JUDGMENT J.C. Gupta, J.
1. All the three above-named appellants are real brothers being sons of Nanhey Lal. They have been convicted and sentenced to death under Section 302 read with Section 34, I.P.C. Each of them has been further sentenced to a fine of Rs. 10,000/- and in default of payment of fine to undergo two years' R.I. by the judgment and order dated 22-2-2001 passed by the Special Judge (E.C. Act), Farrukhabad in Sessions Trial No. 17 of 1992.
2. The prosecution story, in brief, was that about 10-15 days before the occurrence in question Sontara daughter of accused-appellant Shri Krishna had eloped with Amar Singh son of Jhabbu Lal, PW-1. On account of this appellant became inimical to Jhabbu Lal and his neighbour Gulzari. Shri Krishna put a pressure upon Jhabbu Lal and told him that his daughter should be given back to him before Sunday else no members of his family would be left alive. On this Jhabbu Lal made a search of his son Amar Singh and Sontara but they were not found. It is further alleged that in the past also about one year ago Sontara had run away with Amar Singh but at that time they had come back after 3-4 days. On that occasion also accused persons were in search of an opportunity to take revenge from Amar Singh but he was saved on information given by Ramwati wife of Gulzari. In the noon of 10-8-1991 Ram Sewak while sitting on his Chabutra had openly declared that if Sontara did not come back by the evening no one would be spared. Sontara did not come back.
3. Further case of the prosecution is that in the midnight of 10/11-8-1991 at about 12 appellants Sri Krishna Master with a Pauniya gun (short gun), Ram Sewak and Kishori Lal with country -made pistols made entry into the house of Gulzari Lal by scaling from the southern wall of the house and committed the murders of Gulzari, his wife Smt. Ramwati and son Rakesh aged about 15 years and caused injuries to Umesh Chandra aged about 11 years and Dharmendra aged about 8 years both sons of Gulzari. Seeing the commission of these ghastly murders Jhabbu Lal, PW-1 and his wife Smt. Leelawati ran out of their house and entered into the house of Khem Karan. After committing murders inside the house of Gulzari, accused persons in search of Jhabbu Lal went to his house but he was not found there. In the meantime, Babu Ram brother of Jhabbu Lal out of fear entered into his shop. Accused persons pulled him out of the shop and committed his murder also with fire-arms. Accused persons then fired two more shots while leaving the village and ran away in the south.
4. P.W. 8, Dr. Rakesh Kumar was posted as Medical Officer at the Primary Health Center, Kayamganj. Injured Dharmendra and Umesh were sent with the police constable Sudharshan Singh for their medical examination. Dr. Rakesh Kumar found that Dharmendra was already dead. Injured Umesh was, however, alive and his injuries were examined by the Doctor on 11 -8-1991 at 5 a.m. Following injuries were found on his person.
1. Lacerated wound 3.0 cm. x 3.0 cm. x lung deep, on the right side chest, outer and back aspect 6.0 cm. below the lower end of right scapula, margins inverted, collar of abrasion present around. Blackening and tattooing 7 cm. x 7.0 cm around the wound and gun powder deposited in area of 15,0 cm. x 12.0 cm. on the front and outer aspect of chest probing not done because the vital organ underneath the wound, air sucking and coming out with respiration, bleeding.
2, Lacerated wound 7.0 cm. x 5.0 cm on the outer aspect of left thigh 10.0 cm. Above the knee joint, muscle deep, margins irregular and inverted, blackening present around the wound, collar of abrasion present bleeding. G.C. grave, pulse not recordable, respiration, B.P. not recordable, both injuries kept under observation. Advised X-ray of chest and right thigh.
5. In the opinion of the Doctor both the injuries were caused by fire-arms. Their duration was fresh. During the course of medical examination, Umesh also expired at 5.10 a.m. injury report of Umesh is Ex. Ka 46.
