Allahabad High Court
State Of U.P. vs Raghuvir Singh And Others on 19 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 599
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 06.02.2019 Judgment delivered on 19.4.2019 Court No. - 1 Case :- GOVERNMENT APPEAL No. - 5123 of 2002 Appellant :- State Of U.P. Respondent :- Raghuvir Singh And Others Counsel for Appellant :- A.G.A.,Laxman Singh,Murlidhar Misra Counsel for Respondent :- S.P.S. Raghav,A.K. Singh,Ajay Sengar,Arvind Kumar Srivastavaac,Brajesh Sahai,Brijesh Saha,C.H.Singh Gautam,D.V. Singh,Gyanendra Kumar,J.S. Sengar,Kapil Rathore,Lav Srivastava,Mukhtar Alam,Rohan Gupta,Vikram Dev Singh Rathore Connected with Case :- CRIMINAL REVISION No. - 1548 of 2002 Revisionist :- Rajeev Shukla Opposite Party :- Raghubir Singh And Others Counsel for Revisionist :- Rajeev Trivedi,P.N. Misra,Rajiv Lochan Shukla Counsel for Opposite Party :- Govt. Advocate,Laxman Singh Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)
1. Heard Sri Krishna Pahal, learned Additional Advocate General assisted by Sri G.P. Singh, learned A.G.A. and Sri Murlidhar Misra, Sri Rajiv Lochan Shukla, learned counsel appearing on behalf of complainant, Sri V.P. Srivastava, learned Sr. Advocate assisted by Sri Ranjay Kumar, Mukhtar Alam, learned counsel for the accused respondent nos. 1, 2, 3, 4, 6, 10, Sri Ankit Singh, Advocate holding brief of Sri Rohan Gupta, learned counsel for the accused-respondent nos. 5 and 8, Sri Arvind Kumar Srivastava, learned amicus curiae appearing for the accused-respondent no. 7.
2. This Government Appeal has been preferred against the judgment and order dated 15.07.2002 passed by the Additional Sessions Judge, Court No.2, Hamirpur in Session Trial No. 145 of 2000, State Vs. Raghuveer and 9 others whereby respondent-accuseds, Raghuveer Singh, Asutosh Singh @ Dabbu Singh, Uttam Singh, Pradeep Singh, Ashok Singh Chandel, Naseem, Shyam Singh, Sahab Singh, Jhandu and Bhan Singh have been acquitted of the charges under Section 147, 148, 302/149, 307/149 I.P.C., P.S. Kotwali, District Hamirpur as well as accused Ashok Singh Chandel has been acquitted of charges under section 379 and 404 IPC; in connected Session Trial Nos. 146 of 2000, State Vs. Sahab Singh wherein accused Sahab Singh has been acquitted of offence under Section 25 of Arms Act, P.S. Kotwali, District Hamirpur; and also in connected Sessions Trial No. 147 of 2000, State Vs. Ashok Singh Chandel wherein accused Ashok Singh Chandel has been acquitted of offence under Section 30 Arms Act, P.S. Kotwali, District Hamirpur. Informant Rajeev Shukla has also preferred a Criminal Revision against the impugned judgement in which Opposite Party Nos. 1 to 10 have been acquitted in S.T. No. 145 of 2000 of the above-mentioned charges as well as O.P. No.8 has been acquitted in S.T. No.146 of 2000 under Section 25 Arms Act and O.P. No.4, Ashok Kumar has been acquitted of charge under Section 30 of Arms Act.
3. Since both the Government Appeal and Criminal Revision arise out of the same judgment, hence, they have been taken up together for consideration and disposal.
4. In the memorandum of appeal, the grounds have been taken that the trial court has acquitted the accused erroneously by holding the F.I.R. to be ante-timed, the motive for causing the occurrence to be insufficient although there was clear mention made of the said motive in the F.I.R. itself; by holding the F.S.L. report to be unbelievable and also by ignoring the principles laid down by the Hon'ble Supreme Court as well as High Court in various cases and it is prayed that the impugned judgment should be set-aside and the accused-respondents should be held guilty and punished in accordance with law.
5. Before proceeding to consider this appeal, it is pertinent to refer here the prosecution case and the evidence which has been gathered by the Investigating Officer which was considered by the trial court and found the same to be insufficient and after its evaluation, we have to see whether the same was correctly appreciated or does it require any interference.
6. The prosecution case as it unfolds in the F.I.R. in S.T. No. 145 of 2000 is that Rajiv Kumar S/o Bhishma Prasad Shukla R/o Ramedi Taraus, District Hamirpur, P.S. Kotwali, Hamirpur, District Hamirpur along with his servant Lallan S/o Pahalwan had gone to the market on 26.01.1997 at about 7:30 p.m. to purchase articles; his elder brother, Rakesh Kumar Shukla and two sons i.e. Gudda and Chandan and first informant's son Vipul along with Sri Kant S/o Gaya Prasad Pandey and Ved Prakash S/o Bhagwati Sharan Nayak, who all had gone to the place of his elder brother-in-law and were returning home, as soon as they reached near the gun shop of Naseem, they halted after seeing first informant (P.W.1) and Lallan and started talking to them, in the meantime from inside the house of Naseem, accused Naseem, A-1, accused Ashok Singh Chandel, A-2 (Ex- M.L.A.), accused Shyam Singh S/o Birbal Singh, R/o Sumerpur, A-3, accused Sahab Singh, A-4 (parentage not known), accused Jhandu Arakh R/o Pachkhura Khurd, P.S. Sumerpur, A-5, Driver of Ashok i.e. accused Rukku R/o Khalepura, Hamirpur, A-6, Gunner of Ashok Chandel, M.L.A. (name not mentioned in the F.I.R.), A-7, all armed with rifle and guns in their hands came out and in pursuance of their common object to kill, started firing; at the same time hearing the sound of fire from the side of market, accused Raghuveer Singh, a contractor of liquor, A-8, his son accused Dabbu Singh, A-9, accused Pradeep Singh S/o Shiv Nath Singh, A-10, accused Uttam (parentage not known), A-11, accused Bhan Singh, Advocate (parentage not known), A-12 came there in a vehicle and after getting down from it, they started making fires by guns and rifles in their hands by which Sri Kant and Ved, who were sitting on the rear side, received bullet injuries and others i.e. Rakesh Kumar Shukla, Gudda, Chandan and Vipul, who were being fired from the front, received fire arm injuries and they fell down in the vehicle. Because of the firing, panic gripped the market as a result of which, market was consequentially closed; by someone getting information about this occurrence, elder brother of the informant i.e. Rajesh Kumar Shukla, Ravi Kant Pandey, Bhagwati Sharan Nayak S/o Shankar Sahay Nayak, Sri Prakash S/o Bhagwati Nayak and Anil S/o Sri Brijendra Sharan and many other residents of the 'Mohalla' came there and, thereafter all of them together reached Chandan and Vipul, who had received minor injuries, home while rest of the injured were being taken by them to the hospital and as soon as they reached near the house of Parma Pandit, from the front, Raghuveer Singh and others and Ashok Chandel with his companions again came there and exhorted that no one of the said family should escape alive and they all started making indiscriminate firing, by which his elder brother, Rajesh Kumar received bullet injuries and fell down on the spot while he (P.W.1) himself also received injuries in his legs and he also fell down, even Ravi Shankar Pandey received fire arm injuries. In the ensuing melle, his companions concealed themselves wherever they could find cover and, thereafter he saw that the assailants came near firing and lifted the licensed rifle of his father which was being carried by his brother Rajesh Kumar and after sitting in their respective vehicles, fled towards 'chauraha' (intersection). After their departure, he saw that his brother Rakesh Kumar Shukla, Gudda and Rajesh Kumar had already died and hoping that Sri Kant and Ved Prakash might be alive, they were placed inside the vehicle and were taken to hospital. In the hospital, doctor pronounced them dead. Further it is mentioned that in the year 1995, the murder of Sanjay Shukla and Shiv Narayan Mishra, President, Degree College of Sumerpur was committed by Shyam Singh and others in which from the side of deceased, Rakesh Kumar Shukla had done pairvi and Sri Kant's brother Rama Kant Pandey, Advocate had done pairvi against Shyam Singh and others and presently in election opposition was being made of Ashok Chandel because of which, Ashok Chandel, Raghuveer and Shyam Singh had inimical terms towards the informant side. Further it is mentioned that Ashok Singh Chandel had taken side of Shyam Sigh and others in the year 1995. It is further mentioned in First Information Report that the informant had come to lodge F.I.R. leaving behind the deceased in hospital and made a request that his report be registered and in police security, the medical inspection be got done of the injured persons.
7. On this written report, Exhibit Ka-1, Case Crime No. 33 of 1997 was registered at P.S. Kotwali, District Hamirpur against Ashok Singh Chandel (Ex. M.L.A.), Shyam Singh S/o Birbal Singh R/o Sumerpur, P.S. Sumerpur, Sahab Singh (parentage unknown), Jhandu R/o Pachkura, Sumerpur, driver of Ashok Kumar i.e Rukku R/o Khalepura, Kasba Hamirpur, Gunner, Raghuveer Singh (contractor of liquor), son of Raghuveer Singh i.e. Dabbu Singh, Pradeep Singh S/o Shiv Ram Singh, Uttam (parentage unknown), Bhan Singh, Advocate (parentage unknown), Naseem and others on 26.01.1997 at 9:10 p.m. by Constable Mahesh Singh (P.W. 9) who prepared chick F.I.R., Exhibit Ka-20 in his hand writing and made entry of the same at report No. 52 at 9:10 p.m. on the same day i.e. 26.01.1997 which is Exhibit Ka-21. He in his examination-in-chief has further stated that he had copied the text of Tehrir in the chik FIR but in the fourth line, he omitted to mention 'tatha' and also omitted by mistake to write 'tatha mere pair me goliyan lagi' and also stated that at one place in place of 'tatha', he has mentioned 'aur', because of having written it in a hurry and their being lot of crowd. This witness in his cross-examination has stated that every day in the morning, 'daak' (post) is sent to Circle Officer from the police station. On chick, Exhibit Ka-20, there is order of C.O. dated 28.01.1997 to send the same to court, but he could not tell whether the order by C.O. is passed on the same day when the chick is received in his office or not, although it is apparent that the same was seen by court on 29.01.1997. At the end of the chick report, there is a certificate to the effect that the contents of the application were correct word by word and nothing was added or subtracted therefrom, which was given by him under his hand writing. Further he has stated that he could know about the aforesaid omissions when he compared the written report with chick today. In the original written report, the place where signature is made, at the said place after having copied the same in chick, Sd/- is written but in the present case, Sd/- has been omitted from being written by mistake as there was no signature, thereafter, a question was put to him to the effect as to whether it could be possible that the present written report may not be the same on the basis of which chick report was prepared, to which he denied that it was not so. A long cross-examination is made of this witness in this regard in which it has emerged that this witness had put in 23-24 years of service by 1999 and had remained posted as 'Moharrir' at least for four years or so and had issued various chick reports but he had never come across any such instance in which some words were forgotten from being written in the chick while copying the same from the written report and had continued to give his justification by mentioning that the said mistake occurred only because the Inspector Sahab was pressing hard for making hurry and was demanding the copy of chick. He was further put a question that in case he comes across a written report which is unsigned whether he would take it to be the original written report, to which he answered that in case there is no signature found in the original report, he would not written Sd/- in chick. He further stated that in G.D. report no. 52, there is mention made that the inspection was made of the injuries of the injured, Rajeev Kumar and he was found to have bandage in calf (pidhli) and in this regard injured had stated that he had taken treatment/was taking with other injured persons and after the same, he was set free but he was not given any direction to go to either hospital, home or place of incident. He was again asked as to why 'anya' (others) was written out of the left alignment of the said application regarding which he stated that in this regard the query could be made from the informant. He has further stated that along with the informant, Naval Kishore S/o Kaushal Kishore R/o Sumerpur had also come to the police station. In the chick F.I.R. in the column of place of incident, in front of gun shop of Naseem in Mohalla Shubhash Bazar, Kasba Hamirpur is written. He has further stated that Saraswati Sharan S/o Brijendra Sharan Dwivedi, Ramedi, Hamirpur is mentioned in chick report however it is not written in the written report. G.D. No. 51 is recorded on 26.1.1997 at 21.05 hours. G.D. No. 29 dated 27.1.1997 is recorded at 15.05 hours in which it is mentioned that 'jonga' and cartridges were brought to the police station and also there was no entry made in it with respect to railway pass of accused, Ashok Chandel. The said entry of G.D. is made by inspector Lal Man Sharma. Further it is stated that the name of injured Hardayal is neither in tehrir nor in G.D. but he denied that the tehrir was changed and the entire proceeding was done ante-timed and also denied that because of pressure from the Superintendent of Police, Sri Mathur and other higher authorities, these proceedings were done. Further he has stated that at the time when the incident is being said to have taken place, he was at the police station but he did not hear any sound of fire. Then Court made a query from him, to which he stated that the Inspector Sahab was saying as to what was the said commotion which was being heard. It is further stated that the Kotwali Hamirpur is situated at a distance of about two ferlong from the office of C.O. The copy of G.D. dated 26.01.1997 had endorsement of 10.02.1997 by red ink but when the same was sent, he could not tell. In both G.Ds. dated 27.01.1997 and 28.01.1997, on the corner, on the left side, at the top, the endorsement is made of 10.02.1997. He further stated that according to police regulations, the G.D. must be sent to the Circle Officer's Office within 24 hours and these entries are made in accordance with rules thereof. Further he stated that he did not inquire from the informant as to who else were injured in this incident but he immediately thereafter stated that when he inquired from informant, he told him that there were many injured who were being treated but their names have not been revealed by him. At 21.05 hours, the Inspector Sahab had taken a few weapons but it was not mentioned as to why they were taken out and he could also not tell as to who had written report no. 51, time 21.05 hours. Report no. 50, time 21 hours although they written in the hand writing of Anant Kumar Ojha and on 26.01.1997, he (this witness) had come to the office at 21.10 hours on his duty and started his duty. He had entered office simultaneously with the informant. He had started writing at 11.10 hours. In the original G.D., Exhibit Ka-21 in place of 0 (zero) by overwriting, it is made 2 (two) but he has denied that forged entries were made at the direction of the S.P. Further he has stated that he has not recorded parentage of Jhandu Arakh in chick nor did he try to know about the same and showed his ignorance that he had any enmity with Hemraj S/o Baddhu. He also showed ignorance that on 29.03.1980 at 10 p.m., Constable Dharam Raj Singh entered the house of Jhandu with Hem Raj and Hem Raj Yadav had made fire upon Jhandu with an intention to kill him and went thereafter to lodge report in this regard at P.S. Sumerpur which was not written, regarding which father of Jhandu had made a complaint to S.P. He also denied any knowledge about enmity of Jhandu with Bal Karan Yadav and Dharam Veer Yadav. He has further stated that there is entry made at G.D. No. 53, time 22.00 hours on 26.01.1997 of four dead bodies being brought to the police station and on his own, he further stated that the fifth dead body was brought there subsequently regarding which entries were also made in G.D. No. 53. Out of these dead bodies, dead body of one person was brought at 9.00 p.m. at the district hospital which is recorded. In this G.D., there is also mention made in respect of Rajiv having been admitted to hospital but it is not mentioned as to who had brought the dead bodies at the hospital.
8. It is apparent from the statement made by this witness that the omissions made in the chik FIR occurred due to the Investigating Officer exerting pressure upon him to provide a copy of the chik FIR to him and because of having written the said chik in a hurry, the omissions took place, which justification we find to be genuine because it could be possible that when a long report is being copied from the written report in chik FIR, it might be possible that few words could have been left from being written and that could be treated to be a bonafide mistake on the part of this witness. Despite a long and searching cross examination having been made, nothing such could be elicited from him which would make his testimony to be suspect. We find it proved on the basis of the statement of this witness that he did prepare the chik on 26.1.1997 on the basis of a written report being given by the first informant of this case at 9-10 p.m. at the police station which is Exhibit Ka-20 and the omissions were bonafide.
9. Investigation of this case was handed over to Inspector, Lal Man Verma (PW12) on 26.1.1996 itself and he after having received a copy of chik FIR and other relevant documents, reached at the place of incident and recorded statement of the informant Rajiv Shukla and other eye witnesses and also made inspection of the place of incident in their presence and prepared a site plan which is Exhibit Ka-25. He had found lot of blood spread on the place of incident on the road, soil and grass and therefore sample of these three were collected by him in separate containers which were sealed and its memorandum was prepared which is Exhibit Ka-26. He also took into possession 12 blank cartridges from the spot. Six out of them were of 12 bore and six were of brass, in the presence of the witnesses and prepared its memorandum which is Exhibit Ka-27. He also found one Manarth Card of first class issued by Railways Board, New Delhi belonging to accused Ashok Singh Chandel from the place of incident and prepared its memorandum which is Exhibit Ka-28 which also bore photograph of the said accused. The said card is marked as material Exhibit 62. He also took in his possession one Jonga (a vehicle), on the footrest of which, was found lot of blood, therefore a piece of it was cut by him and was taken in his possession, memorandum of which is Exhibit Ka-29. Thereafter, he came with force to the Government Hospital and also made search for the accused persons. After coming to the hospital, he found five dead bodies and got Panchayatnamas of the dead bodies prepared by S.I. Sri R.N. Singh Pal which was also signed by him. Other relevant papers i.e. Form-13, Naksha-lash, Chitthi CMO, Chitthi R.I. were also prepared in his handwriting. Panchayatnama of deceased Rakesh Shukla is Exhibit Ka-30 while other related documents are Exhibits Ka-31 to Ka-36. Panchayatnama of deceased Rajesh Shukla is Exhibit Ka-37 and other related documents are Exhibits Ka-38 to Ka-42. The Panchayatnama of deceased Sri Kant Pandey, Gudda @ Ambuj and Ved Prakash were prepared at his direction by S.I. Sri Harish Chandra Singh and other related documents i.e. Challan-lash, Form-13, Chitthi CMO, Chitthi R.I. etc. were prepared by him which bore his signature as well as his own (PW-12's) signature. Panchayatnama of deceased Sri Kant Pandey is Exhibit Ka-44 and other related documents are Exhibits Ka-44 to Ka-47. Panchayatnama of deceased Gudda is Exhibit Ka-48 and other related documents are Ka-49 to Ka-52. Panchayatnama of deceased Ved Nayak is Exhibit Ka-53 and the connected documents are Exhibits Ka-54 to Ka-57. All these dead bodies were got sealed in separate clothes and sample seals were prepared and thereafter they were handed over to the constables for being taken for the purposes of postmortem with necessary documents. Thereafter, this witness recorded statement of witness Lallan son of Pahalwan, scribe of the FIR Saraswati Sharan at the hospital itself and thereafter after coming at the police station recorded statement of C.M. Mahesh Singh on 27.1.1997. He again proceeded for search of accused persons with force and came to know through informer that at Luxmibai Tiraha in the house of Naseem, there were four accused persons who were named in the FIR, who were about to flee from there by the side of river Betwa from the rear door. In pursuance of the said information, he reached with force at Luxmibai Tiraha and thereafter leaving the Jeep, proceeded on foot by the side of river and approached the house of Naseem from the rear door and saw that four accused persons were coming out from the said door and at pointing out of the informer all of them were arrested on 27.7.1997 at 6.30 p.m. who after their arrest revealed their names as Naseem son of Hamid, Shyam Singh son of Bir Bal, Bheem Singh son of Man Singh, Sahab Singh son of Dalgajan Singh. All these accused were searched pursuant to which nothing could be recovered from them except from Sahab Singh, from whom one rifle and 10 cartridges in a belt which he was wearing on his waist, were recovered and were taken in possession, memorandum of which was prepared which is Exhibit Ka-24. The said accused stated that the same belonged to Ashok Singh Chandel, ex.MLA. No public witness could be procured as none was ready to be a witness of this recovery. Copy of the memorandum was provided to the accused. The rifle is marked as material Exhibit 52, the belt in which cartridges were kept is marked as material Exhibit 53 and the cartridges are marked as material Exhibits 54 to 63.
10. On 27.1.1997 he deposited all the above articles at the police station as well as broken glasses and piece of foot-rest. The Jonga was marked as material Exhibit-65. The blood stained soil as well as plain soil were marked as material Exhibits 66 and 67. The piece of footrest was marked as material Exhibit-68 although packet containing broken glasses was not taken out of the bundle. The empty cartridges of 12 bore were marked material Exhibits 69 to 74 and six brass empty cartridges were marked as material Exhibits 75 to 80. After having brought all the four accused so arrested and all the materials recovered from them along with accused, a case was registered against them at the police station on 27.1.1997.
11. On 28.1.1997 the accused were again searched but could not be found, hence a report was presented in Court for issuing warrants under sections 82 and 83 Cr.P.C. Thereafter, an information was received from informer that the looted rifle in this occurrence could be found from the house of the accused Ashok Singh Chandel situated in Mohalla Vivek Nagar, believing this information, witnesses were sought to be taken but none was prepared due to apprehension and hence the police party after having taken search of each other, along with force reached the house of Ashok Singh Chandel whereon his servant Gauri Saran seeing the police started fleeing but he was arrested on that house itself who disclosed his name to be Gauri Saran, son of Ganesh Saran, resident of village Bari and when search was made country made pistol was recovered from him, a case relating to which is separately proceeding. He recovered one licensed DBBL gun from bedding of Ashok Singh Chandel which belonged to his brother, which was sealed on the spot hoping that it could have some relation with the present occurrence, a recovery memo of this was got prepared by constable Raja Ram at his dictation and its copy was provided to Gauri Saran and thereafter a case was got registered against this accused at police station and for examination the said DBBL gun was dispatched to forensic expert on 28.1.1997. On information of informer, a raid was made at the house of Anand Purwar under expectation that the looted rifle could be recovered, but the same could not be found but one DBBL gun of 12 bore, four cartridges and a mauser along with eight cartridges were recovered regarding which Anand Purwar stated that the mauser was a licensed weapon belonging to him while DBBL gun was licensed to Shiv Raj Singh, resident of Alahpur, P.S. Gajner, District Kanpur. Believing these weapons to have been used in the present occurrence, they were sealed and sample seal was prepared while the memo of its recovery was dictated to constable Raja Ram and thereafter a copy of the same was given to Anand Purwar in front of the witnesses and the said weapons were sent to forensic expert for being examined. On 29.1.1997 the statement of the witnesses of Panchayatnama was recorded and the reports of postmortem were also obtained. On 30.1.1997 the statements of witnesses of recovery memos were taken. Statements of Bhagwati Saran and others were also recorded but the statement of Vipul could not be recorded as he was too small. Thereafter, an order for attaching the property of Ashok Singh Chandel and others was obtained which was attached in Mohalla Vivek Nagar while attachment of properties of Raghuveer and others was done by other police personnel. During investigation, he had also obtained injury memos of the injured persons and also a technical expert report of Jonga and also got a photograph taken of the Jonga which were paper nos. 68/1 to 68/4. On 1.2.1997, accused Raghuveer Singh, Dabbu, Pradeep and Uttam were arrested and their statements were recorded, who were coming in a Maruti car near city forest. A raid was conducted at the house of accused Ashok Singh Chandel in Kanpur and he was also searched at other places but could not be found. Information was gathered with respect to the weapons belonging to Raghuveer and accused Ashutosh which were licensed weapons and upon enquiry being made, he came to know that the same could be available in Moradabad and therefore, Inspector, Ram Surat Mishra was despatched to Moradabad who returned and apprised that there was no gun house there. Another information was passed on to this witness, Ram Surat Mishra was again sent to Moradabad for recovering the weapon but could not be found. On 21.22.1997 accused Jhandu was arrested and his statement was recorded. The accused Rukkoo is still absconding in this case. The accused Ashok Singh Chandel remained absconding till filing of charge-sheet. He recorded the statement of witness Hardayal on 16.2.1997 and also obtained the X-Ray plate as well as X-Ray report of all the injured persons and recorded statement of Dr. P.N. Pariya on 18.2.1997 and that of Shree Prakash on 21.2.1997 and of Anil Saran on 22.2.1997. For recovering licensed gun of Bhan Singh, he went to Sumepur on 29.2.1997 but could not find it and recorded statement of accused Ravi Kant on 27.2.1997. After having completed the investigation, he submitted charge-sheet against the accused persons which is Exhibit Ka-58.
12. The investigation of the case under section 25/27 of the Arms Act was done by Sri R.N. Singh Pal, who had died, who had remained posted with him, therefore, he was conversant with his signatures and writing and stated that charge-sheet under section 25 of Arms Act against accused Sahab Singh and charge-sheet under section 30 of Arms Act against accused Ashok Singh Chandel were presented by Sri R.N. Singh Pal which are Exhibits Ka-59 and Ka-60 respectively and he had also taken prosecution sanction from the District Magistrate which is Exhibit Ka-61.
13. In cross examination, this witness has stated that in all 42 articles were sent to Forensic Science Lab of Agra for examination. The recovered rifle and cartridges from accused Sahab Singh and recovered DBBL gun from the house of Ashok Singh Chandel were sent to Forensic Science Lab, Agra although by mistake, he has stated that 12 bore DBBL gun and Mauser along with cartridges recovered from the house of Anand Purwar were sent to Forensic expert later on stated that, in fact, they were not sent. He has further stated that after submitting a charge-sheet against absconding accused Ashok Singh Chandel and driver, investigation was continued and also with respect to the recovery of looted rifle, investigation was continued. He has further stated that this case was registered in his presence at the police station. The sound of fire was not heard at the police station and about 15 minutes after registration of the case, he had proceeded from the police station and at that time the informant did not accompany him. He (informant) had reached the place of incident and had brought Jonga there. S.I. Harish Chandra had not accompanied him. There is no entry made of S.I. Harish Chandra in respect of his leaving from police station. He had reached at the place of incident at about 22.40 hours on 226.1.1997. With the police force, informant Rajiv Shukla and Lallan also remained present, thereafter he stated that the informant had stayed there only for 20 to 25 minutes and thereafter had gone from there complaining about pain. First of all he had recorded statement of the informant and thereafter inspected the place of incident. S.P. Sri Mathur had reached there after him and the investigation was being done at the direction of Sri Mathur.
14. In the site plan which is prepared at the time of making inspection, which is noted in the C.D., in which after cutting north, west is written and after cutting south, east is written and after cutting west, south is written and after cutting east, north is written. On his own, he has further stated that a mistake had occurred in writing the directions and therefore, they had to be corrected and the said inspection was made in the presence of the informant and the witnesses. The witness Lallan was present who other witnesses were present, he does not recollect; but other witnesses were present apart from the informant but, he did not note their names.
15. In pursuance to this, it was argued from prosecution side that the site plan was not made solely at the instance of the informant rather it was made at the instance of witnesses also and therefore the impugned judgment of the trial court was perverse because of its having held to be in conflict with the statement of the informant. It was also argued that the statement of the eye witnesses would prevail if the same is taken to be believable and if any kind of discrepancy is found in the site plan, the same would be attributable to the Investigating Officer. We are in agreement in this regard with the above argument that any mistake which is left by the Investigating Officer during investigation would not weaken the case of the prosecution and that ultimate view which will prevail, must depend upon the evaluation of the eye witnesses' testimony.
16. He has further stated that witness Ravi Kant (PW2) had not stated to him that tube light was lighted over there but he had stated simply that there was light of electricity and had also stated that there was light in the shop of Naseem. He has further stated that at place ''A' from where the blood stained soil and simple soil was collected. This place was located in front of the shop of Naseem, adjoining to the road. He had taken simple soil from one place only and not from the place of other incident which happened in front of the house of Parma Pandit. There was lot of blood lying in Jonga but he had taken only a small piece out of it in his possession. He has not indicated as to who was sitting in Jonga at which place. In the site plan at (1) (ka) (kha) is mentioned where Gudda, Vipul, Chandan, Sri Kant and Ved Prakash were sitting and on his own he further stated that Rakesh Shukla was driving while rest were sitting. It was not clearly mentioned that Rakesh Shukla was driving the vehicle. In the site plan at (2), it is mentioned that in Jonga, five persons were murdered by the accused persons namely Rakesh Shukla, Rajesh Shukla, Gudda, Sri Kant Pandey and Ved Prakash. By (D) (D) is shown the place where Chandan and Vipul had got injured. By (D) is shown the place which is outside Jonga. Further he had stated that (D) is shown at four places; which person received injury at which place shown by (D), has not been indicated. After happening of first occurrence, the road by which the accused fled away, has not been shown in the site plan; at the time of second occurrence, from which place accused were making fires, has not been shown. In the site plan, at the time of Rajesh Shukla getting hit by bullet, he has not been shown to be standing out of Jonga rather has been shown inside the Jonga. The place where rifle was snatched has not been shown but it is mentioned in the site plan that rifle was reported to have been snatched from Jonga. Vipul and Chandan were not stated to have received injury inside the Jonga. In the first occurrence, both the places shown by (D) are shown in front of Jonga, one exactly in front of it while other is little towards north.
17. He has further stated that Jonga was provided to the Police Station on 26.1.1997 regarding which entries were made in G.D. dated 27.1.1997. Rest of the articles which were recovered from the spot remained with him on 26.1.1997 and the entire materials were got deposited at the police station on 27.1.1997.
18. He has further stated that he had not shown any mark of pallet on the walls which were near the place of incident. He has not shown in the site plan nor has he taken statement of any eye witness of the said Mohalla where occurrence took place.
19. He has further stated that at the place shown by 'Ka' and 'Kha', it is recorded that Rajiv Shukla and Lallan were standing which is to the east of Jonga and place 'Ka' and 'Kha' are shown in the middle of the road in front of the shop of Naseem and there was no wall between the said shop and the place shown by those letters. Further he has stated that in first occurrence Raghuveer and others (accused persons) are shown to have fired in front of the house in the market. In the site plan, the place shown by ''x' below the road from the southern footpath, fire is stated to have been made and by remaining ''xx' are shown on the Chabutra of Naseem.
