Court No. - 43
Reserved Delivered on : 31.5.2018
Case :- CRIMINAL APPEAL No. - 762 of 1983 Appellant :- Ram Khilari Respondent :- State Of U.P.
Counsel for Appellant :- P.N. Mishra,Anurag Shukla,P.K. Dubey,Rahul Mishra,S. Niranjan Counsel for Respondent :- A.G.A.
:With:
Case :- CRIMINAL APPEAL No. - 763 of 1983 Appellant :- Chandra Pal & Others Respondent :- State Of U.P.
Counsel for Appellant :- P.N. Mishra,P.K. Dubey,Rahul Mishra,S. Niranjan Counsel for Respondent :- A.G.A.
:And:
Case :- CRIMINAL APPEAL No. - 764 of 1983 Appellant :- Suresh Respondent :- State Of U.P.
Counsel for Appellant :- P.N. Mishra,P.K. Dubey,Rahul Mishra,S. Niranjan Counsel for Respondent :- A.G.A Hon'ble Pankaj Naqvi,J.
Hon'ble Krishna Pratap Singh,J.
(Delivered by Pankaj Naqvi, J.)
Heard Sri D.P. Singh, learned Senior Advocate, assisted by Sri Anurag Shukla / Sri S. Niranjan, for the appellants and Sri A.N. Mulla, the learned A.G.A.
The present appeals are preferred against the judgment / order dated 31.3.1983, convicting / sentencing the appellants to life imprisonment under Section 396 IPC and other allied offences.
A written report dated 1.2.1981 was lodged at P.S. Onchha, Mainpuri in respect of an occurrence dated 31.1.1981 at 4:00 P.M, alleging that about 50-55 persons, 39 named belonging to different villages came variously armed with rifles, guns, countrymade pistols, lathi and spears; upon exhortation of Kaptan Singh, Lotan Singh, Mata Deen and Chintamani that residents of village Jankh, be eliminated, committed loot / plunder, set on fire 27 houses of named persons, which continued for almost 2 hours; whereupon Shyam Pal Singh (PW-5), Ram Murti of village Jankh, and Prem Singh of Nagla Rana started firing in defence from their roof-tops, causing injuries to accused persons, while 4 persons, i.e, Gopal Singh (died near Nagla Rana), Natthu Singh (died in the house of Goverdhan Singh), Pohep Singh (died at his own house) and Ram Singh (died in the fields of Rang Lal). The informant (PW-1) claims to be an eye-witness and so does Shyam Pal Singh (PW-5), Gyan Singh (PW-4), Basudev, Indra Pal, Roshan Singh, Shankar, Babu Singh and Shobran Singh (PW-2) and other villagers, the report also alleged that it could not be lodged at night.
On above report (Exbt-Ka-1), an F.I.R, came to be registered as Case Crime no. 29 of 1981 under Sections 396 / 436 IPC at P.S. Onchha, Mainpuri on 1.2.1981 at 5:30 A.M (Exbt- Ka55).
