Ram Prakash & Others vs State Of U.P.
2018 Latest Caselaw 3043 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 5
 

 
1. Case :- CRIMINAL APPEAL No. - 1636 of 1995
 
Appellant :- Ram Prakash & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- P.V. Singh, J.H. Khan,W.H. Khan, Zamal Ali
 
Counsel for Respondent :- A.G.A.
 
AND
 
2. Case :- CRIMINAL APPEAL No. - 1618 of 1995
 
Appellant :- Prakash Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- P.V. Singh, Rajiv Lochan Shukla
 
Counsel for Respondent :- Govt. Advocate
 
AND
 
3. Case :- CRIMINAL APPEAL No. - 1543 of 1995
 
Appellant :- Ram Swarup & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- J.S. Sengar, Vikash Srivastava
 
Counsel for Respondent :- G.A.
 
_____
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Rajiv Gupta,J.

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

These appeals arise out of an incident which is alleged to have taken place in Village Lama, Police Station Kotwali Dehat, Banda on 18/19 April, 1993 wherein one Ram Kishore, the brother of the first informant Jugal Kishore, was murdered.

The appellants Ram Prakash, Gappa alias Devraj, Chunubad Singh and Prakash Singh stood charged under Section 302/34. Two of the accused, namely, Ram Swaroop and Rajendra have also been found guilty for the offence punishable under Section 120-B I.P.C. All the accused persons have been sentenced to undergo imprisonment for life by the Ist Additional Sessions Judge, Banda in Sessions Trial No. 24 of 1994.

The prosecution case is that the first informant--Jugal Kishore and his brother Ram Kishore are the residents of Village Lama. They are marginal farmers. In the night of 18/19th April, 1993 his brother went to his Khalihan where thrashing of the crop was going on. While Rameshwar was taking rest on the cot and Raj Bahadur his brother-in-law was sleeping in bullock cart, suddenly, four persons emerged from darkness. Two of them were armed with gun and two were armed with barchhi and lathi. They came near Raj Bahadur and asked him about Raj Kishore. Thereafter they went near the cot and hit him with a lathi. Thereafter they took him at the tubewell which was adjacent to the place of incident and after assaulting him by lathi one of the assailants fired at him from a close range causing grievous injuries. Ram Kishore succumbed to his injuries at the spot. His brother Jugal Kishore was at his home at the time of incident. He reached at 12.45 A.M. (in night) and after staying at spot he proceeded to Police Station Kotwali Dehat, which is at the distance of 5 km.. He reached the police station at 2.00 a.m. in the night and a chick F.I.R. was prepared and it was registered on 19.4.1993 in the same night.

The investigation was entrusted to P.W.-8 Ghanshyam Sachan, S.H.O. who reached the village and conducted the inquest report in the morning at 6.00 a.m. He recorded the statement of labourers who were present there and inspected the place of occurrence and prepared the site-plan with the help of the persons who were present at the time of occurrence. He has also recorded the statements of Raj Bahadur Singh, Chukku, the first informant Jugal Kishore and witnesses of the inquest report.

The witness of the inquest report had opined that the cause of death is firearm and lathi. The five witnesses of inquest signed the inquest report (Ext. Ka-13). The I.O. has also prepared fard of bloodstained and plain earth and some other articles including the clothes which the deceased was wearing. The body was sent for postmortem. The P.W.-6 Dr. M.L. Anandani conducted the autopsy on the next day i.e. on 19.4.1993. The clothes which the deceased was wearing along with the bloodstained earth were sent for forensic laboratory at Agra.

On the basis of the statements recorded by the I.O. the accused were arrested and their statements were also recorded. On completion of the investigation he submitted a chargesheet on 22.6.1993. All the appellants were charged under Section 302 read with Section 34 and 120-B of I.P.C.

The learned Additional Chief Judicial Magistrate, Banda committed the case to the District and Sessions Judge, where the charges were framed against the persons.

The prosecution examined three eye-witnesses P.W.-1 Chunubad, P.W.-2 Jugal Kishor, P.W.-3 Sant Ram and P.W.-4 Ghanshyam, who had overheard when conspiracy was being hatched by same accused person, P.W.-5 Raj Bahadur Singh, who is the brother-in-law of the deceased and an eye witness, P.W.-6 Dr. M.L. Anandani conducted the autopsy, P.W.-7 Ram Autar Singh was constable at Kotwali. He had prepared the chick F.I.R., P.W.-8 is the I.O. and was S.H.O. at Kotwali Dehat, Banda. The P.W. -9 Ram Babu was a constable posted at Kotwali Dehat on the date of incident and he had carried the deceased's body for postmortem.

