JUDGMENT
1. The aforesaid three appeals and the death reference arise out of the judgment in S.T. No. 43 of 1995 dated 2-5-1998 recorded by the Spl. Judge (Dacoity Affected Area), Banda. By his judgment and order the trial Judge had convicted appellant Purushottam Kekwat and Bhondu alias Mama under Sections 302/149, IPC and had sentenced them to death. The death sentence necessitated the reference in question. These two appellants were also convicted for offencess under Sections 364-A and 201, IPC and each was sentenced of life imprisonmentk and to R.I. for five years for the respective offences. The appellants Mangal alias Bhotu, Purri Lal alias Baba and Munna alias Chhotu were also convicted for offences under Sections 364A and 302/149, IPC for which each was sentenced to life imprisonment. There was further conviction of these persons under Section 201 IPC for which each was sentenced to R.I. for five years. The trial Judge had directed that the sentence were to run concurrently. These appellants were charged also for offences under Sections 402/412, IPC for which they were acquitted. There was a further charge against Purri Lal under Section 25 of Arms Act and he was acquitted so far this charge was concerned. The appellants Purri Lal and Munna alias Chhotu preferred their appeals from Jail and they are still in jail. For the other appellants also there was no order for bail upon the regular appeals filed by them and they are also in jail serving out the sentence imposed on them.
2. The prosecution was initiated on the basis of an FIR lodged on 10-6-1993 at 6.30 p.m. at PS Mau, Distict Banda, by one Tribhuvan Pal for an incident dated 9-6-1993. It is stated in the FIR that on that date one Ram Babu and the complainant Tribhuvan Pal had gone to the jungle for fetching firewood. Five armed persons surrounded them and asked their names and address. One of them had covered his face. After such interrogation the miscreants tied them up and fixed a sum of Rupees 20,000/- as ransom for release of Ram Babu. They were taken and roamed in the jungle and the complainant was released at about 11 p.m. so that he may collect the ransom and pay it. He made a report in the house of Ram Babu, who happened to be his brother-in-law, and came back to the jungle with villagers and police guards in search of abducted Ram Babu and the miscreants. He claimed to be able to idenify the miscreants if seen again.
3. On the next day i.e. on 11-6-1993 the chowkidar of village Kotra Khamba made a report at thana Mau at about 6.30 a.m. that the dead boty of Ram Babu who was abduced on 9-6- 1993 was lying in the water of Kotra Khambha bandha and some other dead bodies were also there. The initial FIR on the report of Tribhuvan was under Section 365 IPC but upon the subsequent report of the chowkidar, the crime Case No. 120 of 1993 under Section 365 IPC was converted to one under Section 302, IPC. Subsequently, a blood stained axe was recovered from near one of the dead bodies which was claimed by Tribhuvan Pal as the one carried by him to the jungle and which was taken away by the miscreants from him. A piece of paper with certain writing, purporting to be made by one Rampa Pahelwan admitting demand of ranson and killing of these persons for non-payment, was also recovered from near the place of incident. Subsequently, the prosecution alleged that this letter was written by the present accused Purshottam. The other dead bodies were also identified as Shyam Kewat, Keshav Kewat, Lotun Kewat Gaya Prasad and Gilla. It appears that furthermore dead bodies were also found near the spot.
4. During investigation a tamancha and certain cartridges were recovered from the appellant Purri Lal, a cycle was recovered from appellant Munna alias Chhotu and there was an allegation of certain incriminating statements made by Munna before the police. A cycle was also recovered from the appellant Mangal alias Bhotu with certain incriminating statements by him as well before the police. A third cycle was allegedly recovered from Bhondu alias Mama with a similar allegation. One axe was recovered at the instance of Purusottam and certain statement was made by him concerning the use of the axe.
5. The dead bodies were sent for for post mortem examination and blood stained earth and axes and clothings etc. were sent for chemical examination.
6. Charges were framed against the five appellants under different heads for having abducted Ram Babu and Tribhuvan for ransom, for having committed dacoity by forcibly taking the axes belonging to Tribhuvan and Ram Babu and causing injury during such incident, for having committed an offence under Section 3(2)(1) of the TADA Act for having committed the murder of Ram Babu and several others named in the charge, as also for an offence under Section 201, IPC for having throw in the dead body of Ram Babu in the bandha and thereby concealing evidence with an intention to screen offenders from legal punishment.
7. The prosecution had examined 21 witnesses as detailed below :
8. It appears from the trend of evidence of the prosecution that although the case was initially lodged against unknown persons on the report of Tribhuvan Pal, during investigation several dead bodies including that of Ram Babu were recovered and a letter containing demand of ransom was also found from a place near the dead-bodies under a piece of stone. During investigation two alleged eye witnesses made certain disclosures and thereafter the accused persons were spotted in a forest and an encounter followed in which one accused Bhondu alias Mama was arrested. He allegedly, made a confession. This man was indentified by the complainant as one of the abductors of Ram Babu. The names of others came out during investigation and some of them surrendered in Court while others were arrested. Certain incriminating articles including cycles were covered at the instance of certain accused persons. Investigation also revealed that the letter found from the spot was written by one of the accused standing trial and upon these materials charge sheet was submitted and trial was taken up.
