Allahabad High Court
Shiv Kumar vs State on 30 May, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 24.4.2019 Judgment delivered on 30.5.2019 Court No. - 1 Case :- CRIMINAL APPEAL No. - 821 of 1985 Appellant :- Shiv Kumar Respondent :- State Counsel for Appellant :- ,Dileep Kumar,Pankaj Tripathi,Rajrshi Gupta Counsel for Respondent :- A.G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)
1. Heard Sri Dileep Kumar, learned counsel fo the appellant along with Sri Sanjay Tripathi, Advocate and Sri J.P. Tripathi, learned A.G.A. appearing for the State.
2. This criminal appeal has been preferred against the judgment and order dated 23.3.1985 passed by IInd Additional Session Judge, Hamirpur in Session Trial No.90 of 1981 (State vs. Shiv Kumar and three others) whereby accused-appellant no. 4 Mool Chand, accused-appellant no. 2 Har Narain, accused-appellant no. 3 Veer Narain have been convicted and sentenced under section 148 IPC with two years R.I. and under section 302 read with section 149 IPC with life imprisonment and under section 404 IPC with two years R.I. Further directed that all the sentences shall run concurrently. Accused-appellant no. 1 Shiv Kumar has been convicted under section 302 read with 120-B IPC and has been sentenced with life imprisonment.
3. In brief, the prosecution case as disclosed in the FIR is that the cousin brother of the informant Shiv Kumar son of Prahlad Brahman, resident of village Banki, Ayodhya son of Gopal Tiwari was sitting at the door of his house and was warming himself in front of 'Kaura' ( kind of bone fire) on 2.12.1980 and with him were sitting Parshu Ram Teli, Prem Narayan Brahman, Surendra Brahman, Shiv Nath @ Chunuvad Nai (Barber) and Mahesh son of Rm Swarup Brahman at about 8.30 p.m., right then about six miscreants, out of whom one was armed with rifle, one was armed with country made pistol and three were armed with guns and one was armed with Lathi, came there and killed Ayodhya Prasad by shooting at him and thereafter opened the main door of his house and entered into it and after making fires from their respective weapons, also killed Ayodhy's wife namely Smt. Girja and looted away Rs.2,000/-, some jewellary and licensed gun no. 5622 along with 20 cartridges. There is a Bakhri belonging to the informant Shiv Kumar and Ayodhya Prasad. Thus, the persons who were sitting with Ayodhya and were warming themselves, were also beaten by lathis. Informant after running away from there, started screaming, hearing which Lallu Singh with licensed gun, Lakkhu Singh Thakur, Divya Teli, Chhota Ahir and Chandra Bhushan Brahman and many other persons of the same village came there and Lallu Singh made fire upon the miscreants by his licensed gun. The informant and all the persons of his house and those who were warming themselves in front of 'Kaura' and many other villagers had seen the accused in the light of electricity when the accused were indulging in loot and he can identify the assailants, if they come before him and also he would be able to identify his looted articles. The miscreants were speaking local language and all of them were young and hefty, details of their clothes have also been mentioned in the written report and it is further mentioned that they continued to indulge in looting activity for half an hour. The dead body of Ayodhya was lying outside his house and that of his wife was inside the house and that he come to lodge report so that police may take action. The said report was got scribed by Bhagwan Din Gupta.
4. On the said written report being given at the police station Sumepur on 2.12.1980 at 23.20 hours (11.20 p.m.), a case crime no 315 of 1980 was registered under section 396 IPC against the six unknown miscreants by Head Constable Rajendra Veer Singh (PW6) who prepared chik FIR on the basis of the said written report which is Exhibit Ka-1 and entry of this case was made by him in G.D. at report no. 31, at 23.20 hours, which is Exhibit Ka-2 on 12.12.1980 at 7.30 A.M. The accused Mool Chand @ Teli was despatched to District Jail Baparda with the assistance of Constable Dev Shankar and Ram Shankar and made its entry in G.D. at report no. 9 which is Exhibit Ka-3.
5. The investigation of this case was handed over to S.I. Harish Chandra Mishra who visited the spot and recorded the statement of accused Shiv Kumar who was informant of this case and conducted inquest of the deceased on 31.2.1980, also prepared Challan-Nash and Photo-Nash. Inquest report is Exhibit Ka-4, Challan-Nash is Exhibit Ka-5 and Photo-Nash is Exhibit Ka-6. Thereafter, after having sealed the dead body, he prepared inquest report of other deceased Girja Devi and also prepared Photo-Nash and Challan-Nash which are Exhibits Ka-7, Ka-8 and Ka-9 respectively. The dead body of Girja Devi was also sealed and along with all the relevant papers, the dead bodies were sent to Hamirpur Sadar Hospital through Constables Ram Prakash and Shiv Mohan. He has prepared site plan which is Exhibit Ka-10. He collected bloodstained soil and ordinary soil in two separate containers from the place where the dead body of Ayodhya Prasad was lying and prepared its Fard which is Exhibit Ka-11. The sealed containers containing bloodstained soil is marked as material exhibit-1 and container containing the ordinary soil is marked as material exhibit-2 which pertains to deceased Ayodhya Prasad. The bloodstained soil and ordinary soil which was collected from near the dead body of Girja Devi, Fard of the same is Exhibit Ka-12 and the container containing the bloodstained soil and ordinary soil are material exhibits-3 and 4 respectively. He also took into possession one empty cartridge and five tikli and kept them in a pocket which were collected from the spot which are material exhibits 5 to 9 and the empty cartridge is material exhibit-10. Fard relating to these articles is Exhibit Ka-13. The items which were looted were given in supurdugi of Raj Bahadur and its Fard was prepared which is Exhibit Ka-14. Further, this witness has stated that the accused Mool Chand @ Tali was arrested in village Dev Gaon at about 18.00 hours and was kept Baparda at police station and his entry was made in G.D. at report no. 27 time 19.10 hours which is Exhibit Ka-15. He took the statement of Raj Bahadur on 3.12.1980 and on 16.12.1980 he recorded statement of Jageshwar and Deviya etc. Subsequently, after investigation on 23.2.1981, he has submitted charge-sheet against the accused Shiv Kumar, Har Narain and Veer Narain which is Exhibit Ka-16 and on 4.3.1981, he submitted charge-sheet against Mool Chand @ Tali which is Exhibit Ka-17.