PW-7 is the first Investigating Officer, who on 1.2.1981, received information on R.T. set from Shikohabad at 3:05 A.M, that some occurrence has taken place at Nagla Jankh in P.S. Onchha, entered as Report no.5 (Exbt. Ka-8) at 3:05 A.M, on 1.2.1981 in the G.D. Acting on this information, he along with adequate P.A.C, force proceeded to the village in P.A.C, vehicles reached the scene around 8:30 A.M. Constable Brahmanand (not examined) handed him a check F.I.R, within 15 minutes of his arrival, on which he commenced investigation and carried out various investigational formalities, i.e, recorded the statement of the first informant, prepared inquest of the 4 deceased (Exbt Ka-9 to 12), prepared dead body challans, R.I, report, report for the doctor under his hand-writing and signatures (Ka-13 to Ka- 36). He also collected plain and blood stained earth from the site of recovery of 4 bodies, prepared memo along with that of recovered empties. He also collected samples of burnt debri of 27 houses located in 3 villages, prepared three recovery memos (Exbt- Ka48 to 50), prepared the site plan (Exbt- Ka51) at the dictates of the informant. He also recovered empties and some ammunition near the dead bodies, prepared its memo. He continued the formalities upto 11:50 P.M. PW-3, the 2nd I.O, subsequently continued the investigation from 2.2.1981 at about 11:20 A.M, to carry out left over formalities with regard to further recoveries. PW-8 was the 3rd I.O, who took up investigation on 11.2.1981 by visiting village Jankh, obtained a list of looted items from Mahaveer Singh (PW-1), Bahadur Singh, Jamadar, Lajja Ram, Surya Pal and Babu Singh, recorded the statements of PW-4, Roshan Singh, Ram Murti, PW-2 along with other witnesses including PW-5. He filed the charge sheet (Exbt Ka-52) on 16.4.1981 against Ajab Singh, Suresh, Bhoora, Fauran Singh, Rajendra, Chandra Pal, Virendra Singh, Sardar Singh, Ram Prakash, Jai Veer Singh, Raghuveer Singh, Mahavir, Ramraj, Chhakauri, Kuber, Toophan, Milki, Manpal, Pooran Das and Subhash. PW-9 the 4th I.O, submitted charge sheet (Exbt Ka-53) on 31.7.1981 against Kaptan Singh, Nahar Singh, Ram Khiladi, Ranveer Singh, Chintamani, Vidya Ram, Kaptan Singh son of Narain Singh, Munshi, Lotan Singh, Ram Sanehi, Jaddu, Vishnu Dayal, Balak Das, Anar Singh, Mahavir, Mande and on 6.10.1981 filed a charge sheet (Exbt Ka-54) against Matadeen and Vijendra.
Upon submission of charge-sheets, case was committed to the Sessions, charges framed against the accused who denied the same and claimed to be tried. The trial was conducted against 39 accused, during trial 4 accused died, trial abated against them, 35 accused eventually faced the trial.
To establish the guilt of the accused, the prosecution examined, PW-1 an eye-witness / informant, along with PW-2, 4 & 5, also as eye-witnesses. Rest are formal witnesses. The defence claimed false implication on account of previous enmity but did not lead any evidence.
After evaluating the evidence the trial court convicted 14 accused as above, acquitting the remaining 21. Three sets of Criminal Appeals were filed against the judgment of conviction / sentence dated 31.3.1983, i.e, Criminal Appeal No. 762 of 1983 on behalf of Ram Khilari, Ranveer Singh, Ram Sanehi, Jaddu and Vishuna. During pendency of the said appeal, Ram Sanehi, Jaddu and Vishuna died. The appeal stood dismissed as abated as against them on 18.7.2012. Criminal Appeal No. 763 of 1983 was preferred by Chandra Pal and Phauran Singh. Criminal Appeal No. 764 of 1983 was preferred by Suresh, Virendra, Jai Veer Singh, Ram Raj, Chhakauri, Toofan Singh and Milki, out of whom the latter two died during the pendency of appeal. The appeal stood dismissed as abated as against them on 5.10.2015. Thus the appeals survive only as against 9 appellants in three appeals. No Government Appeal or revision against acquittal is reported to have been preferred.
The learned Senior Counsel for the appellants has broadly raised following contentions: -
(i) Presence of witnesses of fact is highly doubtful,
(ii) F.I.R, is delayed by 3 days with no explanation whatsoever and manouvered so as to nominate accused by choice,
(iii) absence of recovery of a solitary empty from Raghuraj (not examined), Prem Singh (not examined) and PW-5, who are alleged to have fired in defence from their roof-tops, makes the occurrence as alleged doubtful.
(iv) F.I.R, was held to be questionable by the trial court, yet prosecution case on the same version has been relied.
Sri Mulla, the learned A.G.A controverted the above submissions.