9. We may now proceed to analyse the evidence on record to see if the orders of conviction and sentence could be sustained or if the judgment require any interference, either on the point of conviction or on the point of sentence.
10. PW 1, Tribhuvan Pal narrated the incident as per his report, he and Ram Babu had gone for collecting fire wood and when they were taking rest after a hard toil, five pesons came there. He named Bhondu who had allegedly threatended them and asked them not to run away. These persons interrogated about their names and addressed and they answered correctly. He identified Purshottam, Bhondu, Purri, Mangal and Munna in Court and claimed that at the time of incident all were armed with tamancha. He alleged that Purushattam had covered his face with a cloth but while chewing the gram seeds which he had snatched from Tribhuvan and Ram Babu, he had removed his cloth from his face. It was Purshottam who had ordered tying up these two persons and taking them away. Tribbhuvan also stated that his kulhari (axe) was snatched by Bhondu and Purshottam had taken away the kulhari of Ram Babu. They were tied with their hands behind and were taken near a stream (jharna) and when these persons pleaded for drinking water, they were asked to lick water like cattle. They were taken to Kotra Khamba forest and Tribhuvan was let off so that he could bring the ransom money. He was threatened not to inform the police force or anybody, failing which his family would be ruined. Tribhuvan went to the village of Ram Babu, informed Ram Bhawan about the capture of Ram Babu by miscreants and about the demand of ransom and Ram Bhawan came to the spot with a two-cell torch but the complainant did not accompany him. Thribhuvan tried to collect money and again went to the jungle with police force and others and kept on the search of three days but could get neither Ram Babu nor the miscreants. Only thereafter the report was lodged. He proved the report as exhibit 1. He did not name the accused person before the police officer due to fear as he was threatened not to disclose their names. When the "daroga babu" assureds him of full help, he had disclosed the names of the five. He knew Purshottam Kewat from before as he used to go to his relative, the others were also known as they used to accompany Purshotam. After the report, he stayed in the police station itself and on his way back he was informed about the recovery of dead bodies. He had identified the axe as his which was found near the dead bodies. He did not produced the axe before the Court although it was left in his custody after seizure. His cross-examination further indicates that he did not go with any cart or like device for carrying the load of fire-wood to be cut by them. He not only claimed identification of the accused persons but also stated that these persons also knew them from before and despite that they wanted to know their names and addresses. He admitted that Bhondu was a man from the district of Allahabad about 150 kms. away from his village and no relation of Bhondu lived in his village. Purri was also a resident of the district of Allahabad while Munna and Mangal hailed from places 40 to 50 kms away. They also did not have any relation in or near his village. He accepted that the names of the miscreants were not indicated in the report lodged by him and he offered an explanation that he was so terror stricken due to threats of the miscreants that he did not dare to disclose their names. He admitted that only after the arrest of the accused persons he did give their names to the police. The accused persons were not arrested in his presence but he was present in the police station when they were brought there. He clarified further that only after the production of the accused persons in the police station he was called there for the purpose of idenfiication. By futher examination of this witness, the axe was produced in Court and was identified by him and he spoke about recovery of that axe. He also spoke about recovery of another axe that belonged to Ram Babu and this recovery was made on the identification of the accused Purshottam. The axes were sealed after recovery but when produced in Court they were not under any sealed cover.
11. PW 2, Ram Bhavan, who is the father of deceased Ram Babu and father-in-law of Tribhuvan, was informed by Tribuhvan at about 10 p.m. on Wednesday that he and Ram Babu were abducted by miscreants and the names of Purshottam, Purri, Bhondu, Munria and Mangal were closed to him by Tribhuvan. Tribhuvan had also told him about the demand of ransom by them. Both Tribhuvan and Ram Bhavan went on searching Ram Bau but they could not get him or the miscreants. A subsequently search was made along with four police personnel and other villagers but in vain. Only thereafter Tribhuvan made a written report and police had come and thereafter the dead-bodies were recovered. He accepted in cross-examination that he had accompanied Tribhuvan to the police station and the report was written in his presence but he was so bewildered on the news of death of his son that he did not ask Tribhuvan as to what had been reported. He accepted in clear terms that the report was made after seeing the dead body of Ram Babu. He makes out a different story in his cross examination when he says that the story of abduction of Ram Babu was reported to him by his son Sadhu and only thereafter Ram Bhavan had gone to Tribhuvan at Kotra Khamba. He accepted in cross-examination that he did not witness the abduction or murder of his son. Nor did he know nay of the miscreants. They were arrested four days after the incident and only thereafter police had told them that they were the persons who had killed his son and others, and prior to this information from police he had no knowledge about the miscreants. This goes against the claim of this witness in his examination-in-chief that Tribhuvan had named Purshottam and other before him. If Tribhuvan could name them before Ram Bhavan, there was no reasons for Tribhuvan not to have disclosed their names in the FIR and the story of non disclosure under panic must be tested against the attending circumstances. According to Tribhuvan the report was made when the search on the right of incident and the day following proved futile and only after the report the dead bodies were recovered. According to Ram Bhavan however, he was there when Tribhuvan made in report and a day prior to that the dead bodies had been recovered.
