Allahabad High Court
Daroga Singh Alias Sri Krishna Son Of Tej ... vs State Of U.P. on 28 January, 2005
Author: Imtiyaz Murtaza
Bench: Imtiyaz Murtaza, Amar Saran
JUDGMENT Imtiyaz Murtaza, J.
1. In these seven appeals the factual matrix relates to the same incident and the judgment impugned being the same, they are heard together and disposed of by this common judgment.
2. All the appeals have been filed against the judgment and order dated 24.4.2004 passed by Additional Sessions Judge/Fast Track Court No. 1 Bhadohi in Session Trial No. 162 of 2000 (State of U.P. v. Udai Bhan Singh alias Doctor Singh and Ors.) convicting and sentencing the appellants under Section 302/149 I.P.C. for imprisonment of life and fine of Rs. 5,000/-, in default of payment of fine, one month further R.I., under Section 147 I.P.C. for three months R.I. and fine of Rs. 500/-, in default of payment of fine three months further R.I. and further convicting and sentencing the appellants under Section 148. I.P.C. for six months R.I. and fine of Rs. 1000.00 in default of payment of fine 15 days further R.I. All the sentences were ordered to run concurrently.
3. Brief facts of the case are that on 4.4.1999 one Rakesh Kumar Pandey alongwith his brother-in-law Surya Narain alias Vakil Shukla were coming from Aurai to Gopiganj in his personal Car No. WB 26A 7554. In the car Surya Narain alias Vakil Shukla, Devi Shanker Dubey, Rakesh Kumar Pandey and Prem Shanker Dubey were sitting and Shesh Mani was driving the car. At about 3 p.m. when they reached at Trimuhani of Mirzapur road in township Gopiganj on G.T. road, accused Udai Bhan Singh, Tehsildar Singh, Akbal Bahadur alias Atkoti singh, Prem Singh, Dhunni Singh, Munni Singh, Daroga Singh, Rajeshwar Upadhyay, Pintoo Singh and two other persons who were armed with latest weapons started firing. On account of this, his brother-in-law Surya Narain alias Vakil Shukla, Devi Shanker Dubey and car driver Shesh Mani died on the spot. He and Prem Shanker Dubey who were sitting on the back seat of the car came out of the car and received injuries also. Licensed Rifle of Prem Shanker Dubey was left in the car, which was taken away by one of the assailants. The occurrence was witnessed by Shiv Prasad @ Dangar Tewari, Mukund Lal, Ram Dutt Mishra and other persons. Shopkeepers started running away after closing their shutters. It is further stated that there was enmity between Surya Narain alias Vakil Shukla and Udai Bhan Singh with regard to some contract work. The report was lodged at 3.45 p.m. by one Rakesh Kumar Pandey at police station Gopiganj and the distance of police station from the place of occurrence is one km. Uma Shanker Pandey, Head Constable prepared the chik F.I.R. (Ext. Ka-2) and entered it in the G.D. (Ext. Ka-3). S.I. Vidya Prakash Misra started investigation. He reached at the place of occurrence and recorded the statement of informant Rakesh Kumar Pandey. S.I. Rashid Ahmad prepared the inquest report of Surya Narain alias Vakil shukla, Devi Shanker Dubey and Shesh Mani on his dictation. Dead bodies were sent for the most mortem examinations. He prepared the site plan (Ext. Ka-25) and collected blood stained and plain earth from the place of occurrence, broken pieces of glass of car, a piece of Raxine, blood stained shoes, empty cartridges, one Rifle and 9 mm Pistol of deceased Surya Narain Shukla and prepared its recovery memos (Ext. Ka-26 to Ka-32). The dead bodies were sent for the post mortem examination through constables Devi Prasad Pandey and Prabhu Nath Yadav. Post mortem of the deceased Devi Shanker Dubey was conducted by Dr. Radhey Raman, Medical Officer, Maharaj Chet Singh Hospital, Gyanpur 4.4.1999 at about 11.55 p.m. He found following ante mortem injuries on the dead body of the deceased Devi Shanker Dubey:
1. Fire arm wound of entry charring and tattooing of size 2.00 cm x 1.00 cm. on left side of chest just below the mid part of left cavicle. Left side clavicle fractured with same wound of exit.
2. Fire arm wound of entry with charring and tattooing around of size 1.00 cm. x 1.00 cm. on right supra clavicular region 4.00 cm. medial to top of right shoulder, margins of wound inverted with its wound of exit of size 2.5 cm. x 2.00 cm. on left side of chest on its lateral side 5.00 cm. lateral and just below to left nipple margin of wound of exit is everted.
3. Abraded contusion of size 2.00 cm. x 2.0 cm. on right side of forehead.
4. In the internal examination he noted left clavicle fractured. 5th, 6th and 7th left side ribs fractured. In thorax, walls lacerated, ribs fractured, pleura lacerated, right lung lacerated, left lung lacerated, pericardium lacerated. Heart lacerated. Small intestine contained pasty material and gases. Large intestine contained faecal material and gases. One piece of cork of size 1.5 cm. diameter 1.2 cm. length recovered from the left side chest.
5. In the opinion of the doctor the cause of death was shock and haemorrhage due to ante mortem fire arm injuries.
6. Dr. Sanjai Tewari, Medical Officer, P.H.C. Bhadohi also conducted the post mortem examination on the dead body of the deceased Surya Narain Shukla alias Vakil Shukla on 5.4.1999 about 12.30 a.m. and noted following ante mortem injuries:
1. Lacerated wound 2 cm. x 1 cm. on the left side forehead with charring and tattooing around it. Frontal bone not injured.
2. Abrasion 1 cm. x 0.5 cm. on themed forehead with charring and tattooing around it.
3. wound of forearm entry 6 in number each measuring 0.8 cm. x 0.8 cm. on the top and back of left shoulder. Margins of wound inverted with blackening and tattooing all around it with their wound of exit as follows:
i) 1.5 cm. x 1.5 cm. on the left side chest below the left axilla, 5 cm. below the apex
ii) 3 cm. x 3 cm. on the left side chest 8 cm. below and lateral to the left nipple,
iii) 1 cm. x 1 cm. on the right side chest 6 cm. below the right nipple,
iv) 1 cm. x 1 cm. on the right side chest 4.5 cm. above and medial to the right nipple,
v) 1 cm. x 1 cm. on right side chest 8 cm. below the right nipple, vi) 1 cm. x 1 cm. on the right side chest 6.5 cm. lateral to the right nipple.
4. Fire arm wound of entry 9 cm. x 8 cm. on the lateral surface of right mid thigh with inverted margins and tattooing all around it with its wound of exit on the medial surface of thigh at the same level with everted margins size 1 cm. x 1 cm.
7. In the internal examination he noted fracture of the clavicle, fracture of left 5th, 6th and 7th ribs, fracture of 6th, 7th and 8th right ribs. In thorax, walls lacerated, ribs fractured, right and left lung lacerated. Pericardium lacerated. Heart lacerated and empty small intestine contained pasty material and large intestine contained faecal matter.
8. In the opinion of the doctor cause of death was haemorrhage and shock due to ante mortem injuries.
9. He also conducted autopsy on the dead body of Shesh Mani Rai on 4.4.1999 at about 11.30 p.m. and noted following ante mortem injuries:
1. Wound of entrance 5 cm. x 4 cm. on the right side neck 1 cm. below and posterior to the right ear. Margins of the wound inverted with charring and tattooing of skin all around with its wound of exit of size 6 cm. x 5 cm. on the left side face over and lateral to the left eye with everted margins.
2. Wound of entrance 5.5 cm. x 5 cm. on the right side eye margins of the wound inverted with charring and tattooing of skin all around, with its wound of exit of size 6 cm. x 6 cm. below the left ear. Margin of the wound everted.
3. Wound of entrance 1 cm. x 1 cm. on the anterolateral aspect of left arm. Margins of the wound inverted with charring and tattooing of skin all around with its wound of exit 1.5 cm. x 1.5 cm. on the poster lateral aspect of left arm. Margin of the wound everted.
10. In the internal examination he noted both eye ball missing and lacerated, skull and facial bones fractured membranes brain lacerated, pharynx lacerated. Small intestine contained pasty material with gases, large intestine contained faecal matter with gases.
11. In the opinion of the doctor cause of death was haemorrhage and shock due to fire arm injuries.
12. Dr. A.K. Pandey, Medical Officer, PHC Gopiganj. Sant Ravi Das Nagar conducted medical examination Prem Shanker Dubey on 4.4.1999 at 5.25 p.m. and noted the following injuries:
1. Lacerated wound on the right side of the eyebrow 1 cm. x 3 cm. on the lateral part of the eyebrow. Blood was oozing.
2. Lacerated wound on the......face of the lower lip at right side 1.5 cm. x .5 cm. against 1st incisor, blood was oozing.
13. Remark- All above injuries caused by hard and blunt object, duration fresh and simple in nature.
14. Dr. L.S. Misra, Medical Officer, PHC Gopiganj, Sant Ravi Das Nagar had medically examined Rakesh Kumar Pandey on 4.4.1999 at 8.15 p.m. and noted following injuries:
1. Abrasion 8 cm. x 6 cm. on the dorso-medial surface of right forearm 3 cm. above the right wrist reddish in colour
2. Abrasion 5 c. x 5 cm. on the dorsal surface of right index finger 2.5 cm. above the base of index finger reddish in colour.
3. Abrasion 5 cm. x 5 cm. on the distal part of middle finger (left) 5 cm. below nail bad reddish in colour.
4. Abraded contusion 3.5 cm. x 2.5 cm. on the antero medial surface of left leg 7 cm. below the left knee. Reddish in colour.