After their evidence the accused were examined under Section 313 Cr.P.C. and their statements were recorded on 6.9.1995.

The P.W.-1 Chunubad was declared hostile. In his statement he has deposed that he was present on the scene and he was helping in thrashing the crop along with Ram Kishor, Raj Bahadur and Rameshwar. The deceased came on the spot at about 8-9 p.m. and at the time of incident about 12 in the midnight four persons armed with gun and lathi whom he could not recognize came on the spot and threatened them and they went straight to the place where Ram Kishore was sleeping and one of the accused assaulted him by lathi. The deceased Ram Kishore resisted and he tried to catch hold of one of the accused then other accused persons shot him dead, who was declared hostile. In the cross examination when he was confronted with the statement recorded under Section 161, he denied any statement given to the I.O.. He could not recognize any of the accused. The P.W.-2 Jugal Kishore is the real brother the deceased. They live separately and at the time of incident he was at his home. He was informed about the said incident by P.W.-5 Raj Bahadur Singh (brother-in-law of the deceased).

The P.W.-5 had told him that four persons came from Pachnehi. Two of them were armed with a gun. One person was carrying lathi and one person was having Barchhi. They have murdered Ram Kishor. After informing him, Raj Bahadur left for Pachnehi to inform Ramphal.

Learned counsel for the appellant submits that the conduct of Raj Bahadur Singh-P.W.-5 was quite unnatural. He was real brother-in-law of the deceased and after informing the incident to the brother of the deceased he immediately left the place for Pachnehi where his another brother-in-law (sarha bhai) was living. He further pointed out that P.W.-5 did not mention the name of the accused to P.W.-2, the first informant. For the said reason in the first information no accused is named. Sri Shukla further submitted that in his statement the P.W.-5 has categorically stated that he recognized all the accused who were armed with gun and lathi although they were resident of another village i.e. Pachnehi.

In his statement he has stated that the motive for the murder of his brother was that one of his brother Brij Kishore alias Chunku had illicit relationship with a girl of Ram Swaroop alias Mantri's family. Due to the said reason Ram Swaroop had compelled his brother Brij Kishore to leave the village and he went to Surat and thereafter he started living with his in-laws in Manjhauli, Madhya Pradesh. It was mentioned that in absence of his brother Brij Kishor, Ram Swaroop and his family tried to grab his agricultural land but the deceased Ram Kishore resisted their move hence they could not take possession of agricultural land of Brij Kishor. It was also mentioned that about three years before the incident an attempt was made on the life of Ram Kishore by one Dhundha, Chandra Prakash (brother of appellant Gappoo), Ram Prakash (appellant no.1) in the said incident they had fired 3-4 shots on him but he escaped unhurt. He deposed that no first information report was lodged in respect of the said incident by Ram Kishor.

In his cross examination he admitted that till the postmortem was done, names of the accused persons were not known. He has also admitted that when Brij Kishore returned to the village the accused persons did not harass him and they did not interfere him also in his farming. He has also stated that Ram Vishal, whose daughter had illicit relationship with Brij Kishor, did not make any complaint against him nor reported the matter to the Village Panchayat. Ram Vishal died about 3-4 year before the incident and his daughter has also been married long before. He has stated that Prahlad who is Pradhan of the village. The P.W.-3 Sant Ram is the brother-in-law of Ram Manohar, collateral of Prahlad.

We shall deal with the submission of learned counsel for the appellant regarding conspiracy. The trial court has found the testimony of P.W.-3 and P.W.-4 trustworthy and on the basis of the deposition the appellants have been found guilty under Section 120-B and Section 302 IPC.

The P.W.-3 Sant Ram is the witness who overheard the conspiracy between the accused persons. He has stated that about 3-4 days ahead of the murder of deceased Ram Kishor, while he was going to his field at about 2.00 p.m. in the noon he saw that accused/ appellant Rajendra, Gappa and Chunubad came in the cattle shade of Ram Swaroop. Ghanshyam - P.W.-4 was also with him. Both the witnesses were standing there and they overheard that Gappa asked Ram Swaroop that he needs money for the bail of his brother and he demanded Rs. 10,000/- from Ram Swaroop, who told him that if he eliminate Ram Kishore he shall pay the requisite money. Gappa and Chunubad both the accused persons agreed to his proposal to murder Ram Kishor. He deposed that Ram Swaroop offered Rs. 5,000/- and he said that rest of money shall be paid after the murder. Gappa had received the amount from Ram Swaroop and both of them left the place. P.W.-3 stated that he did not mention this fact, which he overheard, to anyone and after three days of the incident he informed the said fact to the deceased Ram Kishor, unfortunately he was murdered after 4-5 days.