12. PW 3, Rajendra Prasad, was informed about 8 dead bodies lying near the Bondha. It was 8 p.m. then and he could not verify the incident that night. Next morning he sent Mehi Lal, chowkidar, to the spot who had confirmed that there were dead bodies lying there. Only then on 11-6-1993 he sent the chowkidar to the police station. He did not know Purshottam or his antecedents. He knew Purri Lal as a brother in law of Chhedi Kewat of his village Bargarh. He did not know if Mewa Lal, Pradhan of village Barachhi, had taken the bandha in lease for fishing or if Purri Lal used to steal fish therefrom. His cross-examination indicates that he did not identify Purri Lal and he also stated that he had never seen Purshottam and the other accused persons. He simply spoke about deputing the chowkidar for verifying the information of locating dead bodies near the bandha. No recovery was made in his presence, not even of any letter or of any axe at the instance of Purshottam. The evidence of Rajendra, therefore, does not help the prosecution in any manner except to prove the undisputed fact of recovery of dead bodies. We shall have to see the effect of his denial of recovery of the letter or of the axe while we take up the evidence of others.
13. PW 4, Chunney Khan, had taken the bandha in Kotra Khamba on lease for fishing and Gilla @ Sayeed was his partner in this business. Gilla was busy in fishing in bandha along with Shyam, Gaya Prasad, Lotun Keshav and others from 10 to 15 days prior to the present incident. On information he had gone to the police station and then to the spot and had identified the dead bodies of Shyam and Gaya Prasad. They were fishermen engaged by Gilla for fishing. He also identified other dead bodies including that of Ram Babu at the spot and their personal belongings were scattered nearby. When the dead bodies were taken out of water. Tribhuvan Pal, Ram Bhavan and Sadhu also came there. They also identified the dead body of Ram Babu. The witness had also identified at the spot, the dead bodies of Lotan, Keshav and Gilla. He found the personal belongings to the deceased near the spot including cycles, fishing nets, shoes etc. This witness could not say what happened to these cycles, or if police had taken charge of them. He was informed about recovery of dead bodies on 11-6-1993 at about 7 a.m. The statement of this witness is also not very important to fix the identify of the present accused persons or their involvement in the crime.
14. PW 5 H.C. Mahendra Singh, is a formal witness. He proved the FIR drawn on the report of Tribhuvan Pal as also the general diary drawn on the report of the chowkidar about the recovery of the dead bodies. His evidence too is of link nature and does not connect the accused appellants with the alleged offence.
15. PW 6, Dr. R. K. Gaur, PW 7, Dr. Mahendra Singh, PW 9, Dr. Rajendra Prasad, PW 10, Dr. D. K. Patoria, and PW 12, Dr. K. M. Tewari are all of similar nature in the sense that they had conducted post-mortem examination on some dead-body or the other. They had indicated the injuries on the dead-bodies and also indicated the fact that certain dead-bodies had the hands tied up behind and had ropes around the necks. The factum of death or manner of killing is not under challenge and it is not under challenge that these persons were murdered by some miscreants or others. The evidence of the doctors, however, do not connect the present appellants with the murders. Murders were allegedly committed by axes as per the prosecution story but the weapons were not shown to these doctors during their examination.
16. PW 8, Ram Kripal had reached the spot wherefrom dead-bodies were recovered. According to him, a letter was found there placed under a stone and this letter was purporting to have been written by Rampa Pahelwan demanding a ransom of Rs. 20,000/-. The letter had stated that as this ransom was not paid, the fishermen were killed. The letter was taken charge of by the sub-inspector of police and this witness had put his thumb mark on the seizure memo. This letter was identified by him and was marked as a material exhibit. This witness admitted in clear terms that he was absolutely illiterate. He was unaware of the factum of recovery of the dead bodies and no dead-body was seized or sealed in his presence. He did not know anything beyond the recovery of the letter. He was sure that it was written in pencil only and not a single word was there written in ink. It was a plain paper and not a ruled one. When the letter was recovered the daroga had prepared three documents on plain papers on which this witness had put his thumb mark. This witness accepted again that his thumb mark was taken three days after the incident (meaning thereby the recovery).
17. PW 11, Constable Anil Kumar Mutaina, was at Mau Police station in June, 1993, and he and others carried 8 dead-bodies under sealed condition to the mortuary for post-mortem examination and he brought back the dead-bodies along with the post-mortem reports.
18. PW 13, Dina nath Singh, was the police station in-charge at Barhgarh at the relevant time. On the night between 10th/ 1 lth of June, 1993 he was busy in investigation of a case of dacoity when he got an RT message about killing of certain persons in village Kotra Khamba, PS Mau. Being the officer-in-charge of a neighbouring police station he reached Kotra Khamba to render help to the officer-in-charge of Mau police station. The Superintendent of police, Fatehpur, was there and under his direction this witness had conducted inquest and prepared reports in respect of 8 dead-bodies that were found at Kotra Khamba. This operation took him about 8 hours from 9 a.m. to 5 p.m. He proved the inquest reports. His cross-examination indicates that when he had rushed to the spot the police force from Mau was already there and the sub-inspector of police must have been there (as opined by him). The place of occurrence lay within Mau police station. He could not give any reason why any police officer of Mau police station had not conducted the inquest. Certain discrepancies in rioting the dates were put to him in cross-examination and he explained that the discrepancy in date might have been due to mistake. In certain inquest reports the case crime numbers were not mentioned nor the relevant section. This witness did not seize any material from the spot. It was suggested to him that the papers of inquest were prepared on a subsequent date.