5. Contusion 6 cm. x 2.5 cm. on the under surface of upper part of right leg 5 cm. x 4 cm. below the right knee reddish in colour.
Remark: All the above injuries simple in nature, caused by hard blunt object. Duration fresh.
After the conclusion of the investigation charge sheet was submitted in the court and the case was committed to the Court of Sessions.
The Sessions Judge framed charges under Sections 147, 148, 302 read with 149 I.P.C. and appellant Suresh Singh alias Jajjey Singh was further charged under Section 379 and 149 I.P.C. Tehsildar Singh and Suresh Singh alias Jajjey singh further charged under Section 411 I.P.C.
15. In order to prove its case, the prosecution examined 18 witnesses.
16. In this case the informant Rakesh Kumar Pandey could not be examined because by the time the case came up for the trial, he was murdered on 17.2.2003.
17. P.W. 1 Shiv Prasad alias Dangar Tewari stated that on 4.4.1999 at about 3 p.m. he was going from Vindhyachal via Mirzapur and when he reached at the tri section on G.T. Road Gopiganj he heard some shots. He was accompanied by Mukund Lal Dharkar and Ram Dutt Mishra. He saw Udai Bhan Singh, Sandeep alias Pintoo Singh, Shri Krishna Singh alias Daroga Singh, Mata Prasad alias Munni Singh, Munni Singh, Akbal Bahadur alias Atkoti Singh, Priyank Singh, Suresh Singh alias Jajjey Singh and Rajeshwar Upadhyay, Sanjay Singh, Santosh Singh, Sanjay Singh son of Ram Varan and Ashok Singh alias Babloo Singh armed with guns, Rifle, 30 Carbine and pistol. They were coming from east targeting and firing at the ambassador car. They were firing upon Vakil Shukla in front of the clinic of Dr. A.N. Singh. The Car of Vakil Shukla collided with one Roadways Bus. Tehsildar Singh exhorted them to kill. All of them came near the car and started firing. Vakil Shukla, Devi Shankar Dubey and Shesh Mani Rai were inside the car. Shesh Mani was driving the car. On the back seat brother-in-law of Vakil Shukla Rakesh Kumar Pandey and Prem Shankar Dubey were sitting. Rakesh Kumar Pandey and Devi Shankar Dubey came out of the car on the left footpath and stood by them. Doctor Singh, Sandeep Singh, Akbal Singh alias Atkoti Singh, brother-in-law of Doctor Singh alias Udai Bhan Singh were firing from the front at Vakil Shukla and others were also firing. Vakil Shukla alias Surya Narain Shukla, Devi Shankar Dubey and Shesh Mani Rai received fire arm injuries, as a consequence of which they died inside the car. Suresh Kumar alias Jajjey Singh took away the licensed rifle of Prem Shankar Dubey. They ran away in their Sumo and other vehicles shouting Har Har Mahadev. There was dispute between Vakil Shukla and Udai Bhan Singh with regard to some contract work. He had also contested election of Zila Panchayat against Akbal Bahadur alias Atkoti Singh. The assailants could not take away the Rifle and pistol of Vakil Shukla. Report was lodged by Rakesh Kumar Pandey. Rakesh Kumar Pandey has been murdered on 17.2.2003. He identified the report, which was written by Rakesh Kumar Pandey. The investigating officer had prepared the inquest reports of the deceased and he had signed the inquest reports. He had recorded his statement on the next day of the occurrence.
18. He further stated that the officers of C.B.C.I.D. had also contacted him and he told them that his statement is the same which he had given to the investigating officer. In the cross examination he stated that he could not remember whether Rakesh Kumar Pandey had signed with the same pen with which he had written the report. He stated that in Gopiganj Township one road goes to Mirzapur which is called Trimuhani which is the place of occurrence. On the eastern side towards Aurai on the G.T. road there is a speed breaker. This speed breaker is 80 - 85 steps from Trimuhani. On the southern side at a distance of 25 - 30 steps from speed breaker there is a Ramlila ground. On the said Trimuhani buses coming from Allahabad and going to Varanasi stop near Bus Station Petrol Pump. The distance is about half furlong from Trimuhani. He stated that after about 15 - 20 seconds one Bus stopped on the northern footpath. He stated that when he reached at the speed breaker except Tehsildar Singh all the accused started firing at the Car. They fired about 15-20 shots. They were firing and chasing the car. The car ran at a speed of 40 -50 kms. per hour and collided with the Bus which was coming from Allahabad. After the collision the car retreated about 6-7 steps. As the car stopped Rajesh Kumar Pandey and Prem Shanker Dubey came out of the car hurriedly and stayed at 5 -7 steps near him. The accused persons came in front of the car and started firing at the deceased. He stated that he informed the investigating officer that Doctor Singh, Sandeep Singh alias Pintoo Singh, Akbal Bahadur alias Atkoti singh and Sanjay Singh, brother-in-law of Doctor Singh alias Udai Bhan Singh fired at Vakil Shukla and others were also firing. If the investigating officer did not mention this fact, he does not know the reason. He knows Sandeep, Shri krishna Singh, Mata Prasad Singh and Prem Singh alias Priyank Singh for the last about 10-15 years. He knew Sandeep alias Pintoo Singh for the last about 4 years. He informed the names of these accused persons to the investigating officer, if he did not mention their names in his statement he could not tell the reason. Akbal Bahadur had contested an election with Vakil Shukla in the year 1996 - 1997. If this fact is not mentioned by the investigating officer, he could not tell the reason. The investigating officer had arrived at the place of the occurrence at about 4 or 4.15 p.m. The dead bodies were taken out of the car by the Inspector and police personnel and they kept the dead bodies at a distance of 20 step South from Trimuhani. The investigating officer prepared the inquest report. He signed the inquest report. On the same day the investigating officer had asked about the names of the accused persons and he had disclosed the same to the investigating officer. He could not tell the reason why on the same day the investigating officer did not mention the names of these accused in his statement. He disclosed to the investigating officer about the names of the accused, accident of the car with the Bus, and Pintoo Singh fired at the deceased. These facts are not mentioned in his statement he could not tell the reason. Mukund Lal is a resident of Abhiyar which is in his Gaon Sabha Rampur Dhar. Ram Dutt Misra is resident of police station Sarai Inayat. He works in Radhaswami Dham, Vidyalay. He was also working in the same school. He did not know that Vijay Kumar Misra is the Manager of the said school. Vijay Kumar Misra, M.L.A. Gyanpur is resident of Khapaliya. Accused Udai Bhan Singh is M.L.A. of Aurai Vidhan Sabha. At the time of election Vijay Misra was in Samajvadi Party and Udai Bhan Singh was in Bahujan Samaj Party. In that election Atkoti Singh and Vakil Shukla and four five others contested the election. Atkoti Singh was elected in that election. He further stated that daughter of his elder brother Adya Prasad is married with Manish Misra who is nephew of Vijay Misra. Vakil Shukla takes contract of P.W.D. for construction of roads. Udai Bhan Singh also takes contract of P.W.D. for construction of roads. He did not know whether there was any dispute between Vakil Shukla and Udai Bhan Singh with regard to contract work. He did not know that Vakil Shukla was involved in 1990 in a case under Section 307, 323 and 427 at police station Gopiganj. He did not know whether in 1990 case crime No. 220 of 1980 was registered against him under Section 347, 323 and 308 I.P.C. He did not know whether Vakil Shukla was prosecuted in case crime No. 108 of 1985 under Section 302, 323 I.P.C. He did not know whether a case was registered against Vakil Shukla at police station Aurai at case crime No. 19 of 1987 under Section 399/402 I.P.C. He had no knowledge whether any case was registered in the year 1991 against Vakil Shukla under Sections 147, 148, 149, 307 I.P.C. at case crime No. 144 of 1991. He had no knowledge that Vakil Shukla was involved in case crime No. 204A of 1991 under Section 147, 148, 149, 307 I.P.C. police station Gopiganj. He had no knowledge that in the year 1991 police of Police Station Gopiganj had registered a case under Gangster Act at case crime No. 226 of 1991.
19. It is correct that Vakil Shukla was involved in the year 1998 in a case at crime No. 149 of 1998 and at the same time he was also involved in a case under Section 25 Arms Act and 27-A Arms Act. In 1997 Vakil Shukla was involved in a case under Section 25/27 Arms Act. He read in the new paper that Vakil Shukla was detained under N.S.A. by police station Gopiganj. He admits that he was prosecuted under Section 307 in which he was acquitted. In a case under Section 394 I.P.C. final report was submitted. In the present case he moved a transfer application and had also filed an affidavit. On 20.10.2003 he had moved the transfer application and on the same day he had sought adjournment on the ground of illness and on the same day he filed an affidavit in which he stated that on account of his illness he could not appear. In the first information report names of Ashok alias Toofani Singh and Sanjay Singh are not mentioned. He stated that he informed the investigating officer that accused persons were armed with 30 Carbine but why the investigating officer did not mention this fact he could not tell the reason. On the date of occurrence he and Mukund Lal had gone to Vindhyachal Temple for worship. He reached at the Temple at about 12 or 12.15 p.m. Thereafter they had taken tea and returned to their house. He had no knowledge that the doors of the Temple closes at 12 O'clock and reopens at 3 p.m. He met Ram Dutt near Cheelh crossing. Ram Dutt requested for a lift on his motor cycle. He left his house at 11 a.m. on the date of occurrence. He took about 5-7 minutes to worship in the temple. After the death of Rakesh Kumar Pandey he started doing pairvi of this case. He paid the fees of the lawyers in the High Court. He saw Jajjey Singh taking away the Rifle from the car. He is a resident of village Soraon District Mirzapur. Sanjay is a resident of Bihar, he is the brother-in-law of Doctor Singh. Rakesh Kumar Pandey wrote the report in 8 - 10 minutes.
