Allahabad High Court
Ramashraya Singh S/O Ram Chandra Singh ... vs State Of U.P. on 7 December, 2004
Author: S.K. Agarwal
Bench: S.K. Agarwal
JUDGMENT S.K. Agarwal, J.
1. These are two criminal appeals arising from the same judgment dated 22.5,2003. Criminal Appeal No. 5802 of 2003 was preferred by Ramashraya Singh and Kamla Singh. These two appellants were convicted under Section 302/149 I.P.C. and sentenced to death and a fine of Rs. 10,000/-. In default of payment of fine the appellants were to undergo two years' R.I. They were also convicted under Section 307/149 I.P.C. and sentenced to 7 years' R.I. and a fine of Rs. 5,000/-. In default of payment of fine, R.I. for one year was imposed. Conviction under Section 148 I.P.C. was also recorded against these appellants. They were sentenced to two years' R.I. and a fine of Rs. 1,000/-. In default of payment of fine six months' R.I. was imposed.
2. Criminal Appeal No. 2701 of 2003 was preferred by Ram Saran Singh, Satyendra Singh and Brijendra Singh. Their sentence is life imprisonment and a fine of Rs. 10,000/- under Section 302/149 I.P.C. In default of payment of fine they were to undergo two years' R.I. they were also convicted under Section 307/149 I.P.C. and sentenced to seven years' R.I. and a fine of Rs. 5,000/-. In default of payment of fine one year's R.I. was imposed. Conviction under Section 148 I.P.C. was also recorded against these appellants. They were sentenced to two years' R.I. and a fine of Rs. 1,000/-. In default of payment of fine six months' R.I. was imposed on them.
3. Ram Chandra Singh, father of appellants Ramashraya Singh, Satyendra Singh and Brijendra Singh, was also tried for the above said count, but he died during pendency of the trial. Therefore, his trial abated.
4. The brief resume of the facts, as disclosed from the F.I.R., are as under :
The informant is a resident of village Kanso, district Mau. He has four sons including Sheo Kumar, Awadhesh and Yogendra. At about 8.00 a.m. in the morning these three brothers were working at the cattle trough for its rep . It was a cattle trough made of mud. They were imposing mud upon the places where it had been damaged due to passage of time. His brother-in-law Ganga Singh, son of Radha Kishun Singh, resident of village Chandpur, district Ballia, and one Baijnath Singh, son of Vishwa Nath Singh, were present with him. That very time Ramashraya Singh, Satyendra Singh arid Brijendra Singh, sons of Ram Chandra Singh who himself was armed with a Lathi, Kamla Singh and Ram Saran Singh armed with guns and Katta (country made pistol) came to the Baithka of the informant Bhola Singh. They started hurling filthy abuses. Rani Chandra Singh also exhorted his sons to eliminate the entire family. Upon his exhortation, Ramahraya Singh and Kamla Singh, who were armed with guns, and Satyendra Singh and Brijendra Singh, who were armed with country made pistols, opened fire upon the above three sons of the informant. The others, who accompanied them, also fell upon them with their respective weapons. His sons suffered fire-arm injuries and fell to the ground. They were also belaboured with Lathis by those who were holding it. Ram Saran Singh, who was having a spade, attacked the deceased persons with his spade. In the assault Ganga Singh, his brother-in-law, also suffered firearm injuries. The informant ran into the village raising alarm. When the villagers came to the spot, the assailants took to their heels. Dead bodies of Sheo Kumar and Awadhesh were lying in front of his main door. Since Yogendra was still gasping, therefore, they proceeded for the hospital but he also breathed his last on the way. There was enmity on land between the parties. On account of that enmity the incident had occurred. It is so stated by the informant in the F.I.R. Itself. The occurrence had taken place on 4.10.1994 at about 8.00 a.m. The F.I.R. of the incident was registered at P.S. Haldharpur, 12 Kms. Away, from the place of occurrence, at about 9.15 a.m. The report was made by P.W. 1 Bhola Nath, father of three deceased persons.
5. The medical examination of Ganga Singh was conducted by P.W. 6 Dr. O.P. Singh at P.H.C. on 4.10.1994 at 11.50 a.m. The injuries were all of firearm and were found to be six hours old. There was no internal damage underneath any of his injuries. They were simple.
6. The post-mortem examination on the person of the three deceased was conducted from 12.00 noon to 1.00 p.m. by P.W. 7 Dr. Jitendra Kumar Singh. The first post-mortem was that of Awadhesh Singh. The second one was that of Shiv Kumar and the third one was of Jogendra Singh. The Medical Officer opined that the intestine of the three deceased contained some digested food material. He further was of the opinion that the injuries suffered by the victim was of firearms. There was no blunt object injury upon any of the three injured deceased or injured Ganga Singh.
7. The incident may have occurred at 8.00 a.m., as was stated by him in his examination-in-chief, but in cross examination he admitted that the injuries could also be probable on the intervening night of 3/4.10.1994 in between 2.00 to 4.00 a.m.
8. With regard to deceased Jogendra, who was taken to the hospital, his statement is that looking to the internal injuries and the damage caused to the lungs and pleura, it is clear that his death may have occurred immediately after the incident. It shall be relevant to point out that both the lungs and pleura were heavily lacerated and there was 3 Lts. of blood found in the pleural cavity of Jogendra. Pleura contained 2-1/2 Lts. of blood. In the case of Shiv Kumar, pleural cavity contained 3 Lts. of blood. Regarding digested food material the statement of the doctor was that he found it in paste form. The pasty food material was prepared from cereals. Food is converted into a paste 2/3 hours after consumption. It passes from the stomach within 4/5 hours. The process of the paste passing from the stomach had started. This was the situation in all the three dead bodies. This is how he came to the conclusion that the death of these three persons could also occur during the mid-night in between 2.00 and 4.00 a.m. The rigor mortis, according to him, had passed off only from upper part of the body, but was present in the lower extremity. There was no visible sign of any decomposition in the body. The post-mortem, as earlier discussed, was conducted on 5.10.1994 from 12.00 noon to 1.00 p.m. This is, in the nutshell, the situation of the medical evidence.