6. Record reveals that on 15.5.1982, the trial court framed charges under section 396 IPC against all the four accused-appellants namely, Shiv Kumar, Har Narain, Veer Narain Mool Chand @ Tali to which they pleaded not guilty and claimed trial. Thereafter on 14.6.1982 Shiv Kumar, Har Narain and Veer Narain were charged under section 396 read with section 120-B IPC to which they pleaded not guilty and claimed trial. Thereafter on 24.6.1982 the trial court framed charge against Mool Chand @ Tali under section 396 IPC to which he pleaded not guilty and claimed trial. Thereafter on 4.8.1982, the trial court framed charges under section 148, 302 read with 149, 302 read with 120-B and 404 IPC against all the above-named four accused persons to which they pleaded not guilty and claimed trial. On the same day another separate charge has been framed against accused Mool Chand @ Tali, Har Narain, Veer Narain under section 394 read with section 397 IPC to which they pleaded not guilty and claimed trial.
7. In order to prove its case from the side of prosecution Ram Khelawan as PW1, Dibiya as PW2, Jageshwar as PW3, Devi Singh as PW4, Raj Bahadur as PW5, Head Constable Rajendra Veer Singh as PW6, S.I. Harish Chandra Mishra as PW7 have been examined.
8. After the prosecution evidence was closed and the statement of the accused was recorded under section 313 Cr.P.C. all the accused have stated that they have been falsely implicated in this case on the ground of enmity. Accused Shiv Kumar has further stated that Ayodhya Prasad (deceased) was married in village Khaddi. Ram Khalawan was his real brother-in-law (Bahnoi). He (Ayodhya Prasad, deceased) had no issue but Ram Hetu (brother in-law of Ayodhya Prasad) and his son had started living forcibly. He has stated that Ayodhya Prasad used to look after his work himself. It is also stated that the accused Shiv Kumar, Har Narain and Veer Narain are real cousin brothers of the deceased. It is also stated that prior to this occurrence, from Ayodhya Prasad a forged will had been got executed by Pradeep Kumar and Munni Devi which was to be registered on 4.12.1980. He denied that the accused were annoyed with the deceased Ayodhya Prasad and his wife Girja Devi because he had kept Pradeep Kumar with him and because of the said will deed. He also denied that on 3.12.1980 at 6.00 P.M. accused had hatched a conspiracy to eliminate Ayodhya Prasad and Girja Devi in a hut lying on south west corner of village Banki and also denied that in pursuance of that conspiracy on 2.12.1980 at 8.30 P.M. both the said persons were murdered and their jewellery was looted away. It is also denied that he had lodged report in this regard in order to manipulate the actual facts. All the challani documents have been denied to be true and has stated that because of enmity with Anandi Paliwal, this false case was initiated against him. Similary, co-accused Mool Chand @ Tila repeated the same. Accused Har Narain has simply added this much more that Raj Bahadur etc. have been protected by police while he has been falsely implicated in this murder case. Same statement has been made by accused Veer Narain also as by other co-accused but no evidence in defence has been adduced from their side.
9. Learned counsel for the appellants has drawn attention of the Court towards the following pedigree.
Nand Ram
/
/
/ /
Mukta Prasad Badlu
_______/__________________________________
/ / /
Gopal Prahlad Dwarika
/ / /
Ayodhya Prasad / /
__________________________ _______________
/ / / / / / /
Har Narain Vir Narain Shiv Kr. Rakesh Munni Shanti Chanda
10. In the light of the above pedigree, it is argued by him that deceased Ayodhya Prasad had executed a will in favour of Munni, Pradeep and Raj Bahadur (PW5) because of which the property of Ayodhya Prasad, who was having roughly 40 acres of land, would go to the said persons after the death of Ayodhya Prasad on account of the said will and therefore, motive to kill the deceased would be to Raj Bahadur (PW5) and other persons in whose favour will had been executed rather than the accused. The motive assigned from the prosecution side is that accused Har Narain, Veer Narain and Shiv Kumar being real cousin brothers of the deceased would be deprived of the property of Ayodhya Prasad because of which they had committed murder of Ayodhya Prasad, is not tenable. It is also stated that Raj Bahadur (PW5) is ''Mama' of deceased Ayodhya Prasad. The said will was to be registered on 4.12.1980 and prior to that this occurrence has happened but after the occurrence the property has been got mutated by those in whose favour will had been executed. In fact, it is a case in which the witnesses of prosecution side got will executed and thereafter murdered the executant so that property of the deceased could be usurped. Further, it is argued that there is no credible evidence on record in respect to hatching conspiracy of causing murder of the deceased and his wife because PW3, Jageshwar is the sole witness who has stated that when he was returning from nature's call and reached near south west corner of the village where there was a hut near a channel (Nala), he heard accused Shiv Kumar, Har Narain and Veer Narain and two others persons whom he did not know and out of them, Shiv Kumar was empty handed while two others were having guns and were saying that work should be done early. Both should be murdered otherwise the land would go to the boy and thereafter they stopped talking. Shiv Kumar was also saying that he would do pairvi of the case and would secure their acquittal. It was argued that this witness did not disclose, on same day at the same time, about this to the prosecution side nor to the deceased and his wife that such kind of conspiracy was being made to eliminate them, which is unbelievable. If he had heard any such talk going on, he should not have waited for long so that occurrence would be allowed to happen, rather should have promptly given information to the deceased and his wife and other witnesses of the prosecution side. It was also argued that those who were actual killers namely, Mahavir and Chunni Singh have already been acquitted in S.T. No.74 of 1982 (State vs. Mahavir and one another), certified copy of the judgment has been produced which is dated 27.2.1986 passed by VIth Additional Sessions Judge, Hamirpur. There is no evidence against the present accused-appellants of having committed murder of the deceased, therefore, they should be acquitted and the judgment should be set aside.
11. On the other hand, learned A.G.A. vehemently defend the impugned judgment and stated that the same has been delivered in accordance with the evidence which was led by the prosecution and is well supported by oral testimony, therefore, the judgment should be upheld.