19. The next witness PW 14, Kanhaiya Lal, had been the station officer of Kalyanpur police station and in August, 1993, while he was posted at Karvi, District Banda he had taken charge of the investigation of the instant case under the orders of the Superintendent of Police, Banda. He had made investigations also for an offence under the TADA and submitted a charge-sheet on 28-10-1993 after obtaining approval from the Inspector General of Police. Allahabad.
20. PW 15, Subedar Singh, spoke of the report made by Tribhuvan Pal about adduction of Ram Babu and of recording the FIR in case Crime No. 120 of 1993. He took up investigation and examined witnesses. He searched for the abducted Ram Babu and for the miscreants. He also reached the talab at Kotra Khamba and found 8 dead-bodies there. Inquest was done not by him but by Dina Nath Singh, the then officer-in-charge of Bargarh police station. He kept copies of inquest reports in his case-diary. He also prepared a sketch-map in presence of witnesses and this sketch-map was proved by him. He seized blood stained earth, plain earth and blood-stained axe along with the personal belongings of the deceased from the place of occurrence and he also seized a pencil written letter therefrom. His deposition, however, indicates that this pencil written letter was taken charge of from the possession of the accused persons. He prepared due seizure lists and examined witnesses Sampat Kewat, Mohan Prasad, Matlabi Kewat and others whom he described as eyewitnesses. On 12-6-1993 he, accompanied by force, went out in search for the miscreants and in Jharna Jungle, had an encounter with Purshottam, Bhondu, Mangal alias Bhotu, Purri Lal alias Babu and Munna alias Chotu, all armed with weapons. He tried to arrest them but they showered shots on the police party and only Bhondu alias Mama could be arrested with a 12-bore tamancha and cartridges. The others could run away. A case was started against the accused persons for this incident. He had again examined the complainant, Tribhuvan, who had identified Bhondu alias Mama as one of the persons engaged in the abduction of Ram Babu. This suggests that for identification of Bhondu by Tribhuvan no test identification parade was ever arranged. Subsequently, Purshot-tam had surrendered in Court and a proclamation under Section 82 Cr. P.C. was prayed for concerning PurriLal, Mangal and Munna, Mangal and Munna were subsequently arrested and one cycle each was recovered on their pointing out. The recovery memos were proved in court. Subsequently, Bhondu also made a statement disclosing presence of a cycle in his house and Purushottam had made a statement concerning the axe used in the incident. The letter recovered from the spot was 2000 Cri.L.J./189 VIII allegedly written by Purushottam. As such, his specimen writing was taken and expert opinion was sought for on comparison of these two writings. On the pointing out of Purushot-tam an axe was recovered and a sketch-map prepared therefor, it was alleged . that PurriLal was arrested subsequently and on his pointing out a tamancha and certain cartridges were recovered from under a stone.
21. The cross-examination of PW 15 indicates that the description of the axe recovered from the spot did not tally with the description of the one produced in Court. The witness offered an explanation that the wooden handle was cut into two for convenience of carrying the same but this fact was not noted either in the seizure list or anywhere in the case-dairy, it appears from a Court's question put to him that the piece of the handle that was there with the axe did not tally with the piece that was produced to show that it was cut from the original long handle. Further cross-examination indicated that the description of the axe allegedly recovered from Purshottam, and as given in seizure list, did not tally with its actual description when seen in Court. The cycles that were allegedly recovered from Munna. Mangal and Bhondu were not produced in Court. Further examination of this witness indicates that on the very first day of his statement witness Tribhuvan Pal had not spoken of snatching of their axes by the miscreants. Such statements were made only after the arrest of Bhondu alias Mama. He was confronted with a very serious lacuna in the sketch-map. He had indicated in the sketch-map all the spots wherefrom cycles, clothes, shoes, utensils were recovered but the sketch-map did not indicate the place wherefrom the letter was allegedly seized. Although he had claimed the recovery of one cycle each on the pointing out of Bhondu, Munna and Mangal, he could not give the dates of such recovery, and, as stated above, the cycles were not before him on the date of his deposition. His case-dairy did not disclose any entry touching the recovery of the letter or taking specimen writing. Initially, the specimen writing was taken in ink but subsequently it was demanded in pencil. It was alleged that the pencil writing of Purshottam was taken in the presence of a migistrate, but, again, there is no entry in the case-diary about such specimen writing.
