Gajju & Others vs State Of U.P.
2018 Latest Caselaw 4182 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case :- CRIMINAL APPEAL No. - 1310 of 1982
 

 
Appellant :- Gajju & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Y.K.Shukla, Kamlesh Kumar Gangwar, Mewa Lal Shukla (Amicus Curiae), P.N.Mishra, R.Asthana
 
Counsel for Respondent :- D.G.A.
 
				With:
 
Case :- CRIMINAL APPEAL No. - 1189 of 1982
 
Appellant :- Lal Bahadur and others
 
Respondent :- State 
 
Counsel for Appellant :- Yadavansh Kr. Shukla, Apul Misra
 
Counsel for Respondent :- D.G.A.		
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)

Both the aforesaid appeals arise from a common judgment and order of the trial Court rendered in respect of the same criminal case, therefore, with the consent of learned counsel for the parties both the appeals have been heard together and are being decided by this common judgment.

All the eight appellants (Gajju, Shyam Lal, Jhinguri and Sadhu appellants in Criminal Appeal No. 1310 of 1982, and Lal Bahadur, Girand, Dhanpal and Vijendra appellants in Criminal Appeal No. 1189 of 1982) are convicted for commission of the offence under Sections 302, 307, 148 and 149 of the Indian Penal Code1 in respect of murder of seven persons in a village on the same day within a short span of time.

The trial Court vide its impugned judgment and order dated 30th April, 1982 has found them guilty in S.T. No. 46 of 1981 and accordingly convicted and sentenced them separately in the aforesaid sections to undergo imprisonment for life under Section 302 IPC read with Section 149 IPC, three years rigorous imprisonment under Section 307 IPC read with Section 149 and two years' rigorous imprisonment under Section 148 IPC, but all the sentences have been directed to run concurrently.

During pendency of the criminal appeal, Gajju, Jhinguri and Sadhu, appellant nos. 1, 3 and 4 respectively in Criminal Appeal No. 1310 of 1982, have died and the appeal in their respect has already been abated vide order of this Court dated 19th November, 2015.

The prosecution case is that on 15th November, 1980 PW-3 Badshah Singh, son of Hariram Yadav, resident of Village Behti, Police Station Kalan, District Shahjahanpur, submitted a written report (tehrir) (Exh.Ka-8), on the basis of which chik first information report2 (Exh. K-11) was prepared at 01.30 P.M. by Head Constable Narain Singh at Police Station Kalan, District Shahjahanpur, whereafter an FIR was registered under Sections 147, 148, 149, 302, 307 & 429 IPC as Case Crime No. 115 of 1980 against the persons named in the FIR. The necessary entries in the general diary were also maintained on 15th November, 1980.

The incident as narrated by PW-3 in his written report is that on 15th November, 1980 when he had gone to his field, which is near river Ganga, at about 11.00 A.M., he saw that Pothi, son of Chiraunji, resident of his village, accompanied by several other persons on the back of 11 horses came from the side of Ganga river. They were accompanied by 8 other persons, who were walking on feet. When they came at a distance of about 200 yards from him, he recognised Pothi and some of the persons who were moving on feet. Since PW-3 had a long existed enmity with Pothi, who is resident of the same village, PW-3 moved in a nearby sugarcane field of one Ram Sahai to hide himself from the said gang. When the gang of Pothi reached near the said sugarcane field, he recognised some of them as Pothi, Harnam Aheer, Police Station Paraur, Chhaviram Aheer, resident of Village Harnagar, Police Station Kurawali, District Mainpuri, and the persons who were moving on feet were the appellants, namely, Gajju, Shyam Pal, Jhinguri & Sadhu, one Lal Bahadur of Village Dhobiyan Nagla, Girand, Dhanpal and Vijendra, all of them were armed with rifle, S.L.R., and guns. They moved towards the field of his uncle Mathura, who was sowing his field with his two sons, namely, Rakshapal and Dhyanpal. The miscreants fired at them and all of them after receiving injuries fell down and succumbed to their injuries on the spot. Thereafter they shot at Munshi Singh, who was going towards Ganga river on his buffalo-cart to take manure, and Munshi Singh died in the cart itself. After killing those four persons, the gang headed towards East location to village Dhobiyan Nagla, where they shot at Jorawar, son of Prahlad, and Karu @ Ram Kishore, son of Ganga Dayal Yadav, who were carrying potato on their bullock-cart from Kayamganj to their village. After receiving firearm injuries, Jorawar was seriously injured and he fell down from the bullock-cart and succumbed to his injuries and his one of the bulls also received gun shot injuries and died on the spot. Karu @ Ram Kishore, PW-5, who was also sitting in the bullock-cart, also sustained gunshot injuries but he survived.

After killing Jorawar, the gang moved towards the village through the fields and they shot fire at Ram Deen, son of Dori, and Siya Ram, son of Dwarika, who were working in their field, and both of them also died on the spot. The FIR further records that at the time of murder of Mathura, Rakshpal, Dhyanpal, Munshi Singh, Siya Ram, Jorawar and Ram Deen some of the eye witnesses, namely, Shankar, Brindawan, Hoshiyar Singh, PW-4, Chhipkuri, Asarey Ram, PW-7, Ganga Singh, PW-8, Thaneshwar, son of Rambal, and Dipti, son of Ravi Lal, were present at the scene of occurrence and they had seen the incident. PW-3 has further stated in his report that out of gang he had recognised Pothi, Harnam, Chhabiram, Gajju, Shyampal, Jhinguri, Sadhu, Lal Bahadur, Girand, Vijendra and Dhanpal. It was also mentioned that the dead bodies of the deceased persons were lying on the spot and the gang was still present in a grove near western side of the village. He apprehended that they were likely to attack his house.

The S.O. of the Police Station Kalan along with the police force reached on the spot on the same day at 03.00 P.M.. PW-11 Sachchidanand, Sub-Inspector, after the FIR was recorded and entries were made in the general diary, immediately started investigation and recorded the statement of PW-3 Badshah Singh, and Head Constable Shree Narain Singh. The Investigating Officer3 along with the police force proceeded to the spot and reached the village at about 03.00 P.M. The I.O. first visited the spot, where dead body of deceased Ram Deen was lying in the field of one Kishan. He conducted inquest (Exh.Ka-13) of the dead body of late Ram Deen and prepared Chalan Lash (Exh. Ka-14), Naksha (Map) Lash (Exh.Ka-15) in his own handwriting. He sealed the dead body. He also found the dead body of Dhyanpal on the same spot. The inquest report and other necessary papers of the dead body of Dhyanpal were prepared. After conducting inquest on the dead bodies of Ram Deen and Dhyanpal, the I.O. went to the scene of occurrence, where the accused persons had shot Mathura and his two sons. The inquest was conducted on the dead bodies of Mathura and Rakshpal and necessary formalities, which have been mentioned above, were completed by the I.O. on the spot and their dead bodies were also sealed. The inquest was also conducted on the dead body of Munshi Singh and necessary papers were prepared. Thereafter dead body of Jorawar was found on the way to Behti and inquest and other formalities thereon were conducted. The proceedings of conducting inquest on all the dead bodies took a couple of hours and it could be completed at about 11.30 P.M. in the night. All the seven dead bodies were given in the charge of Constables Sobaran Singh and Satya Narain for carrying them to Shahjahanpur, which is situated at a distance of 70 Kms. The I.O. sent the injured Karu @ Ram Kishore, PW-5, for medical examination. In the night the I.O. stayed in the village.

