JUDGMENT Imtiyaz Murtaza, J.
1. All the above criminal appeals are filed against the judgment and order dated 23.1.2004 passed by Addl. District & Sessions Judge/Special Judge (S.C./S.T. Act), district Pilibhit and the appellants are convicted and sentenced as follows in various session trials;
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2. Brief facts of the case, mentioned in the first information report lodged by Lalta Prasad son of Devi Ram Lodh, resident of village Mohammadganj Rampura, P.S. Barkhera, District Pilibhit, are that in the last month of June, election of Pradhan was held. The wife of Ram Swaroop son of Hori Lal had contested the election, but she was defeated. Ram Swaroop threatened them to face the consequences of her defeat. On 10.3.2001, at about 5.00 P.M. he, alongwith Hem Raj, Moti Ram Kundan, Shiv Charan Lal son of Hari Shankar and his father Devi Ram were sitting at his crusher. His sister-in-laws Atar Kali wife of Hem Raj, Nanhi Devi, his wife, his mother, Kishori Devi and his niece Km. Leelawati Devi were also present there in connection with the festival of Holi. Chunni Lal, MaHendra Pal, Ved Prasad sons of Ram Chand, Ganga Ram son of Pooran Lal, Shankar Lal son of Hardwari Lal also reached there. As they were busy incelebrating the function, Ram Swaroop son of Hori Lal armed with licensed gun, Jagan Lal with his licensed gun, Ram Bharosey carrying Pauniya, Uma Shankar, Tulsi and Narain carrying Pauniya, Ashok Kumar, Kunwar Sen, Lala Ram and Ram Swaroop son of Dal Chand armed with country made pistols, Pati Ram, Hori Lal, Om Prakash, Ram Chandra, Bhagwan Swaroop, Lalta Prasad, Bhagirath, Budhsen, Baljeet and Nanhey Lal armed with b Banka , Dal Chand armed with Suja, Shree Krishna, Mahesh, Dharmveer, Lalman, Chetram, Kalicharan, Gaya Deen, Nanhoo Lal, Kanhai Lal, Nokhey Lal, Ram Dayal "and Om Prakash armed with Lathis reached at his crusher to kill them, Ram Swaroop exhorted to kill them. They started running to save their lives. The accused started firing, chasing and assaulting them. In order to save themselves Mahendra Pal, Hem Raj, Chunni Lal and Moti Ram entered in a Kothari. Ladies started running and shouting and some persons entered in the fields. Ram Swaroop and Pati Ram caused injuries to him by Banka and Lathi and he ran in the sugarcane crop to save himself. He saw that the Kothari was surrounded by the accused and Maya Devi, Amiriti Devi and wife of Uma Shankar poured kerosene oil on the Khaprait of the Kothari. Ram Swaroop set on fire the Kothari from the front and Uma Shankar had set on fire from the back. It is further alleged that when Hem Raj, Chunni Lal and Mahendra Pal tried to come out of the Kothari, the accused started firing and killed them. Moti Ram tried to jump from the roof but he was shot by Ram Swaroop son of Hori Lal and he fell down in the fire of Kothari. The accused were extending threats that if any one will come to save them, he will also be killed on the spot. On account of the fear of the accused, the villagers had shut their doors and the public life was disturbed. The accused thought that all of them are killed, they ran away brandishing their weapons. After sometimes he went near the Kothari where he found.that Mahendra Pal was lying dead in a drain and Moti Ram was lying in the Kothari in burnt condition. The dead bodies of Hem Raj and Chunni Lal were ' found in the fields. Kundan Lal. Devi Ram and Atar Kali could not be found. He along with Hari Shankar and Ganga Ram came to the police station for lodging the report. The report was registered at the police - station by H.M. 25 Shyam Lal at 8.10 P.M. on 10.3.2001.
3. After the registration of the case, S.H.O. P.K. Sharma started investigation. He recorded the statement of Lalta Prasad, informant, at the police station and rushed to the place of the occurrence. He recorded the statement of Shiv Charan there and prepared the site plan, which is Ext. Ka. 104. R.A. Tiwari, S.I. prepared the inquest reports of the deceased on his dictation. Inquest reports of Moti Ram, Mahendra Pal, Hem Raj and Chunni Lal are Exts. Ka. 7, Ka. 23, Ka. 29 and Ka. 35 respectively. He had also prepared the relevant papers for conducting the post-mortems of the deceased. He collected the blood stained and pLaln earth. Its recovery memos are Exts. Ka. 105 to Ka. 108. He also recovered 3 empty cartridges, two of 12 bore and one of 315 bore and prepared its recovery memo which is Ext. Ka. 109. On 11.3.2001 he recorded the statements of Ved Prakash, Ram Vilas, Sukh Lal, Ganga Ram and Tulsi Ram. Thereafter tjp statements of Devi Ram, Kishori Devi and Atar Kali were recorded and they were sent for medical examination through constable Prakash Veer. He also recorded the statements of Smt. Nanhee Devi wife of Lalta Prasad and Nanhee Devi wife of Kundan Lal. He had arrested the accused Dharmveer, Mahesh and Smt. Maya Devi. He had also arrested seven accused persons and recovered weapons from their possession. One SBBL gun No. 4024 and 3 live cartridges of 12 bore were recovered from the possession of Jagan Lal. A country made pistol and 2 live cartridges of 12 bore were recovered from the possession of Narain. One country made pistol and two live cartridges of 12 bore were recovered from the possession of Ram Bharose. Four Bankas were recovered from the possession of Budhsen, Bhagirath, Baljeet and Nanhey Lal. He prepared its recovery memo which is Ext. Ka. 14. Cases Under Arms Act were registered against them. On 13.3.2001 the dead body of Moti Ram was recovered and then it was revealed that on 10.3.2001 the dead body of Kundan Lal was wrongly identified as dead body of Moti Ram. The dead body of Moti Ram was identified by the villagers and its inquest report was prepared by S.I. Suremlra Singh. He had also prepared the site plan of the place where the dead body of Moti Ram was recovered which is Ext. Ka.110. On 17.3.2001 he arrested 7 accused persons and recovered weapons from their possession. Ballams were recovered from the possession of Lalman, Kali Charan and Gaya Deen and Lathis were recovered from the possession of Nanhoo Lal, Kanhai Lal, Nokhey Lal and Ram Bahadur. Its recovery memo is Ext. Ka. 111. Cases Under Arms Act were registered against Lalman| Kali Charan and Gaya Deen. On 18.3.2001 ten accused persons were arrested. A country made gun of 12 bore No. 4236 and three live cartridges were recovered from the possession of RamSwaroop son of Hori Lal. One 12 bore country made Pauniya and one live cartridge were recovered from the possession of Uma Shankar. One 12 bore country made pistol and one live cartridge were recovered from the possession of Tulsi and one 315 bore country made pistol and'one 315 bore live cartridges Were recovered from the possession of Ashok Kumar. Bankas were recovered from the possession of Pati Ram, Ram Chandra, Bhagwat Swaroop and Lalta Prasad and Lathis were recovered from the possession of Chet Ram and Om Prakash son of Hira Lal. Its recovery memo is Ext. Ka. 41. A case Under Section 30 Arms Act against Hori Lal and a case Under Section 25/27 Arms Act was registered against Ram Swaroop son of Hori Lal. Cases Under Section 25 Arms Act against Uma Shankar, Tulsi and Ashok and cases Under Section 4/25 Arms Act were registered against Pati Ram, Ram Chandra, Bhagwat Swaroop and Lalta Prasad. On 20.3.2001 accused Lala Ram was arrested. Ram Swaroop son of,Dal Chand, Kunwar Sen, Shree Krishna and Om Prakash son of Mansha Ram hadi surrendered in court. On 29.3.2001 Ram Swaroop son.of Dal Chand, Kunwar Sen and Shree Krishna were given in police custody. Ram Swaroop son of Dal Chand got recovered one country made pistol of 12 bore, Its recovery memo is Ext. Ka. 115. Kunwar Sen got recovered one country made pistol 315 bore. Its recovery memo is Ext. Ka. 116. Shree Krishna got recovered a Ballam . Its recovery, memo is Ext. Ka. 117
4. After conclusion of the investigation the investigating officer submitted charge-sheet against the accused persons which is Ext. Ka. 120.