In his cross examination he has stated that Prahlad who is Pradhan of the village was convicted in murder of Laxmi who had contested the election of Pradhan against him.

In subsequent election one Dharm Singh had contested the election against Prahlad Singh. In the said election one of the accused Ram Swaroop was supporter of Dharm Singh. He has admitted that his father has given evidence in favour of Prahlad Singh in his civil suit. In his cross examination he has further stated that he overheard the conversation between the accused persons while he was going to his Khalihan but he failed to mention the direction of his Khalihan. His statement under Section 161 Cr.P.C. was recorded about 26-27 days after the incident but he did not mention this fact to the I.O. in his statement under Section 161. He has further deposed that he overheard the conversation at the door of Ram Swaroop, the accused. He has stated that there are three rooms, the accused persons were sitting in the second room and they had heard their conversation at the door of the first door. He has further stated that he had not shown the place to the I.O. from where he heard the conspiracy. Nor he has shown the place where the accused had made the conspiracy. When he went to his Khalihan after hearing the said conversation of the accused persons about 4-6 persons were present in the Khalihan but he did not disclose this conspiracy to them. He also did not disclose this fact to his parents or any other family members. He could not explain the reason why he did not disclose conspiracy to anyone. He has further stated that the next day when he was going to defecate in the morning at about 7.00 a.m., he told this fact to Ram Kishor. He has also stated that he had informed the I.O. about the said conspiracy but the I.O. did not mention this fact in his statement under Section 161 for the reasons best known to him.

In cross examination he had explained that the distance between first room and the second room was about 7-8 feet and he had seen Ram Swaroop counting the currency. He had further stated that the day he informed Ram Kishore about conspiracy, on the same day he was murdered in the night. He had clarified that he had seen the counting of the currency from the space in the closed door. He has stated that the I.O. has recorded his statement after 26-27 days. In his statement he did not mention the fact that while he along with Ghanshyam was going to khalihan they heard conversation between the accused in the house of Ram Swaroop. He has further stated that when Ram Swaroop was closing his door at that time he and Ghanshyam P.W.-4 both were at the door of their houses. After Ram Swaroop closed the door from inside they went at the door of Ram Swaroop and heard the conversation mentioned above. He has denied this statement under Section 161 wherein it was recorded that Gappa-appellant no. 2 had told Ram Swaroop that he needs money to meet the expenses for the bail of Chandrabhan Singh. He has stated that I.O. has wrongly recorded the said fact. He has also stated that the aforesaid appellants were talking to each other in a hushed voice in the next room.

P.W.-4 - Ghanshyam is a witness who has heard the conversation with the appellants where the appellants Rajendra, Chunubad and Gappa were making conspiracy in the house of Ram Swaroop. He has stated that adjacent to the house of Ram Swaroop (appellant no. 1 in Criminal Appeal 1543 of 1995), he heard the conversation of the appellant Gappa, Rajendra and Chunubad near the Naad, a permanent structure to feed the cattle.

He deposed that Chunubad and Gappa both agreed for the murder of the deceased and Ram Swaroop paid them Rs. 5,000/- and after taking money they left the place. He has stated the fact to the I.O. who had taken his statement under Section 161 after one month of the incident. Father of this witness Prahlad is the Pradhan of the village. He has stated that I.O. Ghanshyam Sachan used to visit his father previously also.

Prior to the said incident one of the appellants Ram Swaroop had lodged first information report under Section 307 I.P.C. against this witness and Ram Narain. According to him the facts mentioned in the first information report were cooked up as there was no firing in the incident. He has also stated that some litigation between his father and Ram Swaroop under Section 145 Cr.P.C. was initiated. He has also stated that apart from the criminal cases, civil case is also pending between them.