PW-1 Dr. P.S. Varma, Medical Officer, District Hospital, Shahjahanpur and PW-2 Dr. Satyapal, Surgeon, District Hospital, Shahjahanpur conducted autopsy on all the dead bodies and issued the respective post-mortem reports under their signature. The police after completion of investigation submitted charge-sheet (Exh.Ka-48) against the appellants on 20th January, 1981.

The Chief Judicial Magistrate committed the matter to the Session Trial, where the case was assigned S.T. No. 46 of 1981. The Vth Additional Sessions Judge, Shahjahanpur on 27th July, 1981 framed charges under Sections 147, 148, 149, 307, 302/429 IPC against all the appellants.

The prosecution in support of its case examined 11 witnesses and has also filed the documentary evidences. PW-1 Dr. P.S. Varma, who was posted as Radiologist/ Medical Officer at District Hospital, Shahjahanpur, had conducted post-mortem on the dead bodies of deceased Munshi Singh son of Banwari Singh, Rakshpal son of Mathura, Mathura son of Manohar, Siyaram son of Dwarika, and Ram Deen son of Devi. PW-2 Dr. Satyapal, Surgeon, District Hospital, Shahjahanpur, is the Doctor who had conducted post-mortem on the dead bodies of Jorawar son of Prahlad, and Dhyanpal son of Mahura. PW-3 Badshah Singh is the first informant and eye witness of two incidents, one in which his uncle Mathura and his two sons Rakshpal and Dhyanpal were murdered, and the second when the appellants had shot at Mushi Singh. PW-4 Hoshyar Singh is eye witness of the first incident wherein Mathura and his two sons were shot dead, and he had also seen the occurrence of the incident when Munshi Singh was shot. PW-5 Ram Kishore @ Karu is the eye witness of murder of Jorawar; PW-6 Thaneshwar is the eye witness of murder of Siya Ram and Ram Deen; PW-7 Asarey Ram is the eye witness of murder of Jorawar and firing on Karu @ Ram Kishre (PW-5) who was injured; PW-8 Ganga Singh is the eye witness of murder of Jorawar and also the firing in which his nephew Karu was seriously injured; PW-9 Dr. A.K. Sharma was the Doctor at PHC, Kalan, who had examined Karu @ Ram Kishore son of Ganga Dayal, who had sustained gunshot injuries; PW-10 Constable Sobaran Singh is a formal witness as he was posted as a Constable in Police Station Kalan at the relevant time and he had accompanied the I.O. to the scene of occurrence; and, PW-11 S.I. Sachchidanand Singh was the I.O. in the case.

After completion of evidence of the prosecution witnesses, statements of the accused persons were recorded under Section 313 Cr.P.C.. All the accused persons have pleaded not guilty and have claimed that they have been falsely implicated due to enmity.

We have heard Sri Mewa Lal Shukla, learned amicus curiae for the appellants, and Sri Apul Misra, learned counsel for some of the appellants and Sri A.N. Mulla, learned A.G.A.

On the same day two dreaded dacoits Pothi Ram and Chhabiram along with their companions have caused seven murders by indiscriminate firing. It is stated that both the dacoits belong to the same village. The dreaded dacoit Pothi is resident of the same village and due to past enmity he along with another dacoit Chhabiram have committed murder of seven persons between 11.30 A.M. to 12.30 P.M. on the same day. According to the prosecution, the said incident has been witnessed by six eye witnesses, one of them is PW-5 Ram Kishore, an injured witness. The I.O. has prepared a site plan with the help of local residents of the village. A perusal of the said site plan, which has not been disputed by the learned counsel for the appellants during the course of arguments, shows that river Ganga flows from south to north. All the murders have taken place in the village.

In the present case there are five eye witnesses, namely, PW-3 Badshah Singh, PW-4 Hoshiyar Singh, PW-5 Karu @ Ram Kishore, PW-6 Thaneshwar and PW-7 Asarey Ram.

We will deal with the evidence of eye witnesses first.

PW-3 Badshah Singh is the first informant. He is an eye witness of two set of the incidents wherein four persons have been killed. In his statement he has given detailed facts about the deep-rooted enmity between accused persons, who are said to be members of the gang of Pothi, a dreaded dacoit, and the informant and some of the deceased persons. We will deal his testimony regarding the enmity later on. His statement regarding the incident, which he has seen, is given at first.

This witness (PW-3) has given detail of topography of the places where murders have taken place. It is stated that his village Behti is at a distance of 3 kms. towards south-east. His field is about 2 kms. away from his house in the south direction near river Ganga. The subway which connects Chhivkuti and Ganga ghat is about 4-6 paces near his field. On the date of occurrence he had gone to his field in a routine manner. His field was vacant. On both the sides i.e. towards east and north of his field there are plots of Ram Sahai. In the eastern field, adjoining to the field of PW-3, Ram Sahai had sown sugarcane, which was in the height of his head and chest. When he was near his field, suddenly he saw that from the direction of river Ganga, south-west side, 11 persons, who were mounted on horses and armed with weapons, were coming towards his side. About 8 persons, who were also armed, were walking on feet along with horse riders. First time when he saw the horse riders, they were at a distance of 150 paces. He (PW-3) immediately recognised Pothi, who was also mounted on the horse, since there was a long standing enmity between Pothi and him. Having seen him, he developed cold feet and he rushed in the adjoining sugarcane field of Ram Sahai and hid himself. In the sugarcane field he stood motionless out of fear that any movement can get the attention of group of the people who were headed by Pothi. When they came at a close distance, he saw that another dreaded dacoit Chhabi Ram was also with him on one of the horses. The appellants, who are eight in number, were accompanying the horse riders on their foot and all of them were armed with deadly weapons, rifles, SLRs and guns. When they passed near the sugarcane field, there was hardly a distance of 150 paces.

It is deposed that field of his uncle Mathura was adjacent to another plot of Ram Sahai towards north. The said plot of Ram Sahai was vacant. Mathura, uncle of PW-3, and his two sons Rakshpal and Dhyanpal were sowing wheat in their field. The group moved towards the field of Mathura and immediately they opened fire on Mathura and his two sons and due to the gunshot all three (Mathura, Rakshpal and Dhyanpal) fell down and succumbed to their injuries on the spot.

After killing them, the group turned to the pathway and found one Munshi Singh, resident of Village Chhivkuti, who was going from his village to Ganga ghat on his buffalo-cart. The members of the group surrounded him and shot him too. The place of his murder is hardly 100-125 paces from the place of occurrence where Mathura and his sons were killed. After killing Munshi Singh, the group moved towards east side and they went on a road which connects Kayamganj and Behti. After a short while he heard noise of gun fire. Thereafter the group proceeded towards village Behati, from which side he heard noise of gun fires.

The witness further deposed that he had seen the murder of Mathura, Rakshpal, Dhyanpal and Munshi Singh from his own eyes from the field of Ram Sahai, where he had concealed himself. After the group moved away from the scene of occurrence, the witness came out from the sugarcane field and went to the place of occurrence where dead bodies of Mathura and his two sons were lying. Thereafter he also went to the spot where Munshi Singh was killed and his dead body was still in the buffalo-cart. The witness has further deposed that on the same day the group had also murdered Jorawar, Ram Deen and Siya Ram. Later he had seen the dead bodies of these three persons also. Two residents of the village, namely, Bhaveshwar and Diptee had narrated him the incident of murder of Ram Deen and Siya Ram. Asarey Ram and Ganga Singh had told him about the murder of Jorawar. He has also stated that murder of Mathura, Rakshpal, Dhyanpal and Munshi Singh was also witnessed by PW-5 Hoshiyar Singh. PW-3 has further deposed that he made up his mind to inform the police, therefore, he came to his baithak (the room for meeting visitors) and dictated the report to one Collector Singh of his village. After jotting down the fact what he had stated, Collector Singh had read it over to him. The said written report was Exh.Ka-8, which this witness had proved in the Court. He has deposed that he went to the Police Station Kalan with the said written report on his horse and reached there at about 1.00- 1.30 P.M.. At the police station he had submitted the written report to the Deewan (Head Constable), who had recorded the FIR on the basis of the written report. He has stated that distance of police station from his village is about 12 kms.. He has also stated that in the said incident Karu @ Ram Kishore, PW-5, son of Ganga Dayal, and who was nephew of one of the deceased Jorawar, was also injured. When the group had shot at Jorawar, Karu @ Ram Kishore was also sitting in his bullock-cart. Jorawar was going from Kayamganj to Behti. In the indiscriminate firing by the appellants and Pothi, one of the bulls of bullock-cart of Jorawar also had received the gunshot injuries. He (PW-3) was apprised of the said fact by Karu, Ganga Singh and Ram Asarey, PW-7, who is also known as Asarey Ram.