9. We have not quoted the post-mortem examination report in extenso as it is quoted in the judgment of the trial court itself.
10. The prosecution, in support of its case, had examined only two eyewitnesses. P.W. 1 Bhola Nath is father of all the deceased persons. The other eyewitness is P.W. 2 Baij Nath Singh. The prosecution examined five formal witnesses. Two of them were Medical Officers, viz. P.W. 6 Dr. O.P. Singh and P.W. 7 Dr. Jitendra Kumar Singh. P.W. 5 Surendra Pratap Pathak is the Investigating Officer. P.W. 4 R.U. Khan is the Sub-Inspector, who initially proceeded with the investigation and recorded the first information in the case diary and also the check report and then prepared the inquest memos of all the three deceased, two at the alleged spot of occurrence and one at the concerned police station, i.e. Haldharpur. The investigation thereafter was taken over by P.W. 5 Surendra Pratap Pathak on his arrival at the spot in the evening. P.W. 3 is Constable Ram Manohar Maurya, who prepared the check F.I.R. and General Diary entry pertaining to registration of the case. This is in the nutshell the entire prosecution evidence in this case.
11. The trial court had also examined three court witnesses in connection with the alibi taken by Ramashraya Singh one of the condemned appellant. They are C.W. 1 Major M.S. Chaudhary, C.W. 2 Virendra Singh and C.W. 3 Col. K.S. Yadav.
12. The defence has examined D.W. 1 Virendra Singh to establish the alibi of Kamla Singh. These two persons were serving in the Indian Army. Kamla Singh was posted at Jammu and the other one was posted at Pathankot. The other D.Ws. Raj Narain Singh, Satya Narain Singh and Onkar Singh were produced by the defence to establish its case that the incident did not occur at the alleged place of occurrence but occurred at Pakawainar near Kanso Inter College. This is the entire defence evidence, recorded in the trial by the Trial Judge, Sri Vinay Kumar Jaiswal, Sessions Judge, Mau.
13. Having been convinced that the evidence of the two eyewitnesses and the circumstances have proved the guilt against the appellants, the conviction and the sentences were recorded by the learned Sessions Judge, as stated above, by his judgment dated 22.5.2003.
14. We have heard Sri D.N. Wali on behalf of the appellants, learned A.G.A. for the State and Sri J.S. Sengar for the informant Bhola Nath at length.
15. Sri Wali has made the following submissions before us that the place of incident is not the same, as alleged by the prosecution. Dead bodies were brought from another place to the house of the informant and in collusion with the police a false case is foisted on these appellants. There was no immediate provocation to cause the occurrence of this magnitude for the defence. No injury caused to the informant further confirms this assertion, it is contended by him, inasmuch as, it was an avowed claim of the defence to eliminate the entire family. Had the occurrence taken place in the presence of the informant and in the manner as alleged, he would not have escaped unhurt at least. Ganga Singh alone suffered injuries. That medical evidence is in direct conflict with the prosecution story, as contained in the F.I.R., and modulated from the 161 Cr.P.C. statement in the trial court. According to F.I.R. Phawra and were also wielded against the deceased persons after their fall, but complete absence of any such injury creates a serious dent in the veracity of the witnesses and the story of the prosecution. Moreover the version was modified in the trial court to the extent that butt-end of the guns were alleged to be employed to cause blunt injuries upon the deceased persons. Lathi was plied by late Ram Chandra Singh and spade was alleged to have been used from its blunt side. It is further alleged that the prosecution has used blank papers in preparing the case diary. These blank papers bear the date 10.10., which means that the issuance of these blank papers was made on 10.10. But these papers have been used on the dates which fell much before the date of its issuance. This is clearly indicative of the fact, according to learned counsel for the defence, that the police had been hand in glove with the prosecution side. This also blunts heavily the lodging of the F.I.R. at the schedule time, as alleged by this witness and the police officers, P.Ws. 4 and 5.
17. Sri Sengar in response to the above said submissions alleged that there is no lacuna in the prosecution evidence. No credence is to be attached to the latches of the police in investigation of the case. Both the witnesses are fully reliable. Ganga Singh's injuries and his prompt medical examination furnish corroboration to the prosecution story. His non-examination in the trial court does not affect the prosecution witnesses examined adversely in any manner. The fact that rigor mortis had not fully passed of despite passage of more than 24 hours between the time of occurrence and the first post-mortem held at 12.00 noon on 5.10.1994 clearly proves that either the Medical Officer did not have enough knowledge to note these things properly or he was also colluding with the defence. Semi-digested food is different from the pasty food. This further makes it clear, according to him, that the Doctor had not discharged his obligation properly. In the post-mortem report he had noted down only semi-digested food in the stomach. Neither weight of this food nor the fact that process of food passing into the intestine has commenced is mentioned therein. Presence of blood from the spot of occurrence, recoveries of spent cartridges and presence of the wet mud at the spot further lends corroboration to the prosecution case. Medical inconsistencies in so far as it relates to causing of the injuries by butt-end of the gun and reverse side of the spade is to be ignored as exaggeration of a fickle mind. The informant was in terrible distress on account of death of his three grown-up and married sons. The fact of use of butt-ends of the gun is not mentioned in the F.I.R. Neither the use of butt-end of the spade is referred to. The I.O. had acted ingeniously in trying to explain the injuries of blunt object noted by him in the inquest memos of the deceased persons.
18. In the F.I.R. there is only a mention of use of Lathi and spade, but there is no reference of the fact that any injury resulted as a consequence of the use of these weapons. Whereas with regard to the guns and the country made pistol it had been pointedly referred to in the F.I.R. Blackening and charring is present in almost all the injuries of the deceased persons. The Doctor may have mistook them as contusion.