22. PW 16, MewaLal, is a man of village Barachhi, PS Mazu, District Sahu Ji Maharaj Nagar. He was informed about the killing of fishermen at Kotra Khamba and he went to the spot. According to him, there had been a quarrel between Purshottam and Purri on the side and this witness Shyam, Gaya Prasad and Lotun, on the other. Rajapur police had been chasing Purshot-tam. He wanted to cross the river and requested ShyamLal and others to ferry him to the other side. ShyamLal had declined only on the ground of chase by police and Purshottam had abused him and threatened him with dire consequences. This witness spoke about fishing by Shyam, Gaya Prasad, Keshav Prasad and Lotun Prasad, Mahesh Prasad, Ram Karan, Gilla, Matlabi and Mohun under Chunna thekedar and he received information from Mau police station about the murder of his brother. While he was proceeding towards the police station he met Matlabi and Mohun who told that Purshottam, Purri, Bhondu, Mangal and Munna had killed his brothers. They also informed that had they not run away, they would also have been killed, His cross-examination indicates that the quarrel between ShyamLal and Purshottam had taken place about a year prior to the alleged killing. This fisherman had gone to Kotra Khamba. 15 Km. away from village Barachhi about a week prior to the murder. Although he was not present on the date of the incident he fixed the date of killing as 9th/ 10th of June, 1993. He had no idea about the months. All he knew was that the incident took place on the 9th/ 10th June. He received information from police at 12 on 10th June in his house. He identified the dead-bodies before the police. Mohun and Matlabi had also gone to the spot with him. They had also identified the dead-bodies and had given their names to the police. All along during the course of inquest Mohan and Matlabi were present there. The dead bodies were then sealed and taken to the police station. He also accompanied the dead-bodies to the police station. The witness makes a very significant statement when he says that the inquest report was signed by him at the police station. He makes another categorical statement about what were recovered from near the dead-bodies. The materials were kathri (a variety of hand-sewn bed spread), atta, katori, fishing, nets, pots and two cycles. The rest of the cycles were not there. There was no other material near the spot then. Matlabi and Mohan were related to this witness.
23. PW 17, Shiv Prasad Misra, was the hand-writing expert. On 13-8-1993, a constable, Narendra Singh, brought to him a letter from the trial judge, a disputed writing and a specimen writing. The disputed writing was marked 'O-l' by him while the specimen writing were in 10 pages. All these papers were proved in Court. He compared the disputed and the specimen writings and submitted his report which was proved in Court. According to him, the disputed document was on a ruled paper. This goes counter to the statement of the other witnesses who had stated that the letter that was found at the spot was on a plain sheet of paper.
24. PW 18, M. P.Lal, had been an SI in Mau police station on 20-2-1993 where the present case was registered in his absence. The investigation of the case was entrusted to this witness on 20-8-1993. He visited the spot, drew up a sketch-map and had also submitted a charge-sheet. He had also obtained approval of the District Magistrate to proceed under the Arms Act against accused PurriLal. The tamancha on the basis of which the Arms Act cased was instituted was not produced before this witness on the date of his deposition. The concerned GD entry about alleged recovery was not produced in original.
25. PW 19, MohanLal, claims to be an eye-witness, in the night between the 9th and 10th of June 1993 he was there at Kotra Khamba bandha for fishing along with Shyam, Lotun, Gaya Prasad, Ram Karan and Gilla thekedar. At this stage of his deposition he did not name Keshav and Mahesh as having accompanied them. Fishing was being conducted for about 2 weeks. He alleged that on the night of occurrence Purshottam, Purri lal, Bhondu @ Mama, Munna and Mangal came there from the north-eastern corner. At that point of time Shyam, Lotun, Gaya Prasad, Keshav and Ram Karan were busy in loading the fishing nets on the boats and Matlabi and this witness were sitting near the cycles and personal belongings of the fishermen and were talking between themselves. Shyam was busy loading the boat and he had a torch with him. Pushottam was accompanied by five miscreants and they had brought one person in their captivity whose hands were tied behind. This man was of tender age ('nai umar ka tha'). The miscreants then declared that all should leave the fishing nets and come out otherwise they would be shot dead. Shyam with his associates did come out and all of them went to the miscreants. Purshottam directed his associates to tie up all these persons. Gilla thekedar could not bear it and there had been a scuffle between Purshottam and Gilla. Shyam then told Gilla not to quarrel otherwise all the catch of fish would be taken away by the miscreants. Munna, Mangal and PurriLal had fir arms with them ('aslaha liye the') while Purshottam and Bhondu had axes with them. Purshottam took Gila thekedar to the western bank of the talab. Bhondu pulled the rope and Purshottam dealt an axe blow on the head of Gilla and he fell down with a loud shriek. The two miscreants came back to their associates. They took Shyam and Lotun under tied condition and they were then axed to death by Purshottam while Bhondu kept the rope pulled. They came back again and it was then the chance of Keshav and Gaya Prasad who were killed in a like manner. Ram Karan and that unknown person who was brought with them were then killed and the dead bodies were thrown into the water. Purshottam asked his associates if anybody was left. The witness and Matlabi were fleeing away towards south. The miscreants chased them and uttered that if they spoke anything against them they would also be shot dead. The witnesses went on to say that he and Matlabi went on running till they reached Bargarh. They got a truck and boarded the same. Under great panic, they reached the house of mama of Mahesh at Dara Ganj in Allahabad. This mama was not present in his house. They waited there for two days and on the third day they came to Mau and reported everything to MewaLal Pradhan and to other villagers, only thereafter they went to the police station and again to Kotra Khamba. He claimed to have known Purshottam and others from before as they used to visit his village Barachchi and everybody in village were afraid of from the very name of Purshottam. His cross-examination indicates that from before the arrival of the miscreants they kept hiding in a ditch and, as such, the miscreants could not see them. Fishing was being done on the western side of the bandha (talab) while the witness and Matlabi were hiding at a place 10 steps from southern side. Again, he claimed that were only 10 steps away from the fishermen. The further lines of his cross-examination indicate that water in the talab spread over an area of 4 to 5 bighas and was deep as well. The ditch they were hiding in was chest deep, it had no water in it. This ditch was allegedly shown to the investigating officer but he could not say if this ditch was mentioned in the sketch-map or not. He claimed to have shown to the investigating officer the route through which the miscreants had come. But he could not say if that was shown in the sketch