12. Ram Khelawan son of Ayodhya Prasad, r/o Khaddi, P.S Borihar, District Chhatarpur, who is brother in law of the deceased has stated in examination in chief as PW1 that the deceased Ayodhya Prasad was his real Bahnoi (brother-in-law) and the deceased Girja Devi was his real sister who did not have any issue, therefore, they had kept with them his brother, Ram Hatu Upadhyay's son Pradeep, aged about three years, since 1- ½ years, who was being brought up by his sister Girja Devi. The maternal uncle (Mama) of Ayodhya Prasad namely, Raj Bahadur was also living with the deceased for about last 7-8 years. Accused Shiv Kumar, Har Narain and Veer Narain are the real cousin brothers of the deceased Ayodhya Prasad who were annoyed with him because the deceased wanted to give his property to Pradeep Kumar, his maternal uncle Raj Bahadur and sister of Chanda namely, Munni. Regarding which a will deed had been executed by Ayodhya Prasad which was to be registered on 4.12.1980. Regarding this fact that it was to be registered, he came to know in the night of the occurrence that Ayodhya Prasad had about 40 acres of land. Six days prior to this occurrence, he (PW1) had come to the house of his Bahnoi in village Banki and prior to this also he used to come. Ayodhya Prasad and Girja Devi were murdered about two years and one month ago in the night at about 8.30 P.M. when deceased Ayodhya Prasad was warming himself in front of ''Kaura' along with Surendra @ Lallu Tiwari, Mahesh Tiwari, Shiv Nath @ Chunubad, Parsu Ram Teli and Prem Narain Brahman in front of his house. At that time, his maternal uncle Raj Bahadur was sitting in Baithak and PW1 was also sitting there at Gurvahi Bakhri. In the front of the house of Ayodhya Prasad there was electricity light. At about 8.30 P.M. he heard a shout that if anyone flees, he would be shot dead. He came out, hearing this shout and by that two fires had already been made. He saw that Ayodhya Prasad was fleeing towards south and one miscreant had made 3-4 fires upon him, getting hit by which, he fell down under-neath the Neem tree and died. At Kaura miscreants came, out of them one was having lathi, one armed with rifle and two armed with guns. After having murdered Ayodhya Prasad, three miscreants entered into the house of Ayodhya Prasad and one miscreant continued to remain standing at Chabutra in front of the house of Ayodhya Prasad. making fire. Prior to entering into the house of Ayodhya Prasad, one miscreant had beaten Surendra and Mahesh with lathis and the people who were sitting at Kaura, fled towards north. Two miscreants were standing towards south eastern side of Gurwahi Bakhari armed with guns who were stopping villagers from coming there. When miscreants were looting inside the house, PW1 came out of the house and ran towards southern direction in the village and then he saw that accused Har Narain and Veer Narain, who are present in court, were wielding guns in their hands. As soon as he passed from near them, they chased him with intention to kill but he succeeded in fleeing from there. He met Dibiya Yadav (PW2) and Chhote Bhaiya of the village but none of them was having any weapon, hence they could not counter the miscreants. After having done loot etc., when miscreants started leaving the house of deceased, Ayodhya Prasad, he had seen six miscreants which included Har Narain and Veer Narain, who are present in Court, who were well recognized in the light of electricity by him. After the miscreants having fled from there, subsequently when he along with others went inside the house of Ayodhya Prasad, he saw that his sister Girja Devi was lying dead and the jewellery and cash etc. had been looted away by them. His brother-in-law, Ayodhya Prasad and sister Girja Devi had been assassinated for greed of landed property by Shiv Kumar, Har Narain and Veer Narain. He had gone for identification of miscreants in District Jail, Hamirpur and had recognized accused Mool Chand @ Tali there by placing his hand upon him and stated that he had seen him at the time of occurrence when he had caused the occurrence in the house of deceased. He did not know him earlier and had never seen him except at the time when he had committed the crime and then when he was identified in jail, in between he had not been seen ever.
13. This witness has stated in cross-examination that his sister was married to Ayodhya Prasad about 20 years ago and since then only he has been coming to his house but for the last 7-8 years frequency had increased. Raj Bahadur who is real maternal uncle of the deceased had started living with deceased Ayodhya Prasad permanently for the last 7-8 years. Prior to 1 ½ years of this occurrence, his nephew Pradeep also started living with the deceased permanently. The date when this occurrence happened, his nephew was not near Girja Devi. Only Ayodhya Prasad and Girja Devi were killed but his nephew was not murdered by miscreants. The age of his nephew was three years at the time of incident and the deceased wanted to adopt him. The will deed was not written prior to the occurrence, who had written it, he does not know. Thereafter, he said that the same was written by Ayodhya Prasad prior to the occurrence and its registration was to be done but he cannot tell as to how many days prior to the incident, this will deed was executed. It was executed in favour of Pradeep Kumar, Raj Bahadur and sister of Chanda, Munni and he cannot tell as to why 'Godnama' was not executed and instead thereof, will deed was executed. The deceased wanted to adopt Pradeep. He also does not know whether it is necessary for will to be registered. He never realized that Ayodhya Prasad was avoiding to adopt Pradeep. He had seen the brother of Munni namely, Chanda but he does know that Chanda runs a big gang and has many cases of dacoity and murder against him. He does not know about the legal position that a person who executes a will can also change it prior to his death. He also knows Anandi Paliwal of Bharuwa Sumerpur although did not know him earlier. He is also a pairokar from the side of prosecution in this case. He has heard the name of Pratap Dwivedi, MLA but does not know him. He does not know whether Anandi Paliwal is having a case against him in respect of having fired upon the brother of Pratap Dwivedi or not. Anandi Paliwal has given statement in respect of execution of will deed. (it was clarified by the learned counsel for the appellant that he was a marginal witness of the will). When he (Anandi Paliwal) gave statement even then he could not know as to on which date the will was executed. The place where his brother-in-law, Ayodhya Prasad used to live, from there, at a distance of 200 yards, the house of Shiv Pal Singh is situated, who was killed in last Sawan Bhadon and his dead body was found near Kuraura but he does not know whether his children reside in village Banki or not as of now. He also does not know that the person whom he had identified is the same Mool Chand @ Tali who used to live at the place of Shiv Pal Singh or not but it is wrong to say that the said person whom he had identified, used to do the work of Halwai at the place of Shiv Pal Singh and he is deliberately concealing the same. He does not know that on 4.10.1980, one case was initiated against him (Mool Chand @ Tali) in respect of making fire from rifle of Shiv Pal Singh.
14. He has further stated that village Sumerpur is situated three miles away from village Banki. After the occurrence, he did not come to Sumerpur on any day. When he was called for identification, he had stayed at the police station for sometime and then he had gone to Hamirpur. He does not know whether nine days after incident, he had gone to the police station or not. The person whom he had identified was not shown to him at the police station. There is one channel (Nali) between the villages Banki and Bilhari which divides them. He knows that there is Chawkidar in village Banki but he does know whether he stays in village Banki or Bilhari. At the time of occurrence, he had raised alarm. Those four persons who had made firing upon Girja Devi and Ayodhya Prasad, none of them had made fire upon PW1 but firing was made upon Raj Bahadur. (Learned counsel for the appellant had interjected here while reading the statement of this witness and argued that Raj Bahadur (PW5) was a beneficiary of will). He has further stated that he does not remember whether he had made search for Chawkidar or not. Many people had come there and he does not know even till now whether subsequent to incident Chawkidar had gone to the police station or not. (Learned counsel for the appellant argued that Chawkidar had gone to Police station with Shiv Kumar). He has further stated that he knows that Shiv Kumar had gone to lodge report after occurrence but does not know whether Chawkidar had accompanied him. He has further stated that we were contemplating to lodge a report but by then Police Inspector had come, hence he did not go to lodge report. The Inspector himself told them that report had already been lodged. The Inspector had reached around mid night while occurrence took place around 8.30 p.m. Further this witness has stated that the witness Mahesh and Surendra had received injuries but he does not know whether they had come for giving evidence. They were having fear of accused because of which they have not given evidence. The accused harboured enmity with him (PW1) because a will had been executed by the deceased in favour of his real nephew but he does not have any enmity towards accused.