6. Jhabbu Lal PW-1 got the F.I.R. Ext. Ka-1 scribed from Radhey Shyam and lodged the same at the police station Kayamganj in the same night at 3.30 a.m. On the basis of written report, Chick F.I.R. Ex. Ka 2 was prepared and the case was registered in the general diary of the police station whose copy is Ex. Ka-3. Investigation was entrusted to Gajraj Singh. He recorded the statement of witnesses and visited the scene of occurrence. He found dead bodies of Gulzari, Ramwati and Rakesh over cots inside the house of Gulzari. He collected samples of blood-stained strings of the cot. Dead body of Babu Ram was also found on a cot. Samples of blood were also collected. He further collected one 315 bullet which was found lying on the ground near the dead body of Rakesh. One bullet 315 bore was also found near the cot over which Dharmendra and Umesh were sleeping. He also prepared site plan Ex. Ka 14. Inquests were also held on the four dead bodies and they were sent for post-mortem examination with necessary papers. Constable Sudhir Singh PW-5 escorted the dead bodies to mortuary.
7. Dr. S.K. Gupta, PW-4, Medical Officer District Hosptial, Fatehgarh conducted autopsy on the dead bodies of Rakesh, Smt. Ramwati, Babu Ram, Dharmendra, Umesh Chandra and Gulzari on 12-8-1991 and prepared post-mortem reports Ex. Ka 38 to Ex. Ka 43, Dr. Gupta in his statement before the trial Court has clearly stated that ante-mortem fire-arm injuries were found on all the deceased persons and their death were caused on account of fire-arm injuries, in the night between 10th and 11th August, 1991. As the learned counsel for the appellants has not disputed this opinion and the ante-mortem injuries have been mentioned in the judgment of the trial Court we do not think it necessary to reproduce them.
8. On completion of Investigation charge-sheet Was submitted against all the appellants Who were duly tried before the Sessions Court.
9. Before the trial Court prosecution produced in all 9 witnesses. They were PW-1 Jhabbu Lal, first informant; PW-2 Madan Lal: PW-3 retired Sub-Inspector Lajbir Singh Who proved Chick F.I.R. and G.D. entries and also the papers prepared by the Investigating Officer during investigation as the Investigating Officer could not be produced as he was reported to be dead; PW-4 Dr. S.K. Gupta who prepared post-mortem reports of all the six deceased persons; PWr5 Constable Sudhir Singh who had escorted the dead bodies to mortuary; PW-6 Mahendra Singh, witness of inquest of Umesh and Dharmendra deceased; PW-7 Dr. Rakesh Kumar, who had medically examined Umesh; PW-8 Rajababu Gupta, record keeper who stated that the original general diary has been weeded out and PW-9 Ram Lal Tewari who proved hand writing and signature of the Investigating Officer on the various papers prepared by him during investigation; The defence case was of total denial. They produced Suresh Chand, D.W. 1. tube-well owner.
10. On evaluation of evidence on record the learned trial Judge has come to the conclusion that the prosecution case against all the three appellants has been established beyond reasonable doubt and accordingly they have been found guilty under Section 302 read with Section 34, I.P.C. Learned Sessions Judge has awarded to all the appellants extreme penalty of death treating the case to be rarest of rare cases. He has also made reference to this Court for confirmation of death sentence imposed on the appellants.
11. We have heard Shri A.D. Giri, Sr. Advocate along with Sri G.C. Saxena for the appellants and Shri K.C. Saxena, A.G.A. for the State.
12. So far as factum of death of all the six deceased persons by fire-arm injuries is concerned the same has neither been disputed nor assailed before us by the learned counsel for the appellants. From the evidence of the alleged eye-witnesses and Dr. S.K. Gupta. PW-4 who had conducted autopsy on the dead body of all the six deceased persons and on perusal of post-mortem reports there can be no doubt that the deceased persons died homicidal death on account of fire-arm injuries.
13. Time of occurrence has also not been disputed by the learned counsel for the appellants, rather it was admitted before us by the learned counsel for the appellants that all the murders were committed at dead hours of night of 10th of August 1991. However, according to him none had seen the assailants. Shri Giri further submitted before us that in the present case motive plays an important part and it goes to the root of the case because entire motive was against PW-1. Jhabbu Lal yet he was spared and for no ostensible reason almost the entire family of Gulzari was wiped out and the manner in which the murders were committed showed that the killers had some special and strong grudge against Gulzari. It was further submitted that presence of PW- 2 Madan Lal inside the house was highly doubtful and in any view of the matter his evidence being of a child witness does not inspire confidence as the same suffers from various infirmities. Therefore, in the circumstances of the case the possibility of his having been tutored cannot be ruled out. It was further submitted that undisputedly the night of incident was completely dark being of 'Amavasya' and it was highly doubtful that there was any source of light at the time of occurrence. It was also argued that the prosecution with ulterior motive withheld production of Rajesh and Smt. Sarala son and daughter of deceased-Gulzari who according to the own case of the prosecution case were also sleeping in the house of Gulzari at the time of occurrence. Shri Giri further canvassed before the Court that though as per the prosecution case a number of villagers had collected outside the house of Gulzari yet none of them came forward to depose regarding the incident or of having seen the accused persons at the scene of occurrence.