20. P.W. 2 Uma Shanker is Head Constable at police station Aurai. He prepared the chik No. 29 on the basis of report lodged by Rakesh Kumar Pandey at case crime No. 171 of 1999 under Section 147, 148, 149, 302, 379 I.P.C. (Ext. Ka-2) and prepared G.D. entry ( Ext. Ka-3).
21. P.W. 3 is Dr. Radhey Ram, Medical Officer Maharaja Chet Singh District Hospital, Gyanpur. He conducted the post mortem of the dead body of Devi Shanker Dubey on 4.4.199 at 11.55 p.m. ( Ext. Ka-4). A piece of the cork was recovered from below the left collar bone.
22. P.W. 4 Prem Shanker Dubey is an eye witness. He did not support the prosecution case. He stated that occurrence is of 4.4.1999, he did not remember whether on the date of the occurrence, he was sitting in the car of Vakil Shukla or not. He did not remember that 4 other persons were sitting in the car. He could not remember the colour and number of the car. He did not tell the names of the persons who were sitting on the front seat and who were sitting on the back seat. He had a licence of Rifle. He was sitting on the back seat of the car on the date of occurrence. He did not remember whether Surya Narain alias Vakil Shukla was sitting in the car at the time of firing at the car or not. He stated that when the car stopped he came out of the car and received some injuries also. He did not remember whether his injuries were medically examined or not. He did not remember that Rakesh Pandey was also sitting with him and Shesh Mani was the driver of the car. He could not see the assailants. He could not remember whether it was day or night. When he came out of the car his Rifle was left in the car. In the cross examination by A.D.G.C. he stated that he did not give any statement to the investigating officer. On 29.11.2003 he came to the court and his signatures were obtained on blank papers. He moved an application in the court of C.J.M. and also filed an affidavit dated 17.4.1999. He had also given a Vakalatnama, he furnished bond of Rs. 50,000/- for the release of his Rifle. He proved an application, affidavit, Vakalatnama, licence and bond, (Ext. Ka 44,45 and 46). In the application dated 17.4.1999 paragraph 1 is correct. He did not know whether the contents of paragraph 2 are correct or not. He did not disclose the names in the application or affidavit nor mentioned any facts about the occurrence. He did not go to the police station nor any chitthi Majroobi was prepared nor his thumb impression was obtained on the injury report nor constable Nathuni Yadava had taken him for medical examination. He was cross examined by the counsel for the accused. He stated that he recognizes only Vakil Shukla who was sitting in the car on 29.11.2003. He moved an application and filed affidavit in the court. The application is Ext. Kha-1 and affidavit is Ext. Kha-2.
23. P.W. 5 Ram Dutt Misra stated that the place of occurrence is Gopiganj market on G.T. Road at Mirzapur Trimuha. He and Dangar Tewari reached there on the motor cycle of Mukund Lal. On the place of occurrence an Ambassador car was going from east to west, Vakil Shukla, Devi Shanker were sitting on the front seat and Shesh Mani Rai was the driver of the car. On the back seat Rakesh Kumar Pandey and Devi Shanker Dubey were sitting. Udai Bhan Singh alias Doctor Singh, Sandeep Singh alias Pintoo Singh, Sanjay Singh, brother-in-law of Doctor Singh and his two friends Sanjay Singh and Santosh Singh, Ashok Singh, Rajeshwar Upadhyay, Suresh Kumar alias Jajjey Singh, Shri Krishna Singh alias Daroga Singh, Chhuni Singh, Munni Singh, Prem Singh and Atkati Singh were chasing the car and firing with their weapons. They were armed with Rifle, Gun, Pistol and Carbine. Tehsildar Singh was exhorting them. It is further stated that Ambassador car was going towards West in speed and collided with a Bus which was coming towards Varanasi. Rakesh Kumar Pandey and Prem Shanker Dube came out of the car and while coming out of the car they received some injuries. Rifle of Prem Shanker Dubey was left in the car. Thereafter all the accused surrounded the car and started indiscriminate firing and they kept on firing till Vakil Shukla, Devi Shanker Dubey and Shesh Mani died. One of them took away the Rifle of Prem Shanker Dube and all the accused persons were raising the slogan Har Har Mahadeo and they ran away in Maruti Car, Sumo etc and on one motor cycle towards Orai. The occurrence was witnessed by him and Shiv Prasad alias Dangar Singh, Mukund Lal and Rakesh Pandey. In the cross examination he stated that on the date of occurrence he had gone to Vindhyachal for 'Darshan' in the morning. He did not know where Mukund Lal and Dangar Tewari had gone. He left Vindhyachal at about 11 - 11.30 a.m. He did not know whether Vindhyachal temple closes in the noon or not. After worshiping he left for Gopiganj in a Tempo. He reached at cheelh turn in a Tempo which is at a distance of 10 - 12 km. from Vindhyachal. He remained at Cheelh turn for about an hour. At about 2 - 2.15 p.m. he saw Shiv Prasad alias Dangar Tewari and stopped him. He had also taken a lift on the motorcycle and reached at the Trimuhani alongwith them. His statement was recorded by the investigating officer at 11.30 a.m. He had recorded his statement in his room. The house belongs to Adya Tewari who is elder brother of Dangar Tewari. He did not inform the police out post while coming back to his home.
24. P.W. 6 Dr. A.K. Pandey is Medical Officer, Community Health Center Gopiganj. He examined Prem Shanker Dubey at 5.25 p.m. injuries of Prem Shanker Dubey which have already been mentioned in the earlier part of this judgment.
25. P.W. 7 Dr. L.S. Misra is Medical Officer, Community Health Center on 4.4.1999 at 8.15 p.m. He medically examined Rakesh Kumar Pandey and the injuries of Rakesh Kumar Pandey have already been mentioned in the earlier part of this judgment. In the cross examination he stated that on 4.4.1999 Dr. A.K. Pandey was on duty and in his absence he use to work. On the said date at about 8 p.m. he had gone to take his dinner. Thereafter he had to look after the Community Health Center.
26. P.W. 8 Dr. Sanjay Tewari, Medical Officer, Community Health Center conducted the post mortem examination of Surya Narain Shukla alias Vakil Shukla and the ante mortem injuries of the deceased have already been mentioned in the earlier part of this judgment.
27. P.W 9 is constable Devi Prasad Pandey. On 4.4.1999 he was posted as Head Constable, police station Gopiganj. The dead bodies were handed over to him in a sealed condition at 6.30 - 7 p.m. He alongwith constable Manoj Rai brought the dead bodies at Rampur police lines. The dead bodies were handed over to him alongwith three sealed envelopes.
28. P.W. 10 is S.I. Irshad Ali. On 4.4.1999 he was posted as s.I. police station Gopiganj. He reached at the place of occurrence alongwith Station House Officer. He prepared the inquest reports and handed over the dead bodies to constable Devi Prasad Pandey and Manoj Rai. Inquest report of Surya Narain alias Vakil Shukla (Ext. Ka-9). Photo lash (Ext. Ka-10), Form No. 13( Ext. Ka-11) and letters to R.I. and C.M.O. ( Ext. Ka-12 and Ka-13 ). He also prepared the inquest report of Devi Shanker Dubey ( Ext. Ka -14). Challan lash ( Ext.Ka-15), Photo lash ( Ext. Ka-16), report to R.I. ( Ext. Ka-17) and letter to C.M.O. for post mortem examination (Ext. Ka-18). On the same day he prepared the inquest of Shesh Mani Rai (Ext. Ka-19), letter to R.I. and C. M.O. Ext. Ka-20 and Ka-21), Photo Lash ( Ext. Ka-22), and Challan Lash ( Ext. Ka-23). In the cross examination he stated that dead bodies were kept on G.T. road. He stated that before starting the inquest report he had possessed the first information report. He stated that he prepared the inquest report of Shesh Mani Rai.
29. P.W. 11 Constable Prabhu Nath Yadava stated that when he reached at the place of occurrence, Irshad Ahmad was preparing the inquest report. The dead bodies were handed over to constable Manoj Rai and Devi shanker Pandey. He was there for security alongwith constable Rajendra Prasad.
30. P.W. 12 Daya Shanker Misra was transfered on 11.4.1999 as S.H.O. Gopiganj from police station Aurai. The first investigating officer submitted charge sheet on 10.4.1999 and he had to arrest the accused persons. On 11.4.1999 he received the technical expert report of car No. WB 26A 7554. He did not record the statement of any of the witnesses. He did not file any supplementary charge sheet.