19. P.W. 1 Bhola Nath has no plausible reason to implicate the accused persons falsely. Similarly it is contended that P.W. 2 Baij Nath Singh has also no plausible reason to depose against the accused persons. The defence has been shifting its stand with regard to the occurrence taking place at Pakawainar. Initially it appears from the trend of cross-examination that it was trying to fix the spot as the shop taken on rent from Ram Chandra Singh by Virendra Singh, Principal of Kanso Inter College. He was doing stationary business from the shop but later on it was closed. Ram Chandra Singh was keen to retrieve the possession of the shop. As a consequence, two days before the occurrence, some attempt in that direction was made from the side of Ram Chandra Singh, inasmuch as Ramashraya Singh, one of his sons, was said to have placed a lock on the door of the shop. This was resented to. The matter was referred to the Police Outpost. The persons contesting the rival claims awaited the arrival of the police force and the S.H.O.. The policemen did not arrive at the scene and it was determined by Ram Chandra Singh to take possession of the shop on the night of 3/4.10.1994. One of the son of the deceased Awadhesh Singh was a teacher in the said college where Brijendra Singh was the Principal and, therefore, the defence has tried to raise a mountain out of the mole to pin down the place of occurrence on this count at the shop near the college. Later on, it had tried to change it to the extent that now the suggestion to one of the I.Os. was that the incident had occurred when these persons were returning after the night vigil at the shop in the early hours of the morning somewhere little away from the shop. This shows that the defence is not firm upon its case and is exploring all possibilities in search of an escape.
20. We have given our anxious consideration to the rival submissions. In order to appreciate their contentions we have to look very carefully into the evidence of P.W. 1 Bhola Nath and P.W. 2 Baij Nath Singh. It is not to be forgotten while considering the rival submissions that it is a case wherein three persons were done to death, according to prosecution in broad daylight and according to defence before the break of the dawn at another place. We intend to proceed with the evidence of P.W. 1 Bhola Nath, father of all the deceased, in the first place.
21. If this witness does not hold his ground then it would become difficult to rely upon the testimony of other witness P.W. 2 Baij Nath Singh. In the F.I.R. this witness has not stated that he was sitting with Ganga Singh and Baij Nath Singh inside his Baithka, an encompassed room by walls, when the assailants arrived at the scene of occurrence armed variously to teeth. According to him, after the firing was resorted to and assault was launched, they ran into the village and returned in all probability with the villagers. By that time the assailants presumably took to their heels. He further stated that Jogendra was gasping but was alive, therefore, he was taken by a car for the hospital, but since he died on the way, he went to the police station and got the report, scribed by one Randhir Singh of Sarai Bharti, P.S. Rasra, District Ballia, registered at P.S. Haldharpur.
22. In this regard, his statement given in trial needs reference. His statement is that after Jogendra Singh breathed his last on the way he brought his dead body to the police station. The incident was described there and thereafter the report was prepared by Randhir Singh on his dictation in front of the police station and it was given to the Head Moharir. The report is Ext. Ka-1. His examination-in-chief commenced on 9.8.1996. It could not be concluded. It was fixed for 21.8.1996. It was again recoded on 13.9.1996 and after some cross-examination it was deferred and in the meantime the defence made an application for consolidation of the cases. The trials probably were separated on account of non-availability of some of the accused. After their surrender and appearance, an application for consolidation was moved, which was allowed and fresh examination-in-chief was recorded by the trial court on 29.5.1997. The lapses that occurred in the first examination-in-chief were removed by the witness in the second examination-in-chief. In the first examination-in-chiefs he for the first time stated that three persons, he, Ganga Singh and Baij Nath Singh were sitting inside the Baithka and were talking. The Baithka is in front of the house. In the second examination-in-chief this witness has stated that on the arrival of the accused persons to the spot they asked the deceased not to repair the cattle troughs and started hurling abuses. When his sons desisted them from hurling abuses and told them that they are doing repair work on their land. Ram Chandra exhorted his companion to shoot them dead as they are all available at one place at one time. For the first time in the second statement this fact has come. It was not there in the first examination-in-chief. It is for the first time occurring in both the statements that shooting was resorted to from a distance of two hands by the assailants upon his sons. This was neither in the F.I.R. nor in the site map or inspection note. According to site map , firing was resorted to from Kharanja (brick road) from a distance of 11 paces. For the first time it has also been stated by him that they all came running out from the Baithka. Ganga Singh suffered firearm injuries. In the second examination-in-chief the fact that the body was brought to the police station and the factum of incident was orally described was made, but in the second examination-in-chief it is missing. In the second examination-in-chief for the first time it had been clearly stated by this witness that the dispute was with regard to plot No. 918 which contained 3 decimal land. He received it on the vasectomy operation as a reward and the assailants were claiming their title over the said land. He was from the very beginning in possession of this land. In the first examination-in-chief his statement was that enmity between the two families was existing on account of the said land. This land is in front of his Baithka. The area of the said land is 9 decimals, out of which 3 decimals he got on account of his undergoing vasectomy operation. The accused persons were claiming it as theirs. The accused persons were trying to dispossess them and occupy the said land. He was in possession for the last 7-8 years. From the documentary evidence on record, produced by the defence, it is apparent that Jogendra Singh was involved in large number of criminal cases of dacoity, murder and