In a long cross-examination, this witness has also stated that Pothi and Chhabi Ram are notorious dacoits and several offences committed by them have been widely reported in the newspapers but they have not been arrested so far by the police. It was also stated that they are carrying prize on their heads even by the neighbouring States and the police personnel of the neighbouring States are cooperating with the U.P. Police to arrest them. In his cross examination he has stated that before penning down the written report some of the witnesses had had a talk with him. He had denied the suggestion that after consulting the witnesses and other persons the written report was prepared. He himself was eye witness of four murders and Hoshiyar Singh, PW-4, was also eye witness. In the cross-examination he had further stated that he had gone to the police station alone on his horse carefully bu hiding himself as he had apprehended danger to his life. For the last 5-6 years Pothi was trying to murder him, therefore, he used to take care of his security. He was afraid of Pothi for some times but after the incident he is feeling more insecure from Pothi. He has denied the suggestion that he had implicated Lal Bahadur, Girand, Dhyanpal and Vijendra at the instance of PW-4 Hoshiyar Singh. He has also denied the suggestion that written report was prepared at the instance of the police. It is stated that when first time he had seen the assailants, they were hardly at a distance of 150 paces from him. There was no obstruction between them. The persons who were riding on the horse were coming slowly and 8 persons, who were on their foot, were also walking along with them. He emerged from the sugarcane field only when the assailants after killing Mathura, his two sons and Munshi Singh left the place. The place where Mathura and his sons were murdered was about 150 paces towards northward and was clearly visible from the place where PW-3 (witness) was standing as there was no obstruction either from the side of his field or from the adjoining field of Ram Sahai as both the fields had no crop and they were parti (vacant land). Munshi Singh was murdered at the distance of 100-125 paces from him and the assailants as soon as reached near the field of Mathura, they immediately opened fire and killed all of them and hardly after two minutes they murdered Munshi Singh, who was going on buffalo-cart towards river Ganga. When they moved towards eastward, after 3-4 minutes he heard noise of about 10-15 firing from the said direction. After the incident, he stayed near the dead bodies for few minutes and thereafter walked to his village. In the meantime, Shanker and PW-4 Hoshiyar Singh remained near the dead bodies when he had returned to the village. On his way to his home near the village he had seen the dead bodies of Siya Ram and Ram Deen. When he reached at his house Karu @ Ram Kishore, PW-5, told him that he had also received gunshot injuries and his uncle Jorawar had been murdered. When the witness reached at his baithak, some of the eye witnesses, namely, Ganga Singh and Ram Asarey met him. Thaneshwar and Diptee, PW-6, and about 10-20 others villagers had also assembled there, but he had not consulted them while the written report was prepared. The police had reached the scene of occurrence at about 3.00 P.M. along with the police force and P.A.C. The I.O. had visited all the three places of occurrence where the murder had taken place. The inquest on the dead bodies were conducted and it was completed in the night at about 10.00 P.M.

As regards enmity between the assailants, informant and other eye witnesses, in brief this witness has stated certain facts to the effect that real brother of Pothi, namely, Shyam Singh was murdered about 15-16 years back. He (PW-3) was accused in the said murder along with other persons. He was convicted by the Session Court but the High Court has acquitted him and all other accused. PW-3's real brother Shyam Lal was shot by the appellants--Gajju and Shyam Pal, and along with them Raghuvir and Pothi were also accused and they were convicted by the Session Court.

About three years' back in Village Sabishpur, which is in district Budaun and is situated at the border of district Shahjahanpur and is 1 Km. from the village of PW-3, a cross firing had taken place between two groups, one headed by Pothi, Chhabi Ram, Shyam Pal and Harnath and the other group was comprised of PW-3, Munshi Singh, Shyam Pal, Ram Deen, Mathura, Rakshpal, Siya Ram, Jorawar and others. In the instant murder, Ram Deen Mathura, Rakshpal, Siya Ram and Jorawar have been killed by Pothi and his group.

It is stated that appellants--Shyam Pal, Gajju, Jhinguri and Sadhu are cousin brothers of gang leader Pothi. Shyam Pal, Sadhu and Jhinguri are the real brothers. Jhinguri is son of their step mother. He has also stated that in his statement under Section 161 Cr.P.C. he had told the I.O. that all the accused persons are members of Pothi's gang, but the I.O. has not recorded this fact in his statement for the unknown reasons.

PW-4 Hoshiyar Singh is also an eye witness. He has deposed that Munshi Singh was son of his uncle and was living in Village Chhidkuri. Father of this witness, namely, Duryodhan Singh was murdered about 5-6 years back and in the said case amongst others two of the appellants, namely, Girand and Dhan Pal, were accused and they were convicted by the Session Court. Makrand was real elder brother of three appellants, namely, Girand, Dhanpal and Vijendra and he was murdered about 5 years back, after the murder of witness's father. In that murder case of Makrand, Munshi Singh was accused and he was convicted by the Session Court. He had preferred a criminal appeal and was enlarged on bail by the High Court.

Narrating the incident the witness has recalled that at about 11.00 to 11.30 A.M. he had taken his cattle for grazing towards south in the Katri (kachhar). There he saw that Badshah Singh, PW-3, who was about 50-60 paces towards south from his field, was strolling near his field. Suddenly the witness saw that about 11 persons riding on the horses and 8 persons walking on foot along with them came from the side of river Ganga. He recognised Pothi, Chhabi Ram and Harnam, who were on the back of the horses. Some of the persons, who were walking along with them, were also recognised by the witness as Gajju, Shyam Pal, Jhinguri, Sadhu, Lal Bahadur, Girand, Dhan Pal and Vijendra, the appellants. All the said persons were present in the Court and were recognised by the witness. According to his statement, these persons were well known to him. He could not recognise some of the persons who were mounted on the horse as they were unknown to him. He stated that all the horse riders and pedestrians were armed with rifles and guns. The group moved towards the field of Mathura. On reaching there, they fired at Mathura, Dhyan Pal and Rakshpal. The witness also saw that Badshah Singh, PW-3, had hiden himself in the sugarcane field of Ram Sahai. This witness had seen this incident hardly from a distance of 100-125 paces from katri. At the same time Munshi Singh, who was hardly 50 yards away from him, was going from Chhidkuri to Kayamganj on his buffalo-cart. The gang fired at him and thereafter moved towards east.

He has deposed that after the assailants had left the place, he went near Munshi Singh and found him dead. Thereafter he went to the place of occurrence where Mathura, Rakshpal and Dhyan Pal were also lying dead and their bodies were lying in the field. The distance between these two place of murder was hardly 100-125 paces. The I.O. had visited the scene of occurrence and had given the buffalo-cart in the custody of this witness and supurdginama was prepared, which was signed. He had affixed thumb impression on the said supurdginama.