14. In reply the learned A.G.A. supported the findings recorded by the trial Court and argued that the evidence of PW-2 Madan Lal, a child witness aged about 6 years is reliable and the same has also been corroborated by the evidence of PW-1 Jhabbu Lal and medical evidence. Since electric bulbs were throwing light and the accused persons were admittedly known to the witnesses from before the incident there could not have been any difficulty for the witnesses In identifying them. The F.I.R. was promptly lodged wherein all the three appellants were named with specific weapons. In short, it was urged that case against the appellants has been proved beyond doubt.
15. In this case the prosecution has produced only two witnesses of fact, namely, Jhabbu Lal PW-1 and Madan Lal PW-2 who claimed themselves to have seen the present appellants committing the murders in question. Before we deal with their ocular testimony, we may first examine the motive part of the prosecution story.
16. Only Jhabbu Lal PW-1 has deposed with regard to the motive. He stated that Km. Sontara, daughter of accused Shri Krishna, had eloped with his son Amar Singh , about 10-15 days before the present occurrence, but on that occasion they had come back. His neighbour Gulzari Lal told accused Shri Krishna as to why he was not getting his daughter Sontara married. On this utterance accused persons got annoyed and said that Gulzari was defaming them. Jhabbu Lal, PW-1 further stated that about 5-6 days before the present occurrence Sontara and Amar Singh again ran away from the village. On that day he himself was not present in the village. He came back on the third day. Accused persons pressurised him to hand over Km. Sontara otherwise no member of his family would be left. On this threat of accused persons, Jhabbu Lal made a search of Amar Singh and Km. Sontara but they were not found. Therefore, he told the accused persons that it was beyond him to trace them out. He further stated that one day before the present occurrence, accused Ram Sewak came to his house in the noon and told him if Sontara was not returned till the evening all of his family members and of Gulzari would be killed. In cross-examination this witness stated that he had got mentioned in his report the fact that Gulzari Lal had asked the accused persons to get Sontara married whereupon accused persons became angry and told Gulzari that he was defaming them but this fact is not mentioned in the F.I.R. nor the same was disclosed to the Investigating Officer in his statement recorded under Section 161, Cr.P.C. When attention of this witness was drawn to this important omission which amounted to contradiction, he could give no explanation. It is also significant to note that the fact that Ram Sewak had come to his house one day before the occurrence and had threatened this witness that in case Km. Sontara was not returned till the evening every member of the family of Jhabbu Lal and Gulzari would be killed was neither mentioned in the F.I.R. nor was stated by the witness in his statement recorded during investigation. It would thus appear that the entire motive was against Jhabbu Lal. The motive alleged against Gulzari has been developed for the first time during trial by this witness who is admittedly inimical to the appellants. It would be thus not safe to accept this developed version of the motive as far as Gulzari is concerned. In the first information report it was stated that Gulzari's wife Ramwati had saved Amar Singh, son of Jhabbu Lal by giving him prior information, but this allegation was abandoned at the trial and was substituted with entirely a new case. This new allegation appears to have been made deliberately with a view to overcome the weakness in the prosecution case of there being absolutely no motive for the accused persons to commit the murders of as many as five persons of the family of Gulzari Lal. From the prosecution side there is no evidence to show that Amar Singh had eloped with the daughter of accused Shri Krishna with the help of Gulzari Lal or any member of his family nor there is any allegation or evidence that in the matter of elopement of Sontara Gulzari was siding with Jhabbu Lal. It is also not the prosecution case that the assailants had first gone to the house of Jhabbu Lal and when he was not found there, they entered into the house of Gulzari, on the other hand the prosecution case is that the accused persons first entered into the house of Gulzari and committed as many as five murders. Had the murders been by the accused persons, in all probability they must have first entered into the house of Jhabbu Lal whose son had run away with the daughter of Shri Krishnan-accused. Jhabbu Lal's house was just adjacent to the house of Gulzari and when murders of five persons were committed by fire-arms inside the house of Gulzari the killers could have well anticipated that by the time they approached Jhabbu Lal in his house he might not be there after hearing gun shot reports. All the five deceased persons of the family of Gulzari were shot dead on cots which shows that all those who were present there in the house in the fateful night were killed while they were asleep. Undisputedly Jhabbu Lal did not sustain any injury and we would further show in the later part of the judgment that had Jhabbu Lal been present to witness the incident he would not have been spared by the assailants, if they were the accused persons. The manner in which murders were committed inside the house of Gulzari clearly indicates