15. This witness has further stated that the Inspector had not made site plan in his presence and if the Investigating Officer has written that it was made at his instance as well as Raj Bahadur, he could not tell its reason. After the occurrence and prior to the identification of accused in Hamirpur, he had not gone there for any kind of consultation. Again he has stated that four persons who had made fire on Ayodhya Prasad were seen by him from a distance of about 8-10 paces. He does not know whether there are license holders in the village or not but at the time of occurrence no one had made fire. Details of jewellery were not know to him. He also does not remember whether accused Shiv Kumar was raising alarm in the village and was running hither and thither. He also does not remember whether Anandi Paliwal had come at the time of incident. He did not make any effort to influence the police either himself or with the aid of Raj Bahadur or his other associates. He has denied that for the greed of property, he had falsely implicated the accused Har Narain, Veer Narain and others in this case and had made false identification of accused under influence of police.
16. The testimony of this witness makes it clear that he is the real brother-in-law of the deceased Ayodhya Prasad whose brother's son namely Pradeep had been executed a will along with two others i.e. Munni and Raj Bahadur because of which the accused Har Narain, Veer Narain and Shiv Kumar, all sons of Prahlad Tiwari, were having enmity with the deceased Ayodhaya Prasad as these accused were cousin brothers of the deceased and due to the said will deed having been executed by the deceased in favour of above three persons, which included the nephew of PW1, the property of the deceased, which was huge i.e. about 40 acres of land, would go to the abovementioned three persons, in whose favour will deed had been executed. The said will was to be registered on 4.12.1980 while this occurrence has been given effect to by the accused on 2.12.1980 in pursuance of a conspiracy which was hatched with 4th accused namely, Mool Chand @ Tali and some unknown person but we find that his testimony to the effect that he had identified the accused-appellant in the light of electricity and they were coming out of the house of deceased after having given effect to the occurrence, is not believable. He appears to have reached at the place of incident after hearing two fires and then he saw Ayodhya Prasad fleeing towards south who was being chased by one miscreant whom he has not named and further three miscreants who had entered, according to him, in the house of the deceased and one who was standing out at Chauraha, so as to stop the villagers coming from there, have not been named but he has stated that the accused Har Narain and Veer Narain were wielding guns who were seen by him when he managed to get out of the house where incident occurred. The said statement does not appear to prove that these accused namely, Har Narain and Veer Narain, were actually the persons who made assault by fire arm upon the deceased. This witness has stated that he had recognized the accused Mool Chand @ Tali only in the District Jail, Hamirpur, to be the same person whom he had seen at the time of occurrence but possibility cannot be ruled out of making false identification of this accused as it was night time and this accused was not known to him earlier. As regards other three accused, out of whom Har Narain and Veer Narain had been stated to have been seen, when they were running towards south of the village, after he having managed to get out from house, also does not appear to be believable because there was deep rooted animosity between PW1 and these accused, who were cousin brothers of the deceased and there was property dispute on account of a will having been executed by the deceased in favour of nephew of PW1, therefore, there could be possibility of PW1 of falsely implicating these accused. It is also apparent from the statement of this witness that no FIR was admittedly lodged by him or any of his companions only on the pretext that the police had arrived and therefore when they were told that FIR had already been lodged by the accused Shiv Kumar, they did not lodge the same. The said justification seems to be improper because if this occurrence happened in front of his eyes, he ought to have lodged the report promptly by going to the police station, which in this case the accused Shiv Kumar who had lodged the report at the police station has been made accused by the police.
17. Dibiya son of Bhairo Yadav has stated in examination in chief as PW2 that he knows both the deceased as well, who were resident of village Banka and were murdered about two years one month ago. At the time of this occurrence, he was at home and after hearing the sound of fire and having heard noises, come out of the house and proceeded towards the house of Ayodhya Prasad from his house. On the way Chhote Bhaiya met him and both of them together went towards the house of Ayodhya Prasad and saw that accused Har Narain and Veer Narain were standing armed with guns towards south eastern corner of Gurvahi Bhakhri of Ayodhya Prasad and told them that it was their family dispute and if anyone comes forward, he would be killed. At this, they stood on the passage and from the said place, where they were standing, they saw the occurrence in the light which was emitting out of the house of Shiv Nath Verma. For about ½ hours, the incident of dacoity continued to happen in the house of Ayodhya Prasad and after the miscreants, having committed dacoity, were passing from the passage where they were standing, he saw them and that Ram Khelawan (PW1) was also standing near him. He has further stated that he had identified Har Narain and Veer Narain who were included in the miscreants and were armed with guns. Rests of the miscreants were also identified by their face in the light of electricity.
18. In cross-examination, this witness has stated that his house is situated 200 paces away from the house of Ayodhya Prasad. He heard sound of fire at about 8.30 p.m. By that time he was taking meals. He had left the food midway, hearing the noises. There was enough light near the house of Ayodhya Prasad. He had gone empty handed at the place of incident. He did not make any effort to call any person who was having licensed gun. When he had started from his house, he was convinced that dacoity was being committed. From the side of village, Ram Nath's son namely, Bhupal was making fire, who is a tailor. Lallu Singh had also a licensed gun. Prahlad is Chowkidar of the village, who lives in village Bilhani, who had come after the occurrence but he cannot tell whether he had talked to the family members of Ayodhya Prasad or not but he had seen the dead bodies. He could not know whether Chawkidar had gone with Shiv Kumar (accused) to lodge the report. He had stayed at the said place for sometime and went home. He could not know that Inspector had come in the night. Investigating Officer has called him at the house of Ayodhya Prasad in the evening to interrogate him but his thumb impression was not taken and thereafter he had stayed in the village and was never interrogated by the Investigating Officer. He cannot tell as to how the Investigating Officer has not written his statement recorded on the next day. He has also stated that no site plan was prepared in his presence. He also stated that for identification of accused he had come to Hamirpur after two months of the occurrence and denied that he had not seen the occurrence and was giving false statement.