PW-1 (informant), 2, 4 & 5 are witnesses of fact. PW-1 claims to have witnessed the occurrence along with PW-5 from the roof-top of Raghuraj (not examined) brother of PW-5, wherein Raghuraj was firing in defence from his SBBL gun. However, we notice a material contradiction between PW-1 & 5 when former was alleging the use of single firearm at the hands of Raghuraj (not examined), whereas PW-5 was alleging the said weapon in his hand, coupled with a noteworthy fact that he even denied the presence of Raghuraj on the roof-top at the time of attack, as for last 2 days, he (Raghuraj) was not even in the village. This contradiction assumes importance, when no statement of Raghuraj, a star witness was ever recorded by the police and that of PW-5 came to be recorded under Section 161 CrPC after more than 1-1/2 to 2 months leading to a strong probable inference that at the time of occurrence neither PW-5, nor his brother Raghuraj (not examined) and PW-1 were present at the roof-top as claimed by prosecution. Although prosecution claimed 15-20 rounds of fire were shot from the rooftop of which empties were handed over, but no recovery memo was prepared further makes the credibility of PW-1 and PW-5 as doubtful.
The second set of witnesses, i.e, PW-2 & PW-4 are alleged to have witnessed the attack from the rooftop of Rammurti (not examined). PW-2 claims to have climbed on the roof-top of Rammurti through a Khandahar (dilapidated part of the house), whereas PW-4 was stating that he used stairs to go upto the rooftop, as it was very difficult to climb through Khandahar to go to the rooftop. Further, when PW-2 was confronted with his previous statement where he was alleging that the village had received information of a possible attack by Anar Singh group, which had traditional rivalry, prior to two hours of the occurrence, entrie village had been evacuated, came to be denied, but he admitted that a lady by the name of Susheela along with her child suffered injuries in the attack but she was neither examined, nor were her injuries brought on record also doubts the presence of PW-2 at the scene.
The motive for the attack assigned was that in 1966, 'Yadavs' of village Vikrampur had attacked the village of the informant in which Ranveer Singh of the appellant's side was murdered, in which Raghuraj Singh & others (informant side) were nominated as accused. Prior to this, one Bhagwan Das of appellant's side was murdered in respect of which Nathu Singh (deceased) & others (informant side) were accused. Similarly, at village Kothiya brother of Ajab Singh (appellant side), i.e, Kunwar Pal was murdered, in which Raghuraj Singh & others (informant side) were nominated as accused. Further villagers of village Vikrampur had also looted the house of Raghuraj Sigh & Bahadur Singh (informant side), with criminal cases pending against them. It was thus alleged that against the above background motive, loot / plunder was committed by the 'Yadavs' of the adjoining villages. Thus motive, if any, of the 'Yadavs' was mainly against Raghuraj Singh, yet no damage, whatsoever, was caused either to the person of Raghuraj, who was claiming to be present at the scene, nor to his property, even when 50-55 persons were attacking the village of informant dents seriously the prosecution story.
PW-7, the Ist I.O stated that the time '5:30 A.M' in the report has been inserted subsequently including the case crime number and the section, under which the offence was registered with a different pen and ink, along with the name of the informant, address were also not in his handwriting. He further confirmed that the name of the informant, case crime number, sections under which the offence was registered and the time of commencement and conclusion of the inquest were also filled in all the 4 inquest (Exbt Ka-9 to Ka12) in different handwritings after the investigation was handed over to the IInd I.O, K.P. Singh (PW-3), with whose handwriting, he was familiar but the said additions were not in the handwriting of K.P. Singh (PW-3). PW-8, the 3rd I.O, was stating that in respect of above discrepancies, he had brought the same to the knowledge of the Superintendent of Police. PW-7 admitted that the first parcha, which was in his handwriting, was endorsed on 3.2.1981 by the S.H.O.
Considering the above discrepancies, we are of the view that the F.I.R, was delayed for almost 3 days and manipulated, so as to enable the prosecution to nominate the accused by design.