that the killers had some strong or special grudge against Gulzari and that is why they decided to wipe out his entire family including three minor children, namely, Dharmendra aged about 8 years, Umesh Chand aged about 11 years and Rakesh aged about 15 years, all sons of Gulzari, Smt. Ramwati wife of Gulzari as well as Gulzari himself were also not spared. We are fully aware of the principle that where the prosecution case is based upon direct evidence, the absence or inadequacy of motive is not a deciding factor. Once the evidence of the witnesses is found trustworthy and reliable, the motive loses significance. However, in a case like the present one, where the entire motive is against a surviving witness and the incident having occurred during dead hours of night, the total absence of motive against Gulzari and his family members cannot be ignored completely and in this situation a very careful and cautious scrutiny of the evidence is required to be made.
17. We now come to the direct evidence which consists in the testimony of PW-1, Jhabbu Lal and PW-2 Madan Lal. Since as per the prosecution case the incident occurred initially in the house of Gulzari, we first proceed to examine the evidence adduced in relation to five murders committed inside the house of Gulzari. PW-1 Jhabbu Lal has also claimed himself to be a witness of the incident which occurred inside the house of Gulzari Lal. His house is undisputedly situated in the north of the house of Gulzari and both the houses are separated by an intervening wall running east to west. According to this witness at the time of incident he was sleeping in the courtyard of his house. He woke up on hearing sound of gun shots. On hearing gun shots, he became frightened and tried to save himself by standing by the side of the wall of courtyard. Thus as per his own showing it was not possible for him to have witnessed the incident which occurred inside the house of Gulzari, particularly when the two houses were separated by a wall which as per his own statement was more than a man's height. A perusal of the site plan Ex. Ka 14 further indicates that when the Investigating Officer made inspection of the scene of occurrence, this witness claimed to have seen the incident through Mokhana (holes' in the intervening wall) but in his substantive evidence given at the trial the witness did not claim to have seen the incident through these Mokhana. On the other hand, he stated to have stood up by the side of the wall of courtyard. We thus find that it is highly doubtful that this witness who was present inside his own house could see the incident which occurred inside the house of Gulzari.
18. The other witness to state about the incident which occurred inside the house of Gulzari is PW-2 Madan Lal. At the time of occurrence he was aged about 6 years. When his examination-in-chief was recorded in the trial Court he told his age as 16 years, meaning thereby that his statement in Court was recorded almost after 10 years of the occurrence. According to him he was sleeping on a cot along with deceased-Umesh and de-ceased-Dharmendra. His mother was sleeping on another cot. When the accused persons started firing he laid himself under the cot over which he was sleeping. At another place he stated that he was sleeping with his mother and took shelter under that cot. His statement was thus not consistent as to the place from where he witnessed the incident. The witness further admitted that his elder sister Sarla and elder brother Rajesh were also sleeping under the same Chhappar but they managed to run away. They had also witnessed the incident. They both were present when the accused persons, committed murders. According to him his sister Sarla had concealed herself behind a heap of woods which was lying in the west in the courtyard. As per the site plan Ex. Ka 14 Km. Sarla was said to be sleeping with her brothers Umesh and Dharmendra. The place where Sarla took shelter had not been indicated in the site plan nor any heap of woods has been shown in the site plan. Madan Lal has also stated that when he came out from under the cot, he had seen Sarla in the house. He further admitted that many persons had assembled at his house after the occurrence but he could not identify them as he was a small child. He has further stated that none of them had asked him as to who were the assailants and what they had done. A close and careful scrutiny of his statement creates a doubt in our mind if this witness was present in the house at the time of occurrence. He was a child of about 6 years of age at the time of occurrence. His statement in the trial Court was recorded after a gap of about 10 years. It is inconceivable that a child of his understanding would recapitulate facts in his memory witnessed by him long ago. Rajesh and Smt. Sarla who were of matured age and were in a better position to depose about the incident were not produced before the trial Court. No explanation whatsoever was given before the trial Court for their non-production. It was rightly submitted by the appellant's counsel that they were not produced obviously for the reason that they were not prepared to support a false story set up by Jhabbu Lal in the F.I.R. lodged by him against the accused persons on account of his personal animosity. There is also weight in the submission that had these witnesses been produced their evidence would have gone against the prosecution and. therefore, an adverse inference should be drawn against the prosecution for their non-production.