20. Further he has stated that near the house of Parma Pandit, there is a lane, after getting down from the road in the said lane and for going away from there, whether there are steps or not, he does not recollect. At that time, there was no sand lying in the said lane. The road that goes from the shop of Naseem to the house of Parma Pandit is semi circular, but he does not recollect it exactly. But it is wrong to say that the place situated in front of house of Parma Pandit was not visible from the house or the shop of Naseem. With respect to railway pass, this witness has stated that no entry of it is made at the police station although he stated on his own that the same was annexed with the C.D. and thereafter the court made queries to which he responded that in the last Parcha of C.D. dated 26.1.1997 there was an original Manarth Card of Railway Board of first class in the name of Ashok Singh Chandel with photograph which is annexed, this text was crossed but he on his own stated that the same had been entered at sl. No. 6, hence the above text was crossed. Again the court put a question as to what was written at sl.no. 6 to which he responded that memo with respect to taking in possession of one Manarth card pass, Railway Board First Class of Ashok Singh Chandel. This witness further stated that the said pass bears 3.1.1993 to 1.1.1994 but has stated it to be wrong that the same was not found on the spot and had been taken from the house of Ashok Singh Chandel and only to show the presence of Ashok Kumar Chandel at the place of incident, the same was shown to have been received from there. The person who was found in the house of Ashok Singh Chandel, had stated himself to be his servant but he does not know whether he was actually his servant or not. The gun, which was recovered from the house of Ashok Singh Chandel whether the same was sent for being tested to which he responded in affirmative. Again he was put a question whether a report was received saying that the empty cartridges were not found to have been fired by DBBL gun which were recovered from the spot, to this question, he responded that he had not seen the report but had taken the said articles in possession on the basis of suspicion but denied that under some conspiracy he falsely implicated Ashok Singh Chandel. He has shown recovery of the said gun to have been made.
21. Arrest of four persons was made from behind the house of Naseem, for that they had gone by official jeep of the police station. The informer had given information in this respect. The house of Naseem was situated at a distance of about 2 kms. After receiving information from the informer within two hours he returned to the police station and 30 minutes after receipt of the information, they reached the house of Naseem and stayed there for about one hour and also tried to procure public witness but none become ready but he did not note the name of these persons who were requested to be witness of the said incident. Copy of recovery memo was given to accused Sahab Singh which was torn by him but he did not take up these torn pieces and had denied the suggestion that the said rifle had been taken away from the house of Ashok Singh Chandel in the morning of 27.1.1997 or in the intervening night of 26/27.1.1997 after breaking up the lock and that none was present in the said house at that time. He also denied that 14-15 cartridges were also taken away by him and after firing the cartridges from that rifle, under conspiracy, the same were sent for being tested.
22. In respect of loot of the rifle of this case, Anand Purwar was arrested but it is wrong to say that the DBBL gun and Mauser which were recovered from him, were sent for being examined by the ballistic expert and that the cartridges were found to have been fired by this weapon and that the said report/papers were being withheld by him.
23. This witness has denied the suggestion that the petrol of Jonga had been finished and at that time Rajesh, Rakesh, Ambuj, Vipul were making purchase in the market and Titu and others came there in a vehicle and asked them to remove their Jonga from there and when Rakesh had refused to remove their vehicle from there and stated that the petrol had finished and when the same would be brought, they would remove their vehicle from there, at this stage Titu and others stated to push that vehicle away from there which was refused and this led to firing made from both sides. He also denied that there was none in-side the Jonga nor any fire shot was made at Jonga and that Jonga had not been presented before him for inspection. This suggestion has also been denied by this witness that Rajesh Shukla and Rakesh Shukla etc. were mafias who used to indulge in dacoity and loot etc. and with the aid of police they had amassed huge wealth illegally and were having unlicensed weapons and that despite criminal cases being against them, police was not arresting them and they were indulging in their illegal pursuit of amassing wealth and used to keep the police in good humor. It is further stated that in the report of informant the name of gunner of accused Ashok Singh Chandel namely Ram Babu was not found involved as he had gone for having food and was not present on spot. He had made no search for finding out unknown accused as he could not get their names and address. He has further denied that the case was registered ante-timed, site plan was made sitting at the police station and the Panchayatnama, G.D. Entry and other papers were forgedly prepared. He showed ignorance that at the complaint made by accused Ashok Singh Chandel, there was any inquiry initiated against S.P. Mathur. He has also denied that after the occurrence the pressure was being made by the leader of B.J.P. Party Sri Kalraj Mishra and because of that pressure he had falsely implicated the accused Ashok Singh Chandel and others in this case. Several questions were put to him in respect of cuttings on the Panchayatnama of the deceased persons to which he stated that all these cuttings bore his signatures.
24. He has further stated that CB-CID had recorded his statement in which he had stated that from Sahab Singh 10 cartridges were recovered and apart from that eight cartridges were also recovered, was not stated by him. Recovery of eight cartridges from the butt cover was written by CB-CID by bonafide mistake.
25. Rajeev Shukla (PW1) had stated to him that he used to oppose Ashok Singh Chandel but had not stated that his brother used to oppose him. In the statement recorded by CBI-CID, Rajeev Shukla has stated that he used to oppose Ashok Singh Chandel. Rajeev Shukla has not stated that Ved Nayak and Sri Kant were close friend nor the same was told by him to CBI-CID. Jhandu, Sahab Singh, and Shyam Singh used to live with accused Ashok Singh Chandel, about this Rajeev Shuka (PW1) had not stated to him nor to CB-CID. Sahab Singh was personal gunner of Ashok Singh Chandel, about this Rajeev Shukla had not stated to him nor to CBI-CID. Jonga was brought to the hospital was not stated by Rajeev Shukla to him nor to CB-CID. About two other unknown persons, Rajeev Shukla had not stated to him nor to CB-CID rather he had stated "Va Anya Vyakti". Rajeev Shukla has not stated to him or CB-CID as to what weapons the accused were armed at the time of first incident. Rajeev Shukla had not stated to CB-CID and to him that at which place, he received fire injury. He had not stated to him that he had received fire arm injury in his leg and fell down nor it was stated to CB-CID, rather it was stated only that he had received fire injury. Rajeev Shukla had not stated to him that he had received the fire arm injury in front of house of Naseem or in front of house of Parma Pandit nor to the CB-CID nor did he tell as to in which part of the body he had received fire injury. He has further stated that Rajeev Shukla had not stated to him that during first incident, his brother was at Jonga nor about fires being made nor the same was stated to CBI-CID but on his own he stated that they were fired upon. Rajeev Shukla had not stated to him as to who all had got injured in the first incident in the fire made by Ashok Singh Chandel and his party, rather had disclosed about all the injured after the entire incident had happened. Rajeev Shukla had not told him that when Jonga stopped, he was to the right of it nor was it stated to CB-CID. At the time of rifle being snatched, Rajesh Shukla was alive, was not stated by Rajeev Shukla to him. Rajeev Shukla has not stated to him that Ashok Singh Chandel had exhorted rather he had stated that all the accused were exhorting. The place where the jeep of the accused was standing was shown in the site plan at the time of first incident but it is not shown as to where it was standing at the time of second incident. Rajesh Bhaiya had turned Joga to go towards hospital and the said Jonga was taken to hospital being driven by him. About this, Rajeev Shukla did not tell him or to CB-CID. Rajeev Shukla had stated to him that written report was written by Saraswati Saran Dwivedi resident of Ramedi. Thereafter he had stated that he had not got the signature of Ravi Kant Pandey (PW2) on the statement given by him under section 161 Cr.P.C. He has further stated that Ravi Kant Pandey had stated that he had heard sound of fire and also that he had received the information about firing being made and had also stated that he heard sound of fire and also received information about firing being made, where-after he and Rajesh Shukla went towards Subhash Bazar. He has further stated that PW2 Ravi Kant Pandey had not stated to him that after hearing the sound of firing he came on the road and on the road he saw that Rajesh Shukla was coming running and Rajesh Shukla had told that Rakesh Shukla was fired upon.
26. He further stated that PW2 Ravi Kant Pandey had not told him that he saw the injured in Jonga. When he reached there he saw that Rajeev Shukla, Lallan, Chandan, Vipul were taking out in injured condition from Jonga Chandana Vipul who were sent home, rather he stated that it was told to him that in the firing episode Rakesh Shukla and others had received fire arm injuries and that they along with Rajeev Shukla and Lallan were carrying injured to Government Hospital, Hamirpur. Further, he had stated that PW2 Ravi Kant Pandey had stated to him that soon after they had reached in front of the house of Parma Pandit and saw that all, with intention to kill, were making fire upon Rakesh Shukla, Rajesh Shukla, Gudda, Sri Kant, Ved Prakash, Rajeev Shukla, Chandan, Vipul and Hardayal Sharma. Ravi Kant had not stated to him that accused had reached the place of incident in Sumo or jeep rather it was stated that Ashok Singh Chandel by his vehicle and Raghuveer Singh and others by his jeep had reached. Ravi Kant Pandey had not stated that Ashok Singh Chandel had exhorted that Shukla family should not be left alive today nor was it stated by him soon after getting down from Jonga that the fire was made and that Rajesh Shukla after having driven the vehicle had gone to the hospital and that Rajeev Shukla had told him that he should go home and he will go to hospital and that Rajeev Shukla was writhing with pain. Ravi Kant Pandey had also stated that he had received fire arm injury in his leg. Ravi Kant Pandey had not stated to CB-CID that Rajesh Shukla told him that Rakesh Shukla was fired upon and then he saw that Chandan and Vipul were being taken out from Jonga. Saraswati Saran had stated to him that written report on a paper was got written from him by Rajeev Shukla at his dictation.
27. He has further stated that in the first firing the place from where Raghuveer Singh and others were stated to have made fire, no blank cartridges were found but they were found in front of house of Padma Pandit. He has stated that below Chabutra of Naseem ''B' is indicated at two places by which is shown the place where blank cartridges were recovered. Place which was shown by ''XX', ahead of it, towards north, is shown the place by (B) (B), where cartridges were recovered but how many cartridges were recovered, he could not tell but in all 12 cartridges were shown to have been recovered. He has also not recorded the bore of these cartridges nor weapon by which they were fired. In front of the house of Parma Pandit (B) (B) place is shown to the west of Jonga but the distance, is not shown between the two. He has further stated that he has not copied in C.D. the G.D. of registration of case. but had stated on his own that the same is annexed with the C.D. nor he has recorded the time of preparing the site plan in C.D. He has also stated that he has not recorded the time of beginning any Parcha of this case nor of closing of any parcha. Parcha nos. 3A and 3B were recorded at what time, he could not tell. Time was not indicated because separate proceedings were drawn in these Parchas but he denied the suggestions that he had already recorded Parcha no. 4 and that is the reason why he made entry of Parcha nos. 3A and 3B and on his own stated that because on the same day separate Parchas were drawn, and they were numbers as A & B. Parcha 3A dated 28.1.1997 related to arrest of Gauri Shankar, search of house of Ashok Singh Chandel and regarding recovery of DBBL gun of Ashok Singh Chandel while Parcha 3B of the same day relates to search made at the house of Anand Purwar.
28. Citing the above piece of evidence, learned counsel for the respondent pointed out that by not making entries of time of beginning and closing of the Parcha, it clearly establishes that the FIR was ante-timed and that when the case is being stated to be investigated, by that time FIR had not come into existence. We are not inclined to accept this argument because at the most non-mentioning of time, may be taken to be an error on the part of the Investigating Officer but simply because of that error it cannot be held that FIR was not recorded in accordance with law and the occurrence is false.
29. Suggestion made from the side of the accused was denied by this witness that initially this case was filed in the Special Court of Dacoity Affected Area but it is wrong to say that loot of rifle was shown in this case only with a view to bring the case in the ambit of Dacoity Affected Area. He has no knowledge that in the said Act there is provision to file the charge-sheet within six months time, subsequently he did say that charge-sheet is required to be submitted within six months under that Act. He further stated that he had filed charge-sheet on 22.2.1997 although he kept the investigation pending also and reason for filing the charge-sheet was that against these accused, case had been proved. He denied that he should not have filed charge-sheet against these accused. He has stated it to be wrong that because a writ petition had been filed by accused Ashok Singh Chandel for getting the case investigated by CB CID, he had filed charge-sheet in this case. He has further stated that he recorded statement of Hardayal on 16.2.1997 because then only he could be available. At the time of conducting Panchayatnama in the night of 26.1.1997, he had no knowledge that Hardayal was admitted in hospital in injured condition. He had not gone Sunahri Gali for investigation to verify as to whether deceased had gone there or not because he did not consider it important. He denied recording statement of any witness of the market about this incident because no one came forward to be witness. He also did not enquire as to who had given information to Rajesh Shukla about this incident nor as to who had reached Chandan and Vipul home because he did not consider it important.
30. Citing the above piece of evidence, learned counsel for the accused-respondent argued that the statement of Hardayal who was a witness of fact was deliberately not recorded for a long time by Investigating Officer and took more than three weeks to record the same and that despite the occurrence having taken place in the market, he did not try to take any public witness in support of the prosecution case which belies the incident.
31. We are not inclined to accept this argument of the learned counsel for the accused that simply because delay happened in recording statement of one witness and that no public witness could be made available to support the prosecution case the incident should be held to be suspect. It is seen on a number of occasions that the public witnesses are not available and delay occurs in recording of statement of witnesses which result in delay in submitting the charge-sheet but it does not behove to disbelieve the prosecution case if the same stands proved in the light of other collected evidence, if the same is found to be credit-worthy.
32. Further, this witness has stated that he has not recorded crime no. and the name of accused on the Panchayatnama of the deceased Rakesh Shukla in his case diary and had denied that at the top of Panchayatnama, the name of the accused and crime number were subsequently added. He has further stated that Rajeev Shukla (PW1) had not stated to him that he had seen Jhandu Singh with Ashok Singh Chandel many times and also did not state that he knew Jhandu Singh from prior to the incident. Jhandu Singh was having DBBL gun at the time of second occurrence and was also having gun at the time of first occurrence, was stated by PW1 to him. Ravi Kant Pandey PW2 had not stated to him that he knew Jhandu from before. Ravi Kant Pandey had also not stated in the statement given to CB-CID that he had seen Jhandu Singh with Ashok Singh Chandel many times together. Ravi Kant Pandey had also not stated to him that Jhandu was standing about 20-25 paces away from him towards west. He has shown ignorance that on 29.3.1988 at about 10.00 p.m. Hem Raj and Dharamvir had entered the house of Jhandu and assaulted him, Hem Raj shot fire upon Jhandu but Jhandu escaped unhurt, regarding which Siccha had made a complaint at the police station Jumerpur nor does he know that Constable Dharmvir was posted at that time at police station Jumerpur nor does he know that Siccha had given an application to Superintendent of Police on 5.4.1980 against Hem Raj and Dharamvir. This witness has further stated Panchayatnama does not contain that assault was made by DBBL gun or rifle but on his own he stated that it was recorded that assault was made by fire arm weapon. He denied the suggestion that till that time he did not know as to by which weapon the assault was made. He has denied that by that time name of Jhandu had not come into light because of which name of Jhandu was subsequently mentioned. It is further stated that in the first occurrence, the place where Jhandu was standing, is not mentioned in the site plan although complainant had told him as to where accused were standing but no specific different place was stated by him where Jhandu was standing, similar was the position with respect to the second incident. He has denied that till the time when site plan was being made, the name of Jhandu had not come into light. He denied the implication of Jhandu because of enmity with police.
33. He has stated that he had not entered into the house of Naseem nor had he made search of his house at the time of making spot inspection or thereafter and has stated it to be wrong that at that time Naseem was at the police station because of which search was not made. He has not seen his shop by going inside it. For the first time, when he went there, he found the same locked or open, he does not recollect. He has no knowledge whether the family of Shafiq, Nafees Ahmad, Abdul Rafiq lived in the house of Naseem or not nor did he try to find out as to who was living on the first floor of house in which Naseem was living or on the upper storeys. Further, this witness has stated that he does not recollect whether Chhatrasal Gramin Bank is situated in front of the shop of Naseem. He did not find the board of the said bank at the time of making inspection of the spot or during investigation nor did he find Chaukidar of Bank and he also does not recollect whether picket duly remains there or not in Subhash Bazar and has denied the suggestion that their presence has not been shown because these persons had told him different story about the occurrence. He has denied that till preparation of Panchayatnama, FIR had not been written nor had it been decided by him as to who were to be made injured witnesses. No shoes etc. were recovered from Jonga. He does not recollect whether injuries of Naseem were entered in G.D. or not and whether he was sent to hospital for medical examination or not. He has denied the suggestion that Naseem was told by him to be witness against innocent and when he declined to oblige, he has been falsely implicated. At the time of arrest of Naseem nobody including his wife or children or any other members of the family came out from his house nor were they called by him. He has further stated that he had given information on R.T. set to Superintendent of Police about his departure from the police station and has denied that after the incident Naseem himself had gone to the police station and had informed about the occurrence wherein he had stated that fire shots were being made on the road, in which several persons got injured and had also told him that when he opened his shop, he also received injuries and he has also denied that Naseem was withheld at the police station stating to him that he (PW12) would go and find out about the incident and then only he would be set free or his medical examination would be conducted. He has denied the suggestion that at the instance of his officer, he had implicated him falsely because he was not prepared to give statement against innocent person.
34. On the basis of evidence gathered by the prosecution, charge has been framed against the accused respondents Raghuveer Singh, Ashutosh @ Dabbu, Pradeep Singh, Uttam Singh, Bhan Singh, Naseem, Shyam Singh, Jhandu, Sahab Singh and Ashok Singh Chandel under Section 147, 148 and 302/149 IPC on 25.1.2002 in S.T. No. 145 of 2000 (State Vs. Raghuveer and nine others) to which they pleaded not guilty and claimed to be tried.
35. In the same S.T., a separate charge has been framed against accused-respondent Ashok Singh Chandel under Section 379 and 404 IPC on 25.1.2002 to which he pleaded not guilty and claimed to be tried.
36. In connected S.T. No. 146 of 2000 (State Vs. Sahab Singh), charge has been framed against accused-respondent Sahab Singh under Section 25 of Arms Act on 25.1.2002 to which he pleaded not guilty and claimed to be tired.
37. In connected S.T. No. 147 of 2000 (State vs. Ashok Singh Chandel), charge was framed on 25.1.2002 against Ashok Singh Chandel under Section 30 of Arms Act to which he pleaded not guilty and claimed to be tried.
38. In order to prove its case, from the side of prosecution Rajeev Shukla as PW-1, Ravi Kant as PW-2, Saraswati Saran as PW-3, Makhan Singh as PW-4, Dr. P.N. Parya as PW-5, Dr. R.S. Gupta as PW-6, Dr. S.R. Gupta as PW-7, Dr. N.K. Gupta as PW-8, Constable 2060, head mohrrir, Mahesh Singh as PW-9, HC/25 Munna Lal Mishra as PW-10, Constable No. 154 Aftab Ali as PW-11, Vigilance Inspector Lal Man Sharma as PW-12, retired S.I. K.D. Pal as PW-13, Shukhram Sonkar retired Deputy S.P. as PW-14 have been examined. S.I. Sri Ram Surat Mishra has been examined by court as CW-1 and, thereafter, the prosecution evidence was closed and the statements of accused were recorded under Section 313 Cr.P.C.
39. All the accused have taken plea of false implication and have stated that entire evidence which has been gathered by the Investigating Officer was false.
40. Accused respondent- Ashok Singh Chandel has stated that he has been M.L.A. twice from Hamirpur- Mahoba parliamentary seat and has support of public of the said place and only to finish his political career, he has been falsely implicated in this case. He had got an inquiry instituted against the then S.P., Sri S.K. Mathur in respect of his being involved in corruption, therefore, in collusion with apex leaders of B.J.P. party, he has falsely implicated him. He further stated that unfortunately all the deceased in this incident were 'Bramhins' while he was 'Thakur' by caste, therefore, this incident has been given wrong colour of 'Thakur' Vs. 'Bramhins' so that 'Bramhins', who were always his supporters, should become antagonized. The State President of B.J.P., Kalraj Mishra and earlier Minister Bal Chandra Mishra and other B.J.P. leaders continued to remain present in Hamirpur to hatch conspiracy against him. The informant Rajiv Shukla and his brother deceased-Rajesh Shukla, Rakesh Shukla and other family members were involved in illegal activities and were also involved in abominable offence such as lending money on interest etc. because of which many people were harbouring enmity towards them. They had many cases of loot, dacoity, theft, murder and causing torture to the 'Dalits' and had many cases pending against them and were being treated to be mafias. They were earning huge property illegally and also owned vehicles tractors and land etc. and were in Kahoot with high police officials in amassing wealth and because of having close links with the Higher Authorities of Police they were roaming free. One case of SC/ST Act was got registered against Rajiv Shukla at P.S. Hamirpur during pendency of this case, in which he did not get himself bailed out and continued to come to court because of complicity of police which was not arresting him. The complainant side were never having any political links nor did they have any capacity/standing to be instrumental in defeating or winning any candidate. In Vidhan Sabha election of 1996 after aligning with B.S.P., he (this accused) had cast his vote in favour of B.S.P. candidate Shiv Charan. None of these family members of Rajiv Shukla had contested election nor was instrumental in helping others contest; his father and Tau were never chairman of District Board. Deceased Ved Nayak and Sri Kant were indulging in illegal activities wherein illegal weapons were being used by them and Rajiv, Rakesh etc. had formed a gang while Saraswati Saran was relative of Rajiv. Rajiv, Saraswati Saran and Ravi Kant etc. were all indulging in illegal business. Further, this respondent accused has stated that he had no connection with other accused of this case nor did he have any friendship with them nor did he have any driver or gunner nor anyone of these accused did business with him. The government gunner who used to stay with him, has not been made an accused in this case. No such incident as has been alleged to have taken place, has actually happened. The report has been got lodged at the dictation of S.P. Sri Mathur after much consultation and many reports were written and were torn. The entire investigation has been done at the behest of S.P. Sri Mathur and also all the memorandums and panchayatnama documents and other relevant papers such as site plan etc. were got prepared in collusion with administration. The injuries of the injured persons have been obtained forgedly. An X-ray report has also been obtained by his manipulation. He had enmity with Dr. S.R. Gupta due to which he has prepared false injuries and false X-ray reports. No such incident has happened in Jonga as is being alleged. No blood was found spread at the place of incident nor was there any light.
41 Further this accused had stated that it was being commonly talked about that Rajesh, Rakesh, Gudda and Vipul were going by Jonga, diesel of which had got exhausted, after which they left the Jonga in the middle of the market and these persons were doing marketing holding the finger of Vipul. Alok Purwar @ Teetu is an owner of petrol pump, who has huge influence over police and administration, he had requested them to remove their vehicle, upon it, these people told that they would remove vehicle when they would get the diesel, at this, Alok Purwar @ Teetu and his companions who were having arms with them abusingly told that let the vehicle be pushed away and this led to escalation of the dispute/quarrel. Rakesh etc. were also armed and exchange of fire happened between them which led to an stampede like situation and in the rush of people, fire shots were also made in which Sri Kant and Ved Narain received fire arm injuries while Gudda, Rakesh and Rajesh died on the spot. Further he has stated that unknown persons had reached the dead bodies of four person and one person, who also found one another dead body, which all were lying somewhere else, reached them to hospital and the weapons which the deceased were having, were also given to the police and he had also heard that in this occurrence, some local bomb was also blasted. He further stated that no rifle was snatched from Rajesh nor any such gun was looted. On 26.1.1997, 27.1.1997 and on 28.1.1997, many people were arrested by the police in District Hamirpur and the police had taken away the weapons after going to various houses and in this sequence, in his absence, his rifle and the rifle of his brother and one expired railway pass of his and also some money were taken after breaking lock of his house in absence of inmates of his house. About 18 cartridges were also taken away in the intervening night of 26/27 January, 1997 as well as in the morning on 27 January, 1997, while only 10 cartridges are shown to have been recovered and after using some of those cartridges, a false ballistic expert report has been obtained which is not admissible.
42. He has further stated that Teetu @ Alok Purwar and his brother were also arrested and the weapons which was used in this occurrence were also recovered and in ballistic expert report, it has come that they were used in the occurrence, but on the strength of money power as well as political strength and due to friendship with S.P., the complainant side was saved and the ballistic expert report was got disappeared and whatever investigation was made in that regard was not allowed to be brought before the court in this case. He has further stated that all the witnesses have stated in this case under pressure from the police and the witnesses who wanted to narrate true story, have not been produced deliberately.
43. This accused has further stated that he never remained absconding and continuously was moving application before the administration in respect of his false implication and continued to pursue proceedings before the court. He was granted bail in this case by High Court vide order dated 23.10.1998 and thereafter on 21.5.1999, the High Court had passed order for re-hearing on his bail application, after which the High Court passed order not to arrest him between 31.5.1999 to 25.7.1999 and, thereafter, Apex Court had stayed the order of bail and had directed the High Court to re-hear and pass a fresh order on his bail application. On 4.10.1999, the bail granted by the High Court was set aside which order was placed in District court Hamirpur on 7.10.1999. On 6.10.1999, he had won election of M.P. and had taken oath on 13.10.1999 in Parliament and in the meantime he remained sick and, thereafter, on 29.1.2000, he appeared in court himself. His bail was accepted after order of High Court on 23.10.1998 and prior to that on various occasions, his arrest was continued to be stayed by the High Court.
44. This accused has further stated that on 29.6.1996, he had also sent an application to the Hon'ble Governor State of U.P. complaining therein against S.P. Sri S.K. Mathur, Hamirpur levelling allegation of corruption against him and praying for inquiry to be instituted, the original of which was sent to the Hon'ble Governor while photo copy was retained by him which was being submitted with his written statement. In reference to this letter, Police Mahanideshak, U.P. had sent a letter dated 3.7.1996 to Sri J.K.P. Singh, Uppar Police Nideshak. Bhrashtachar Niwaran Sangthan, Lucknow, a copy of which was also endorsed to him which was being submitted by him with his written submission. One more letter dated 15.7.1996, in this connection was written by Kanchan Chaudhary Bhattacharya to Sri V.K.V. Nair, Police Mahanideshak, Allahabad zone Allahabad which was also received by him from his pairokar during writ petition filed in Allahabad High Court and the photo copy of the same was being filed by him with his written submission.
45. The other accused-respondent Raghuveer Singh has stated that he is resident of Village Bhauli, P.S. Kurara and has no relation with accused Ashok Chandel nor does he have any business dealings with him. He also does not have any relation with accused Naseem. He did not know nor did he recognize accused Shyam Singh prior to 2.2.1997. Shyam Singh did not do pairvi for him. He also does not have any relation with accused Uttam and Pradeep.
46. Further this accused has stated that the deceased Brijendra Pratap Singh, Advocate, R/o King Road Hamirpur and Keshav Shivhare S/o Sundar Lal (Sisolar), were partners in business of liquor in Balaji market Modaha, in which they had invested his money. The enmity had occurred between Brijendra Pratap and Keshav Shivhare due to some money dispute between them pertaining to their respective shares and due to this enmity, Keshav Shivhare had got Brijendra Pratap Singh, Advocate murdered in Kutchehary premises Hamirpur on 1.7.1995, regarding which case was filed against Shivhare and three other hired assailants. In this case, he was doing pairvi from the side of prosecution as a result of which Keshav Shivhare started having enmity towards him.
47. Further this accused has stated that in the incident of 26 January, (present incident), in those days Keshav Shivhare was in prison of District Jail, Hamirpur in respect of murder of Brijendra Pratap, Advocate. Rakesh Shukla S/o Bhisham Prasad Shukla (deceased) used to meet Keshav Shivhare in jail illegally and used to arrange food etc. for him. Both of them used to behave like real brothers. The residence of Rakesh Shukla was at a distance of 250-300 paces from the jail on the rear side. Some of the constables used to come with information of letters of Keshav Shivhare to Rakesh Shukla and Rajesh Shukla and Rajiv Shukla and Rakesh Shukla used to do pairvi from the side of Keshav Shivhare. He has further stated that in Khalepura Mohalla in District Hamirpur, there was house no. 816, current no. 12/6, on which he was in possession since 1980 and the said house was in the name of son of Virendra Kumar Awasthi namely Krishan Gopal Awasthi and Manharan Advocate, resident of Kanpur, in respect of getting this house vacated, there was enmity. Virendra Kumar Awasthi is the brother-in-law (sala) of real brother of Pratap Narain Dubey namely Vidya Sagar. Pratap Narain Dubey is related to informant Rajiv Shukla. Because of these enmities, he and his son Ashutosh @ Dabbu have been falsely implicated. He has further stated that since many years prior to this occurrence, he is suffering from aliments of diabetes, high blood pressure, eyes ailment and the heart ailment, which has diminished his physical abilities to the extent that he cannot even move about.
48. Accused-respondent Ashutosh S/o Raghuveer has stated that he is the only son of his father and because the complainant side wanted to decimate the entire family, he and his father have been falsely implicated. He has no enmity nor any party bandi with anyone and that police and Keshav Shivhare and other relatives of the informant/complainant have falsely implicated him in the present case.The informant and his witnesses do not even recognize him.