19. From the above statement, it is apparent that though he is an independent witness, who has stated to have come at the place of incident after having heard the sound of firing and that when he, accompanied with Chhote Bhaiya, was approaching the house of the deceased, accused Har Narain and Veer Narain were found standing armed with guns in the south eastern corner of the Gorvahi Bakhari of the deceased who stopped both of them from proceeding ahead and hence he continued to see the dacoity happening from a distance which continued to take place for about ½ hours and he kept standing there only and after the dacoits had committed dacoity then passed through the same way, where he was standing. The said statement appears to be not very natural because the dacoit would not leave this witness alive had be been observing them committing dacoity, which also included committing of murder of two persons namely, Ayodhya Prasad and his wife Girja Devi. This witness has no where stated that the Ayodhya Prasad was killed outside the house and his wife was killed inside the house by the said miscreants, which is the prosecution case and was also stated so by PW1. Therefore, in the version of PW1 and present witness there is huge discrepancy with respect to the deceased Ayodhya Prasad having been killed by the accused outside the house and this would make the statement of this witness to be doubtful with respect to his presence on the scene of occurrence. His statement does not inspire confidence with respect to his being eye witness of this occurrence.
20. We have also gone through the site plan in order to appreciate the statement of the eye witnesses to find out whether their statements are in consonance with it. In the site plan Exhibit Ka-10 by ''A' is shown the place where the deceased Ayodhya Prasad was warming himself in front of Kaura and by ''B' is shown the door of his house which was opened by the miscreants to go inside the house and by ''C' is shown the place where his wife Girja Devi's dead body was found (since the site plan is found in torn condition, hence the said place is not visible). By ''D' is shown the place from where the miscreant had taken away cash and other jewellaries etc. By ''E' is shown the place where Ram Khilawan was standing and by ''F' is shown the place where dead body of Ayodhya Prasad was lying and by arrow is shown the passage from where the miscreants had come and after having looted and committed murder, had fled.
21. The site plan does not indicate as to from where PW2 has seen the occurrence nor has it been shown as to from where Ram Khilawan had seen the occurrence. In the light of the site plan, the statement of PW2 cannot be held to be believable as he has not deposed that he had seen the dead body of Ayodhya lying in front of the house in open. Had he been present there, certainly he would have seen the dead body of Ayodhya Prasad lying in the open in front of the house. He has merely stated about the dacoity being committed inside the house and therefore, it cannot be held that he had seen either deceased Ayodhya Prasad or his wife being killed by any of the accused-appellants.
22. It may also be mentioned here that in this case genuineness of the postmortem of the two deceased has been admitted by the defence. Both the postmortem reports are only carbon copy of the original which are extremely illegible and therefore, we are unable to write injuries found on the bodies of the deceased. However, it may be mentioned here that one deceased appears to have suffered five ante-mortem injuries, out of which, three were guns shot wounds and one contusion and one abrasion, while other deceased appears to have suffered as many as 14 injuries and all appeared to be gun shot wounds. Though it is not disputed that the two persons had died in the occurrence but question is as to who had actually caused their death and we have to see as to whether prosecution has been able to prove the case on the basis of evidence that the accused-appellants were persons who have caused this occurrence.
23. Jageshwar son of Bhagirath who is labour of the village Banki has been examined as PW3, who has stated in examination in chief that at about 6.00p.m. in the evening when he was returning from nature's call and passed through the passage by the side of which the hut was constructed, in the south west side of the village near channel (Nala), in that hut Shiv Kumar, Har Narain, Veer Narain and two other persons, whom he did not know, and out of these persons, Shiv Kumar was empty handed, while two others were having guns, were together and Shiv Kumar was telling these persons that work should be done with alacrity and both should be done to death otherwise land would go to the boy. They were also saying that two men were still left. In the meantime, they stopped talking. Shiv Kumar was stating that he would get them acquitted from court, after doing pairvi. In the same night, Ayodhya Prasad and his wife were murdered.
24. In cross-examination, this witness has stated that the said hut was situated about 100 yards away from Abadi. When he had heard Shiv Kumar saying above things, there was little dark. No one could be seen from a distance of 20 yards. He had seen Shiv Kumar and other persons from that very distance. They were sitting inside the hut and he (PW3) was standing out of it and had recognized them by their voice as to who were in the hut. From there, he straightway went home and did not go to the house of Ayodhya because he was feeling hungry. After the murder of Ayodhya, he did not go to his house because of fear. Between the house of Ayodhya Prasad and his own house, there is an open plot. When the police had arrived next day in the morning he had gone there. He did not tell about this fact to the police on the said date because he was not asked about it. In the morning, he had met Ram Khilawan and Raj Bahadur and when police had come, but even then, he did not tell about this. Further, he has stated that his mother had lodged a report against Shiv Kumar and his brothers on the basis of suspicion. About 5-6 years ago he had a quarrel with Chanda but he does not know whether in the matter of that quarrel Har Narain (accused) was a witness or not. He denied that he was giving false statement before the Court.
25. The statement of this witness is found to be totally unbelievable because he has stated to have identified, as to who all were inside the hut hatching conspiracy of murdering two deceased, by their voices. Moreover, he instead of breaking this news that both the deceased are going to be murdered, did not inform about it to them rather went home on the pretext that he was hungry, does not appear to be natural. He is the sole witness who has been produced from the side of prosecution to prove that conspiracy which was being hatched by abovenamed two accused of murdering two deceased in association with two other unknown persons. We find that the testimony of this witness does not inspire confidence with respect to conspiracy being hatched by the accused person to murder the deceased.
26. Devi Singh son of Ram Prasad has been examined as PW4, who is a resident of Sumerpur, has stated that he knows both the deceased as well as Shiv Kumar accused. Shiv Kumar had met 13 days after the murder of deceased in Bazar of Sumerpur and had asked for his help because he had got involved in murder of two deceased. He confessed his guilt before him saying that he got two deceased murdered by mistake, because the deceased Ayodhya Prasad wanted to give his property to the son of his brother-in-law and maternal uncle. He has also told him that PW4 used to come to Police Station and therefore, he should help him in this matter.
27. In cross-examination this witness has stated that he had enquired from Shiv Kumar as to how all this was done by him. He did not enquire from him as to how he got the deceased murdered although he had definitely stated this fact to the Investigating Officer but he did not go to police station in parivi of the said accused. Shiv Kumar used to meet him on the dates fixed in Court. The village of Shiv Kumar was about 2-2 ½ kos from his village. Shiv Kumar knew him from before although he had never gone to the house of Shiv Kumar, only they used to meet in Bazar. He has never helped Shiv Kumar in any other matter because he had never asked for it. He often goes to the police station and had himself told about it to the Investigating Officer that Shiv Kumar had stated to have that he committed this offence. He had told the Investigating Officer about this fact that Shiv Kumar had told him that he had got Ayodhya Prasad murdered, 16 days after the murder.
