodies from the well as stated by PW-11 S.O. Madhusudan Singh. He was the person who went inside the well and helped the police party in taking out the dead bodies.

(L v) Law regarding recovery made under Section 27 of the Indian Evidence Act:

42.Before proceeding further, we would like to discuss the law regarding the recovery made under Section 27 of the Indian Evidence Act. In the case of State of Maharashtra Vs. Suresh reported in (2000) 1 Supreme Court Cases 471, Hon'ble the Apex Court in paragraph no. 26 has held as under:-

"26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."

(emphasis added by us)

43.In the case of Pawan Kumar alias Monu Mittal Vs. State of Uttar Pradesh reported in (2015) 7 Supreme Court Cases 148, Hon'ble the Apex Court in paragraph no. 29 has held as under:-

"29. It is settled principle of law that statements made by an accused before police official which amount to confession is barred Under Section 25 of the Indian Evidence Act. This prohibition is, however, lifted to some extent by Section 27 which reads thus:

27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

In the light of Section 27of the Evidence Act, whatever information given by the accused in consequence of which a fact is discovered only would be admissible in the evidence, whether such information amounts to confession or not. The basic idea embedded Under Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information (see State of Maharashtra v. Damu (2000) 6 SCC 269)

(underlined by us)

44.Keeping in view the aforementioned proposition of law, in our considered opinion, it was not only the recovery of the seven dead bodies, which becomes admissible under the Act. But appellant Phool Chandra had also furnished information that three of the deceased persons were given blows with axe. Submission of learned counsel for the appellants was that lacerated wound was found on the head of deceased. But edge of the axe, used in the offence may not be sharp enough to cause incised wound or it might have been used by its blunt side. But perusal of the injuries clearly shows that said injuries were caused by a heavy weapon and this fact was also discovered in the postmortem. In our view, this fact was also discovered on the basis of the information furnished by the appellant. Apart from it, appellant Phool Chandra had also informed that four of the deceased persons were thrown alive in the well. Perusal of the postmortem reports of these four persons shows that no mark of injury was found on their bodies and cause of death was asphyxia as a result of ante mortem drowning and this fact, informed by appellant Phool Chandra was also discovered and stands verified by the postmortem reports of these four persons. Apart from it, other prosecution witness PW-17 S.I. R.K. Mishra, who had conducted the inquest proceedings of seven deceased persons also proves the fact of recovery of dead bodies from the said well. The evidence of subsequent Investigating Officer PW-13 S.I. Ranveer Singh also shows that some of the accused persons were arrested by him and they have confessed their guilt. But as stated earlier, nothing incriminating is alleged to have been recovered from their possession. It is nowhere the defence of appellant Phool Chandra that he had seen someone else throwing the dead bodies in the well or this fact came into his knowledge by any other means. So the case of Suresh (Supra) shall apply in full force in the fact of the instant case and the court can rightly presume that Phool Chandra was the person, who had thrown the dead bodies into the well.

(M) Defence of appellant Phool Chandra:

45.As per evidence of D.W.-1 Head Moharir Shiv Shankar Singh, one F.I.R. under Section 147, 148, 149, 364, 323, 342, 302 and 201 I.P.C. was lodged by Nankai son of Bindeshwari on 29.9.1996 at 10:00 p.m. making allegation of an incident that took place on 24.9.1996. Circle Officer had investigated the case and final report was filed after investigation which was accepted by the court. Appellant Phool Chandra happens to be brother of Nankai. Appellant ought to have filed F.I.R. of the said case which was lodged by Nankai against the then S.O. of Police Station Hussainganj and large number of other police personnel. It has nowhere been pleaded by appellant Phool Chandra that any effort was made from his side to file any protest petition against the said final report. Apart from it, this incident had taken place after about five years of the registration of the said F.I.R. So such a long gap, that too, after acceptance of the final report by the court must have made this ground too stale to be a reason for false implication of appellant Phool Chandra. It has whereby been pleaded that any of the police personnel, who was made accused in that case was, in any manner, associated with the incident of this case. Hence the defence taken by appellant Phool Chandra was not the least probable.

46.Thus in view of the discussion made above, we are of the considered view that recoveries of the seven dead bodieswere made on the basis of the information furnished by appellant Phool Chandra.

47.Now cumulative effect of these two recoveries has to be considered. Appellant Phool Chandra had also informed the Investigating Officer that he had sent animals with Kallan and two other persons to Nauwagaon. Though it is true that before the said statement, recovery from the possession of appellants Kallan have been made. Apart from it, appellant Kallan disclosed the fact that appellant Phool Chandra had taken seven abducted persons to dispose of them and subsequently on the basis of the information furnished by Phool Chandra, seven dead bodies were recovered from the well. Though there is no direct evidence that all these persons assembled in the house of appellant Phool Chandra. But taking above two circumstances together, the conclusion is irresistible that they acted, in prosecution of their common object to take away the animals of seven persons after killing them, and both of them are responsible for the death of seven persons. Though the other appellants have not been found guilty but it does not mean that other persons were not involved in this offence. The prosecution story regarding involvement of several other persons in this incident has not been disbelieved. Such an offence could not have been committed unless and until several person worked together in prosecution of their common object. The other appellants have been acquitted only on the ground as there was no admissible and reliable evidence against them. So their acquittal would not lend any help to these two appellants against whom the case of the prosecution stands proved. Therefore, appellants have rightly been convicted for the offence with the aid of Section 149 I.P.C. Thus we hold that Criminal Appeal No. 611 of 2009 preferred by appellant Kallan and Criminal Appeal No. 282 of 2009 preferred by appellant Phool Chandra sans merits, deserve to be dismissed.

Order

48.Criminal Appeal No. 552 of 2009 preferred by Santosh alias Neta Khatik Criminal Appeal No. 550 of 2009 preferred by appellant Pappu alias Fakku, Criminal Appeal No. 551 of 2009 preferred by appellant Nankai, Criminal Appeal No. 327 of 2009 preferred by appellant Ramesh and Criminal Appeal No. 4596 of 2013 preferred by appellant Rakesh are hereby allowed. The aforesaid five appellants are hereby acquitted of the charges levelled against them. They be set at liberty. At present, they are in custody. They shall be released forthwith, if not wanted in any other case.

49.Criminal Appeal No. 611 of 2009 preferred by appellant Kallan and Criminal Appeal No. 282 of 2009 preferred by appellant Phool Chandra are hereby dismissed. Both these appellants are in custody. They shall serve out their sentence awarded by the trial court.

50.Office is directed to communicate this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.

Order Date :-23.9.2015 (Raghvendra Kumar, J.) (S.V.S. Rathore, J.)

Virendra