robbery. He was a police constable and was deployed in G.R.P., Varanasi. It is admitted to P.W. 1 that in his village there is no other person bearing name Jogendra alias Jogendra Narain Singh. This witness had all along been making evasive responses to the questions regarding the criminal litigations this son of his was facing for various incidents at Varanasi. Ram Saran does not belong to the family of Ram Chandra and Kamla Singh is the first cousin of Ramashraya Singh. It is admitted to this witness that Ram Saran has his independent pedigree. He had admitted Virendra Singh is the Principal of Kanso Inter College. Deceased Awadesh was a teacher in the said college. His son-in-law Keshav Singh is the Manager of the said college. It is further admitted to him that the incident was witnessed by four persons. It is also admitted to him that on their alarm many people arrived at the scene of occurrence and they have also witnessed this incident. None of them had any affinity with the assailants or any enmity with him. Names of these villagers were not disclosed in the F.I.R. He further claimed that in the F.I.R. he had only disclosed the names of the assailants and no other name was disclosed by him. If any other name is written in the F.I.R. apart from the appellants it has wrongly been written therein. He told about the occurrence for the first time in the court and no where else. Shiv Kumar was an employee in Agra Armed Police. He had come to the village just 8-10 days before. Awadhesh came to the place of occurrence on the very date. It is also admitted to him that no attempt on him was made by the accused persons. His another son-in-law Satya Narain Singh is a clerk in the said Kanso Inter College. His another son-in-law Rana Pratap Singh is also a witness of the inquest. Ravindra Singh is also a witness of the inquest. The Chatti of Pakawainar is about 2-1/2 Kms. from his house. The house of accused Ram Chandra Singh was in that Chatti. He also has his several shops there. These shops were given on rent to different persons. One of the said shop was rented to Virendra Singh, Principal of Kanso Inter College. He was doing stationary business from there. He was keen to get this shop vacated. He was pressing upon Virendra Singh since before this incident but he was unwilling to vacate the same. Ram Chandra Singh had placed his lock on the said shop over the lock of Virendra Singh. This was done on 1.10.1994. It is admitted to this witness. The dispute between Ram Chandra Singh's men and Virendra Singh's men took a bad turn on account of this matter. It was reported to Pakawainar Police Outpost, but it could not be resolved because the Inspector from Haldharpur did not come to the disputed shop. The dispute, admittedly, according to this witness, was on the issue of Virendra Singh continuing to have his possession over the shop. People of his side started keeping vigil upon the shop. He denied the fact that his sons were siding with Ram Chandra Singh and were also doing the night vigil at the shop. In this very connection wait for the arrival of the S.O. of P.S. Rasra was going on, but he did not come to the spot. Initially, in the first cross-examination, this witness has stated that he had no knowledge that his sons were sleeping at Pakawainar. He further stated in the subsequent cross-examination that this statement in the earlier examination made by him was incorrect. How was it transcribed there on 9.1.1997, he did not know. He denied that he is changing the statement about his sons sleeping at Pakawainar to prevent possession by Virendra Singh because his sons were, in fact, sleeping there in order to prevent the possession of the rival party. They were done to death there by the rival gang of Yogendra of Varanasi. He had been deliberately avoiding to admit the antecedents of his son Jogendra during his cross-examination. Yogendra's involvement in a large number of cases of dacoity, highway robbery, extortion, murder and attempt to murder and recovery of stolen scooters were prosecuted but he feigned ignorance of all these cases. It is unbelievable that he was unaware of these facts. His village has a population of about 1000 houses and people of all community live therein. It is admitted by him that his sons were independently repairing different cattle troughs. They had also assimilated the soil by using their feet. Repairs of all the four cattle troughs were not complete by the time the occurrence took place. Three were complete, one was not. At the time of their death the hands and feet of his sons were stained with mud. The blood was splattered all around the three dead bodies and it was recovered by the S.I. from the respective places. Where dead bodies fell, spent cartridges were also recovered from there. At the time of loading new cartridges, the spent cartridges were being thrown out. He very clearly dmitted that he came out of his Baithka when the fire started. He denied the site map's description of the place from where shooting was resorted to in the cross-examination. According to site map, shooting was resorted to from Kharanja road. Now he says it was not so, though he had admitted his presence when the site map was prepared. He also admitted that he had disclosed the place of shooting to the investigating officer, but he pleaded ignorance to the fact that how Rasta was shown to be the place of shooting by the I.O. he cannot explain. According to him 16 spent cartridges were recovered from the spot of occurrence. He claimed that he, Baij Nath and Ganga Singh came out of the Baithka together. On being confronted with his 161 Cr.P.C. statement he stated that he could not understand as to what to do, but Ganga Singh and Baij Nath ran out of the Baithkha in the meantime. When his attention was drawn to this anomaly, he denied having made such a statement to the I.O. According to him he disclosed to the I.O. that he also ran out behind them. He cannot explain the omission of this fact in his statement to the I.O. No pellets was found embedded in any of the walls of the house or the adjoining house. All the shots, 15-16 in number, struck the victims, he claimed. He admitted as correct his statement to the I.O. in his 161 Cr.P.C. statement that the assailants did not feel satisfied from two of his sons suffering gunshot injuries. They came down from the Kharanja and reached to his fallen sons and assaulted them with the butt-end of the guns. No fire was made after the fall of his sons. He was very assertive of the fact that his son's assault with the butt-ends was seen by him of his own eyes. According to him each assailants gave 8 Kunda (butt-end) blows to his sons. Ram Saran used his