28. The said testimony, we do not find trustworthy because why the accused Shiv Kumar would make extra judicial confession before this witness unless he was in a position to help him or to get him acquitted from this murder case. Nowhere in evidence has it come that this witness had enough clout with police to get him exonerated secure his acquittal in Court. A person would make such kind of confession only before a person who would be competent enough to give such kind of help. We find that PW4 who is having no closeness with the accused Shiv Kumar, as is evident from the statement that they used to meet sometimes only in the market, therefore, there was no reason for the accused Shiv Kumar to confess before him.
29. Raj Bahadur son of Chhote Lal has stated as PW5 in examination in chief that the deceased Ayodhya Prasad was his nephew (Bhanja) and Girja Devi was wife of Ayodhya Prasad. The name of grand-father of Ayodhya was Munna Prasad who had one brother, namely Badlu. Badlu had three sons, namely Gopal Prasad, Dwarika Prasad and Prahlad. Deceased Ayodhya Prasad was son of Gopal Prasad. Dwarika Prasad has one son, namely Chandra Prakash and two daughters namely, Shanti Devi and Munni Devi. Prahlad had three sons namely, Shiv Kumar, Har Narain and Veer Narain (three accused) and Rakesh. These three accused namely, Shiv Kumar, Har Narain and Veer Narain are present in Court. Further he has stated that Ayodhya Prasad was married in village Khaddi in district Chhatarpur, M.P. He had no issue, hence had kept his brother-in-law's son Pradeep Kumar aged about three years who had started living with him since last eight years prior to the occurrence. Because of keeping Pradeep Kumar, the relations between Shiv Kumar and deceased Ayodhya Prasad were not good. The deceased Ayodhya Prasad had executed will deed of his 4- acres of land in favour of Pradeep Kumar, Munni Devi and PW5 which was to be registered on 4.12.1980. Further, he has stated that about three years and four months ago at about 8.30 P.M. he was lying in Baithak of Ayodhya Prasad (deceased) and deceased himself was warming in front of Kaura along with Surendra, Mahesh, Prem Narain, Chunuvad and Parshu Ram. There was lot of electricity and right then, four miscreants came there, two out of them were armed with guns, one with rifle and one with lathi and soon after coming, all of them started exhorting, pursuant to which they fired upon Ayodhya Prasad. When PW5 came out from Baithak, by then fire was also made by which Ayodhya Prasad received injury in his hand and ran away from there. He was chased by the miscreants firing upon him and ultimately beneath the Neem tree, he was killed by all the accused after surrounding him. Mahesh and Surendra who were warming in front of Kaura, were also beaten by lathi and have received injuries by it. They were beaten away. Two miscreants were standing towards south east of the Gurvahi of Ayodhya Prasad armed with guns and three miscreants had entered house of Ayodhya Prasad and started firing and inside the house, wife of Ayodhya Prasad was also killed and gun, cartridges and jewellery were looted away. The brother-in-law (Sala) of Ayodhya Prasad namely Ram Khilawan was also lying in Gurvahi Bakhari. Thereafter Ram Khilawan raised alarm, after which the miscreants fled towards south with looted articles. He has further stated that Ram Khilawan had told him that these miscreants who were standing towards south east of Gurvahi Bakhari armed with guns were, Har Narain and Veer Narain. Further he has stated that he had gone to identify the miscreants to District Jail and after pointing out towards accused Mool Chand alias Tali, stated he was identified by him in jail and that prior to occurrence he had seen him for the first time and thereafter he saw him in jail and between that period he had not seen him nor did he recognize him. He has also stated that Mahesh, Surendra, Chhotey Baiya had colluded with the accused persons.
30. He has stated in cross-examination that the two persons who were standing to the south east of Gurvahi Bakhari of Ayodhya Prasad, he could not recognize them but Ram Khilawan, PW1 had told him about them, in the night itself about 10-11 P.M. although the occurrence had taken place at 8.30 p.m. About this he was told by PW1 at the house of Ayodhya Prasad itself. Chawkidar had not come after the incident. Ram Khilawan had not gone for lodging report after occurrence rather remained only with the dead bodies. The Inspector came at the scene of occurrence and inspected the same and prepared site plan. He had shown the place where Surendra and others were warming themselves in front of Kaura and had also shown the place where he was lying in Baithak. After the instigation made by the miscreants, first fire which was made upon Ayodhya Prasad, did not hit him, soon after the first fire PW5 came out from Baithak and Ayodhya Prasad was fired again, by that time he was about 2-4 paces away from him and on that fire he had shouted ''Key Bhai Kyon Maar Rahe Ho" but all the four miscreants did not assault him (PW5). Thereafter, when the miscreants entered into the house of Ayodhya Prasad, PW5 was standing outside of it and was screaming. After the occurrence, large number of villagers had come there. He became nervous because of which he had apprised about this occurrence to many persons and these persons had seen the occurrence themselves also. He did not see Chawkidar soon after the occurrence. It is not so that when Chawkidar reached there. He alongwith others concealed themselves. He does not know as to when Chawkidar had reached at the place of incident and whether he had gone to police station Sumerpur for lodging the report with accused Shiv Kumar. He has further stated that he knows that on the report made by Shiv Kumar, the Inspector had come in the night at the scene of occurrence but Anandi Paliwal had not reached there. At the time when site plan was prepared by Inspector, Ram Khilawan was present there. The names of these two miscreants who were standing towards south east of Gurvahi Bakhari, whose names he had known by then, were not disclosed to the Inspector and nor could tell its reason as to why he had not disclosed the names to the Investigating Officer. Dwarika had already died and Chandra Prakash had also been murdered prior to this occurrence, who is also known as Chanda but he does not know whether Chanda was member of any hardened gang. He has further stated that Godnama is required to be registered. On the basis of the will deed, mutation has been done. Ayodhya Prasad was aged about 40-45 years and Girja Devi was aged about 38 years but he cannot tell as to what was in their mind and whether they could still have any issue. It is wrong to say that he was making false statement in collusion with his companions and the police had falsely implicated the accused and has also denied that when accused were in jail, he had prepared a forged will and had got the mutation done on its basis. He has further stated that he does not know as to how many days prior to this occurrence, the said will deed was written. Since about eight years ago, he was staying with Ayodhya Prasad and in the meantime he never went to Sumerpur, which is about 2 kms. away from the village Banki. People of Banki hold market in Sumerpur. The person whom he had identified, was never seen by him in any hotel in Sumerpur. Shiv Pal Singh resides in village Banki. He was killed after this occurrence and had a licensed gun. He had never seen Mool Chand @ Tali (accused) with Shivpal Singh nor does he know that any case was registered against Shivpal Singh in Kotwali. He knows Balvir Singh of village Banki but he does not know whether he had taken surety against Mool Chand nor did he ever see Mool Chand @ Tali in the house of Shivpal Singh or Balvir. He does not know whether he had identified the accused after his arrest and it is wrong to say that police had already shown the accused at police station and that under influence of police he had identified the accused Mool Chand @ Tali.