31. P.W. 13 is Vidya Prakash Misra. On 4.4.1999 he was posted as S.H.O. police station Gopiganj. He started the investigation of the case. He recorded the statement of complainant Rakesh Kumar Pandey. On his dictation S.I. Irshad Ali prepared the inquest report of Surya Narain Shukla alias vakil shukla, Devi Shanker Dubey and Shesh Mani Rai. After the preparation of inquest repot dead bodies were sealed and handed over to constable Devi Prasad Pandey, Manoj Rai, constable Punnu Lal Yadava and constable Rajendra Prasad. He prepared the site plan on the pointing out of the complainant and the persons present ( Ext. Ka-25). He prepared the recovery memos of plain and blood stained earth, pieces of broken glass of the car, a piece of Raxine from the seat of the car, blood stained shoes, empty cartridge, one licensee Rifle of Surya Narain Shukla, one pistol 9 mm of Surya Narain Shukla (Ext. Ka-26 to Ka-32.). He recorded the statements of inquest witnesses Dangar alias Adya Prasad Tewari, Jata Shanker, Ramesh Kumar Pandey, Mukund Lal and witnesses of recovery memo, Ramjee Shukla, Pradeep Kumar Shukla, Irshad Ahmad and Jan Mohammad. On 5.4.1999 he recorded the statement of Santosh Kumar Singh, Anoop Kumar, Lallan Singh and Shri Balkeshwar Nath. He also recorded the statement of Prem Shanker Dubey. He also recorded the statement of photographer who had taken the photograph of the place of occurrence. On 6.4.1999 he recorded the Statement of Pawan Singh. Thereafter he recorded the statement of Prabhakar Khadhar and Vinod Kumar Dubey. He recorded the statement of the scribe of the report Head Moharrir, Uma Shanker Pandey. On 7.4.1999 he arrested Sanjay Singh and two other persons on Hero Honda motorcycle UP 66A 452. He recorded the statement of Sunil Dubey and Munni Pandey. On 8.4.1999 he recorded the statement of Ram Murat Upadhyay and searched for the accused. On 9.4.1999 he received information on R.T. set that Jajjey Singh and other two accused alongwith looted Rifle and cartridges were arrested. He also arrested Tehsildar Singh. He recorded the statement of S.H.O. Vindhyachal, Sharda Bux Singh, S.H.O. Mahihau, Shri Devendra Kumar Singh. He recorded the statement of Laljee Singh. He filed the charge sheet against the accused persons (Ext. Ka-36). P.W. 13 was recalled and re examined on 16.2.2004 and he stated that the envelope which was opened in court contained only three 12 bore cartridges. He further stated that on inspection of the car he found 8 bullet marks on chasis, 8 on tank, 10 on rear bumper, 12 on Dickey, one on rear class, and one on the bonnet. He stated that on 4.4.1999 the eye witnesses did not give any statement regarding the occurrence. The complainant had confirmed lodging of the first information report. On 4.4.1999 he had recorded the statement of inquest witnesses. On 5.4. 1999 at the instance of the complainant he recorded the statements as of eye witnesses. Suresh Kumar Singh alias Jajjey Singh claimed for his identification under Section 54-A Cr.P.C. The application was opposed by the prosecution and the same was rejected. On 18.3.2004 he was recalled and he stated that he got the photography of the place of occurrence and he had mentioned the same in his case diary. One sealed packet was opened in the court which contained one tikli, two empty cartridges of 12 bore, one of 9 mm and one of 30 mm, Rifle and two bullets (Ext. Ka- 28 to Ka-34). In the cross examination he stated that the packet which contained (Ext. Ka-28 to Ka-34 ) had a broken seal but the box which contained the cartridges had a proper seal.
32. P.W. 14 Ram Yash, Investigating Officer, C.B.C.I.D. started investigation on 17.5.1999 and the investigation was closed by the order dated 20.5.1999. Thereafter by the order of the High Court dated 15.6.1999 the case was again transferred to C.B.C.I.D.. On 8.10.1999 Rakesh Kumar Pandey had informed that his uncle-in-law that some verbal altercation regard to P.W.D. contracts. He recorded the statement of the accused and witnesses and the police officers who conducted the investigation. He filed the charge sheet (Ext.Ka-38).
33. P.W. 15 is Sharda Bux Singh. He stated that in the month of April, 1999 he was posted as S.H.O. Vindhyachal. He arrested Ashok Kumar Singh alias Babloo Singh and Suresh Kumar Singh son of Shambhu Singh. The factory made Rifle No. AB 973648 alongwith magazine containing four live cartridges were recovered from the possession of Ashok Kumar Singh (Ext. Ka-12). From the possession of Suresh Kumar Singh one U.S. 30 carbine alongwith magazine containing 9 live cartridges (Ext.Ka-13) and cartridges (Ext. Ka-14 to Ka-22) were recovered. Case under Section 25 Arms Act and 41/411 I.P.C. was registered as case crime No. 126/127 of 1999 against them.
34. P.W. 16 is Dhananjay Misra, S.H.O. Aurai, Sant Ravidas Nagar, Bhadohi. He stated that from 8.5.1999 to 21.5.2001 he was posted as S.H.O. Gopiganj. On 13.5.1999 he started investigation of the case. The earlier investigating officer had already submitted the charge sheet. He had received the ballistic expert's report on 25.5.1999 and recovered Rifle from the possession of the accused. Thereafter, the case was transferred to C.B.C.I.D.
35. P.W. 17 Devendra Kumar Singh, is the Incharge, S.O. District Sonbhadra. He stated that in the year 1999 he was posted as S.H.O. Marihau. He arrested Ashok Kumar Singh alias Babloo Singh alongwith the Rifle and he also arrested Suresh Kumar Singh and recovered one Carbine US 30 alongwith magazine.
36. P.W. 18 Jagdish Chand Shukla is constable at police station Gopiganj. He stated that on 13.10.1998 he was posted as constable Moharrir at police station Gopiganj. On 13.10.1998 at 11.15 Surya Narain Shukla alias Vakil Shukla had lodged the report at case crime No. 382 of 1998 under Section 504, 506 I.P.C. On the basis of this report he prepared the chik 174 of 1998, copy of chick report is Ext. Ka-43 and G.D. entry is Ext. Ka-44. In the cross examination he admitted that after the investigation final report was submitted on 28.11.1998.
37. The defence had examined D.W. 1 Pankaj Kumar Dwivedi. He is president of Vindhyachal Panda Samaj, Vindhyachal. The temple is looked after by this Vinchyachal Panda Samaj and Vindhyachal Vikas Parishad. The temple is opened at 4 a.m. for 'Shringar' and it take about one hour and at this time the temple remain closed for 'darshan'. The doors of the temple open at 5 a.m. for the worship. Thereafter the doors are closed at 12 O'clock for the 'Shringar" etc. Again the temple is opened for worship at 1.30 p.m. During this period nobody is allowed to enter into the temple. During the days of Navratri, the doors close at 12 O'clock and open at 1 p.m. for 9 days only. In the cross examination he stated that the President of Vindhyachal Panda Samaj is appointed for two years. Prior to him one Anil Kumar Dubey was President in the year 1999. Anil Kumar Dubey remained President for 14 years. The rules which are prepared by the Panda Samaj are given to the district Magistrate and approved by him also. There are two doors for the worship in the temple. The testimony of this witness is of no use for the defence because at the relevant time he was not President of Vindhyachal Panda Samaj.
38. Heard Shri Satish Trivedi, Senior Advocate, shri Dilip Gupta and shri V.P. Srivastava for the appellants, Shri M.L. Shukla, learned A.G.A. for the State and Shri Gopal S. Chaturvedi for the complainant.
39. Before considering the submissions of learned counsel for the parties it may be necessary to mention that first informant Rakesh Kumar Pandey was not available to the prosecution for recording his evidence as he was murdered on 17.2.2003. The first information report is not a substantive piece of evidence. It can be used only as a previous statement for the purpose contemplated under Sections 157 or 145 of Evidence Act. It cannot be used for the purpose of corroborating, contradicting or discrediting any other witness. This is settled by various decisions of the Apex court.
40. In the case of Harkerat Singh v. State of Punjab 1997 (11) S.C.C. (Crl.) 215 it has been held by Apex court:
" The contents of the F.I.R. could have been used for the purpose of corroborating or contradicting Walaiti Ram if he had been examined but under no circumstance as a substantive piece of evidence."
41. In the case of Shanker v. State of U.P. 1975 S.C.C. (Crl.) 270 the Apex Court held that:
" Unless a first information report can be tendered in evidence under any provision contained in chapter II of the Evidence Act, such as a dying declaration falling under Section 32(1) as to the cause of the informant's death, or as part of the informant's conduct under Section 8, it can ordinarily be used only for the purpose of corroborating, contradicting or discrediting its author, if examined, and not any other witness."
42. In the case of Hasib v. State of Bihar AIR 1972 S.C. 283 the Apex Court has held:
"The object of first information report from the point of view of the informant is to set the Criminal Law in motion. From the point of view of the investigating authorities it is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The report does not constitute substantive evidence though it is important as conveying the earliest information about the occurrence. It can be used only as a previous statement for the purpose contemplated under Section 157 or Section 145 of the Evidence Act is for corroborating or contradicting its maker and not of other witnesses."
43. In the case of Dharama Ram Bhagre v. State of Maharashtra AIR 1973 SC 476 the Apex Court has held :
"The first information report is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in court as a witness. Its value must always depend on the facts and circumstances of a given case. The F.I.R. can only discredit the testimony of its maker. It can by no means be utilized for contradicting or discrediting the other witnesses who do not have any desire to spare the real culprit and to falsely implicate him. Thus the prosecution case cannot be thrown out on the mere ground that in the first information report an altogether different version is given by its maker."
44. In the case of Kishan Chand Mangal v. State of Rajasthan 1983 Cr. L.J. 1 the Apex court has held :
"Complainant Rajendra dut on whose complaint a trap was arranged was dead by the time the case came up for trial and his evidence was not available to the prosecution. However, the complaint ext. P-12 filed by him was admitted in evidence because P.w. 7 Mahavir Prasad, Dy. S.P. who recorded the same gave evidence about the same. The averments in the complaint even in the background of these facts would not provide substantive evidence and the only use to which it can be put is that a complaint of this nature was filed which tends to explain the subsequent actions taken by the Dy. S.P."
