Allahabad High Court
Aniruddha vs State Of U.P. on 15 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 440, (2019) 2 ALLCRIR 1465 2019 (5) ADJ 8 NOC, 2019 (5) ADJ 8 NOC
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on: 10.01.2019 Judgment delivered on: 15.2.2019 Court No. - 1 Case :- CRIMINAL APPEAL No. - 5292 of 2016 Appellant :- Aniruddha Respondent :- State Of U.P. Counsel for Appellant :- Ved Prakash Shukla,Manish Tiwary Counsel for Respondent :- G.A.,Jitenrda Kumar Ojha,Lal Chandra Mishra (connected with) Case :- CRIMINAL APPEAL No. - 5489 of 2016 Appellant :- Phool Chand And Another Respondent :- State Of U.P. Counsel for Appellant :- P.K. Singh,Amarnath Tiwari,Dev Prakash Singh,Girja Shanker Mishra Counsel for Respondent :- G.A. (connected with) Case :- CRIMINAL APPEAL No. - 5617 of 2016 Appellant :- Heeralal Tiwari And Another Respondent :- State Of U.P. Counsel for Appellant :- Mahendra Prasad Mishra,Rajiv Lochan Shukla Counsel for Respondent :- 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 Amarnath Tiwari, Sri Manish Tiwary, Sri Rajiv Lochan Shukla, learned counsel for the appellants and Sri S.K. Pal, learned Government Advocate assisted by Sri J.P. Tripathi, learned A.G.A. for the State.
2. Criminal Appeal No. 5292 of 2016 has been preferred by the appellant Aniruddha S/o Mata Badal, against the judgment and order dated 21.9.2016 passed by Special Judge, D.A.A. Act/Additional Sessions Judge, Court No. IV, Chitrakoot in S.S.T. No. 240 of 2006 arising out of Case Crime No. 53 of 2006 (State of U.P. Vs. Aniruddha), u/s 148, 201/149, 404/149, 427/149, 302/149 IPC and u/s 14 D.A.A. Act, P.S. Manikpur, whereby the appellant has been sentenced as mentioned in the chart below.
3. Criminal Appeal No. 5489 of 2016 has been preferred by the appellants- Phool Chandra S/o Jwala Prasad Dubey, Sunil Dwivedi S/o Mewa Lal against the judgment and order dated 21.9.2016 passed by Special Judge, D.A.A. Act/Additional Sessions Judge, Court No. IV in S.S.T. No. 226 of 2006 arising out of Case Crime No. 53 of 2006 (State of U.P. Vs. Phool Chand and another), u/s 148, 201/149, 404/149, 427/149, 302/149 IPC and u/s 14 D.A.A. Act, P.S. Manikpur, whereby the appellants have been sentenced as mentioned in the chart below.
4. Crl. Appeal No. 5617 of 2016 has been preferred by Heera Lal Tiwari S/o Rajaram and Hari Shankar Tiwari S/o Sundar Lal Tiwari against the judgment and order dated 21.9.2016 passed by Special Judge, D.A.A. Act/Additional Sessions Judge, Court No. IV in S.S.T. No. 226 of 2006 arising out of Case Crime No. 53 of 2006 (State of U.P. Vs. Phool Chand and another), u/s 148, 201/149, 404/149, 427/149, 302/149 IPC and u/s 14 D.A.A. Act, P.S. Manikpur, whereby the appellants have been sentenced as mentioned in the chart below:-
5. It may be clarified here that the trial court has decided S.S.T No. 226 of 2006 and S.S.T. No. 240 of 2006 together because they related to the same offence.
Sr. No. Name 148 IPC 201/149 IPC 404/149 IPC 427/149 IPC 302/149 IPC and 14 D.A.A. 1 Phool Chand 6 months R.I. Fine Rs. 5,00/-
In default of payment of fine, additional imprisonment of one month 5 years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of one year 5 years R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months 1 year R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months Life imprisonment with no remission, Fine of Rs. 5,000/- In default of payment of fine, additional imprisonment of three years 2 Heera Lal Tiwari 6 months R.I. Fine Rs. 5,00/-
In default of payment of fine, additional imprisonment of one month 5 years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of one year 5 years R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months 1 year R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months Life imprisonment with no remission, Fine of Rs. 5,000/- In default of payment of fine, additional imprisonment of three years 3 Sunil Dwivedi 6 months R.I. Fine Rs. 5,00/-
In default of payment of fine, additional imprisonment of one month 5 years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of one year 5 years R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months 1 year R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months Life imprisonment with no remission, Fine of Rs. 5,000/- In default of payment of fine, additional imprisonment of three years 4 Hari Shankar Tiwari 6 months R.I. Fine Rs. 5,00/-
In default of payment of fine, additional imprisonment of one month 5 years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of one year 5 years R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months 1 year R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months Life imprisonment with no remission, Fine of Rs. 5,000/- In default of payment of fine, additional imprisonment of three years 5 Aniruddha 6 months R.I. Fine Rs. 5,00/-
In default of payment of fine, additional imprisonment of one month 5 years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of one year 5 years R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months 1 year R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months Life imprisonment with no remission, Fine of Rs. 5,000/- In default of payment of fine, additional imprisonment of three years
6. Since these appeals arise out of the same S.S.T., we are deciding them together.
7. In brief the facts of the prosecution case are as follows.
8. As per the first information report, which is lodged by Chunni Lal Mishra, the facts of the case are that his brother Munni Lal Mishra S/o Dwarika Prasad Mishra along with his son Bhakku @ Harish Chandra Mishra had gone for getting diesel filled in his tractor and for its repair by their Tractor Taifi No. U.P. 96 A-1306 on 11.8.2006 from his house in village Mau-Gurdari to Manikpur within the jurisdiction of P.S. Manikpur, District Chitrakoot and when he was returning from there, just before village towards south of the Gadhva Ghat towards (Athrahaghat) Gram Sabha- Uncha Deeh at about 7:45 pm, the men of the gang of Dadua got the said tractor halted and, thereafter, his brother Munni Lal and nephew Bhakku @ Harish Chandra Mishra were shot dead by the men of the said gang and the diesel, which was kept on the cultivator in drum, was also fired at, so that diesel spread out of it and the said diesel was allowed to so spread so that it reached both the deceased who were burnt with its help and, thereafter, the rear right wheel was also burnt and 12 bore licensed gun of his brother Munni Lal was also taken away. In the light of burning of tractor and the dead bodies of the deceased, the informant and various other persons of the village had seen the dacoit Dadua and his companions fleeing towards southern pahad. The dead bodies were lying on the place of incident and also empty cartridges were lying there. Because of the said area being a jungle and because of there being fear of miscreants/dacoits he could not go in the night for lodging the report and, therefore, he gave written report (Ext. Ka-3) at the P.S. on 12.8.2006 at 6:30 a.m. which was registered as Crime No. 53 of 2006 against only Shiv Kumar @ Dadua and the men of his gang under Sections 147, 148, 149, 302, 201, 404 and 427 IPC.
9. The informant Aditya Tiwari (PW-1) gave written report (Ext. Ka-3) at P.S. Manikpur, whereon Head Constable Ranjeet Singh (PW-6), registered Crime No. 43 of 2006 on 12.8.2006 at 6:30 a.m., u/s 147, 148, 149, 302, 404, 427 IPC against Shiv Kumar @ Dadua and members of his gang, thereafter, Chick F.I.R. of it was prepared by him in his hand writing which is Ext. Ka-21 and he made entry of this case in G.D. (Ext. Ka-22) at report No. 6, time 6:30 hours on 12.8.2006.
10. The investigation of this case was handed over to Raj Kumar Singh, S.I., (PW-5). He has stated in examination-in-chief that on 11.8.2006, he was posted as S.H.O. of P.S. Manikpur. On 11.8.2006, he along with S.I. Mata Fer Singh, S.I. Noor Mohammad, HCP, Sri Vyas Muni Mishra, Constable Narendra Singh and Constable Sooraj Bali departed vide G.D. Report No. 31, time 20:20 hours in search of wanted criminals of IS 112 Dadua Gang and were proceeding via village Guraula and Elha towards village Mamera by Government Jeep, whose driver was Constable Abulesh Khan, right then Aditya Mishra resident of Mau-Gurdari gave information on mobile phone that some unknown persons of the village were firing, sound of which was heard, therefore, to verify about this, he along with force went to village Tedhwa, Chaur and Gadhva and took information about the incident and place of incident but due to fear, these people without disclosing their identity stated that lot of sound of fire was being heard along with high flames of fire there near Gadhva Ghat jungle, situated to the south of Bardaha river but none gave correct information of the incident. After returning from village Gadhva, near village Chamrauha, this police party crossed Rapta (small bridge) which was made on Bardaha river and proceeded towards village Mau-Gurdari in search of place of incident. On the way in lonely Place, among the jungle of bushes on Kachcha road, they saw one tractor of red colour standing, after coming near this tractor, they focussed light of torch upon it and also in the head light of jeep saw that one tractor Taifi DI Registration No. 96 A 1306 written on it was there and behind the same was cultivator, upon which drum of diesel was kept and the tyre of the rear wheel of tractor and its tube had burnt and were smoldering. Towards the right side of the tyre of the tractor, near cultivator, two burnt dead bodies were lying and on the drum and the bonnet of the tractor, and on various parts of the tractor, there were blood stains and behind the tractor, on the ground, lot of blood had spread along with diesel and on the said tractor, name of Harish Chandra Mishra was written. Earlier, he had received information through mobile-phone that Munni Lal Mishra and his son Harish Chandra Mishra, both resident of Mau-Gurdari had gone there from village by tractor to take diesel and had not returned home till then, on that basis, it was presumed by them that they might have been killed and for verifying the same, he reached along with force to Mau-Gurdari. After having talked to villagers, who had assembled in the primary school in that village and having apprised them about the incident, they reached the place of incident taking along Chunni Lal Mishra (PW-4), Suraj Mishra, Santram Mishra, Lavkush Mishra, Ram Dayal Tiwari (PW-2) and Rajendra Prasad Mishra and many others. These villagers after having seen the dead bodies identified them by their face and their structure and told that these were dead bodies of Munni Lal Mishra and his son Harish Chandra Mishra, resident of village Mau-Gurdari, who had old enmity with the gang leader Shiv Kumar @ Dadua. Today, this incident has been caused by the gang of Dadua at 7:45 pm by making indiscriminate firing upon the tractor and drum kept on it of diesel and after flowing diesel towards dead bodies set them on fire and had thus killed them and they had also taken away 12 bore double barrel gun of deceased Munni Lal Mishra. The Higher Authorities were also informed about this incident by them on mobile phone and deceased's elder brother namely Chunni Lal Mishra and other villagers were immediately sent to P.S. Manikpur for lodging the report. After having received information about this occurrence, some time, thereafter, the police of Circle Mau along with force comprising S.O. Mau, Sri Ram Raj Shukla with official Jeep and S.O. Bargadh, Sri Sharda Prasad Singh along with companion force and S.O. Mardundi, Sri Ram Shankar, along with force reached the spot. Under the direction of the C.O., the necessary directions were issued for search and the arrest of the accused Shiv Kumar @ Dadua. He has further stated that he along with force remained present on the spot. On 12.8.2006, the departure was made from the P.S. and he after having obtained copy of Chick F.I.R., G.D., panchayatnama and other relevant papers from Constable Bhikhe Prasad, took over investigation and after having copied the F.I.R. and G.D. in the case diary, he made entry in the case diary of his having gone to the place of incident and that the panchayatnama of the deceased Munni Lal Mishra and his son Harish Chandra @ Bhakku was got prepared at his dictation by his companion S.I. M.P. Singh, which was signed by him also along with M.P. Singh. After having sealed the dead bodies, having prepared the sample seal, both the dead bodies were dispatched for post-mortem in police custody by Tata 407 official vehicle. He recorded statements of informant Munni Lal near the place of incident and that of Suraj Mishra and at the instance of informant, he inspected the place of incident and prepared its site plan. Panchayatnama of the dead body of deceased Munni Lal Mishra is Ext. Ka- 4 while that of Harish Chandra @ Bhakku is Ext. Ka-5. The site plan is Ext. Ka-6. Further he has stated that the plain soil and blood stained soil were taken in small containers and its recovery memo was prepared, which is Ext. Ka-7. From the place of incident, the soil which was smeared with diesel was also taken and its recovery memo was also prepared which is Ext. Ka-8 and 29 blank cartridges were also recovered from the place of incident, recovery memo which was prepared which was Ext. Ka-9 and after having sealed them in one cloth, sample seal was prepared. Since the tractor was not in such condition, which could be taken to P.S., therefore, it was left in the supervision of the PAC which was camping there and apprised HCPAC Ram Pravesh Ram and S.I. Noor Mohammad along with one and half company of PAC. Thereafter, the tractor was got technically examined after sending the same to P.S. The tractor was having holes of bullets in it and the same was taken to P.S. during investigation on 14.8.1986, entry of which is made in G.D. at report No. 25, time 20:15 hours, which is Ext. Ka-10.
11. Lot of search was made about the accused persons. In parcha-II, dated 13.8.2006, the copy was made of the post-mortem of both the deceased. The papers related to double barrel gun of the deceased Munni Lal Mishra were perused and statements of various witnesses were recorded related to recovery memo of plain blood stained soil, recovery of blank cartridges etc.
12. The eye-witness Sant Das Mishra gave statement that Shiv Kumar @ Dadua, Radhey @ Subedar, Angad, Sugreev, Natthu, Chelwa, Raju Kol, Bhonda @ Gotar, Rohini @ Tehsildar, Kamta @ Saiyyad, Suneel Trivedi, Ashok Kol, Harishankar Tiwari, Phool Chand Dubey and Chhota @ Shiv Karan and 5-6 miscreants/dacoits were involved in the incident and they were having rifles and guns in their hands and that Munni Lal Mishra had ten years old enmity and that he had identified them in the light of fire which had taken place due to burning of tyres of tractor as well as diesel and also stated that double barrel gun of Munni Lal was taken away by the dacoits. Similarly, witness Ram Dayal Tiwari also stated the same version and both these witnesses, also stated that these dacoits often used to visit adjoining village Sakrauha and Chamrauha which were main centres of Dadua gang because of which they knew them and recognized them. Thereafter, he has further stated that on getting information, they also raided village Geduraha and other nearby villages and also raided the houses of other accused whose names also came into light i.e. Natthu @ Chelwa, Raju Kol, Sunil Trivedi, Ashok Kol and Phool Chand Trivedi but could not be arrested. In Mau-Gurdari, the eye-witnesses Aditya Narayan Tiwari and Rajendra Prasad Mishra were also searched but were not found and, thereafter, after his transfer new S.H.O. Sri Sanjay Kumar had taken over further investigation of this case. He has also proved the police prapatra 33 and letter sent to R.I., which have been exhibited as Ext. Ka-11 and Ext. Ka- 12, respectively and also proved letter sent to C.M.O., photo nash and challan nash, which are Ext. 13, 14 and Ext. 15 respectively. He has also proved paper which was sent with the dead body of both the deceased in which R.I. had written to C.M.O. and the said paper is Ext. Ka-16. Further he has proved letter to R.I., letter to C.M.O., Challan nash, photo nash which are Ext. 17 to 21 respectively. He has further stated that 29 cartridges which were recovered from the place of occurrence which included eight empty cartridges of brass upon which 9 mm KF was written and were of 315 bore, two blank cartridges of brass were also presented before the court, which were proved by him as material Ext. 1 to 29.