31. This is a most important witness of prosecution case, who is the maternal uncle of the deceased, in whose favour the deceased had executed will along with two others mentioned above which was to be registered on 4.12.1980. He has stated himself to be present in the house of the deceased on the date of incident but his testimony to the effect that when he saw four miscreants assaulting by fire arm on the Ayodhya Prasad (deceased) he was just 2-4 paces away and also had shouted upon the accused "Bhai Keyon Maar Rahe Ho" yet all the four miscreants did not assault him at all, the said statement itself seems to be unbelievable because despite being there so near to the miscreants and upon his telling as to why the deceased was being fired, no such miscreant made any assault upon him, it is unnatural. In such situation, the miscreant would certainly have assaulted him also, had he been there. It is also stated by him that two accused namely, Har Narain and Veer Narain were seen by him armed with guns towards south east of the Gurvahi Bhakhari of the deceased whose names were disclosed to him by PW1 Ram Khilawan and therefore, it is likely that this statement was being given by him at the instance of Ram Khilawan and he did not see them personally. Therefore, this statement would fall in the category of hearsay evidence, hence not believable and his presence on the scene of occurrence is doubtful. The entire testimony of this witness shows that at one place he has stated that four miscreant had come, while at other place he has stated that two out of them were standing to the south east of the Gurvahi Bakhari while three had entered into the house of deceased, which would mean that there were five miscreants, on this count also that he is not giving exact number of the miscreants, his testimony is found to be suspect. He has admitted the enmity with the accused side because of the deceased having executed will in his favour as well as in favour of Pradeep and Munni who were the beneficiary of the said will. Because of that will the right of accused persons who were cousin brothers of the deceased in that property would be adversely affected. Therefore, due to that animosity, it cannot be ruled out that this witness may be deposing against the accused.
32. Rajendra Veer Singh, Head Constable has stated as PW6 in cross examination, who is formal witness, that he had prepared chik report and G.D. etc. He has stated that the police station Sumerpur is situated about 100-200 yards away from bus stop but he cannot tell whether the accused Mool Chand @ Tali lives near the bus stop. He has denied the suggestion that he had got the accused identified at the police station and that the accused had been taken away from home.
33. Harish Chandra Mishra, who had conducted investigation of this case, has stated in cross-examination as PW7 that the report of this case was lodged by accused Shiv Kumar, who had come along with Munna son of Chhote and Chawkidar Prahlad, who was Chawkidar of village Dilhari which is adjacent to the village Banki and was also looking after village Banki. Soon after the registration of the case, he had gone to the scene of occurrence and reached there at 12.00 hours i.e. mid night. At that time near the dead body of Ayodhya Prasad, his maternal unclel (PW) Raj Bahadur and his brother in law Ram Khilawan (PW1) were present but their statements were not recorded by him at that time because he had seen the miscreants in the flash of torch and therefore after recording the statement of informant Shiv Kumar, he proceeded in search of the miscreants. He had recorded the statement of accused Shiv Kumar on 3.12.1980 and took about 30 minutes to complete it and at that time Raj Bahadur and Ram Khilawan were present. These two persons i.e. PW1 and PW5 did not give him liberty to talk to them. He went near the villages in search of the accused/miscreants and continued to search them till morning and returned at about 7.00 A.M. He does not know Anandi Paliwal of Sumerpur and has denied the suggestion that after stopping investigation, he had gone Sumerpur and that after consultation with Anandi Paliwal, he began the investigation. Further he has stated that he does not know that Anandi Palaiwal is a witness in the will deed which was got executed by Raj Bahadur (PW5) from Ayodhya Prasad (deceased) and denied that at the instance of Anandi Paliwal as well as Raj Bahadur, he had given different shape to this case. He had arrested the accuse Mool Chand @ Tali from Dev Gaon and not from Sumerpur but does not know whether he had any shop at Sumerpur Bus stand nor does he know that he was working at the place of Shivpal Singh r/o village Banki. He also does not know that a case was registered against Mool Chand @ Tali regarding taking away gun of Shiv Pal Singh. He has denied that he had got the accused Mool Chand @ Tali identified by the witness at the police station. He has also stated that the site plan was prepared by him at the instance of PW1 and PW5 and has not mentioned the names of accused Har Narain and Veer Naarain therein and it was prepared by him at 11.30 A.M. The witnesses had made reference of the will but the same was not produced before him when it was asked for. Further, he has stated that the statement of Ram Khilawan and Raj Bahadur PW1 and PW5 were recorded on 3.12.1980 in Parcha no. 2. But in none of the parchas the stamp and seal of receiving in the office of C.O., is not found and denied that the same was prepared much later. He has also stated that on 22.12.29180 he has recorded the statement of Diviya PW2 in village Banki because he could not find him earlier. He did not record statement of Jageshwar son of Bhagirath resident of village Banki rather has recorded the statement of Jageshwar son of Fakeera resident of village Banki. He has also admitted that he did not make the site plan of the place where the conspiracy of committing this dacoity and murder was hatched as he did not find it necessary. Witness Raj Bahadur had disclosed him the identity of dacoit. He has also stated that both the witnesses PW1 and PW5 could not tell him the types of jewellery and its quantity which were looted away in this incident and he did not take statement of sister of Chanda because she was not present there.
34. This witness is the Investigating Officer of this case who has clearly stated that he did not prepare site plan of the place where the conspiracy for giving effect to this occurrence was stated to have been hatched which was very essential. It is also apparent from his statement that he has made the informant of this case namely Shiv Kumar to be an accused along with his two other brothers and Mool Chand @ Tali and does not appear to have investigated the case along with line that there could be possibility of PW5 (one of the beneficiaries of the will deed executed by the deceased Ayodhya Prasad) in association with other persons being involved because after execution of will property would go to the beneficiaries and therefore there could be possibility that the beneficiaries could eliminate the executant of the will in order to get the property mutated in their favour. It has come in evidence that after murder of Ayodhya Prasad, these beneficiaries have already got the said property mutated in their name. This witness has admitted that despite the reference of will having been made by the witness in front of him, he did not press vehemently to get the said will presented before him although he has stated that he had asked for the same but was not given the same. It shows that he was not very keen to procure the same. He also does not appear to have investigated the matter deeply because PW1 and PW5 who were present on the spot and are stated to have been found by the Investigating Officer to be with the dead bodies when in the night the Investigating Officer reached there, as to why they did not lodge the report in respect of occurrence forthwith and instead kept on waiting and were satisfied that one of the accused namely, Shiv Kumar had already lodged the report in respect of this occurrence. This raises question of fair investigation made by this witness as well. We find, according to prosecution, this occurrence took place on 2.12.1980 at 8.30 P.M. and the report has been promptly lodged on the same day at 11.320 A.M. though the distance of the village Banki where incident took place is six kms. from the police station. This report is lodged by accused Shiv Kumar who has subsequently been made an accused though he was informant of this case on the basis of the investigation.