45. The first submission of the learned counsel for the appellant is that the F.I.R. came into existence after the preparation of the inquest report. The counsel for the appellants has drawn our attention towards various entries of the inquest reports. He submits that there are cuttings and overwriting in the time of occurrence, there is mistake in the name of Shesh Mani Dubey. In the inquest report of Vakil Shukla name of the informant is not mentioned. The inquest report shows that name of Shesh Mani Rai was mentioned as Shesh Mani Dubey, whereas in the first information report name of Shesh Mani Rai is mentioned. Manner of assault and weapons in the hands of assailants are not mentioned. It is further contended that P.W. 1 Shiv Prasad alias Dangar Tewari mentioned as an eye-witness in the F.I.R. and he is also witness of the inquest reports. The investigating officer had recorded his statement on 4.4.1999 as a witness of inquest report but if the first information report was available then why his 161 Cr.P.C. statement was not recorded same day.
46. We have carefully examined the above submissions. The testimony of P.W. 2 Uma Shanker Pandey shows that he had registered the first information report at case crime No. 177 of 1999 Ext. Ka-2). He had also prepared the G.D. No. 34 at 3.45 p.m. on 4.4.1999 ( Ext. Ka-3). Special report was dispatched through constable Udhao Singh. The report reached in the office of C.O. on 5.4.1999 and reached in the office of C.J.M. on 8.4.1999. P.W. 13 Vidya Prakash Misra S.H.O. Gopiganj stated that the report was registered in his presence on 4.4.1999. He copied the chik report and reached at the place of occurrence and recorded the statement of complainant and S.I. Rasheed Ahmad, prepared the inquest reports of Surya Narain Shukla alias Vakil Shukla, Devi Shanker Dubey and Shesh Mani Rai, on his dictation. On the same day he prepared the site plan, recorded the statements of witnesses prepared recovery memos of plain and blood stained earth, Raxine of the car etc.
47. If the statements of eye witnesses were not recorded same day, no adverse inference can be drawn that the F.I.R. was not in existence at the time of preparation of inquest reports. The statement of the complainant was recorded prior to preparation of inquest reports. The eye witnesses are mentioned in his statement. Prior to reaching at the place of occurrence Chik F.I.R. was with the Investigating Officer. So far as the mistake in the name of Shesh Mani Rai is concerned, in the first information report he is described as Shesh Mani Dubey but in the inquest report his name is mentioned as Shesh Mani Rai son of Ram Charan Rai. The inquest report is prepared after the recording of statement of complainant and several persons had already collected there. It is not the case of the defence that he is not Shesh Mani Rai son of Ram Charan Rai. At the most it can be rectification of an error. It cannot be said that this mistake is due to absence of first information report. The error or mistake on the part of investigating officer cannot be a ground to discard the direct testimony of the witnesses. There is overwhelming evidence to prove that the F.I.R. was registered at the alleged time. There is direct testimony of P.W. 1 Shiv Prasad alias Dangar Tewari to prove that informant (Rakesh Kumar Pandey) had prepared the first information report 40 steps away from the place of occurrence and at that time thousand of persons had collected near the dead body. The G.D. Ext. Ka-3 shows that informant and P.W. 4 had come to the police station and their injuries are also mentioned in the G.D. The enclosures which were sent alongwith the inquest report shows that chik was also sent alongwith the inquest report. The testimony of P.W. 9 Devi Prasad Pandey shows that he had escorted the dead body to the mortuary for the post mortem examination. He stated that dead bodies were handed over to him at 6.30 or 7 p.m. and he was given a copy of the F.I.R. and other papers for the post mortem. His testimony remained unchallenged. The first information report shows the seal and signature of the doctor who had received the papers alongwith the dead bodies for the post mortem examination. One more important circumstance is that the post mortem examinations was conducted same nigh on the direction of the District Magistrate. In our view the first information report is registered at the alleged time and it is promptly lodged. The occurrence took place at 3 p.m. and written report is lodged at 3.45 p.m. The distance of the police station from the place of occurrence is one km. It is significant to mention that criminal courts attach great importance to the prompt lodging of the report because the same substantially eliminate the possibility of embellishments and concoction creeping in the prosecution story.
48. As regard the errors and mistakes in the inquest report is concerned it has been held in various decision of the Apex Court that the basic purpose of holding an inquest report under Section 174 Cr.P.C. is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some other machinery etc.
49. In the case of P. Narain v. State of Andra Pradesh 1975 S.C.C. (Crl.) 427 it has been held "the proceedings under Section 174 is for a very limited scope, the object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or unnatural death and if so what is the apparent cause of death. The question regarding the details as to how the deceased was assaulted and who assaulted him or under what circumstances he was assaulted is foreign to the ambit scope of the proceedings under Section 174. Neither any practice nor any law was or it necessary for the police to mention those details in the inquest report."
50. Further it is held by the Apex Court in the case of Visveswaran v. State 2003 SCC (Crl) 1270 that "every defective investigation need not necessarily result in the acquittal. In a case of defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need no necessarily lead to the rejection of the case of prosecution when it is otherwise proved."
51. So far as the submission of the counsel for the appellants that there is delay in reaching the F.I.R. to the jurisdictional Magistrate on 8.4.1999 is concerned. It is to be noted that P.W. 2 Uma Shanker Pandey, Head Constable stated that special report was dispatched through constable 169 Udhao singh. He further stated that chik of the case reached in the office of C.O. on 5.4.1999. On account of delay in reaching of F.I.R. to the Jurisdictional Magistrate the prosecution case cannot be disbelieved. The Apex Court in the case of Balram Singh and Anr. v. State of Punjab report in 2004 S.C.C. (Crl) 149 held as under:
"at any rate, while considering the complaint of the appellants in regard to the delay in the F.I.R. reaching the jurisdictional magistrate we will have to also bear in mind the credit worthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance the delay in registering the complaint or sending the same to the jurisdictional magistrate by itself would not in any manner weaken the prosecution case."
52. In the present case also there is prompt lodging of the report and thereafter the investigating officer had recorded the statement of complainant and prepared the inquest proceedings, dispatched the dead bodies to the mortuary and the post mortem of the deceased was conducted same day and the F.I.R. also bears the signature of the doctor. In these circumstances, if there is any delay in reaching of the F.I.R. to the Magistrate it is immaterial. We have no reason to entertain any doubt in our mind that the F.I.R. was not registered at the time as alleged by the prosecution.
56. Learned counsel for the appellants further submitted that the presence of complainant at the place of occurrence is highly doubtful. The alleged injuries of the complainant are superficial and can easily be manufactured. In the present case the complainant could not be examined as we have already mentioned that prior to the recording of the evidence he was murdered. The first information report is not a substantive piece of evidence. Learned counsel further submits that according to the prosecution case the car of the deceased had collided with the roadways bus and thereafter the assailants had shot at the deceased persons but this important aspect of the case is not mentioned in the F.I.R. which shows that the report was lodged by someone else who did not witness the occurrence. So far as the absence of the averments about the accident of the car with the bus are concerned it has no value because the maker of the report is not available for contradicting the averments of the F.I.R.
57. The other submission of learned counsel for the appellant is that according to the prosecution case first information report was registered at 3.45 p.m. and both the injured, namely, Rakesh Kumar Pandey and P.W. 4 Prem Shanker Dubey were sent for medical examination through constable Nathuni Lal but there is long gap between the medical examination of P.W. 4 Prem Shanker Dubey and complainant Rakesh Kumar Pandey. P.W. 6 Dr. A.K. Pandey had examined Prem Shanker Dubey on 4.4.1999 at 5.25 p.m. whereas Rakesh Kumar Pandey, complainant was examined by P.W. 7 Dr. L.S. Mishra at 8.15 p.m. both the injured were brought to the P.H.C. by constable Nathuni Lal who has not been examined in the case. The counsel for the appellant submits that this delay is due to the fact that the informant did not receive any injury in the occurrence and he was called after the occurrence and thereafter his injuries were manufactured and Dr. L.S. Misra was not on duty on the said date and he was deliberately called to examine the complainant and manufactured his injuries. We have considered this submission of learned counsel for the appellants and we do not find any force in this submission on the ground that G.D. Ext. Ka-3 itself clearly indicates that both the persons informant and P.W. 4 Prem Shanker Dubey had received injuries and their injuries are noted in the G.D. (Ext. Ka-3).
58. The informant Rakesh Kumar Pandey is brother-in-law of deceased Vakil shukla. If he was present at the place of occurrence after the murder of his close relative and he did not go for his medical examination. There is nothing to doubt about his presence at the alleged time of occurrence. The injury report suggests that injuries of P.W. 4 Prem Shanker Dubey were bleeding therefore, he immediately went for medical examination. The presence of informant is proved at the time of occurrence. He had signed all the inquest reports as an inquest witness. His statement under Section 161 Cr.P.C. was recorded by the investigating officer. P.W. 13 V.P. Misra prior to preparation of inquest reports. The dead bodies were dispatched at 6.30 - 7 p.m. Thereafter informant was medically examined by the doctor. There cannot be any doubt that his injuries are manufactured by the doctor and he was not present at the time of occurrence. This submission has no force and is rejected.