49. Accused-respondent Sahab Singh has stated that he has nothing to do with accused-respondent Ashok Chandel nor does he have any relation with any other accused of this case. He is not gunner of Ashok Chandel. No rifle or cartridges belonging to Ashok Chandel were recovered from him. He was not arrested in the house of Naseem or near about that place nor was he arrested with any other accused of this case, rather police (S.I. Harish Chandra) had made him sit at the police station without any reason after picking him from his house on 27.1.1997. He further stated that he had picked up a row with C.S.I. Harish Chandra because he used to extort money from the shopkeeper illegally in collusion with some officers which was being opposed by him and due to this he had enmity with him and was threatened that he would be falsely implicated in some big case. He has been falsely implicated at the direction of S.P. Sri S.K. Mathur and S.I. Harish Chandra is a witness in this case but deliberately he has not been produced in the present case.
50. Accused-respondent Bhan Singh has stated that informant Rajiv Shukla is real Sadhu (brother-in-law) of Vijay Kumar Pandey. His father Man Bahadur was murdered in which Vijay Singh, Digvijay Singh, both son of Manbodhan Singh, resident of village Patanpur, P.S. Vivar, he had filed vakalatnama on behalf of accused Vijay Singh and Digvijay Singh and had done pairvi. In the election of Pradhan of village Patanpur, deceased Man Bahadur Pandey and Vijay Singh had contested in which Vijay Singh accused was defeated by one vote whereafter election petition was filed in which he was counsel for Vijay Singh. Because of the said cases of Vijay Singh and Digvijay Singh, in which he was doing enthusiastically his pairvi, the son of deceased Man Bahadur namely Vijay Pandey, who was Ex. District President of B.J.P. and was influential leader of that party had incurred enmity towards him because of which he has been falsely implicated. He has no relation with accused Ashok Singh Chandel nor does he have any enmity with the family of informant. He is doing vakalat for last 13 years in District Court, Hamirpur. His house is hardly 200 yards away from Kotwali Hamirpur near Ramoniya Dharmshala. Because of above mentioned enmity, the Kotwali police had arrested him on 28.1.1997 at about 4:00 am from his house and has challaned him falsely. When he reached District Jail he saw there Naseem whom, he knew from before, although he has never gone to his house.
51. Accused-respondent Shyam Singh has stated in defense that Shiv Narain and Sanjay Shukla were murdered in Sumerpur in which informant of the case Kaushal Kishore Shukla and his son Nawal Shukla had got his name falsely lodged in F.I.R.. Sanjay Shukla was cousin brother of Nawal Shukla. Because of the said enmity, Nawal Shukla in collusion with his relative Rajiv Shukla (informant of this case), had implicated him falsely in this case. On 27.1.1997, he was sleeping in his house in 'Kasba' Sumerpur, there at about 5:00 am, in the morning, police arrested him, regarding which his brother Ram Singh had sent a telegram, certified copy of which along with receipt is being filed by him with his defense. He was in District Jail Hamirpur since 1996, hence he was not participating in any election nor would go anywhere; he was never having any friendship with accused Ashok Singh Chandel earlier.
52. Accused-respondent Uttam Singh has stated that he is resident of Village Targanv, District Kanpur. Constable Ram Sajeevan also belongs to the said village, who was posted at Kotwali Hamirpur during the days, when this incident happened, he, because of party Bandi and enmity, has got him implicated in this case falsely; nothing was recovered from him.
53. Accused-respondent Naseem though has stated that he has given his defence in extenso on a separate paper but the same is not found annexed.
54. Accused-respondent Pradeep Singh has stated in defense that his father Shiv Nath Singh was working on the post of accountant in Zila Parishad, Hamirpur. Few days prior to the incident, the earlier President of the said Zila Parishad was Brijendra Singh Umariya, who was dismissed and in his place, his father was appointed because of local politics, as a result of which he had made a complaint of corruption against Brijendra. Since then, Brijendra Singh was harbouring enmity towards him. Sri Ganga Charan Rajpoot was Member of Parliament in those days of B.J.P. party from District Hamirpur and used to visit often the informant Rajiv Shukla including during the time when this incident happened. Under the influence of Brijendra Singh Umariya and Ganga Charan Rajpoot, the informant had got him implicated falsely in this case. He never was an employee of liquor company, rather during the days of incident, was doing M.A. from Bundelkhand College, Jhansi as a day scholar. The son of Brijendra Singh Umariya, namely Ashok Singh was married to sister of 'Sadhu' (brother-in-law) of elder brother of Ganga Charan Rajpoot (M.P.) namely, Lallu Singh, because of which he has been falsely implicated, as Brijendra Singh and Ganga Charan Rajpoot were influential people.
55. Accused-respondent Jhandu has stated in defense that he never had any relation with Ashok Chandel or any other accused; he never admitted his guilt. In 1988 he was posted at P.S. Sumerpur with Dharmveer Singh Yadav as constable. Prior to that, his enmity was continuing with Hemraj S/o Badri Prasad Yadav of village Pachkhura. Constable Dharmveer Singh Yadav is related to Hemraj. On 29.3.1988, Dharmveer Singh Yadav and Hemraj had made fire upon him with an intention to kill after entering his house, a report regarding which was lodged by his brother Ram Ratan against Constable Dharmveer Singh Yadav and Hemraj. On 5.4.1988, his father had made a complaint to S.P. against Constable Dharmveer Singh Yadav whereon he was transferred to Kotwali Hamirpur. In January, 1997, he, Bal Karan Singh Yadav was posted as C.O. Sadar, Hamirpur, who was related to Constable Dharm Veer Singh Yadav to whose house he used to visit often. On the date of said incident, Dharmveer Singh Yadav was present with C.O. Bal Karan Singh, who falsely implicated him in this case because prior to this incident, he and his brother Sukhdev Singh had given an application to S.P. stating therein that they would be implicated falsely in any case. Since 1988, he is continuing to have enmity with police because of which he has been falsely implicated in the present case. Constable Dharmveer Singh Yadav is also known as Dharam Singh. Witnesses did not know him from prior to the incident.
56. It appears that common statement of the above accused -respondents have been recorded initially on 31.5.2002 & thereafter on 24.6.2002.
57. On the basis of the above evidence, the trial court after having heard both the sides, has passed the judgment of acquittal, therefore, we have to re-assess the entire evidence all over again to for opinion whether the impugned judgment requires any inteference in the light of arguments made from both the sides.
58. Rajeev Kumar Shukla, who is injured witness as well as informant of this case has stated in examination-in-chief as PW-1 that five years ago on 26.1.1997 at about 7:00 pm he along with his servant Lallan were going to the market and when they reached near Naseem's gun shop in Subhash market, from the side of market his brother Rakesh Shukla (deceased) was coming in Jonga with his son Chandan, Gudda and his son (PW-1's son) Vipul aged about three years, Ved Nayak and Sri Kant Pandey, who had gone to Sunrahi Gali Mohalla to the house of his elder sister Asha and when the said Jonga reached near shop of Naseem, they stopped the vehicle to talk a little and when PW-1 reached near them, right then from the shop of Naseem, Ashok Singh Chandel (A-2) with double barrel gun, Sahab Singh (A-3) with rifle, Shyam Singh (A-4) with single barrel gun, Rukku (A-6) driver of Ashok Singh Chandel with double barren gun, Jhandu (A-5) with double barrel gun, Naseem (A-1) with double barrel gun and gunner (A-7) of Ashok Singh Chandel (Ex. M.L.A.) came there with common object to kill and started firing upon Rakesh Shukla and the persons sitting in his vehicle. Immediately, thereafter from the side of market, after hearing firing sound, Raghuveer Singh (A-8) armed with rife, Uttam Singh (A-11) armed with D.B.B.L. gun, Pradeep Singh(A-10) with S.B.B.L. gun, Dabbu Singh(A-9) with D.B.B.L. gun and Bhan Singh(A-12) with D.B.B.L. gun came there with others and started making indiscriminate firing upon the persons sitting in Jonga, which led to panic in the market and the market was closed. In this firing, the persons sitting in Jonga received injuries and, thereafter, all the accused fled towards market. By that firing, Rakesh Shukla, Gudda, Chandan, Vipul, Sri Kant, Ved Narayan had received injuries. Ravikant Pandey, Bhagwati Saran Nayak, Sri Prakash Nayak, Anil, Rajesh Shukla and many others of the said Mohalla reached there. Chandan and Vipul, who had received minor injuries, were sent home and remaining persons were being taken to hospital. When they reached near house of Parma Pandit, right then party of Ashok Chandel, Raghuveer etc. meaning thereby Ashok Chandel, Raghuveer Singh, Naseem, Sahab Singh, Jhandu, Shyam Singh, Pradeep Singh, Uttam Singh, Bhan Singh, Rukku, gunner and two unknown persons and Sahab Singh reached there in a Sumo and Zeep and soon after getting down from it, Ashok Chandel exhorted that no one of this family should be left alive and all be killed and, thereafter, all the accused started making indiscriminate firing upon Jonga and upon them. In this firing, injuries were received by Rajesh Shukla, PW-1 himself, Ravi Kant Pandey, Hardayal. While making fire, the accused Ashok Chandel has snatched rifle from the hands of the Rajesh Shukla, which belonged to his father. At that time, Rajesh Shukla was alive. In that firing, Rajesh Shukla, Rakesh Shukla, Gudda, Ved Nayak and Sri Kant died but hoping that they could be alive, they were taken to hospital where they were pronounced dead. After the firing and before the informant side reached the hospital, the accused had fled towards the market. Further he has stated that in hospital, he was medically examined and was given treatment as in both thighs and calf, he had received fire arm injuries. Apart from him, in this occurrence, Ravi Kant Pandey, Vipul, Chandan and Hardayal also got injured, who were also medically examined. At the place of incident, there was street light and also light of houses and in that light he had seen the occurrence. After his medical examination Saraswati Sharan Dwivedi had come in the hospital, whom he had dictated the F.I.R. in hospital which was read out to him (PW-1), whereafter he put his signature thereon and the same was handed over at the Kotwali and the case was registered. He has proved Ext. Ka-1 as the report which was dictated by him to Saraswati Sharan Dwivedi. The said report was given to Deevan Ji, who had provided him a carbon copy of the F.I.R. after obtaining his signature. After having lodged the report, he came to hospital where panchayatnama of the deceased was conducted. He had also gone to the place of occurrence by Jonga, where inspector was present whom he gave full narration of the occurrence and got the spot inspected, the said Jonga was taken into possession by the police there only at the place of incident. Further it is stated by this witness that he had old political rivalry with Ashok Singh Chandel because his (PW1's) family was opposing him in the election. Ashok Singh Chandel used to contest election of M.L.A. In 1996, in election of Vidhan Sabha, he had been defeated very badly because of opposition from the side of informant. Prior to that in 1995 a murder had taken place of the President of Degree College in Sumerpur, of Shiv Narayan Mishra and Ajay Shukla, in broad day light, in which accused Shyam Singh and others were also named accused. In that occurrence, his brother Rakesh Shukla and deceased Srikant Pandey's brother Sri Rama Kant Pandey, Advocate had done pairvi from the side of deceased persons. Ashok Singh Chandel and Raghuveer Singh etc. had done pairvi from the side of accused Shyam Singh etc. and because of this, enmity was there between two sides. Further it is stated that accused Naseem was Manager of the Islamia Inter College Hamirpur, while President of Vidya Mandir, Hamirpur (Inter college) was a Bramhan and in both the institutions, there was a competition going on. It is also stated that accused Ashok Singh Chandel is resident of Hamirpur city and belongs to village Tikrauli, where he has a house; Jhandu is resident of Pachkurakhurd and lives with Ashok Singh Chandel, Sahab Singh is resident of Kaloli Jaat and used to accompany Ashok Singh Chandel as his private gunner; Shyam Singh is resident of Bharua Sumerpur and he also used to accompany Ashok Chandel; Pradeep resides in Viveknagar, Uttam Singh lives at Hathi Darwaja, Hamirpur, Bhan Singh is resident of Katara Hamirpur under the jurisdiction of P.S. Kurara but is living in Hamirpur after constructing a house. The accused Naseem lives in Subhash market and has a shop of licensed guns and is also President of Islamia Inter College, Hamirpur. Raghuveer Singh, who resides near Hathi Darwaja and has a house there, is a contractor of liquor and morang while accused Dabbu Singh is his son, who also lives with him there. Further it is stated that Rukku, who is driver of the Ashok Singh Chandel is absconding, while Ashok Singh Chandel and Raghuveer Singh are close friends of each other and are common business partners too. This witness has further stated that the case property brought in a bundle, which contained white Kurta, Paijama Katthai Sadri, Chaddhi (under garment) were identified by him as clothes of deceased Rajesh and were marked as material Ext. 1 to 4 respectively and the clothes of Deceased Rakesh which included white Kurta, paijama, Black Sadri, Kathai garment and a bead of rudraksha and identified them and which have marked as material Ext. 5 to 10 respectively. The belongings of deceased Gudda i.e. green sweater and shirt, baniyan and under garment were identified and marked as material Ext. 11 to 15. The belongings of deceased Ved Nayak i.e. jacket, sweater, pant, under garment and shirt were identified by him and marked as Ext. 17 to 20. The belongings of deceased Srikant i.e. coat pant, sweater, shirt, baniyan were identified by him and were marked as material Ext. 22 to 26. On the date of occurrence, the above named deceased were wearing these clothes.
59. In cross-examination, this witness has stated that his whole family lives together, although Rajesh Shukla has constructed a separate house leaving one house in between their houses. The house in which he is living in his ancestral house in which he is living since long. All of them did not have separate business, rather were doing it jointly.
60. The Subhas market is an area of crowded Abadi, where gun shop of Naseem is located. The said shop must be about 100 to 150 paces away from Lalla Bose Tiraha. The said Tiraha would lie to the West of this shop and to the north of this Tiraha is a road which goes towards North which is called King road which leads to District hospital and also goes towards G.I.C. School. After proceeding for about 50-60 paces on the King Road, one would come on the road which leads to G.I.C. If one goes from Lalla Bose Tiraha via King Road to the Kotwali following G.I.C. Road the same would lie at a distance of about 100-125 paces. Government hospital is located at a distance of about 40-50 paces from Kotwali. On one side of road is hospital and on the other side is Kotwali at a distance of about 40 to 50 paces. On going to Kotwali from Lalla Bose Tiraha, the hospital falls before reaching Tiraha.
61. Thereafter, this witness has been cross-examined further at length in respect to the location of Swami Prasad Marg. He further stated that from the shop of Naseem, his house is located in Ramedi at a distance of about 80-90 paces but not one km. To the East of the shop of Naseem, there is a road going East to West up to his house and on either side of it there is Abadi, which does not have has not one storeyed, rather has two storeyed houses. There are few shops on the lower floor. There are lot of residential houses near the house of Naseem and also shops of general merchant. It is wrong to say that in front of the shop of Naseem, there is road which is seven feet wide metal road, rather the same is 12 to 15 feet wide. Outside the shop of Naseem, there is Chabutara, which is length wise East to West and adjacent to the shop of Naseem, there is a passage which goes to his house. There are many shops outside the house of Naseem. These shops are in the house of Naseem apart from the shop of Naseem himself. Out of these shops, in one shop, there is typing school. First would lie the shop of Naseem and, thereafter, the passage which goes inside and then the passage which goes to three other shops and there is one passage between these three shops also which goes to his house. By means of saying shop of Naseem, he meant his shops is of fire arms. Further he has stated that after the shop of Bakar, there is one lane which is situated to the West of his shop, which is 6-7 feet wide which goes up to Betwa river and to the West of this lane is located the house of Parma Pandit. In front of the house of Naseem, there is road which goes to the North and adjacent to the said road is Pakka house of Nirbhay Singh, which is two storeyed, who is an Advocate and to the West of House of Nirbhay Singh, is located shop of Baldev @ Gunda tailor and thereafter is house of Ismail. Chhatrapal Gramin Bank and one shop is also located there, which are located in this house, which is double storeyed.
62. He has further stated that he had mentioned the number of Jonga in the F.I.R. or not, he does not recollect. The said Jonga belonged to his relative namely Pratap Narain Dubey (Ex. M.L.A.). He further stated that if the number of said Jonga is not written in F.I.R., he may have forgotten to mention the same due to being in difficulty. The Name of owner of Jonga was not mentioned because that used to remain with his brother and its registration was in the name of above mentioned Dubey. DL must be in the name of his Bhaiya. He has also D.L. When the said vehicle was taken in possession, whether the police had seen its document or not he does not recollect. He had seen the holes in the said Jonga of firing, when the same was handed over to the police but how much police force was there, he does not recollect, then stated that he had seen only one hole and rest of the holes he did not pay attention to, on the body of Jonga, although he stated it to be wrong that there was no other hole except the hole in mirror. The said Jonga was standing outside the court premises which was not in his supurdgi and was brought by him. The same was given in Supurdgi of its owner Dubey Ji.
63. He had not obtained any order from court regarding taking the said Jonga from the supurdgar into his custody and it has been brought before the court in the same condition in which it was lying with supurdgar. The said Jonga is in his custody today. He has further stated that it is wrong to say that it does not have any mark of firing on its body and that he had taken the said vehicle in his custody with a view to making hole in its body. The said Jonga was parked by him in front of the house of Parma Pandit after being brought from hospital and had gone to the place of incident by the same vehicle. He had not gone by the said vehicle. From the place of incident up to hospital, he had taken the Jonga after being driven. From hospital to the house of Parma Pandit, the said Jonga was driven by Lallan because he (PW-1) had injury in his leg and was having pain in it. Jonga was taken in custody by the inspector. He has stated that he does not recollect whether all this was stated by him to the Investigating Officer or not. After the incident was over, within eight to ten minutes thereafter he had started for the hospital from the place of incident and had first shown there the deceased and had also taken dressing in the hospital. He was examined by the doctor after having seen the deceased. He had been examined by the doctor for 10 to 15 minutes after his having reached the hospital. After his medical examination was over he remained there for about 15 minutes because he had got prepared F.I.R. and he was admitted by the doctor. Hardayal had also come to that hospital but subsequently he came to know that he was also admitted and when he came to hospital, at that time, DW-1 was in the hospital. Hardayal was brought there by police. When he was getting himself medically examined, he did not find any police personnel in the hospital.
64. He met Saraswati Sharan Dwivedi, scribe of the F.I.R., in the hospital for the first time where he had come, subsequently, many people had reached there. Prior to his leaving for the police station, Saraswati Sharan Dwivedi had come there, when he (PW-1) was coming out after getting himself medically examined and he saw that Saraswati Sharan Dwivedi was present there, whom he told his condition for about two to four minutes and, thereafter, some body came with a paper, there was lot of crowd, hence he could not tell the name of that person. The signature, which he had made on Ext. Ka-1 was made at the police station itself. At the police station, he made his signature only when he had received copy of the F.I.R.
65. He had alleged in the report that he had come to the hospital after leaving the deceased in the hospital.
66. About 15-20 minutes or 30 minutes after registration of the F.I.R., his statement was recorded by the I.O. where he remained for about 10-15 minutes. He had given report to the Diwan Ji and when the same had been written, the Inspector met him whom he described the entire incident. From the police station, he had come to hospital with his companions and from there by 'jonga', he had reached the place of incident. The Inspector had given him direction that he should reach the place of incident although he had asked him at the police station as to where he (I.O.) had to go. The Inspector had not accompanied him to the hospital. He had told the Inspector the place where the occurrence had taken place in the premises of the police station itself. After proceeding from the police station towards the hospital which was hardly 25-30 paces from there, he had taken 'jonga' and reached the place of incident, in reaching there, he would have taken hardly 2-5minutes.
67. Since thereafter, the Inspector had recorded his statement within 15-20 minutes. He had disclosed to him the names of all the accused although he was not able to remember the address of the accused because he was in difficulty. He does not recollect as to whether he had written in F.IR. as to which accused were having which weapon in his hand or not because at that time he was in difficulty. He had also written in the report that in front of house of Parma Pandit, Raghuveer Sigh, Ashok Chandel with companions had again come there and in that part of written report by the words 'anya', he meant that there were unknown persons and the persons of the party of Raghuveer Singh. He had not mentioned in written report 'do aparichit vyakti' but he had stated to the I.O. as well as C.B.C.I.D. that there were "do aparichit anya vyakti', if the same was not written by them, then he could not tell its reason. In the statement given earlier before the Court (D.A.A.), he had stated "do aparichit vyakti'.
68. This witness has further stated that in the incident which happened in front of the house of Parma Pandit, he had written the names of all the accused in his written report regarding which it is mentioned that Saraswati had written names of all the accused. Thereafter he, after having read the written report stated that he was saying so because the upper part of the said report was connected with the remaining part. For the subsequent incident, he had not written names of all (accused) separately and had written that they came with companions, but to the I.O. and C.B.C.I.D., he had stated names of all the accused separately and, thereafter, in the statement given before court also, the names of all the accused were taken separately who had caused the incident. He has further stated that he had not separately mentioned in the written report as to which accused was having which weapon separately in respect of the first incident and the second incident, although, in his statement made before Inspector, he had given clear statement in respect of the accused having separate weapons in their hands and if the same was not recorded by him, he could not tell its reason and the same was also disclosed by him to C.B.C.I.D. also but if even C.B.C.I.D. had not recorded the same, he fails to understand its reason. He has also told the I.O. the place where he had received the fire arm injury but if the same was not recorded by him, he fails to understand its reason. He had written about the fact that he had received injury in the second incident but he had not mentioned in the report about the fact as to at which place and whether in first incident or second incident, he had received injuries.
69. He had mentioned that he had received injury in the incident which happened near the house of Parma Pandit as he had received fire arm injury in his legs by which he had fallen and in this regard both the I.O. as well as C.B.C.I.D. were apprised.
70. Further this witness has stated that he had not gone taking along with him Vipul and Chandan but they were sent home with some other persons who might have been an acquaintance of the same 'mohalla' whose name he does not remember. By that time about 8 to 10 person had come at the place of incident. He had written in the F.I.R. that lot of people of the 'mohalla' had reached there with whom they (Vipul and Chandan) were reached home, thereafter, he stated that he had written 'we all' but actually he had reached them (Vipul and Chandan) with residents of the 'mohalla'. He had stated to I.O. that in the first incident fire was made upon his brothers but he does not recollect whether he had stated or not before him that in the first incident fire was made upon him also and thereafter, again stated that he had stated to him that the fire was made upon his brothers as well as on 'jonga' vehicle but he does not know as to how C.B.C.I.D. has written 'ham logo par' fire was made. Regarding the incident which happened near the house of Parma Pandit, he told to the I.O. that fires were made upon him and that included his brothers also. He had written in the report that after giving effect to the first informant, the accused had fled and, thereafter came back. He had written that during first incident panic had occurred there but had not written that the accused fled towards market. There was light on the place of incident regarding which he probably had not mentioned in the F.I.R. although it is very natural that light was there and because of that, he had not made mention of it.
71. A query was made by Court as to what wrong fact was mentioned in the chik F.I.R. in respect of which this witness has stated that in written report, he had got it written that Rajesh Bhaiya had received fire arm injuries and he fell down. He (P.W.1) had received injuries in his legs and he also fell down, although in chik F.I.R., there is no mention made of his brother having fallen on the spot and he having received injuries in his legs, regarding which he came to know but he had not read the chik F.I.R. till now.
72. In para no. 87 of the statement of this witness, the question was made by the counsel of the defence in respect of the text which was omitted from being written in the chik F.I.R. from original report and it was suggested that in-fact the original written report has been changed by the prosecution. On comparison being made of written report (Exhibit Ka-1) with the chik F.I.R., it was found that in text 'mauke par gir pade tatha mere pairo me goliyan lagi' which was found written in the written report (Exhibit Ka-11) which was missing from being mentioned in chik F.I.R. (Exhibit Ka-20) and probably because of this, defence wants to create doubt in the mind of the Court that the written report was not genuine one because had that been genuine, the same text would have been found written in the chik F.I.R. as well. We will discuss this point at the relevant place at length, however suffice it to mention here that it may happen while copying the text from one piece of paper into another that due to over sight, this kind of mistake could take place and on that sole ground, the entire written report should be discarded, does not appear to be reasonable view.
73. Further this witness has stated that in chick F.I.R. with the applicant Rajiv Kumar Shukla 'da' is not written but it is wrong to say that the original written report given at the police station by him did not bear any signature and also it is wrong to say that the written report by which chik F.I.R. was prepared, on that, signatures were not existing.
74. In copy of G.D. no. 52 time 21:10 hours dated 26.1.1997 of P.S. Kotwali, Hamirpur following text is written:-
"is samaye Rajiv Kumar ...... thana aakar ek kita tehrir hindi likhit Sri Saraswati ..... thana Hamirpur va khud tarikh imroja....." is written. He has not mentioned in the written report about himself having been medically examined in hospital although it is mentioned by him that he was injured but if the same is not written there, he could not tell its reason.
75. The site-plan was made at his instance, he has disclosed to the I.O. the place where he had received the injury and also the place where Ravi Kant was standing and where he received the injury which has been shown by 'D' in the site-plan. The other persons who had come there from his 'mohalla', the place where they were standing was disclosed to I.O. but if he has not shown the same, he could not tell its reason. When he had seen the place where the incident happened, there were Rakesh, Sri Kant and Ved also because of which, he had written in the F.I.R. that they were all together. When they had departed from home, they had told that they were going for inviting the sister and when they were returning, they met him at the place of incident and were coming towards their house.
76. Lallan was their servant since 5-6 years prior to the incident who used to look after the house hold affairs as well as drive the tractor and also used to look after agricultural work. He would always accompany him wherever he goes. He used to live both in house as well as at the tube-well and some-times, he used to go home. He does not recollect whether in the intervening night of 25-26/11/1997, he was sleeping in their house or not but he was with him on the date of incident. He is resident of Meerapur which is about six km. On the date of incident, he had to give order for purchasing of sweets; there were 2-3 sweet-shops on Lalla Bose Tiraha but before he could reach the said shop, this incident happened on the way. He was going on foot straight from house to the market with a 'jhola' (bag) and might have taken five to seven minutes in reaching at the place of occurrence from his house. After having traveled for about 150-200 paces from home, he would reach near shop of Naseem where he met 'jonga' and 'jonga' was stopped after seeing him. The said 'jonga' had been stopped in front of the shop of Naseem where there was 'chabootra' little towards 'bazar'. By the side of 'chabootra', the road is going and 'jonga' had halted in the middle of road and as soon as he reached in front of 'jonga', 'jonga' was stopped but he does not recollect whether at that time, he was on the western patri of the said road or not but the face of 'Jonga' was towards the east and to the eastern side from there would lie his house. When he was talking with the persons in 'jonga', he was on the non driving side. On the driving side, there were some people standing. His servant, Lallan also reached near him. He had stated before I.O. about him and Lallan being there standing before 'jonga' and the said place is shown by 'ka' and 'kha' in the site-plan but the same has been shown by I.O. little astray. I.O. was shown by him the place where he was standing and the place where Lallan was standing and also the place where they were in front of jonga. I.O. was told that jonga was in the middle of the road and not on the southern patri of the road although I.O. had shown the said jonga to be standing towards southern patri of the road but whey he did so, he could not tell its reason. Jonga had halted in front of the gun-shop of Naseem where he (P.W.1) had reached to talk with the occupants of jonga but he could not hold any talks although in F.I.R., it was mentioned by him that he started talking after stopping the vehicle and had stated about it also to the I.O. and the C.B.C.I.D. He clarified that soon after his reaching there before anything could be said, incident happened. As soon as he reached there, he focussed his vision on 'chabootra' which was adjacent to the gun shop of Naseem when fire was made. He had written in report 'Naseem Bandook wale ke ghar se nikal ke fire karne lage' because he had seen so. He further clarified that by his saying that when he focused his vision on 'chabutra', he meant that when he saw that accused were there on 'chabutra' and they started firing from there. All the seven accused had come out from the shop i.e. Ashok, Sahab, Shyam, Rukku, Naseem, Jhandu and Gunner were seen by him and also stated that the shop of Naseem was located in his house only. In the statement given to the I.O. as well as C.B.C.I.D., it was rightly mentioned by him that the accused came out of house but he does not recollect whether he had used the word the house or not, but if it is mentioned that he came out of house it should be treated to be correctly written. After all the seven accused came out, they spread out on the 'chabutra' from east to west and soon after that they started firing but he could not tell as to who was in east or who was in the west but the firing was made for about one to two or two to four minutes from 'chabutra' and soon after fire was also started from rear side where also it happened for two to four minutes but he could not tell as to how many rounds of fires were made. Further he has stated that between the house of Parma Pandit and Bakar, there is a lane and from that lane, the shop of Naseem is situated at a distance of about 30-35 paces. In the first occurrence, the place where the accused were standing after coming from the west and making fire, the said place was shown to I.O. by him. Further he has stated that by multiple round marks, is shown the place in site-plan, which is alleged to be rear side, from where the accused had made fires but the I.O. has not shown the distance from which the said fires were made, this was stated by this witness after having seen the site-plan.
77. At the time when the first firing was going on in the first incident, the inmates of the vehicle remained inside only as none got down; at the time of said firing, Vednayak and Sri Kant were sitting on the rear seats which were facing each-other. Behind the driver seat was sitting Ved Nayak and behind the seat of non-driver, was sitting Sri Kant. When the firing had ended and the accused had fled from there, some persons of 'mohalla' had come there (this was in respect of first firing episode). Ravi Kant came after the first round of firing which had happened about two to three minutes thereafter. He was not accompanied by Hardayal. Before Ravi Kant reached there, P.W.1 could not sit in the 'Jonga'. Again he stated that after the first incident, he did not sit in 'Jonga'. Ravi Kant, Rajesh, Anil etc. of the said 'mohalla' had come there. Ravi Kant stayed there for some-time but could not tell the exact time as there was panic. Rajesh Bhaiya did not sit in the 'Jonga' before dispatching Chandan and Vipul for home and, thereafter, Rajesh Bhaiya had told that they should leave for hospital for which they all sat in the vehicle.