13. In cross examination, PW-5, has stated that Ext. Ka-11 does not bear any signature. Ext. Ka-14 and 15 were not in his hand writing, they were prepared by S.I. M.P. Singh but were signed by him because they were prepared by M.P. Singh at his instructions. In the examination-in-chief it is wrongly written that those exhibits were written in his hand writing and its reason he could not tell. Ext. Ka-19 and 20 were not in his hand writing, how in the examination-in-chief, he had written in his hand writing, he could not tell its reason. Further, he has stated that the seal which he had taken from the P.S. which were used in sealing the bundles. On the bundle of empty cartridges, he had written with his own hand writing. These empty cartridges were taken by him in his possession after having dispatched the dead body from the place of incident. All these cartridges were lying at different places but where they were lying, has not been made clear by him in site plan, which has been left by bona fide mistake. The information which he had received on mobile phone, at that time, he was present on Kekra road in front of village, which was about 200 meters away from the village. This information was received by him at 10:00 p.m. in the night which was given to him by Aditya Tiwari, who had his mobile phone number. The said mobile phone number was given to him by him at P.S. but how long before the incident, it was given he does not recollect. Aditya Tiwari had informed him that unknown persons of nearby place were making firing, the sound of which was heard and to verify this fact, he had gone to the place of incident. Further he has stated that he reached the place of incident in the mid of night and at that time there was no one at the place of incident. Prior to reaching the place of incident, he had gone to Gadhva Ghat and there he had woken up people there and had interrogated them and all of them informed him that they had heard sounds of firing. He does not recollect as to when he reached Gadhva Village. About one hour after his reaching Gadhva village, he reached the place of incident, he had reached the place of incident on the basis of conjecture as he had seen smoke there. Prior to reaching place of incident, no body had given him any information about the place of incident. Aditya had not told him on phone as to where the place of incident was and he had also not told him that he had seen the incident. The persons, who had told him that there were sounds of fire being heard from the side of jungle towards the side of river Bardaha near Gadhva Ghat and flames were rising high, he did not ask for their name. On reaching the place of incident, no body told him about the incident, only this was informed that the fire was made and things were set on fire. When he reached the place of incident, the place was smoldering and no flames were rising. At the place of incident, he along with others, all told eight persons, had reached. From the place of incident, all the eight persons had gone to Mau-Gurdari village where outside the village, there was school in which he met about 50 people assembled there. In school, Aditya Tiwari, Ram Dayal Tiwari, Ratan Das Mishra, Rajendra Prasad Mishra, Chunni Lal Mishra and Sooraj Mishra and various others were present. These people, who had assembled there had stated that this incident was done by Dadua gang but none of them disclosed the name of accused and not even those who appeared before the court. After taking various people from village, he had gone to the place of incident and prior to that no one had reached there nor had he asked anyone of them about that nor had anyone told about it. After the incident had happened on 13.8.2006, it was apprised to him that some people had visited the place of incident prior to PW-5 reaching place of incident. He has further stated that Munni Lal Mishra was sent at about 2:30 -3:00 hours in the night for lodging the report along with other villagers to the P.S. and by that time, the police force of nearby station had also come to the spot. He had not provided any vehicle, he had gone alone. In the night at about 12 O' clock he had reached the place of incident and remained there whole night, next day in the evening at about 4-5:00 p.m., he continued to stay there at the place of incident and the village of the deceased. After having sent Chunni Lal for lodging report, in the evening at about 4-5:00 p.m., he had gone to the place of occurrence. Sri M.P. Singh was never Investigating Officer of this case. First of all the panchayatnama of the deceased- Munni Lal Mishra was prepared which took about one and half hours and, thereafter, panchayatnama of the deceased Harish Chand was prepared and both these panchayatnamas were got prepared by S.I. M.P. Singh. Although his own health was perfectly all right. There was no special reason for not preparing panchayatnama on his own and for dictating the same to S.I.
14. Chunni Lal's son statement was recorded on 12.8.2006 at about 11-12:00 a.m. who had not stated the names of the accused who were present in court to have caused the incident. He had also not disclosed the name of those persons, who had given information about the incident. He had also not disclosed the names of those persons, who had witnessed the incident and when he was inquired about it, he himself had stated that Dadua himself and his gang has caused this incident but he has not stated names of its members. Names of accused Phool Chand, Heera Lal Tiwari, Hari Shankar Tiwari, Aniruddha Yadav, who are permanent or temporary members of the said gang as per the proclaimed list, in that, the names of them are not included as members of Dadua gang, rather name of accused Sunil Kumar finds place in that list as temporary member.
15. On 13.8.2006, he had taken statement of witness Ram Dayal Tiwari, who had not stated names of Aniruddh Yadav, Heera Lal Tiwari to be among the accused. Ram Dayal had taken name of Saiyyad @ Kamta as permanent member of the gang and that he was involved in this incident.
16. Statement of the witness Sant Das Mishra was taken on the same day, he also had not stated that Aniruddha Yadav, Heera Lal Tiwari had caused the incident. This witness had also stated names of Kamta @ Saiyyad to be involved in this incident. Kamta @ Saiyyad, according to his information and as per the statement of witnesses, was still alive.
17. Informant has stated not to have seen the incident but he had made site plan at the instance of informant after having inspected the place of incident. In the site plan, by arrow is shown the place up to 'E' and 'F', there they had gone by the side of Abadi of village Mau-Gurdari. The Bardaha river flows towards North of the Abadi of village Mau-Gurdari but at what distance he could not tell. The bushes which exist between the place shown by 'E' and 'F' and the place of incident are up to 4-5-6 feet high which could not be counted. He has no knowledge whether there is any place by the name Ramghat in Bardaha river. The distance of the village of accused Heera Lal, Phool Chand and Sunil from the place of incident would be around 1.5 km to 2 km. Prior to this incident, he has knowledge of one case against the accused Sunil in which the accused was not named but his name had appeared in investigation but what happened in that case, he does not know. He has no knowledge whether accused Phool Chand, Heera Lal Tiwari, Hari Shankar Tiwari and Aniruddh Yadav have any previous criminal history. Witness Ram Dayal Tiwari had not stated that when he reached there then there was tractor standing and the front lights of the tractor were on and cultivator was little raised and towards 20 paces West of the tractor, the dead bodies of Munni Lal and Harish Chand were lying by the right side of the rear wheel of the tractor. He had also not stated that dead body of Munni Lal was dragged near the right side of rear wheel of the tractor where diesel was flowing and fire was put to it. Ram Dayal had not stated that deceased Munni Lal had taken his double barrel gun along with cartridges in belt with him which were picked up by Dadua. Ram Dayal Tiwari had not stated to him that Dadua gang had many times performed Yagya and due to their participation in Yagya, they had occasion to see the accused many times and, hence they used to recognize them. This witness had also not stated that Dadua gang had performed Yagya many times in which villagers used to participate including the villagers from his village. Further he stated that he has not entered the time in G.D. of investigation made by him. Till tractor was taken to P.S., from the place of incident, there remained police force deployed all along. Lastly, he has denied that he had made false investigation with a view to falsely implicate the accused and was giving false statement.
18. `The other I.O., Dr. Sanjay Kumar Singh has stated as PW-8 in examination-in-chief that on 18.8.2006, he was posted as P.S. Manikpur and on the said date, he had taken investigation from parcha no. 5 dated 20.8.2006 onwards. In parcha no. 5, dated 20.8.2006, he tried to find out the accused-appellants of this case. On 23.8.2006, he arrested the named accused Phool Chand, who confessed to have committed offence and, thereafter, his remand was obtained for getting his statement under Section 164 Cr.P.C. On 24.8.2006, in Parcha No. 7, he recorded statement of eye-witness Aditya Narayan. In parcha no. 8, dated 29.8.2006, he arrested the accused Heera Lal and recorded his statement, who also confessed to have committed offence, hence report was sent for getting his statement recorded under Section 164 Cr.P.C. In parcha No. 9, dated 31.8.2006, the surrender of the accused- Hari Shankar has been mentioned. In parcha no. 10, dated 03.9.2006, he recorded statement of eye-witness Rajendra Prasad Mishra. In parcha No. 11, dated 8.9.2006, he made search of the wanted accused persons and made raids at their places. In parcha no. 12, dated 13.9.2006, he recorded technical inspection. In parcha No. 13, dated 17.9.2006, he recorded statement of HCMT Jai Prakash Mishra in which apart from the Sections 147, 148, 149, 302, 210, 404 and 427 IPC, during investigation, offence of Section 14 D.A.A. Act was also added. In parcha no. 14, dated 19.9.2006, the search of the accused was made. In parcha no. 14-A dated 19.9.2006, the confessional statement of accused Hari Shankar Tiwari, who was taken on remand, was recorded and its report was separately sent to the court. In parcha no. 15, dated 25.9.2006, entry was made in respect of the wanted accused Suneel Dwivedi of P.S. Vargadh, who had appeared in some case before the court and his warrant was prepared. In parcha No. 16, dated 28.9.2006, accused were taken on remand. In parcha no. 17 dated 2.10.2006, the men of wanted Dadua gang were sought to be searched. In parcha No. 18, dated 8.10.2006, there is endorsement of panchayatnama, post-mortem report and other papers of deceased Munni Lal and deceased Harish Chandra Mishra and also statement of constable Suraj Bali. In Parcha No. 19, dated 11.10.2006, the remand was taken of accused persons and in parcha no. 20, dated 14.10.2006, the statement of witness Amarnath was recorded. In parcha no. 21, dated 18.10.2006, remand of the accused was taken. In parcha No. 22, dated 19.10.2006, after taking remand from the court, statement of accused Sunil Kumar has been taken, who has confessed to have committed this offence. In parcha no. 23, dated 22.10.2006, statement of Ram Dayal Tiwari and Sant Ram Mishra, were recorded and on the basis of their statement, it transpired that Kamta Prasad was also involved in the incident and he tried to search the absconded accused persons by making raid at their place. In parcha no. 24 dated 26.10.2006, he submitted charge sheet no. 51 of 2006 against the accused Phool Chand and others and sent the same to court which was registered as S.S.T. No. 226 of 2006, which is Ext. Ka-25 and against rest of the accused, investigation was kept pending.
19. On 23.11.2006, vide supplementary parcha no. 13, he submitted charge sheet no. 51-B of 2006 against other accused in abscondance. Supplementary parcha no. 14 was written by him on 29.11.2006 in which the wanted accused Aniruddha Yadav surrendered and report was submitted for recording his statement. In supplementary parcha no. 15, dated 3.12.2006, the statement of this accused was recorded in District Jail Banda in which he admitted his guilt. In supplementary parcha no. 16, dated 5.12.2006, this accused was taken on remand and supplementary parcha no. 17 was written on 7.12.2006 in which he received one day's police remand for accused Aniruddha Yadav on 9.12.2006. The gun of uncle of accused Aniruddha Yadav i.e. Ram Sanehi which was licensed gun, which was provided to him (Aniruddha Yadav), was given to his father and after obtaining orders from S.D.M., the said gun was deposited in Rajpoot Gun House by his father and the said gun was taken in custody by police from Rajpoot Gun House. The said gun was revealed by the accused to have been used in the commission of this offence and the said gun was opened in court in sealed condition, which was stated by the witnesses to be the same gun which had been collected from the Rajpoot Gun House and regarding which the accused had admitted to have used in commission of offence. The said gun was marked as material Ext. 30. Apart from that, the plain soil and the blood stained soil were also produced before court which were proved by this witness as material Ext. 31 to 35.
20. The other witness has stated that on 15.1.2007, he submitted charge sheet no. 53-A of 2006, u/s 30 Arms Act to P.S. against accused Aniruddha Yadav in his hand writing which is Ext. Ka-26 and charge sheet no. 51-B of 2006 was filed by him against accused Munda, Rohini, Shiv Kumar and against Dadua, Angad and Aniruddha Yadav on 23.11.2006 in abscondance. Aniruddha Yadav had surrendered on 29.11.2006, hence by separate parcha, his case was separated and separate charge sheet no. 51-B of 2006 was filed against him which is Ext. Ka-27.
21. PW-8 has stated in cross-examination that on 17.9.2016, the addition of Section 14 DAA Act was made, entry of which is made in G.D. which is Ext. Ka-24. The report of this case was lodged by the informant against Dadua gang. The list of permanent members of the Dadua gang is at the P.S. The names of the accused present in court are not mentioned as permanent members of Dadua gang. In the temporary members of Dadua gang, except the name of accused Sunil, the names of other accused, who appeared in court has not mentioned. It is also not mentioned in the case diary that the accused persons were members of Dadua gang, prior to the incident. Further he has stated that witness Aditya Narayan had not stated that accused present in court were with the Dadua gang whose statement was recorded by him on 24.8.2006. This witness has stated that due to old enmity with Dadua gang, this incident was given effect to. Witness Rajendra Prasad Mishra S/o informant is son of Chunni Lal. On 22.12.2006, he had taken statement of Ram Dayal Tiwari and Sant Das Mishra. The names disclosed by this witness were mentioned in his statement. The statement of Ram Dayal Tiwari was recorded by him in which he had stated that Radhey Shyam @ Subedar S/o Mithai Lal, in which due to clerical mistake, in place of Radhey he had written Rajendra @ Subedar S/o Mithai Lal. Both these witnesses in their statements had not disclosed names of Hira Lal Tiwari and Aniruddha Yadav as accused persons. In police record, Kamta is still alive and no certificate of his death is available but Sant Das and Ram Das Tiwari have stated about his not being involved in this incident and that he had died prior to this incident. Apart from Aditya Narayan Tiwari, accused Phool Chand and accused Hira Lal Tiwari have taken names of accused Aniruddha Yadav. He does not recollect that prior to this incident, the accused present in court were being given protection by Dadua Gang and whether in this respect any complaint was received or not. No witness had stated that accused, who were present in court, had any enmity with the deceased. Although at the police station, there was proof that both the deceased had earlier enmity with Dadua Gang but their enmity with those accused who were present in court could not be clarified. During investigation, he had seen the damaged tractor at the police station and at that time it had cultivator with it and upon that, a drum was also kept. During investigation, he had also seen the marks of fire arm on the tractor as about 20-25 fires marks were seen by him regarding which he had made entry in case diary. He had also seen marks of fire in the drum but he does not recollect its number nor could he tell about its size.