map although he was sure that sketch-map was prepared on his identification of the spot. There was a mahua tree beyond the waters of the bandha on the western side. The deceased were taken to that place. The witness and his associate, however, did not stand up and kept themselves hiding in the ditch alone. According to him, the dead bodies were still there when he had gone to the spot again along with the police officer. According to the prosecution story, recovery was made on 11 but according to this witness he spent two days at Daragnnj in Allahabad and came to the spot on the third day. After return from Allahabad, he makes it amply clear, in further cross-examination, that he and other reached the spot on 12-6-1993 at about 10 or 11 a. m. and all writings there were done in his presence. There was an axe near the dead-body of Shyam. There was no other article near the other dead-bodies. He asserted that no other material was seized from the spot in his presence. At the time of occurrence, he lay hidden in the ditch till he took to his heels. Three dead-bodies, according to him, were found floating in the water, all tied up together and were taken out in his presence and he identified these dead-bodies. The dead-body of Gilla was recovered from a nala. It was suggested to him that he did not see any incident and was deposing falsely as the deceased Shyam was his uncle and that he was acting under pressure from the police. He admitted in the last line of his cross-examination that the occurrence had taken place in a dark night. It is to be noted that his associate Matlabi was not examined as a witness.
26. PW 20, Kaushal Kishor, was the "ahalmad" in the Court of Civil Judge, Senior Division, Banda. he had worked with Sri S. S. Rudra Judge (Essential Commodities Act) in the year 1993 and he claimed to be acquainted with his hand writing. He proved exhibits Ka-80 to Ka-89 as having been attested by the aforesaid Judge. His cross-examination indicates that there were difference in the dates under the signature of the Judge. The signatures were not made in his presence. The concerned Judge was admittedly alive and was working at Shahjehanpur. These exhibits contain certain alleged specimen writings and the witness had accepted that the hand writings were not taken in his presence. It may be mentioned here that Purshottam was not confronted with any question concerning the specimen writing having been given by him, or concerning the letter allegedly recovered from the spot.
27. The last witness examined on behalf of the prosecution was Sri Syed Aftab Ahmad who was in the Banda collectorate at the relevant time and had worked under the District Magistrate, Sri S. N. Shukla, and he claimed acquaintance with handwriting and signature of Sri Shukla. He proved certain writings and signatures of Sri Shukla in a register in respect of prosecution of PurriLal under the Arms Act. The concerned tamancha or the cartridges were not produced before him and he could not say for which tamancha or cartridges the concerned entries were made.
28. A perusal of the judgment of the trial judge indicates that he took pains to narrate the prosecution story, the charges that were framed as also the number and description of the witnesses and as to what they had spoken. He had also discussed in detail the ante-mortem injuries on the dead-bodies and commented in paragraph 33 of the judgment that medical evidence too supports the ocular testimony. That the unfortunate victims were mercilessly killed while they were in tied condition and that some dead-bodies were floated in water, have been amply proved from the statements of the doctors and the statements of the witnesses on the point of recovery. These facts do not, however, by themselves involve the present appellants with the alleged crime. For this, the prosecution has relied on the statements of Tribhuvan (eye-witness of alleged abduction), MohanLal (eye witness of alleged killing), recovery of axes, cycles, other personal belongings from the spot as also of an incriminating letter and the alleged recovery of an axe and cycles on the statements/ pointing out of certain co-accused persons. We shall take up these matters one after another. We shall also see if the trial judge had put reliance on a circumstance against any particular accused, had given him an opportunity to explain the same by way of putting circumstance to him in his cross-examination under Section 313 Cr. P. C.
29. On the question of recovery of letter and fixing the identity of its scribe, it was the case of the prosecution that the letter in question was recovered from the place where the dead-bodies were Ikying and it was under a piece of stone. It was stated that it purported to be a letter written by one Rama Pahelwan demanding a ransom of Rs. 20,000/- and taking the responsibility of killing as the ransom was not paid. PW 8, Ram Kripal, has proved the seizure of this letter. It is clear from his evidence that he had put his mark on some paper to denote the seizure of the papers by the police but, according to him, this paper was signed by him three days after the alleged recovery. He also accepted in cross-examination that he was unaware of any recovery of dead-body and no dead-body was recovered in his presence, in fact, he did not know anything beyond the recovery of this letter. According to him, it was a plain paper and not ruled one. PW 3, Rajendra Prasad, spoke about locating the dead-bodies at the spot. No recovery was made in his presence, not even any letter or any axe. He was the person who arranged for sending an information to the police station after verifying the fact of floating/lying of dead bodies at the spot. It is not explained why he was not taken to the spot for the alleged recovery. When we compare the statement of PW 8, with the statement of PW17 on the question of nature of the paper on which the incriminating letter was written, we find that while PW 8 asserted that it was a plain sheet of paper, PW 17 stated that the disputed document was on a ruled paper. We may turn to the statement of the investigating officer (PW15). According to him, the disputed letter, written in pencil, was taken charge of from the possession of the accused persons. This goes counter to the prosecution story that it was recovered from under a piece of stone at the spot. It was alleged that he had arranged for taking specimen writing of Purshottam for obtaining an expert opinion on a comparison of the disputed writing and the specimen writings. The fact of taking specimen writing from Purshottam could have been proved by the officer who had taken the specimen writing but that officer had not been called. Only an official from his office had come to prove the writings and certificates of the magistrate and this witness, PW 20, stated in clear terms that the specimen writings were not taken in his presence. Purshottam was not confronted at all with any question regarding the specimen writings having been given by him, or even concerning the alleged recovery of the letter. The investigating officer had admitted in his cross-examination that his case-diary did not contain any entry touching the recovery of the letter or touching the fact of taking specimen writing. Not only the fact of recovery of the letter is doubtful but also the fact if Purshottam had given the specimen writing which was compared with the disputed writing. The alleged ransom letter may not thus be used against Purshottam or any other accused to bring home the charge against him or them.