5. After the submission of the charge sheet the case was committed to the court of sessions. The prosecution in order to prove its case examined 15 witnesses. P.W.I Lalta Prasad, P.W.2 Km. Leelawati, P.W.3 Ved Prakash, 17. P.W.4 Hari Shankar are eyewitnesses. P.W.5 Dr A.P. Sharma and 21. P.W.6 Dr. Vimal Srivastava had conducted post mortem examinations and P.W.7 Dr. Sone had medically examined the injured. P.W. 8 Con. Son Pal, Ram Adhar Tewari, P:W.10 S.K. Singh ASI, P.W.11 Con. Ramesh Chandra Misra, P.W. 12 H.C. Shyam Lal, P.W. 13 S.I V.L. Vishwakarma, P.W.14 S.H.O. P:K.Sharma and P.W.15 S.I. G.L. Pawar
6. P.W.I Lalta Prasad deposed that he recognizes all the accused and all of them are resident of his village. Accused Gaya Deen had died and the case of Dharamvir was transferred to the juvenile court. All the accused are closely related to each other. About two years and 3-4 months back at about 5 P.M., his brother Kundan Lal, Moti Ram, Shiv Charan, Hem Raj father Devi Ram son Hari Shankar, Atar Kali wife of Hem Raj, Nanhi Devi wife of Kundan Lal, his wife Nanhi Devi, mother Kishori j Devi, niece Leelawati were sitting Under the chappar. They were celebrating Holi festival. At the same time Chunni Lal, Mahendra Pal, Ved Prakash, Shankar and Ganga Ram of the village joined the celebration. All the accused reached there. Ram Swaroop son of Hori Lal was armed with licensed gun, Jagan Lal s/o Ram Charan "was armed with licensed gun, Uma Shankar, Tulsi Ram, Narain and Ram Bharosey were armed with Pauniya. Ashok, Kumar, Kunwar Sen, Lala Ram, Ram Swaroop s/o Dal Chand were carrying pistols. Pati Ram, Hori Lal, Om Prakash s/o Mansha Ram, Lalta Prasad, Ram Prasad s/o Kandhai Lal, Ram Chaider, Bhagwan Swaroop, Bhagirath, Nanhey Lal, Bal Jeet, Budhsen were armed with Banka. Dalchand was armed With Sooja, Sri Krishan, Mahesh, Dharmveer, Laal Man, Chet Ram, Kali Charan, Ram Bahadur, Nanhu Lal, Kandhai Lal, Nokhey Lal, Om Prakash were carrying lathis and ballams. The three ladies accused were carrying kerosene oil container.
7. The accused Ram Swaroop exhorted his companions to surround and kill all of them. All' the accused started assaulting with their respective weapons. Ram Swaroop s/o Hori Lal, Narain and Tulsi assaulted Kundan Lal with Gun and Pauniya. His brothers Kundan Lal, Moti Ram, Hem Raj and Chunni Lal, Mahendra Pal and Ganga Ram of his village entered into a kothari and closed it from inside. The ladies ran into the fields
8. Ram Swaroop s/o Kandhai Lal, Pati Ram, Ram Chander, Bhagwan Swaroop, Lal Man and Dharamveer caused him injuries by lathi and Banka. He ran in order to save his life and entered into a sugarcane field.
9. The accused were cutting the doors of the kothari by banka but having failed they exhorted to set it on fire. Suneeta Devi, Maya Devi and Imarti Devi brought the kerosene oil in a can and poured the same on the Chappar and Tatiya and Ram Swaroop s/o Hori Lal and Uma Shankar set on fire the Kothari from the front and back side respectively. The deceased persons in order to save their lives ran out of the kothari but they were assaulted by Lathi, Banka, Sooja, Ballam, Tamancha, Pauniya and Gun and thereby killed.
10. The accused were extending threats that if any one will come to save them he will also be killed. The accused believing all of them dead went away brandishing their weapons.
11. He further deposed that Kundan Lal, Moti Ram and Hemraj were killed and he, his niece Leelawati, son Hari Shankar, Atarkali wife of HemRaj, Ganga Ram, his father Devi Ram, his mother Kishori Devi had received injuries. Those who were killed included his three brothers namely Kundan Lal, Moti Ram, Hem Raj and Chunni Lal and Mahendra Pal of the village. He came out of the sugarcane field when he sensed that some persons are coming from the side of Daulatpur, by the time accused had gone away after committing the crime. He saw that the dead body of Hem Raj in the field of Lahi, the dead body of Chunni Lal was lying in a vacant field. The dead body of Mahendra Pal was lying in a drain situated in the south of the Kothari. One dead body was lying inside the Kothari - which he wrongly identified of his brother Moti Lal, was actually of Kundan Lal. On account of this mistake the post mortem on the dead body of Kundan Lal was held in the name of Moti Lal. After searching his son Hari Shankar, niece Leelawati and Gangaram were met in the Chappar of Tractor. Thereafter his brothers Shivcharan and Ved Prakash also met him. He could not find his father Devi Ram, mother Kishori Devi, Atar Kali wife of Mem Raj and Kundan Lal.
12. On his dictation Sukh Lal s/o Nand Lal prepared the report and lodged it at the police station which is Ex. Ka-1. After the registration of the report he was sent to hospital. He alongwith other injured namely, Ganga Ram, Harishankar and Leelawati were medically. examined. Harishankar and Leelawati were referred to Pilibhit and they were admitted there. Next day his father Devi Ram and Leelawati were also medically examined in Barkhera Hospital and thereafter they were also referred to Pilibhit Hospital. They were also admitted there for treatment.
13. After three-four days a dead body was recovered in the grass near the place of Lala Ram s/o Moti. The dead body was lying Under a Tatiya, This dead body was of Moti Ram. Now they realised that the dead body of Kundan was wrongly identified by them. He had given an application to the police regarding recovery of dead body of Moti Ram. This application is Ex. Ka-2.
14. P.W.2 Km. Leelawati deposed that about three years back they were celebrating Holi at their crusher. Her five maternal uncles namely Lalta Prasad, Moti Ram, Kundan Lal, Shiv Charan Lal and Hem Raj were all present along with other persons. Among ladies Atarkali, Nanhi Devi wife of Kundan Lal, Nanhi Devi wife of Lalta Prasad, Hari Shankar, Devi Ram, her maternal grand father and grand mother Kishori Devi were present to celebrate the Holi. At about 5.30 p.m. several persons of the village came including Ram Swaroop, Jagan Lal. Tulsiram, Narain Lal and Umashankar. Ram Swaroop, Jagan Lal were armed with licensed guns, Uitia Shankar, Tulsi Ram, Narain, Ram Bharosey were carrying Pauniya, Ashok Kumar, Kunwar Sen, Lala Ram, Ram Swaroop s/o Dalchand were armed with pistols, Ram Chandra Pati Ram, Bhagwat Swaroop, Lalta Prasad, Om Prakash s/o Mansha Ram, Budh Sen, Nanhey, Baljeet, Bhageerath and Hori Lal were carrying Banka. Om Prakash s/o Heera Lal, Mahesh, Gaya Deen, Pati Ram, Kalicharan, Ram Bahadur,Nokhey, Nanhoo, Kandhai, Lalman and Dharamveer were carrying Lathi. Ram Krjshan was armed with Ballam and Dal Chand was armed with Sooja. Imarti Devi, Maya Devi and Suneeta were carrying kerosene oil cane. Ram Swaroop exhorted to kill all. Narain Lal fired at her uncle Kundan Lal and he died. Tulsi Ram, Uma Shankar fired four shots at Kundan Lal. Ram Swaroop has, also fired. Kundan Lal was taken, inside the kothari and accused started cutting the door and thereafter Ram Swaroop and Uma Shankar set on fire the Kothari. The person inside the Kothari started running away out the accused caused injuries to Moti Ram, Kundan Lal, Hem Raj, Chunni and Mahendra. Five persons had lost their lives. She had also received Banka injuries. Bhagwat Swaroop and Lal Man had assaulted her with Banka which had cut her hand. She, Lalta Prasad, Atar Kali, Hari Shankar, Devi Ram Kishori Devi and Ganga Ram had received injuries. After hearing the voice of Lalta Prasad she came out and saw the dead bodies of the deceased. She had gone to the police station and thereafter she was sent to Barkhera hospital and from there she was sent to Pilibhit.