PW-4 has admitted his enmity with the appellants--Dhan Pal and Girand, who were accused in his father's murder. His father was injured and he himself had filed the FIR in the police station. Later he succumbed to his injuries. After the murder of his father, Puttu, Baburam, Kisan, Makarand Jatav and Sukh Lal Jatav were murdered. In the trial related to said murder, this witness was convicted for life term but on appeal he was enlarged on bail by the High Court. It was also stated that in the aforesaid murder case the appellant--Girand was a witness against him. He has also admitted his enmity with Lal Bahadur, appellant, who had given evidence against him.

In the cross-examination he has stated that he had taken his cattle to graze in the katri, from where he was not visible to the group and did not run away from the spot. When the assailants had come near Munshi Singh and fired at him, they were hardly 15 paces away from him. Badshah Singh had also reached near dead bodies of Mathura and his sons. After sometime Badshah Singh left the place but he remained near the dead bodies. Later he was joined by Shankar and Vrindavan near the place of occurrence of murder of Munshi Singh. Until the police reached the spot, this witness remained at the scene of occurrence. The S.H.O./ I.O. had conducted inquest on the dead body of Munshi Singh and after the dead body was sealed, this witness came back to his home. On the next date the I.O. had taken his statement at his house. He stated that when the I.O. had come to the scene of occurrence, he had told him the names of 11 accused persons. By that time a large number of residents of the village had assembled on the spot.

In his cross-examination he has stated that when the group of the assailants was coming towards the field of Mathura, they were moving slowly. After murdering him, they moved fast towards Munshi Singh and shot at him also. When they left the place and moved towards eastward, the witness could not see them due to obstruction. When this group had come near 100-125 paces, only then he recognised 11 accused persons amongst the group. After recognising them, according to this witness, he had hidden himself and remained there until the accused persons left the spot. He hid himself behind the tree of Bair. He has denied the suggestion that he knows that one of the appellants Gajju is patient of tuberculosis.

PW-5 Ram Kishore is an injured witness. He was declared hostile. The deceased Jorawar was his real uncle (Tau). He has deposed that on the date of occurrence at about 11.00 A.M. Jorawar was coming from Kasganj to Behti by his bullock-cart, on which he was carrying potatoes. The witness was also sitting in the same bullock-cart along with his uncle Jorawar. When they reached between Dhobiyan Nagla and Chheda Nagra, the assailants came from the western side near the bullock-cart. He deposed that the assailants were 11 persons who were riding on horse. The witness recognised Pothi, Chhabi Ram and Harnam, who were known to him. They were armed with rifles and guns and they surrounded the bullock-cart from the front side and started firing. His uncle Jorawar received firearm injury and fell down from the bullock-cart and died instantly. The witness had also received some pellet injury and fell down on the ground. One of his bulls also received grievous injuries and died on the spot. The witness said that he fell between the bullock-cart and bulls. After firing on them, the assailants went towards Behti. This witness had recognised some of the appellants who were present in the Court, but he stated that at the time when they opened fire on bullock-cart, he did not see them. This witness was declared hostile.

In the cross-examination by the prosecution, he has stated that on the date of occurrence other murders have also taken place and the Station Incharge of the police station had visited the spots. The Station Incharge had sent the witness for medical examination to Kalan Hospital and after the treatment he had taken his statement in the village. He had denied that in his statement under Section 161 Cr.P.C. he had told the S.O. that along with horse riders some persons were also moving on foot. He has denied the statement attributed to him under Section 161 Cr.P.C.. He had also denied the fact that he has mentioned the name of the persons Gajju, Jhinguri, Sadhu, Shyam Pal Aheer, Dhanpal, Vijendra, Lal Bahadur and Girand Jatav as the persons walking on foot. He has also denied that the aforesaid persons had threatened him from giving evidence in the Court.

PW-6 Thaneshwar is also an eye witness of the murder of Siya Ram. He has deposed that his field and that of deceased Siya Ram are adjoining and are divided by med (small boundary of clay). On the date of the incident at 12.00 noon deceased Siya Ram and he both were working in their respective fields. The assailants, who were 11 in number, came from south direction. 8 other persons were moving along with them on foot. This witness recognised Pothi, Chhabi Ram and Harnam, who were riding on horse. He had stated that Pothi is resident of Village Behti, Harnam is from Salya and Chhabi Ram is from Harnagar. He has also recognised 8 persons who were walking along with the horse riders and he had named them as Gajju, Shyam Pal, Vijendra, Jhinguri, Sadhu, Lal Bahadur, Girand and Dhanpal (all the appellants). The persons who were moving on the horse and other 8 persons on foot were armed with rifles and guns. He has stated that when he had seen the assailants, he hid himself in the cover of banana plants and from the said place the field of Siya Ram was clearly visible. Siya Ram was surrounded by the horse riders and pedestrians who were on foot and they shot at him. After receiving gunshot injuries, Siya Ram died on the spot.

He further deposed that another person Ram Deen, who was coming from the side of Village Behti, when reached in the field of Sri Kishan, he was also shot by the horse riders and the pedestrians as well. Ram Deen died in the field of Sri Kishan. After firing the assailants moved northward and the persons who were on foot moved towards south.

In his cross-examination the witness has stated that first time when he saw the assailants, they were about 15-16 paces away from him. He had seen 8 persons who were moving along with the horse riders. The witness got the impression that they were the police personnel, however, when they started firing on Siya Ram, he rushed towards banana plants and took cover thereof. When the assailants had started firing, he had recognised them. He stated that the horse riders were moving slowly. The assailants had fired at Siya Ram from a distance of about 5-6 paces. Thereafter he saw Ram Deen, who was also shot at by the assailants and his dead body was lying about 10-12 paces towards north in the field of Ram Kishan. He was fired at the distance of 6-8 paces. After the incidents, he stood near the dead body of Siya Ram, and about 50-100 persons of the village came near the dead body of Siya Ram.

In the cross-examination the witness has stated that Radhey Shyam is his real brother and in the murder of Shyam Singh he was one of the accused. One of the appellants Gajju had given evidence against Radhey Shyam. In the said case, his brother Radhey Shyam was convicted.

PW-7 Asarey Ram is also an eye witness. In his statement he has stated that on the date of the incident he was going to Kayamganj to buy clothes. One Ganga Singh had also accompanied him. When they had reached between Dhobiyan Nagla and Chheda Nagra at about 11.30 A.M., he saw that from the western side 11 horse riders, who were accompanied by 8 persons walking on foot along with them, were moving from west to east side. He recognised Pothi, Chhabi Ram and Harnam. He could not recognise the other horse riders. He had also recognised all the appellants, who were moving on their foot. All the horse riders were dressed in Khaki and they were armed with rifles and guns. When he saw Pothi, he understood that it was a gang led by Pothi. Seeing them, he took cover of shrubs. Ganga Singh also took cover with him. At that time Jorawar and his nephew Karu @ Ram Kishore, PW-5, were carrying potato on their bullock-cart. The assailants surrounded him and opened several fires. Jorawar fell down from the bullock-cart and was seriously injured. One of his bulls had also received injuries and died on the spot. Ram Kishore was also injured. After the said firing the assailants went towards village Behti. When this witness went near Jorawar, he found that Jorawar was dead and Ram Kishore was injured. After some time he went towards village Behti and apprised the said incident to Badshah Singh, the first informant.