spade from its reverse side and gave repeated blows upon the deceased persons. He assaulted his sons for two minutes. Lathiwalas also assaulted his children for two minutes. His sons were lying unconscious. The mud was prepared on the day of occurrence itself. It was drawn from a pit by his sons on that very day. The place from where the mud was brought was not shown to I.O. by him. He claimed that the I.O. had seen mud-stained Phaura, but it was not recovered. The spent cartridges were taken into custody by the I.O. and its recovery memo was also prepared by him. He is a signatory of the recovery memo for blood. The blood was taken in one plastic bag alone. It was taken away by the S.I. The repairing of cattle troughs was carried on every year in the same manner. In the past never any quarrel or dispute was raised by any accused in their doing so. According to him, when he reached the police station with the dead body of Jogendra, the Daroga, who came to the spot was not present at that time, but another S.I. was there. He asked from him whose dead body have you brought ? Then he disclosed to him the whole fact. Then he told him to go and bring a written report. It was S.I. Khan. The report was transcribed by Randhir at the police station after leaving the dead body inside. It is also admitted to him that the land on which he is talking of the repair of cattle troughs, a litigation was contested by him against the accused persons. Then in the next breath he stated that no litigation was contested. His sons were lying faceward. He knew that Ganga had suffered firearm injury, but he had not seen his injuries. He admitted that his clothes were torn at the places where the pellets passed through his clothes. The persons who fired upon Ganga Singh were standing at a distance of two hands. He stated that the clothes of Ganga Singh was taken by the S.I., but this fact was denied by the S.I.. According to him, he had taken the clothes of Ganga Singh after a month and seven days. He did not sign any recovery memo in this connection. Ganga had his work at Pakawainar. He had come in that connection. According to him he did not go out but remained at his house. It is not shown in the F.I.R. why Ganga Singh had come to his house when he had his work at Pakwainar. It is admitted by this witness. He claimed that he had told this fact to the I.O. and if it is not so mentioned in his 161 Cr.P.C. statement, he cannot assign any reason for its omission. He had shown the place at a distance of two hands from his sons from where shooting was resorted to, to the I.O., but he could not explain the omission of this fact in his statement to the I.O. He denied that the height of Kharanja is 6-7 feet from the place where the alleged incident occurred. According to him, it is only 3 feet. The I.O. had admitted that Kharanja is 6-7 feet high than the place of troughs. In his statement to the I.O. this witness has also admitted the height of Kharanja as 6-7 feet. He had also claimed that he had shown to the I.O. mud-stained hands and feet of his deceased sons. This fact was also disclosed in his statement to the I.O. by him but he failed to give any reason for its omission in the said statement. He has admitted that they have not done anything with the dead bodies till arrival of the S.I. It is admitted by this witness that the date on which the S.I. had taken his signatures at the spot he can identify that. He was shown Ext. Ka-1, over which he admitted his signatures. Meaning thereby, that the report was signed by him at the place of occurrence. Ext. Ka-1 is the written report made by him at P.S. Haldharpur. According to him, the I.O. stayed in the village for four hours and left at about 12.00 noon. He also left the dead body. It clearly means that the S.I. arrived at the scene of occurrence at about 8.00 a.m. and had abandoned the place of occurrence at 12.00 noon after completion of the inquest memos. This runs completely in contrast to the fact that the inquest memo were completed from 10.00 a.m. to 1.00 p.m. According to him the S.P. and some Daroga and 20-25 constables came to the spot and all of them went back together. The S.I. came to the village again in the night. This fact was heard by him from his son. He claimed that he had made two applications to the S.I. These applications were sent through Awadhesh. No other application was given by him to the Inspector. They in fact were made to the S.P. He denied the fact that one of the foot of Ganga Singh was fractured in an accident and on account of this disability he was retired from Army. This witness did not admit any inability in the movement of this witness. It was put to because Ganga Singh ran out from Baithaka. According to him, he walks straight but this fact is admitted to P.W. 5 that Ganga Singh had suffered injury in an accident and there is some disability. He denied that he did not make any application to the S.I. before the occurrence. He admitted that his Pattidar (collateral) Vijay Bahadur Singh is a S.D.M. He was posted in Tehsil Ajesi, District Mau, at the time of occurrence. He has retired now. He admitted that Randhir Singh, who transcribed the report, was a clerk in the school. His son-in-law Keshav Singh, who is the Manager of the college, has a cinema hall in Pakawainar. He denied that the incident occurred at Pakawainar and Yogendra Singh died at Pakawainar. He also denied the suggestion that on the night of occurrence he was in village Chandpur and Keshav Singh called him from Chandpur after the incident.
23. Thus from the statement of this witness it is clear that the F.I.R. was not transcribed at the place as alleged by this witness in view of his admission made in the cross-examination that it was signed by him at the spot of occurrence and given to the S.I. He had identified the paper Ext. Ka-1 which was signed at the spot by him. The medical conflict, as disclosed by him in his statement in the court, is clear and cogent. The Medical Officer, P.W. 7, has not found any contusion or any other blunt object injury upon the persons of any of the deceased. In the inquest memo of Awadhesh Singh and Shiv Kumar some of these contusions were on their arms and thighs. Yogendra Singh did not have any independent contusion. His injuries were described in the inquest memo as Kuchla Hua Ghao" i.e. lacerated wound. All his injuries were of the firearm. The improvement in the prosecution story in the distance, change in the place of shooting from site map all was purposeful because of the existence of blackening and charring in all the injuries of these three deceased persons. These changes were made to explain blackening and charring in their injuries.