15. P.W.3 Ved Prakash deposed that about two years back at about 5 p.m. he had gone to celebrate Holi at the crusher of Devi Ram. He is father of the informant Lalta Prasad. He had gone there along with Chunni Lal, Mahendra Pal and Shankar Lal. Devi Ram, Kishori Devi, Lalta Prasad, Moti Ram, Kundan Lal, Shiv Charan Lal, Hem Raj, Hari Shankar, Leelawati, Atar Kali, Nanhi Devi and Ganga Ram of the village were also present there. At that time when they were celebrating Holi, a crowd came from the side of.the village. Ram Swaroop s/o Hori Lal armed with licensed gun of his father, Jagan had a licensed gun, Uma Shankar, Tulsi, Narain, Ram Bharosey carried Pauniya, Ram Swaroop s/o Dal Chand, Kunwar Sen, Lala Ram, Ashok Kumar was armed with a pistol, Hori Lal, Lalta Prasad Bhagirath, Bhagwat Swaroop, Pati Ram, Ram Chandra and Ram Swaroop s/o Kandhai, Om Prakash s/o Mansha Ram, Budh Sen, Baljeet and Nanhey were armed with Banka. On the exhortation of Ram Swaroop s/o Hori Lal to kill all of them, all the accused started assaulting them. Tulsi and Narain fired at Kundan Lal. He fell near the door of the Kothari. In the mean trcne Tulsi fired at him and he hide himself behind the 'Karhai' of Kolhu'. Thereafter he went inside the sugarcane crop of Dal Chand. He saw from the sugarcane crop that the accused had surrounded the Kothari and had tried to break the door of the Kothari with Banka. In the mean time Imarti Devi, Sunita Devi and Maya Devi sprinkled kerosene oil on the kothari. Ram Swaroop from the front and Uma Shankar from the back set on fire the Kothari. The fire spread from all the sides. His brother came out of the Kothari, he was shot dead in the field of Lahi and assaulted by Banka. At the same time Mahendra Pal came out of the Kothari from the south-east side and he was also shot at and he fell down in the drain and was assaulted by Banka. He had witnessed the occurrence from the sugarcane field. Ram Swaroop was exhorting other accused persons to kill all of them. In order to save his life, he ran from the sugarcane field towards the river and from there to Daulatpur. He remained there for three four hours and then he returned to the place of occurrence. He saw Chunnilaland Hemraj were lying dead. He saw all the deceased. Four dead bodies were lying there. One unrecognised dead body was lying inside the Kothari. In his opinion the dead body was of either Moti Ram or Kundan. The policeltad arrived between 9 and 10 p.m. He had signed the inquest reports, which were prepared in his presence.
16. P.W.4 Hari Shankar deposed that about two years back at about 5 p.m., he was sitting at the crusher of his uncle for celebrating Holi. Devi Ram, Kishori Devi, Lalta Prasad, Kundan Lal, Moti Ram, Shiv Charan Lal, Hem Raj, his mother Nanhi Devi, aunt Nanhi Devi, Atar Kali, cousin Leelawati and Ved Prakash, Chunni Lal, Mahendra Pal, Ganga Ram and Shankar Lal of the village were also present there. At that time accused reached there, Ram Swaroop and Jagan Lal were armed with guns, Uma Shankar, Tulsi Ram, Ram Bliarosey, Narain Lal were carrying Pauniya, Ashok, Kunwar Sen, Lala Ram, Ram Swaroop s/o Dal Chand, were armed with pistols, Ram Chandra, Pati Ram, Bhagwat Saran, Lalta Prasad, Om Prakash s/o Mansha Ram, Ram Swaroop s/o Kandhai Lal, Budh sen, Nanhey Lal, Baljeet, Hori Lal, Bhagirath had Bankas, Sri Kishan was armed with Ballam, Dal Chand was armed with Sooja, Om prakash s/o Heera Lal, Mahesh, Ram Bahadur, Kali Charan, Chet Ram, Gayadeen Kandhai Lal, Nanhu Lal, Lal Man, Dharamveer, Nokhey Lal had lathis. Maya Devi, Suneeta Devi, Amarti Devi had kerosene oil. The accused started assaulting. Firstly Narain shot Kundan Lal. Uma Shankar and Tulsi had also fired shot at Kundan Lal. Moti Ram was shot by Ram Bharosey and Ram Swaroop. Accused had also shot Hemraj. Chunni Lal and Mahendra Pal were also shot. They were also assaulted by banka. He sustained lathi and banka injuries. The?accused had tried to break the door of the Kothari with banka. Later on they set on fire the Kothafi. Those who were coming out of the kothari were assaulted with firearm and Banka. He was lying injured and witnessing the occurrence. Apart from him Leelawati, Lalta Prasad, Atarkali, Devi Ram, Kishori Devi, Ganga Ram had also received injuries. After the occurrence he along with other injured went Barkhera. His father had prepared the report near the Gandhi Ashram. The report was scribed by Sukhlal.
17. P.W.5 Dr. A.P. Sharma conducted the post mortem examination on the dead body of Moti Ram on 14.3.2001. He found the following ante-mortem, injuries on the person of the deceased:
1. Gun shot entry wound 1 1/2 cm in diameter present just below lower angle of Rt scapula. No tattooing or scorching present. It is connecting with exit wound present 5 cm lateral to right nipple on Rt side of chest. 4th and 5th ribs found fractured. Exit wound "3 cm x 2 1/2 cm margins of entry wound are inverted & exit wound are averted. It is directing upwards interiorly.
2. Neck cut at the level of cricoid cartilage. The incised wound is 14 cm. x 3 cm. x trachea deep.
3. I.W. 3 cm x 1 cm. present on Rt. shoulder.
4. Nose found cut. I.W. 3 cm x 3 cm.
5. I.W. 9 cm x 2 cm x bone deep present on Rt. parietal region 3 cm above Rt ear.
6. Upper jaw found fractured at the level of canine tooth on Right side.
7. Both eye balls are not present.
18. In the opinion of the doctor, the cause of death is shock, haemorrhage, asphyxia as a result of ante mortem injuries
19. P.W. 6 Dr. Vimal Srivastava conducted the Post-mortem on the dead body of Devi Ram on 11.3.2001. He found following antemortem injuries on the person of the deceased :
1. Whole body has burn injuries from grade two to grade six (bones are also burnt at places): Body is burnt & charred at most of places. There is loss of Rt. hand from below wrist & Rt. foot below ankle.
2. There is a 8 cm x 6 cm x abdominal cavity deep. Lacerated, wound on left iliac fosse 4 cm above left groin. Few loops of small intestine are coming out from it. Margins of wound are irregular, charred & even.
20. In the opinion of the doctor, the cause of death is shock & asphyxia due to entrance burn injuries.
21. He had conducted the Post-mortem off the dead body of Hem Raj on 11.3.2001. He found following ante-mortem injuries on the person of the deceased :
1. Incised wound 23 cm x 5 cm x bone deep present just below chin on front & both sides of neck. The vertebral column has completely cut horizontally at the level of cervical 3rd vertebra, spinal cord also cut. The (sic) jugular blood vessels on both sides are cut. The pharynx is also cut horizontally just above the level of Epicotyls, muscle & skin at the back of neck are intact.
2. Incised wound 20 cm x 5 cm x bone deep level vertebral column. 7.5 cm below injury No. 1. The larynx at lower part & pharynx at lower most part & carotid & jugular blood, vessels are also cut this level.