22. On 25.12.2006, when he remained posted at P.S., the gun was at the police station itself. When he had taken the gun in his possession from Rajput Gun House, that gun was opened, because of which if the same was sent to ballistic expert, it could have been found whether the fire was made from it. Under the orders of S.D.M., the said gun was deposited in the said Gun House for repairing. On 15.01.2007, he had taken statement of Sanjay Singh who was the son of the owner of said gun house who used to sit on that shop. He has proved the Exhibit Ka-28 which is memo of recovery of the said gun.
23. The charge under Sections 147, 148, 302 read with Section 149, 201, 404 and 427 IPC and 14 D.A.A. Act, were framed against the accused appellants Phool Chand Dubey, Heera Lal Tiwari, Hari Shankar Tiwari, Sunil Dwivedi on 13.2.2007 to which they pleaded not guilty and claimed to be tried.
24. A separate charge was framed against Aniruddha Yadav on 19.3.2007 under Sections 147, 148, 302 read with Section 149, 201, 404 and 427 IPC and 14 D.A.A. Act to which he pleaded not guilty and claimed to be tried.
25. From the side of prosecution to prove its case, Aditya Tiwari as PW-1, Ram Dayal Tiwari as PW-2, Dr. Mani Ram Ambedkar as PW-3, Chunni Lal Mishra as PW-4, Raj Kumar Singh as PW-5, Ranjeet Singh as PW-6, Jai Prakash as PW-7, Dr. Sanjay Kumar Singh as PW-8, Rajendra Prasad as PW-9, Sant Das as PW-10 and Mohd. Noor as PW-11 have been examined.
26. Documentary evidences in support of the prosecution's case mentioned above in the statements, have already been proved by formal witnesses i.e. Head Mohrrir Constable Ranjeet Singh (PW-6), Ist Investigating Officer Raj Kumar Singh (PW-5) and IInd Investigating Officer Dr. Sanjay Kumar Singh (PW-8).
27. After the prosecution evidence was closed the statement of accused were recorded on 24.04.1984 in which all the accused-appellants have stated that entire evidence adduced against them is false, all the witnesses have made false statement in court against them and they are absolutely innocent although no evidence has been adduced in their defence
28. It would be appropriate for us to go through the evidence, which has been produced from the side of the prosecution to form an opinion as to whether the learned trial court has drawn conclusion of conviction rightly or does it deserve to be interfered with in the light of the arguments made by the earned counsel for the appellants as well as learned G.A.
29. Learned counsel for the appellants has vehemently argued that the accused appellants have been falsely implicated in this case. None of the eye witnesses' account inspires confidence because of there being numeration contradictions in respect of vital aspect of the case. The manner in which they have stated to have seen the incident, is not at all believable. It is also evident from the evidence on record that all the witnesses, who have claimed to have seen the incident, in fact came to know through police that both the deceased had been murdered by some dacoits/ unknown persons and thereafter on the basis of conjecture that both the deceased had gone to take diesel and to get the tractor repaired, it was believed that they might have been killed by some unknown persons and subsequently the accused Shiv Kumar @ Dadua and members of his gang were named in the FIR under impression that the said gang might have given effect to this incident. Subsequently, after coming to know from the police, this FIR has been lodged in which the names of the accused were mentioned. It was further argued that had so-called eye witnesses namely Aditya Tiwari (PW1), Ram Dayal Tiwari (PW2), Sant Das (PW10), Rajendra Prasad (PW9) seen the incident, they certainly would have disclosed the names of the accused to Chunni Lal (PW4) who is informant of this case, who had got the written report prepared by Suraj Mishra, whom he had dictated the same. Learned counsel for the appellants has taken the court through the entire statement of these eye witnesses to prove that whatever they have stated was based on conjectures and surmises and not based on their actually having seen the incident. It was also argued that the genesis of the case itself is week because the aforementioned four eye witnesses have alleged to have gone for the nature's call at about 7.30 P.M. by the side of Bardaha river and from there they had heard sound of fires. After they had become free from nature's call and thereafter they have stated to have come near the place of incident from where they had seen incident concealing themselves in bushes from a distance of 20-25 paces away from the place of incident and subsequently they have stated that after having stayed for about half hour and having seen the incident, they went back to village and told about the incident to other villagers including the informant. It was also argued that there were lot of discrepancies in the statement as to the fact that they had actually returned from the place where they had gone for defecating back to the village straightway and thereafter after having heard sound of fires in the village, they assembled in a school situated in village along with other villagers and after having heard the sound of fires, the police was informed and when the police actually reached, thereafter they visited the place of incident along with police. There were various contradictions in respect of these facts in the testimonies of all the four eye witnesses. It was argued that none of them were present and this incident had happened in the jungle in lonely place on the road where it is said to have been caused by some unknown person and only because in those days Dadua gang was operating in that area, it was conjectured that the said gang might have killed the two deceased who had gone out for taking diesel and repairing of the tractor. The prosecution has failed to prove its case beyond reasonable doubt. Further, it was argued that the accused appellants have been held guilty under section 14 of U.P. Dacoit Affected Area Act 1983, which is not made out at all because none of the accused would be covered in the definition of gangster means a provided under section 2(d) wherein it has been defined that gangster means a member or leader or organizer of a gang and includes any person who abets or assists in the activities of a gang enumerating in clause (b), whether before or after the commission of such activity or harbours any person who had indulged in such activities. No evidence has been led from the side of prosecution to prove that any of the accused-appellant was actually leader of the gang or was organizer of the gang or ever remained associated with the activities of the gang which indulged in activities which are enumerated in clause (b) of the said section. Hence, the offence under section 14 of D.A.A. Act also does not stand proved. It is further argued that learned trial court has misinterpreted the evidence on record and has erroneously believed the testimonies of the above-mentioned four eye witnesses and after having considered their testimonies has convicted all the appellants. Therefore, the impugned judgment deserves to be set aside.
30. On the other hand learned G.A. has vehemently defended the impugned judgment stating that the said judgment has been passed on the basis of the cogent evidence against the accused-appellants as four eye witnesses have proved the involvement of the accused-appellants in the present occurrence by giving distinct details as to how they had committed this offence. Their testimonies were rightly believed by the trial court and in fact these appellants were members of the Dadua gang who gave effect to this incident and they were identified by these witnesses because the accused-appellants often used to come in the nearby villages and witnesses knew them from before as there was no difficulty in their identification by these witnesses. Further, it was also argued that the light which was stated to be there was that of burning diesel and tyre of the tractor which was sufficient for identifying the accused-appellants. Hence judgment should be upheld.
31. We have gone through entire evidence and learned counsel for the appellants has drawn our attention to the segment of the statements which according to him, proved their testimony to be unbelievable and untrustworthy. Therefore, we have to express opinion after considering those portions of the statements of the witnesses which are found to be contradictory.
32. Before taking up their statements, it would be pertinent to mention here as to what is the prosecution case:-
33. According to FIR, the occurrence took place on 11.8.2006 at about 7.45 p.m. regarding which the informant (PW4) Chunni Lal gave a written report at Police Station, Manikpur stating therein that on the said date his brother Munni Lal and his brother's son Harish Chand had gone Manikpur by their tractor No.UP 96-A 1306 for its repairing as well as taking diesel and when they were returning and hardly reached the Garhwaghat near village Unchadeeh, after stopping them the Shiv Kumar @ Dadua and men of his gang, murdered both of them after shooting upon them and also made fires upon the diesel drum which was kept on the cultivator of the said tractor, by which diesel was made to flow towards their bodies and with the aid of the said diesel, their bodies were burnt and 12 bore double barrel licensed gun of the deceased Munni Lal had also been taken away. The occurrence was seen in the light of flames of fire by various persons of the village, who had seen Dadua and his men running towards southern Pahar.
34. Aditya Tiwari (PW1) who has been presented from the prosecution side as an eye witness has stated in examination in chief that on 11.8.2006 at about 7.45 p.m. this incident happened. On the said date at about 7.00 p.m. he had gone for nature's call with Sant Das (PW10), Ram Dayal Tiwari (PW2), Rajendra Prasad Mishra (PW9) towards Bardaha river and after becoming free from it, they heard sound of fire, hearing which they took cover of bushes and headed towards place where fire was being made and saw from a distance of about 25-30 paces that Harish Chand and Munnil Lal who were on the tractor, were shot down and both were lying on the ground by the side of the tractor. There was a cultivator behind the tractor on which drum of diesel was kept, in which also fire was made, because of which the diesel flowed towards the dead bodies of Munni Lal and Harish Chand and these bodies were set on fire, because of which lot of light was there and in the said light he saw Dadua, Radhey, Angad, Nathuwa, Raju, Ashok, Ram Sagar, Phool Chand, Hari Shankar, Hira Lal, Aniruddha, Chhota, Bhonda and Sunil and after having seen in the court, he stated that he had seen them on the spot. He had also taken the name of Sunil who had not been brought before the court from jail because of being ill. Further this witness has stated that the deceased were going to Maugurdari via Garhwa and when they reached Bardaha river, this incident happened. There village Maugurdaha was situated towards east of the place of incident at a distance of about one and half kms. He had seen the incident from a distance of about 30 paces. The accused persons present in court named-above are known to him for the last 15 years who are members of the gang of Dadua and used to live with him and all of them were having rifle and other weapons but he had not seen any of them firing upon the deceased as by the time he reached there, they had already shot the deceased and he had seen them only firing upon the drum and setting them on fire. He further stated that he could not see as to who set the tractor's tyre and the dead bodies on fire. The miscreants remained at the place of incident for about an half hour and he had seen that Dadua had picked up the double barrel licensed gun of the deceased Munni Lal along with one belt of cartridges. After having given effect to the incident, half an hour thereafter they went towards Chirwal Pahar. He returned to village and gave information of this occurrence to the family members of the deceased and other villagers and also to the Police Station Manikpur on mobile phone. His statement was also recorded by the Investigating Officer whom he had told that he had fear from the miscreants for his family members.
35. In cross-examination, this witness has stated that both the deceased belonged to his village although he was not having any relation with them. He had no knowledge about any enmity between the accused and the deceased. While they were going for nature's call, Ram Dayal had a double barrel gun along with cartridges while rest of the three were empty handed. They had not taken any container as they had taken water from river which flows west to east from there village, which passed through jungle and goes upto the village Obri which is located in the east from his village. He has never gone to village Obri but it is told that it is located about 7-8 kms. away from their village in jungle area. The village Chamroha was about 2.00 kms. away from their village which has four hamlets (Purwa). These hamlets are situated within the diameter of 200 to 300 meters of village Chamroha. Piyasi Purwa is also hamlet of Chamroha where he had gone earlier. Accused Phool Chand belongs to hamlet Paroha of village Chamroha. He further clarified that four hamlets when they join, are called Chamroha.
36. Further this witness has stated that for defecating, all of them had gone at a distance of about one kilometer from their village in western direction by the side of the river and the passage which leads to Garhwaghat was around 300-400 meters and after becoming free from nature's call, they had heard about 25 fires and thereafter they went towards the place of incident. He has stated that he has not given this statement to the Investigating Officer that soon after hearing first sound of firing, they had gone near the tractor at a distance of about 20-25 paces taking cover of bushes rather he had stated that after they had heard about 25 fires, they proceeded towards the place of incident He could not tell the reason as to how the same was recorded. Further, he has stated that when he reached near the place of incident, flames were emanating from diesel which were visible. He known the name of only father of accused Hari Shankar and Sunil and not of the rest of the accused. He had stated the names of the 11 accused persons to the Investigating Officer but their parentage was not told. Radhey is also known by other name Subedar but his father's name is not known to him. The name of the father of Dadua is Pyare Lal. About one month from the incident, he knew the names of the miscreants and their father, although the names of the miscreants, he knew for the last 10-15 years because he had seen Dadua gang and his companions moving in that area on the way. About 15 years ago, Dadua gang had also visited his village for canvassing in election and that was the first time when he had seen him because canvassing was done by him, sitting at his door. He had told nothing to him or his family members, however, in the election rally his father and other villagers were called by him. His uncle Ram Dayal Tiwari had told him that he was Dadua. His uncle is still alive. Along with Dadua, at that time, there were 30-40 persons for the purposes of canvassing, all were armed with weapons. He has come across the Dadua gang earlier 50 times on the way and even two months prior to the incident, he had seen the Dadua gang coming from village Garhwa towards Khutaha talab, at the time when he was in the agriculture field which was adjoining to the passage. When he had met him, no talk was held between them, he had merely seen him. The said meeting had taken place at about 7.30 am and 8.00 am. When the said gang was proceeding at that time he was alone in the agriculture field and had recognized Dadua. He has further stated that prior to the incident, he had not seen Dadua gang giving effect to any other occurrence. The accused who belong to village Chamroha, in their houses, Dadua gang used to stay, regarding rest of the accused who did not live in Chamroha, he could not tell much. In the houses of accused belonging to Chamroha, he had seen Dadua with his own eyes and this must have been around one and half years back. Further, he has stated that Dadua gang was seen staying once at the place of Hira Lal, once at place of Sunil and once at the place of Phool Chand and also at the place of Ashok. At the place of Phool Chand, he had seen him staying about 10-12 months back. About the stay of this gang, he told the SHO, Manikpur but nothing was done by him, hence he had stopped giving information to him about his movement.
37. He also does not have knowledge as to what enmity was there between the two deceased and the Dadua gang. He had stated before Investigating Officer about the enmity being there but had not clarified about the same because he had no definite knowledge about it nor did he make any effort to know about it. His statement was taken by the Investigating Officer within 12-14 days after the incident in the village. (On this point referring to the above statement of this witness, learned counsel for the appellant has argued that the prosecution has tried to convince the Court about these accused being members of the gang of Dadua whose names have been stated above only on the ground that Dadua used to come to their houses and stayed there, merely because Dadua at some point of time came there and stayed, would not be sufficient to treat these accused to be men of his gang, drawing such inference would be erroneous. It may not be lost sight of that if any leader of dreaded gang approaches house of any villagers, it would be difficult for such a villager to resist the entry out of fear).
38. Further this witness has stated that his father did not have any license of gun but his brother Ram Sushil Tiwari had a gun license of double barrel which was given by the then District Magistrate along with other villagers namely Munni Lal (deceased), Sant Das (PW10), Panchanam Lal, Ram Dayal Tiwari but he does not know as to on what basis these five persons were given licence.