The P.W.-5 Raj Bahadur Singh is the brother-in-law of the deceased. His sister was married to him, he was living with the deceased family for the last 13-14 years. He has deposed that in the night at about 12-12.30 he was sleeping in the bullock cart on the spot where the thrashing of the crop was in progress. The accused persons had awaken and asked about Ram Swaroop, he tried to mislead them but they went near his cot. They awoke Ram Kishore and took him to the tube well and he was made to stand near the wall. Thereafter, the accused Prakash assaulted him by a lathi, when Ram Swaroop tried to resist, at that point Ram Prakash shot him from a close range. Causing grievous injuries he succumbed to his injuries on the spot. After killing him the accused person fled from the spot. This witness has clearly stated that he had recognized all the accused persons who was armed with lathi and gun. In his cross examination he has stated that he was sleeping towards north of the hut. It is significant to mention that the main entrance of thatched hut is towards south and the entrance of pakka room at the tube-well is towards north. In his statement he has stated that he was sleeping towards north of the thatched hut. In the site plan, Ext. Ka-14 is bullock cart where he was sleeping, has been shown towards the east of hut.

After the incident he went to the house of the deceased's brother Ram Swaroop who was living separately and informed him regarding the incident. Ironically, he did not disclose the name of the accused person to him and immediately he left for Village Pachnehi where one of his brothers-in-law (Sahru Bhai) was living. It is stated by him that the accused person tied his hands by a cloth and then went near the cot where the deceased was sleeping.

A careful examination of these two witnesses clearly indicates that their presence where the conspiracy was alleged to be hatched does not inspire confidence. One of the witnesses P.W.-4 said that he was sitting at the Naad when he heard the conspiracy.

The P.W.-3 says that the three accused Gappa, Chunubad and Ram Swaroop were sitting in the second room and he heard their conversation from outside of the door. From his statement it is clear that they were not sitting in the next room to another room. One of the witnesses P.W.-3 says that they were talking loudly but P.W.-3 says that they were talking in hushed voice. Their statement has been recorded under Section 161 after a considerable long time. The statement of the P.W.-3 was recorded according to him after 26-27 days by the I.O. and he first time told the said fact to the I.O.

The P.W.-3 in his statement under Section 161 which was recorded after 26-27 days did not mention the fact that he heard conspiracy of the accused while he was going to his Khalihan. He had also not shown the I.O. the place from where he had heard the conspiracy. In his statement there is omission of the fact regarding the place from where he had heard conspiracy. In his cross examination when he has been confronted with the said fact he had stated that he told this fact to the I.O. but it was not recorded by him for unknown reason.

In his cross examination the I.O. has stated that he has not prepared the site plan where the conspiracy was made. He could not offer any explanation that why he had not prepared the site plan. He has also deposed that he did not take Sant Ram and Ghanshyam to the place where the accused met and hatched the conspiracy.

It has also been stated by him that he did not mention the source of information regarding the conspiracy in the G.D.. He has denied the statement of Ghanshyam the witness P.W.-4 that while he was on his way to Khalihan he has heard the conspiracy. He has also denied the statement of Ghanshyam P.W.-4 that conspiracy was hatched in a room and he has further denied the statement of P.W.-4 that he had seen the accused persons while they were sitting together and were making conspiracy. The P.W.-8 also denied the statement of Santram P.W.-3 regarding the conspiracy and his statement that he had seen the accused persons sitting together and they were making the conspiracy. 

The P.W.-8 further deposed that the P.W.-3 did not tell him the date of conspiracy. The I.O. has also denied the statement of Raj Bahadur Singh P.W.-5 regarding the description of one of the weapon Barchhi. He has also denied that the P.W.-5 had told him about direction in which accused Ram Prakash had fired.

It is also pertinent to mention that Ghanshyam P.W.-4 is the son of Pradhan Prahlad Singh. There were admittedly several criminal and civil cases pending between some of the accused and Prahlad Singh. Prahlad Singh was convicted in murder of Laxmi Pandit who had contested the election against him and one of the accused Ram Swaroop against whom the charge under Section 120-B were framed who had supported his opponent.

From the close analysis of the statements of P.W. 3 and P.W.-4 and the I.O. P.W.-8 who had contradicted the statement of P.W.-3 and P.W.-4, we find that the statement of hatching conspiracy against the three accused persons, namely, Ram Swaroop, Gappa and Chunubad lacks credence.

P.W.-2 in his statement has admitted that till the postmortem was conducted, names of the accused persons were not known. With regard to the evidence regarding the motive of murder that one of the brothers of the deceased had illicit relationship with daughter of Ram Vishal, we find that the said incident had taken place about 7 years back to the present occurrence. The girl has been married and her father has also died thus the said fact cannot be a ground for the murder of the deceased.