3. Incised wound 11 cm x 1 cm x bone deep present obliquely fore head from inner end of end of left eye brow above on do head.
4. Incised wound 4 cm x.5 cm x muscle deep over left eye brow.
5. Lacerated wound 1.5 cm x.5 cm x bone deep on left side cheek 3 cm below outer angle of left eye.
6. Multiple abrasion in an area of 26 cm x 10 cm on lower part of back just above level of upper border of hip bones.
7. Fire arm wound of injury 3 cm x 3 cm x chest cavity deep 7 cm below supra sterna notch on Right border of sterna bone margin inverted charred with blackening.
22. In the opinion of the doctor, the cause of death is haemorrhage I & shock as result of ante mortem injuries.
23. He conducted the post-mortem of the dead body of Mahendra Pal on U.3.2001. He found following ante-mortem injuries on the person of the deceased :
1. Incised wound 7 cm x 1 cm x bone deep present on the top I of head 15 cm above left ear.
2. Incised wound 6 cm x 1 cm x bone deep present on the right side back of head 11 cm behind right ear. Bone is superficial
3. Incised wound 2.5 cm x.5 cm x bone deep present on the root of midline of back of neck..
4. Incised wound 8 cm x 4 cm x bone deep wound present horizontally on front & both sides of neck 7 cm below chin. Underlying larynx is cut across just above the level of vocal lords. Both sides Jugular & carotid vessels are also cut. The 4th cranial vertebra is superficially cut.
5. Incised wound 6 cm x.5 cm x laryngeal cavity is present on front of midline of neck parallel to & 1 cm below injury No. (4), The larynx is cut just below level of vocal lords.
6. Lacerated wound 1 cm x.5 cm x bone deep on front of left leg 20 cm above ankle joint.
7. Multiple abrasion on front & back aspect of whole wrist & hand of Rt side 18 cm x 10 cm on both front & back sides.
8. Multiple abrasion in an area of 18 cm x 10 cm on both sides of left wrist & left hand.
24. In the opinion of the doctor, the cause of death is haemorrhage & shock as a result of ante mortem injuries.
25. He had also conducted the post-mortem of the body of Chunni Lal on 11.3.2001. He found following ante-mortem injuries on the person of the deceased :
1. Lacerated wound 3 cm x 1 cm x bone deep present just in front & above upper part of right. This wound is surrounded by an area of contusion 6 cm x 6 cm in size.
2. Lacerated wound 1 cm x.5 cm x scalp deep present on back of right side head 7 cm behind & above right ear.
26. In the opinion of the doctor, the cause and manner of death is coma as a result or ante mortem injuries.
27. He had conducted the Post-mortem on the dead body of Moti Ram on 14.3.2001, Me found the 'following ante-mortem injuries on the person of the deceased :
1. Gun shot entry wound 1 1/2 cm in diameter present just below lower angle of Rt scapula. No tattooing or scorching present. It is connecting with exit wound, present 5 cm lateral to right nipple on Rt side of chest. 4th and 5th ribs found " fractured. Rxit wound 3 cm x 2 1/2 cm margins of entry wound are inverted & exit wound are averted. It is directing upwards interiorly.
2. Neck cut at the level of cricoid cartilage. The incised wound is 14 cm. x 3 cm. x trachea deep.
3. I.W 3 cm x 1 cm. present: on Rt. shoulder.
4 Nose found cut. I.W. 3 cm x 3 cm.
5 I.W. 9 cm x 2 cm x bone deep present on Rt. parietal region 3 cm above Rt ear.
6 Upper jaw found fractured at the level of canine tooth on Right side.
7. Both eyeballs are not present.
28. In the opinion of the doctor, the cause of death is shock, haemorrhage asphyxia as a result of ante mortem injuries.
29. P.W.7 Dr. R.S. Sone, Medical Officer, Incharge, P.H.C. Barkhera, district Pilibhit, had medically examined all the injured..
30. He had medically examined Lalta Prasad at about 9.30 P.M. on 10.3.2001 and noted the following injuries:
1. Incised wound 4.2 cm x 2 cm x scalp deep on the left side head 4.5 cm behind the left ear. Wound directed above downward & bleeding present including the wound. |
2. Incised wound 2.8 cm x.2 cm x skin deep on the left! side back 8.5 above from left ear pinna. Wound directed above downward &: bleeding present including the wound.
3. Multiple abrasion in an area of 24 cm x 8 cm on the back of Rt. scapular region extending toward Rt side of bull of chest.
4. Abrasion 11 cm x.2 cm on the Rt side abdomen & lumber region, 8.5 cm above from iliac crost.
5. Abraded contusion 9 cm x 4 cm on the back of left shoulder, colour red.
6. Abrasion 5 cm x.2 cm on the dorsum of Rt foot 8 cm below from Right ankle.
31. All the injuries are simple in nature except injury No. 5 which was kept Under observation and x-ray was advised. The duration- of -injuries is fresh.
32. He examined Km. Leelawati on 10.3.2001 at 10.10 P.M.
33. He had noted following injuries:
1. Incised wound 10 cm x 6 cm x bone deep on the back of left forearm 3.5 cm above from left wrist. Wound directed back to forward. Bleeding present Including the wound.
2. Incised wound 1.5 cm x.3 cm x muscle deep on the palmer aspect of Rt. hand at the base of ring finger. Wound directed above downward bleeding present including the wound.
34. Injury No. 1 was kept Under observation and advised x-ray. The duration of injuries is fresh.
35. He had examined Hari Shankar at 10.45 P.M. on 10.3,2001. He huted following injuries:
1. Incised wound 10 cm x 3 cm x bone deep the Rt. side It face & back of Rt ear cutting the ear pinna in upper part of it. Wound directed from behind &. above downwards obliquely. Bleeding present including the wound.
36. The injury was kept Under observation and advised x-ray and the duration of injury is fresh.
37. He had examined Ganga Ram at 11.50 P.M| on 10.3.2001 and noted following injuries:
1. Contusion 7 cm x 2 cm on the top of left shoulder colour red.
2. Multiple abrasion in an area of 4 cm x 2 cm on the anterior lateral aspect of left upper arm 8 cm below from shoulder.
3. Contusion with swelling 7 cm x 3 cm on the back of left hand joint above wrist. Colour red.
38. The injuries are simple in nature except injury No. 3 which was kept Under observation and advised x-ray. The duration of injuries is fresh.
39. Devi Ram, injured, was examined by the same doctor at 9.55 A.M. on 11.3.2001. The doctor has noted down the following injuries:
1. Abrasion 1.5 cm x.5 cm on the back of left forearm 7.5 cm above from left wrist.
2. Abrasion 3 cm x 2 cm on the part of knee joint;
3. Abraded contusion 8 cm x 6 cm on the part of Rt. knee. Colour red.
4. Multiple abrasion in an area of 4.5 cm x 3 cm on the back of left let 10 cm behind left popletal
5. Abrasion 1.5 cm x 1 cm on the back of Rt let 4 below from Rt. Popletal fosse.
40. The injuries are simple-in nature except injury No. 3 which was kept Under observation and.advised x-ray. The duration is half day old.
41. Smt Kishori Devi. injured, was examined by the same doctor at 10.20 A.M. on 11.3.2001. The doctor has noted down the following injurious:
1. Contusion 11 cm x 2 cm on the back of inner lumber region on both side. Colour red.
2. Abrasion on 3 cm x 2 cm on the front of Rt. leg just below knee.
3. Contusion 2.5 cm x 1 cm on the dorsum of left foot just below well between IV & V toe, colour red.
42. All the injuries are simple in nature. The duration is half day old:
43. Smt. Atar Kali, injured, was examined by the same doctor at 10.35 P.M. on 11.3.2001, The doctor has noted down the following injuries:
1. Incised wound 5 cm x.5 cm x skin deep on the left side back extending up to back of head 5 cm below & behind the left car. Blood clot present wound directed back to forward slightly obliquely.