78. Further he has stated that after the first incident was over, whereafter they started for the hospital after reversing the vehicle and as soon as they turned the car near the house of Parma Pandit, the second incident of firing happened. At the time of first incident of firing, he had in mind a hope that the victims might be alive and their lives could be saved because of which Rakesh, Gudda, Ved and Sri Kant were taken to hospital but he came to know in hospital that they had died. In this very hope, Rajesh Bhaiya soon after the first incident, turned around his vehicle near the house of Parma Pandit to leave for hospital and at that very moment the accused came there and started making indiscriminate firing. The second firing was made at a distance of 20-25 paces from the place of first firing by accused, Raghuveer and others. The accused were making firing from west to eastern side. In the first incident, from the place where Raghuveer and others had made fires, about 5 to 6 paces towards west of that, 'jonga' was standing at the time of second incident. In the second incident the face of 'jonga' was towards west i.e. towards the market. He could not tell as to how many fires were made in the second incident as he had not counted them although, there was indiscriminate firing and it was becoming difficult for saving one's life. He denied the suggestion that about 100-150 round of fires were made. He further stated that he had shown the place to the I.O. from where the accused were making fires but if the same was not shown by him, he could not tell its reasons. After the first incident, he had indicated to the I.O. the route by which the accused had gone but if the same is not shown in the site-plan, he could not tell its reasons. Rajesh had not received injuries sitting inside the vehicle, when the vehicle was being turned and soon when he saw the accused coming in that direction, the Rakesh had thrown open- the door of jonga and got down from it and right then the fire was started to be made and at that time he (P.W.1) was outside 'jonga' i.e. behind the driver's position meaning thereby that he was not in front of driver's seat. As soon as Rajesh had got down from the driver seat, he had received the injury of fire arm. He had shown that place to the I.O. where Rajesh was standing when he received the injury and if the same was not shown in the site-plan, he could not tell its reasons.
79. After the first incident, Jonga was driven by Rajesh Bhaiya and when the second incident had happened, he (PW-1) had driven Jonga. Rajesh had not received fire arm injuries while sitting inside the vehicle, rather when he turned the vehicle after seeing the accused coming, Rajesh pushed and opened the door of Jonga and came down from the vehicle, right then firing started. At that time, PW-1 was standing outside Jonga on the road towards right of Jonga behind the driver seat. The Rajesh had got down from the driver seat and was standing on the ground when he received injuries. He had shown the place where Rajesh was standing when he received fire injury, to the I.O. but if the same was not shown in the site plan, he could not tell its reason. Further this witness has stated that after the second incident, Rajesh Bhaiya was placed in the vehicle, PW-1 had also received injury but he had driven the vehicle to hospital. What weapons were in the hands of accused during second incident, he does not recollect and also does not recollect whether the same were mentioned in the F.I.R. or not. When the rifle was snatched away from Rajesh, then he was alive but he does not recollect whether he had stated to I.O. that at the time of snatching rifle, Rajesh was alive.
80. Further this witness has stated that accused Ashok Chandel had exhorted that no one of the family should be left alive, this he had done at the time of second occurrence. After seeing the F.I.R., he stated that it was written in it that Ashok Chandel came there again with his companions and stated that they should not be allow to escape. He stated it to be wrong that in the F.I.R. it was not written that Ashok Chandel had exhorted. I.O. was told that Ashok Chandel had exhorted but if he did not write the same, he could not tell its reason. If the I.O. had written that all had exhorted, the same was wrong, as he had not stated so. He has further stated that snatching of rifle by Ashok Chandel was not specifically mentioned by him in the F.I.R. When he proceeded after the second incident towards hospital, he reached hospital within three to four minutes and at that time, there was hope that all could survive, although in F.I.R., it is written that Rakesh Kumar Shukla, Gudda, Rajesh Kumar had died on the spot while Sri Kant Pandey and Ved Nayak were believed to be alive, when they reached. He had still hope that probably all could be alive. He had stated to I.O. that Rakesh, Gudda and Rajesh had died and believing Sri Kant and Ved Nayak to be alive, all were taken to hospital and further stated it to be wrong that he was changing his statement that in post mortem, none was found to have received post mortem injuries.
81. He had written in the report that accused had come in their vehicles to give effect to the second occurrence, although in his written report "dubara apni gaadiyon" has not been written nor numbers of those vehicles are written. He further stated that at that time, indiscriminate firing was going on and he was grieving and under such circumstances who would pay attention to the number of vehicles. When rifle was being snatched even then firing was going on by others and that place was shown to the I.O. where the rifle was snatched but if the same is not shown in the site plan he cold not tell its reason. When his brother had fallen on the ground, thereafter, his rifle was snatched. To I.O. he has not stated that rifle was snatched inside Jonga and if the same is shown inside the Jonga, he could not tell its reason. Further he has stated that he had not stated to I.O. that Vipul and Chandan were outside Jonga but they had received injuries inside the Jonga, if the I.O. has shown them in the site plan to have received injury outside the Jonga, the same is wrong.
82. This witness has stated it to be wrong that Alok Kumar Porwal @ Teetu in his own vehicle and Rajesh, Rakesh and Ambuj by Jonga, were going Subhash market and in respect to parking of vehicle, abusing took place between two sides and fires were made towards Rajesh and Rakesh and due to feeling angered, they (Rajesh and Rakesh) started loading their weapons and in the meantime Teetu and his companions started firing, lot of crowd assembled there and some unknown persons in the crowd also started making fire and in this rush of people Ved Nayak, Sri Kant, Rajesh, Rakesh and Ambuj received fire arm injuries and also some passers-by also became injured by fires made by Rajesh and Rakesh.
83. This witness has further stated that he does not know whether Ram Babu Tiwari was living in police line Hamirpur and that he was working on the post of official gunner. In this case, final report has been submitted against the gunner but he does not know his name and no portest petition has been moved against the said F.R. by him.
84. He has further stated that the other persons referred as "Anya", their description was not given and he could not tell any reason as to why the same was written. The jeep of the accused had come at the place of incident twice, first time when it came and was standing there, its place was shown to the I.O.; whether when the same came during second incident, its place was shown to the I.O. or not, he does not recollect. He also does not know whether during investigation, any jeep was found by the Police or C.B.C.I.D. or not, although at the time of arrest of the accused whether any jeep was recovered, he does not know. In front of the house of Parma Pandit, towards South the road takes curve but he does not recollect whether the said curve exists or not. In the first occurrence, those persons who had come afterwards and had made fires from behind Jonga, in that firing, whether cartridges had fallen there or not, he did not pay attention.
85. In respect of the light at the place of incident, this witness has stated that there was an electricity pole at the place of occurrence in front of the door of Kallu S/o Shekh Munni, whereon there was rod/tube light and also a bulb at the height of about 20 feet. He further stated that when he lodged the report till then he had no knowledge as to who had informed his brother Rajesh about the incident and about this he does not know till now even. Anil Kumar, Bhagwati Saran, Sri Prakash Nayak and Ravi Kant were given information about the occurrence by whom, he did not know till he lodged the report and on his own stated that these persons had reached the place of incident with Rajesh only. About this fact he could not know till his statement was recorded by I.O. and C.B.C.I.D. He does not recollect that even prior to the occurrence, at about 7:00 p.m., he had gone to purchase articles from the market and on his own, this witness has stated that he often used to go to the market at the same time but does not recollect any special date. On the date of incident, after having given medicines to his father, he had gone to the market and had reached the place of incident at about 7:30 pm. On the way Rakesh Bhaiya met him in Jonga unexpectedly as it was not pre-determined that they would meet him there. At the time of first firing, he was at a distance of about quarter of Jonga towards non driving seat, outside the Jonga, when Rajesh Bhaiya was on the driver seat. The accused, who were on the Chabutra of Naseem, when they started going, he (PW-1) was about two paces behind Jonga in northern side and when firing happened, he back-tracked two paces from there. When the accused went away from there, till then he continued to defend himself from the firing and after getting down from the Chabutra, the accused fled towards market and the vehicle of accused who had come subsequently was standing there. The accused, who had come subsequently had mixed up, hence he could not tell as to who were sitting in vehicle and who had fled on foot and on his own he further stated that he had got busy in taking care of his brother and children. When the accused had fled from Chabutra towards the market, they had fled from the rear side of the Jonga i.e. from the side of driver seat and were about 8 to 10 paces away from him. Panic had occurred on the spot and when first firing started, no person of the Mohalla was seen nearby. Prior to the firing, which took place in front of house of Parma Pandit, when Rajesh had reversed his Jonga, till then PW-1 Lallan, Ravi Kant, Bhagwati, Sri Prakash and Anil, none of them was sitting in Jonga. After the first firing, Ved Nayak and Sri Kant had rolled on their seats and half of their bodies was beneath the seat while the other half was on the seat itself. Rakesh and Gudda also had rolled on the seat but he does not recollect as to in which direction the head of Ambuj was. Rajesh was resting against steering wheel. Rajesh Bhaiya, PW-1 and others had shifted Rajesh Bhaiya to vacate the driving seat and in that process he had rolled, he does not recollect.
86. When Rajesh had reversed his vehicle and had taken turn, the above persons were sitting in the vehicle and some people were giving him helping hand but their names he does not recollect. These people were there when second time firing started but had concealed themselves to save their life. He could not tell whether these people had seen the occurrence or not but they comprised Bhagwati Saran, Anil, Sri Kant and Ravi Kant Pandey and with them some others had also come of the mohalla, but he could not tell their name. He did not pay attention when the vehicles of the accused came to a halt prior to the second occurrence, their engines were in starting position or were closed, he does not recollect, their head lights were on. When these vehicles halted, PW-1 was at that place where second occurrence of firing was happening. Bhagwati Saran, Sri Prakash, Ravi Kant, Anil and others were also nearby Jonga but he did not pay attention as to where they were standing. The second firing was made by the accused from the road and during this none of accused came traveling up to Chabutra of Naseem. Even after the second firing was over, no one from amongst the accused came at the chabutra of Naseem, rather they fled towards the market; none of them had fled on foot, rather had fled in vehicles.
87. The number of unknown accused was two, which might have been told to the Investigating Officer or CBCID if the same was asked but he does not recollect about it. The word "Anya" in written relating to unknown assailants. The unknown assailants were involved in both the occurrence but in examination-in-chief, the said word "Anya Aparchit Apradhi" could not come because the same was not asked by the counsel. During first firing the accused who had fled towards the shop of Naseem, had made firing from the Chabutra and those who had come from the side of market, they had made fire from the West. Those who had come from the side of market, had fled in the same direction back to the market. In the first incident, unknown persons had not come out from the shop of Naseem but were already there on the Chabutra standing there and on its own this witness stated that when again accused came from the side of market, then he came to know that these accused were also companions of the other accused. The unknown accused had not come with any of the groups during first incident but kept standing on Chabutra but in the second incident they had come with the accused .He had not written in the report that these unknown accused were standing there already at Chabutra and had not come with any accused because he was mentally perturbed and about it, he might have stated to I.O. and C.B.C.I.D. also, if the same would have been asked. What weapons were being carried by unknown accused, was not mentioned in the report because he stated on his own that they were not having any weapon but he also stated that he had not mentioned in the F.I.R. that these unknown persons were un-armed nor did he give statement to I.O or C.B.C.I.D. about this fact and he has denied that his brother got injured in a quarrel which happened with unknown persons. No injury was caused by fires made by official gunner to Lallan, Ravi Kant and Bhagwati Saran, Anil and Sri Prakash nor to PW-1. He does not know the name of gunner of Ashok Chandel, he had seen him with his own eyes that he had made fires upon complainant side, this statement was given by him in the court of Special Judge D.A.A. and had also stated in court that they had received injuries by official gunner.
88. By that time, he lodged the report, he had come to know that Hardayal had got injured in this incident and about this he had learnt when he had accompanied the Investigating Officer to help him make spot inspection, who was a passer by and was coming from the side of market. About this he came to know only after the spot inspection but does not recollect as to who had disclosed about it as he had never met Hardayal nor had he met him till now; he had got injured in second incident in front of the house of Parma Pandit regarding which people had told him whose name, he does not recollect. The place where he had got injured, was not seen by him but lot of blood was lying on the place of occurrence which was in front of the shop of Naseem on the road and also in front of the house of Parma Pandit and the road and this blood pertained to injured persons as well as the deceased.
89. He does not recollect whether Bhagwati Sharan, Ravi Kant, Sri Prakash and Anil had accompanied him to the hospital or not nor does he recollect whether they had accompanied him at the time of inspection by I.O., of the place of incident, in which he had helped the Investigating Officer. He does not know as to at what time in the night, the power was cut but on his own he stated that when he reached hospital, at that time, power was cut but it was restored about half an hour thereafter and he denied the suggestion that he was concealing about the fact of the power cut deliberately.
90. He has not written in the F.I.R. that Rajesh Bhaiya had reversed his vehicle and turned to take it to the hospital but the same might have been told by him to the I.O. and C.B.C.I.D.. Jonga was driven by him to hospital, was not written by him in his report because of perturbance. He has further stated that he does not recollect whether in F.I.R. he had written about knowing accused Jhandu or not but in the F.I.R. this fact is not mentioned. He does not recollect whether he had stated about this fact to the I.O. and C.B.C.I.D. or not. Jhandu Singh was arrested by the police after the incident, he does not know nor the Kotwali police had called him after his arrest for identification. It is wrong to say that after taking said accused on remand, he was got identified by him and it is also wrong that he was stating about knowing him from before on being tutored. On his own he stated that he had seen the said accused in Hamirpur with Ashok Chandel many times. Prior to the incident, he had not seen Jhandu going inside the shop of Naseem. This accused was standing on the Chabutra which was situated in the front of shop of Naseem. He had started making fire from Chabutra because accused had spread over Chabutara. He had seen Jhandu Singh from a distance of about eight to ten paces, who were towards South of him and, thereafter, he said that he was on the Chabutra to the left of him.
91. This witness has further stated that in this occurrence Jhandu remained with other accused and was standing by the side of the accused Dabbu Singh at a distance of about one pace. He has stated it to be wrong that by the time site plan was being prepared, the name of Jhandu Singh had not come into light, because of which the distance where Jhandu was present from the place of occurrence could not be shown at the time of first incident and the second incident. Jhandu Singh was not wearing dhata at the time of occurrence. He was having DBBL gun of 12 bore during both the occurrences regarding which the scribe of FIR was told, if the same is not written, he could not tell its reason. It was also disclosed to Investigating Officer and CB-CID by him that Jhandu Singh was having the said weapon but in case the same is not recorded, he could not tell its reason and he does not know whether the gun which was used by Jhandu Singh in the occurrence, was recovered or not.
92. He does not know the name of the doctor who had conducted his medical examination and denied that the name of that doctor was Nand Kishore Gupta which he is concealing deliberately. He does not know Dr. Nand Kishore Gupta nor does he know that six years prior to the occurrence, he was posted in Hamirpur. Whenever, he fell sick, he used to go hospital and whoever doctor was available, used to be consulted. Dr. Nand Kishore Gupta was visiting his house since prior to the occurrence. He also denied the knowledge that after exerting influence of Kalraj Mishra, his transfer was got stayed. Further, he has stated that after getting himself examined by doctor, he never went back to the doctor nor did he talk to him and has denied that in collusion with Dr. Nand Kishore Gupta, he had got a forged medical report prepared of his own as well as other injured.
93. Further, he has stated that he does not know that in 1988 there was any constable by the name of Dharam Singh Yadav deployed at police Station Sumerpur and he also does not know that prior to 1988 accused Jhandu Singh had any enmity with Hem Raj son of Badri Yadav resident of village Pachkurh and on 29.3.1998 Dharam Singh Yadav had made fire upon Hem Raj inside the house of Jhandu Singh with an intention to kill and that brother of Jhandu Singh namely Ram Ratan had lodged report of that incident against the said constable Hem Raj at P.S. Sunerpur and that on 5.4.1998 father of Jhandu Singh had given an application to Superintendent of Police, after consideration of which the said constable was transferred to Kotwali Hamirpur and that the said constable was relative of S.O. Balkaran Singh Yadav. He has also shown ignorance that Jhandu Singh was having enmity with the police since 1988. He has stated it to be wrong that the police personnel have incorporated the name of accused Jhandu Singh in chik FIR and also denied that he was giving statement against Jhandu Singh at the instance of police. He has no knowledge that Jhandu Singh had moved any application before the Superintendent of Police prior to the occurrence to the effect that police wanted to implicate him falsely due to enmity and has also denied that he had stated Jhandu Singh to be a companion of Ashok Singh Chandel on being tutored by the police and that he did not have any role in this occurrence. He has also denied that he was not present nor his witnesses were present on the spot when the occurrence happened.
94. He has further stated that at the time of inspection made by the Investigating Officer of the place of incident, he does not recollect whether bulb or tube light which were there, were taken in possession or not by the police and has denied that no such source of light was available there.
95. He has denied that after consulting the advocates, he has improved upon the version given by him in the FIR by making statement under section 161 Cr.P.C. & to C.B.C.I.D. The vehicle by which accused Sahab Singh was moving, was stated by him to be Tata Sumo at the time when second occurrence happened. Although in Tehrir he has not specified Tata Sumo but has written the vehicle but he denied that he had not seen Tata Sumo and clarified that he could not remember to write in the Tehrir that the said vehicle was Tata Sumo. In the Tehrir, he has not mentioned type of vehicle nor their registration nor had stated about them to Investigating Officer or C.B.C.I.D. and on his own he stated that he had not paid attention to the registration and the colour of the vehicle. The place of incident is in the mid of the city but he cannot tell whether the same is located at equidistance from Kotwali and his house.
96. He has further stated that unknown persons who were stated in the F.I.R. to have participated in the occurrence could be traced-out or not, he does not know but he was not called by the police for identification of any other accused nor any other case is pending against any such accused.
97. A question was put to this witness that he had stated that after having committed the occurrence, they (accused) fled towards the market, then why he dared to go by the same passage by turning his Jonga, to which he responded that the hospital was near from the said route and he had in mind hope that injured could have survived if given the treatment earliest. He did not choose the route to go to hospital via Vidya Mandir route through lane of Swami Prasad because the route by which he had gone to the hospital, was shorter.
98. This witness has further stated that he had knowledge about the home town and parentage of the accused Sahab Singh but the same were not mentioned in the Tehrir because he was perturbed. He had never any quarrel with Sahab Singh earlier nor with his family. He had no knowledge since prior to the occurrence that Sahab Singh was a private gunner of Ashok Singh Chandel but he did not write in the Tehrir and stated that whatever he found easy to write, he had written. He does not recollect whether this fact was stated to Investigating Officer and CBCID or not as he was mentally perturbed. He had further stated that at the time when firing was being made, he was stunned and was in a quandary what to do and what not to do and in such circumstance he did not make effort to save his children and nephew during the firing. Before anyone would make an effort to pick up the rifle of Rajesh Shukla which had fallen, accused Ashok Singh Chandel had picked up the same, hence he could not pick it up and also stated that at that time, at how much distance he was at from Rajesh Shukla, he does not recollect and on his own further stated that he was behind Jonga. He also does not recollect whether he had stated to Investigating Officer Lal Man Verma that he had written Tehrir in 'Qasba'. This witness was read out the statement under section161 Cr.P.C. to the effect that the Tehrir was got written by Saraswati Saran Dwivedi, resident of Ramedi Taraum Qasba, rather he had stated the same to have been written in hospital, but thereafter this witness stated that now he does not remember as to what actually was stated by him before the Investigating Officer.
99. He could not tell whether Sahab Singh fled from there by Tata Sumo or some other vehicle but all the accused fled by vehicle but who was sitting in which vehicle, he could not tell. Further, he had stated that the persons who came after the first occurrence, out of them only Rajesh Shukla was having a rifle and none else had any weapon nor did they make any fire. He has also stated that during incident no fire was made from the side of the complainant. Apart from, Hardayal, Ravi Kant had also got injured among the persons from public and he does not know any other passer by who might have got injured. He has denied that he had made Sahab Singh accused in this case under pressure from S.P. Hamirpur.
100. Further, this witness has stated that he does not know whether there remains posted Chaukidar in Subhas Market or not but he had not seen any Chaukidar there during the incident. At the time of both the incidents no one came from nearby shop or house and on his own he stated that panic gripped entire area. He does not recollect whether any passer-by had passed through that way till they left for hospital. Stampede had taken place soon after the first fire was made and the shutters of the shop were downed. He has further stated that in earlier statement given before Special Judge (D.D.A.) he had stated that in firing Sri Kant and Ved Prakash had received injuries and thereafter stampede had followed in the market and the Bazaar was closed. He does not know whether police remained deployed at Lallan Bose Tirha or Super Market.
101. He does not know as to since when Naseem Ahmad is Manager of Islamia College and after many days of the occurrence, he came to know about it that he was Manager of the said college nor does he know any earlier Manager of the said college. PW1 himself had never been on the Managing Committee of Vidya Mandir Inter College, Hamirpur, but if his brother was on the said committee, he did not know nor did he know whether his father had ever been on the Committee. He also does not know other office bearers of the Management of the said college and on his own he stated that they were Brahmin. There was rivalry between the Management Committees of Islamia Inter College and its mother body or not, he does not know. He also does know whether litigation was going on between the two Management Committees. He also denied the knowledge that accused Naseem was Manager of Islamia College since 1980 and also showed ignorance about Hafiz Abdul Rashid being Secretary of its mother body in 1952. He also does not know whether Islamia Inter College is a minority institution having special status granted by the Government or not. He also showed ignorance that Ram Jeewan Tripathi was the Principal of the said college for long. He also does not know whether accused Ashok Singh Chandel had made complaint against the admissions made in the college by Naseem and on that basis the Government had restrained appointments in the said college and that the matter was pending in the High Court. He has also denied that as usual accused Naseem was going on his roof to pay Namaz on the date of incident and has also stated it to be wrong that he had opened his shop to know about the well being of his grandson (Nati) who was got admitted in Kanpur and was trying to connect the telephone and in the meantime fires were made on the road at a distance, hearing which, Naseem had hurriedly closed the door of his shop and in the darkness somebody from the side of the said shop had made fire. He also denied that there was breakdown of electricity supply on the date of incident because of which it was not possible to identify anyone and also denied that several pallets hit shop of Naseem as well as Almirah and wall inside the shop. He has further stated it to be wrong that when Naseem declined to give statement as a witness against innocent person at the instance of PW1, he has implicated him(Naseem) as accused in this case. He has further stated that when he had gone to lodge report, at that time Naseem was not at the police station and has stated it to be wrong that he (PW1) was not at the place of incident nor had he seen occurrence.
102. Ravi Kant Pandey (PW2) has stated in examination in chief that on 26.01.1997 at about 7.30 p.m. he was at his home and heard sound of firing then he came on the road and saw that from the eastern side Rajesh Shukla, Sri Prakash, Bhagwati Saran, Anil and many people of the Mohalla were coming running, out of them Rajesh Shukla told him that Rakesh Shukla had been fired upon and there after he along with them rushed towards market and reached near the gun shop of Naseem where there was light of electricity and saw that Rajesh Shukla and Lallan were taking out Chandan and Vipul in injured condition from Jonga and they were sent home. Inside Jonga Rakesh Shukla, Gudda, Sri Kant and Ved Nayak were injured. Pushing a little Rakesh Shukla and Gudda from the seat, Rajesh Shukla stated that they were to be taken to hospital. Rajesh Shukla had reversed the Jonga and thereafter turned it to the lane of Padma Pandit to go towards hospital, right then one Tata Sumo and one Jeep came there from the side of the market. Ashok Singh Chandel was having DBBL gun, Sahab Singh was having Rifle, Jhandu Arakh was having DBBL gun, Gunner Raghuveer Singh was having Rifle, Dabbu Singh was having DDBL gun, Pradeep Singh was having SBBL gun, Uttam was having DBBL gun, Bhan Singh was having DBBL gun, Shyam Singh was having SBBL gun, Naseem was having DBBL gun and two others came out from the vehicles and soon after descending from it, started making indiscriminating firing and out of them Ashok Singh Chandel was exhorting that today members of Shukla family should not be left alive. Pursuant to this exhortation, all started making indiscriminate firing and as soon as Rajesh Shukla came out of Jonga with Riflle, he received gun shot wound and fell down. In this firing PW-2 and Rajeev Shukla (PW1) also received injuries. He (PW2) was hit in his left leg in the lower portion. Ashok Singh Chandel came forward and snatched away the rifle from the hands of Rakesh Shukla and then thereafter they fled towards Bazar in their respective vehicle. When the said rifle was snatched, Rajesh Shukla was in critical condition. Hurriedly, Rajesh Shukla was placed in the Jonga and Rajeev Shukla (PW1) told him (PW2) that he should go home as he (PW1) was going to hospital. Thereafter, Rajeev Shukla had sent him home because Chandan and Vipul were sent home in injured condition and he wanted him to look after them and to ensure whether they had reached home safely. Thereafter, Rajeev Shukla went to hospital by Jonga along with other injured persons. About one and half or two hours thereafter he (PW2) came to the hospital along with Chandan and Vipul where he, Chandan and Vipul were medically examined. He had seen the firing being done in the light of electricity as there was one pole of electricity having a rod (tube-light).
103. In cross-examination, this witness has stated that his statement was taken by the Investigating Officer next day of the occurrence i.e. on 27.1.1997 in hospital and had obtained his signature thereon.
104. He has further stated that there is distance of about one and a half furlong between his house and the house of Rajeev Shukla (PW1) and in between there are number of other houses. His own house is situated in Ramedi Majhkhor. The house of Rajeev Shukla is located to the east of his house and from his house Vidya Mandir Tirha is in the northern side at a distance of about 100-150 paces on Swami Pandit Marg and on that Marg there is no Tirha. Shop of Naseem is located 100-150 yards away to the west of his house. His house is situated in lane, which is not thickly populated. If one goes from the said lane to the main road, the distance would be about 50 yards.
105. He had heard the sound of indiscriminate firing which took place for about two minutes and he could not understand immediately but later on he had understood that it was firing. At that time, he was busy in taking care of cattle outside the house at about 7 to 7.30 p.m. When he reached on the road from the said lane, he first of all saw Rajesh Shukla running from the side of market in the eastern direction. He had heard sound of firing but when he reached on the road then he was informed by Rajesh Shukla. In his statement given to Investigating Officer, he does not recollect whether he had told him that he had received information about firing being made and later on he stated that the Investigating Officer has rightly recorded in his statement that he received the information about firing. He had come on the road after hearing sound of fire and not upon any body informed him. When Rajesh Shukla was seen running, he could not tell whether other persons of the said Mohalla were also with him or not. The persons who were with him belonged to Ramedi Tarus but he did not pay attention whether there was anyone from Ramedy Majhkhor was there or not. Rajesh Shukla immediately told him that Rakesh Shukla had been shot and after this information having been given they all proceeded towards the market. No one was having any weapon among them except Rajesh Shukla who has a rifle. He had come on the road after hearing the gun fires, whether he told this to Investigating Officer or not, he does not recollect. But subsequently he stated that he had told the Investigating Officer that he had heard sound of fires at his house and if the same was not written by him, he could not tell its reason. He had also told him that Rajesh Shukla had told him that Rakesh Shukla was shot and if the same was not written, he could not tell its reason. He had also stated to the Investigating Officer that they ran towards the market but if the same is not written by him, he could not tell its reason and he had also told the Investigating Officer that he had gone to Subhas Market. He had not noticed while running towards market whether other persons were also running on the road by his side or not, after hearing first sound of fire and when he met Rajesh Shukla on the way, till then sound of firing was coming and as soon as he reached on the road firing had stopped. He may have taken hardly half a minute in coming out his house and meeting Rajesh Shukla.
106. He has further stated that when he reached there, he saw Jonga was standing in which Rajeev Shukla and Lallan were there in injured condition and none else. Shops were closed except of Naseem but even that was got shut-down soon after reaching there. When he reached near the shop of Naseem, there was light of electricity regarding which he had stated to Investigating Officer also but if he has not written the same, he could not tell its reason.
107. He has further stated that when he reached the place of incident, he found Rakesh Shukla in injured condition on the driver's seat. He had seen the injured inside Jonga and had also stated to Investigating Officer about this but he has not recorded the same, he could not tell its reason. When he reached there, he saw that Rajeev Shukla and Lallan were taking out Chandan and Vipul who were injured, from the Jonga, this was stated by him to Investigating Officer, but if the same has not been recorded, he could not tell its reason. Further he has stated that when he reached there, he found Chandan was outside the Jonga, Vipul was being taken out of it and at that time when he focussed his attention towards Jonga, he found Chandan was standing out of Jonga, Rajeev Shukla was also standing out of the vehicle and Vipul was being taken out. He could not tell the name of that person of Mohalla with whom Chandan and Vipul were sent to home and on his own he has further stated that they were sent home by some known persons of the Mohalla but again stated that whether he had taken them on foot or by vehicle, he cannot tell, the person with whom they were sent, could be recognized by him. After they were sent, Rajesh Shukla was dragged a little from the seat and after having reversed the Jonga, they prepared to proceed towards hospital. There, he (PW2) and Rajeev Shukla were standing side by side, at that time Rajesh Shukla told that they were to be taken to hospital. The same was told by Rajesh Shukla, about it, he had also stated before Investigating Officer or not, he does not recollect. The vehicle was driven by Rajesh Shukla and at that time Rakesh Shukla, Gudda, Sri Kant, Ved were sitting inside and no one else. Soon after the accused had come there, at the time when the vehicle was reversed, at that time Rajeev Shukla PW2, Sri Prakash, Lallan and Ved were there near the vehicle but subsequently stated that Ved was not there. When the vehicle took turn, at how much distance he was there, he does not remember.