In the cross-examination he said that on the date of occurrence he was going to Kayamganj market to buy some clothes and ghee. After informing Badshah Singh about the incident, they went to Kayamganj bajar and did shopping. He has further stated that when he reached the house of Badshah Singh, he found that 10-20 people were present there. He has further stated that when he was going to Behti, he heard the noise of gunfire coming from the village. He thought that some assailants were firing. Then he reached at the house of Badshah Singh. On the way he had seen two dead bodies. Several persons were present there near the dead bodies. He told that some assailants who were on the horse had also killed those two persons. He had seen the incident of murder of Jorawar from a distance of hardly 25-30 paces when he had taken the cover of shrubs along with Ganga Singh. The horses had not come to the spot running but they were moving slowly. The persons who were accompanying the horse riders were moving along with them. At the time of incident Jorawar was driving the bullock-cart and his nephew was sitting in the bullock-cart who after receiving bullet injuries fell down from the bullock-cart. He could not remember the number of gun fires issued by the respondents. He has also stated that he had shown the I.O. the place where he had taken cover.

In his cross-examination this witness has also stated that he knows some of the accused persons, namely, Shyam Lal, Jhinguri and Shyam Pal and also knows their father.

PW-8 Ganga Singh is also an eye witness. He has stated that he was going to Kayamganj along with one Asarey Ram at about 11.30 A.M. When he was in the midway of Dhobiyan Nagla and Chheda Nagla, he saw that from the western side 11 persons riding on the horse were coming towards them along with 8 other persons, who were also walking along with them. He recognised Chhabi Ram, Pothi and Harnam. They were well known to him. All the horse riders were clothed in khaki dress. He also recognised the persons who were on foot. He also recognised the accused persons who were moving on foot along with horse riders. They were armed with rifles and guns. Ram Asarey and he took the cover of shrubs. When they reached near Jorawar, all of them opened fire and Jorawar and his brother Ram Kishore fell down from the bullock-cart after receiving the injuries. One of the bulls was also hit by the bullet and died on the spot. After the assailants left the place, then went near the injured and found that Jorawar was dead and PW-5 Ram Kishore was injured. They found that they were carrying potato on their bullock-cart. He went to the house of Badshah Singh and told the facts to him.

In his cross-examination he has reiterated the facts. He has given the detail of the directions from where the assailants came and has also narrated the distance from where the assailants had fired. He has stated that Jorawar was shot from a distance of 4-5 paces. Jorawar was conducting bullock-cart and his nephew PW-5 was sitting in the bullock-cart. He has also given the detail about the bull, who had received injuries. According to him, in the bullock-cart the bull who was tied towards east direction had died. Bull had received injury in his stomach.

PW-11 Sachchidanand, S.I., is the I.O.. He has deposed that on 15th November, 1980 at about 01.30 P.M. he was present at the police station when the FIR was registered. On the basis of the said FIR, Report No. 16 and Case Crime No. 115 was recorded in the G.D. The chik FIR was prepared by Head Constable Narain Singh. He had recorded the statement of Badshah Singh, PW-3, at the police station itself and after completion of necessary formalities he left the police station for Village Behti, where the incident had taken place. He reached the village in the afternoon at 03.00 P.M. First of all he visited the place where the dead body of Ram Deen was lying in the field of Sri Kishan. He conducted inquest and prepared the inquest report (Exh.Ka-13) of dead body of Ram Deen. Thereafter he proceeded to the next scene of occurrence where dead body of Dhyanpal was lying in his own field. His inquest was also prepared. Next, he went to the place of occurrence where Mathura was murdered. His body was also found in his field. Similarly, dead bodies of Rakshpal, Munshi Singh and Jorawar were also sealed after conducting their inquest. He has stated that the inquest proceedings of all the dead bodies took more than 8 hours and it was completed at about 11.00 to 11.30 P.M. He has further stated that all the seven dead bodies were handed over to Constables Sobaran Singh and Satya Narain to carry them to mortuary at Shahjahanpur. He has stated that he had got tired in completing all the necessary procedural formalities of preparation of inquest reports of the dead bodies, sealing them and obtaining signatures of the witnesses, hence in the night he stayed in village Behti. On the same day i.e. 15th November, 1980 he had sent injured Ram Kishore to PHC, Kalan for medical examination along with Constable Shiraj Ahmad.

On the next date the investigation commenced. He recorded statements of the eye witnesses Hoshiyar Singh (PW-4), Asarey Ram (PW-7), Thaneshwar (PW-6), Ganga Singh (PW-8) and Karu @ Ram Kishore (PW-5). He also stated that injured Ram Kishore had handed over his bloodstained clothes, which he was wearing at the time of the incident, to him. He had prepared site plan on 16th November, 1980 and also collected bloodstained soil and normal soil from all the places of occurrence and separate fards thereof were prepared. He had found a bullock-cart near the body of Jorawar and three bags of potato were found in the said bullock-cart. One more bullock-cart was found near the place of occurrence, where dead body of Munshi Singh was found. On the spot, where Jorawar was killed, he found that dead body of a bull was also lying there. The animal had died due to gunshot injuries. He had tried to get post-mortem of the bull done by a veterinary surgeon but it was not possible. He further stated that he had found 10 cartridges at five places. He made efforts to arrest the accused persons named in the FIR and had arrested two accused persons, namely, Dhanpal and Girand on 14th September, 1980 in village Dhobiyan Nagla. He stated that he had made investigation till 29th November, 1980. Thereafter the investigation was transferred to Abdul Rauf Khan, S.O. It was under his instruction that he had arrested the aforesaid two accused persons. Rest of the accused, namely, Gajju, Shyam Pal, Jhinguri, Sadhu, Vijendra and Lal Bahadur had surrendered in the Court. The charge-sheet was submitted on 25th December, 1980 against the accused persons. He had also deposed that in Katri near river Ganga, he had seen the bushes which are about 70-80 paces away towards south of Mathura's field. He had also stated that similar bushes were also there along the pathway which connected Kayamganj and Behti.

He was subjected to long cross-examination on behalf of all the accused persons. He has denied the suggestion that accused persons were named in the FIR at the instance of the police. He has also stated that on 15th November, 1980 no other cognizable offence was registered at Police Station Kalan. He has denied the suggestion that the FIR was not registered on 15th November, 1980 at 01.30 P.M.. He has also stated that first parcha of this incident is of 15th November, 1980 and it bears the signature of C.O.

PW-10 Sobaran Singh was a Constable and he is a formal witness. He had taken all the seven corpus along with Constable Satya Narain to Shahjahanpur. He has stated that from Village Behti to Police Station Kalan they had carried the dead bodies on a bullock-cart and thereafter from Kalan to Shahjahanpur they carried the bodies on tractor. The post-mortem was conducted on 17th November, 1980 at Shahjahanpur mortuary. He had handed over the dead bodies for post-mortem which were duly sealed. In his deposition he has given description of the places where all the seven dead bodies were found. He stated that in the way from the place of occurrence to Kalan there is one river. In between Shahjahanpur and Kalan there are two rivers and there is no permanent bridge, therefore, they had crossed the rivers on make-shift bridges which were made of boats. They had reached Kalan on 16th November, 1980 at 08.00 A.M. He had denied the suggestion that he did not visit spot on 15th November, 1980 and the bodies were not sealed in their presence.

PW-9 Dr. A.K. Sharma is the Doctor, who had examined the injured Karu @ Ram Kishore on 16th November, 1982 at 03.40 P.M. at PHC, Kalan. He had found one gunshot wound of 2 cm. x 1 cm. x skin deep on the left hand; one skin deep gunshot wound of 2 cm. x 1.5 cm. on the back side of the left hand near wound no. 1. There were several gunshot wounds of different sizes on the back side of the left hand. There were some abrasions also in his chest on the left side. According to his opinion, the injuries were about one day old and simple.