2. Contusion 2.5 cm x 2 cm on the back of middle of head. Colour red.
44. The injuries are simple in nature and duration is half day old.
45. P.W.8 is Con. Son Pal and he was posted as constable clerk at P.S. Barkhera. He stated that on 22.12.01 he had brought Ram Swaroop along with one Banka. He had prepared the chik F.I.R. Under Section 25 Arms Act. The chik FIR is Ex. Ka. 15] and G.D. entry is Ext. Ka. 16
46. P.W. 9 is S.I. Ram Adhar Tiwari. On 11.3.2001 he had accompanied S.H.O., P.K. Sharma and other police constables for searching the accused persons of the case. They had arrested 7 accused persons at 10.30 P.M. in village Mohd. Ganj Rampura. One of them had disclosed his name as Jagan Lal son of Manohar Lal. He had one licensed factory made 12 bore gun No. 4024 and 3 cartridges. Second accused disclosed his name as Narain Lal sori of Midhai Lal and a Poniya gun of 12 bore and one live cartridges were recovered from his possession. Third accused disclosed his name as, Ram Bharosey son of Ram Prasad and one country made pistol of 12 bore and 2 live cartridges were recovered from his possession. Fourth accused disclosed his name as Budh Sen son of Bihati Lal and a blood stained Banka was recovered from his possession. Fifth accused was Bhagitaih son of Manohar Lal and a Banka was recovered from his possession Sixth accused was Bajjeet son of Jagan Lal and a Banka was, recovered from his possession. Seventh accused was Nanhey Lal son of Ram Bharesey and Banka was recovered from his possession. All the recovered weapons were sealed and recovery memo Ext. Ka. 40 was prepared. On 12.3.2001 at 1.15 A.M. cases Under Section 25 Arms Act were registered against Narain, Ram Bharosey, Budh Sen, Bhagirath, Baljeet and Nanhey Lal. A case Under Section 30 Arms Act was registered against Jagan Lal. On 18.3.2001, ten accused were arrested. One of them is Ram Swaroop son of Hori Lal and a licensed factory made 12 bore gun No. 4236 and 3 live cartridges were recovered from his possession. Second accused disclosed his name as Uma Shankar and a Poniya and 4 live cartridges of 12 bore were recovered from his possession. Third accused disclosed his name as Tulsi and a country made pistol 12 bore and one 12 bore cartridge were recovered from his possession. Fourth accused disclosed his name as Ashok Kumar and one country made pistol 315 bore and one live cartridge of 315 bore were recovered from his possession. Fifth accused disclosed his name as Pati Ram and a Banka was recovered from his possession. Sixth accused-was Ram Chandra and a Banka was recovered from his possession. Seventh accused was Bhagwat Swaroop and a Banka was recovered from his possession. Eighth accused was Lalta prasad and a Banka was recovered from his possession: Ninth accused was Chet Rain and a Lathi was recovered from his possession. Tenth accused was Om Prakash and a Lathi was recovered from his possession. Recovery memo of the recovered weapons was prepared which is Ext. Ka. 41. He further deposed that Crime Nos. 106, 107, 108 of 2001 was handed over to him for the investigation. He had prepared the site plan which is Ext. Ka. 42. He had filed charge sheet in crime No. 106 of 2001 against Lal Mani which is Ext. Ka. 43. He had also submitted charge sheet against Kali Charan which is Ext. Ka. 44.
47. P.W. 10, S.I., Surendra Kumar Singh deposed that in the year 2001 he was posted as Sub Inspector at P.S. Barkhera. On 13.3.2001 he had prepared the inquest memo on the dead body of Moti Ram. The inquest report is Ext. Ka. 45. He had prepared the challan lash, Khaka I,ash, letter to C.M.O. and letter to R.I. and sample seal which are -Ext. Kas. 46 to 50. He had handed over the dead body of Moti Ram to constable Mahesh Pal and Ram Sanehi. He had investigated the Case Crime Nos. 97, 98, 99, 100, 101, 102 and 103 of 2001 against Jagan Lal And Ors.. He had recorded the statements and prepared the site plan which is Ext. Ka. 51 and he had also filed charge sheet against the accused persons. He had submitted the charge shed in Case Crime No. 97 of 2001 Under Section 30 Arms Act against Jagah Lal which is Ext. Ka. 52. In Case Crime No. 100 of 2001 Under Section 4/25 Arms Act he had submitted charge sheet against Budh Sen which is Ext. Ka. 53. In Case Crime No. 101 of 2001 Under Section 4/25 Arms Act he had submitted charge sheet against Bhagirath which is Ext. Ka. 54. In Case Crime No. 102 of 20(11 Under Section 4/25 Arms Act he had submitted charge sheet against Baljeet which is Ext. Ka. 55. In Case Crime No. 103 of 2001 Under Section 4/25 Arms Act he had submitted charge sheet against Nanhev l,al which is Ext. Ka,. 56. District Magistrate concerned had also sanctioned for the prosecution against Narain Lal and Ram Bharosey which is Ext. Ka. 58. He had submitted charge sheet against Narain Under Section 25 Arms Act in Case Crime No. 98 of 2001 which is Ext. Ka. 59. He had submitted charge sheet against.Ram Bharosey Under Section 25 Arms Act in Case Crime No. 99 of 2001 which is Ext. Ka. 60. He had also investigated Case Crime No. 112 of 2001 and 120 of 2001. He had recorded the statements of the witnesses and prepared site plan which is Ext. Ka. 61 and after investigation he had submitted charge sheet against Pati Ram Under Section 4/25 Arms Act in Case Crime No. 116 of 2001 which is Ext. Ka. 62. He had submitted charge sheet, Ext. Ka. 63,against Ram Chandra in Case Crime No. 117 of 2001. He had also submitted charge sheet, Ext. Ka. 64, against Bhagwat Swaroop in Case Crime No. 118 of 2001 Under Section 4/25 Arms Act. In Case Crime No. 119 of 2001 Under Section 4/25 Anns Act he had submitted charge sheet against Lalta Prasad which is Ext. Ka. 65. He had also submitted charge sheet, Ext. Ka. 66, against Mori Lal in Case Crime No. 120 of 2001 Under Section 30 Arms Act. He had also obtained sanction for the prosecution against Ram Swaroop son of Hori Lal, Uma Shankar, Tulsi and Ashok which are Exts. Ka. 67, 68, 69 and 70 respectively. He had submitted charge sheet against Ram Swaroop, Uma Shankar, Tulsi and Ashok Kumar which are Exts. Ka. 71, 72, 73 and 74 respectively. He was entrusted with the investigation of Case Crime No. 147 of 2001 Under Section 25 Arms Act (State v. Ram Swaroop). He had prepared site plan which is Ext. Ka. 75. He had recorded the statement and obtained sanction for the prosecution which is Ext. Ka. 76 and submitted charge sheet against Ram Swaroop which is Ext. Ka. 77. He had also investigated Case Crime Nos. 148 and 149 of 2001 against Kunwar Sen and Shree Krishna. He had prepared site plan which are Exts. Ka. 78 and 79. He had obtained sanction for the prosecution by the District Magistrate against Kunwar Sen which is Ext. Ka. 80 and a charge sheet was submitted against him which is Ext. Ka. 81. A charge sheet against Shree,Krishna Under Section 4/25 Arms Act was submitted by him which is Ka. 82. The investigation of Case crime No. 160 of 2001 was also handed over to him. He recorded the statements of the witnesses and prepared the site plan which is Ext. Ka. 83 and submitted charge sheet which is Ext. Ka. 84.-On 22.12.2001 he alongwith S.O. V.L. Visnw'akarma, Ram f Swaroop was taken from the police lock-up and on his pointing out a Banka was recovered from his house. A recovery memo was prepared which is Ext. Ka. 85,