19. As already stated above, according to this witness he had taken shelter under the cot over which he was sleeping. On the same cot his two brothers Umesh Chandra and Dharmendra were also sleeping. Both were killed by the assailants by fire-arms. It is thus ridiculous to believe that this witness who was younger than his two deceased brothers would have taken shelter under the same cot without his presence being noticed by the assailants. Km. Sarla and Rajesh who were elder to this witness are not alleged to have sustained any injury. There is great deal of doubt that these three children were present inside the house at the time of occurrence. Had Madan Lal PW-2, Rajesh and Smt. Sarla been present they would not have been spared and the theory set up at the trial that all these persons had concealed themselves at different places is not only an improvement but does not find support from the evidence on record and the spot inspection made by the Investigating Officer.
20. It has come in evidence that a larger number of villagers had gathered outside the door of Gulzari's house but not even one of them was examined to state the presence of PW-2 Madan Lal in his house. Km. Sarla and Rajesh were definitely in a better position than PW-2 Madan Lal to depose about the incident because of their being more matured yet for no reason whatsoever they were withheld and not produced. It is not that multiplicity of the witnesses would improve the situation nor we ought to be understood to hold that without independent corroboration evidence of PW-2 could not be acted upon in law but where PW-2 Madan Lal was admittedly a six years old child and his evidence was recorded after a long gap of ten years, the prudence requires that there should have been some corroboration of his evidence, which itself has been found to be shaky, weak and seems to be the result of tutoring. Non-production of Rajesh and Sarla or any other villagers who had assembled at the door of Gulzari's house is certainly a strong factor going against the prosecution case.
21. We have already held above that it was highly doubtful that PW-1 Jhabbu Lal was in a position to see the faces of assailants when they committed five murders inside the house of Gulzari. According to this witness he had also seen the accused persons committing murder of his brother Babu Ram. He stated that he and his wife Leelawati came out of their house raising cries. They ran towards the village. Accused persons after committing murders in the house of Gulzari entered into the house of this witness but finding no one present there they came out. They then broke the door of the shop of Babu Ram pulled him out and committed his murder by fire-arms. Thereafter accused persons ran away. The witness further stated that when he went near Babu Ram he found him alive. On his asking Babu Ram told him that he has been killed by Shri Krishna Ram Sewak and Kishori. As far as this part of his statement that Babu Ram had made an oral dying declaration is concerned, it is noteworthy that the same neither finds mention in the F.I.R. nor in the statement of the witness recorded under Section 161. Cr.P.C. Apart from the fact that the theory of oral dying declaration was introduced for the first time at the trial, a perusal of the post-mortem report of Babu Ram and the statement of Dr. S.K. Gupta PW-4 makes it highly doubtful that Babu Ram could be in a position to make any oral statement after sustaining fire-arm injuries in his chest. The doctor in his statement before the Court has categorically stated that instant death of Babu Ram after sustaining gun shot injuries was most likely. Therefore, no credence can be given to this part of the statement of this witness that Babu Ram had disclosed to him orally the names of present appellants as his killers.