PW-1 Dr. P.S. Varma is Medical Officer, District Hospital, Shahjahanpur. He had conducted post-mortem on the dead body of Munshi Singh on 17th November, 1980 at 05.15 P.M.. He had received three gunshot injuries: on the left side of his face, left hand elbow and left side of chest, his jaws, front bone of the head and parietal were fractured. There were exit wound marks of the bullet. There were two more injuries on his chest and left hand and in both the cases exist marks of bullet were also found. On the dead body of Mathura also, two gunshot injuries were found on his chest. Rakshpal had also received two gunshot injuries, one at his left ear and the other at the right ear. Both the bullets have made exit mark. Ram Deen had also sustained about three gunshot injuries and all the bullets had made exist mark also. Two gunshot injuries were received by Siya Ram on his chest.

PW-2 Dr. Satyapal is the Doctor, who had conducted autopsy on the dead body of Jorawar. He deposed that Jorawar was about 80 years old and the probable time of his death was about two days before. According to his opinion, the cause of death was gunshot injuries and shock. Next post-mortem was conducted on the dead body of Dhyanpal, who was about 22 years old and he had received about six gunshot injuries on his chest and right hand. There was no blackening or tattooing. His cause of death was also gunshot injuries, hemorrhage and shock. In his cross-examination he has mentioned that the death had occurred about two days back.

The defence had produced Brij Pal Singh, DW-1, as a defence witness. He has deposed that Ram Asarey, PW-7, is resident of his village i.e. Vikrampur and his father's name is Dori. Badri is real brother of Dori. Both are sons of Pothi. Roop Ram and Saudan Ram are sons of Badri. They were accused in the murder of two schedule caste persons and two farmers of village Dhobiyan Nagla. In the said murder case, Hoshiyar was accused. The Session Court has found them guilty.

After completion of evidence, statements of all the accused persons-appellants were recorded under Section 313 Cr.P.C. The accused/ appellant- Gajju had denied the charges against him. He had stated that in the murder case of Shyam Singh he had given evidence against Badshah Singh. In that case along with Badshah Singh, Radhey Shyam was also accused. He had further stated that there was a litigation between him and Shivraj Singh, brother of Badshah Singh. He stated that Badshah Singh's father was murdered by his uncle. Accused/appellant- Shyam Pal had denied all the allegations. In his defence, he had stated that his father was accused of the murder of Pothi's father Chiraunji and for the said reason there is a long standing enmity of Pothi with his family. The accused/ appellant- Jhinguri had also denied the allegations and in his defence had stated that he had enmity with Badshah Singh, PW-3. He had stated that two accused in this case, namely, Shyam Pal and Sadhu are his real brothers. He had also stated that he had enmity with Pothi and he was falsely implicated in the case by Badshah Singh. Accused/appellant-Sadhu in his defence had stated that Badshah Singh had falsely implicated him and he had enmity with Pothi.

Accused/appellant- Lal Bahadur in his defence had denied the charges and stated that Hoshiyar Singh, PW-4, and Badshah Singh, PW-3, had falsely implicated him. His nephew (sister's son) Girand had given evidence against Hoshiyar Singh, Roop Ram and Shaudan in a murder case. The other witness Asarey Ram, PW-7, is cousin of Shaudan. He has enmity with one Soran, against whom his nephew has lodged FIR in a case of Marpeet. Accused/appellant- Girand had stated that he had given evidence against Hoshiyar Singh in a murder case and on the basis of his evidence he was convicted. For the said reason, he was nurturing grudges against him and he was falsely implicated. He had stated that he had also given evidence against Roop Ram and Shaudan in a murder case. Accused/appellant- Dhan Pal in his defence had stated that he was falsely implicated as his brother had given evidence against Hoshiyar Singh in a murder case. Hoshiyar Singh was convicted in the said case. Lal Bahadur, one of the appellants, is his maternal uncle, who was a witness in another case against Hoshiyar Singh. Accused/appellant- Vijendra has also denied the allegations. He stated that his brother Girand had given evidence against Hoshiyar Singh in a murder case, hence he had been also implicated in the case.

Sri Mewa Lal Shukla, learned amicus curiae appearing for the appellants in the first criminal appeal, has submitted that the FIR is anti-time and all the appellants have been implicated falsely by the appellants. In support of the said submission he has submitted that the incident has occurred on 15th November, 1980 but all the entries in the police record are of dated 16th November, 1980. Fard was prepared on 16th November, 1980. He has invited our attention to the statement of the I.O. that he remained in the village from 16th to 22nd November and all the entries were made in the village. He submitted that the G.D. was kept blank as no other crime has been reported between the said period. It is submitted that the papers were received in the Magistrate's Court on 18th November. Therefore, there is no explanation for the gap of three days. It is further submitted that the Circle Officer (C.O.) has signed the paper on 25th November, 1980. It shows that the I.O. did not complete the papers with a view to implicate the appellants falsely.

He has further pointed out the delay in sending the bodies for post-mortem. He has taken the Court to the statements of some formal witnesses to buttress his submission. He has also taken the Court to the statements of most of the witnesses to demonstrate that the statements of three eye witnesses are not trustworthy. He has laid much emphasis on the facts that PW-5 Ram Kishore, who was declared hostile, in his statement has stated that he had not seen any person along with horse riders. It is urged that all the appellants were on foot, according to other witnesses. Hence, in view of the statement of injured witness, the false implication of the appellants is proved.

Sri Apul Misra, learned counsel for the appellants in the second criminal appeal, has adopted the submissions of learned amicus curiae. He has also placed the evidence of the eye witnesses to point out contradictions in the statements. He has also submitted that existence of motive for the commission of offence of such magnitude, has not been proved by the prosecution. He has strenuously urged that before filing the FIR several persons including some of the witnesses had assembled at the house of PW-3 Badshah Singh and after consultation the FIR was prepared, implicating the appellants due to enmity.

From the evidence of PW-3, PW-4, PW-5 and PW-6 we find that in Village Behti and in the adjoining area there were deep-rooted animosities amongst various groups of the people and in the last ten years, according to their version, more than a dozen of murders have taken place. In these murders the cross-groups were involved and they were either victims or prosecution witnesses. It is a well-settled law that enmity is a double- edged sword. Due to enmity there can be false implication and it can also be the reason for the murder. All the aforesaid witnesses have given the detailed facts regarding existence of enmity, hence we deem it appropriate to deal with the issue of enmity in a little detail.

Badshah Singh, PW-3, is not only an eye witness of three murders out of seven murders but is the first informant also. In the FIR itself he has mentioned that there was an old enmity between him and Pothi, a notorious dacoit, who was carrying several prizes on his head. In his deposition, he has stated that Shyam Singh was real brother of Pothi and he was murdered about 15-16 years back. PW-3 was one of the accused in the said case. He was convicted by the Session Court but all the accused persons of the said case were acquitted by the High Court. He has further deposed that one of the residents of his village, namely, Shankar was shot about 8-10 years back and in that case Gajju, appellant no. 1, Pothi, Babu and Sonu, brother of Gajju, were accused. They were convicted and sentenced for five years imprisonment. PW-3's real brother Shyam Lal was shot at and injured by Shyam Pal, Gajju, both appellants, Raghubir and Pothi and they were convicted by the Session Court. He further deposed that about three years before a cross-firing had taken place in a neighbouring village Sabishpur, Police Station Jamail, District Budaun. The said village is about one kilometer from Behti. In the said cross-firing in one of the groups there were Pothi, Chhabiram, Shyam Pal and Harnath. Along with PW-3, Munshi Singh, Shyam Pal, Ram Deen, Mathura, Raksh Pal, Siya Ram and Jorawar were members of the other group. Amongst those persons Jorawar, Siya Ram, Ram Deen, Mathura, Raksh Pal, Dhyan Pal and Munshi Singh have been murdered in the present case. He has further deposed that Duryodhan, father of PW-4, was also murdered prior to the present incident.