48. P.W. 11 is Con. Ramesh Chandra Mishra. He,stated that from 17,3.2001 to 30.3.2001 he was posted as Constable Clerk at P.S. Barkhera. On 17.3.2001 he had prepared Chik F.I.R. of Case Crime No. 106 to 108 of 2001 which is Ext. Ka. 86 and thereafter he had prepared G.D. entry which is Ext. Ka. 87. On 18.3.2001 he had; prepared the Chik F.I.R. of Case Crime Nos. 112 to 120 of 2001 which is Ext. Ka, 88 and thereafter he had prepared the G.D. entry 1 which is Ext. Ka: 89. On 30.3.2001 he had prepared the Chik F.I.R. of Case Crime Nos. 147 and 148 of.2001 Under Section 25 Arms Act against Ram Swaroop and Kunwar Sen which are Exts. Ka. 90 and 91 respectively, He had also prepared the Chik F.I.R, of Case Crime No. 149 of 2001 Under Section 4/25 Arms Act against Shree Krishna which is Ext. Ka. 92. He made entry in the G.D. vide report No. 2 at 1.15 which is Ext. Ka. 93
49. P.W. 12 is Head Constable Shy am Lal. He was posted as Head Moharrir at P.S. Barkhera from 10.3.2001 to 1.4.2001. He had prepared the Chik F.I.R., Ext. Ka. 94 and on the basis of the Chik F.I.R. he had prepared G.D. entry which is Ext. Ka. 95. He stated that in the Chik F.I.R. the name of Ram Swaroop son of Kanhai Lal was not mentioned due to error but in the body of the F.I.R. the allegation are made against him. He further deposed that Lalta Prasad, Hari Shankar, Ganga Ram and I eelawati were sent to P.H.C., Barkhera for medical examination, through H.C. Kamta Prasad. On 11.3.2001 at 8.35 A.M. three injured namely Atar Kali, Kishori Devi and Devi Ram reached at the police station alongwith Con. Prakashveer Singh and they were given Chitthi Majrubi and sent to P.H.C., Barkhera for medical examination. On 12.3.2001 S.H.O., P.K. Sharma had reached at the police station alongwith 7 arrested accused persons and their weapons and he had prepared Chik F.I.R. of Case Crime Nos. 97 to 103 of 2001 and the Chik F.I.R.s are Ext. Ka. 96 and on the basis of the Chik F.I.R.s G.D. entries were prepared by Constable Ram Ratan Singh which is Ext. Ka, 97. On 13.3.2001 at 5.10 A.M. Lalta Prasad had lodged a report which is mentioned in G.D. No. 23 at 5.10 P.M. by Con. Ram Ratan Singh and true copy of the same is Ext. Ka. 98. On 1.4.2001 S.H.O. P.K. Sharma had deposited one Banka and on that basis he prepared Chik F.I.R. which is Ext. Ka. 99 and the same is referred in the G.D. which is Ext. Ka. 100,
50. P.W. 13 is S.I., V.L. Vishwakarma. He stated that S.H.O. P.K. Sharma had investigated the case and submitted the charge-sheet. Thereafter one application was moved by the informant Lalta Prasad about the arrest of Ram Swaroop son of Kanhai Lal. This application was supported by the affidavits of Lalta Prasad, Hari Prasad, Ved Prakash and Smt. Atar Kali. On 24.10.2001 he had recorded the statements of Lalta Prasad, Hari Shankar, Ved Prakash, Smt. Atar Kali, Shiv (Charan Lal, Smt. Nanhi Devi, Ganga Ram, Shankar Lal, Smt. Nanliee Devi (Second) and Devi Ram. He had prepared site plan on the pointing out of Lalta Prasad which is Ext. Ka. 101. On 21.12.2001 he had arrested Ram Swaroop son of Kanhai Lal. On 22.12.2001 one Banka was got recovered from the house of Ram Swaroop son of Kanhai Lal on his pointing out. The recovery memo of the Banka was prepared which is Ext. Ka. 85. On 22.10,2001 he prepared the site plan of the place of the recovery of Banka which is Ext. Ka. 102.
51. P.W. 14 is P.K. Sharma. He was posted as Station House Officer at P.S. Barkhera from 10.3.2001 to 15.6.2001.|The case was registered in his presence and he had conducted the investigation. He had recorded the statement of Lalta Prasad and thereafter he had ' reached at the place of occurrence alongwith other police constables. He had recorded the statement of Shiv Charan and on his pointing out he had prepared the site plan which is Ext. Ka, 104. On his dictation S.I. Ram Adhar Tiwari had prepared the inquest memos. Firstly the inquest memo of Moti Ram was prepared and thereafter inquest memos of Mahendra Pal, Hem Raj and Chunni Lal were prepared. Inquest memos are Exts. Ka, 17, 23, 29 and 35- On his instruction A.S.I. Ram Adhar Tiwari had prepared the other papers for the post- 1 mortem examination of the deceased. He had collected the pLaln and blood stained earth from near the dead bodies and prepared its recovery memos. The recovery memos of pLaln and blood Stained earth from near the dead body of Mahendra Pal, Hem Raj, Moti Ram and Chunni Lal are Exts. Ka. 105, 106, 107 and 108 respectively. He I had also prepared recovery memo of 3 cartridges,, two 12 bore and one 315" bore, which is Ext. Ka. 109. On 11.3.2001 he recorded the statements of Devi Ram, Kishori Devi and Atar Kali and they were sent for medical examination through Con. Prakash Veer. He had recorded the statements of Nanhi Devi wife of Lalta Prasad and N^nhi Devi wife of Kundan Lal. He had arrested the accused Dharmveer, Mahesh Kumar and Smt. Maya Devi. He also arresteld seven accused persons and recovered weapons from their possession. One SBBL gun No. 4024 and 3 live cartridges of 12 bore were recovered from the possession of Jagan Lal. A country made pistol and 2 live cartridges of 12 bore were recovered from the possession of Narain. One country made pistol and two live cartridges of 12 bore were recovered from ; the possession of Ram Bharose. Four Bankas were recovered from the possession of Budhsen, Bhagirath, Baljeet and Nanhey Lal Recovery memos of the weapons were prepared which is Ext. Ka. 40. Cases Under Arms Act were registered against he accused persons, On 14.3.2001 he recorded the statements of injured Hari Shankar and Leelawati. Site plan of the recovery place of the dead body of Moti Ram was prepared on 13.3.2001 which is Ext. Ka. 110. On 17.3.2001 he again arrested 7 accused persons and recovered weapons from their possession. Ballams were recovered from the possession of Lalman, Kali Charan and Gaya Deen and Lathis were recovered from the possession of Nanhoo Lal, Kanhai Lal, Nokhey Lal and Ram Bahadur. Its recovery memo is Ext. Ka. 111. Cases Under Arms.Act were registered against Lalman, Kali Charan and Gaya Deen. On 18.3.2001 ten accused persons were arrested. A country made gun of 12 bore No. 4236 and three live cartridges were recovered from the possession of Ram Swaroop son of Hori Lal. One 12 bore country made Poniya and one live cartridge were recovered from the possession of Uma Shankar. One 12 bore country made pistol and one live cartridge were recovered from the possession of Tulsi, one 315 bore country made pistol and one 315 bore live cartridges were recovered from the possession of Ashok Kumar. Bankas were recovered from the possession of Pati Ram, Ram Chandra, Bhagwat Swaroop and Lalta Prasad and Lathis were recovered from the possession of Chet Ram and Om Prakash son of Hira Lal: Its recovery ; memo is Ext. Ka. 41. A case Under Section 30 Arms Act against Hori Lal and a case Under Section 25/27 Arms Act was registered against Ram Swaroop son of Hori Lal. A case Under Section 25 Arms Act against Uma Shankar, Tulsi and Ashok and case Under Section 4/25 Arms Act was registered against Pati Ram, Ram dhandra, Bhagwat Swaroop and Lal Prasad. On 20.3.2001 he arrested the accused Lalaram, On 29,3,2001 he had taken the accused Ram Swaroop son of Dal Chand, Kunwar Sen and shree Krishna on remand. On the pointing out of Ram Swaroop one country made pistol 12 bore was recovered. Its recovery memo was prepared which is Ext. Ka. 115. A country made pistol was also recovered on the pointing out of Kunwar Sen. Its recovery memo is Ext. Ka. 116. On the pointing out of Shree Krishna a Ballam was recovered. Its recovery memo is Ext. Ka. 117. On 31.3.2001 Om Prakash son of Mansha Ram was taken on remand and on his pointing out a Banka was recovered. Its recovery memo, Ext. Ka. 1 18, was prepared. On 23.5.2001 he submitted the charge sheet against all the accused persons which is Ext. Ka. 125.