39. He has further stated that prior to the incident, he had no fear of the miscreants. He had not gone for the nature's call in a group, rather others had happened to meet him on the spot or on the way and after becoming free from nature's call, they had returned together. (Citing above evidence, it was argued by the learned counsel for the appellants that this is a departure from the prosecution case because it was the case of the prosecution that all the four eye witnesses had gone together for the nature's call and it was also argued that it has also come in evidence that because of fear of Dadua gang and other dacoites in those days, villagers used to go in company with others for nature's call. He has further stated that he had given statement to the Investigating Officer about this fact but if the same was not recorded, he could not tell its reason He had given correct statement to the Investigating Officer to the effect that for the nature's call all of them had gone together in group because of fear and Ram Dayal Tiwari had taken his licensed double barrel gun. On the first ghat there was group of 10-15 men which was known as Ramgaht and second ghat was known as Bardaha. They have taken 7 to 8 minutes time in reaching Ramghat. All of them were sitting for defecating taking cover, at a distance of 10-10 and 15-15 paces away from each other and had become free within 8 to 10 minutes and then they had collected. When they were defecated, they had not heard any sound of fire and soon after having become free from the nature's call, they had assembled at the ghat. Bardahaghat was about 250 meters away in the east from Garhwa Ghat. From the place from where they heard the sound of fires, the place where they had sat to see the incident concealing themselves was about 400 meters away. The place where they concealed themselves, from the place where tractor was standing, between these two places there were large number of bushes about 3 feet high and they were hiding in the bushes from all four sides and when they saw the place of occurrence from there, there were two dead bodies lying on the ground. When they had seen the dead bodies, they were not burning but fire had already been made upon them and both Munni Lal and Harish Chand had died. At a distance of 10-15 paces from tractor, the dead body of Munni Lal was lying and towards rear portion of the tractor, the dead body of Harish Chand was lying by side of the rear wheel of the tractor. They were all towards left side of the tractor at a distance of about 25-30 paces and one pace must have been about 3 feet long. When they reached there, the tractor was standing and the cultivator was in raised condition and the lights of the tractor were on. When they had reached there, there was dark but not so much dark that one could not see and identify moving persons. The front of tractor was towards southern eastern direction. Further, he has stated that Dadua was notorious miscreant whom he knew from before and because of his fear, no fire was made by Ram Dayal and they were simply watching from cover of bushes. He further stated that he could not tell the length and width of bushes. The place where they were sitting in concealed condition, the bushes were all around them. When the miscreants went out from the place of incident, they also went away and had not gone near the tractor or the dead bodies to see them. The place where they had concealed themselves from there the dead bodies were identified, therefore they had identified them (accused) from there only. From the said place they had started for their home at about 8.30 p.m. The family members of the deceased and large number of people had assembled out side the village and after reaching there he had told them about the incident. He must have taken four minutes time in reaching village from the place of incident. He has further stated that he had not gone near the deceased because of fear that the miscreants could have been sitting there along bushes concealing themselves. After the incident, when the miscreants were going away then he had seen Dadua, Radhey, Angad, Nathuwa, Ashok, Hira Lal, Rajua, Bhonda, Tehsildar, Chotua having rifle and there were Aniruddha, Har Shankar, Phool Chand and Sunil and one or two more who were carrying double barrel gun.
40. Citing the above evidence, learned counsel for the appellants has argued that the head light of the tractor was not in the direction where the dead bodies were lying and therefore it could not be possible for this witness to have seen the dead bodies of the deceased from such a distance and therefore his testimony in this case should be treated unbelievable.
41. He has further stated that Chunni Lal was told about the whole incident whom he had stated clearly that Dadua gang had committed this incident although he had not told him names of all the accused and had not told the name of other accused except that of Dadua because nobody had enquired the names of the other accused. Rajendra Prasad was also with him who belonged to the family of the deceased, in front of him, no other person had told him the name of any accused other than Dadua gang. Further, this witness has stated that he had given information to the Inspector but did not tell him the names of the accused and had only told him that Dadua gang had done this incident. After getting the information, Inspector came there within four hours in the night at about 1.30-200 a.m. in the village. He had told the Investigating Officer on mobile, the place of incident. The place of incident would fall on the way if one would go from police station to village, hence he might have come to village after having seen the place of incident. Further he had stated that at the time of Inspector reaching the village, he was not with him and when the Inspector reached house of deceased, his family members were weeping/crying, he at that time was present there with two-three other persons but he did not disclose them the name of accused nor the Investigating Officer had asked about their names and did not tell him the name of even Sunil.
42. Citing the above evidence, learned counsel for the appellants has argued that when this witness had seen the incident from such a close range and knew every accused, why he did not tell the names of the accused persons to the family members of the deceased or to the Inspector who was, according to him, informed on mobile phone, where-after the Inspector had also visited village and even then he did not tell the names of the accused to him, which is an unusual conduct and would make testimony of this witness unbelievable.
43. Further this witness has stated that when the Inspector asked the names of the members of the Gang of Dadua, he disclosed all the names to him and did not have any fear because the police had asked about it. He has further stated that he had fear from the members of Dadua Gang. He further stated that in his knowledge the accused who were facing trial, were also facing other cases in respect of the murder of Katto and Khelawan of village Chamroha but he could not tell how many accused were in this case.
44. Referring to the above evidence, it was also argued that this witness seems to be not consistent because on the one hand he has stated that he did not tell the names of the accused to the Inspector when he visited village but subsequently he states that he had disclosed all the names of the accused to him when it was asked by the Inspector as he did not feel any fear when the same was enquired by the Inspector.
45. He further stated that he knew Aniruddha from 3-4 years who was seen with Dadua gang about 3-4 years back. He had seen Aniruddha carrying double barrel gun and sometimes carrying rifle and had seen him 5-6 time with Dadua but has no knowledge whether any other case is pending against him. He was Pradhan of village Godauria but he does not know who had contested election against him.
46. Further, this witness has stated that he had heard the sound of fires of gun and rifles and had seen with his own eyes fire being made on the diesel drum and accused after having given effect to the incident went away from there towards Pahar but he could not tell who was at the front and who was in the last but they had all assembled together. He has no knowledge about the presence of enmity of deceased with Aniruddha. He had never seen Aniruddha coming to his field. Further, he has stated that he had gone to place of incident only to see the incident, thereafter what happened to the dead bodies of the deceased in respect of last rites, he could not tell because he remained at home.
47. Further, he has stated that Chunni Lal, Shyam Bihari, Suresh Prasad Tiwari and other villagers had gone to the place of incident and he was not called by the police to accompany it to the place of incident. The place where tractor was standing, from there they themselves must have been 500 meters away sitting for defecating. During the nature's call, he could not hear the sound of tractor nor could see its light. In reaching the place of incident from Garhwaghat, he himself had taken hardly 1-2 minutes. The place from where the tractor was coming i.e. Garhwaghat, from there river was about 50 feet below and from that place towards east at a distance of about 25 to 30 meters they were defecating taking cover, therefore, they neither saw the tractor nor heard its sound. Further he has stated that on the date when Investigating Officer recorded statement, he had also prepared the site plan and on that date he alone was present with him and had shown him the place where he was hiding and also the place of incident. First he had recorded his statement and thereafter had prepared site plan. He had not indicated the place where he was defecating but when he was making the site plant, he had shown him the place where eye witnesses were concealing themselves and nothing else was stated. They had gone upto the place where they had concealed themselves from the place where they were defecating. The passage which was followed by them, was not indicated to Investigating Officer because he had not asked about it and he denied that they had gone to the place where they were hiding to see occurrence, from their village. Further he had stated that when police reached there on his information, nothing was enquired from him, he had simply told the Inspector on mobile phone his name. He had already feeded the number of the Inspector in his mobile phone which was written on the board at the police station from where he had noted it.
48. Further he has stated that accused Hari Shankar belonged to his village, accused Sunil and Phool Chand are residents of neighbouring village Chamroha which is two kilometres away from his village. There is relationship between Hari Shankar and Phool Chand but of what kind, he could not tell. He had not denied the relationship with Hari Shankar. Further, he has stated that the father of Hari Shankar namely Sundar Lal had filed a complaint case in the Court of Magistrate, Karvi in respect of ''Maar-peet' against him, Munni Lal (deceased), Bhola Prasad, Chandra Mani Prasad and Akhilesh, which is still going on. He has further stated that his matrimonial home is in village Chamroha but he does not have any knowledge of any dispute between persons of his matrimonial home and the accused living in Chamroha. Further he stated that the men of his matrimonial home provided food for Dadua gang. He had not feared Dadua gang earlier but now he fears since time he has given statement to police.
49. He has denied suggestion of not having seen the incident and making false statement because of enmity between villagers and men of his matrimonial home.
50. Citing above statement, it was argued by the learned counsel for the appellant that this witness has enmity towards some of the members of the Dadua gang as has come in the evidence cited above, because of which he has falsely implicated the accused, hence his testimony should discarded.
51. Ram Dayal Tiwari (PW2) has stated in examination in chief on 8.11.2006 at 8.00 p.m that he with Aditya Narain Tiwari, Sant Das and Rajendra Prasad Mishra had gone for nature's call at 7.00 p.m. and after having become free from it, they were preparing to go back to the village for which they had assembled. At that time he heard sound of fires from western direction and when they reached near the place of incident where tractor was standing, they saw that its rear lights were on and the cultivator was little raised and about 20 paces away towards west of the said tractor, the dead bodies of Munni Lal and Harish Chand were lying by the side of rear wheel of the said tractor. Miscreants had made fires on the diesel drum in his presence and had also fired upon both the deceased. First of all the miscreants put fire to diesel which had flowed out of the drum and thereafter the dead bodies of Munni Lal was dragged near the rear wheel of the tractor where the diesel was flowing and set it to fire. Thus, they set on fire the tractor, its wheels and drum as well as both the dead bodies of the deceased and the accused kept standing there only. In the light which had generated out of high flames of fire as well as that of tractor, he saw that Dadua, Radhey, Angad, Tehsildar, Chhota, Phool Chand Dwivedi, Sunil Dwivedi, Ashok Kol, Hari Shankar, Nathuwa @ Chilwa, Raju and 6-7 out of them and Hira Lal Tiwari, Aniruddha Yadav, Ram Sagar Kol and 6-7 other were not identified by him. Deceased Munni Lal was having double barrel gun along with belt of cartridges which Dadua had picked up. The miscreants stayed on the place of incident for about 30-35 minutes and he along with his companions continued to conceal themselves and kept seeing this incident and during this period no one came there from the village and after having committed this offence, all the miscreants fled toward Chiraula Pahar, because of fear of the dacoit, they did not make any noise and after their (miscreants) having left the place, they (witnesses) came running towards village where outside the village, lot of villagers were standing including the family members of the deceased and he told them the entire details of the incident that both the deceased were killed by Dadua gang, an information regarding this was also given by Aditya Narain Tiwari on mobile to the Police Station Manikpur. He further stated that he knew the miscreants from before because of Dadua and his companions were living in nearby villages Chamroha and Sakroha and on many occasions of ''Yagya Pooja' having being done by Dadua, they had participated in the same. The Yagya was performed by Dadua on number of occasions and in the said Yagya, he and other villagers used to participate. Dadua also used to visit his village. His statement was recorded by the Investigating Officer.
52. In cross examination, this witness has stated that accused Sunil Chand belongs to clan of accused Phool Chand but he could not tell that he was his nephew or brother. Village Chamroha is comprising four hamlets, which is three kilometers away from his village. The accused Phool Chand, Hira Lal Tiwari and Sunil Kumar are residents of village Chamroha. Accused Hari Shankar belongs to his village. How much agricultural land belonged to accused Phool Chand, he could not tell but he had agricultural land. He used to go to village Chamroha. Accused Phool Chand is a farmer and accused Hari Shankar also belongs to his village and he was also having some land in the village but he could not tell as to whether he was a big farmer. He used to get his land ploughed by bullocks as well as tractor. Except accused Aniruddha and Hira, no accused possessed any tractor. He had never visited house of any accused in the village Chamroha nor the house of Aniruddha although he knew him for last six years and had seen him with gang mostly with accused Radhey. Aniruddha was resident of village Gauriya but he had not visited there although he has some relations in the village. The daughter of his mother's sister was not married to Reoti Raman of village Gauriya nor does he know Reoti Raman.
53. Further, he has stated that his mother's sister (Mausi) has two sons namely Bhola Prasad and Buddhi Lal and both are married in M.P. He and Brijesh Kumar are two brothers and Kesari is cousin brother who is father of Aditya Narain. Prior to this incident, the case of Maar-peet was lodged by the father of Hari Shankar against Aditya Narain, Munni Lal (deceased), Bhola, Akhilesh and Chandramani which was a false case. The said case has ended. Prior to this incident, he never feared Dadua gang as he had participated in two ''Yagyas' performed by Dadua and he had also received invitation from him. Simultaneously it was also got communicated by Dadua that any who is invited, if does not attend ''Yagya' he would be stripped of his skin. First ''Yagya' was performed in village Sakroha 6-7 years prior to this incident and second ''Yagya' was held two years prior to that. In the said ''Yagyas' which used to be performed frequently, the local villagers as well as outsider used to participate. He knew Dadua for the last 18 years but had not led any talk either with Dadua or with any men of his gang till the present incident occurred. About the members of his gang, he was apprised by his father and other persons of the nearby village and apart from them Sharda Prasad Tiwari r/o Chamroha, Budh Sen, Rajesh resident of the same village had also told him the names of members of this gang. About one year ago, the said gang was staying at Chamroha, then only the villagers had disclosed the name of the said gang which comprised 18 persons at that time which included Dadua, Radhey, Angad, Tehsildar, Sayyad, Gopala Chunkauna Chamar, Chelwa @ Nathuwa, Bahadura and 4-6 others and at that time, he had seen Sayyad also. He had seen gang sitting in school of Chamroha. Today he has deep enmity with Dadua gang, although he did not have any enmity with the said gang at that point of time. He also has knowledge that the deceased did not have any enmity with Dadua. The Inspector had taken his statement two days after the incident in which he had stated that deceased Munni Lal did not have any enmity with Dadua, if the same has not been written, he could not tell its reason.
54. Citing the above statement of this witness, it was argued by the learned counsel for the appellants that the said statement would reveal that this witness was well conversant with the large number of members of Dadua gang including the members who are named above by him and had land in either his own village or in the nearby villages and he has failed to clarify as to why their names could not be included in the FIR and this circumstance would show that he has given false statement, because had he known them earlier, there is no reason for not mentioning their names in the FIR. Moreover, it was also argued that the accused have been falsely implicated due to enmity as has been admitted by this witness that he had deep enmity with Dadua gang, hence it could not be ruled out that their names might have been taken because of that. Further, it was argued that his statement is inconsistent in itself that he did not have any fear of this gang but subsequently he states that he developed fear.