P.W.-5 in his statement has stated that Ram Vishal who was father of the girl had never threatened nor he reported the matter to the Panchayat. He has also denied the fact that they had tried to grab the land of Raj Kishore. In his statement the I.O. P.W.-8 has stated that he had recorded the statement of Ghanshyam Singh, P.W.-4 and Sant Ram-P.W.-3 on 18.5.1993. The incident took place on 19.4.1993.

It is a well settled law that to establish the theory of conspiracy the prosecution is to prove that the accused persons had agreed to do or cause to do an illegal act by illegal means. It has to be further established that all the accused persons had intention and they agreed to commit the crime. It is true that it is difficult to adduce a direct evidence of the same and the prosecution can rely on evidence and acts of various parties to infer that they were done in reference to their common intention or the prosecution may lead the evidence upon substantial evidence.

The Supreme Court in the case of State (Government of NCT of Delhi) v. Nitin Gunwant Shah, (2016) 1 SCC 472 has held that the meeting of minds is essential, mere knowledge or discussion would not be sufficient. The Court has held as under:

"17. The prosecution relies upon the existence of criminal conspiracy, which resulted into the death of Lalit Suneja. This Court has time and again laid down the ingredients to be made out by the prosecution to prove criminal conspiracy. It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that meeting of mind is essential; mere knowledge or discussion would not be sufficient. Yet, the prosecution has failed to prove the evidence which establishes any prior meeting of minds of the accused. The prosecution merely proved that all the accused were present in Delhi on the date of occurrence, and that the alleged motor-bike and the car used in incident belonged to respondent No.2, Om Prakash Srivastava alias Babloo. The High Court rightly dismissed this argument, as the involvement of the said vehicles in commission of the crime was never proved. Neither any prior meeting of minds of the accused proved, nor was any action, individually or in concert, proved against any of the accused. Needless to say that the entire foundation of the prosecution story was never established."

Recently the Supreme Court in the case of State through Central Bureau of Investigation v. Dr. Anup Kumar Srivastava, (2017) 15 SCC 560 has quoted with approval its earlier judgment in CBI v. K. Narayana Rao, (2012) 9 SCC 512. In the case of K. Narayan Rao (supra) the Court has held under:

"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence."

For the reasons mentioned above, we find that evidence of P.W.-3 and P.W.-4 fail to inspire confidence. Finding of the trial court regarding the criminal conspiracy is totally perverse. The trial court has not considered the statement of P.W.-8 and the material contradiction in their statements under Section 161 and the evidence tendered in the court. As mentioned above, their statements under Section 161 were recorded about a month after the incident. No site plan was prepared by the I.O. about the place where conspiracy was hatched.

It is a trite law that if there is material contradiction between the statement recorded under Section 161 and the evidence tendered in the court no reliance can be placed on such statements. The Supreme Court in the case of Tehsildar Singh and Ors. v. The State of Uttar Pradesh, AIR 1959 SC 1012 has clarified the distinction between omission and contradiction. The said judgment has been consistently followed.

In the case of State of H.P. v. Lekhraj and another, (2000) 1 SCC 247 has held that if there are two inconsistent version of occurrence, then the statement has to be considered carefully.

In the case of Kehar Singh and others v. State (Delhi Administration), (1988) 3 SCC 609 the Supreme Court has held that if the discrepancy between the first version and the evidence in the court were material, it was safer to err in acquitting than convicting the accused.

The trial court has not considered these material inconsistencies and the evidence of P.W.-3, P.W.-4 which has been constructed by the I.O. coupled with the fact that the animosity between the parties Prahlad Singh Pradhan with the accused persons and the two witnesses Ghanshyam Singh who is the son of Prahlad Singh and Sant Ram who is the brother-in-law of Prahlad Singh has not been considered in proper perspective.

The trial court has grievously erred in relying their statement for recording the finding that a conspiracy was made at the home of one of the appellants Ram Swaroop.

The trial court has also not considered the statements recorded under Section 313 Cr.P.C. the accused person had clearly stated that due to animosity with Prahlad Singh who was the Pradhan, they have been implicated falsely. From the evidence discussed above and the fact that the son of Prahlad Singh and his relatives are prosecution witnesses, we are of the view that the findings recorded by the trial court on the basis of conspiracy theory is unsustainable.