52. P.W. 15 is G.L. Pawar, S.I. He stated that he was posted as S.I. at P.S. Barkhera from 22.12.2001 to 26.12.2001. He stated that the case was registered on 22.12.2001 in his presence. He had started the investigation. He had recorded the statement of V.L. Vishwakarma, S.I. Surendra Singh, Naveen Kumar and Bheem Bahadur and prepared the site plan, Ext. Ka. 122 and submitted the charge sheet against Ram Swaroop Under Section 4/25 Arms Act which is Ext. Ka. 123.
53. We have heard the learned counsel for the appellants and A.G.A for the State and perused the order of the Sessions judge and entire record of the court below.
54. The counsel for the appellants has challenged the findings of the court below on various grounds.
55. It is submitted that there was no immediate motive for committing an offence of this magnitude. In the first information report it is alleged that there was enmity in the village due to the election of the Pradhan, which was held in the month of June, a year before the occurrence. The wife of Ram Swaroop son of Hori Lal had contested the election of Pradhan and she was defeated. Ram Swaroop by had threatened them to face the consequences for not voting in their favour. It is contended by learned counsel for the appellants that this is not sufficient motive for the commission of offence of this magnitude in which several persons are murdered and a large number of persons had received injuries. In a case which turns on direct evidence, the motive element does not play such an important role as to cast any doubt on the credibility of the prosecution witness. The correctness of conviction cannot be tested on the touchstone of lack of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused committed the crime. It is a sound presumption that every criminal act is done with a motive. It is unsound to suggest that no such criminal act can be presumed unless motive is proved. In the case Atley v. State of UP. the Apex Court held "That is true and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty, but absence of clear proof of motive does not necessarily lead to the contrary conclusion." In the instant case the motive as alleged by the informant in his report is supported by the other witnesses produced in support of the prosecution case. Correctness of conviction cannot be tested on the touchstone of lack of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused committed the crime. Such evidence is available in abundant measure in the instant case. In some cases it may be difficult to establish motive through direct evidence, while in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes it may appear that the motive established is a weak one. That by itself is insufficient to lead to an inference adverse against the prosecution. Absence of motive, even if it is accepted, does not come to the aid of the accused. These principles have to be tested on the background of factual scenario.
56. It is contended on behalf of the appellants that a large number of persons are falsely implicated in this case. In the first information report the allegations of participation is made against 36 accused persons. The number of injuries suffered by the deceased and the injured did not tally with the number of accused who had participated in the occurrence. It is submitted that the allegation of firing is assigned to 10 accused persons but in the post-mortem examination reports of Moti Ram and Hem Raj, there is only one firearm injury each. Apart from these two deceased no other person had received any firearm injury. It is also pointed out that accused Shree Krishna and Gaya Deen had carried the Ballam and neither any deceased nor injured had received any typical Ballam injury.
57. The eyewitness account is furnished by P.W. 1, Lalta Prasad, P.W. 12, Km. Leelawati, 16. P.W. 3, Ved Prakash and P.W. 4, Hari Shaiikar and they all have supported the version of the F.I.R. They had described the weapons in the hands of the accused and th|ey were subjected to.extensive cross examination but nothing could be elucidated to discredit their testimonies. According to the prosecution case, all the accused persons had arrived variously armed and they started firing indiscriminately, The time and place of occurrence cannot be disputed in this case. The report was promptly lodged and thereafter injured witnesses were medically examined by the doctors on the same day. In an incident of this nature it would be impossible for the prosecution witnesses to account for each and every gun shot fired in the course of the incident. It is not expected that the prosecution can account for all the firing with mathematical precision. The consistent case of the prosecution is that when the accysed had started firing, all the persons who were present, started running away here and there. If the injured or deceased did not receive any firearm injury from the weapons assigned to the accused, it cannot be said that the accused did not participate in the occurrence. When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused but on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object, persons proved to be members can not escape the consequences arising from the doing of that act which amounts to an offence. The prosecution case sufficiently establish not only previous enmity, but also a premeditated and concerted move to wreck vengeance and the deadly nature of weapons carried by the accused, who formed by themselves into an unlawful assembly. The eyewitnesses have withstood the test of cross examination and their ! testimonies inspire full confidence and their testimony is corroborated by the medical evidence and the report of the scientific laboratory which shows, that the weapons which were recovered contained human blood.
58. Learned counsel for the appellants pointed out that P.W. 2, Km. Leelawati is not resident of the piace of occurrence and during the investigation, investigating officer had not taken recourse to an identification parade. We have considered the submission of learned counsel for the appellants. In our opinion, there is no substance in this submission. The testimony of P.W. 2 shows that the place of occurrence is her maternal home and she used to visit the village and had also described the names and weapons in the hands of the accused. She had also admitted that she had described the names of the accused and weapons for the first time in court. P.W 2, Km. Leelawati had also received injuries in the occurrence and her presence cannot be doubted. She had stated that she used to visit the village and it cannot be said that the accused are strangers to her. The Apex Court held in the case of Simon v. State of Karnataka, :
59. "it has also to be borne in mind that the aspect of identification parade belongs to the stage of investigation and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in court." What weight is to be attached to such identification is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration (see Malkhan Singh v. State of M.P)". In the present case the testimony of P.W. 2 Leelawati is corroborated by other 3 eye witnesses. Therefore, the Sessions, Judge has rightly relied upon the testimony of Km. Leelawati.
60. It is also submitted by learned counsel for the appellants that in, case eyewitnesses were in a position to recognise the assailants, they should not have committed mistake in identifying the dead body of Kundan Lal. In the first information report it is alleged that, the dead body of Moti Ram was lying in burnt condition inside the Kothari but in fact it was the dead body of Kundan Lal. The dead body of Moti Ram was recovered on 13.3.2001. On account of this mistake the post-mortem on the dead body of Kundan Lal was held in the name of Moti Ram. We have carefully considered the submission of learned counsel for the appellants, The presence of the witnesses cannot be doubted because the injuries suffered by them guarantees their presence at the time of occurrence and the occurrence took place at the time when there was sufficient light. It cannot be said that eye witnesses were not present or they were not in a position to identify the assailants. So far as the mistake in the identification of the dead body is concerned, it may be due to many reasons. The eye witnesses had mentioned that bQth were similar in their built and they were also assaulted simultaneously by the accused persons. The dead body recovered from the Kothari was in burnt condition. Dr. V. Kumar had conducted the post mortem examination on the dead body of Kundan Lal (wrongly named as Moti Ram). He had noted "Male body of average built muscularity & stoutness rigor morti could not be commented due to deep burn injuries. Body is in pugilistic appearance due to deep burn injuries. Mouth half open tongue partially protruding between teeth." It is also mentioned that "whole body is have hum injuries from grade two to grade six (bones are also burnt at places). Body is burnt and charred at most of places. There is loss of right hand from below wrist and right root below ankle. " In such a situation if the witnesses failed to identify the dead body, it cannot be said that they were not present at the place of occurrence and they did not witness the occurrence. The eyewitness account is furnished by four eyewitnesses and out of these four P.W. 1, Lalta Prasad, P.W. 2, Km. Leelawati and P.W. 4, Hari Shankajr had received injuries which is proved by the testimony of P.W. 7, Dr. R.S. Sone who had medically examined them. The presence of the witnesses cannot be doubted and we do not find any reason to discard their testimonies.