55. This witness has further stated that when they had gone for the nature's call all of them had started from their houses separately and having come out of the village, they had met each other and then proceeded towards Bardaha river. All of them had met suddenly and it was not that because of fear of gang, they had formed any group to go for nature's call together and that he had also not stated so to the Investigating Officer, in case the same has been recorded, he could not tell its reason. He has further stated that he had not taken any container for water while going for nature's call and why he had gone with a gun, no specific reason could be told by him about this. Bardaha river had surrounded his village from two sides. They had gone to Ramghat for defecation where due to rush, they had sat for defecating between the stones at short distance from each other and all of them after having become free from it, were preparing for going home, for which they had assembled at one place, and when they had ascended the height, they heard 10-15 rounds of fire. At that time, he had come on the Ghat on the higher side, while rest of his companions were still towards river in the lower side and after hearing fire, he had reached the place of incident first, but he could not see as to how many bullets were hit upon the deceased. When he reached there, every member of the gang had made one or two fires upon the body of the deceased at a gap of about one minute or so. His other companions also reached there concealing themselves and all of them had taken cover of bushes. It is further stated that in reaching the place of incident from where they had seen the incident, they had to take support of the ground in bend conditions, taking help of their hands and after four minutes of hearing fires, they had reached the said place. Soon after hearing the fire, he suspected that some gang was making fire. The place where they heard sound of fire, from there the place of incident was 400 meters towards southern. From there, village Garwah was in south-western direction at a distance of about 1.3 kms. Near place of incident, there were lots of bushes and in one place there were open ground also. He had not seen the fire burning from before, rather when he had reached the place where they had concealed themselves, he saw high flames of fire. If the Investigating Officer has recorded in his statement that near the tractor about 20-25 paces before it, he saw the incident in the light of high flames of tyres and diesel, the same was wrong. He had given no such statement to the police.
56. He has further stated that he had not stated to the Investigating Officer that Kamla @ Sayyad was also involved in this occurrence, if the same has been recorded, he could not tell its reason, although he had stated that there was one man who resembled, Kamla @ Sayyad. He further stated that at the time of incident there was so much light that a person could easily be seen in moving conditions; however, his face was not recognizable. When he returned from the place of incident at about 8.10 p.m., in the school located outside the village, various people of the village had assembled, may be around 60-65 persons which included Chunni Lal informant and his family members but he could not tell whether they had gone to the place of incident or not but he himself had gone. He had returned home after telling the villagers that Dadua gang had killed Munnni Lal and Harish Chand and Aditya Narain had also gone home. However, Sant Das and Rajendra Prasad kept standing there. He could not tell whether these two persons namely Sant Das and Rajendra Prasad had gone with the villagers or not. He had told Chunni Lal (informant) about the incident having been done by members of Dadua gang, however, he had not stated the names of those accused persons who were present today in court namely, Phool Chand, Hira Tiwari, Hari Shankar, Sunil and Aniruddha. He further stated that he could not tell as to whose names were written by Chunni Lal in the report. He had neither met Chunni Lal on the date of incident nor had he asked him about the incident nor the names of persons who were named as accused. He did not meet Aditya Narain till date since the date of incident although he was his nephew and used to exchange informal talks with him. Aditya Narain had given information on mobile only after reaching home but not in front of him. When I.O. had visited, he had stated that he had received information through Aditya Narain. The Inspector had reached village Maugurdari in the night at about 1.30-2.00 a.m. There was only one road to go to Maugurdari by vehicle which used to go via place of incident.
57. Learned counsel for the appellants cited above statement of this witness and pointed out that the said statement was given by this witness on being tutored so that the contradiction contained therein could not be read. Further, he had stated that when the Inspector had reached, at that time he was present at home and had come to school where other villagers were sitting. After having gone home, he had again come to the school after 15-20 minutes where the villagers were present and on the said date the names of the accused were not told to the Investigating Officer by him. He had not accompanied the dead bodies to Karvi for post-mortem nor had he participated in their last rites. Since the dacoit had gone away from the place of incident, he along with his companions had also come to the village. He along with his companions, had not gone to see the dead bodies after going to the place of occurrence when dacoit had fled from there. Pointing out this part of the statement of this witness , it was argued that the said statement is quite unnatural.
58. When he reached the school, he could not tell whether both the deceased had died or were alive. No interrogation was made by the police in the night in his presence at school from Aditya Narain or Rajendra Kumar Mishra and even he did not state anything about the incident having been seen to the Investigating Officer because it was not asked from him. The members of the family of the deceased had not stated anything about occurrence as to who all had seen the occurrence.
59. Citing this statement, it was argued that it was quite unnatural to state that he did not state anything before the Investigating Officer, when he had visited because it is common knowledge that police would arrive only for taking statement of witnesses and to collect information.
60. On the place of incident about 18-20 assailants were present armed with different fire arms, fire was lit by match stick to the diesel which was spread on the ground, but he could not tell as to which accused had ignited fire. He could also not tell as to which miscreant had dragged the dead body of the deceased Munni Lal near the tractor. The dead body of Munni Lal was thrown upon the dead body of Harish Chand. He could not tell who had made fire and how many upon Munni Lal and Harish Chand. The flames which were raising, were towards west and south of the tractor and the front portion of the tractor was not burning and the dead bodies were lying towards west of the tractor. Fires were made by the miscreants upon the deceased from the western and southern side of the tractor and all these fires were made by the miscreants one after another, but he could not tell as to who had made first fire and who had made last fire. He had seen the appellants moving at a distance of about 50 paces away from the tractor they (miscreants) were proceeding towards the side where there was plain ground of about one and half kms. As soon as the accused had gone away from there, they also returned to village at faster pace.
61. Learned counsel for the appellants after citing above portion of the statement of the witness, argued that above statement was in direct contradiction with the medical evidence because the kind of injuries found on the deceased, could not have been caused if the incident had taken place in the manner as stated above by this witness.
62. He (PW-2) further stated that when he had moved towards village from the place where they had concealed themselves, at that time there was no accused nor the tractor. When he proceeded towards village, the flames had subsided a little. He had seen that one wheel of the tractor was burning. When he had started towards his house, by that time the light of the tractor had closed. When they were proceeded towards village, the dead bodies were smouldering. He did not see as to how many holes were there in the diesel drum, however, from about 2-3 holes diesel was coming out and till he left the place, it remained in the same position. From the place where they had concealed themselves, first of all he proceeded towards home and behind him there were his companions. He was carrying his double barrel gun and other persons did not have any fire arm.
63. Citing above statement of this witness, learned counsel for the appellants has argued that there are lot of contradictions in the statement of this witness with respect to manner in which he had stated to have seen the incident from the version of other witnesses who had also accompanied him and this would make his testimony untrustworthy.
64. Further, this witness has stated that the then District Magistrate Sri Jagan Nath Singh had ordered for issuing license to five persons including him and four others namely deceased Munni Lal, Sant Das, Pancham Lal Misra and Ram Sushil Tiwari which were issued for their security from the miscreants. They had told the District Magistrate that there was terror of various gangs of the dacoit in the said area like Dadua and Govardhan because of which they had intended to have license.
65. Further, he had stated that village Athrahahar was about one and half kms. from his village, which is about one kilometre area in length and width. Prior to the incident, he had heard sound of tractor coming and its light was also visible. Garhwah Ghat was also about 1.75 kms. towards south from his village. They had not gone towards Garhwaghat for nature's call. After hearing the sound of firing, from the place where they were hiding, till they returned to village, he Aditya and other two companions were together. Rajendra and Sant Das remained with him all along. He does not know whether accused persons in Court had any enmity with the deceased or not. His matrimonial home is in the village Chamroha and name of his father-in-law is Har Prasad Dwivedi. The family of accused Phool Chand and that of his father-in-law is one and the same clan. He had heard that there were talking terms between the two families but he could not tell whether they used to visit each other for having meals and other things or not. Accused Sunil belongs to the family of accused Phool Chand. He further stated that it is wrong to say that the daughter of the sister of his mother was married to Reoti Raman earlier Pradhan of village Gauriya and that he was making false statement and also stated that it was wrong to say that Reoti Raman was his 'Jija' and he had enmity towards accused Aniruddha because there was some litigation going on between them. He came to know about the accused Aniruddha about six years ago, who had told about him, he does not remember and further denied that he was giving false statement at the instance of his 'Jija' Reoti Raman and further denied that at his instance, Aniruddha was falsely implicated in this case. He had lastly denied suggestion that he had not seen the incident and gave statement under influence of police and that no such incident was done by the accused.
66. Dr. Mani Ram Ambedkar (PW 3) stated on oath in examination in chief that on 12/08/2006 he was posted at District hospital, Chitrakoot as medical officer, on that day constable no. 225 Amarnath and constable no. 146 Suraj Bali of PS Manikpur had brought a sealed dead body for post-mortem along with relevant papers and after verifying the papers it was found that the dead body was of Munni Lal son Dwarika Prasad resident of Maugurdari, PS Manikpur District Chitrakoot, aged about 16 years, whose post-mortem was conducted by him on 12/08/2006 at 2:30 PM and found that he had died about one day ago; the dead body had shrunken and following ante- mortem injuries were found on his person: -
1. Badly charred whole body with a pugilistic attitude.
2. Upper limbs and lower limbs badly burnt out of skin superficial, facial muscles and bones burnt, line of redness present.
3. Lacerated wound 3 cm. ×3 cm. × bone deep put on right side of face, margins are inverted, 3 cm. lateral to right angle of mouth.
4. Half of the left side of skull absent, brain material protruding out.
5. Lacerated wound 4 cm. ×4 cm. but on left side of neck 2 cm. on lateral to medial end of the left clavicle, margins are inverted.
6. Lacerated wound 5 cm. ×5 cm. × chest cavity deep put on left side of chest, margins are inverted, 7 cm. below the left axilla.
7. Lacerated wound 4 cm. ×4 cm. × abdominal cavity deep but on left side of skull 14 cm. below the interior angle of left scapula, margins are inverted.
8. Lacerated wound 9 cm. ×6 cm. × abdominal cavity deep, but on the left side of the abdomin vertical. Intestine protruding out just above iliac bone.Tasnsverse.
67. The cause of death was found to be shock as a result of ante- mortem burn and fire arm injuries. These injuries were possible to be received on 11/08/2006 at 7:45 PM. He proved this post-mortem report as Exhibit ka 1.
68. On the same day constable Amar Nath and constable Suraj Bali had also brought deceased Harish Chandra alias Mukkhu son of Munni Lal Mishra aged about 26 years, resident of Maugurdari in sealed condition along with relevant papers and his post-mortem was conducted the same day at about 3 PM by him and he was found to have died one day before the post-mortem. He found following ante- mortem injuries on his person: -
1. Badly charred whole body with a pugilistic attitude.
2. Upper limb and lower limbs badly burned skin superficial facial muscles and bones burnt, line of redness present.
3. Lacerated wound 4 cms ×4 cms × chest cavity deep, below right side of chest, just below right axilla, margins everted.
4. Lacerated wound 10 cms ×9 cm × abdominal cavity deep on right side of abdomen, 7 cm below to the right intestine protruded out. Tranverse.
The cause of death was found to be shock as a result of ante-mortem burn and fire arm injuries.
69. The post-mortem report was proved as Exhibit Ka 2 by this witness and also stated that his death could have been done on 11/08/2006 at 7:45 PM by firearm injuries as well as the burning in fire.
70. This witness in cross examination has stated that the condition of both the dead bodies was such that they could not be recognised. On the body of deceased Munni Lal there were 3 entry wounds and injury no. 1 and 2 could have come due to burning and he had 3 firearm injuries. He further stated that the direction of injury no. 3 could be from downward to upward, the said injury could also be parallel. From how much distance the said injury would have been caused, was difficult to state, however it could have been caused from a distance of around 15 feet. Further, he stated that he had not mentioned the direction of injuries. The direction of injury no. 5 and 6 could have been from higher to lower side and these injuries could have been caused by the assailants upon the deceased from a height but could not have been caused if he was standing parallel to him. Further, he stated that if the assailant was in standing position while the deceased was in lying position, these injuries could not be received. Further he stated that if the assailant makes a fire in crouching position and the accused would have been in a standing position, these injuries could have been caused. Further he stated that if the deceased was lying with his stomach down and the assailant was in standing position, these injuries could have been caused from a distance of 10 - 15 feet.
71. He further stated that there was no smell of diesel or petrol emanating from the dead bodies. The deceased Munni Lal might have consumed meals 5 - 6 hours prior to his death and not just 1 - 2 hours. The period of death of the deceased could have been of 6 - 8 hours prior to the conducting of post-mortem, but in a burnt case, it is difficult to pinpoint the time of death, because the death could occur within half an hour of being burnt.
72. Upon the dead body of Bhukku just one injury of firearm was found and not many. There was only one entry wound and one exit wound of firearm, the direction of which was from higher side to lower side and that the said injury could have been caused to him had he been in lying condition while the assailant would have been in standing position or in sitting position.
73. Further he stated that these injuries were possible to have been caused from a distance of about 15 - 20 feet. Further, he stated that in wind-pipe of the deceased there were found carbon particles, therefore he could not have stated with exactness as to whether at the time of being burnt the deceased were alive or not.
74. PW-4 Chunni Lal has stated in examination-in-chief recorded on 7.7.2007 that about one year ago in the month of ''Bhando' the incident of committing murder had taken place. The deceased Munni Lal was his younger brother and other deceased Harish Chandra @ Bhaggu was his nephew. Munni Lal (deceased) was coming from Manikpur by his tractor with a drum containing diesel on the cultivator which was being driven by Harish Chandra, when they reached near Atrahar, after getting down from Garwaghat at about 8.00 P.M., he heard 3-4 fires and thereafter, after a gap of sometime again few fires were made due to which he suspected that Dadua had murdered Munni Lal because Munni Lal had opposed him. After having heard gun shots, he reached the school which was situated in the western side of the village, where four persons (identities of these persons not mentioned) told them that his brother and nephew had been killed by Dadua gang and set them on fire and their gun had also been taken away. These persons only had given information on phone (not disclosed to whom). All these four persons had gone for nature's call before fires were made as was narrated by these four persons. He had got a written report (Tehrir) prepared by Suraj Mishra, PW6. Next day, in the morning at about 6.00 a.m. the said report was given at the police station. He was read out the said written report and after having seen the same, he stated that it bears his signature which was exhibited as Exhibit Ka-3. Further, he stated that these persons who had told about this incident, had apprised him that the said incident was given effect by firing upon the deceased and setting them to fire by men of Dadua gang. (Learned counsel for the appellants has pointed out that this witness has not stated as to who was person out of the said gang of Dadua, who had made fires and who had burnt the deceased). This witness further stated that the Investigating Officer had made his interrogation and had stated to him that he should give an application in writing.