30. On the question of recovery of an axe from Purshottam on his alleged statement made to police or of recovery of cycles on the statement of certain other accused persons, the evidence has come through the witnesses of alleged recovery as also through the investigating officer. The investigating officer (PW 15) stated that after the arrest of Mangal, Munna and Bhondu, each had made statements to the police leading to recovery of cycles and after his arrest Purshottam made a statement concerning an axe used in the incident. These cycles were relevant to the present trial for fixing the identity thereof as cycles of one or the other deceased. The cycles had never been put to any test identification parade nor were the same produced in Court and even through the question of recovery on the pointing out of the respective accused persons be believed, the recovery may not lead to the conclusion that these cycles did belong to one deceased or the other and thus the link evidence to connect the recovery with the alleged crime is missing. On the question of statements made by the accused persons to the police, Section 27 makes that much of the statement relevant which is distinctly connected with the recovery, if after the recovery any statement has been made even to the degree of accepting the guilt or to the extent of use of the recovered article, the same may not admissible under Section 27 because only a statement leading to discovery is admissible, otherwise the statement made before the police is throughly inadmissible. This interpretation of law is applicable to the case of recovery of axe from Purshottam. The further cross-examination of investigating officer indicated that the description of the axe allegedly recorvered from Purshottam and as described in the seizure list did not tally with its actual description when shown in Court. Tribhuvan Pal had no doubt spoken of snatching of axes by the miscreants from his and Ram Babu but that statement was not made in the FIR and this fact was disclosed only after the arrest of Bhondu @ Mama. The evidence of Tribhuvan Pal indicates that the axes were sealed after recovery but it is found from the recorded that when the axes were produced in Court they were not under any sealed cover. No doubt, the two axes were sent for chemical examination by the serologist. The report of the serologist indicates that the two axes had sl. Nos. 6 and 7 and the conclusion of his analysis indicates that, amongst other articles blood marks on these two articles were disintegrated. For certain other articles, however, he gave a definite opinion that the blood marks thereon were of human origin. In the absence of the link evidence that the axe allegedly recovered on the pointing out of Purshottam had human blood on it, and on the face of the other evidence, as discussed above, it would be difficult to link these axe as the weapons of assault or to lay any importance on the alleged statement of Purshottam before the police. The cycles and the axes also, therefore, do not lead us to fixing the identity of the culprits.
31. About the materials recovered from the spot, we have already discussed about the incriminating letter. The other materials were personal belongings of the deceased and those did not connect the present accused persons with the alleged murders.
32. We are thus left with the statement of Tribhuvan and MohanLal who claimed to be eye-witnesses of some or other part of the occurrence, it is true that a very heinous crime has been committed and the circumstances also indicate that several persons must have been there to cause the death of 8 persons in such a brutal manner, but the nature of the offence and the number of the deceased may be factors for awarding punishment and not for convicting a particular person in a particular crime. The golden rule of criminal jurisprudence is that it is the prosecution who has to prove the case against each accused beyond all shadow of doubt.
33. The statement of PW 1, Tribhuvan Pal, has been synopsised in the earlier pages of this judgment. He had gone with Ram Babu to the jungle for collection firewood when five miscreants accosted them. He had identified all the present appellants as those who has accosted them and had abducted them and finally released him to facilitate collection of the ransom money. This witness comes to the village, inforned the father of Ram Babu and goes back to the jungle for a serch. He had not named any of the present appellants in his report or before the police officer and the reason thereof was that he was threatened not to disclose the names. He claimed to have known Purshottam from before, and the others as well as associates of Purshottam. Although he had stated in the Court that his axe and that of Ram Babu were snatched away by the miscreants there was no such claim in the FIR His cross-examination indicated that Bhondu, Purri, Munna and Mangal were residents of distant places and have no relation in or near his village. His further admission shows that only after the arrest of the accused persons, he did give their names to the police and although the arrest was not made in his presence, he was present at the police station when the accused persons were brought there. Rather, his statement makes it clear that only after the production of the accused persons in the police station he was called there for the purpose of identification, if we compare the statements of Tribhuvan (PW 1) with that of Ram Bhawan, it is gathered that although Tribhuvan had not named these persons in his report, he had told Ram Bhavan the names of all the appellants. When disclosure was made to Ram Bhawan, the story of threat against disclosure does not stand the test of reason. The Ram Bhawan had accompanied Tribhuvan to the police station and when the report was made, he was there. There should have been a disclosure of the names in the report itself and if Tribhuvan was still hesitant in naming the miscreants, Ram Bhawan who was not threatened and who was not terror stricken should have told the police that these persons were named by Tribhuwan to him. Tribhuwan had stated that the report to police was made after a futile search in the night of the incident but Ram Bhawan who claimed to be with Tribhuvan at the time of the FIR stated in clear terms that a day prior to the making of the FIR the dead-bodies had been recovered. The recovery was undoubtedly made on 1lth June 1993. In that light the FIR could not have been lodged on 10-6-1993.