24. It is clearly indicated that presence of blackening and charring was not noted by the S.I. who conducted the inquest initially, therefore, the distance was shown in the site map on the basis of the statement made by this witness and the other witnesses to the I.O. The height of the Kharanja from the spot where the three persons allegedly had received the firearm injuries was 6-7 feet high from this place. It was eleven paces from the dead bodies. This clearly is indicative of the fact that the injuries suffered by the victims should have a downward trend, but close scrutiny of the post-mortem reports of the deceased does not give any such indication. The shots received by them seem to have travelled in the straight line. Absence of any injury of spade or Lathi or butt of the guns thus tells heavily adversely against the prosecution. This witness claimed in his 161 Cr.P.C. statement that he became nonplus and could not determine what to do, whereas the other two Ganga Singh and Baij Nath rushed out of the Baithka but in the F.I.R. he stated that the witnesses and he ran into the village and returned to the spot along with many villagers. These contradictions and anomalies in the testimony of this witness further lends assurance to the fact that he was not present at the spot. His going completely unscathed despite the avowed determination of the assailants to eliminate the entire family further strengthens our above conclusion. He admitted clearly that no shots were fired on him. This shows clearly to us that had this witness been present he would have been the first target of his adversaries than his sons. This further makes it clear that this witness is lying about his presence at the spot. Filling of the lacunas in the statement in second examination-in-chief by this witness left in the first examination-in-chief also move in this very direction. These lacunas have earlier been pointed out while dealing with his evidence. His denial of the fact of his son Yogendra Singh being a hardened criminal was deliberate. It was so done just to avoid his siding with Virendra Singh. In our opinion, it is clear from his admission made regarding the dispute between Virendra Singh on the one hand and Ram Chandra Singh and his son on the other hand regarding possession of the shop given on rent to Virendra Singh, the Principal of Kanso Inter College. This incident was a sequel to this dispute and not to any land dispute. It is fully fortified from his admission that cattle troughs were repaired every year and these accused never raised any objection in the past. We do not, therefore, find any validity in the assertion of his that the incident occurred at his Baithka. The Manager of this college was his own son-in-law Keshav Singh. The scribe of the report, a nephew of this witness, was also a clerk there. Randhir Singh did not accompany him to the police station. Where from he reached the police station is not clarified from this witness or by the prosecution. This is also a circumstance which indicates that this F.I.R. had not seen the light of the day, as alleged by the prosecution. One thing is clear that Awadhesh was working as a teacher in the said college. In the face of the existing enmity between the two families, the accused and the informant, they are siding with this Principal, Virendra Singh against Rain Chandra seems to be a plausible anomaly and it is also equally probable in the face of these facts and circumstances that these three brothers had been keeping a vigil and sleeping at Pakawainar at the shop of Virendra Singh to protect the said shop from being taken possession of by Ram Chandra Singh and his family members. Just before the occurrence the situation in connection with the possession of shop was explosive. Its existence is patently clear from the testimony of P.W. 5 who had candidly admitted the existence of these facts. Police had been avoiding its appearance on the scene to quell the disturbance between the rival parties purposively, though it had never imagined the incident of this magnitude, but it certainly had allowed liberty to the rival parties to measure their respective strengths interse.
25. In view of these facts and circumstances available from the evidence we are of the considered opinion that the incident seems to have not occurred at the alleged place of occurrence but had occurred at Pakawainar or in its near vicinity, sometime after mid-night hours between 2.00 and 4.00 a.m., as the Medical Officer, P.W. 7, had admitted, or in the early hours of the morning, before breaking of the dawn. These three brothers apparently were shot in cold blood probably when they were asleep after night vigil. Presence of blackening and charring in their injuries is suggestive clearly of the fact that the shooting upon them was resorted to by their adversaries from a handshaking distance. None of them did have any opportunity to resist the assault. The absence of any blunt object injury despite categorical assertion by P.W. 1 Bhola Nath further rubs salt to the injury suffered by the prosecution.
26. The submission by Mr. Sengar was that this anomaly in the medical evidence be ignored by the Court. The conflict in the medical evidence and the prosecution version with regard to the use of blunt weapons, butts of the guns and reverse side of the spade, in his opinion, is to be ignored as exaggeration of a distracted mind. If this witness is the maker of the F.I.R. it cannot be said that the tragedy had made any serious effect upon his mind. On the contrary it is suggestive of the fact that it was prepared by a person who was well verse with legal wrangling and into implications. The statement under Section 161 Cr.P.C. of this witness was recorded by the I.O. on the day of occurrence itself, therefore, the anomaly remained in his testimony and no somersault from the same or denial of the same was plausible for the prosecution to make. The inquest memos contain these injuries hence he was to state this fact. It has to be evaluated to test probability of his presence. It is a very important fact impeaching his integrity.
27. In view of the facts and circumstances discussed above, we find ourselves unable to accede to the submission made by Sri Sengar.
28. Learned counsel for the informant in regard to this witness submitted that he is a wholly reliable witness and his testimony is corroborated by the facts and circumstances fully.
29. We are unable to subscribe to these submissions from the prosecution side. In our opinion this witness was not present at the spot during the occurrence of. the incident. He is a liar and, therefore, a most unreliable witness. No weight can be attached to his evidence.
30. Coming to the recovery memos of blood and cartridges we find that no specific place of their recovery was mentioned in recovery memos by the I.O. This is a serious lacuna, in put opinion, occurring in these recovery memos. The I.O. was conscious of the situation and deliberately left it in this manner to adjust it according to the heed , occurring during trial.
31. Presence of semi-digested food in the stomach of all the three persons is also an important circumstance in the light of the discussions made by us above. There is nothing from the side of the prosecution brought on the record to show that these persons had taken any breakfast before busying themselves in the mud work upon the damaged cattle troughs. Learned counsel for the prosecution has urged before us that this Court must not make any hay from the said submission. The Apex Court has decried the attempts of the High Courts in placing reliance on this circumstance in a number of decisions. As earlier discussed, in the light of the observations made above, this fact also assumes significance because it leads to the conclusion that the incident had occurred during the dark hours of the day. Semi-digested food was deposed to be in pasty condition by the Medical Officer. Learned counsel for the informant. Sri Sengar, have tried to ridicule the Doctor by suggesting that pasty food and semi-digested food are different in nature. The pasty food means totally digested food. With due respect to him we beg to differ. Semi-digested food is a state of the food taken in through the esophagus after its crushing and chewing in the mouth into the stomach. The walls of the stomach use to discharge several juices including bile. The effect of all these juices and bile upon the food is that it helps its further digestion and assimilation. After it reached the stomach further assimilation is dependant upon the quality of food taken by the victims. According to Medical Officer the food taken by the victims was food grains (serials) like Chapatis, Dal and Rice etc. It was not non vegetarian food. The digestion of the vegetarian food is normally completed within 4-5 hours to a state in which it starts passing from the stomach to the intestine. This is a stage when the food becomes a paste or is semi-digested. Pasty food is nothing but wholly digested food, ready to pass into small intestine. After it passes into the intestine this food is further burnt and segregation of the carbohydrates and its assimilation in the blood takes place there. Residue left from the small intestine after all this process passes into the large! intestine where the process of digestion is given a final touch. Afterwards it is segregated into excreta etc. Thus, there is not much of a difference between semi-digested food and pasty food. Moreover, the prosecution could have re-examined the Medical Officer to clear this anomaly. Leaving the Doctor unexamined after he made this statement in the cross-examination does not permit any such hypothetical submission as raised by learned counsel for the prosecution or the informant The prosecution failed short of challenging the Doctor as collusive. It was specifically pointed out to these counsel. They feel shy of claiming it so.