(Emphasis supplied)

He had further stated that in the murder of Shyam Singh appellant- Gajju was a prosecution witness and he had given evidence against PW-3. PW-3's real brother Shiv Raj had also lodged an FIR against Gajju in respect of an incident, which had taken place about 13-14 years back.

The next witness who has given details about the enmity is Hoshiyar Singh, PW-4. He has stated that Munshi Singh was son of his uncle (Tau) and father of PW-4, namely, Duryodhan was murdered about 5-6 years back. In the said murder case of his father, Puttu, Balkaran, Babu Ram, Ram Chandra, Sukh Lal, Girand (appellant) and Dhan Pal (appellant) were accused. Girand and Dhan Pal were convicted in the said case. He had further stated that Makrand, elder brother of the appellants Girand, Dhan Pal and Vijendra, was murdered about five years back. In that case Munshi Singh, victim in this case, was accused. He was convicted by the Session Court, however, he was enlarged on bail by the High Court. In the cross-examination this witness has stated that after the murder of his father, five persons, namely, Puttu, Babu Ram, Kishan, Makrand Jatav and Sukh Lal Jatav were also murdered. In the said trial PW-4 was an accused and the Session Court had convicted and sentenced him for life term. However, in the criminal appeal he has been granted bail by the High Court. In the said session trial, appellant- Girand was a prosecution witness against PW-4. In another cross-case, he has stated, one of the appellants- Lal Bahadur has given evidence against him. In his cross-examination he had stated that his Dau Banwari and Nawab were murdered much prior to this incident. In the said murder case, DW-1 Thakur Brajpal Singh was the accused, but the accused persons were acquitted.

Thaneshwar, PW-6, who is also an eye witness, has stated about the enmity. It is stated that Radhey Shyam is his real brother. In the murder case of Shyam Singh he was accused. In the said case, the appellant- Gajju had given evidence against Radhey Shyam and on the basis of his evidence Radhey Shyam and other accused were convicted and sentenced.

From the deposition of the aforesaid eye witnesses it is evident that the eye witnesses themselves were involved in some of the murder cases and the appellants have given evidence against them and in some other cases they had given evidence against the appellants. From a careful reading of the statements of the witnesses it is evident that it is not a case of false implication but the personal animosity was one of the motives for murder of seven persons. As is evident from the evidence of PW-3, when the cross-firing between two groups took place in Sabishpur, Police Station Jamail, from the group, in which PW-3 was present, the other persons, who were present along with him, were murdered in the present incident which includes his uncle Mathura Singh and two of his sons Rakshpal and Dhyanpal and other persons who were killed on the same day by Pothi and his group were Munshi, Jorawar, Siya Ram and Ram Deen. This fact clearly establishes that it is not a case of false implication but the previous enmity is one of the reasons behind the murders.

It is worth emphasizing that the first incident had taken place at 11.30 A.M. on 15th November, 1980. PW-3, the first informant, was eye witness of the said incident. When the appellants and the horse riders had come from the side of river Ganga, PW-3 had seen the appellants from a distance of 150 paces and he immediately took shelter in the field of sugarcane. From his statement, which is corroborated by the evidence of ocular evidence and site plan, it is proved that he had seen the appellants and the persons riding on horse from a close distance. When Pothi's group had shot his uncle Mathura and his two sons, the informant, PW-3, was hardly at a distance of 150 paces. He has given a graphic detail of the group when they were approaching towards his field and the murder of Mathura Singh and his sons took place in his presence. All the members of the group were armed with SLR, rifles, guns and other weapons including carbine. After the murder of Mathura Singh and his two sons, the group moved eastward where a road was connecting to Chhidkuri to river Ganga Ghat Singanpur. On the said road they shot Munshi Singh, who was going towards Ganga on his bullock-cart. This place is only 4-6 paces from the field of PW-3, which was uncultivated. Hence, he could see the assailants very clearly from the sugarcane field of Ram Sahai, where PW-3 was hiding. The place of murder of Munshi Singh was hardly 100-125 paces. Thus, PW-3 is the eye witness of four murders, his uncle Mathura, his two sons Rakshpal and Dhyanpal, who were working in the field with Mathura, and Munshi Singh. All the four murders took place within a distance of 100-150 paces from the field of Ram Sahai. In the long cross-examination his statement remained unshaken. The prosecution has miserably failed to elicit any fact from his cross-examination, which can raise doubt regarding the trustworthiness of this witness. His entire statement is very natural and static conclusion. He has clearly stated that at his house several persons had assembled after the murder of all the seven persons and he has mentioned the fact in the FIR, but he has seen and on the basis of the information furnished by some of the eye witnesses of other murders.

From the evidence noticed above it is manifest that PW-3 and Pothi's group have sheer enmity for the detailed reasons mentioned above. PW-3 apprehended that Pothi's group will attack his house, therefore, in the said fear he hurriedly got the written report prepared at his chaupal where large number of peoples had assembled and he rushed to the police station alone on his horse. One of the reasons for rushing to the police station taking risk of his life was to save his family members from the possible attack of Pothi's group, who was present in the village. The contents of the FIR has corroborated the ocular evidence of the eye witnesses. Learned amicus curiae appearing for the appellants could not point out any inconsistency in the FIR and the version given by the eye witnesses.

Hoshiyar Singh, PW-4, is another eye witness, who had witnessed the murder of four persons. Murder of Munshi singh was also seen by Hoshiyar Singh, PW-4. He was present near the spot while he was grazing his cattle. He also saw the group of Pothi which was approaching towards them. This witness has also deposed that 8 persons, who were on their foot, were marching along with horse riders. He had identified some of the appellants, who were from the same and adjoining villages. He had also seen PW-3 Badshah Singh, who after seeing the group had taken shelter in the sugarcane. PW-4 was at the distance of hardly 50 paces when Munshi Singh was murdered, who was going from Chhidpuri to Kayamganj.

From the evidence of PW-3 and PW-4 it is clearly established that the appellants were members of Pothi's group, who had shot Mathura, Rakshpal, Dhyanpal and Munshi Singh and when the group of 20 persons moved fully armed with weapons and the members of the group were firing indiscriminately. It was not possible for the witness to assign specific role to each member of the group, which was consisting of about 20 persons. The police had recovered the spent cartridges on the spot of the murder of Mathura and Mushi Singh. Near the spot of Munshi Singh's murder the police has also recovered some cartridges of the bullet. PW-4 was also cross-examined at length. His statement is also unshaken. Learned amicus curiae has failed to point out any discrepancy in their statement which can go on to show that their presence at the time of the incident was doubtful. Accordingly, we find that the findings recorded by the trial Court in respect of murder of Mathura, his two sons and Munshi Singh are established by two witnesses PW-3 and PW-4 and we also find that the findings regarding conviction and sentence of the appellants for the murder of these four persons do not suffer from any perversity and their statements alone are sufficient to hold them guilty under Section 302 IPC read with Section 148 IPC.