Now coming to the version of eye-witnesses of the incident when the deceased was shot dead, there are two eye-witnesses, P.W.-1 Chunubad who turned hostile and P.W.-5 Raj Bahadur Singh, real brother-in-law of the deceased. He claims that he is living in deceased's village land for last 13-14 years but his name is not recorded in voter list of the area or in ration card of his brother-in-law. His village is about 30 miles from lane. In his deposition he has stated that after the murder of deceased Ram Kishore he came to village and informed the P.W.-2 Jugal Kishore about the incident but did not disclose name of any assailant. P.W.-3 Jugal Kishore in his statement has stated that P.W.-5 had only told him that four persons from Village Pachnehi has murdered Ram Kishore. P.W.-5 after furnishing said information to P.W.-2 immediately left for village Pachnehi. In our view behaviour of P.W.-5 is abnormal and aberrant. He did not meet his real sister to inform the tragedy and console her. Indisputably, the deceased and his brother P.W.-3 were living separately for last 15-20 years. Deceased was living alone with his wife. If the statement of P.W.-5 is accepted as correct that he has been living with deceased for last 13-14 years it was his duty to first inform the police about the incident which had occurred in his presence and console his sister who badly needed his support and company being real brother. But contrary to normal human behaviour he immediately left for village Pachnehi to inform a distant relative about the incident. There is no material on the record to show the purpose of informing Ram Pal, his distant relative, leaving most important task to inform the police regarding the incident.

It is true that human behaviour differs for person to person, they react differently under similar situation. It all depends upon the overall personality of the person. Some are stunned and shocked, some tend to run away from scene, some start wailing and shouting. There cannot be uniformity in human behaviour. But at the same time, it has also to be borne in mind that if the conduct of witness is abnormal and unnatural, the evidence of said witness cannot be relied upon.

In addition to above, from the statement of P.W.-5 it is clear that the accused persons took Ram Swaroop from the cot where he was sleeping, to tube well. There was sufficient light of bulb and they shot him dead in the light of bulb, whereas the P.W.-1 has stated that they shot him on the cot itself where he was sleeping. The evidence of the P.W.-5 that the accused persons have taken deceased to the tubewell where there was sufficient light does not inspire confidence.

In the light of above discussion made, we find that statement of P.W.-5 Raj Bahadur Singh is not beyond suspicion. Insofar as submission of learned A.G.A. the name of the assailants was not mentioned in the F.I.R. for the reason that they are hardened criminal, fails to impress us. The P.W.-1 Chunubad, who is eye-witness has stated in his examination-in-chief that he could not recognize any assailant, he was declared hostile. The fact that P.W.-5 also did not mention the name of accused person while informing the incident to P.W.-2 Jugal Kishore. Pertinently, P.W.-2 in his cross-examination has stated as under:

"pquwokn xokg ds ?kVuk LFky ls pys vkus ds ckn rgjhjh jiV eSaus fy[kh Fkh A iksLV ekVZe lk<+s 4 cts ds vklikl gqvk A ;g ckr lgh gS fd iksLV ekVZe gksus rd eqfYteku dk uke ugha ekywe Fkk"

In view of the aforesaid discussion we find force in the submissions of Sri Ram Lochan Shukla that the presence of P.W.-5 on the place of incident is doubtful.

The evidence of six witnesses does not find any corroboration. P.W.-1 Chunubad who was present on the scene was declared hostile. The P.W.-2 brother of the deceased was admittedly not present on the spot and he was informed about the incident by P.W.-5 after 20 minutes left his home. P.W.-3 and P.W.-4 are the witnesses of the conspiracy, thus the statement of P.W.-5 does not get any corroboration from any other witnesses.

The trial court was also not justified in relying on the statement of P.W.-5. We have analyzed his statement in detail and found that the statement of P.W.-5 is not credible and trustworthy and fails to inspire the confidence.

For all the reasons recorded above, appellants Ram Prakash, Chunoobad Singh, Prakash Singh, and Rajendra are given the benefit of doubt and their conviction is set aside. Their appeals are allowed. Insofar as the appellants Gappa alias Deo Raj Singh and Ram Swarup are concerned they have died during the pendency of Criminal Appeal No. 1636 of 1995 and Criminal Appeal No. 1543 of 1995, their appeals stood abated vide orders of this Court on 8.9.2016 and 24.9.2014 respectively.

The surviving appellants are on bail. They need not to surrender. Their bail bonds and sureties are discharged. Let the lower court record be sent to the court-below along with copy of judgment and order without any delay for compliance and necessary follow up action.

Order Date :- 5.10.2018

Digamber