61. Learned counsel for the appellants vehemently challenged the presence of three ladies, Maya Devi, Amriti Devi and Sunita Devi. It is submitted that participation of these 3 ladies is doubtful on the ground that that it is alleged that they carried kerosene oil alongwith them. P.W, 1 stated that Maya Devi, Amriti Devi and Sunita Devi carried kerosene oil tin alongwith them and this allegation is highly improbable because it cannot be accepted that three ladies will come alongwith other accused persons who were heavily armed. Learned counsel for the appellants has also drawn our attention to the testimony of P.W. 2, Leelawati, who stated that Amariti Devi, Maya Devi and Sunita Devi carried kerosene oil tin. We have considered the submission of learned counsel for the appellants and perused the testimonies of the witnesses on the record. According to the prosecution case the accused persons had come variously armed and it is alleged that when some of the victims had entered into the Kothari, they were surrounded and kerosene oil was poured on the Kothari and Ram Swaroop son of Hori Lal and Uma Shanknr set on fire the Kothari. The use of kerosene oil in setting on fire the Kothari cannot be doubted because without kerosene oil it is not possible that a Kothari can be set on fire. There may be some dispute that at what stage the ladies were carrying kerosene oil with them. The accused and the deceased are residents of the same village. P.W. 3 stated that when accused persons had entered in the Kothari,"the assailants tried to cut the door of the Kothari and at that time Amiriti Devi, Maya Devi and Sunita Devi had brought the kerosene oil from their houses. In our opinion, there may be some minor contradictions with regard to carrying of kerosene oil by lajiies whether they came carrying kerosene oil or brought it after the incident started, it cannot be said that their testimony cannot be relied upon.
62. Lastly the counsel for the appellants submitted that partidpation of appellant Nanhoo Lal, Kanhai Lal, Dal Chand, Mori Lal, Nokhey Lal and Ram Bahadur is doubtful. All these appellants are very old. Kanhai Lal is aged about 90 years. We have considered the submission of the counsel for the appellants but we do not find any force. None of the witnesses were suggested that, they are too old to participate in the occurrence. There was no suggestion that they are very weak and cannot move. I here is no upper age limit for being a member of an unlawful assembly.
63. The prosecution successfully proved that the occurrence took place at 5.00 P.M. on 10.3.2001 and the written report was lodged by the informant Lalta Prasad, P.W.I on the same day at 8.10 P.M. The distance of the police station is 7 1/2 Kms. It is also mentioned in the first information report that informant had taken shelter in the sugar cane field of Dal Chand and he came out from the said field when the assailants had left the place of occurrence after committing the crime. It is also mentioned that his brother Kundan Lal, father Devi Ram and Atar Kali were not traceable and he, Hari Shankar, Km. Leelawati and Ganga Ram reached at the police station after hiding themselves. All of them had received injuries. Considering the magnitude of the offence and the distance of the police station, in our opinion, the report was promptly lodged which contains all the necessary details like time, place of occurrence, motive, weapons in the hands of the assailants, number of injured and deceased. The lodging of the report after about 3 hours and 10 minutes shows that it is promptly lodged. The criminal courts attach importance to the prompt lodging of the report because it eliminates the chances of embellishment. The presence of the witnesses cannot be doubted and their testimonies inspire full confidence. The trial court had rightly recorded the findings of conviction and we also concur with the same.
64. Lastly, the question that arises for serious consideration is whether imposition of death penalty in the facts and circumstances of the case is justified?
65. Under the old code of criminal Procedure ample discretion was given to the courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is to be awarded. A Constitutional Bench of the Supreme Court in the case of Bachan Singh v. State of Punjab A.I.R. 1980 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.
66. The Sessions Judge considered the manner of the crime. The accused had tried to kill all the persons and when they tried to save themselves inside a kothari the same was set on fire and those who tried to run away they were assaulted. It was also observed that the accused had committed the murders of Mahendra Pal, Moti Ram, Hem Raj and Chunni Lal and caused injuries to Lalta Prasad, Hari Shankar, Leelawati, Ganga Ram, Devi Ram, Smt. Kishori Devi and Smt.Atar Kali, and came to the conclusion that it is a 'rarest of rare case' and sentenced twelve persons to the extreme penalty of death. We are not inclined to accept the justification for imposing extreme penalty of death. We are not oblivious to the fact that it is a case of multiple murders but in our opinion ipso-facto that would not be a ground for confirming the death sentence of appellants.
67. The Apex Court in the case of Ram Pal v. State of U.P. 2003(47) A.C.C. 567 for the reasons mentioned in paragraph 8 and 9 of the judgment reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident.
68. Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance.
69. Considering the over all circumstances of the case, this case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life term was altogether foreclosed and we are of the view that a sentence of imprisonment for life to the appellants would meet the ends of justice.
70. For the reasons stated above the above appeals are decided as Under:
1. Crl. Appeal Nos. 713 of 2004 (Om Prakash son of Mansha Ram), 817 of 2004 (Jagan Lal and Bhagirathi ), 977 of 2004 (Ram Swaroop son of Mori Lal, lalta Prasad, Budhsen, Baljeet, Ram Chandra, Pati Ram, Bhagwat Swaroop son of Narain Lal and Nanhey Lal) and 1091 of 2004 ( Ram Swaroop son of Kanhai Lal ) are dismissed with the modification that the sentence of death to the appellants is reduced to imprisonment for life. The other sentences awarded to the appellants by the Sessions Judge are affirmed. The appellants are in jail. They shall be kept there to serve out the sentences awarded ' by the Sessions Judge and modified by us.
2. Crl. Appeal Nos. 935 of 2004 (Smt. Maya Devi, Smt. Amiriti Devi and Smt. Sunita Devi), 568 of 2004 (Nanhoo Lal and Lalaram), 1001 of 2004 (Lalman, Om Prakash son of Hira Lal, Mahesh, Shree Krishna and Nokhey ) and 1146 of 2004 are dismissed. Their conviction and sentences awarded by the Sessions Judge are affirmed. The appellants are on bail. C.J.M. Pilibhit is directed to take the appellants into custody forthwith to serve out the sentences awarded by the Sessions Judge and affirmed by us.
3. Crl. Appeal Nos. 698 of 2004 (Kali Charan, Chet Ram and Ram Bahadur), 1082 of 2004 (Kunwar Sen and Kanhai Lal ), 1139 of 2004 ( Hori Lal son of Joravar) and 1116 of 2004 ( Hori Lal son of Joravar ), 1145 of 2004 ( Budh Sen, Baljeet,. Nanhey Lal, Lalman, Pati Ram, Ram Chandra, Bhagwat Swaroop, Lalta Prasad and Shree Krishna ) and 1115 of 2004 ( Ram Swaroop son of Hori Lal ) are dismissed. Their conviction and sentences awarded by the Sessions Judge are affirmed. The appellants are in jail. They shall be kept there to serve out the sentences awarded by the Sessions Judge and affirmed by us.
4. Crl. Appeal Nos. 1124 of 2004 (Narain Lal, Ashok Kumar, Ram Bharosey, Ram Swaroop son of Dal chand, Uma Shankar and Tulsi Ram ) and 1114 of 2004 (Narain Lal, Ram Bharosey, Uma Shanker, Tulsi Ram, Ashok Kumar and Ram Swaroop son of Dal Chand) are dismissed. Their conviction and sentences awarded by the Sessions Judge are affirmed. Appellants Ashok Kumar and Ram Swaroop son of Dal; Chand are on bail. C.J.M. concerned is directed to take the appellants Ashok Kumar and Ram- Swaroop son of. Dal Chand into custody to serve out the sentences awarded by the Sessions Judge and affirmed by us. Rest of the appellants Narain Lal, Ram Bharosey, Uma Shankar and Tulsi are in jail. They shall be kept there to serve out the sentences awarded by the Sessions Judge and affirmed by us.
5. Criminal reference for confirmation of death sentence is rejected.
71. Office is directed to communicate this order to the Sessions Judge, Pilibhit, for compliance within a week and the Sessions Judge, Pilibhit, shall send his compliance report to this court within a month.