35. The main argument raised by the learned counsel for the appellant is that the incident is stated to have taken place at 8.00 P.M. which was night time and as per FIR six miscreants are stated to have come there armed with fire arm weapons and Lathi and shot dead Ayodhya Prasad outside his house and thereafter entered his house and shot dead his wife also namely, Girja Devi and looted away lot of jewellery and SBBL gun which was a licensed gun of Ayodhya Prasad. It is argued that the accused Shiv Kumar who was informant, along with other brothers namely, Har Narain, Veer Narain had no reason to cause murder of Ayodhya Prasad and his wife particularly when a will had been executed by Ayodhya Prasad in favour of Pradeep, PW5 and Munni, therefore, by causing death, the said property which was being owned by deceased, would go to the beneficiaries of the will i.e. the above three persons. It is further argued that two main assailants namely Mahavir and Channu Singh have already been acquitted vide judgment and order dated 27.2.1986 passed by the IVth Additional Sessions Judge, Hamirpur in S.T. No. 74 of 1982 and evidence has come on record in the present case, does not indicate that the so-called eye witnesses PW1, PW2 and PW3 to PW5 have seen this occurrence. There is no doubt that this occurrence has happened in which two lives have been lost, which is nothing but a case of dacoity committed by unknown accused but looking to the fact that the accused were having enmity due to the huge property of the deceased and from the witnesses of prosecution side, they have been falsely implicated. We have already given opinion in respect of presence of PW-1, Ram Khilawan being at the place of incident to have been not proved because he has simply stated in examination in chief that he had seen in the light which was emitting from the house of Ayodhya Prasad when PW1 came out, hearing noise of fire arm and saw Ayodhya Prasad was fleeing towards south and the miscreant had made 3-4 fires upon him and getting injured he fell down and died under neath the Neem tree. This much has come in his evidence that when he managed to come out from the house of deceased Ayodhya Prasad, they were indulging in loot and Har Narain and Veer Narain were having guns in their hands and when he passed through passage where they were standing, did not have any fear. Location of these two accused is not found shown in the site plan nor has it been shown as to from where PW1 had seen the said two accused standing armed and whether they chased him. Though he has claimed to have recognized all the accused in the light of electricity but despite him being there on the spot and having seen the said two accused Har Narain and Veer Narain, he did not go to the police station to lodge report stating therein names that they were involved in giving effect to this occurrence along with some unknown person which is beyond comprehension. He has no where stated that these two accused namely, Har Narain and Veer Narain had made any fire upon the deceased and therefore, there does not appear to be any direct role in this occurrence assigned to these accused.
36. It may also be mentioned here that prosecution case is that a conspiracy was hatched by the accused side in order to eliminate Ayodhya Prasad and his wife and in this regard one witness namely, Jageshwar PW3 was produced. His statement has already been analyzed by us and has been found to be not believable because he had stated that when he was passing through the hut, inside it conspiracy was being hatched by the accused. He had recognized them by their voices and even after having come to know of this conspiracy, he did not go to tell about it to the deceased Ayodhya Prasad and his wife on false pretext that he was too hungry. No person under such circumstances where a conspiracy of being killed is being hatched and has come to know about it, could stop himself from telling about it to the person regarding whom the said conspiracy was being hatched. His conduct was absolutely unnatural. There is no other testimony on record of any other witnesses with respect to such kind of conspiracy being hatched. We are of the view that the prosecution has failed to prove that any conspiracy was hatched by the accused persons to eliminate the two deceased.
37. We have also discussed in detail the statement of Devi Singh PW4 who is a witness of the fact that before him the accused Shiv Kumar had confessed to have committed this offence and sought his help. It has been held by us that his testimony is not trustworthy because Devi Singh was not in a position to help him out in any manner the accused and in such situation there was no occasion for the accused to appear before him and confess the guilt. Moreover, the evidence of extra judicial confession is a weak kind of evidence which cannot be relied upon solely and would require corroboration.
38. We would like to rely upon the law laid-down by Supreme Court in Ram Lal vs. State of Himachal Pradesh delivered on 3.10.2018 in which it is held that if the court is satisfied that the confession is voluntary, conviction can be based upon the same. Rule of prudence does not require that each circumstance mentioned in the confession with respect to participation of the accused must be separately and independently corroborated. But in this very case, it has also been held that it is well settled that conviction can be based on voluntarily made confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. The extra-judicial confession need not in all cases be corroborated. In this very case, it is also mentioned that accepting admissibility of the extra-judicial confession, the Court in Sansar Chand vs. State of Rajasthan (2010) 10 SCC 605 has held that "29. There is no absolute rule that an extra-judicial confession can never be the basis of conviction, although ordinarily an extra-judicial confession should be corroborated by some other material." In this very judgment it is also mentioned that extra-judicial confession is a week piece of evidence and that the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that extra-judicial confession is voluntary, it can be acted upon to pass conviction.
39. PW2 who has also been produced as eye witness of the occurrence, has been disbelieved by us for the reason stated above. PW5 is an eye witness and beneficiary of the will which was stated to have been executed by the deceased, his testimony has also been found not believable because the two accused Har Narain and Veer Narain have been stated to be wielding guns by him only on the basis of statement of PW1 whose testimony has already been held to be suspect.
40. On the basis of the above analysis, we come to the conclusion that the trial court has not appreciated the evidence in proper manner and has wrongly held the accused-appellant guilty despite there being no sufficient evidence on record. They are acquitted of charges levelled against them.
41. Accused namely Shiv Kumar, Har Narain, Veer Narain, Mool Chandra are on bail. Their personal bonds and sureties bonds stand discharged. They need not surrender. However, the trial court shall take bail bonds from these accused under section 437-A Cr.P.C.
42. Let a copy of this judgment be transmitted to the trial court along with lower court record with a direction that bail bond in terms of section 437-A Cr.P.C. shall be taken by the trial court from all the accused.
43. Appeal stands allowed.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Order Date :- 30.5.2019
AU