22. So far as the claim of this witness of his having seen the appellants committing the murder of Babu Ram is concerned, we find that it is not safe to accept the same. According to this witness when he heard sound of gun shots emanating from the house of Gulzari, he along with his wife ran out of his house. In the site plan the place from where he witnessed the incident of murder of Babu Ram has not been shown. The shop of Babu Ram was situated in the north of the house of this witness. The main door of the house of Jhabbu Lal opened in the north. The witness, however, moulded his evidence by stating that he ran out of his house from the main door which was in the west. No such door is shown in the site plan. During investigation the witness had stated that after coming out of his house he and his wife had concealed themselves in the room of Subedar. From this room, it was humanly impossible to have seen the incident which occurred at the shop of Babu Ram. Therefore, with a view to overcome this unsuited situation, the witness in his deposition before the Court made a vital and important twist by stating that he saw the incident of murder of Babu Ram when he had come out of his house and was raising cries. Even this twisted version did not improve the situation in the least. As already stated above the witness did not disclose to the Investigating Officer as to whether he was standing when he saw the killing of Babu Ram. If this witness had come out of main door in the north he would not have been spared untouched by the accused persons particularly when they were in search of him and had even entered into his house after moving from south to north. According to this witness he was also raising cries. In such a situation it is inconceivable that the accused persons would not notice his presence and would leave him untouched raising cries within their view, particularly when the entire motive was against him. He does not state that he had taken shelter by concealing himself. When the accused persons were so desperate that they had finalised almost the entire family of Gulzari against whom they had no special grudge, they would have never left Jhabbu Lal, PW-1 to witness the commission of murder of his brother Babu Ram particularly when Jhabbu Lal was present in open outside his house at a very short distance from the shop of Babu Ram. The other witness Mohan Lal who is said to have witnessed the commission of murder of Babu Ram has not been examined before the trial Court.
23. The place where according to PW-2 an electric bulb was hanging has not been shown in the site plan, on the contrary it has been shown at a different place. The witness stated before the Court that he had shown to the Investigating Officer the place where bulb was hanging but cannot give any reason as to why that place has not been shown in the site plan by the Investigating Officer. The Investigating Officer neither tried to find out as to of what power the bulbs were nor they were taken into possession. According to PW-1 Jhabbu Lal, Gulzari had taken electric line illegally by putting a wire on the main line. The Investigating Officer has not mentioned either in the site plan or in the inspection note that the electric line had been taken in an unauthorised manner from the main line which proceeded to the tube-well of Suresh Chand, PW-1. Suresh Chand was examined in defense. He stated that no villager had taken electricity from his tube-well line. He was totally an independent witness and we find no reason to disbelieve him. The Investigating Officer also did not examine if the electric bulbs were in working condition. It is not disputed that the night of incident was completely dark on account of Amavasya of rainy season. PW-6 Mahendra Singh supported the defence suggestion that no villager had taken electricity in illegal manner by putting a 'Katiya' on the main line. In this view of the matter it is doubtful that if any artificial light was available at the commission of murders.
24. Written first information report of this case was made by Jhabbu Lal PW-1 whose son according to own case of the prosecution had eloped with the daughter of Shri Krishna-accused. It was Jhabbu Lal who had been threatened by one of the accused persons. Therefore, in the circumstances appearing in the case the possibility of false nomination of accused persons by Jhabbu Lal under suspicion or due to animosity cannot be ruled out. The first informant had sufficient time to have consultation. We find weight in the submission of learned counsel for the appellants that the first information report of the present case was made after consultation and manipulation and the same was ante-timed. There are glaring circumstances in support of this contention such as late despatch of special report, of chick F.I.R. to the Magistrate, late arrival of dead bodies in the mortuary for post-mortem examination, overwritings and other discrepancies in the inquest report and other papers prepared during inquest etc. The first information report of the present case thus has lost its corroboration value.
25. For the reasons stated above we find that it will be most unsafe to place implicit reliance on the testimony of PW-1 Jhabbu Lal and PW-2 Madan Lal and there being no other evidence to connect the appellants with the murders in question, the inevitable result is to give the benefit of doubt to all the appellants. Accordingly they deserve to be acquitted.
26. Appeal is allowed, conviction and sentence of all the appellants as recorded by the trial Court are set aside and they are acquitted of the offences charged for. They are in jail. They shall be set at liberty forthwith unless required to be detained in connection with any other case.
27. Reference made by the trial Court for confirmation of death sentence is rejected.