59. Another submission of the learned counsel for the appellant is that if the F.I.R. was in existence at the alleged time and the names of the eye witnesses were known to the investigating officer then why the statement of eye witnesses was recorded next day. It is further submitted that the investigating officer had recorded the statement of P.W. 1 Shiv Prasad alias Dangar Tewari as a witness of inquest and his statement was not recorded as an eye witness. He was available on the same day. It is further submitted that P. W. 1 Shiv Prasad alias Dangar Tewari stated that he told about the occurrence to the investigating officer but P.W. 13 V.P. Mishra states that he did not disclose about the occurrence same day. If the first information report was available and his name finds place as an eye witness then his statement should have been recorded by the investigating officer. We have considered the submission of the counsel. In the instant case the occurrence took place on a busy G.T. Road at 3 p.m. and the report of the occurrence was lodged at 3.45 p.m. Thereafter the investigating officer had copied the chik, recorded the statement of informant, thereafter he prepared the inquest proceeding of three dead bodies. He also recorded the statements of inquest witnesses. There was also urgency in the post mortem which was conducted same night on the direction of the District Magistrate and the statements of these witnesses have been recorded next day. It is not disputed that prior to the preparation of inquest reports, statement of informant was recorded, Chik F.I.R. was also available with the investigating officer which was also dispatched as an enclosure No. 2 with the inquest report for the post mortem alongwith the dead bodies. There is no force in this submission that only on account of delay in recording of 161 Cr. P.C. statement on the next day it can be said that the F.I.R. was not in existence and P.W. 4 Prem Shanker Dubey and P.W. 5 Ram Dutt Mishra were not eye witnesses. We reject this submission of learned counsel for the appellants. The F.I.R. was registered at the alleged time chithi mazroobi of the informant and injured P.W. 4 Prem Shanker Dube was prepared and chik and F.I.R. was handed over to the investigating officer who had recorded 161 Cr.P.C. statement of informant Rakesh Kumar Pandey and completed the inquest reports of the dead bodies and other formalities with regard to investigation. There is no such delay in recording of 161 Cr.P.C. statement to caste any doubt that these witnesses are got up witnesses. If there is any delay in recording 161 statement it is due to mistake on the part of the investigating officer and on that ground testimonies of the eye witnesses cannot be rejected.
60. Next submission of learned counsel for the appellant is that P.W. 1 Shiv Prasad alias Dangar Tewari and P.W. 5 Ram Dutt Mishra are chance and partisan witnesses and their testimonies should be rejected. In support of this submission learned counsel relied upon various decisions of Apex Court. Learned counsel for the appellants placed reliance on the following decisions of the Apex Court:
(i) State of U.P. v. Madan Mohan 1989 Crl. L.J. 1485 "9. There can be no doubt that P.W. 1 and P.W. 2 can be said to be chance witnesses. Their residences are a furlong or two away from the scene of occurrence. The story of P.W. 1 that he closed the shop earlier than usual is difficult to believe because he does not assign any reason for so doing. The allegation that respondent Chander Mohan's complaint was first in point of time but was registered later cannot be lightly brushed aside. It is also surprising that P.W. 1 preferred to write down the complaint on the spot rather than run down 100 paces to the police station to inform the police. P.W. 1 was asked to explain this conduct and he stated that he preferred to write down the complaint "as I had doubt that the police will not pay any heed and will not take down the report correctly. There was no reason for P.W. 1 to entertain such a doubt. He does not say that he had any such experience in the past. Both the deceased had a criminal record and were history sheeters. Several complaints were pending against Ram Shanker. He must be having many enemies. The defence case is that some of their common enemies got together and killed them and P.W. 1 was not present but who came later filed the report on the basis of the morning incident. Be that as it may, the fact, remains that the genesis of the crime is suppressed and no witness from the locality whose presence would be natural is examined which creates a doubt regarding the truth of the prosecution version.
(ii) Bahar Singh v. State of Haryana 1976 Cr. L.J. 1568 "10. As to the presence of P.Ws. 4 and 5 at the time and place of occurrence the trial court entertained grave doubts. If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does required cautious and close scrutiny. In the instant case, P.W.s 4 and 5 were agnatic relations of the deceased, one of them a close one. The reason given by them for being at the place of occurrence did not appear to be true to the trial court. There was not any compelling or sufficient reason for the High Court to differ from the evaluation of the evidence of the two chance witnesses. It may well be as remarked by the High Court that the respondent was also their collateral but they appeared to be partisan witnesses on the side of the prosecution and hence their testimony was viewed with suspicion by the trial judge.
(iii) Patel Chela Viram v. State of Gujrat 1994 Crl.L.J. 2252(SC) "5. As mentioned above, the High Court mainly relied on the evidence of P.W. 2. We find from the judgment of the Sessions Court that P.W. 2 admitted that there are two rival factions and he filed an application against the accused in the year 1976 for binding over them and consequently proceedings were launched against the accused and that there were certain other instances which would show that P.W. 2 was inimical towards the accused. Therefore, it cannot be said that he an independent witness. Further, there is some force in the submission of the learned counsel for the appellant that P.W. 2 appears to be a chance witness. He deposed that he went to this particular field which is away from his house to answer the call of nature. On his being a chance witness it is necessary have a closer scrutiny of his evidence. Coming to the medical evidence of P.W. 2 is to the effect that all the other four accused dealt blows with sticks. This part of the evidence is not corroborated by the medical evidence. It is pointed out in number of cases by this court when the case rests on the sole testimony of the single witness, the same should be wholly reliable. We find in the instant case that P.W. 2 is not only an interested witness but the version given by him is highly doubtful apart from the fact he being a chance witness. The view taken by the Sessions Court is quite reasonable.
(iv) Shanker Lal v. State of Rajasthan 2004 Crl. L.J. 2874 (SC) Even according to the prosecution the only witness to the incident in question is P.W. 6, therefore, as contended by learned counsel for the appellant we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to a village Upli for some work. From there he came back by bus at about 11 'O clock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance between the field of Ram Rakh and the village is about 4-5 miles and P.W. 6 covered that distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 or 4.15 p.m. It is his case that when he went to the house of Ram Rakh he could not find him therefore he came near the village square where he met P.W. 2 Khyali Ram. From the above evidence of P.W. 6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he reached the village and met Ram Rakh's wife he did not inform her about the incident and it is for the first time he informs about this incident to P.W. 2 at the village square at about 4.15 p.m. Contrary to what he stated in the examination-in-chief that he saw only one assault on the deceased, in the cross examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross examination that when he met P.W. -2 Khyali Ram and told him about the incident in question but P.W. supposedly told him that he had already come to know of the incident from P.W. 14. The prosecution has not found how P.W. 14 came to know of the incident. In this background if we appreciate the evidence of P.W. 6 we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square. We also notice that there is unexplained delay in filling the complaint inasmuch as according to the prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. on 5.4.1980. Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the police station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of P.W. 6 then there is no other material to base a conviction on the appellant hence we are of the opinion that the appellant is entitled to the benefit of doubt therefore, this appeal succeeds and is allowed. The judgment and order of conviction of the two courts below are set aside. The appellant is acquitted of the charge framed against him. From the records we notice that the appellant is on bail. If so his bail bonds shall stand discharged.
61. On the other hand counsel for the State placed reliance on the following decisions of the Apex court:
(i) State of U.P. v. Anil Singh AIR 1988 SC 1998 "Of late this court has been received a large number of appeals against acquittals and in the great majority of cases the prosecution version is rejected either for want of corroboration by independent witness or for some falsehood or embroidery added by the witnesses. In some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of the crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined nor it is proper to reject the case for want of corroboration by independent witnesses. If the case made is otherwise true and acceptable with regard to falsehood stated or embellishments added by the prosecution witnesses, it is to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version.
It is also our experience that unbelievably the witness add embroidery to prosecution story perhaps for the fear of being disbelieve but that is no ground to throw the case over board if true in the mains. If there is a ring of the truth in the mains, the case should not be rejected. It is the duty of the court o cull out the nuggets of the truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witness. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape one is an important as the other. Both are public duties which Judge has to perform."
(ii) State of U.P. v. Paras Nath AIR 1973 S.C. 1073 " Once P.W. 1 and P.W. 2 are held to be trustworthy witnesses then there does not seem to be any cogent reason for not acting upon their evidence. The fact that the other persons who were present at the spot and had witnessed the occurrence have without any good reason and perhaps with oblique motive, chosen not to state the truth in court and thereby the course of justice would, in our opinion provide a sound reason for accepting the testimony of P.Ws 1 and 2 for sustaining the conviction of the accused persons. To decline to act upon the testimony of these witnesses merely because of the absence of other witnesses to corroborate them in court is to default the cause of justice in this case.
There no general rule that the evidences of the relations of the deceased must be corroborated for securing, the conviction of the offender. Each case depends on its own facts and circumstances. In the present case the straightforward nature of the deposition of these two witnesses and the fact that they were undoubtedly in a position to identify the assailants of their father coupled with the recovery of blood-stained earth from the place of occurrence leave no reasonable doubt about the guilt of the accused persons.
(iii) Nath Singh and Ors. v. State of U.P. (1980) 4 Supreme Court Cases 402 "Khyali Ram was a disinterested and independent witness. He emerged unscathed from the ordeal of lengthy and relentless cross examination. The only thing brought about in cross-examination was that he was a treasurer (presumably an honorary office) of a Co-operative society of which Ratan Singh was the Secretary. This could hardly be a circumstance to dub him as an interested or partisan witness.
(iv) Chankya Dhibar v. State of West Bengal 2004(48) ACC 354(SC) " Coming to the plea of the accused that P.W.-5 was 'chance witnesses' who has not explained how he happened to be at the alleged place of occurrence it has to be noted that the said witness was and independent witness. There was not even a suggestion to the witness that he had any animostly towards any of the accused. In a murder trial by describing the independent witnessed as 'chance witnesses it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are riot committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house; are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion! on the ground that they are mere 'chance witness' is borrowed front countries where every man's home is considered his castle and everyone must have an explanation for presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual.