108. He has further stated that he has seen Lalla Bose Trisection. When 'jonga' was being reversed, at that time, he may have been about 100-150 paces away from it. When in this process, the jonga was stopped, he was standing at the right side of him and by his side, Rajeev Shukla was also standing. At how much distance from Lala Bose Trisection the said vehicle had stopped, he could not tell. Sumo and Jeep had arrived there, was stated by him to the I.O. and if the same was not written, he could not tell its reason. After getting down from the vehicle, the accused came forward and had not taken his position behind their vehicle. The place where they had parked their vehicle, from there moving forward about 10 to 15 feet and then started 7 to 8 feet, the accused had started firing. The accused were on the northern side of the road on the move. By that time, the movement of people stopped on the said route but he could not tell as to how many fires were made but it was indiscriminate firing. In that firing, Chandan and Mukul had not received injuries. However, it was argued by the prosecution side that these two persons received injuries in the first incident. So far all the assailants in prosecution of their common object, had started firing upon Rakesh Shukla, Rajesh Shukla, Gudda, brother of Srikant and Ved Prakash. Rakesh, Gudda, Srikant, Ved, Rajesh were taken in 'jonga' by Rajiv Shukla to hospital and whether there was anyone else in the said vehicle or not, he does not know because he had returned home. He has further stated that Ashok Chandel had exhorted at the time of occurrence that no one from the family of 'Shukla' shall be left alive regarding which he has stated to the I.O. and if it is not written in his statement under 161 Cr.P.C., he does not know its reason. He had also stated to the I.O. that fire was made upon Rajesh while getting down from 'jonga' and if the same is not written by him, he does not know its reason. Rajesh had got fire injury when he was outside 'jonga'. He was not on the steering wheel at that time. He was on the staring wheel of the vehicle till he turned and reversed his vehicle. In this occurrence, he also had got fire injury and, thereafter, Rakesh Kumar Shukla, Rajesh Shukla, Gudda, Sri Kant Pandey and Ved Prakash were taken in 'jonga' to the Government Hospital where doctor declared them dead. This statement was given by him to I.O. The fire injury had hit his leg regarding which statement was also given by I.O. if the same is not written, he could not tell its reason.
109. When he reached home, about 1 ½ - 2 hours thereafter, he went to hospital where he was first medically examined and then Vipul and Chandan were examined. They all had gone to the hospital by vehicle of relative of Rajiv Shukla. In the meantime, he did not meet any police officer nor any police officer reached home of Rajiv. Father of Rajiv had told him that when some vehicle comes there, they would be sent to the hospital. After getting medical examination done of the three of them, they had come home. There was light on the pole, was told to the I.O. and if the same is not written, he cannot tell its reason. He knew Dabbu @ Asutosh since always but could not tell the exact period. Raghuveer does business of liquor whom he knows for the last 10-12 years. Accused, Shyam is also known to him for the last 10-15 years and accused Uttam and Pradeep are known to him for last 7-8 years. He does not recollect whether he had told the I.O. or not that when he had heard the sound of fire, he was at home and that he had not received information about the occurrence at his home. When he came on the road then he got the news. He had accepted the fact that he stated to the I.O. that he himself along with Rajesh Kumar Shukla, Bhagwati Sharan, Sri Prakash, Anil and other residents of Mohalla had gone to Shubhash Bazar and it was a correct statement. Rajesh had told him only that fire was made at Rakesh but nothing was told about Srikant or others and about this, he had also stated to the I.O. of C.B.C.I.D. and if the same is not found written, he cannot tell its reason. The place where Rajiv and he himself had received fire arm injury, was not told to the I.O. because the site-plan was not made by him in his presence.
110. Jonga was with Rajesh for last two years; Rajesh had rifle in his hand belonging to his father which could be recognized by him subsequently. He further stated prior to his reaching the shop of Naseem, he recognized that the said rifle was of his father. He also stated that he used to see that rifle in the house of father of Rajesh because his father used to go to the field with the aforesaid rifle. Man Singh, Advocate was also seen by him with Ashok Chandel when he used to come to 'kutcheri'. This witness has further stated that for the last ten years, he was doing cultivation work. His fields are located to the east of his house at a distance of about three km. where he some-times stayed in the night. He does not have common land with Rajiv Shukla although they had helped each other when required. On the day of incident, he had not gone to the 'haar' because he goes there only some-times; his cattle are also not placed there. Accused, Jhandu was not seen by him initially at the time of first occurrence although he was present during the second occurrence. When he, (P.W.2) had reached there, he was not present at the place of incident at the time of first occurrence. He had seen Jhandu making fires upon the complainant side along with all other accused but he cannot tell the date and time when for the first time, he had seen Jhandu although he had seen him many times with Ashok Chandel and about this, he has also stated to I.O. and could not tell its reason if the same is not mentioned by him. At the time when the firing was being made at the place of incident, he had seen Jhandu there and at that time, he was 20 to 25 paces to the west of him and he (P.W.3) was in horrified state. All this was stated to the I.O. but why he has not recorded the same, he cannot tell its reason. He does not know about the fact that there was any enmity between police and Jhandu and has denied that Jhandu was being seen for the first time in Court and there only, he was got identified and also denied that he was taking his name for being involved in this incident at the instance of police. He further stated that beside the shop of Naseem, there is shop of Radha Krishna Gupta whose son was kidnapped in year 1990, in case relating to that kidnapping whether P.W.-2's brother, Rama Kant Pandey, Advocate was witness, he does not know and also does not know that the said case was still going on. Rama Kant does not have any sitting with Radha Krishna. He has seen the F.I.R. lodged by Rajiv but has not read the same with attention although he knows the name of accused-persons. The accused were seen in court after the day of incident when his statement was recorded in Court. Further he stated that by indiscriminate firing, he meant that all of a sudden accused got down from the vehicle and started back to back firing which continued for about 3 to 4 minutes and when he had proceeded from home, he had heard about 10 to 12 fires but still he could not tell as to how many total fires were made in this indiscriminate firing. He did not pay attention whether empty cartridges/ pallets etc. were found there on the spot.
111. He has further stated that he has not gathered information as to who had given information of this occurrence to Rajesh. He could not know about it even till now nor he inquired about it. Deceased, Ved and Srikant were friends who used to go with each-other some-times. Ramakant was not in the house on the date of incident but was in the city. He has further stated that he could not recollect as to which side, he was having his face. Rajesh Shukla had received fire injury although he (P.W.2) had concealed himself behind 'jonga'. Further he has stated that he (P.W.-2) used to do cultivation work with Srikant. The said tractor used to be driven by Srikant and some-times by him, his driver was resident of Hamirpur city. On the date of incident, the driver had gone on his fields after leaving the tractor at home about 5:30 p.m. to 6:00 p.m. When he had gone for medical treatment, he had not gone via the route where place of incident is located rather had gone there through the police line road and had returned by the same route. When he had gone to the hospital, he had not seen the dead bodies because he had not gone there. He had seen the dead body of Sri Kant next day in the morning, although he had returned home in the night himself after medical examination of the children. He had not inspected the wounds of Sri Kant. He has denied that on the date of incident, he was on his har to look after his crop and tube-well etc. and that he was called by police and Rajiv in dera to make him witness in this case.
112. P.W.3, Saraswati Sharan has stated in examination-in-chief that on 26.01.1997 at about 8:30 p.m., he came near the bus stop of his factory in Sumerpur and from there, he went to the Government Hospital, Hamirpur and there, he prepared a report of firing incident. Rajiv Shukla had dictated him the report which is Exhibit Ka-1 which bears his signature, whatever had been directed by the Rajiv Shukla was written and was read out to him and, thereafter, he had put his signatures on that.
113. In cross-examination, this witness has stated that Anil Sharan is his real brother whom he met on 26.01.1997 before going to his factory; Shiv Kumar Pandey is his brother-in-law (behnoi). He did not meet brother of Shiv Kumar Pandey i.e. Vijay Kumar Pandey on 26.01.1997 nor did he meet Shiv Kumar. Vijay Kumar Pandey and Rajiv Shukla are 'sadhus'(husband of wife of each-other). He has further stated that his factory is in Bharua, District Hamirpur. He goes to his factory in morning at about 7:00 a.m. by U.P.S.R.T.C. bus but on the date of incident, factory was closed although, on the said date, he had gone to factory at 7:30 a.m. because flag was to be hoisted at about 8:00 a.m. One could reach there within 15 to 20 minutes. He became free at about 6:00 p.m. and, thereafter, he came on the road and got the bus at about 7:30 p.m. after having waited for about 1:30 hours. On the said date, there was no employee in the said factory. From bus stop, his house is located at about half km. and from bus stand, he went straight to the hospital regarding which he has not stated to I.O. because he did not ask about it. After having pointed that 'mritko ko lekar aspatal aaya hun', he stated that the same was written at one go in the night at dictation of the informant, Rajiv Kumar Shukla. He has denied that he had written report at the dictation of S.P., Sri Mathur and also denied that the report was written many times and was torn many times and also denied that because of being a member of the gang of Rajiv Shukla, he was giving false statement.
114. From the statement of this witness mentioned above, it is apparent that he is scribe of the F.I.R. and has clearly proved written report, Exhibit Ka-1 which was dictated to him by Rajiv Shukla (first informant), nothing in his cross-examination has emerged which would make that F.I.R. to be suspicious.
115. P.W.4, S.I. M.T. 33 V Vahini, P.A.C., Malkhan Singh has stated that he was posted at police line, Hamirpur on the date of incident, he had received technical inspection report of the vehicle U.M.F.-5394, the said report was prepared by him after making inspection of the vehicle thereafter, he prepared the report which is Exhibit Ka-2. The condition of the engine was alright and in the back side of the body, there was a hole; condition of steering was alright, rim was alright. The same was in running condition; there was hole in the front screen and on the right side. There was also one hole on the back side of the driver seat. On the left side above rear wheel, on either side of the windows in the screens, there were holes in the driver's mirror and was also broken; since he did not have key of the vehicle, he could not start the same; the said vehicle was standing outside the court.
116. In cross-examination, this witness has stated that he had not noted the measurement/ diameter of the hole found in the wind screen, he did not find any chunk of glass inside the vehicle nor did he find any part of the remaining wind screen and that if the same had been broken earlier, the same would be clearly reflected from the report. The said mirror or wind screen might have been broken about two hours prior to the inspection or even 10-15 days prior to the inspection but it would be called newly broken. There were two holes on the bonnet of the vehicle also but they were for use of monogram and nut-bolt; at the time of his inspection, the nut of radiator and both the front-lights were found broken.
117. From the statement of this witness, it is apparent that the jonga which was found to have been fired upon in the incident, some wholes were found in the wind screen as well as in seats which are indicative of the fact that the same may have been caused because of fires having been made upon it.
118. P.W.5, Dr. P.N. Parya has stated that on 27.01.1997, he was posted as Surgeon in District Hospital, Hamirpur and on that day, he had conducted post-mortem of deceased, Rakesh Shukla, S/o Bhishma Prasad Shukla who was brought and identified by Constable Naseemuddin and found following ante-mortem injuries on his person:-
(i) Fire-arm wound of entry over left supraclavicular fossa placed 6 cm. above and lateral to left sternoclavicular joint in the area of 3 cm. X ½ cm. X depth penetrating to neck, direction inward, outward towards the right supraclavicular fossa, margins of wound is inverted. No blackening and tattooing is present.
(ii) Fire arm wound of exit over the right neck and right supraclavicular fossa in the area of 15 cm.x 8 cm.x muscle deep extending from lower margin of angle mandible to tip of right shoulder, margins are everted. Exit is related to injury no.1.
(iii) Fire arm wound of entry of size 2 cm. X 1 cm. X penetrating to the left arm placed over the medial aspect of left arm and situated 5 cm. below to the tip of left shoulder. Margins are inverted. Wound are directed inward and outward. No tattooing and blackening is present.
(iv) Fire arm wound of exit over the lateral aspect of left arm in the area of 9 cm. X 4 cm. X muscle deep placed 10 cm. below to top of left shoulder, margins are everted. This exit is related to injury no.3.
(v) Fire arm wound of entry of size 1.5 cm. x 1 cm. x penetrating to right elbow over the anterior aspect of right elbow joint, margins are inverted, no tattooing and blackening is seen, direction of wound is inward and posterior and outward.
(vi) Fire arm wound of exit of size 8 cm. x 4 cm. over the posterior aspect of right lower arm placed 3 cm. above to the olecranon process of right elbow, margins are everted.
(vii) Multiple fire arm wound of entry of size about .5 cm. x .5 cm x skin deep over the fore-head, nose, left-eye orbit and left side of cheek in the area of 20.2 cm. x 11 cm x nasal bone is fractured.
(viii) Multiple fire arm wound of entry placed in the area of 11 cm. x 6 cm. over the anterior aspect of left shoulder and upper left chest, size of wounds are about .5 cm. x .5 cm. x skin deep.
(ix) Fire arm wound of entry of size 1 cm x .5 cm x muscle deep over the proximal phalynx of right ring finger at the lateral aspect.
(x) Multiple fire arm wound of entry over the right lower back and right hip in the area of 21.0 cm x 9.0 cm., size of wounds are about .5 cm x .5 cm. x skin to muscle deep. No tattooing and blackening is seen.
(xi) Fire arm wound of entry four in number of size .5 cm. x .5 cm. x skin deep over the lateral aspect of right thigh placed in the area of 5 cm. x 2 cm, no tattooing and blackening is seen. Cause of death was found to be shock and hemorrhage as a result of ante-mortem injuries and has opined that these injuries might have been received by him within 12-18 hours of conducting the post-mortem and has proved the said post-mortem prepared in his hand-writing which is Exhibit Ka-3.
On the same day, he at 11:30 a.m. conducted the post-mortem of deceased, Rajesh Shukla S/o Sri Bhishma Prasad Shukla who was brought by constable, Santosh Rawat and following injuries were found on his person:-
(i) Fire arm wound of entry over the left side of chest in third inter-coastal space in the area of .5 cm. x .5 cm x chest cavity deep placed 8 cm. medial and upward to left nipple direction of wound is inward and posteriorly. Margin inverted. No tattooing is seen.
(ii) Fire arm wound of entry of size .5 cm x .5 cm. x muscle deep over the anterior aspect of left shoulder placed 7 cm. below to top of left shoulder; margin inverted. No tattooing is seen.
(iii) Multiple fire arm wound of entry over the posterior aspect of right hip, right thigh and right upper 2/3 of leg in the area of 65 cm. x 12 cm. Size of wound is .5 cm. x .5 cm. x skin to muscle deep. No tattooing and blackening is seen.
(iv) Fire arm wound of entry two in number over the anterior aspect of the left knee joint in the area of 5 cm. x 5 cm. x skin deep. No tattooing is seen.
(v) Multiple fire arm wound of entry of size .5 cm. x .5 cm. x skin to muscle deep in the area of 10 cm. x 3 cm. over the left umbilical and left hypo-drondrian region.
(vi) Abrasion of size 1 cm. x 1 cm. over the left parietal region of skull placed 5 cm. above to left eye-brow.
(vii) Contusion of size 13 cm. x 11 cm. over the right umbilical right iliac fossa of abdomen.
Cause of death is recorded to be shock and hemorrhage as a result of ante-mortem injuries. He has proved the report, Exhibit Ka-4 in his hand-writing.
On the same day at 12:30 p.m., he conducted post-mortem of Sri Kant Pandey S/o Gaya Prasad and found following ante-mortem injuries:
(i) Fire arm wound of entry over the right side of face placed 2.5 cm. lateral to right ala of nose in the area of 2 cm. x 2 cm. x brain deep direction of wound is inward, posterior and outward towards the nape of neck. Margin of wound is inverted. No tattooing and blackening is seen.
(ii) Fire arm wound of exit over the nape of neck and right occipital region of skull in the area of 8 cm. x 4 cm., brain matter is coming out though the wound. Margin of wound is everted.
119. He found that the cause of death is head-injury, shock and hemorrhage as a result of ante-mortem injuries and has proved post-mortem report in his hand-writing as Exhibit Ka-5.
120. The duration of death is stated to be about 12-18 hours and has also stated that one big sealed bundle was opened in court out of which, two sealed envelopes were received which were opened, out of them, in one envelope, sealed pallets were found which were 16 in number relating to deceased Rakesh; in other envelope, one pallet was found in sealed condition relating to deceased Rajesh and they were marked material Exhibits 27 to 43. This witness also stated that in the envelope which contained the pallets belonging to Rajesh, out of it, one pallet had gone missing because of hole in the said envelope and he also opined collectively that all the three deceased i.e. Rakesh, Rajesh and Sri Kant might have died 26.01.1997 in the evening at about 7:30 p.m. by the fire arm injuries.
121. In cross-examination, this witness has stated that injury nos. 1, 3 and 5 of Rakesh are communicating with injury nos. 2, 4 and 6 respectively. Injury nos. 1 and 3 were found on the left part of the body while injury no.5 would have been caused when assaulted from the left side of the body. Injury nos. 7 and 8 were possible to be caused from left side. If fist is closed or steering is held, injury no. 9 was possible to be received from the left side. Injury no. 10 was possible to be received by a person who was sitting on a chair and when hip part was exposed from said chair. By the lower part, he means part which was in contact with seat and he further clarified that the whole buttock is called hip which was placed on the seat when one would sit. Area of 21 cm. x 9 cm. in respect of injury no.9, most of the part would have been on the seat, meaning thereby that the same must have been in contact with the seat, however, injury no. 10 was not possible to be received when one is sitting on the chair as the hip portion remains in contact with chair. Injury no. 11 is in the area of 5 cm. x 2 cm. Injury No. 11 which is parietal injury was possible to have been caused from distance of 12 ft. because there was no tattooing and blackening therein.
122. The injury nos. 2, 4 and 5 of Rajesh whould have been caused to him from the left side which were pallet injuries and were possible to have been caused from distance of 100 ft. or even from 70-80 ft. because it is a despersed area which is 65 x 12 cm. Further he has stated that his injuries would have been caused from the front rather the assailant would have been in the left and right side of him.
123. Injury nos. 1 and 2 found on the body of Sri Kant would have been caused to him by firing from the west but these injuries were possible to be caused by rifle as they were 2cm x 2 cm. entry wound. Sri Kant would have died on the spot forthwith. Rakesh also would have died on the spot by injury no.1 or within one or two minutes thereafter. All the injuries of Rajesh and Srikant are ante-mortem and not post-mortem. The injury nos. 1, 3, 5, 7, 8 and 9 of Rakesh were possible to have been caused by one fire rather the same would take at least two to three fires.
124. Shri RS Gupta, child specialist, District hospital, Hamirpur has stated as PW 6 that on 27/01/1997 he conducted post-mortem of Ambuj @ Gudda son of Rakesh Shukla aged about 13 years, resident of the Ramedi Taraus, who was brought by constable 599 Prakash Chandra and constable 102 Rameshwar Dayal of Kotwali, Hamirpur and found upon his person the following antemortem injuries:
i) Firearm wound in area of 19 cm x 8 cm. on the left side and the right side of skull extending from eyebrow to occipital region. All the bones of the skull crushed, brain matter comes out.
ii) Firearm wound of entry 1.5 cm. x 1.5 cm. x cavity deep, on the right side of the chest 8 cm. below and medial to right nipple. No blackening and tattooing. Margins were inverted.
iii) Firearm wound of entry 1 cm. x 1 cm. x cavity deep on the midline 6 cm. below supra sternal notch.
iv) Firearm wound of entry on the left side of Epigastrium, 0.5 cms x 0.5 x skin deep.
v) Abraded contusion 3 cm. x 2 cm. on the front of right knee.
125. In the opinion of the Doctor the cause of death was shock and haemorrhage as a result of ante mortem injuries. During post-mortem two pallets, out of which one was found in chest cavity and the other in abdominal cavity, were recovered, which were sealed. This witness has proved his report as Exhibit Ka 6.
126. On the same day at 2.30 p.m. he conducted post-mortem of deceased Ved Prakash son of Bhagwati Sharan Nayak aged about 21 years, resident of Ramedi Hamirpur and had found following ante mortem injuries on his body:
i) firearm wound of entry 2.5 cm. x 2 cm. x penetrating to cheek bones, direction of wound - upwards and outward. Margins were inverted. No blackening and tattooing, on the left mandibular.
ii) Firearm wound of exit 10 cm. x 8 cm. on the left side of face, 2 cm. away from the outer angle of left eye, maxillae and mandible bone fractured. Loss of tissue, margin everted.
iii) Abraded contusion 4 cm. x 2 cm. on the right side of neck, 8 cm. below ear lobule. maxillae and mandible left side fractured.
The cause of death was opined to be shock and haemorrhage as a result of ante mortem injuries and he proved his report Exhibit Ka 1.
127. He further stated that the death of both the deceased would have taken place 12 to 18 hours prior to the post-mortem and both the deceased would have received the injuries by fire arm weapons. The dead body of Ambuj @ Gudda was sent to headquarters on 27/01/1997 at 03.55 a.m. as per Form No. 13 and the same was received at the headquarters at 7.30 a.m.. The injury no. 2, 3 and 4 of Ambuj @ Gudda were entry wounds but there was no exit wound on his body and during internal examination no bullet was found in the body, however 2 pallets were found. Injury no. 2, 3 and 4 could have been received if the fire was made from a distance. Since dispersal was quite a lot, hence it was not possible to tell as to from how much distance the fire was made , however the said fire would have been made from the front . Injury no. 5 was not of pallet and the same could have been caused by friction against hard surface. The injury no. 1 of Ambuj @ Gudda was caused by one fire, but no bullet was found. No bullet, pallet, blackening, tattooing, charring was found. There was no foreign matter. The said injury could have been caused by blast also and also could have been caused by close range fire short, meaning thereby from a distance of about 2 inch and death would have happened forthwith. There was no post-mortem injury on his body.
128. The injury no. 1, 2 and 6 of Ved Prakash would have been caused from a distance of 6 feet to 8 feet and by one shot. Their direction was from below to upwards and outward. The assailant would have been on the lower plane than the injured. The dimension of the entry suggests that the said injury was not caused by rifle and could have been caused by fire arm. The recipient of injury would have died forthwith by this injury. His death would have happened on 26/01/1997 at about 8.30 p.m..
129. Doctor SR Gupta, Radiologist, District hospital Hamirpur has stated as PW 7 that on 26/01/1997 he had conducted medical examination of the injured, Rajiv Shukla son of Bhishm Shukla, resident of Ramedi, aged about 31 years, who was referred for x-ray by EMO, District hospital Hamirpur. His x-ray was conducted of left and right thigh and also of leg and knee, who had come to emergency ward and in x-ray one small metallic substance of round shape was found. He has proved his injury memo, Exhibit Ka - 8, which was prepared by him on the basis of x-ray plate, material Exhibit - 44 to 46, upon which the thumb impression of the injured were there.
130. On the same day he performed under his supervision x-ray of Har Dayal Verma son of Shri Mahadev Prasad, resident of Khalepura, PS Kotwali, Hamirpur aged about 70 years, who was referred by EMO emergency ward for x-ray to be conducted of right thigh, left leg and right leg and in his x-ray a small road radio opaque shadow of metal was found. He has proved his x-ray report Exhibit Ka 9 which was prepared by him on the basis of x-ray plates, material Exhibit 47 and 48.
131. On 28/01/1997, Ravi Kant son of Gaya Prasad, resident of Khodi was brought for x-ray of his left leg, which was conducted and a small radiopaque metallic shadow was found and prepared x-ray report Exhibit Ka 10 on the basis of x-ray plate, material Exhibit - 49.
132. On 28/1/1997 injured Vipul son of Rajiv Shukla resident of Ramedi was brought for x-ray which was conducted by him and in x-ray plate radio opague shadow of small metal piece was found, report regarding which was prepared by him which is Exhibit Ka - 11 on the basis of x-ray plate which is material Exhibit - 50.
133. On 28/1/1997 he also conducted x-ray of Chandan son of Rakesh Shukla, resident of Ramedi of his left shoulder and 3 radio opaque shadow were seen, report regarding which was prepared by him which is Exhibit Ka - 12 which was prepared on the basis of x-ray plate (material Exhibit - 51).
134. In cross-examination this witness has stated that for the x-ray sometimes the patient is brought by police and sometimes the patient comes on his own. In the present case, the x-rays were conducted of the persons who had come on their own, only Rajiv Shukla and Har Dayal had come on their own, while rest of the injured were brought by police as has come in evidence. Those who come privately, prescribed fees is charged from them which is determined by the State but he does not recollect as to what was the fees then, it may have been about Rs. 20 - 25. The money is deposited in the office and at the end of the month the same is deposited in the exchequer. They keep cash register. Those who come through police are not charged.
135. On 25/01/1997 and 27/1/1997 there is no entry made of the x-ray. The x-ray is conducted on the basis of reference slip, in which it is mentioned that which part of the body is to be x-rayed and name of Doctor also remains clear which is noted by them. In this matter the x-ray of Ravi Kant was written by Doctor NK Gupta; in the matter of Rajiv Shukla, only EMO is mentioned, which means emergency medical officer who remains on emergency duty. He had not measured the depth of any pallet because he is not concerned with the treatment. Depth cannot be shown in x-ray. He has not mentioned as to whether shadow was evident from beneath the skin or from beneath the muscle, its particular size is not mentioned only small is written and also the number has not been noted but about Vipul and Ravi Kant one is mentioned. The technicians conduct x-ray and send the plates to him on the basis of which he submits his report. It is not possible for the technicians to conduct false x-ray. X-rays is conducted in darkroom where he does not go.
136. He has brought the summoned cash register which begins from 1993 to 1997. In this register on 26/01/1997 no amount has been deposited pertaining to Rajiv Shukla & Har Dayal in respect of their x-ray nor is there any amount deposited with respect to conducting x-ray of Ravi Kant, Chandan and Vipul on 28/01/1997. Further he stated that in routine, the x-ray precedings close down at 2 PM. If there are metal buttons or some metal kept in the pocket such as a coin, the same would be reflected in the x-ray and also if x-ray is conducted of any body part where there is metal, the same would appear in x-ray.
137. He has further submitted that Rajiv and Har Dayal were x-rayed on 26/01/1997 at about 10 PM in the hospital in the form of medico-legal cases of police. In accidental register, the cases are of separate type while the cases of medico-legal register are of different type. If somebody goes for x-ray privately, he has no concern with it and yet he would not give him his report. On the x-ray plate, number is endorsed but not the name of patient nor the name of hospital. On the x-ray plates of Rajiv in front of "DATE" the space is blank as no date is mentioned, but he himself has stated that the date is written by pencil, hence the same might have got obliterated.
138. He has further stated that it is wrong to say that these were private x-rays and were conducted on 28/1/1997. He had picked up a row with Ashok Chandel in the year 1992 but the same was a small one, DM and SP had to intervene then and he has stated it to be wrong that he has been challenging Ashok Chandel to cause him harm and also that because of that enmity he had done forged work.
139. Doctor NK Gupta, Doctor, District hospital, Hamirpur has a stated on oath as PW 8 in examination in chief that on 26/01/1997 he was on emergency duty and on that date at 8.30 p.m. he had examined Rajiv Shukla son of Bhishm Prasad Shukla aged about 31 years, resident of Ramedi and had found following injuries on his person:
i) Multiple firearm wound in area of 16 x 8 cm. over posterior aspect of left knee and medial aspect of upper half leg, size 0.3 cm. x 0.3 cm. x unknown, margins are inverted.
ii) Multiple firearm entry wound present over posterior aspect of left thigh lower half, size 0.3 cm. - 0.4 cm. x 0.3 cm. - 0.4 cm. in area of 10 cm. x 10 cm., margins are inverted.
iii) Multiple firearm entry wounds present over posterior aspect of the right thigh. Size 0.3 - 0.4 cm. x 0.3 - 0.4 cm. x depth not probed, margins are inverted.
140. All the injuries were kept under observation and x-ray was advised of the right thigh; duration was fresh and were caused by firearm. He had prepared the said injury memo which is Exhibit Ka 13.
141. The same day he had conducted medical examination of Hardayal Verma at 8.45 PM aged about 76 years resident of Sale Pura, Kotwali, who had come on his own by jeep and had stated that he had come by police jeep and upon his person following injuries were found:
i) Multiple firearm entry wounds present in an area of 46 cm. x 16 cm. on lower 2/3 thigh and upper 2/3 leg over anterior medial and lateral aspect, size 0.3 - 0.4 cm. x 0.3 - 0.4 cm. margins are inverted.
ii) Firearm wound of entry present over medial aspect of thigh and junction of upper 1/3 and lower 2/3 right thigh, size is 0.3 - 0.4 cm. x 0.3 - 0.4 cm. x depth not probed. Margins were inverted.
iii) Firearm entry wound present in area of 16 cm. x 9 cm. of front and lateral and medial aspect of upper part of right leg size is 0.3 - 0.4 cm. x 0.3 - 0.4 cm. depth not probed, margins inverted.
The injuries were kept under observation and x-ray was advised of right thigh and upper 2/3 AP lateral view. Injuries were caused by firearm and the duration was fresh. He has proved this injury memo as Exhibit Ka 14.
142. The same day he inspected injuries of Ravi Kant at 10 PM aged about 25 years son of Gaya Prasad, resident of Ramedi Mandakhor, PS Hamirpur and found following injuries on his person:
1. Firearm entry wound present over left, front of, leg 2.5 cm. below to tibial tuberosity left margins are inverted, not probed, size 0.5 cm. x 0.5 cm. x not known.
143. The injury was kept under observation and x-ray was advised; duration was fresh; were caused by firearm. He proved his report Exhibit Ka 15.