To recapitulate, the case of the prosecution was that upon the entry of unruly mob of 50-55 persons variously armed with lethal weapons, PW-1 went upto the terrace of Raghuraj (not examined) along with PW-5, whereas PW's 2 and 4 went upto the terrace of one Ram Murti (not examined) from where both the sets of persons fired multiple rounds from their respective guns, to ward off the intruders. PW-5 was stating that he must have fired 15-20 rounds, whereas PW-4, who was on the roof-top of the house of Ram Murti, was only stating that the firing was exchanged from both sides for almost 2 hours. Surprisingly, neither any empties were recovered from the site, where prosecution witnesses were firing from their respective firearms, coupled with PW-7, the I.O, concerned was stating that not a single empty was handed over to him by either of the prosecution witnesses. Absence of a single empty from the roof-tops of PW-5, Ram Murti & Prem Singh casts a severe shadow of doubt as regards the case of the prosecution that they resorted to incessant retaliatory firing. On the contrary, empties of accused side recovered by PW-7, i.e, 2 empties of 12 bore, 2 of Semi, 3 of S.L.R, and 1 of .303 bore (Exbt- Ka-41) near the house of Raghunath (brother of PW-5); 2 empties of Semi, 2 of S.L.R, & 1 of .315 bore (Exbt- Ka 42) from the door-step of Rammurti; 1 empty of 12 bore, 1 of S.L.R, & 2 of Semi (Exbt- Ka43) near the house of Prem Singh, also puts a question mark to the case of prosecution that indiscriminate firing by the accused continued for almost 2 hours. No recovery of any empty from the respective roof- tops further establishes that the presence of all witnesses of fact is highly doubtful, which cannot be brushed aside as mere investigational lapse.
What we find from the evidence is that a gang had descended to commit a loot / plunder at the village along with deadly weapons, who carried out destruction of 27 houses by setting them on fire, but as the villagers had prior information that such an attack was expected in 2 hours entire village had been evacuated, so as to be left, with no women and children, but for a solitary woman, who was alleged to have sustained injuries, but neither was she examined, nor her injuries are on record, whereas few persons, who could not manage their escape, out of whom 4 succumbed to injuries in firing by the gang. But as the appellants were having previous animosity with informant faction, they found a good occasion to target named offenders in an F.I.R, which came to be lodged after almost 3 days giving them enough time to nominate persons of their choice, so as to settle old score.
The surviving appellants are Ram Khilari, Ranvir Singh, Chandra Pal, Phauran Singh, Suresh, Virendra, Jai Veer Singh, Ram Raj, Chhakauri. The maternal uncles of appellant Ram Khilari and real uncles of appellants- Chandra Pal, Phauran Singh, Virendra & Suresh, were murdered, in which the informant side was arraigned as accused, in which the above appellants and two more appellants, i.e, Jai Veer and Ranvir were witnesses to the murders. Thus false implication of above appellants cannot be ruled out. Appellant Ram Raj could not be identified in the Court by PW-1, who in fact identified him as Vijendra (acquitted), thus the involvement of appellant – Ram Raj also comes under serious doubt. Appellant Chhakauri is the real brother of appellant Ram Raj, thus when his brother Ram Raj has been falsely implicated, possibility of Chhakauri's false implication also cannot be ruled out.
We cannot convict appellants merely on the ground that 4 deaths had taken place in the occurrence. To hold appellants liable, there must be credible evidence against the appellants, which is lacking.
It is well settled that merely because F.I.R, comes under suspect, prosecution case cannot be disbelieved on that ground alone. Once the trial court doubted the lodging of the F.I.R, it ought to have scanned the entire evidence on record with utmost circumspection, so as to ascertain, whether the prosecution had proved its case beyond a shadow of doubt, which it failed to take note of considering the glaring discrepancies in the case of prosecution.
We are of the view that on above evidence, it cannot be said that the prosecution had proved its case beyond a shadow of doubt.
The appeals are allowed. The judgment and order dated 31.3.1983 is set aside. The appellants are acquitted of the offences, charged. They are set free, unless wanted in any other case. The appellants are on bail. Their bail bonds are cancelled and sureties discharged.
Let a copy of this judgement along with record of lower court be sent to the learned District & Sessions Judge, Mainpuri for ensuring its compliance.
Order Date :- 31.5.2018 N.S.Rathour
(Krishna Pratap Singh, J.) (Pankaj Naqvi,J.)