32. In this view of the situation the fact that the opinion of the Doctor that in view of the condition of the rigor mortis, pasty food and other circumstance the incident could have occurred during mid-night in between 2.00 and 4.00 a.m. appears to us plausible.
33. The stomach contents cannot by itself form the sole basis of any inference adverse to the prosecution. It can still be used as a supportive circumstance if other circumstances, strongly allow any adverse inference against the truthfulness of the prosecution evidence. In this case we have already discussed many such circumstances.
34. Having thus held that the presence of Bhola Nath at the spot of occurrence at the time it occurred being doubtful, we will have to test the testimony of P.W. 2 Baij Nath Singh in its light. According to this witness the assailants remained at the Kharanja. From his examination-in-chief it is apparent that the shooting was resorted to from Kharanja itself. He was in the Baithka from where he came out He later on stated that the accused persons came down the Kharanja and opened fire. He also corroborated P.W. 1 with regard to the use of butt of the guns and reverse side of the spade and Lathi. He had also alleged that Brijendra and Satyendra assaulted the deceased persons with fists and kicks. This was not so stated by P.W. 1. According to him the alarm attracted the whole of the village. He named two persons, viz. Sadhu Saran and Sandhita and as soon as the witnesses came to the spot the assailants took to their heels, first towards east and then diverted to south. According to him when they examined the three injured, they found Shiv Kumar and Awadhesh Singh dead and Yogendra alive. He was breathing heavily, therefore, they took him to the hospital. He died on the way. He claimed that he remained in the village all along after the occurrence. The I.O. came to the place of occurrence on the very day. Then came there after three days. Thereafter he never visited the village. He claimed his presence on the first day when the I.O. came to the spot. He is a signatory of the inquest memo. He clearly admits that on the date of occurrence he did not disclose to the I.O. anything about the incident His statement was recorded after two days of the occurrence by the I.O. According to him, in his own words "Tishre Din Jab Darogaji Aaye the to ghatna ke bare me mujhe jo jankari hui thi bata diya tha." It clearly indicates that he was not an eyewitness. He had heard the facts of the incident from others is clear from the word 'Jankari Hui Thi'. He admitted that he is disclosing about the occurrence for the first time in this Court. He was called at the house of the informant by the S.I. where his statement was recorded at about 8.00 a.m. in the morning. Then he stated that he did not remember when the I.O. came. When he came to the house of Bhola Singh the S.I. was not recording any one's statement. He was sitting silently. His signatures were obtained on one paper or several signatures were obtained was not known to him. He further claimed that when on the date of occurrence the I.O. came to the spot his signatures were obtained. This is to be remembered in this context that he signed inquest memo. What was written in the inquest memo he did not know. He was only asked to sign it by the S.I. and he signed the same. No other conversation took place between him and the S.I. On this day. He further claimed that Bhola Singh, the informant, before getting this report scribed and before the enquiry made by S.I. asked him whose names be, given and whose not. This was asked by Bhola Nath from him immediately after preparation of the inquest. He told P.W. 1 Bhola Nath that name those who have committed the offence. He further admitted that when for the first time he saw he found two persons lying injured and two persons dead. He had also seen mud on the hands and foot of the deceased persons. He had tried to corroborate the blunt weapon injuries noted in the memo of inquest. He claimed that he had seen contusion on the, back of! Yogendra. He stated that he had seen only 2/3 spent cartridges and one live cartridge at the spot. He further stated that the I.O. had picked up the spent cartridges but where he had kept it he cannot tell. The S.I. on his arrival at the outset picked up the live cartridge and spent cartridges. He stated that he had no memory as to in how many cases he had given evidence. He claimed that whatever he saw deposed that He had never deposed for money. He had been a witness or not for Bhola Nath in his civil litigation is not remembered by him. He had not deposed anything about other cases. He denied that he was a witness for Awadhesh Singh son of Bhola Nath Singh resident of Kanso in a Marpeet case against Swaminath etc. He stated that it is wrong to allege that he was a witness in the above case. He is telling a lie deliberately though he admitted that in his village no other person of his name and name of Awadhesh is there, but he has to ultimately admit that in the cases launched by Awadhesh Singh he was a witness against Ramjit etc. He had gone to the house of informant for taking the bullock. He stated that he was talking near the place of occurrence; He did not talk about the bullocks. He used to take bullock from Bhola Nath Singh regularly. This was in partnership which was started 3-4 months before the occurrence. The S.I. had enquired from him about the work for which he had been to the house of Bhola Nath Singh. He had disclosed the reasons for the same to him but if it is not so stated in his statement under Section 161 Cr.P.C. he cannot give any reason. His relationship with Bhola Nath Singh was on account of the partnership and also on being of his community. No shots were embedded in any house in the vicinity. Yogendra Singh was taken to the hospital in a car and the blood trickled down all along the path the car went on the road. He admitted that he is often visiting Kesho Singh whose house is in Pakawainar. Kesho Singh is son-in-law of the informant. He had admitted that in Pakawainar a quarrel was going on with Ram Chandra Singh for the possession of a shop. Blood had fallen on the Kharanja. He did not show the I.O. this blood. He remained at the spot upto 2.00 p.m. At the time of occurrence he had a bullock which he had later on sold out. No receipt was obtained. Thus the testimony of this witness also cannot be given any credence by us. The recording of the evidence of this witness on the third day despite his being a witness of the inquest and his availability to the police leaves enough room to infer that till then he was not contemplated by the prosecution as an eyewitness and the F.I.R. too had not seen the light of the day. Had he been named in the F.I.R. there was no reason for the I.O. not to have recorded his statement promptly after completion of the inquest. The second I.O., P.W. 6, has also not recorded his statement despite his statement that he reached the place of occurrence during the day. He admittedly had perused the F.I.R. and also made enquiries about the victim of the incident.