144. The same day at about 10.15 p.m. he examined Vipul aged about 3 years son of Rajiv Kumar Shukla and found following injuries on his person:
a) Firearm entry wound 0.5 cm. x 0.3 cm., not probed, present over post aspect of right upper arm, 5 cm. above to lateral epicondite of humerus. Margins inverted.
The injury was directed to be kept under observation and x-ray was advised; injury was fresh caused by fire arm. He has proved his report as Exhibit Ka 15.
145. The same day at 10.30 p.m. he examined Chandan son of Rakesh Kumar Shukla, aged about 12 years and found following injuries on his body:
i) Firearm entry wounds present over right shoulder at posterior aspect, 5 cm. posterior x below to tip of shoulder, sizes 0.3 cm. x 0.3 cm. x depth not probed, margins are inverted.
ii) Firearm entry wound (0.2 cm. x 0.2 cm. x not known) present over right upper arm at outer aspect, 9 cm. below to tip of right shoulder.
146. He opined that the injuries were fresh caused by firearm and advised them to be kept under observation and x-ray was advised. He proved his report as Exhibit Ka 17.
147. This witness has further stated that all these injuries were possible to be received on 26/01/1997 at about 7:30 PM. He had sent a memo to Incharge PS Kotwali at about 9 PM prepared by him in his own handwriting, in which it was mentioned that 5 dead bodies were brought in the hospital besides two injured whose names were Rajiv Shukla son of Bhishm Prasad Shukla and Hardayal Verma son of Mahadev Prasad and its original was sent to police which is Exhibit Ka 18. The same day he also sent a memo to Kotwali police at 10:45 PM, in which he had endorsed that at 10 PM three injured had come, who were medically examined and were given treatment and their names were Ravi Kant, Vipul and Chandan, the said memo is in his handwriting which is Exhibit Ka 19.
148. Further this witness has stated that on the 1st page of the register, the certificate has been given by some other doctor and on page 207 the ink was different while the remaining text was not different ink. The number 207 was written by the same ink by which the words "one to two hundred seven pages only" were endorsed. There was no date mentioned beneath the certificate and it ink was reddish while the number 207 was in blue ink. This was Accidental Register, which is separate from Medico-Legal Register. In Medico-Legal Register the entries of injuries are made by police at the time when it sends the patient for medical examination or somebody comes on his own for getting himself medically examined by submitting an application in writing. It is done so that no charges are taken in matters which are referred by police however those who move self application, are asked to deposit certain fees. In accidental cases no fees is deposited and treatment is given by them, therefore for further answerability, the case is registered in accidental register. Further he stated that today, the injured persons regarding whom report was given, their cases were registered in accidental register. Further he has stated that when police does not bring with it the injured person and the injured comes on his own and does not move any application nor does he deposit fees and says that he should be medically examined, then out of compulsion, they enter the case in accidental register and after having inspected, write the injuries. First of all an application is sought or it is told that the patient should come with the police, and when he does not move an application, his case is registered in accidental register and his inspection is also done. In medico-legal case, the injured gives in writing as to how he had received injury and then his inspection is done and thereafter in each case police is not sent information, only in some cases the police is sent information. If the injured tells about injury having been received in any quarrel, sometimes information is given to the police and sometimes not because in case of minor injuries it is not necessary to send information. If the injured gets injury by bullet, he sends information immediately to the police.
149. He further stated that the present case was found to be a medico-legal one but because of the informant, under compulsion, he had to register case in accidental register. He was on duty from the morning till afternoon and thereafter from 8 PM till the next morning about 8 a.m.. On 25/1/1997 no entry was made in the said register about any inspection having been done. He had not mentioned in any medical report that police would be sent informal information or formal information. The police is sent information after preparing a carbon copy in the register which is maintained chronologically, which was not present before him and in the said register, the serial number of the information is the same number which is endorsed in the letter sent to police.
150. Further he stated that he did not make any cutting on medical report of Rajiv Shukla, rather there was cutting upon the name of his father. There is overwriting on injuries. In respect of injury no. 1 initially "fire arm" was not written but the same was added, but on his own he stated that because of being in a hurry the same was omitted from being mentioned, while he wanted to write the same. This word i.e. "fire arm" is mentioned in between the word multiple and wound, above separately. In injury no. 2 he had written initially knee and thereafter it was cut and in its place thigh was written, which is written above the line. Although he mentioned that he has made his signature on the said cutting.
151. The injured Rajiv Shukla was admitted in the hospital on 26/1/1997 at 8:30 PM and regarding it endorsement is made in BHT also. This injured was admitted in District hospital, Hamirpur and was discharged on 27/1/1997 at 9 AM and till then this patient remained hospitalised. The date of admission is mentioned as 27/1/1997 which has been cut and in place 27, 26 has been done which was written by mistake. The said patient was admitted on 26/1/1996. At the time of his admission the statement of Rajiv Shukla was mentioned in BHT to the effect "alleged to have injuries by fire arm about half hour earlier." The time of admission is recorded as 8.30 p.m.. Upon the BHT the treatment is prescribed. Sonography, x-ray and for other diagnosis, prescription is made. Operation, injection or bandage also is prescribed on BHT. Whatever reports received as per x-ray, sonography or other tests, they are entered and in consonance with them, the treatment is prescribed. On BHT, there was endorsement of x-ray. After admitting him, he was referred to surgeon. He had not written x-ray and whatever was written as treatment, the same was written by surgeon who was present at that time. He was taken for x-ray and what was its outcome, about it no mention was made. For being taken to be x-rayed, no entries were made in BHT, only the result of the same is entered therein. If prior to discharge, x-ray is received, the same is entered in BHT. No operation is entered in BHT. Upon BHT, medico-legal injuries (firearm) was written, the same was prepared by him and it was further mentioned upon it "medico-legal...... 140/90 unit, chest clean, in his handwriting and only "discharge on request" was written in his handwriting and beneath that signature, 27/1/1997, Doctor P M Parya is written, whom he has seen writing and knows his signature and writing, the said document is marked as Exhibit Kha - 1. On the said document referred to surgeon was written in his handwriting and upon it "fire arm injury wound" was also in his handwriting and beneath that on rear side of the same, the entire text is written and signed by Doctor P M Parya, whom he recognises and in it, diagnosis and treatment was entered in his handwriting which is Exhibit Ka - 2. The original BHT was directed to be kept in sealed condition till the case was over. In BHT the name of the father of Rajiv Shukla has overwriting. Nothing is mentioned in the BHT whether pallets were taken out and were found or not.
152. The injury caused to Rajiv Shukla at serial no. 1 was behind his knee while injury no. 2 and 3 were on his left and right thigh. The depth of injury of none of the injured was mentioned nor palpability of pallet was mentioned. In all entry wounds inverted was written while in some it was not mentioned. Even regular or irregular was not written and on the basis of his memory he could not tell whether entry wounds were having regular or irregular margins. No blackening, tattoing or charring was found in injuries of any injured nor any pallet or bullet was found nor was there any palpable wound. It appeared to him that the said injuries were of firearm because of which he had noted firearm and because of that only X-ray was got conducted. The injuries were multiple, circular and in one particular area which led him to conclude that they were caused by fire arm.. He further stated that it cannot be said that these injuries could be manufactured.
153. Ravi Kant had only one small injury of size 0.5 cm. x 0.5 cm. and no multiple wounds were found on his body. The injuries were on lower part of Ravi Kant and Rajiv. Vipul had only one injury of size 0.5 cm. x 0.5 cm., he did not have multiple injuries. Chandan had two small wounds, one measuring 0.3 x 0.3 cm. and the other 0.2 x 0.2 cm. but he did not have multiple wounds. It was difficult to tell that Rajiv Shukla, Chandan and Ravi Kant had got their injuries manufactured. All these injuries were on non-vital part. Probing was not done because at the time surgeon was available. It was wrong to say that under the pressure from SP, Hamirpur Shri Mathur 27 forged injuries were mentioned and it was also wrong to say that Rajiv Shukla, Ravi Kant and Chandan had not received any firearm injury. It was also wrong to say that only to falsely implicated the accused, forged anti-timed injuries were mentioned in the register etc.. He had never treated Rajiv but he knew him from before. He had remained posted in Hamirpur for 7 years and he knew him for last 2 to 3 years. He has further stated that it was wrong to say that in January 1997, few days ago, on a complaint for private practice, he had got his transfer stayed with the help of administration and because of that he was under pressure; he was a doctor of anaesthesia.
154. Head Constable Munna Lal Mishra (PW10) has stated in examination in chief that on 27.1.1997 when he was posted as Head Moharrir at P.S. Kotwali on the said date at 11.50 A.M. SHO Lal Mani Sharma, S.I. R.S. Tiwari, S.I. Roshan Lal, Constable Kailash Kumar and Constable Aftab Ali came by a jeep along with driver Ram Kishun at the police station with four accused namely Naseem Ahmad, Sahab Singh, Bhan Singh and Shyam Singh and lodged them in police station. They also deposited at police station one sealed bundle containing rifle and one bundle in sealed condition containing cartridges and sample seal and also one recovery memo of rifle and cartridges and on the basis of these documents, case crime no. 34 of 1997 was registered under section 25 Arms Act against Sahab Singh and Case Crime No.35 of 1997 under section 25 of Arms Act against accused Ashok Singh Chandel. This witness has proved chik FIR of this case as Exhibit Ka-22 in his handwriting and also the G.D. in which registration of this case was made at G.D. No. 37, time 19.15 hours dated 27.1.1997 which is Exhibit Ka-23.
155. In cross examination this witness has stated that on Exhibit Ka-22 there is an order dated 3.2.1997 to the effect that FIR be sent to Court which has been passed by Circle Officer and the said FIR was seen by the Magistrate on 6.2.1997 which bears signatures of CJM. He further stated that the Tehrir on the basis of which the chik was prepared by him, was not before him today nor had be brought the chik register with him but he denied that because there was manipulation in sl.no. and the dates because of which he did not bring the said register. He further stated that on 27.1.1997 in the G.D. of police station Kotwali, entry is not made with respect to ravangi (departure) of S.I. Harish Chand, who is sitting in Court. He further stated that ravangi of S.I. Roshan Lal and S.I. R.S. Tiwari is entered on 27.1.1997 at report no. 31 time 17.00 hours but thereafter no ravangi is entered of them in the said register from the police station. Subsequently, both these Sub-Inspectors were suspended in this case but he could not disclose the reason as to why they have been suspended. He had not brought the G.D. of 28.1.1997 with him today. He has further stated that the sample of seal, which was prepared, was never deposited at the police station. Further he has stated that S.O. Lal Mani Verma had his private seal which used to be kept by him only. The case property remained at police station for 15-20 days and thereafter the same was got sent to be kept in Malkhana by him but he had not brought G.D. in that regard. He denied that all this was done ante-timed and entries were shown in forged manner and that he had not deposited any such articles in the police station.
156. He has further stated that the address of accused Shyam Singh is entered in Exhibit Ka-23 as Kalauli Jar, P.S. Lalpura, District Hamirpur but he stated it to be wrong that he had told the time of his bringing to the police station, and that the same was made ante-timed and denied the knowledge that the house of accused Bhan Singh was situated about 200 paces from the Kotwali. After having seen G.D. entry, he admitted that it does not contain the entries of Advocate Sahab Singh. He has also stated it to be wrong that initially the accused Naseem Ahmad was detained at the police station and thereafter wrong time was shown of his being lodged in Police Station. Further, he has stated that Exhibit Ka-23 address of accused Shyam Singh is mentioned to be Mohalla Chand Qasba Sumerpur, District Hamirpur. Kalauli Jar is mentioned to be the address of Sahab Singh. He further stated that in Case Crime No.34 of 1998, after cutting ''8', same has been made ''9' and lastly he stated that at the time of lodging the accused in jail, no paper, currency or any copy of Fard was recovered from them.
157. After gone through the statement of this witness, we find that he is a formal witness who has simply proved that the case property i.e. fire arm weapon, cartridges which were recovered from the accused Sahab Singh and Ashok Singh Chandel, were deposited along with recovery memo thereof and on the basis of which the case crime nos. 34 of 1997 and 35 of 1997 were registered against two accused persons under section 25 Arms Act and 27 Arms Act respectively. In cross-examination whatever has been asked, does not appear to make the testimony of this witness suspect.
158. Constable 154 Aftab Ali (PW11) has stated in examination in chief that on 21.1.1997 when he was posted at Kotwali Hamirpur, he had departed from the said police station at 17.00 hours along with SHO Lalmani Verma, S.I. Ram Sakal Tiwari, S.I. Roshan Lal, Constable Kamlesh Singh, driver Ram Kishun in a Govt. Jeep and reached at Ramedi Taraus Tiraha, where the Investigating Officer received an information through Mukhbir that in the house of accused Naseem, other co-accused Bhan Singh, Shyam Singh, Naseem and Sahab Singh were present and they were about to flee from there from the rear door by the sun set. Pursuant to receiving of this information, they all after leaving their vehicle along with driver at Remedi Taraus Tiraha, proceeded towards the house of Naseem by side of river Betwa and reached the rear portion of the house at about 6.35 p.m. and found that all the four above-named accused were coming out of the door and they all were surrounded by them and were apprehended. All of them disclosed their names as above and their personal search were made by SHO and then one rifle and belt of cartridges containing 10 cartridges were recovered from Sahab Singh. On the spot Ram Sakal Tiwari had written Fard at the dictation of Lal Mani Verma and after having read out the same all of them made their signatures upon it. Rifle and belt of cartridges were separately sealed and sample seal was prepared but no public witness was ready to be a witness of this recovery and copy of the said Fard was provided to the accused Sahab Singh who had torn and thrown the same. The said Fard is Exhibit Ka-24 in his handwriting. One bundle was opened before court, out of which one DBBL gun, one rifle and one belt containing 10 cartridges, 8 empty cartridges 12 bore out of which 7 of red colour and one of green colour, three cartridges of 12 bore and 8 empty cartridges of rifle, were taken out. About the rifle, it was stated by this witness that it was the same rifle which was recovered from Sahab Singh and also stated that the belt containing 10 cartridges was the same which were also recovered from the said accused and thereafter rifle was marked as material exhibit 52, belt of cartridges was marked as material exhibit 53 and the cartridges were marked as material exhibits 54 to 63.
159. In cross-examination this witness has stated that prior to the information received through Mukhbir, they had already departed from the police station. After how much time of their having left the police station, Mukhbir had passed information, he does not remember. He also does not remember the distance where the arrest was made of the accused from the place where the Mukhbir had given information. Within one hour of receiving information from Mukhbir, arrest had been made. Further he had stated that they had returned to the police station within one hour after the information of Mukhbir but subsequently stated that after having arrested the accused about one hour thereafter they had returned to the police station. Accused were searched properly in accordance with law. An effort was made to procure a public witness at the time of taking personal search from among the passers-by but none could be found. He does not recollect as to how many people had met there. Thereafter, he showed ignorance that he asked 20-25 persons to be witness and also denied as to which Mohalla they belonged.
160. Further this witness had stated that he does not know as to how many storeys were there in the house of Naseem Ahmad nor does he recollect number of doors which were there to go in and come out of the house and whether the said house had a pucca floor or mosaic or cement. How many rooms were there in the said house, he could not tell nor could he tell as to how many houses were situated adjacent to his house or how many storeyed houses were there but he did say that the house of Naseem Ahmad was about one km. away from police station.
161. Citing the above statement of this witness, it was argued by the learned counsel for the appellants that the presence of this witness is wholly unreliable because had he gone to the house of Naseem Ahmad where alleged recovery of fire arm weapon is said to have been made, certainly he would have remembered some of the details of house of Naseem Ahmad.
162. Further, this witness has stated that the search was made of all the accused separately one by one and entries were being made in that respect in a Fard but he does not recollect as to whether he had made search of Naseem Ahmad first and that of Sahab Singh at the end. He did not find any currency during search nor was any paper recovered. After the search had been completed, thereafter Fard was prepared and signatures thereon were taken and thereafter the articles were sealed and sample seal was prepared. He does not recollect whether the seal by which these articles were sealed, was in the personal name of Lal Man Verma and also does not remember whether it was of somebody else. He also does not remember as to whether the said seal had been given. He also does not recollect whether the said seal was deposited at the police station or not but further stated that seal is never deposited at the police station.
163. He has further stated that only one copy of Fard was given to only one accused whose name he does not recollect. The pieces of torn Fard were not collected from the spot. All the accused had not made signatures on the Fard, only one had made. He does not recollect whether it is mentioned on the Fard or not that copy was received of the Fard. However, in the Fard it is mentioned that the accused persons were given copies.
164. He does not recollect the registration number of the jeep nor does he recollect in which particular Mohalla he had gone on the said date but later on stated that he had visited Sufiyaganj Mohalla. It is always entered in the log book as to where the vehicle was taken. The log book of the jeep no. UP-91 0517 was in front of him, which contains only one entry of 27.1.1997 but does not contain any such entry showing having gone to Subhash Bazar at the house of Naseem Ahmad or coming back to the Police station Kotwali.
165. Citing above portion of the evidence, it was argued from the appellants' side that the above log book entry in the said register would indicate that no such recovery of fire arms weapon or cartridges was made from the accused and it was a concocted story of the prosecution.
166. This witness has further stated that it is wrong to say that rifle along with 14-15 cartridges was picked up from the house of Ashok Singh Chandel under pressure of S.P. Saheb and that no such recovery of any weapon was made from Sahab Singh and that the said weapon was falsely shown to have been recovered from the said accused Sahab Singh and he also denied that the said recovery was forged and fabricated and that he never had gone to the house of Naseem Ahmad. He has also denied that Shyam Singh was caught from his home in Sumerpur and was arrested at the house of Naseem Ahmad. Similarly, it was also denied that Sahab Singh was arrested from his house.
167. In the log book dated 26.1.1997 pertaining to the police jeep, there were entry of the said jeep having been taken to Vivek Nagar, where the accused Ashok Singh Chandel is located. But this witness has denied that the said rifle had been lifted by them from the house of Ashok Singh Chandel on 26.1.1997 itself.
168. Citing the above piece of evidence, it was argued that it was the case of defence that the said weapon was forcibly taken away from the house of Ashok Singh Chandel in his absence which was later on planted upon the accused respondent. Further, this witness has stated that about one and half years prior to this incident, when he was posted at Kotwali, he was living in Kotwali colony, in front of which there was a road and across the road after going few steps to the right of it, was situated Islamia Inter College. There was lot of flow of water from the front of police officers colony at the time of occurrence and at that time Naseem Ahmad was Manager of the said college. He stated it to be wrong that he and other police officers were asking for closing the said Nali and were asking to stop flowing water from there, which led to annoyance of police. He has also denied that one week prior to the incident, his motorcycle was parked in front of college along with other motorcycles which were got removed by accused Naseem Ahmad because of which he was annoyed against him. He has shown ignorance that accused Bhan Singh was living at a distance of 200-250 paces away from Kotwali and that he was picked up from his home and his arrest was shown falsely. Further he denied that it was wrong that no recovery of rifle and cartridges was made from the accused Sahab Singh.
169. Sri K.D. Pal, retired S.I., has stated in examination-in-chief as PW-13 that in 1999-2000, he was posted as S.S.I. and was assigned pairvi of this case. On 7.1.2000, he had moved an application 629 Kha for drawing proceedings under Section 299 Cr.P.C. against Rukku and Ashok Singh Chandel, which is Ext. Ka-62. His statement recorded before the court is Paper No. 635 Kha. In this regard, paper no. 636 Kha/1 onwards, verified by him, were placed before the trial court and on 25.1.2000, accused Rukku and Ashok Singh Chandel were declared absconder by the Special Court. He had attached property of Ashok Singh Chandel. He has further stated that S.I. Kailash Chandra Yadav was posted with him, with whose hand-writing he was conversant. The property of Ashok Singh Chandel was attached by S.I. Kailash Chandra Yadav on the basis of which Ashok Singh Chandel was declared absconder on 3.12.1997. The application to declare him absconder is Ext. Ka-63.
170. In cross-examination, this witness has stated that he does not know that many applications were given by Ashok Singh Chandel seeking to be innocent and in March 1997, in the first week, he had filed a representation in High Court but he does not know as to what was stated therein. He also showed ignorance that between 1997-1998, his arrest was stayed by the court and also showed ignorance that he was making effort to get the case investigated by C.B.C.I.D. On 23.10.1998, the accused had surrendered before court and his bail was allowed. In the meantime, many writ petitions were filed but it was wrong to say that he along with other police personnel had proceeded against the said accused to get him declared absconder after placing wrong facts before the court. This witness is a formal witness and his statement is material to the extent that the accused Rukku and Ashok Singh Chandel were got declared absconder and nothing else.
171. PW-14, Sukhram Sonkar, has stated in examination-in-chief that on an application of Smt. Raj Kumari Chandel, wife of Ashok Singh Chandel (accused), an order was passed by the State Government on 10.7.1998 for investigation to be made by C.B.C.I.D. Sri S.P. Chaudhary, Inspector C.B.C.I.D., Khand Allahabad, had sought permission from court on 22.7.1998 for further investigation and after having obtained it, he investigated the case from 20.7.1998 to 1.8.1998 and during this period, he recorded statement of Smt. Raj Kumari and obtained copies which are enclosed, of the writ petition no. 4446 of 1997 (Ashok Singh Chandel and Rukku Vs. State). He recorded statement of informant and witnesses, made inspection of the place of incident and studied the investigation made by the police. He also perused the reports of chemical examination and ballistic expert etc., recorded statements of Head-constable Munna Lal and Ramesh Dikshit. Accused Ashok Singh Chandel and Rukku were absconding regarding whom, he made raids and upon their name price was declared. He also studied bail application no. 56 of 1997 (Sahab Singh Vs. State), wherewith certified copy of the statement of Sahab Singh was also present. Against gunner and "Anya Agyat" there being no evidence available, no proceedings were carried on against them and after having completed the investigation, he submitted report i.e. paper no. 264 Ka in his hand writing which is Ext. Ka-64. During investigation, Ashok Singh Chandel and Rukku remained all along absconding and continuously raids were being made against them.
172. This witness in cross-examination has stated that he had recorded statements of the residents of the locality where the house of Naseem and Parma Pandit were located but none of them had given any eye-witness' account. He had recorded statement of Investigating Officer Lal Man Verma, who, in his statement has stated that with the rifle of Ashok Singh Chandel, in all, 18 cartridges were recorded to have been recovered from Sahab Singh. Further he stated that it was mentioned that eight cartridges from Sahab Singh and ten cartridges from the belt around the waste were recovered but on his own, he further stated that the same might have been written by inadvertent mistake. Even ten cartridges could have been written by mistake, eight cartridges could also have been written by mistake. He had recorded statements regarding this recovery of Lal Man Verma and apart from him that of S.S.I. R.S. Tiwari, S.I. Roshan Lal, Constable Kamlesh Kumar Singh, Constable Aftab Ali and Constable/driver Kishun and all this witness have stated that eighteen cartridges were recovered. After having completed the investigation, he had not filed any charge sheet but on his own he stated that police had already submitted charge sheet and he was agreed with the said charge sheet. He did not find it necessary to file a separate charge sheet. The charge sheet which was filed by the police had already been sent to the Court and he expressed his concurrence with the same. He further stated that it was wrong to say that C.B.C.I.D. did not make any investigation in this case and simply completed the formalities of investigation and that it was also wrong to say that sitting with Lal Man Verma, he had simply copied the old statement recorded by him. Further this witness has stated that earlier the Investigating Officer had written in his parcha of the case diary that it was worth to note that he had come to note confidentially that the informant side was extremely annoyed in respect of inquiry to be made out by C.B.C.I.D. and was bent upon to get the said order recalled by exercising political annoyance, while accused side, showing political annoyance, was taking interest in getting the matter investigated by the C.B.C.I.D.
173. Sri S.P. Chaudhary, Special Judge, Anti-Dacoity, Hamirpur had granted permission for further investigation on application dated 22.7.1998 and on the basis of that permission, further investigation was started. In place of earlier investigation, when he (PW-14) was appointed, he started his further investigation under Section 173(8) Cr.P.C. and after having received this investigation, he gave written information about this to the court through an application dated 11.8.1988. He had conducted investigation in this case from 7.8.1998. Although, he was ordered to complete the same by 25.8.1998. He has denied that he had not looked into all the aspects of the investigation. No witness nor the informant in their statement under Section 161 Cr.P.C. had stated that Sahab Singh was private gunner of accused Ashok Singh Chandel and also denied to have simply completed the formalities of investigation and not having made proper investigation.
174. CW-1, S.I. Ram Surat Mishra has been examined by the court below who has stated that in February, 1997, he was posted as Second Officer. Under the orders of the then District Magistrate and in-charge S.H.O., he had gone to Moradabad for recovery of weapon from accused Raghuveer and Ashutosh Singh. The direction of the District Magistrate was Paper No. 74Ka/1 which was carried by him and was issued by the District Magistrate on 9.2.1997, the original of the said document signed by the District Magistrate was given by him in the office of District Magistrate, Moradabad, photo copy of which was with him and he had got reply of the same which is Paper No. 74Ka/2. He tried to find out about Sengar Gun House Katghar Moradabad but could not find any gun shop by that name and also he came to know from the District Magistrate, Moradabad that there was no gun shop by that name, hence he returned. Thereafter, he stated that he was told that the weapon was in the house of Clerk of Education Department, who was residing in Katghar, Moradabad, therefore, he wrote a letter to the Director, Education in this regard to inquire about the said Clerk Ram Narain, which is Paper No. 81 Ka in his hand writing and is marked as Ext. C-1. The Joint Director, Education had given his reply thereon under his seal and signature which is Ext. C-2. Further he stated that he received paper no. 82Ka/1 from Deputy Director, Education Madhyamik Dwadash Mandal, Moradabad, which was signed by some clerk of the said office along with seal. 82 Ka/2 is letter which was received by him from Basic Education Officer, Moradabad, which is marked as Ext. C-3. 83 Ka/1 was received by him from the office of Accounts Officer, Basic Shiksha Parishad, Moradabad. At that time, there was no officer appointed there on the said post, hence the said letter was singed for him and it was bearing seal also. On paper no. 83 Ka/2, which was received by him from Deputy Basic Education Officer, Moradabad (his office), the same bearing signature of Deputy Basis Education Officer and a little seal is also visible thereon as the said portion has got torn, the same is marked as Ext. C-4.
175. Further he has stated that after collecting lot of information, he came to know that there was no clerk by the name Ram Narain Singh in Education Department, Moradabad nor in Katghar Moradabad. He had obtained permission from Special Court Anti Dacoity to record statement of accused Ashok Singh Chandel, after having obtained which, he had proceeded to District Jail, Hamirpur but the accused refused to give his statement, regarding which he submitted a report no. 662 Kha in his hand writing, which is marked as Ext. C-5 and upon that court had passed its order dated 4.2.2000 in compliance with which, in presence of the counsel of the accused and Government Advocate, he went inside the jail and took down statement of accused Ashok Singh Chandel, entry of which is made by him in case diary. He had gone to find out from the accused Ashok Singh Chandel in respect of the looted rifles as well as his gun but he did not say anything about it. He had gone twice to Moradabad on the basis of information collected during investigation from Ashutosh and Raghuveer but they were found to be false information. He has denied to have recorded forged statements of Ashok Singh Chandel so as to show forged recovery. When he was sent for this purpose, the case was being investigated by Investigating Officer Lal Man Verma and the S.P. Chaudhary had authorized him for this part of the investigation, although the said order was not available on record in the file but he had made its mention in the case diary. Further he stated that on that date, Lal Man Verma had been transferred when he (CW-1) was authorized. Further he stated that he (CW-1) had taken statement of Ashok Singh Chandel and at that time, he was investigating case but when he had gone to Moradabad for recovery of weapons, at that time the Investigating Officer was Lal Man Verma. He further stated that he had not sought police custody remand of accused Ashutosh and Raghuveer because he was not Investigating Officer of this case then. Prior to going to Moradabad, he had not obtained any search warrant or other warrant, although he had gone twice to Moradabad. He has not brought the G.D. entries of each time. Whatever, he had done at Moradabad regarding that the Investigating Officer Lal Man Verma has recorded in his statement. Regarding Ram Narain, he had come to note that no one by that name was in Education Department, Moradabad for last five years but prior to that whether there was somebody by that name or not, he does not know. After having returned from Moradabad, he had handed over paper nos. 82Ka/1, 83Ka/1, 83Ka/2, 81Ka to I.O. Lal Man Verma.
176. This is a court witness whose statement has been recorded by the trial court itself to clarify whether actually the said witness had gone for finding the weapons related to this offence. It appears that this witness had made genuine efforts.
177. Lala Ram Kushwaha has been examined as DW-1 from the defense side, who is an Assistant Engineer in Vidyut Vitran Khand, Hamirpur in order to proof that on the date of incident, there was no light, hence it would have been difficult for the accused to be identified by the complainant side. This witness has stated that on 26.1.1997 at about 19:50 hours, he had received information in his department at 33 Kb Sub-Station, Hamirpur of which he has brought a lock book of the period 18.9.1996 to 29.1.1997, which shows that because of electric wire having broken at Akil Tiraha, the S.S.O. Sub-station 11 KB feeder had tripped the operation of light which meant that the electricity supply was quickly shut down. This supply was dis-continued from Kali Chauraha to Devi Das, which includes the area of Subhash market and Suphiganj. The supply was resumed of Saiyadvada, subsequently, therefore, there was darkness in the area of Subhash market and Suphiganj etc. till 20:45 hours, whereafter supply was resumed after repairing the broken electric cable. He had reached the said place at about 7:50 pm after having received the said information of cable having broken and it was apprised to him that the same had broken about 15 to 20 minutes ago. The entry made with respect to supply of electricity is in the hand writing of Mangat Ram with whose hand writing he is conversant certified copy of which is Ext. Kha-3. The maintenance of the tube lights and the bulbs on the Government owned poles on the road is done by Nagar Palika. He cannot tell whether tube light and bulb were installed on the poles by the side of road in Subhash market or not nor could he tell whether three to four months prior to 26.1.1997, there was any street light in Subhash market and Suphiganj or not.