62. We have carefully examined the decisions relied upon by the counsel for the appellants as well as by the learned counsel for the State and complainant. In none of the cases testimony of a witnesses is disbelieved solely on the ground that the witness is chance or partisan.
63. In the case of Madan Mohan (supra) the Apex Court observed "Be that as it may, the fact, remains that the genesis of the crime is suppressed and no witness from the locality whose presence would be natural is examined which creates a doubt regarding the truth of the prosecution version." In the case of Banal Singh (supra) the Apex Court observed that if such a persons happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Similarly in the case of Patel Chela Viram (supra) the Apex! Court observed that" P.W. 2 is not only an interested witness but the version given by him is highly doubtful apart from the fact he being a chance witness". In the case of Shanker Lal (supra) the Apex Court carefully scrutinize the testimony of single witness and disbelieved his presence on various grounds. In the case of Baldeo Singh v. State of U.P. 2003 Crl.L.J. 880 the Apex Court in paragraph 16 observed that both the eye witnesses are chance witnesses. They do not assign any convincing reasons for being at the place of incident at that abnormal day in full summer. We have carefully examined the decisions of Apex Court. The testimony of a chance and partisan witness cannot be discredited solely on that ground. In the present case the evidence of P.W.1 shows that on 4.4.1999 he was coming from Vindhyachal and when he reached at the Trisection of G.T. Road Gopiganj he heard some shots. Me was accompanied by Mukund Lal and Ram Dutt Mishra. PW. 5 ram Dutt Mishra also stated that he was returning from Vindhyachal and on his way back home he met Shiv Prasad alias Dangar Tewari and he had taken lift on his motorcycle and he reached at the Trisection alongwith them. The occurrence took place on the G.T. Road.
64. The testimonies of both the witnesses show that they had probablise their presence at the alleged place of occurrence. It is further submitted by learned counsel for the appellants that both the witnesses are partisan. It is suggested that both of them are deposing falsely only at the instance of Vijay Mishra M.L.As There is nothing on record to suggest that Vijay Mishra was instrumental in procuring these witnesses apart from the vague suggestion there is nothing on record to hold that these witnesses are deposing against the appellants on account of the influence of Vijay Mishra. Even it is not suggested to the witnesses that Vijai Misra was present at the place of occurrence or at the police station. The evidence of a. witness who is alleged to be a partisan or chance witness cannot be rejected solely on that ground and the law requires only a closer scrutiny of his testimony.
65. We have carefully examined the testimonies of the witnesses The evidence of P.W. 1 Shiv Prasad alias Dangar Tewari shows that on 4.4.199 at about 3 p.m. he was present on the Trimuhani of G.T. road. He was coming from Vindhyachal alongwith Mukund Lal and P.W. 5 Ram Dutt Mishra on a motorcycle. His evidence shows that accused persons were armed with Gun, Rifles, 30 Carbine and Pistols and were firing at Ambassador car of Vakil Shukla, deceased. Shesh Marti deceased was driving the car and it collided with a roadway bus coming from Allahabad. Tehsildar Singh had exhorted to kill and the assailants came near the car and started firing. Rakesh Kumar Pandey and Prem Shanker Dubey were sitting on the back seat of the car. They came out of the car leaving the Rifle of Prem Shanker Dubey in the car which was taken away by Suresh Kumar Singh alias Jajjey Singh. They killed Vakil Shukla, Devi Shanker Dubey and Shesh Mani Rai inside the car. Thereafter they ran away in their Sumo and other vehicles. The motive as alleged is that there was some disputp with regard to contract work and Vakil Shukla shad also contested election of Zila Panchayat against Akbal Bahadur alias Atkoti Singh. The Rifle and Pistol of Vakil Shukla was left in the car. The first information report was lodged by Rakesh Kumar Pandey at 3.45 p.m. He identified the report which was written by Rakesh Kumar Pandey. The investigating officer had prepared the inquest reports of the deceased and he had also signed the same. His statement was recorded on the next day of the occurrence.
66. We have carefully examined the evidence of this witness and in our opinion it is reliable and credible. His testimony is corroborated by the post mortem examination and also by the testimony of the investigating officer which clearly indicates that the deceased were done to death inside the car. The investigating officer had collected blood stained Raxine, shoes, broken pieces of car, empty cartridges and one Rifle and pistol of 9 mm of Surya Narain Shukla and prepared its recovery memo (Ext. Ka-26 to Ka-32). There is no dispute about the identity of the assailants as the occurrence took place in broad day light. The statement of this witness also shows that complainant Rakesh Kumar Pandey and Prem Shanker Dubey had received injuries while they were coming out of the car. G.D. entry Ext. Ka-3) shows that complainant Rakesh Kumar Pandey and Prem Shanker Dubey had received injuries and P.W. 2 Uma Shanker Pandey had prepared the 'chithi majroobi' and P.W. 7 Dr. L.S. Misra had medically examined Rakesh Kumar Pandey on 4.4.1994 at 8 15 p.m. and P.W. 6 Dr. A.K. Pandey had medically examined Prem Shanker Dubey on 4.4.1999 at 5.25 p.m. The counsel for the appellants submits that he is close associate of Vakil Shukla and he was also involved in a case of Arms Act alongwith him and he had started doing pairvi of this case after the death of informant. His testimony should be rejected on this ground. There is no force in this submission. His evidence fully inspires confidence. From his evidence it is manifest that he is a truthful witness. He did not avoid any uncomfortable question. He was subjected to extensive cross examination but nothing substantial could be extracted there from which could render either his presence at the place of incident or credibility suspect. His evidence shows that he has fully mentioned the essential features of the prosecution including time and place and of the incident, name of the assailants, names of the victims, manner of assault, name of the informant and motive for the murder. We have no hesitation after careful scrutiny of the evidence to place implicit reliance on his testimony.
67. Another eye witness P.W. 5 is Ram Dutt Misra, His evidence, shows that on the date of occurrence at about 3 p.m. he was coming alongwith P.W. 1 Dangar Tewari from Vindhyachal. He stated that in the Ambassador Car of Vakil Shukla, Devi Shanker Dubey was sitting on the front seat and Shesh Mani Rai was driving the car. Rakesh Kumar Pandey and Prem Shanker Dubey were sitting on the back seat. The appellants were chasing the car and firing with Rifle, Gun, Pistol and Carbine. Tehsildar Singh was giving exhortation to kill them. The Ambassador Car collided with a Bus which was going towards Varanasi. After the accident Kakesh Kumar Pandey and Prem Shanker Dubey came out of the Car and while! they were coming out of the car they received some minor injury. The Rifle of Prem Shanker Dubey left in the car. Thereafter accused had surrounded the car and started indiscriminate firing as a result of which Vakil Shukla Devi shanker Dubey and Shesh Mani Rai died. One of the accused took away the Rifle of Prem Shanker Dubey and all the accused persons were raising slogan Har Har Mahadeo and thereafter they ran away in their Muruti, Sumo, Motorcycle and on other vehicles towards Aural. His statement was also recorded by the investigating officer.
68. We have carefully examined the testimony of this witness and he has fully supported the version of P.W.1. He was also subjected to extensive cross examination but nothing substantial could be extracted there from. In our opinion he has fully explained his presence on the spot and there is nothing to suspect his credibility. He has no rancor or ill will against the appellants and in our opinion in the absence of the same he would not falsely implicated the accused.
69. Another eye witness P.W. 4 Prem Shanker Dubey who had received injuries in the occurrence and his Rifle was taken away by one of the accused had not supported the prosecution case and he was declared hostile.
70. It is settled law that the declaration of a witness to be hostile does not lead to an ipso-facto rejection of his evidence in toto. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same or to some part of it. The court should be slow to act on the testimony of such a witness and normally, it should look for corroboration to his evidence.
71. In the light of the above, we have carefully examined his testimony. He admitted that on the alleged date of occurrence he was sitting on the back seat of the car and he had a licensee Rifle alongwith him. He had admitted that when the car stopped he came out of the car and while doing so he received some injuries also. He does not remember whether his injuries were medically examined or not. He does not remember that Rakesh Kumar Pandey was also sitting with him. The testimony shows that he was present in the car alongwith his Rifle. His presence at the police station at the time of lodging of the report is mentioned in G.D. ( Ext. Ka-3) and he was medically examined by P.W. 6 Dr. A.K. Pandey who had examined him on 4.4.1999 at 5.25 p.m. and found two lacerated wounds. His testimony corroborates the version given by the two other eye witnesses. Both the witnesses have stated that Prem Shanker Dubey was sitting on the back seat and while he was coming out of the car he received injuries and his licensee Rifle was left in the car which was taken away by one of the accused. Thus the eye witness account of the case is fully supported by the investigation and the medical evidence on record. The post mortem reports of the deceased persons clearly indicate that all of them had received fire arm injuries from a close range and the place of occurrence is inside the car which is supported by the recoveries (Ext. Ka-26 to Ka-32). The investigating officer has also found dent in the car due to indiscriminate firing by the accused persons and he also made recovery of empty shells. The serologist report also confirms the presence of human blood on the Raxine.