75. In cross examination, this witness has stated that he had not seen the incident with his own eyes and was stating on the basis of what was told by other villagers that Dadua gang had killed his brother and nephew. Further, he stated that he could not come to know till now who else were involved in this incident other than Dadua gang. At the time when firing was being made and its sound was being heard, the persons of whole village had assembled in a school, which included Sant Das (PW1), Ram Dayal (PW4), Aditya Narain (PW2) and Arvind. From school, they had seen flames of fire, then Sant Das, Ram Dayal Tiwari, Rajendra Prasad and Aditya Narain proceeded towards the place of incident and when they all returned, they told about the incident to him and on that basis he had lodged written report.
76. This witness has further stated that he knew all the five accused appellants present in court since prior to the occurrence.(It was clarified by the learned counsel for the appellants that these five accused were of SST No. 226 of 2006 and not of the present SST Nos. 240-A of 2006 and 240-B of 2006). Further, this witness had stated that till then Ram Dayal, Sant Das, Rajendra Prasad and Aditya Narain had not disclosed the names of all the five accused persons to him nor did they disclose their names till he had dictated the first information report that all the five accused present in court were involved in the present incident with accused Dadua dacoit. Further, he had stated that about 3-4 days after the incident, it was told by these witnesses that the accused present in Court were involved in the incident. Despite knowledge of this fact, he had not given any information to either any police officer or SHO in writing about the said five accused being involved in the incident with accused Dadua.
77. Further, this witness had stated that he had given statement to Investigating Officer to the effect that the accused present in Court had given effect to the incident with Dadua, if same has not been written, he could not tell its reason although he denied any enmity with the Investigating Officer.
78. Further, this witness had stated that SHO had reached, with other police personnel, on the place of incident on the same night at 9.00 p.m. and from there, police went to school and made queries and also took down statements of Aditya Narain, Sant Das and Rajendra, who all also had given him the names of all the five accused and also the names of other members of the said gang. Investigating Officer stayed at the school for about two hours and then went to Manikpur. PAC also reached village and the SHO leaving other police personnel near the dead body, went to police station. Next day, at about 8.00 a.m. the SHO again reached the village and thereafter, after having taken him and others, went to the place of incident near the dead bodies and after having completed the writing work, dead bodies were despatched to police station. When he reached the place of incident, there were many people of the village but no outsider was there. He stayed there for about 1 ½ hours. The written report was prepared by him outside the police station although within the boundary wall of the same. He is illiterate, therefore, he dictated the said report and person who was writing the same had reduced it into writing. The village was about two furlongs away from the place of incident. (Learned counsel for the appellants pointed out, according to site plan, it is 1 ½ kms.) Bardaha river was about one furlong away from village towards west.
79. PW-6- H.C., Ranjeet Singh, in examination-in-chief has stated that on 12.8.2006, he was posted as H.C. at P.S. Manikpur. At about 6:30 pm, Chunni Lal S/o Dwarika Prasad R/o Mau-Gurdari had given written report on the basis of which, Chick No. 43 of 2006, pertaining to crime no. 53 of 2006, under Sections 147, 148, 149, 302, 404 and 427 IPC, was prepared which is Ext. Ka-21 and G.D. No. 6 (Ext. Ka-22), time 6:30 hours dated 12.8.2006 was prepared. This witness is a formal witness and has proved only Chick and G.D.
80. PW-7 Jai Prakash Mishra, H.C.M.T., Police line, Chitrakoot, has stated that on 13.9.2006, he was posted at police line, Chitrakoot, on the aforesaid post and he had made technical inspection of the tractor DI Taifi Chassis No. 195095 at P.S. Manikpur, pertaining to crime no. 53 of 2006, under Sections 147, 148, 149, 302, 404 and 427 IPC and had found lever of gear in burnt condition and there were fire shots on bonnet. The right rear tyre was found burnt. Right head light was broken. Back light of the right side was broken, back mirror was also broken. The technical report Ext. Ka-23 has been proved by him. Nothing much was argued in respect of this witness from either side, he being a formal witness.
81. P.W.9, Rajendra Prasad has stated in examination-in-chief that about one year and three months ago at about 7:30 p.m., the incident had happened, on that day at about 7 p.m., he along with Ram Dayal Tiwari, Aditya Tiwari, Sant Das Mishra had gone for nature's call from his village towards Bardaha river and after having become free, they heard a sound of fire from south-western direction i.e. from the side of 'Athraha Har', whereafter all of them taking cover of the bushes proceeded towards the place of incident and when they reached the place from where the place of incident was left only 20-25 paces away, they again heard about 25-30 fires and from there, they saw that the dead body of Harish Chand was burnt and body of Munni Lal was being dragged and was being thrown above the dead body of Harish Chand. Behind the tractor was a cultivator upon which was kept a drum full of diesel and by making fire upon it, the diesel was also set on fire. To the right side of the tractor, near its tire both the dead bodies were burnt and the tyre was also burning and because of it, huge light emitted, and in the said light, he saw Dadua decoit (deceased), Radhe, Angad, Tehsildar, Bhonda, Rajua, Gotar, Chotwa, Munishiwa Kol, Ram Sagar Kol, Heera Tiwari, Phool Chand, Hari Shankar, Aniruddha, Ashok and Sunil who were having arms in their hands. Out of these persons, only one person was making fire in their presence who was Shankar Tiwari. In their presence, he had made about 10 fires on the body of tractor and Harish Chand, Ashok and Phool Chand also made about ten fires on the body as well as wheel of the tractor. After having seen these accused in court, he identified them and further stated that he knew the men of the said gang from before and that they were working as members of Dadua Gang and used to live with it. Further he stated that he does not know whether his uncle Munni Lal had any enmity with the accused persons and Dadua Gang or not. At the time of incident, Munni Lal was having his licensel gun with cartridges in a belt which was picked up by Dadua. All the assailants stayed at the place of incident for about half an hour till both the dead bodies had burnt, thereafter, they fled towards 'Chiraula Pahad'. After the incident, from the place of incident, he and his three companions proceeded towards village, thereafter, he went home and closed his doors because of fear. He could not meet his father for two days and because of feeling nervous and fear of the gang, he remained indoors, although his father had left for police station who was taken by police there and, thereafter, he met his father after about two days, thereafter, his statement was recorded by I.O.
82. Drawing attention towards the above statement of this witness, learned counsel for the appellants argued that the manner in which this witness has stated to have seen the incident and has given its account, there is much variance between his statement and the statement made by the other two eye-witnesses, P.W.1 and P.W.2 and these contradictions in statements would render his testimony to be unbelievable and also argued that in respect of the light being found there by this witness, his testimony is in conflict with the testimony of P.W.4 which also makes his statement unbelievable particularly taking into consideration that all the four eye-witnesses of this case are claiming to have seen the incident together from the same place.
83. In cross-examination, this witness has stated that when I.O. had taken his statement, he had told him that after having seen the incident, he remained inside house for two days and could meet his father only thereafter and if the same was not recorded in his statement, he could not tell its reason. Further he has stated that the night in which the incident happened, the next day thereof, he met his father at about 12 noon. He met his father two days after the last rites having being performed of Harish Chand and Munni Lal and till then he remained inside the house. Further he stated that apart from his father, there are four other brothers who live in the house and all of them were present at home. They live in one house although the partition has taken place among them; they all live in separate portions but it is one and the same house; the entire land belongs to his father; he had not stated the name of any accused. When he met his father, even then he did not disclose names of the accused to him. He had lodged report at P.S. 20-25 days after the occurrence and then he had given names of all accused. Names of the accused were given in writing to the I.O. by him. After citing the above statement of this witness, it was argued by the learned counsel for the appellant that the above statement is absolutely unrealistic that after having seen the incident, he would close himself in a room and would not meet his father for two days even though his real uncle and his cousin brother had been killed in the incident. It is also unusual that despite having seen the occurrence and having knowledge about the names of the accused, he would not disclose them neither to his father, who is first informant nor to police immediately. All this would make his testimony unbelievable.
84. He had got the report lodged through his real brother, Raja Ram Mishra. He had gone to the police station after taking the written report which was written by Raja Ram Mishra and was not called there by anyone, the said written report was handed over by him to the Inspector and also told him about the incident orally. The names which have been disclosed by him today in examination-in-chief of the assailants, were also written on the said paper (report written by Raja Ram Mishra). Prior to the said paper having been written, he had not disclosed the names of assailants to anyone. He had not stated to I.O. that he had discussed anything with villagers. Prior to the village, on its boundary there is located a school, where 3-4 men of the village were standing, to them, Ram Dayal, Aditya Tiwari and Basant Lal were talking while he went away straight. He had not seen them (3-4 persons) and, hence, had not identified them and had gone away from there with head down. He had simply identified Chhota Dwivedi. The family members of both the deceased were not standing there. Since the time of incident till giving an application at police station in writing, during 20-22 days period, he continued to remain inside his house. When the next day, he opened the door, at that time, it must have been 12 noon and at that time his elder brother, Raja Ram Mishra told him that in the night at about 2 a.m., police force had come and it remained present there. The police continued to visit for 20-22 days daily and had also laid camp there and the police still visits the said place although because of the police camp being there, they were not having any apprehension. The mother of the accused, Hari Shankar whenever goes towards her field with the ladies of his family, she threatens them, but the father of Hari Shankar has never given any threat to them till date. Citing the above statement of this witness, learned counsel for the complainant argued that the said witness is untrustworthy as on the one hand this witness had acknowledged that there was a police camp because of which he had no apprehension from the accused side yet on the other, he had stated that he bolted himself up inside his house for two days continuously and met his father only thereafter. This is very unusual and further there is discrepancy in his statement with respect to the number of days he remained inside house because at one place he has stated that period to be 20-22 days. Further this witness has stated that the accused Phool Chand is real maternal uncle of Hari Shankar and accused Sunil is son of real uncle of Phool Chand. He denied to have knowledge that the daughter of 'Bua' of Jawahar was married to Revti Raman of village Gauraiya. One 'Bua' of Jawahar is married to Ram Siya Tiwari, who is real uncle of witness, Ram Dayal. The daughter of Jawahar is married to witness Aditya Tiwari; witness, Ram Dayal is real uncle of witness, Aditya. He does not know as to what is the dispute between Jawahar and Sunil.
85. The place where he had concealed himself, there were 'Medki' bushes which were of chest height. All the four witnesses had concealed themselves in separate bushes which were very dense. He was running sick since 8-10 years prior to the incident which was nothing but because of tension. The residents of his area were scared of Dadua Gang and apart from this gang, no other gang was operating in the said area.
86. The sound of tractor was being heard because of which it was suspected that the tractor was coming and after hearing the said sound, they reached there. After sound of first fire, 20-25 fires were also made, after hearing which it was suspected that some encounter had taken place with the gang. After having heard so many fires, he did not feel scared nor did he feel any kind of tension and proceeded towards the place of incident although he had no arm in his hand while Ram Dayal had a gun. Ram Dayal after hearing first sound of fire did not make any fire and all of them proceeded towards the place of incident concealing themselves. Between the place where 'Ram Ghat' is located and the place where they had seen the incident, there is dense jungle of bushes. When the first fire was heard, it had become little dark but it was not so that they had proceeded towards the place of incident after having seen the flames of fires. If the I.O. had recorded in his statement that they had proceeded towards the place of incident after seeing flames, he could not tell its reason. They were concealing themselves there in the bushes in crouching positions and all the four of them were sitting at a distance of 12 feet from each other and had assembled there about two minutes prior to the decoits having left the place of incident. They had identified the miscreants in the beginning itself but they had not taken their names to each other (among the witnesses). They had proceeded from Ram Ghat to the place of incident at slower pace, and had not rushed there because it was feared that if someone had seen them, they could be killed. The tractor was towards east of the place where they had concealed themselves. Beside him, Sant Das concealed himself and the said place where he (Sant Das) had concealed himself in bush, was in the north from him, at a distance of about 12 feet from the bush where he had concealed himself, which was in eastern direction. From the place where he had concealed himself in bush, Bardaha river was situated towards west. On three sides of the place of incident, there are villages. The bushes in which they had concealed themselves were on the bank of river. The bush in which Sant Das had concealed himself, all of them had gathered there only after the accused had fled from the place. At the time of preparation of site-plan, he had not accompanied the I.O. He has no knowledge as to at whose instance, I.O. had prepared the site-plan. Since there was no toilet in their houses, the whole village use to go for nature's call on the bank of river Bardaha and for the same they had assembled near the school and had left for river from there. When he reached there, others were assembled there. It is not so that when he heard the sound of fires then he proceeded from the village to the place of incident. Citing the above statement of this witness, it was argued by the learned counsel for the appellants that the place of assembling by this witness for the purpose of going for nature's call is stated to be school which is in conflict with the statements of other eye-witnesses, therefore the testimony of this witness becomes falsified.
87. The distance of the place of incident from Gadhwa Ghat must be around 100-150 feet and after becoming free from nature's call, he had heard the sound of tractor, although, it was not visible from there due to bushes of Jungle. When he heard the sound, he could see the head and tail lights of the tractor. When after having become free from nature's call, he was facing towards east, the sound of tractor was coming from the South-western side and must have been coming from a distance of about half km. He had seen a gun with accused, Aniruddha while with rest of the accused he had seen rifles. When they reached near the place of incident, Harish Chand and Munni Lal (both the deceased) had been shot dead but he could not tell whether they were alive or had died. He had not seen both of them in writhling condition nor had he seen them making any movement and both of them were seen lying there. The 'Chiraula Pahad' was about one and half km. away in eastern direction from the place of incident.
88. Citing the above statement of this witness, it was further argued from the appellants' side that there is huge discrepancy in the statements of all the four eye-witnesses who have stated themselves to be together at the time of witnessing the incident, in respect of the deceased being fired upon and their being burnt to death, the account given in this regard by each of them is quite divergent from each other, which makes the statement of not only this witness but that of the other witness also to be untrustworthy.
89. Further this witness has stated that whenever the gang used to visit their village prior to this incident, they never had any fear from it; after the incident, no gang ever came to his village. Accused Hari Shankar belongs to his village but he had never seen him doing any misbehaviour with any other villager nor had he seen him intimidating anyone taking name of Dadua.