178. In cross-examination, this witness has stated that the register which he has brought, its pages have not been certified, although, it contains from 1 to 149 pages and, thereafter, said up to 145 pages there was no blank page in between. There was no endorsement in respect of page no. 144 and 145 in respect of operation of book and on the rest, there was entry. On page 144-145, the account of the Electricity Department is mentioned but he could not tell whether the said account was required to be mentioned or not. S.S.O., Mangat Ram was still posted in Hamirpur. He cannot tell that why the breaking of electricity line of 440 volt at Akil Tiraha resulted in break down in supply of electricity in Vivek Nagar, Gwaltoli, Gaushala road or not and as to how many connections were connected with the said phase but hazarded a guess that because of the said breaking of fire, the light of Suphiganj would have been discontinued. He could not tell as to how many connections would have been taken from the supply given to Subhash market. He further stated that there were total three phase and the remaining two phase continued to remain operational despite breaking wire of one phase. He cannot tell whether there was any light connection of Subhash market from Akil Tiraha or not. Further he stated that he is resident of Vivek Nagar in which house of Ashok Singh Chandel is also located. Since 1985, he was posted as Assistant Engineer in Hamirpur but stated that he did not require any assistance from the M.L.A. to ensure that he does not get transferred to other place. The signature of Mangat Ram were not on the original of Ext. Kha-3, however, at the bottom of the page, there were his signatures. It is mentioned that an information was received from public through telephone and it is wrong to say that on the order of J.E., the same was added subsequently because entries are always made simultaneously when operation begins. He denied that he was giving statement under any kind of pressure.
179. This witness is a defense witness who has tried to prove that on the date of incident, because of break down of electric supply, there was no light at the time when the occurrence took place so it was difficult for the accused persons to be identified by the complainant and the other witnesses but it is evident from the statement of this witness in cross-examination that there were three phases out of which two were functional and he has not categorically stated that it was not possible that the electricity supply would have continued to be there by the other two phases, hence it cannot be ruled out that there was electricity supply at the place of incident when occurrence took place.
180. DW-2, Prem Das Saloniya, Jailer, District Jail, Hamirpur has been examined as DW-2. He has stated that he has brought Hawalat register relating to the under trial prisoners being admitted and released belonging to the period 11.7.1995 to 21.9.1995. On 21.9.1995, an endorsement is made in it in respect of accused Shyam Singh, R/o P.S. Jumerpur, District Hamirpur at serial number 2368 regarding his admission and he was released on 18.10.1996, during the said period, he remained detained in prison. Further he has stated that he recognized his hand writing and signature of accused-prisoner Ashok Singh Chandel, who is an under trial and he has identified his signatures on representation paper no. 750 Ka/15 to 750Ka/24 sent by him to Hon'ble Governor.
181. DW-3, Constable 107 Akhilesh Kumar of the office of S.P. Hamirpur, has stated that in 1996 to 1997, he was posted at the office of S.P. Hamirpur in confidential section, who has brought the summoned documents and is conversant with hand writing of S.P. Sri S.K. Mathur. He has identified signatures of S.P. Sri S.K. Mathur on paper numbers 316Kha/1, 316 Kha/2 which are marked as Ext. Kha. 7. Further he has stated that he does not know whether there was any enmity between Ashok Singh Chandel and S.K. Mathur, although there was common talk in this regard. He has no knowledge as to whether Ashok Chandel had made any complaint against the said S.P. on the basis of which some inquiry was being conducted.
182. In cross-examination, this witness has stated that he continued to remain in confidential section of the office of S.P. during the relevant period and was transferred from there in 1997 out of the district and his job was only to dispatch letters while other writing work was assigned to steno. How many applications were given by Ashok Chandel against S.K. Mathur, he could not tell.
183. In regard to statement of this witness, learned A.G.A. pointed out that the incident of this case is of the year 1997 while his statement had been recorded in the year 2002, but what does this pointing out indicate is not very clear but it appears that probably learned A.G.A. wants to point out that this witness could not prove any enmity between the accused Ashok Chandel and S.P. S.K. Mathur, which may have been the intent of the accused side to prove that because of the enmity between them, the accused might have been implicated falsely.
184. It is recorded in the impugned judgment that it was argued from the side of prosecution before the trial court that Exhibit Ka 1 was not the same Tehrir on the basis of which first information report was registered and it was also argued that it was not registered at the time when it is shown to have been registered and hence the same is anti-timed. Contrary to it from the side of prosecution it was argued that after the occurrence, in the hope that Rajesh, Rakesh, Srikanth, Vednaik and Ambuj could be saved, they were taken straight to the hospital, where doctors made their check-up and declared them dead. Thereafter informant Rajiv Shukla, PW 1, who was injured, was given medical treatment, where after he dictated Tehrir, Exhibit Ka 1 to Saraswati Sharan, PW 3 and after going to the police station, Kotwali which was near to the hospital, presented the same and got the case registered. He argued that there were differences in the text of Tehrir and chick F.I.R. because there was a lot of crowd and the chick F.I.R. was prepared hurriedly and also stated that these discrepancies were not such, by which the basic meaning of the said F.I.R. would get altered. It was also argued that in 38th and 39th line of Tehrir "goliyan lagin" words were written and while copying "goliyan lagin" from the said Tehrir in chick F.I.R., the text was began to be copied after the words "goliyan lagin" and in between, one line was omitted from being mentioned by inadvertent mistake. It was also argued the concerned GD no. 52 time 21. 10 hours dated 26/01/1997, Exhibit Ka 21, also proves that the said report was written on the said date i.e. on 26/01/1997 at 21.10 hours.
185. The trial court has mentioned in the judgment that PW 9, constable clerk Mahesh Singh, giving explanation, has stated in his examination in chief itself that while copying Tehrir in chick F.I.R., in the 4th line he omitted to mention "tatha" and at one place in place of"tatha", he has written "aur" and also " tatha mere paer par goliyan lagin" also got omitted from being mentioned, because of crowd and hurry. This witness has also admitted that when he was preparing the said chick, by that time he had already been in service for 23 - 24 years and during this tenure he remained posted as constable Mohorrir for about 2 to 4 years and had prepared many chick F.I.Rs. It is also recorded in the judgment that when this witness was asked that if one such Tehrir is placed before him which verbatim resembles chick F.I.R. and the other, of which some part is not found in chick F.I.R., then on what basis he would reveal the chick F.I.R. to have been written, to which this witness replied that he would treat only that Tehrir to be genuine which would resemble word by word with chick F.I.R.. This witness further stated that he could know about the omitted words today only when he compared Tehrir with chick F.I.R., although chick F.I.R. has been certified to be correct word by word. This witness has also admitted that while copying from Tehrir signed by the informant , at the place where signature of the informant are found on Tehrir, Sd/- is written in chick F.I.R. and that in the present there was no mention made of Sd/-. He has further mentioned in the judgment that in original Tehrir and also in chick F.I.R., the informant has mentioned that " is ghatna kram mein Ravi Kant, Chandan and Vipul bhi ghayal huye aur isme likhaya gaya hai ki mritakon ko chodkar report ko aaya hun. report likh kar karyavahi ki jaye evam anya ghayalon ka pulis suraksha mein daktari muaina karaya jaye" would mean that soon after receiving this Tehrir the police would take necessary steps for getting the medical examination done of other injured namely Ravi Kant, Chandan and Vipul but in the concerned GD No. 52 (Exhibit Ka 21) the constable Mohorrir Mahesh Singh, PW 9 has recorded " is sambandh mein bataya gaya ki main va anya majrooban aspatal mein ilaj karaya hai va karaya ja raha hai". This fact has been proved also by PW 9 that informant had told him about this. It would mean that at the time when report was got lodged, other injured namely Ravi Kant, Chandan and Vipul had either been medically examined or their medical examination was in progress. According to the documents it is proved that the medical examination of these three injured took place between 10 PM to 10:30 PM. The injured referred in GD would not be held to be referring to injured Hardayal because PW 1, Rajiv Shukla had specifically stated that he did not know till then or till his coming to the hospital for treatment that Hardayal was also injured and in F.I.R. also there was no mention made of the details of occurrence about Hardayal being injured. Further it is recorded in the judgment that according to PW 9, chick F.I.R. was sent from the police station to circle officer and by circle officer the same was ordered to be sent to the court on 28/01/1997 and the same was seen by court on 29/01/1997 which shows that the same was sent to court on 29/01/1997, which was unusual delay without any explanation and hence detrimental in the light of law laid down by the Apex Court cited in the judgment. It is also mentioned in the judgment that PW 9 had clarified as to what is the procedure to be followed for sending the F.I.R. which is that each morning, by about 8 - 9 - 10 AM all such F.I.R. are sent to circle officer which remain ready by then and rest of them are sent the next day and thereafter it is mentioned that the said witness stated that office of circle officer was at a distance of about just two furlong from Kotwali Hamirpur and that by red ink there was endorsement of receipt of GD 26/01/1997 on R/10.2.97. Similarly in GD of 27/1/1997 and 28/1/1997 also the same date has been endorsed. When this witness was enquired as to when the said GD was sent to police station , he stated that he could not tell. Therefore it was evident that in Circle officer the said GD was received on 10/02/1997, in these circumstances GD No. 52 time 9.10 p.m. (21.10 hours) dated 26/01/1997 (Exhibit Ka 21) cannot be relied upon in which it is mentioned that chick F.I.R. was prepared at 9.10 p.m. on 26/01/1997 in the night itself.
186. It was argued by the learned counsel for the complainant that merely because of delayed despatching of F.I.R. to the Magistrate, the trial court has drawn the conclusion that the F.I.R. was anti-timed which is erroneous.
187. It is also mentioned in the impugned judgment that it was argued from the side of prosecution that Fax dated 26/01/1997 (Exhibit Ka - 7) which has been proved by DW 3, constable Akhilesh Kumar who was posted in the office of Superintendent Police, Hamirpur in Confidential Section during 1996 - 97 discloses that the F.I.R. in the present case was registered on 26/01/1997 in the night at about 9.10 p.m. because it is described in the said document that concerning the murder crime no. 33/1997 under sections 147, 140, 149, 307, 302/34, 395 IPC etc. was registered at the information of Rajiv Kumar Shukla at PS Kotwali on 26/01/1997 at 20.10 hours. The attention of the trial court was also drawn towards statement of DW 3, Akilesh Kumar in which he stated that the said fax was sent at the instance of the then SP Shri A K Mathur in the intervening night of 26/27 .1 .1997 and wherever the offices were closed in the night, in those offices the same was sent in the morning of 27/01/1997 and also stated that at most of the places the said fax was sent on 27/01/1997. It was found evident from the evidence of DW 3 by the trial court that the said fax which was sent to most places in the morning of 27/01/1997, in it detailed information was sent to Home Control, Lucknow/Assistant to DG police/Additional DG (Law and Order), Lucknow/Additional IG Police, Lucknow/IG Police, Allahabad zone/Commissioner Jhansi Division/Deputy Inspector General of Police, Jhansi region.
188. The trial court has concluded from all this that the prosecution wants to rely upon the facts to prove that the incident which happened, regarding it F.I.R. was lodged on 26/01/1997 at 21.10 hours itself, but it is held that the fax contains description of some other facts and time as well because in that, the occurrence is reported to be of 7.45 p.m. and it is also mentioned therein that Rajesh Kumar Shukla son of Bhishm Prasad Shukla etc. were going towards their house in Mohalla Ramedi by their Jonga vehicle and when they reached in front of the Naseem Gun House (super bazaar), Alok Purwar @ Titu got their vehicle halted and firing was made from all around the place i.e. from the Naseem Gun House shop and house, in this occurrence Rajesh Shukla son of Shri Bhishma Prasad Shukla, Rakesh Shukla son of Shri Bhishma Prasad Shukla, Gudda son of Rakesh Shukla, Bed Prakash Nayak son of Bhagwati Sharan Nayak, Shri Kant Pandey son of Gaya Prasad Pandey had died on the spot and Rajiv Shukla son of Shri Bhishma Prasad Shukla and Hardayal Prasad son of Mahadev Saini had got injured and it was also mentioned that the said information was given by Rajiv Kumar Shukla son of Shri Bhishma Prasad Shukla at the police station Kotwali on 26/01/1997 at 21.10 p.m. vs Ashok Singh Chandel etc. (11 persons) which after being registered was under investigation. Therefore it was evident that the first information report which was lodged by the informant Rajiv Shukla on the same day at 21.10 p.m., which is Exhibit Ka 1 contains quite different facts from the facts which are contained in chick F.I.R., Exhibit Ka 20 because in Exhibit Ka 20 there are 12 persons named besides some others, while in fax, Exhibit Ka 7, the reference of F.I.R. is made which contains names of only 11 accused and also has reference of Hardayal being injured, who had come to the hospital while informant had reached there. The time of the incident is different.
189. From the side of prosecution it was argued that one police official (Gunner of Ashok Singh Chandel) was also involved in this occurrence, to save him, various officers of police had tried to create suspicion and mentioned wrong information because of which the above-mentioned discrepancies have crept in, but the trial court has dismissed the said argument holding that it could not be believed that such kind of subterfuge would be resorted to by an eminent officer like SP that he would communicate wrong facts to the higher authorities particularly when it has come in evidence that soon after reaching there on the spot of the investigating officer, within 2 - 3 minutes thereof, SP had also reached and in whose supervision the proceedings were taking place and the fax was sent and it was also mentioned in the said fax that efforts were being made to arrest the accused in his supervision.
190. It is also mentioned in the said judgment that it would be pertinent to take into consideration the statement of PW 1 to dispose of the dispute which has arisen in respect of the first information report and the evidence given by the said witness in Para 10 has been referred wherein he stated that after his medical examination Saraswati Sharan Dwivedi had come to the hospital, who was dictated the F.I.R. and who had read out to him /first informant, thereafter the same was given at the police station which is Exhibit Ka 1 and on that basis the case was registered. The medical examination of this witness i.e. PW 1 was conducted by Doctor N K Gupta, PW 8 at 8:30 PM on 26/01/1997 and right then he was got admitted in the hospital in injured condition and on 27/01/1997 at 9 AM he was discharged. The doctors had begun the medical examination of Hardayal at 8:45 PM, thus the medical examination of Rajiv Kumar Shukla must have finished by 8:45 PM and thereafter only he would have dictated first information report to Saraswati Sharan, which is neatly written report running into one and a half pages without any cutting, which could not be visualised to have taken less than quarter of an hour in being written and such kind of Tehrir was not possible to be written within 10 - 15 minutes. Besides that Saraswati Sharan, PW 3, who is scribe of the F.I.R., according to GD had accompanied the informant Rajiv Shukla to lodge report at police station, has stated in Para 12 of his statement that after writing Tehrir he stayed on in the hospital for about 30 - 35 minutes, therefore from above analysis the trial court held that the prosecution's case stands demolished that Exhibit Ka 1 Tehrir was written on 26/01/1997 by 20:10 hours.
191. The Learned counsel for the respondents has, after taking us through the above finding of trial court, argued vehemently that the trial court has drawn a reasonable conclusion which is based on proper reasoning and the same could not be adjudged to be perverse, hence the same should not be disturbed.
192. We are not inclined to accept the argument of the learned counsel for the respondents because we find that from Exhibit Ka 7 it is quite evident that its contents cannot be taken to be in conflict with the contents of the F.I.R. lodged by PW 1 because it is clearly mentioned in this document that case crime no. 33/1997 was registered against Ashok Singh Chandel , ex-MP along with 11 others under sections 147/148/149/307/302/34/395 IPC in which the 5 deceased and 2 injured have been named and it is also mentioned that the said information was being transmitted on the basis of information received by SP in respect of the incident that Ashok Singh Chandel and Raghuveer Singh along with their companions were stated to have given effect to this occurrence, against whom the case was registered and that in this case private gunner of Ashok Singh Chandel namely, Sahab Singh had been arrested along with 315 bore rifle and against rest of the accused search was on. The occurrence involved 2 communities namely Thakurs and Brahmins and the Brahmins were murdered at the hands of Thakurs which had led to caste enmity and the police was keeping an eye on the law and order situation and effort was being made under the supervision to arrest the accused. The facts mentioned in this fax also described that the incident happened at about 7.45 p.m. when Rajesh Kumar Shukla was going towards his house in Mohalla Ramedi in his Jonga, as soon as it reached near Naseem Gun House, Alok Purwar @ Titu got the vehicle stopped and then firing started from all around. It is evident that this information contains only gist of the F.I.R. lodged by Sanjeev Kumar Shukla not mentioning all the details therein including the fact that there were only 11 accused named therein while in Exhibit Ka 1 there were 12 accused who were named apart from the fact that name of gunner was not mentioned and besides that it also contains the "anya log". It is evident that before the trial court a justifiable reason was mentioned in respect of their being 11 names mentioned in the Exhibit Ka 7 because it was suggested that the police personnel might have tried to save the police official, who was gunner of the accused Ashok Singh Chandel and because of that in order to save him only 11 names may have been mentioned in the said document. The said argument has been brushed aside by the trial court holding that such a senior officer would not have done so. We believe that trial courts view in this regard is not appropriate and there seems to be weight in the argument of the defence counsel. Moreover it is evident that in Exhibit Ka 1 the name of gunner was not mentioned hence probably that could be the reason not to count him as an accused and because of that only 11 names may have been mentioned in Exhibit Ka 7. The other apprehension expressed by the trial court was that Hardayal was not mentioned as an injured in Exhibit Ka 1 and the time of occurrence was also shown to be different, same being 7:45 PM while in Exhibit Ka 1 it is shown 7:30 PM. We are not inclined to accept that flaw in the F.I.R. to be serious enough to hazard a guess that Exhibit Ka 1 would not have been the same F.I.R. which was lodged by PW 1 . It is evident that the said information which was sent by police to higher authorities was promptly sent without having studied the whole situation at length, therefore there could be discrepancies with respect to the number of injured not being mentioned in the same correctly and moreover the time is approximately the same except that there is a difference of 15 minutes. It may also be mentioned by us that few discrepancies are shown to be there in tehrir and the chick F.I.R., but we find that while copying Tehrir into chick F.I.R., it could be genuine mistake on the part of the police official who copied the same and may have missed out one line or few words which has been referred above which are not of great substance and merely on that ground we are not inclined to disbelieve the genuineness of the F.I.R. nor do we find that the same was anti-timed. It was also vehemently argued by the learned counsel for the respondents- accused that PW 1 was injured and was admitted in hospital on 26/01/1997 for medical examination from where he was discharged on 27/1/1997 at 9 AM, therefore he could not have lodged the first information report on 26/01/1997 at 20.10 hours. We are not inclined to accept this argument also because the informant could have been admitted at 8:30 PM on 26/01/1997, but after his examination was over he might have been allowed to go and lodge the F.I.R. at the police station which was at a close distance from the hospital and could have been allowed to come back and thereafter he would have got proper discharge from the hospital at 9 AM in the next morning. His examination was over by 8:45 p.m., therefore the hospital being very close to police station, it was well within his reach to lodge an F.I.R. there at 9.10 p.m. and therefore we do not find the said F.I.R. to be anti-timed on this ground also. The view which the trial court has taken in this regard appears to be too technical and does not stand to reason and the said inference which has been drawn by the trial court in order to prove that the first information report of this case was not genuine one and apart from it the same was anti-timed, does not stand to logic. Therefore we hold that the prosecution has been able to satisfactorily prove by its evidence that the said F.I.R. was not anti-timed and the same was genuine.
193. Now we would like to discuss the finding given by the trial court in respect of place of incident and would see whether the same is in accordance with the evidence on record. It is mentioned in the impugned judgment that according to the prosecution, the occurrence took place in two parts. The first incident happened in front of the house/ shop of fire arms of Naseem. Both the house and shop of the guns of Naseem are located at same place as on the ground floor out of many shops, one shop which is towards the western side, is used for sale of guns and to the east of it is passage for going in and, thereafter there are three other shops of Naseem out of which in one of them, there is school and outside the shop, there is a long chabutra east-west. To the north of this chabutra, is a road and the gun shop of Naseem is located in front of road where the first incident is stated to have taken place according to the prosecution. The I.O. has collected blood stained coal-tar/ soil which is material Exhibit Ka-66 and according to the report of F.S.L., in large part of the said soil, blood stains were found which was found to be human blood. The said place of incident has not been challenged from the side of accused and from the side of accused, Naseem, some suggestions were given to the witness in cross-examination which also indicate that the incident had happened there.
194. The second part of the occurrence is stated by prosecution to have taken place in front of house of Parma Pandit which is shown in site-plan as Exhibit Ka-5 and according to that towards west side of Naseem, is house of Aniruddha Kumar Sahu and, thereafter, house of Rani Sahu etc., thereafter there is 'gali' (lane) and then is situated the house of Parma Pandit.
195. D.W.-1, Rajiv Shukla has stated that from Bakar Gali, the location of the first incident which had taken place near the house of Naseem was about 30-35 paces away. The I.O. during investigation has also found blood at this second place of incident but he did not collect blood stained soil from there which is error committed on his part but that will have no ill-effect on the prosecution story.
196. It is further mentioned in the judgment that I.O. made inspection of the spot and, thereafter prepared site-plan, Exhibit Ka-25 in which by 'BB' is shown the place where 12 cartridges were found out of which six were of 12 bore and 6 were of brass. Out of these how many cartridges of which type were found on which place has not been shown separately. This 'BB' place is indicated as the 'chabutra' of Naseem by the side of road patri and which is also situated in front of house of Parma Pandit, therefore, the trial court has held that the place of incident is not doubtful.
197. It is further recorded in the judgment with respect to the Manarth Card issued by Railway Board which is material Exhibit 64 that the I.O., Lal Man Verma (P.W.-12) after registration the F.I.R. had gone along with force on the place of incident where he recorded the statement of informant Rajiv Shukla and in presence of informant and eye-witnesses, made inspection of the place of incident and prepared site-plan, Exhibit Ka-25. He prepared memo (Exhibit Ka-26) in respect of plain soil and blood stained soil from the first place of incident which was located in front of shop of Naseem and besides that he also prepared memo of recovery of six cartridges of 12 bore and six cartridges of brass in all 12 empty cartridges on the spot which is Exhibit Ka-27 and besides that he also recovered one Manarth Card of first class issued by Railway Board, New Delhi in the name of Ashok Singh Chandel in presence of witness, which is Exhibit Ka-28. It is his version that he had annexed this Manarth Card with his case diary but the said recovery of Manarth Card has been challenged from the side of accused stating that the said Manarth Card along with licensed rifle of Ashok Chandel and catridges were taken away by police from the house of Ashok Chandel when the raid was made at his house and one D.B.B.L. gun of his brother was also taken away and that in order to show false implication in this occurrence of Ashok Chandel, it has been wrongly shown that the Manarth Card was recovered from the place of incident on 27.01.1997 at 6:30 p.m. It was also pleaded that the said Manarth Card is only proved in the form of material Exhibit but it was not made clear that the said card belonged to accused, Ashok Singh Chandel only. The trial court has held that there is no dispute that the Manarth Card was that of Ashok Chandel because it has come in evidence that it bore photo of Ashok Chandel which has not been challenged from his side and it also bears official stamp but the only question which arises is whether the same was recovered at the place of incident. Further it is recorded that the said Manarth Card was valid from 13.01.1993 to 12.1.1994 only and, therefore, on the date of incident i.e. on 26.01.1997, the same was not possible to be used and on that basis, no journey could be performed in the month of January, 1997, therefore, there is no justification for traveling with an expired Manarth Card. The informant who was present on the place of occurrence has not uttered even a word about recovery of the said card from the place of incident. It is also recorded that as per Investigating Officer, all the articles recovered from the place of incident were sealed on the spot but the Manartha Card was not sealed rather the same was annexed with the case diary.
198. Further it is recorded that the I.O. after having completed the investigation when reached at 15:05 hours at police station, he made entry in G.D. No. 29 giving details of the proceedings as well as regarding recovery of the items which was noted down in the same for example, he made mention of ordinary soil, blood stained soil collected in sealed containers, the 'jonga' recovered from the spot, the broken pieces of glass of 'jonga', the pieces of blood-stained foot rest but no mention was made therein of Manarth Card nor its entry was made in G.D. which shows that till then the I.O. did not have in his possession the Manarth Card and, therefore, the same appears to have been manipulated by making entry in C.D. which was legally possible, besides that in support of recovery the witnesses in presence of whom, the said Manarth Card was recovered i.e. Kailash Narayan Mishra and Shubhash Chandra Dwivedi were also not examined who could be very important witness of this fact.
199. He has further recorded that it is also disputed as to when the I.O. made inspection of the place of incident. According to him, I.O. soon after copying the chik and G.D. in the case diary, reached the place of incident and recorded the statement of informant, prepared the site-plan etc. and also performed other necessary actions, the details of which were given but when he came back on 27.01.1997 at 15:05 hours at P.S. and made entry in G.D. No. 29 in his own hand-writing then he had written that he returned with police force by jeep and first of all, prepared panchayatnamas of the deceased persons and after having prepared them, all the dead bodies were separately sealed for being sent for post-mortem along with necessary documents and it was handed-over to Constable No. 599, Prakash Chandra, thereafter, S.H.O. along with companion police officials went to the police station for inspection and the fard of blood-stained soil and ordinary soil etc. were prepared on the spot.
200. It is evident that the inspection of the place of occurrence and other important proceedings were performed after having completed the proceeding of panchayatnama and sealing the dead bodies for being sent for the post-mortem. The documents revealed that according to prosecution, proceeding of panchayatnama were begun on 26.01.1997 at 22:50 hours by preparing panchayatnama of Rakesh Shukla (deceased) and ended at 5:55 in the morning of 27.01.1997 when the last panchayatnama of deceased Ved Prakash was prepared. It makes it evidenct that I.O. must have gone on 27.01.1997 after 5:55 a.m. It is further recorded that this gets substantiated from the statement of P.W.1, Rajeev Shukla in para 12 that after lodging the report, he went to hospital where panchayatnama was done of the deceased persons. He had come to the place of incident by 'jonga' vehicle. Inspector Sahab had gone there who was told entire occurrence and was also shown the place of incident for inspection. In the same sequence, it is also worth referring that the I.O., Sri Lal Man Verma (P.W.12) had proved his signatures on the panchayatnamas and had stated that they were prepared under his supervision and direction, therefore, all this makes it evident that the recovery of Manarth Card from the place of incident was wholly false and same was nothing but manipulation made by Investigating Officer only with a view to falsely implicating Ashok Chandel.
201. Citing the above portion of judgement, the learned counsel for the respondents/accused has argued that the learned trial court has taken a reasonable view of the Manarth Card not being recovered from the place of incident and has found its recovery on the spot doubtful which was one of the grounds of implicating the accused, Ashok Singh Chandel because reasoning which has been given is the one which is a possible view and not a perverse view, hence, the same does not require to be interfered with.
202. We are of the view that the recovery of Manarth Card alone would not be determining factor in the present case to adjudge whether the accused Ashok Chandel whom the said Manarth Card belonged was actually one of the assailants in this case which resulted in causing death of five persons and also injuries to other five persons including the informant and other injured witnesses. We although do not support the logic which is expressed in the above portion of the judgement by the trial court as to why would anyone travel with an expired Manarth Card and that simply because its fard of recovery was not prepared and was annexed with the case diary of the same should not be treated to have been recovered from the place of incident rather should be treated to be a mere figment of imagination of the I.O. which was brought forth in order to falsely implicate the said accused. It is commonly seen that the traveling cards (Manarth Card) despite their having been expired, would need to be renewed from time to time and such cards normally are extended/ renewed, therefore, simply because on that particular date, the same had expired, would not lead us to conclude that the same could not have been carried by the accused with himself. Defence has not pointed out any enmity between I.O. and the said accused to indicate that because of the said enmity, he might have tried to falsely implicate the accused by showing false recovery from the place of incident as no such suggestion has been put forth of enmity.
203. The trial court has recorded in the judgment with respect to recovery of rifle, cartridges and arrest of accused appellant, Sahab Singh that according to prosecution, I.O., Lal Man Verma (P.W. 12) along with constable, Aftab Ali (P.W.13) and other police officials had started from the P.S., Kotwali by jeep on 27.1.1997 at 17:00 hours and had reached Ramedi Tiraha where they received information from police informer on the basis of which they reached the rear side of the house of accused Naseem at 6:35 p.m. and they found that accused, Sahab Singh, Naseem, Bhan Singh and Shyam Singh were coming out of their rear door and were arrested and from Sahab Singh, licensed rifle belonging to Ashok Chandel was recovered regarding which the recovery memo (Exhibit Ka 24) was prepared and it was stated that because of not incurring any enmity, no public witness was ready to be witness of said recovery. The trial court has written that it could be possible that no one would have been prepared to give evidence but only on that basis that no public witness could be obtained, the discrepancies of the two police witnesses could not be disbelieved but the matter is not so simple because when an officer of the rank of the S.P. gives any information in writing to his higher authorities, then he suddenly would have to take cognizance of the said fact. Exhibit Ka-7 which is a fax sent by the then S.P., A.K. Mathur in intervening night of 26/27/1/1997 and in the morning of 27/1/1997 to two higher authorities of police department, he has written prior to his putting signatures there on that private gunner, Sahab Singh of one of the wanted accused of this case i.e. Ashok Singh Chandel had been arrested with a 315 bore rifle and rest of the accused were being searched for being arrested. From the said fax, it gets disproved that Sahab Singh was arrested on 27.1.1997 with licensed rifle of Ashok Singh Chandel along with ten cartridges in the evening at 6.35 with accused Naseem, Bhan Singh and Shyam Singh. In fact Sahab Singh had already been arrested prior to the sending of said fax by police and one 315 bore rifle had been recovered from him which neither has been shown in any paper nor was even presented before trial court rather removing the same, in its place, Ashok Singh Chandel's numbered licensed rifle which was not of 315 bore rather according to the report of F.S.L. (Exhibit Ka 65) was of 8 x 60 bore, has been shown. If at the time of real arrest of Sahab Singh, he was carrying Ashok Singh Chadel's licenced rifle of 8 x 60 bore, then in fax, one 315 bore rifle would not have been written rather reference would have been made of Ashok Singh Chandel's licensed rifle of 8 x 60 bore. In respect of this recovery, the statement given by constable Aftab Ali, P.W. 11 also makes it clear that the said recovery is false because according to him one rifle and a green colored belt containing ten cartridges were recovered from accused, Sahab Singh regarding which memo was prepared at the dictation of Lal Man Verma by Ram Sakal Tiwari which was signed by all and, thereafter, the rifle and cartridges, were separately sealed and therein sample seal was prepared, while according to the memo, the said articles were sealed first and, thereafter the memo was prepared.