72. Learned counsel for the appellants challenged the findings of the trial court on the ground that participation of 14 persons is doubtful as the medical evidence does not corroborate this part of the evidence that assailants were 14 in number and they have indiscriminately fired. The case of the prosecution is that all the witnesses had witnessed that the assailants were chasing the car and were also firing at the car. The occurrence took place on a busy G.T. road. It is also mentioned that all the accused were firing. Large number of firing is corroborated by the twenty eight pellet marks mentioned by the investigating officer on the ear and it is also mentioned that only some of the pellets could be recovered. It is also noteworthy that the deceased and witnesses who were accompanying them were also armed. In view of this it cannot be said that large number of persons had not participated in the occurrence and this submission has no force.
73. Learned counsel for the appellants had also submitted that one of the appellant Suresh Singh alias Jajjey Singh had moved an application for identification which was rejected on 11.6.1999 by the Magistrate, Learned counsel for the appellants submitted that Suresh Singly alias Jajjdy Singh, were not known to the witnesses prior to the occurrence, therefore, he moved an application for his identification. We do not find any force in this submission of the learned counsel for the appellants. The Apex Court considered this aspect of the matter in a case reported in 2002 S.C.C. (Crl.) 1698 Dana Yadav alias Dahu and Ors. v. State of Bihar held as under:
"Thus we are of the view that in a case an accused denies the fact that he is known to the prosecution witness and challenges his identity by filing a petition for holding test identification parade, what a court is required to consider without holding any mini inquiry is as to whether the denial is bonafide or a mere pretence and/or has been made with an oblique motive to delay the investigation so as to. make out a ground for grant of bail under proviso to Section 167(2) of the Code of Criminal Procedure. In case the court comes to the conclusion that the denial is bonafide, it may accede to the prayer, but, however, if it is of the law that the same is a mere pretence, question for grant of the prayer would not arise. However, grant or refusal of such a prayer unjustifiably would not necessarily ensure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so called claim that the accused was known to him from before and identification in court cannot be accepted. But in case either prayer is not granted or granted but no test identification parade is held, the same ipso facto cannot be a ground for throwing out identification of an accused by a witness in court whose evidence is found to be unimpeachable. Thus the main thrust should be on answer to the question as to whether the evidence of a witness in court that he knew the accused from before and correctly identified the accused is trustworthy or not. If the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or if granted, no such parade was held is not material and would not in any manner affect the evidence of identification of accused in court by a witness.
74. Apart from the above submissions of learned counsel for the appellants, learned counsel vehemently argued that there are contradictions in the testimonies of the witnesses about the actual place of firing at the car, the distance of place of accident between the car and the roadways bus from Trisection and how the dead bodies came but of the car and where they were kept. We have closely examined this submission but we find no substance in this submission. Minor variations in the statements of the witnesses are quite natural. There cannot be exact and precise reproduction in mathematical manner. It is also important to mention here that the evidence of the case was recorded almost after about four years after the occurrence.
75. The next submission of learned counsel for the appellants that the Sessions Judge acquitted co-accused Tehsildar Singh of all the charges and Suresh Kumar alias Jajjey Singh under Section 379 and 411 I.P.C., therefore, on the same evidence other appellants should not have been convicted by the Sessions Judge. The Sessions Judge acquitted Suresh Kumar alias Jajjey Singh under Section 379 and 411 I.P.C. only on the ground that P.W. 1 had mentioned that he had taken way the Rifle of Prem Shanker Dubey and the said Rifle is recovered from the possession of co-accused Ashok Kumar Singh. P.W. 5 did not mention anything about the theft of the Rifle, therefore, he was acquitted of this charge. The State has also not filed any appeal against their acquittal. Tehsildar Singh has been acquitted by the Sessions Judge also on the ground that his role was only of exhortation and there was some contradictions with regard to his place from where he has exhorted and the actual time of his exhortation.
76. In view of the above it cannot be said that the ground of acquittal of Tehsidar Singh of all the charges and Suresh Kumar alias Jajjey Singh under Section 379/411 I.P.C., the prosecution case can be doubted and testimonies of the prosecution witnesses can be disbelieve against all the appellants. The principle of falsus in uno falsus in omnibus is not applicable in India. It is the duty of the court to separate the grain from the chaff. Falsity of a witness would not ruin it from the beginning to the end. The Apex Court in a decision reported in 2003 Supreme Court Cases (Cri) 1697 Sucha Singh and Anr. v. State of Punjab has held as under:-
"The maxim "Falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question weight of evidence which a court may apply in a given set of circumstances, but it is not i what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P. AIR 1957 SC 366; 1957 Crl. LJ. 550). Merely because some of the accused persons have been acquitted, though evidence against all of them so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted (See Gurcharan Singh v. State of Punjab AIR 1956 SC 460; 1956 Cri.L.J. 827). The doctrine is a dangerous one, especially in India far if a whole body of the testimony were to be rejected, became a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a Sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. (1972)3 SCC 751; 1972 SCC Crl. 819 and Ugar Akir v. State of Bihar AIR 1965 SC 2771; 1965 Cri. LJ. 256). An attempt has to be made to, as noted above, in terms of the felicitous metaphor, separate the grain from the chaff, truth from falsehood. "
77. Lastly, learned counsel for the appellants submits that the case of Pintoo Singh alias Sandeep Singh, Daroga Singh alias Shri Krishna Singh, Chhunni Singh alias Mata Prasad Singh and Prem Singh alias Prem Bahadur Singh is distinguishable from the other appellants. It is submitted that the names of these appellants have been mentioned by P.W. 1 Shiv Prasad alias Dangar Tewari first time in court. We have carefully considered this submission and also perused the material on record. P.W. 1 Shiv Prasad alias Dangar Tewari in his examination in chief had mentioned the names of Pintoo Singh alias Sandeep Singh Daroga Singh alias Shri Krishna Singh, Chhunni Singh alias Mata Prasad Singh and Priyank Singh alongwith other appellants. But in cross examination he stated that he knew Daroga Singh alias Shri Krishna Singh, Chunni Singh alias Mata Prasad Singh and Prem Singh alias Priyank Singh for the last 10-15 years and he. knew. Pintoo Singh alias Sandeep Singh for the last about 4-5 years. He had disclosed their names to the investigating officer but he could not tell the reason why their names are not mentioned in his statement. The investigating officer had mentioned that P.W. 1 Shiv Prasad alias Dangar Tewari had not disclosed the names of Sandeep, Shri Krishna Singh, Mata Prasad Singh and Prem Singh alias Privank Singh but he staled that he disclosed the name of Prem Bahadur Singh. It is also relevant to point out that the investigating officer, C.B.C.I.D. interrogated him during investigation but he did not give any statement to him and stated that his statement is the same which he had given earlier to the investigating officer.
78. In view of this the names of Pintoo Singh alias Sandeep Singh Daroga Singh alias Shri Krishna Singh, Chhunni Singh alias Mata Prasad Singh and Prem Singh alias Prem Bahadur Singh have been disclosed by P.W. 1 Shiv Prasad alias Dangar Tewari for the first time in the court and as such absolute reliance cannot be placed on his statement. By Way of abundant caution we do not find it safe to convict these four appellants only on the basis of the testimony of P.W. 5 Ram Dutt Mishra. Therefore without doubting the prosecution case we are giving these four appellant the benefit of doubt. So far as the other appellants are concerned, the prosecution has fully proved its case beyond reasonable doubt.
79. In view of the discussion made above, the above appeals are decided as under:
1. Crl. Appeal No. 5587 of 2004: Appeal filed by Daroga Singh alias Shri Krishna is allowed and his conviction and sentences are set aside and he is acquitted of the charges. He is in jail. He shall be released forthwith unless wanted in any other case;
2. Crl. Appeal No. 5588 of 2004 : Appeal filed by Suresh Kumar @ Jajjev Singh is dismissed. His conviction and sentences as awarded by the Sessions Judge is affirmed. He is in jail. He shall be kept there to serve out his sentence awarded by the Sessions Judge and confirmed by us;
3. Crl. Appeal No. 5589 of 2004 : (i) Appeal of Rajeshwar Upadhyay is dismissed. His conviction and sentences as awarded by the Sessions Judge is affirmed. He is in jail. He shall be kept there to serve out his sentence awarded by the Sessions Judge and confirmed by us. (ii) Appeal of Prem Singh ails Prem Bahadur Singh allowed and he is acquitted of the charges. He is in jail. He shall be released forthwith unless wanted in any other case;
4. Cri. Appeal No. 2503 of 2004 : (i) Appeal of Pinttoo Singh @ Sandeep Singh is allowed and his conviction and sentences are set aside and he is acquitted of the charges. He is in jail. He shall be released forthwith unless wanted in any other case. Appeal of Akbal Bahadur alias Atkoti Singh is dismissed. His conviction and sentences as awarded by the Sessions Judge is affirmed. He is in jail. He shall be kept there to serve out his sentence as awarded by the Sessions Judge and confirmed by us;
5. Crl. Appeal No. 2826 of 2004 : Appeal of Udai Bhan Singh @ Doctor Singh is dismissed. His conviction and sentences as awarded by the Sessions Judge is affirmed. He is in Jail. He shall be kept there to serve out his sentence as awarded by the Sessions Judge and confirmed by us;
6. Crl. Appeal No 2863 of 2004 : Appeal of Santosh Kumar Singh and Sanjai Singh is dismissed. Their conviction and sentences as awarded by the Sessions Judge is affirmed. They are in jail. They shall be kept there to serve out their sentences as awarded by the Sessions Judge and confirmed by us; and
7. Cr. Appeal No. 3072 of 2004: Appeal of Chunni Singh @ Mata Prasad Singh is allowed and his conviction and sentences are set aside and he is acquitted of the charges. He is in jail. He shall be released forthwith unless wanted in any other case.