34. PW 16, MewaLal, although not a witness on the point of abduction or murder, proposed to prove motive behind the alleged incident. A synopsis of his evidence has been given in the earlier pages. He spoke of a quarrel between Purshottam and Purri on the one side and Shyam, Gaya Prasad, Lotun and others as well as himself on the other. The reason for quarrel was that Purshottam sought help of ShyamLal to cross the river as he was being chased by the police and Shyam was reluctant to help. This witness received information about the murder of his brother and was proceeding towards the police station when Matlabi and Mohan informed him about the commission of murders by the present appelants. Matlabi had not been examined in Court. Mohan is PW 19 and his evidence would be analysed next. This witness MewaLal, however, had told that the date of incident was 9th/ 10th June, 1993. he had no idea about the months (according to English calendar) but he simply knew that incident had taken place on the 9th / 10th June. On 10th June itself he was informed by police about the dead-bodies. He identified the dead-bodies before the police. According to him, Mohan and Matlabi had gone to the spot and they had also identified the dead-bodies and had given their names to the police. It is significant to note in the evidence of PW 16, MewaLal, that Mohan and Matalabi were present during inquest of these two dead-bodies. It is unfortunate that despite their presence, they did not disclose to the police as to who had killed them nor MewaLal disclosed to the police then as to who were the killers. Had they disclosed, it would certainly find mention in the inquest report. There is yet another significant admission by MewaLal when he says that inquest reports were signed by him at the police station. This demolishes his claim of reaching the spot and of finding the dead-bodies there and puts a question mark on his claim that on his way to the police station he was told by Mohan and Matlabi about the incident and the names of the assailants.
35. Coming to PW 19, MohanLal, it is gathered that he claimed to be eye-witness and the occurrence took place, according to him, in the night between 9th / 10th of June, 1993. He spoke in details how the victim were taken one by one and killed. He had named all the five appellants and had identified them in Court. His evidence, however, discloses that in fear he and Matlabi fled away towards south. They were chased and they had kept themselves concealed in a ditch which was chest-deep. This ditch was not indicated in the sketch map although the witness claimed to have indicated the ditch to the investigating officer. He also claimed to have shown the path through which the miscreants had come but this path also not shown in the sketch map. When they were hiding in the ditch to save their lives, it would only be normal for them not to raise their heads to see what was happening near the bank of the waters. He had categorically admitted that from before the arrival of the miscreants he and Matlabi kept hiding in that ditch only with the view that the miscreants might not see them. Fishing was being done on the western side of the talab while Mohan and Matlabi were hiding at a place 10 steps of the southern side. It was not a small area covered with water. The witness admitted that Talab spread over an area of 4 to 5 bighas. He claimed that after his successful retreat from the place and roaming here and there for two days, when he had gone to the spot again, the dead bodies were still there. According to the prosecution story recovery was made on the 1 lth June, 1993. This witness had accepted that after fleeing the place of occurrence, he spent two days at Dara Ganj in Allahabad and came to the spot only on the third day i. e. not before 12-6-1993. Still then, he claimed that all writing concerning the dead-bodies (meaning thereby the inquests) were made in his presence. If this claim is correct, then he was there on the 11th itself but he does not claim to be there on the 1 lth. Had he been there on 11th there was no reason why he did not speak to the police then and there about the incident and about the miscreants when the inquest was being conducted. His cross-examination further indicated that the occurrence had taken place in a dark night. We may reconstruct the situation by a bit of mental exercise. The witness and another had run away even before the arrival of the miscreants. They are so panicked that they kept hiding in a chest- deep ditch with the only view that the miscreants may not locate them. The night was dark. Still then, a videographic description of the incident has been given by this witness.
36. From the analysis of the statements of the witnesses (PWs 1, 16 and 19) it cannot be opined that the prosecution has come up with a story free of doubt on the question of identification of the present appellants as the murderers or abductors. Reiterating our views, we may say that the heinousness of the crime may not be a ground to accept a prosecution story concerning involvement of a particular accused, rather a definite doubtless proof is necessary. The same is lacking from the statements of the witnesses and the materials on record. Under these circumstances, we must hold that the prosecution has failed to bring home charge against the five appellants beyond all shadow of doubt and they must get the benefit thereof.
37. In the result, the appeals stand allowed. The conviction and sentence of the five appellants are set aside. They are acquitted. They must be released forthwith unless required to be detained in any other case. The reference is also answered accordingly.