35. In view of these facts and circumstances, it is abundantly clear to us that the presence of this witness as an eyewitness at the place of occurrence is an after thought. In this connection the suggestion given by the defence to this witness before his cross-examination concluded is that he ran away on the last date from the court when the statement of his was read over to him by the prosecution counsel. He declined to make that statement and ran away from the court though he had denied the suggestion and also stated that he did not come on the last date, but, in our opinion, it had some sense.
36. We have to make some reference to the investigation and the manner in which it was conducted. The investigation apparently in this case was collusive. The incident seems to have occurred at another place. The defence evidence of D.Ws. 2, 3 and 4 is categorical that the dead bodies were brought to the alleged place of occurrence from some other place. They were laid on the ground before arrival of the police. The statement of P.W. 1 with regard to Ganga Singh's arrival at his house is also curious and lends assurance to the fact that the place of occurrence was Pakawainar and not village Kanso. The purpose for which this injured witness has come to the house of the informant was his own work at Pakawainar. It is claimed by P.W. 1 that he did not go there but stayed at his house. It is no bodies claim that Ganga Singh went to save any of the deceased persons and sustained his injuries in that process. Sufferance of firearm injuries by Ganga Singh, in our opinion, had happened in some other manner and at some other place. It is likely that he had suffered injuries at Pakawainar in the same incident in which the three deceased had suffered the injuries. His non-examination in the case also is peculiar. A report about Ganga Singh's abduction was got registered which was found in the investigation to be false. A photo-copy of the police report has been filed in evidence. The prosecution has claimed that Ganga Singh was threatened from the very inception for not to depose. No evidence other than that report of his abduction was brought on record from the prosecution in corroboration of it. The trial court has come to the conclusion on the basis of the report that an effort was made by the prosecution to produce Ganga Singh but he could not be produced. Therefore, so far Ganga Singh is concerned, there was no evidence that he was abducted before the trial judge or that any prosecution of any one for it had taken place. Unless this fact is proved, non-examination of injured Ganga Singh has a bearing upon the prosecution case in the light of the fact that he is a very close relation of the informant. He is son of his brother-in-law. There, admittedly, independent witnesses were available to the prosecution. Non-production of any such witness by the prosecution leaves much to be desired in the case. It was a very heinous offence. Three persons were done to death and the prosecution had rest contained by examining two interested witness in the trial. Motive, as is commonly known, a double edged sword, but in the absence of any immediate cause for violence for the defence, we are at a loss to comprehend any valid reason for the occurrence of this magnitude at their hands. The dispute between the parties was going on for several years. In the past the defence has never raised any objection to the repair of the cattle troughs by the prosecution. We are at a, loss to find out what acted as a catalyst to this enmity instantly on 4.10.1994 except vacation of shop held by Vijendra Singh in Pakawainar of Ram Chandra Singh. The prosecution has miserably failed to spell it out.
37. In view of these facts and circumstances, we find ourselves wholly unable to agree with the submissions made by learned counsel for the prosecution and also the informant. It has been strenuosly urged that the Sessions Judge has discarded all the submissions of the defence by giving cogent reasons for doing so. He had churned the evidence properly. Therefore, this Court should be loathsome in disturbing the findings recorded by him. We have carefully perused the judgment and have no hesitation in saying that the learned Sessions Judge had not applied himself properly to the facts and circumstances available in evidence of the two eyewitnesses and other formal witnesses including the I.O. and the Medical Officers. This had impelled us to give our own reasonings in complete disagreement to the findings given by the Sessions Judge. In other words, we are reversing the findings of the learned Sessions Judge.
38. It is admitted by the prosecution that the hands and foot of the deceased persons were smudged with mud. Neither of the police officer, who conducted the inquest proceedings, nor the medical officer had found any mud on their hands, foot or clothes. Sri Sengar, learned counsel for the informant has strenuously urged before us that there is nothing as to when the mud was prepared and in the month of October the weather would be dry and the mud would not stand firmly on the hands and foot of the deceased persons. The inquest were prepared after two hours of the occurrence and completed in three hours by 1.00 p.m. The body was sealed and despatched thereafter.
39. However, absence of any mud in the above circumstances on the hands and foot or clothes of the deeased is improbable. The observation made by learned Sessions Judge in the judgment that due to dry weather the mud have fallen to the ground due to movement of the body is too superficial an observation to be made by him. Ira the first week of October which follows rains closely the weather would not be so dry as to make the mud fall off within no time, especially when the evidence of the witness P.W. 1 is that till the arrival of the S.I. the bodies remained untouched. Therefore, there is no question of the mud fall out from the hands, foot or clothes of the deceased persons. No presence of the mud upon their person clearly shows that they were not busy in repairing the cattle troughs. It further reflects heavily upon the place of occurrence and truthfulness of the eyewitness account.
40. Before we conclude our judgment one more very crucial lacunae calls for consideration. Blood sometimes plays a pivotal role in the determination of actual spot where the occurrence is alleged. It has a distinctive value in those cases where defence seriously challenges place of incident and suggests a different place. In this case such a situation does exist It was collected from the spots where two deceased fell by the investigating officer. It was admittedly not sent to chemical examiner or serologist to clinchingly prove that it was human blood and belong to the blood group of the deceased. No blood from the place where the third victim fell down and bled was recovered by the I.O. According to P.W. 1 blood was only collected by the I.O. In one single plastic packet. It is open to adverse inference in law in a case of this nature especially.
41. In the result, the appeals ware allowed. The appellants are acquitted of the charges for which they were convicted and sentenced by the trial court. They are on bail. They need not surrender. The two accused, viz. Ramashraya Singh and Kamla Singh are in jail. They shall be released forthwith, if not otherwise wanted in any other case. The bail bonds of other accused persons are hereby cancelled. Their sureties are hereby discharged.
42. Reference for confirmation of death sentence is consequently rejected.