90. Aniruddha was seen by him about three to four years ago. He had never gone to the house of Aniruddha nor does he know his father but knows his family members. This gang used to visit there during time of election. For last four to six years, the said gang did not come to his village. The decoits used to send letters and invitation to villagers and because of their fear, the villagers used to go to the place where they used to be called. Because the decoits used to take each other's names, he had come to know their names and he had also gone two to three times at their invitation and last time he had gone to the said gang was about one year ago. He had not disclosed the names of fathers of any assailants and if the same has been written, he does not know its reason. He has not seen any other incident being done by this gang except the present one. He has denied that because of enmity with the accused, he has taken their names much after the incident and in the end has lodged the report after consultation. Learned counsel for the appellants has drawn attention to the above statement of this witnesses and argued that identification of the accused by this witness is being stated to have been done on the basis of the miscreants taking name of each other and that is why this witness came to know their names, which does not inspire confidence. The names of the accused appear to have been feeded to him subsequently and that is why he has stated their names. His testimony in this regard does not appear to be credit worthy. Basically all these accused are farmers who have land and it is natural that members of the gang were hardened criminals and whenever they visited any resident of the village, the said gang would not be denied entry because of fear and merely because some villagers allow entry to the member of the gang, will not be sufficient to prove that the said person who has given entry in his house to such gang-men would also be treated to be part and parcel of the said gang, which appears to be the case at hand. The accused have been implicated only on account of suspicion that they were members of the gang, hence, they might have killed the deceased and actually none had seen the occurrence which is evident from the kind of testimony of these so called eye-witness.
91. PW-10- Sant Das Tiwari has stated in examination-in-chief that on 11.8.2008, he, Ram Dayal Tiwari, Rajendra Prasad, Aditya Narayan had gone for nature's call with licensed gun, Lathi and torches at about 7:00 p.m. by the side of river Bardaha in group because of fear of dacoits and as soon as they had become free after nature's call and were preparing themselves to return home, from western side, from the side of Athrahahar, sound of fire was heard by them, hearing which they proceeded towards south concealing themselves in bushes and saw in the light, those who were there at the place of incident. There were about 25 men, out of whom, some were known to him from before which included Dadua, Radhey, Angad, Tehsildar, Bhonda, Chhota Natthua, Rajua, Phool Chand, Sunil, Hari Shankar and Ashok, rest of the persons he could not identify. The accused present in court namely Sunil, Hari Shankar and Phool Chand were known to him since prior to the incident and after having seen the remaining accused present in court namely, Heeral Lal Tiwari, Aniruddha, he states that he had not seen them involved in the incident. Hari Shankar was armed with double barren gun while Phool Chand and Sunil had also rifles. He does not know anything about enmity of the deceased Munni Lal with these three accused persons who are present in court.
92. For the first time, when he saw that near the right wheel of the tractor, the dead bodies of the Munni Lal and his son Harish Chand @ Bhakku were burning and about 25 paces away from the rear side of the tractor, Munni Lal was gowning. Thereafter, 4-5 miscreants had dragged Munni Lal and placed him upon the burning dead body of his son. He had not seen any of the miscreants present in court firing upon the deceased or upon the tractor. Behind the tractor was kept a drum of diesel and from the holes, which were made in the same, diesel was flowing towards Munni Lal and Harish Chand. He did not see any body firing upon the drum. The rear wheel of the right side of the tractor was burning. He had heard about 30-40 fires but had not seen anybody firing. For about half an hour, he stayed at the place of incident and saw the incident and out of those miscreants, he had stated names of two to three persons. Thereafter, all the miscreants fled towards south i.e. Chiraul Pahad. The incident happened at about 7:30 to 7:45 pm. When the miscreants had fled from there, concealing themselves, they came home and he had also seen Munni Lal's gun and belt of his cartridges being picked up by Dadua. The police has taken his statement.
93. Learned counsel for the appellant indicating above statement of this witness has argued that this witness has stated about Munni Lal groaning while other three eye-witnesses had not stated so and he further hammered the point that if a person who is alive, is burnt, the sound of his groaning would be so low that it would not be heard from a greater distance. This statement of groaning by Munni Lal is nothing but modification made by this witness which makes its testimony untrustworthy. Further it was argued that if this witness was present on the spot, how could it be possible that he would not see anyone even making fire upon the drum if not on the deceased as the other witnesses have stated that fire upon drum was made in their presence, although the deceased had already been fired upon before they reached, which is a substantial contradiction in their statements.
94. This witness was cross-examined by court itself in which he has stated that he was towards East of the rear wheel of the tractor at a distance of about 25-35 feet. After getting free from nature,s call, they had assembled for returning, right then one fire was heard, they wondered as to who could be making fire, thereafter, from the said direction, from where the fire was being heard, they also heard four to five fires more and, thereafter, they saw the light and then they saw from a distance of about 30-35 feet, Harish Chand being burnt. From the place where he had seen Harish Chand burning, he was at a distance of about 30-35 feet. From a distance of about 35 feet, he had also heard groaning of Munni Lal. At that time, there must have been 40-45 miscreants who were making lot of noise and both the deceased were being abused badly. After this occurrence when he went home, on the way, outside village, in school about 50 to 60 men had assembled there. On being inquired by the villagers, he had told them that he along with his three companions had gone for nature's call and in their presence, he stated that Dadua gang had killed Munni Lal and Harish Chand but he had not disclosed names of any accused to them. He had not seen among those 50 to 60 men, family members of the deceased nor Chunni Lal (informant). The person, whom he had told about the incident at school, was Panchanan Lal S/0 Harbansh, resident of Gurdari, who is still alive. When the Investigating Officer came in the night, he had reached there and at that time, he had told the names of the accused of the said gang. The Investigating Officer had reached at about mid-night and, thereafter, said that he had stated to I.O. on 13.9.2006, the names of persons whom he recognized.
95. Further, this witness has stated that from village Mau-Gurdari, the distance of Bardaha Nala would be around 400-500 feets. The police had inspected place of incident on the same night when the incident happened and all the four eye-witnesses were present there. The investigating officer was shown the place where they have kept themselves concealed and from where they had seen the incident, if the same has not been shown in the sets plan, he could not tell its reason. The place of incident must have been about 50-60 paces away towards south of the river Bardaha. From Gadhva Ghat, there goes one passage towards south and on that very passage, the place of incident is situated.
96. Pointing out above statement of witness, it was argued by the appellant's counsel that this statement made by this witness is a modification because no other eye-witness who was accompanying this witness, has stated that the place of incident was visited by I.O. in presence of all the four eye-witnesses, which is material contradictions and makes statement of this witness suspect.
97. He had disclosed names of accused- Phool Chand, Hari Shankar and Sunil to the villagers. About four to five hours after the incident, the police had come in the house and he had met and police was told the names of these three accused. His statement was recorded by police. In the night of incident, he met the police at about 1:30 a.m. and at the time of his statement, others namely Ram Dayal Tiwari, Aditya Narayan and Rajendra Prasad Mishra were also present. Rajendra Prasad is son of informant Chunni Lal. When his statement was recorded, statement of other two eye-witness were also recorded but if I.O. has not written that his statement was taken in the night of incident, he could not tell its reason. He further stated that he was not present at the time of panchayatnama and after night of incident, he did not meet Investigating Officer.
98. Citing this piece of evidence, it was argued that by the appellant's counsel that when identification of these three accused was immediately made known by this witness even then why their names did not appear in the F.I.R., which is beyond comprehension and makes the statement of this witness doubtful. As regards his going for nature's call, he has stated that even prior to this incident, he used to go for nature's call towards north-western side of the village for about 20 days in a month.
99. Further, he states that they had started from their houses at about 7:00 p.m. for attending the nature's call. All the persons had assembled near school on their own and had not taken any container (lota). About five minutes to 7:00 p.m., they had sat for defecating at a distance of about 20-30 feet from each other and it must have taken ten minutes to become free. It was done on the bank of river Bardaha known as Ram Ghat and towards north-eastern corner of the said place of incident, the defecation was done. The road which leads from village Gadhva to Mau-Gurdari, the same crosses the river, from there the place where they had gone for nature's call, must have been about .750 meter towards east where they had sat for defecating; the same place must have been four to five paces away from Bardaha river. From the place of incident, the place where road crosses the river is about 40-45 paces away. When after having attended nature's call, and started towards their house from river, from there, at a distance about four to six paces, they had seen the incident and, thereafter, stated that after the nature's call they had heard about eight to ten fires from southern direction from about a distance of half km. The passage of this half km was traveled by them concealing themselves in bushes and, thereafter, from a distance of about .750 km, they had seen this incident. All of them were together. All of them had seen the occurrence concealing themselves on different bushes and he denied that he had not seen any incident and had given statement due to enmity.
100. Retd. S.I. Noor Mohd. PW-11 has stated in examination-in-chief that on 25.12.2006, he was posted at Manikpur. On that date, on the instructions of C.O. and ADM, Karvi, on 25.12.2006, he had taken DBBL gun 12 bore factory made no. 12566 in presence of witness Sunil Kumar S/o Ramanand Tiwari and Dharm Pal S/o Ram Ashre from Rajpoot Gun House which was sealed in one cloth, its memo is Ext. Ka-28, which he has proved. The concerned gun in sealed condition was presented before the court and was opened under order of court which was marked as material Ext. 30 and stated that it was the same gun which he had taken in his possession from Rajpoot Gun house. This also being a formal witness, nothing much has been argued from either side with respect to this witness.
101. According to prosecution's case on 11.8.2006 at about 7:45 pm, the accused appellants along with other co-accused shot dead Munni Lal Mishra (brother of informant Chunni Lal) S/o Dwarika Prasad Mishra and his son Harish Chand @ Bhakku, when he was returning from Mainkpur to his village Mau-Gurdari after taking diesel and getting his tractor repaired and burnt them with the diesel which was kept on the cultivator of the said tractor after firing upon the drum in a manner so that the diesel contained therein flowed out of it towards the dead body of one deceased, while body of the other deceased was thrown upon the body of other deceased which was burning and co-accused Dadua had taken away licensed gun of 12 bore of his deceased brother also. This incident had taken place towards south of Gadhva Ghat near village Uncha Deeh (Athrahahar). The report of this occurrence has been lodged by the informant (PW-4) at P.S. Manikpur next day at 6:30 a.m. naming therein only Shiv Kumar @ Dadua and the members of his gang. It is also mentioned in the F.I.R. that many people had seen the dacoit dadua and his companions fleeing towards South pahad. It is evident from this F.I.R. that the informant is not an eye-witness of this case, he got this F.I.R. written by Suraj Mishra S/o Geeta Prasad Mishra. The informant, who has been examined as PW-4, has stated in examination-in-chief that his younger brother Munni Lal (deceased) and deceased's son Harish Chand @ Bhakku (also deceased) were coming from Manikpur towards their village and when they reached near Athrahahar after getting down from Gadhva Ghat at about 8:00 pm, in the night, 2-3 fires were heard, on which he and other persons suspected and thereafter some more fires were heard and further he suspected that because of enmity between Dadua and Munni Lal, Dadua might have killed Munni Lal. After hearing the sounds of fire, when they all went towards the school which is located in the western side of their village, four persons told him that his brother and nephew had been killed by Dadua gang and they were burnt also by them and the gun of his brother had been taken away. They had also informed through phone. All these four men had gone for nature's call and as was disclosed by them, on the basis of their disclosure, he got the report (Ext. Ka-3) written by Suraj Mishra and gave it at the P.S. next date at 6:00 am. In the cross-examination, this witness has admitted hat he has not seen the incident with his own eyes. But after having heard the sounds of fire, the entire villagers had assembled in the school where Sant Das (PW-10), Ram Dayal (PW-2) and Aditya Narayan (PW-1) and PW-9 Rajendra Prasad had also reached and when these four witnesses had made disclosure about the incident, on that basis he had lodged the report. Further he has stated that till he lodged the report, these witnesses had not disclosed him the names of accused, rather three to four days after the incident, the names of the accused, who were present in court, were disclosed by them. After the information having been given by him, he had not given any information to S.H.O. giving names of all the five accused and to the effect that they had participated in the occurrence along with Dadua gang.
102. From the above statement, it is apparent that all the four eye-witnesses named above, who were examined by the prosecution are stated to have given the names of accused to be involved in the present incident and on that basis only the F.I.R. was got lodged by the PW-4. It is intriguing to note that when all these four witnesses who have stated to have seen the occurrence with their own eyes why they did not give the names of accused to be involved in this occurrence to the informant so that they could be mentioned in the FIR.
103. PW-5, S.I. Raj Kumar Singh, who has investigated the case, has stated in cross-examination that he had received information about the incident at about 10:00 pm from Aditya Narayan Tiwari (PW-1), who informed him that some unknown persons of nearby locality were making firing, sounds of which were heard and after hearing the said sound, he had gone to the place of incident to verify. He reached there in the mid of night and at that time none was there. Prior to his reaching place of incident, he had gone to village Gadhva Ghat. He had reached the place of incident after seeing smoke and prior to the incident, he had no information about it. PW-1- Aditya Narayan had not informed him about the place of incident and had not told even on phone that he had come after having seen the incident. This witness has also stated that on making query from certain persons it was stated by them that they had heard firing being made, sound of which was coming from the side of jungle near Gadhva Ghat and there high flames of fire were also visible, he did not inquire their name. This witness has further stated that when he reached there, no one had told him about the incident. The only thing regarding which information was given was that firing was made and the place was set on fire. When this witness reached the place of occurrence, the fire was smoldering, although flames were not visible. He along with eight others had reached the spot, all there eight persons were of village Mau-Gurdari. This witness has further stated that outside the village Mau-Gurdari, in School, about 50 persons were assembled there apart from Aditya Tripathi (PW-1), Ram Dayal Tiwari (PW-2), Sant Das (PW-10) and Rajendra Prasad (PW-9), Chunni Lal (PW-4) and others. He after having taken the aforesaid persons of the village and many others, had gone to the scene of occurrence. Chunni Lal was sent in the night at about 2-3:00 a.m. along with other villagers to lodge the F.I.R. Aditya Tiwari (PW-1) has stated in examination-in-chief that when he had gone for the nature's call with other were witnesses named above, he had heard sounds of fire at about 7:00 p.m. on 11.8.2006, near Bardaha river and, thereafter, he along with other witnesses had reached near the place of incident and saw the incident from a distance of about 25-30 paces. He stated that Harish Chand and Munni Lal, who were on the tractor, had been fired at and both of them were lying on the ground near tractor and behind the tractor, there was cultivator upon which was placed a drum of diesel and by firing at the side of drum, hole was made in the same and out of the said drum diesel flowed near the dead bodies of Harish Chand which was set on fire and in the light of the said fire, he saw the present accused appellants along with other co-accused. He also has stated that he knew these miscreants since last about 15 years. They used to live with Dadua gang but he also admitted that he had not seen any of them making fire upon the deceased as the fires had already been made upon them, although he had seen fire being made upon the drum and also putting fire to it but again he stated that who had made this fire and had set ablaze the dead bodies and wheel of Tractor, he did not see. He had seen Dadua picking up the double barren gun of deceased Munni Lal along with belt of cartridges and after having given effect to the incident, within half an hour, they left towards Chirbal Pahad. He, after coming to village, had given information to the family members of the deceased and other villagers and also to P.S. Manikpur on mobile phone. In cross-examination this witness has stated that when he reached and saw the incident from a distance of about 25-35 paces away, he saw that tractor was stationary and it had a cultivator, which was little raised. The lights of the tractor were on. There was dark but even then the faces could be identified. The place where they were hiding, from there they could recognize the dead bodies. He had told entire incident to Chunni Lal (PW-4), but had stated to him only about Dadua gang having given effect to this incident but had not told names of all the accused except that of Dadua because no body had asked their name. The information which was given by him to the inspector even in that he had not disclosed the names of the accused. The inspector had come to the village within four hours of receiving the information in the night at about 1:30-2:00 a.m.