Coming to the murder of Jorawar, we find that regarding this incident PW-5 Ram Kishore @ Karu is an injured witness. He was on bullock-cart along with the victim Jorawar. After causing death of four persons the gang led by Pothi and Chhabiram moved towards the road which connects Kayamganj to village Behti. This road goes north-south. After moving about 600 paces they came to a place near this road and killed Jorawar, who was coming from Kasganj to his village Behti on his bullock-cart. Karu @ Ram Kishore, PW-5, is the nephew of deceased Jorawar. He has stated that when they reached near Dhobiyan Nagla and Chheda Nagla, the assailants came from the western side near the bullock-cart and they were riding on horse. This witness recognised Pothi, Chhabiram, Harnam. When they reached near their bullock-cart, they opened fire upon them. Jorawar was grievously hurt by the firearm injury and succumbed to the injuries on the spot. One of his bulls of the bullock-cart also died due to gunshot injuries. This witness was declared hostile when he stated that he had seen only 11 persons who were riding on the horse and he did not seen the appellants, who were on foot. However, in his statement recorded under Section 161 CrPC he had stated that 8 persons were accompanying on horse riders on their foot. He had denied the suggestion that under Section 161 CrPC he had given any such statement. The I.O. in his cross-examination has stated that in his statement under Section 161 Cr.P.C. PW-5 has clearly stated that along with the horse riders there were other persons who were moving on foot and he had also mentioned their name as Gajju, Shyam Pal, Jhinguri, Sadhu, Lal Bahadur, Dhan Pal, Vijendra and Girand. He had further stated that PW-5 has mentioned the name of three horse riders. He has proved the statement of PW-5 which was recorded by him and has produced the original (Exh.Ka-33). The statement of PW-5 that he had not seen the persons who were accompanying the horse riders fails to inspire confidence. As all other witnesses PW-3, PW-4 and the witnesses of the other incident, namely, PW-6 Thaneshwar, PW-7 Asarey Ram and PW-8 Ganga Singh have stated that these 11 horse riders were accompanied by 8 persons who were on foot. Thus, having regard to the statement of other eye witesses, who have consistently categorically mentioned that there were 8 persons moving on foot, the statement of PW-5 to the extent that there were only 11 horse riders is not trustworthy. Moreover, PW-5 has been declared hostile. It is a trite law that a witness, who turns hostile, the Court can rely on his statement insofar as it supports the prosecution case. PW-5 is an injured witness. From the statement made by him he has supported the prosecution case to establish the fact that Pothi's gang had shot them with the result PW-5 was seriously injured and his uncle Jorawar died on the spot. The time of the incident and the place of the murder is established from the first incident wherein Mathura, Rakshpal, Dhyanpal and Munshi Singh had died.

After killing Jorawar, the gang moves eastward where they killed Ram Deen and Siya Ram. PW-6, an eye witness, at the time of incident was ploughing his field and the deceased Siya Ram was working in nearby field. He had clearly seen that from the direction of south, 11 horse riders and 8 persons on foot approached near Siya Ram and the witness immediately hid himself behind the banana plants from where the field of Siya Ram was clearly visible. This witness has reocgnised all the persons who were on foot and three persons who were on the back of horse, namely, Pothi, Chhabiram and Harnam. He is an eye witness of the murder of Siya Ram and Ram Deen. Ram Deen was shot near the field of Kishan. He has stated that fire was opened by all of them. Along with another person Diptee had also seen the incident but he was not produced as witness. This witness had seen the assailants from a very close distance of 15-16 paces. When he had seen the gang from a very close quarter of 15-16 paces, he did not run away because he was under the impression that they are police force as they were dressed in the police uniform. They had shot Siya Ram, then he fled away and went into hiding behind banana plants, from where he had seen the murder of Siya Ram and thereafter Ram Deen, who was murdered about 10-12 places from Siya Ram, in the field of Sri Kishan. We have perused the statement of this witness and found that his statement regarding the incident is natural and truthful.

For all the reasons mentioned above, we find that the evidences of eye witnesses inspire confidence and are worthy of credence. We have not found any discrepancy in their evidences. We have carefully examined their depositions. Their presence at the spot cannot be doubted. Their long cross-examination failed to elicit any fact to cast a shadow of doubt on their credibility.

The learned Amicus Curiae has laid much emphasis on the statement of hostile witness, PW-5, who was also injured in the incident. In his statement he has in so many words given the detail of the incident. He had recognised the accused persons, namely, Pothi, Chhaviram and Harnam. It was stated that there were eleven persons on horses and all of them were armed with rifles and guns, they encircled the bullock-cart of Jorawar, his uncle, and opened fire, killing his uncle Jorawar on the spot and the witness also received gun injury and fell down from the bullock-cart. One of the oxen was also hit by the gun fire and died on the spot. This witness was declared hostile when he stated that he had not seen any person on foot, who accompanied the horse riders. He was confronted with his statement under Section 161 Cr.P.C., wherein he had mentioned that along with horse-riders there were eight persons on their foot who were moving with horse riders, he denied the said statement. The PW-11, the I.O., in his cross-examination affirmed that PW-5 in his statement under Section 161 Cr.P.C. had mentioned the name of the appellants who were moving along with horse riders.

In the present case, the statement made by Karu (PW-5) is in some contrast with the statement made by him before the police. It is only in respect of eight persons, who were part of the gang.

For considering evidence of a hostile witness, it is trite that it is admissible to use the examination-in-chief and cross-examination also of a hostile witness insofar as it supports the case of prosecution.

In Lahu Kamlakar Patil and another v. State of Maharashtra4 the Supreme Court has considered a large number of its earlier judgements. It is apt to reproduce relevant part of the judgment:

"15. It is settled in law that the evidence of a hostile witness is not to be rejected in toto. In Rameshbhai Mohanbhai Koli v. State of Gujarat5, reiterating the principle, this Court has stated thus: (SCC p. 117, paras 16-17)

"16. It is settled legal proposition that the 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 but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of Haryana6, Rabindra Kumar Dey v. State of Orissa7, Syad Akbar v. State of Karnataka8, and Khujji v. State of M.P.9)

17. In State of U.P. v. Ramesh Prasad Misra10 this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra11, Gagan Kanojia v. State of Punjab12, Radha Mohan Singh v. State of U.P.13, Sarvesh Narain Shukla v. Daroga Singh14 and Subbu Singh v. State15."

16. Recently, in Bhajju v. State of M.P.16, a two-Judge Bench, in the context of consideration of the version of a hostile witness, has expressed thus: (SCC p. 341, para 35)

"35. ...Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross- examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination- in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution."

(emphasis added)"

We have to bear the aforesaid principle in the mind while adverting to rival submissions regarding the evidence of PW-5, who is injured as well as hostile witness.

A close look into the evidence of the PW-5 reveals that he was present on the spot at the time of the incident. His statement regarding assailants, who were on horse, stands corroborated by the other eye witnesses (PW-3, PW-4 and PW-6) in respect of the place, time and manner of assault by the horse riding assailants. This part of the evidence is consistent, reliable and cogent. As regards the role of the appellants, who were on foot, we find that in view of consistent, natural and unimpeachable statements of the eye witnesses, which inspire the confidence, it can safely be recorded that the statement insofar as it relates to appellants, can be discarded. Accordingly, we find that the findings recorded by the trial Court are based on proper appreciation of the evidence on record.

In view of the foregoing discussions, we are of the opinion that all the eye witnesses withstood their testimony from the beginning till the end and their testimony was found reliable by the trial Court. We do not find any ground to interfere in the judgment and order of the trial Court. It was right in convicting the appellants in the facts and circumstances of the case.

Accordingly, the appeal is liable to be dismissed and is hereby dismissed.

Shyam Lal, the surviving appellant no. 2 in Criminal Appeal No. 1310 of 1982, and all the four appellants in Criminal Appeal No. 1189 of 1982, who are on bail, shall be taken into custody forthwith and be sent to jail for serving out remaining part of sentence. Their bail bonds stand cancelled and sureties are discharged.

Let a copy of this order be sent to the trial Court concerned for intimation and necessary follow up action.

Order Date :- 07.12.2018

SKT/-