104. From the above three statements, which have been cited, it is apparent that PW-1, who after having seen the incident, has stated to have informed the police as well as the informant PW-4 about the incident, who also knew accused appellants for about 15 years, did not inform PW-4 the names of accused, who were involved in the occurrence, which is unbelievable. If he had seen the occurrence and had actually told about it to the informant, what was the reason not to disclose the names of accused to the informant or even to the Investigating Officer, no justifiable reasons have been given, merely saying that nobody had inquired about it could not be held to be a sufficient reasons for not telling names of the accused persons. This would make his testimony doubtful in respect of his having seen the occurrence.
105. Learned counsel for the appellant has vehemently argued that this occurrence did take place in the mid of deep jungle in isolation where none was present and later on merely because Dadua gang was operating in the said area, it was the conjecture of the witnesses and the informant that the said occurrence might have been caused by the members of the said gang and these witnesses subsequently implicated the appellants along with other co-accused only on the basis of their believing them to be members of Dadua gang. It was also argued that men of Dadua gang including the present appellants were belonging to nearby villages and had agricultural land also, hence they knew them from before and it has also come in evidence that Dadua gang and their members used to come to their houses on various occasions such as for performing the Yagya etc. and other ceremonies. Therefore, it was further argued that if the gang of Dadua or its members used to visit any resident of the said village or nearby villages, would not be sufficient to prove that they were actually members of the gang.
106. Now, we would like to take up the evidence with respect to manner in which this incident is stated to have been seen by the four eye-witnesses believing whom, the learned trial court has held the accused-appellants guilty.
107. At the very outset, it would be pertinent to mention here that the prosecution case is that all these eye-witnesses namely PW-1, PW-2, PW-9 and PW-10 had together gone for nature's call towards Bardaha Ghat where they heard sounds of few fires when they become free from nature's call and after hearing the said fires, they proceeded towards the place which was near the place of occurrence, which have been shown in the site plan by 'A' and 'B' and reached the place which is shown by 'E' and 'F' and they had seen this incident from the said place which is stated to be 25-30 paces away from 'A' and 'B'. There is discrepancy also with respect to the fact as to whether these witnesses together had proceeded towards the places shown by 'E' and 'F' or they had gone back to the Abadi of village Mau-Gurdari which is shown about one and half Km from the place where they had gone for nature's call and there they heard sounds of fire and after that they proceeded towards the place 'E' and 'F' and had seen the occurrence from there. Because this kind of discrepancy, has been noticed in the statement of these four witnesses, the argument of learned counsel for the appellant was that this discrepancy is material one which was making their having witnessed the incident to be doubtful.
108. It was also argued that in the dark hours of night, it was not possible for these witnesses to have identified the accused appellants and other co-accused from a distance of 25-30 paces where they were stated to have concealed themselves in the bushes which were too high and spread over that area. There are various discrepancies with respect to the place where they were concealing themselves because some of them have stated that they had concealed themselves in one bush while the other witnesses have stated that they were sitting at a distance from each other in different bushes. Some of them have stated that they had seen the occurrence after getting straight while others stated that they had seen in crouching position. It is also noticeable that if the decoits/ hardened criminal which the accused are alleged to be, were there so near the place where the witnesses had concealed themselves, there was strong possibility that they could also have been eliminated these witnesses. The I.O. has clearly stated that Aditya (P.W.1) had not told him that as to where the place of incident was located nor had he told him that he had seen the incident and that when he reached the place of incident, he had found that the fire was smouldering there and subsequently he had taken the witnesses which are named above along with some other villagers, in all eight in number with him and had seen the place of incident. Pointing out this statement, it was argued that it makes absolutely clear that the incident happened in solitary place without there being any eye-witness of the same and later on, on the basis of enmity and conjectures, the accused appellants have been implicated in this case. We find substance in the argument of the learned counsel for the appellants because P.W. 2 has stated to have seen the incident from 20 paces away and had seen the dead bodies of both the deceased lying by the side of tractor. This witness has named only three accused appellants i.e. Phool Chand, Sunil Dwivedi and Hari Shankar whom he recognized in the light of flames which arose due to burning of the tractor tyre and diesel and the dead bodies, apart from few others who are not appellants here and stated that he did not recognize the appellants, Heera Lal Tiwari and Aniruddha Yadav.
109. In cross-examination, he has stated that there were 18-20 assailants involved in the incident armed with various fire arm weapons. The diesel which had spread on the ground was set on fire by match stick but who had actually done this, he could not tell. Who all had brought the dead body of Munni Lal near the tractor, he could not tell. He also could not tell us as to who had fired upon the deceased and how many fires were made upon them. To the west of the said tractor, both the dead bodies were lying. P.W.9 Rajendra Prasad, also an eye-witness, has stated in examination-in-chief that near the right side of the tractor, both the dead bodies including the tyre were burning because of which a lot of light was there and the accused appellant along with other co-accused were seen with fire arms in their hands. In their presence, only one person was making fire who was Hari Shankar Tiwari which was made upon the body of the tractor; he made about ten fires; he knew all the members of the gang; he remained at the place of incident for about half an hour and the miscreants had not fled from there till both the dead bodies were burnt, thereafter they fled towards 'Chiraula Pahad'. This witness is the son of P.W.4 (informant), Chunni Lal and his real uncle and cousin brother had been killed in this incident, yet he has stated in cross-examination that when he returned home, he did not meet his father and remained inside the house for two days without meeting his father and about this, he had also told the I.O. and if the same is not written, he could not tell its reason. He met his father next day about 12 noon after the last rites of the deceased persons had been performed. He had not disclosed names of any of accused to anybody, not even to his father and had gone to the P.S. about 20-25 days after the incident for lodging the report and stated there the names of all the accused and had also given their names in writing to the I.O. It was strongly argued by the learned counsel for the appellant that as the relationship of this witness was so close to the deceased, his conduct does not appear to be reasonable which makes his statement unbelievable that he would, after having seen the incident, would not disclose the names of any accused to anyone even to his father and would remain indoors for two days continuously. This witness has further stated that he was hearing the sound of tractor, on the basis of which he had suspicion and after hearing the said sound of tractor, he along with others reached there. After first fire, 20-25 fires were also made which were heard by him and after hearing these sounds of fire, he suspected that some encounter had taken place and after that without any fear, he proceeded towards the place of incident without having any weapon although Ram Dayal, the other eye-witness had gun. Ram Dayal did not make any fire after hearing the sound of fire and they were proceeding towards place of incident concealing themselves. Citing this, it was argued by the counsel that it was unnatural situation. We also find this statement to be unnatural that in situation like this when fires were being made, the person would proceed without having any fear. P.W.10, Sant Ram who was also an eye-witness and was accompanying other three witnesses named above at the time of incident has stated that he had recognized accused appellant Phool Chand, Sunil, Hari Shankar and several others but could not recognize remaining persons. This witness has not taken name of Hira Tiwari as an accused whom he had recognized and with regard to Aniruddha, he has stated that he could not recognize him and had not seen him involved in the incident. He has further sated that when for the first time he saw the incident, he had seen that near wheel of the tractor, the dead bodies of Munni Lal and his son, Harish Chand were burning and about 20 feet behind the rear portion of the tractor, he had heard the deceased, Munni Lal groaning. Four to five miscreants had dragged the body of Munni Lal and placed it upon the burning dead body of his son, Harish Chand. He had not seen any accused who are present in court, to have fired upon the tractor or upon the deceased. Behind the tractor, drum of diesel was loaded, from hole made in that drum, diesel was flowing which was spreading towards Munni Lal and Harish Chand but he had not seen anyone firing upon that drum. He had seen the rear portion burning and heard the sound of about 35-40 fires but no fire was made in front of him although he stayed at the place of incident for about half an hour and, thereafter, miscreants fled towards 'Chiraula Pahad' and they (witness) had returned home. He had also seen that gun of Munni Lal was picked up by Dadua. This witness was cross-examined by the court itself wherein he has stated that when they had started to return home after nature's call, he had seen the occurrence from distance of about 4-6 paces and, thereafter again said that after having become free from nature's call, he had heard sound of fires from a distance of about 8-10 paces and, thereafter, proceeded towards the same direction towards south for about half km. concealing themselves in bushes and, thereafter from about .25 km. away, they saw the incident. They were concealing themselves in separate bushes. The statement of this witness also seems to be in conflict with other witnesses who have stated to have seen the incident together with this witness because this witness has stated that he had seen the incident from a distance of about 250 metres (0.25 km.) while others have stated that they have seen the incident from 25-30 paces and some have stated that it was seen from 8-10 paces. The I.O. has shown the place from where these witnesses have stated to have seen the incident about 25-30 paces by 'E' and 'F', therefore, lot of discrepancy in regard to the distance from which they have seen the occurrence and that too in the night hours when it was dark and it has also come in evidence that there are discrepancies in respect to these witnesses being armed with weapons as well as having torches with them because some have stated that all of them were carrying weapons while in statement of one witness it has come that only one was armed with a weapon although two were having torches but none of them lighted the torch because that could have attracted the attention of the accused which could have been fatal for them.
110. We have noticed steep variations with respect to the number of fires being heard by them at the time when they were sitting for nature's call or after having become free from nature's call, thereafter, they heard these fire shots and, thereafter they proceeded towards the place shown by 'E' and 'F' by the I.O., which distance is also stated to be different by all these witnesses although they have stated to have proceeded simultaneously together for the said place of the incident where they had concealed themselves. A very important variation has also occurred with respect to their having proceeded after hearing the sound of fire towards the village Mau Gurdari and after having assembled in the school from there they proceeded towards the place where they were concealing themselves i.e. 'E' and 'F' in the in the site-plan. These material contradictions make the statements of these witnesses not credible particularly in the backdrop when each of them has stated that none of them had seen any of the accused having made fire upon the deceased as the fire had already been made, the eye-witness account which they have sought to provide is only to the extent that they had seen the dead body being burnt by few miscreants but even they could not be recognized by some of them. The evidence with respect to the accused appellants being known from before adds to their statement being unbelievable because had they knew them from before, their names ought to have come in the F.I.R. because one of the eye-witnesses who has stated to have seen the incident personally had not only informed about the incident to the informant, P.W.4 but also provided information to the police Inspector of the P.S. concerned and yet no name was disclosed. It is highly unbelievable that in such a serious incident where two people had been killed, the names of accused despite knowledge of their names would not be disclosed by these witnesses neither to the police nor to the informant.
111. From the side of Learned Government Advocate, a list of members of gang of Radhey @ Subedar son of Mithai Lal Kurmi, resident of village Sapha, P.S. Kotwali, Kavri, District Chitrakoot (HS No. 120A) which is known as 1S-112 has been provided in which the names of seven hard-core members of the said gang and 18 adhoc members of the said gang have been mentioned among whom three accused namely Radhey @ Subedar son of Mithai Lal, resident of village Sapha, P.S. Kotwali Karvi, Bhonda @ Gotar son of Bhairo Chamar, resident of Ahira, P.S. Raipura, P.S. Raipura Rohni @ Tehsildar son of Shiv Mohan Kurmi, resident of Unna Banna, P.S. Raipura, all belonging to District Chitrakoot are shown among hardcore category members of the said gang while accused Phool Chand Kol @ Langra son of Vishnoo, resident of Daooa Majra Khandeha, P.S.Mau, Sunil Kumar son of Mewa Lal Brahman, resident of Chamroha, P.S. Manikpur both resident of Chitrakoot have been shown to be adhoc members of the said gang and it was argued that this gang was being led by Dadua and it was vehemently argued that because of fear of that gang, no one used to come forward to depose against them and that there was sufficient evidence on record to hold the accused-appellants guilty despite the fact that, there were several deficiencies/discrepancies in the statement of witnesses as they should be taken to be natural one, because such kind of discrepancy may occur when statements of witnesses are recorded at distant point of time.
112. We are not inclined to accept the argument of the learned G.A. with respect to the discrepancies found in the statements of witnesses because severer the punishment, tougher must be the scrutiny of evidence which is adduced from the side of prosecution to prove its case against the accused beyond reasonable doubt, more so in a case where life imprisonment has been awarded.
113. In totality, we find that the statements of all the four witnesses which have been believed by the trial court appear to have been wrongly interpreted. We do not find these statements to be credible and find that learned trial court has committed error in holding the accused appellants guilty on the basis of these statements. The impugned judgment and order of the trial court dated 21.09.2016 convicting and sentencing the appellants is set aside. The accused-Aniruddha involved in S.S.T. No. 240 of 2006 (State Vs. Aniruddha) arising out of Case Crime No. 53 of 2006, u/s 148, 201/149, 404/149, 427/149, 302/149 IPC and u/s 14 D.A.A. Act, accused Phool Chandra and Sunil Dwivedi involved in S.S.T. No. 226 of 2006, arising out of Case Crime No. 53 of 2006 (State of U.P. Vs. Phool Chandra and another), u/s 148, 201/149, 404/149, 427/149, 302/149 IPC and u/s 14 D.A.A. Act, accused Heera Lal Tiwari and Hari Shankar Tiwari involved in S.S.T. No. 226 of 2006 arising out of Case Crime No. 53 of 2006 (State of U.P. Vs. Phool Chand and others), u/s 148, 201/149, 404/149, 427/149, 302/149 IPC and u/s 14 D.A.A. Act, P.S. Manikpur, District Chitrakoot are acquitted of the above charges, if they are not detailed in any other case, they shall be set at liberty forthwith subject to their furnishing bail bonds in terms of Section 437-A Cr.P.C. to the satisfaction of the court concerned. A copy of this judgment be transmitted to the trial court forthwith for immediate compliance along with original record of this case.
114. The appeals deserve to be allowed and are, accordingly, allowed.
(Dinesh Kumar Singh-I,J.) (Ramesh Sinha, J.)
Order date 15.2.2019
A/U, A.P Pandey/Mandhani