204. It is further recorded that similar is the situation of the statement of P.W.12, Lal Man Verma and learned counsel for the respondents also has drawn our attention towards para no. 9 of PW.1 and towards para nos. 1, 2 and para 3 of P.W. 11 and has stated that this part of the judgment and conclusion drawn by the trial court is based on the above evidence and conclusion is rightly drawn. Trial court has further recorded that from 27.1.1997 at 17:00 hours, Lal Mani Verma and Aftab Ali with other force had departed, is not proved by the concerned G.D., hence, their departure from the police station for the said recovery becomes suspect. Further it is recorded that P.W. 11, Aftab Ali says that after having departed from the police station, informer had given him information but he has not stated as to how many hours after their departure from the police station, the said information was transmitted to him. Subsequently, this witness has stated that about one hour after receipt of information, the arrest was made but subsequently further stated that return to the P.S. happened one hour after the informant gave information but the said statement was again changed and stated that one hour after the incident, they returned to the police station. It is also mentioned that this witness has stated that they had tried to take public witnesses but no one was available but when further inquired as to how many persons had come across who were requested to be witness, he showed ignorance and further this witness has stated that search was being made one after another and simultaneously entries in the memo was also being made. Initially, Naseem was searched and in the last, Sahab Singh was searched and, therefore, the trial court has concluded that it looks very unnatural that the person in whose hand, the rifle was available would have been searched in the last and those who had nothing would be searched first. First it is mentioned in the judgment that this witness states that no currency was found from all the four accused but the Court has found it unnatural because it is recorded that when these accused would proceed to abscond, in such a situation, they would certainly have some money with them and it has come on record that they were preparing to abscond, therefore, they could not be without any money. Further it is recorded that this witness has stated that only one copy of the memo was given to the accused, Sahab Singh while in the memo, it is recorded that all the accused were provided copies of the memo. It is also recorded that even prior to preparing the fard, it was mentioned therein that the copies of fard were provided to the accused, while no question arises of providing copy of fard till the same was completed, it clearly indicates that it becomes evident that I.O. and his companion officials had made forged recovery memo by showing recovery of licensed gun of Ashok Singh Chandel along with belt of ten cartridges from accused Sahab Singh. Further it is recorded that from the side of prosecution it was argued that the rifle was sent for forensic examination to the F.S.L. and its report is Exhibit Ka-65, according to which out of 12 empty cartridges, one empty cartridges E.C.-12 was found to have been fired by the said rifle. The said report was challenged from the side of accused on following points:-
(i) It was argued that under Section 293 Cr.P.C. the report of the F.S.L. could be read in evidence only when the same is signed by Director / Deputy Director/ Assistant Director of the F.S.L. but in the present case, some Scientific Officer has prepared this report and not the above officers. In reply to this, the prosecution argued, as well as drew attention of the court below that there were signatures above the seal of Assistant Director. The seal says 'awashyak karyawahi hetu agrasarit' and beneath it leaving some space, a seal of Assistant Director is fixed and above that his signatures are made. It makes it evident that this report was not prepared by the Assistant Director rather some Scientific Officer had proved the same and the same was simply forwarded by the Assistant Director which would be deemed to be non satisfying the necessary conditions of Section 293 Cr.P.C., therefore, on the basis of this report, this conclusion could be drawn that E.C.-12 cartridge was fired by this rifle.
(ii) The disputed cartridge E.C.-12, 8 x 8 bore and the two cartridges, T.C.-1 and T.C.-2 which were fired and on the basis of which comparison was made, both were 8 x 57 bore while 8 x 60 bore cartridge had been sent for opinion of F.S.L.
(iii) The alleged recovery of rifle and cartridges is stated to be of 27.1.1997 and they were got received on 19.04.1997, while the charge-sheet has been filed by the I.O. on 22.02.1997, it is recorded by the trial court that there is no justification given of this delay by the prosecution side and that the said case property kept lying for 15-20 days at P.S. or Malkhana.
(iv) According to the P.W.11, Aftab Ali and P.W.12, Lal Man Verma, only 10 cartridges were recovered with the rifle and when the matter was inspected by Deputy S.P., Sri Sukhram Sarkar of C.B.C.I.D. (P.W.14), he recorded statement of all the witnesses including Lal Man Verma, S.S.I., R.S. Tiwari, S.I. Roshan Lal, Constable, Aftab Ali and Constable Ram Kishan who stated 18 cartridges to have been recovered, in this regard, Lal Man Verma has stated that the said Deputy S.P. of C.B.C.I.D. had recorded his statement and he had told him about recovery of ten cartridges in a belt and not eight cartridges. The said mistake was made by C.B.C.I.D. bonafidely. In this regard P.W.14 has made it clear that Lal Man Verma has stated him 18 cartridges to have been recovered with rifle of Ashok Singh Chandel because it was written that eight cartridges were recovered from butt cover and ten from 'banduliya' and after having stated so, he on his own gave explanation that the same might have written by mistake. Again it was got clarified as to what was written by mistake, then this witness has stated that ten cartridges could have been written by mistake, and also eight cartridges were also written by mistake because the mistakes do happen and in case in place of 8, 18 would have been written, then it could have been said that there was some mistake. The trial court has concluded here an officer of the rank of Deputy S.P. was recording statement of this witness and has written that eight cartridges from butt cover and ten cartridges from 'banduliya' were recovered despite such extensive statement and not of one witness but of all the witnesses of recovery, could not be treated to be an inadvertent mistake and, therefore, in these circumstances, it held that it could not be proved by prosecution that E.C.12 was the same cartridge which was stated to have been fired by rifle.
205. Prosecution also made arguments that if forged/ false cartridge after having been fired from the said rifle would have been sent for examination, then all the six empty cartridges which were of brass, the same would have been shown to have been fired by the said rifle but in the opinion of court, I.O. knew that two rifles were stated to have been used and when he knew this fact, then he could have made much more manipulation. Besides this, the facts which have been narrated above at Sl. Nos. 1 to 4 makes it clear that the manipulation was solely made with an intention to prove that the chief suspect of this offence was Ashok Chandel. Further trial court has recorded that it is essential to mention here that according to I.O., he arrested four accused on 27.01.1997 and the other four on 1.02.1997 and Jhandu Singh on 11.02.1997 and the allegation before him was that after coming out of the gun shop of Naseem firing was made and in this occurrence, two rifles, two S.B.B.L. and seven D.B.B.L guns were said to have been used but I.O. did not make any effort to take any accused on remand nor an effort was made to recover the said weapons except from the house of Ashok Chandel nor immediate raid was made at the gun shop of Naseem but the prosecution has denied the suggestion that it was involved in manipulation so that Ashok Chandel could be implicated.
206. Prosecution has further stated before the trial court that I.O. had sent S.I. Ram Surat Mishra to recover weapon from accused Raghuveer Singh and Asutosh @ Dabbu by sending him to Moradabad who after returning from there told that no gun house was found by that name and on another information again, he was sent to Moradabad but the weapon could not be recovered. In this regard, P.W.2, Lal Man Verma stated above facts in para nos. 19-20 but no written memo was prepared by him in respect of information received from accused, Raghuveer Singh and Asutosh because had any such memorandum been prepared, the same would have been produced before court. He ought to have made prompt effort to take those accused on police remand for recovering the said weapons. It is also pointed out by the trial court that the I.O. did not even mention the name of said witness, Ram Surat Mishra in the case diary as a witness nor this witness was summoned by the Court as C.W.1 and he has stated that he was posted at Kotwali, Hamirpur as second officer and at the direction of his in-charge officer Lal Man Verma, he was sent for recovery of weapons from accused, Raghuveer Singh and Asutosh and after taking direction later from the District Magistrate, he went on 9.7.1997 which was deposited by him in the office of District Magistrate, Moradabad and in respect to that, he received paper 74 Ka/2. District Magistrate, Hamirpur had written the said letter addressed to District Magistrate, Moradabad which is paper no. 74 ka/1, original of which was in the office of District Magistrate, Moradabad while office copy was in the office of D.M. Hamirpur. Thus there is only one photocopy of the said reply which is paper no. 70 Ka/2, from the perusal of which, it is evident that original of it was not signed nor did it bear any clear seal upon it; it's original was not summoned for verification of said document. Similarly nothing has come on record that any information was tried to be gathered in respect of the Sengar Gun House of Moradabad, therefore, it is not proved that an effort was made for recovering the said weapons from there which indicates the weaknesses of the prosecution case. Further it is recorded that C.W.1 states that the said weapons were in the house of Babu Ram Narayan who was working in Education Department in Moradabad and after writing letter to the Joint Director, Education, he inquired about Babu Ram Narayan which letter is C-1, upon which the Joint Director, Education gave his reply which is C-2 on which it is endorsed that there was no clerk by that name. Similarly Basic Shiksha Adhikari, Moradabad through Exhibit C-3 informed that there is no such employee by that name. Similarly U.P. Basic Shiksha Adhikari also sent information which is Exhibit C-4 that there was no such employee. This witness has stated that after having obtained a lot of information, it could not be found whether there was any employee by the name, Babu Ram Narayan Singh in Education Department, Moradabad. Then the court has expressed opinion that the entire proceedings were meaningless because there does not exist any memorandum which could have been prepared on the basis of statements of accused, Raghuveer Singh and Asutosh.
207. C.W.-1, S.I. Ram Surat Mishra has also stated that he had gone to Moradabad pursuant to the information received from accused Raghuveer and Asutosh which was found to be wrong, hence no legal importance remains of the same because simply by placing information given by accused before court, they cannot be held to be proved.
208. Further this witness has stated that he had obtained permission for recording statement of Ashok Singh Chandel whereafter he went to Hamirpur and after depositing the copy of order there, he tried to record his statement there but accused refused to give statement and in this regard, he submitted his written report before court which is Exhibit C-5. The court vide order dated 4.02.2000 had directed that Ram Surat Mishra shall record statement of the accused in presence of counsel for the accused, Sri Kripa Shankar Singh and special prosecutor, Sri Omkar Dubey and it was also clarified that if the accused did not want to give statement, he could not be compelled as he was duty bound to give statement and that in case of his refusing to make any statement, the said situation/ circumstance would not be used in evidence against the said accused because accused has right to silence, therefore, no importance is left of document, Exhibit C-5.
209. Concerning the case relating to Section 25/30 of Arms Act, the trial court has recorded that P.W.-10, H.C. Munna Lal Mishra had prepared chick Exhibit Ka-22 and on the basis of that, G.D., Exhibit Ka-23 was proved by him and this witness stated that the C.O. had passed order thereon on 3.02.1997 to the effect that the F.I.R. be sent to the court and this indicates also that the Magistrate had seen the said document on 6.02.1997 which makes it evident that the chick F.I.R. which was prepared on 21.01.1997 at 7.50 p.m. was made seen to the Judicial Magistrate on 3.02.1997 or thereafter some other day but latest by 6.02.1997 and no explanation has been given of this delay by the prosecution. After having gone through the finding of the trial court above, in respect of recovery of 315 bore rifle from accused, Sahab Sinch which was alleged to be belonging to main accused Ashok Singh Chandel, not being the same because according to the F.S.L. report, Exhibit Ka-65, the cartridge, E.C.-12 which was recovered from the spot was found to have been fired by 8 x 60 bore rifle no. 20260 chi 1197 which were considered by the trial court to be two different rifles and in this regard it was also mentioned in fax, Exhibit Ka-7 that there was mention made of 315 bore rifle and not 8 x 60 bore rifle. We find that confusion probably occurred in the mind of the trial court that the 315 bore rifle is different rifle than 8 x 60 bore rifle which is fallacious. In fact 8 mm. Rifle in continental system would be called to be .315 bore rifle in british system because in British system, its measurement is in inches while in continental system, its measurement is given in mm., therefore, this finding of the trial court that no such recovery was made was found proved from the accused, Sahab Singh is an erroneous finding on the basis of logic given. Rest of the finding with respect to non-recovery of any money from the person of the accused, Sahab Singh and others when they were arrested also seems to be based on speculation made by the trial court that when they were out to abscond, they should have some currency with them, therefore, that speculative finding deserves to be discarded. Further he has also tried to discard the report of F.S.L. on the ground that Section 293 Cr.P.C. provides for an expert's report to be admissible only when it is signatured by the Director/Deputy Director/ Assistant Director of the said lab and not by any Scientific Officer. We do not subscribe to his view because it has come on record that the same was forwarded by the one of the Director/Deputy Director/Assistant Director of the said lab under the seal, therefore, it cannot be discarded and the same would be treated to be admissible and in this report, it is clearly found that E.C.-12 is found to have been fired by 8 x 60 bore rifle which could also addressed to be .315 bore rifle. There is also some confusion tried to be created by the trial court in respect of the number of cartridges which were recovered. In this regard, We do not find that simply because there is some difference in numbers of the cartridges, the entire testimony of the said witness should be disbelieved. There is no denying the fact that from the spot, several cartridges were recovered which were also sent for being tested in the F.S.L. in which one was found to have been fired from the above-mentioned rifle. It may also be mentioned here that if all the weapons have not been recovered by the prosecution that would only be treated a lacuna on the part of the I.O. but on the sole ground of the said infirmity, the entire prosecution case cannot be thwarted. Although we are of the view that genuine efforts were made by the prosecution to find out about the other weapons also by sending police officer also to Moradabad but he could not succeed in his attempt but that would not be treated to wholly go against prosecution as has been interpreted by the trial court, therefore, the finding on the whole in this regard which we have mentioned above of the trial court, deserves to be discarded.
210. The next point which the trial court has considered relates to the motive for the accused to commit this offence. In this regard large number of citations have been relied upon from the side of defence, reference of which has been made in the impugned judgment by the trial court and thereafter he has referred to the relevant portion of evidence relating to the motive stating that according to prosecution, motive was as follows:-
211. In the year 1995 Sanjay Shukla of Sumerpur and Shiv Narain Mishra, President, Degree College had been murdered by Shyam Singh and others, in which case from the side of deceased, the brother of informant i.e. Rakesh Kumar Shukla used to do pairvi. Rama Kant Pandey, Advocate, who is brother of Sri Kant had also done pairvi against Shyam Singh and others and were opposing Ashok Singh Chandel in election because of which the three accused namely Ashok Singh Chandel, Raghuveer and Shyam Singh were on inimical terms with complainant's side and Ashok Singh Chandel had taken side of Shyam Singh and others in 1995. On this point, the statement of accused Sahab Singh which was given in another matter as a witness was also presented in which he himself had stated to be gunner of Ashok Singh Chandel and a certified copy of vakalatnama was presented of that file relating to murder, according to which along with Senior Advocate Mohd. Ahmad, Rama Kant, Advocate was also a counsel in that case. Further, it is recorded in the judgment that if from the side of the informant, in the murder case of Sanjai Shukla and others, Rama Kant Pandey, Advocate was doing pairvi, even then there was sufficient motive in his opinion for the accused for murdering Ambuj aged about 30 years, Rakesh Shukla, Rajesh Shukla, Ved Nayak, Ramakant's brother Sri Kant. He further recorded that first of all if any counsel does pairvi from the side of one party in any case, that would not give any motive to the other party to commit any offence against the said counsel and more so, no such motive could be imputed for murder of brother of the said Advocate. To say that Ashok Singh Chandel and Raghuveerr Singh were doing pairvi of Shyam Singh, therefore, Ashok Singh Chandel and Raghuveer had also a motive to commit those murder, is not an acceptable argument. Sahab Singh who is stated to be private gunner of Ashok Singh Chandel, even he did not have any motive to commit the murder in the present case. Simply by proving that he was a private gunner, it could not be concluded that he was engaged as a killer from the side of Ashok Singh Chandel and only this much fact would come before us that he was engaged only for the purpose of security of Ashok Singh Chandel being his gunner. Apart from this, the other accused Dabbu Singh, Uttam Singh, Pradeep Singh and Naseem had nothing to do with the murder episode of Sanjai Shukla and that there was no such evidence brought on record to link them to the said offence. PW1 Rajeev Shukla who has mentioned in FIR that the accused had come out from the house of Naseem for the purposes of committing murder, has not mentioned any motive to commit the said offence.
212. Further the trial court has written that PW1 Rajeev Shukla in his statement in paragraph 14 has said that Naseem was Manager of Islamia Inter College, Hamirpur; the President of Vidya Mandir were Brahmins; both the institutions had competition with each other. Ashok Singh Chandel, Raghuveer Singh, Naseem etc. used to sit together, if this statement for some time be taken to be correct, then would that give motive to the accused to commit this offence? The trial court has expressed its opinion that the same was not sufficient motive. It is very common that the schools do have competition among them and merely on this ground that the Manager of one Islamia Inter College being Naseem (accused) and there being competition with other inter college whose President was Brahmin, would provide sufficient motive for killing five Brahmins, the said conclusion would be totally unjustified. He has further recorded that as far as the question of doing pairvi by Rakesh Shukla (deceased) in the murder of Sanjay Shukla is concerned, it does not prove on the basis of document that any pairvi was done by him and in this regard the statement of this witness (PW1) is very material made in paragraph no. 34, wherein he states that the said case was still going on in which brothers were doing pairvi. Rakesh Bhaiya and Sri Kant, Advocate were doing pairvi from the side of the deceased and Rakesh Bhaiya used to have soft corner with them. When he (PW1) was asked as to what does pairvi mean, initially he stated that could be answered by his Bhaiya i.e. Rakesh Shukla and Bhaiya had told him that he was doing pairvi from the side of the complainant. When further enquiry was made with respect to the said case, the said witness has stated that he did not know as to who were counsel in that case. In the hearing of that case, PW1 never appeared nor did he know as to who was Government Advocate. He also could not tell as to who were other accused involved apart from Shyam Singh and Bhan Singh nor does he know the names of witnesses of that case. If Rakesh Shukla has done any pairvi in that case, no specific mention has been made nor does this witness has any knowledge about the said case. On this point, PW1 has stated that Rakesh Bhaiya used to do pairvi, no supporting documentary evidence has come on record.
213. The trial court has further recorded that as far as the political rivalry from the accused Ashok Singh Chandel is concerned, PW1 has stated in that regard that earlier enmity was political. In elections, his family used to oppose Ashok Singh Chandel who used to contest the election of M.L.A. and had contested the election of Vidhan Sabha in the year 1996 but because of opposition being made by PW1, he had been defeated. On this point, cross-examination was made and the said witness had stated that Ashok Singh Chandel had remained M.L.A. from Hamirpur Constituency two terms and was M.P. from Hamirpur but he does not know as to from which party he had contested the election as he continued to change various parties and nor could he tell as to how time elections were held. He had contested the election of M.L.A. In 1993, 1996 and in the year 1993 he won the election while in 1991 he was badly defeated, although none from his family had ever contested the election against him while opposing him. Thereafter it was asked as to why opposition was done by him, this witness stated that his brother used to oppose him. It is further recorded in the impugned judgment that P.W.1 had stated that his family does not belong to any political party, earlier they were in Congress Party but now they were in B.J.P. and sometime they became M.L.A. from B.S.P. also and had opposed Ashok Singh Chandel in 1996 by supporting B.S.P.'s candidate Shiv Charan Prajapati. This witness has further stated that earlier he had not supported any political party but he does recollect that he had opposed Ashok Singh Chandel. On this point this witness's statement does not get corroboration from other evidence and therefore, the Court concluded that even if it be conceded that in 1996 or prior to that Shukla family had opposed Ashok Singh Chandel, in his opinion it was not such kind of enmity on the basis of which motive could arise for decemating the whole Shukla family.
214. Though the trial court had referred to a case law which provides that the enmity is double edged sword but further referred to the argument made from the side of the prosecution that now a days criminals were having upper hand in political field and that in the year 1999 Ashok Singh Chandel had been elected as M.P. on account of his muscle power, hence Court ought to take cognizance that considerable fall had taken place in social and political field. Contrary to it from the side of prosecution, it was argued before the trial court that being a M.P. was a thing of honour and that the said accused had won the election of M.P. because of his popularity among people. The trial court had opined that there is no impact of the fact that Ashok Singh Chandel was political person and a M.P. There is law to be followed in elections and as regards judgment in criminal matters, it has no concern that any accused won election and become M.P. because ultimately it would be held that he became M.P. due to agreed/laid-down procedure. There are extraneous factors evidence regarding which need not be considered in a criminal trial whether candidate was poor or rich as all were equal.
215. As regard status of informant, it is recorded that it has come in evidence that the father of the informant was still a Zamindar having huge status and it was argued before the trial court from the side of prosecution that from the side of accused various questions relating to criminal matters were asked from PW1 during cross-examination relating to his family and other members. It has come in evidence that the father of the informant namely Bheeshm Prasad Shukla was involved in a case of murder in 1996 at P.S. Kotwali, Hamirpur, this witness does not know about the said case; but the present document was placed, on which Exhibit Kha-11 was presented from the file of S.T. No. 6/68 and the certified copy of the FIR makes it clear that Bheeshm Prasad Shukla was named as accused in the said murder case.
216. Further it is recorded in the statement of PW1 Rajeev Shukla in paragraph nos. 18 and 25 description has been given of the criminal cases going on between both the sides which pertain to Maar-Peet, theft, loot and murder and number of certified copies have also been presented which were not possible to be referred because the case cannot be decided on anybody's status. It could not be made that there was different level of proof required from a person of status in a criminal case. The present case relates to murder, hence the accused were required to be proved guilty beyond reasonable doubt by prosecution for convicting them.
217. As regards time of incident, the trial court had recorded that although half hour would not important if the matter relates to illiterate villagers who do not keep watches but when occurrence is stated to have taken place in mid of the city in the night hour and where informant is an educated person, in a situation where the electricity was discontinued for half an hour and there was complete dark, it was very difficult to know about the occurrence and in such situation the time is of essence.
218. He further recorded in the judgment that according to FIR, the incident occurred at 7.30 p.m. on 26.1.1997 in Mohalla Subhas Market in district Hamirpur. The then S.P. Sri S.K. Mathur had sent Fax Exhibit Kha-7 to various higher authorities in which he had referred to FIR having been registered, in which he stated the occurrence took place at 7.45 p.m. from which conclusion has already been drawn on Exhibit Ka-1 Tehrir and Exhibit Ka-20, chik, were not those documents, which actually related to this incident. In this occurrence, S.P. would have remained there and when he sent Fax, Exhibit Kha-7 on 26/27.1.1997, in most of the offices, the said Fax was got received on 27.1.1997 in the morning and the events which have been narrated therein, according to them, the occurrence would have happened at 7.45 p.m.
219. PW1 has further stated that according to him 8-10 minutes after the occurrence had ended, they had started for hospital. In paragraph 123, he had stated that they had reached the hospital within 3-4 minutes and soon after that, the deceased were shown to the doctor who after having seen them had done dressing of this witness. This witness has made it clear that 10-15 minutes after reaching the hospital, the doctor had seen him and by this it gets wholly proved that this witness (Rajeev Shukla) would have been seen by Dr. N.K. Gupta, PW-8 at 8.30 p.m. when he was medically examined and was admitted in hospital. From the statement of this witness it becomes clear that the incident actually happened at 8.00 p.m. This fact gets substantiated itself from bed head ticket (B.H.T.) which was belonging to Rajeev Shukla, PW1 and which was prepared by Dr. N.K. Gupta, PW-8 and it also gets proved that this witness remained admitted at 8.30 p.m. and at that time there was mention made in English which if translated in hindi, would mean that this witness stated, at that time he had received injuries in firing about half an hour ago. This fact also has been proved by PW-8 Dr. N.K. Gupta by his statement in paragraph 10 that he had enquired from Rajeev Shukla and recorded his statement. Thus, it gets established that this occurrence had happened at about 8.00 pm.
220. Further the trial court has recorded that it was argued from the side of prosecution that according to medical jurisprudence of Modi a doctor would take minimum 5 minutes in declaring a person dead but in this regard prosecution side did not think it proper to ask any question from the doctor. Besides that, this would be applicable only when somebody dies in normal circumstance such as heart attack. If it be assumed that the head of a person is separated from body, in that condition whether doctor would take 5 minutes to declare him dead? The kind of injuries which have been received by the deceased, the doctor would have easily declared all the five accused dead within two minutes. Due to bad luck, part of the head of Ambuj had got blasted. Rakesh Shukla had also received such injuries, which would not take long time to understand them and to know that he would have died. Informant himself after having seen the dead bodies on the place of incident, had decided that Rajesh Shukla, Rakesh Shukla and Ambuj had died and he had only hope with respect to Sri Kant and Ved Nayak being alive. Even if the injuries received by these two i.e. Ved Nayak and Sri Kant are seen by a doctor, he would declare them dead within half a minute. Having discussed in this manner, the trial court has recorded that it does not find any force in the argument of prosecution side that in getting five deceased declared dead, minimum 25 minutes must have been consumed.
221. Further the trial court had recorded that its attention was drawn towards paragraph nos. 320 and 336 of the statement of P.W.1 by counsel of accused Naseem in which it has come that during the incident, it was the month of Ramzan when muslims keep fast. The time to break of Roza normally happens after the sun set, he could not tell. Roza is broken in the evening but he could not specify time for the same. By the time it is broken, time of Taravi Namaz almost reaches, he does not know. In paragraph 336 it has come that it is wrong to say that at the time of occurrence due to it being time of Roza, Naseem was getting down from his roof for the purposes of paying Namaz. On this basis, it was argued that this occurrence happened at the time of Namaz Isha but no such evidence has come on record which would show that at what time the said Namaz is performed. At the time of closing of argument during its reply learned counsel for the prosecution also presented a Jantri of Urdu, on the basis of which it was argued that on 26.1.1997, Namaz of Isha was performed at 7.30 p.m. but in the opinion of the trial court, the said document which was extraneous to the evidence on record, could not be taken assistance from and hence no benefit could be given to the prosecution side of this document.
222. The trial court has further recorded in respect of the time of occurrence that it was pointed out from the side of prosecution that PW-1 Rajiv Shukla has stated that he could not tell the time as to when the electricity was dis-connected on the date of occurrence and on his own he further stated that when he had reached the hospital, there was no electricity/light and referring to this, this was argued that DW-1 Lala Ram Kushwaha, Assistant Engineer, Electricity Department had deposed to the effect that at about 7:50 pm, the electricity of Hamirpur Kasba was disconnected, therefore, it should be understood that Rajiv Shukla reached the hospital at about 7:50 pm along with the deceased persons. There was no electricity, but the trial court has recorded that it appears that on previous dates, in cross-examination the evidence which had come on record, in the statement of Rajiv Shukla, as his statement had been continued on day to day basis beginning from 25.2.2002 to 20.3.2002, it was kept in mind and getting opportunity, he has tried to improve upon it and, hence he has stated that he could not tell as to when the light had been dis-continued.
223. We do not find this analysis made by the trial court to be logical because it is often seen that in hospitals even if the electricity supply is dis-continued, the alternative arrangement by way of generator etc. always remains available. Further the trial court has recorded that PW-1 and PW-2, both have stated that at the time of incident, rod/bulb were aglow on the Government poles and in the light of that, they had seen the occurrence, but it has not been recorded by PW-1 in the first information report. The other witness has also not stated so under Section 161 Cr.P.C. that there was light of rod on the place of incident, nor the same was stated by him to Investigating Officer of C.B.C.I.D. and this fact has come for the first time in evidence before the trial court. PW-2 Ravi Kant Pandey has also for the first time stated in court that there was light at the shop of Naseem but he did not state about it to the Investigating Officer. No evidence from the side of prosecution has come on record to the effect that there was generator being used, while DW-2 Lala Ram Kushwaha has certified that on the date of incident at about 7:50 pm, the Electricity Department had received information that electricity wire had broken on Akil Tirara, whereon the electricity supply from Kanpur intersection to Devi Das Mandir was shut down and in this area, the area of Subhash market and Suphiganj was also included and in restoration of the broken cables, the electricity supply was restored by 20:45 hours. Prior to this, at about 20:25 hours, the electricity was restored to hospital, Kalpi Chauraha and Saiyadwada but in Viveknagar, Subhash market and Suphiganj etc., there remained dark. It makes it clear that Ext. Kha-3 proves that on 26.1.1997 from 7:50 pm to 8:45 pm electricity supply was shut down and hence, there could be no light available on the Government poles of rod and bulbs and, therefore, the statements of PW-1 and PW-2 in this regard could not be held to be believable. It was further mentioned that DW-1 Lala Ram Kushwaha had clearly proved that after shutting down the electricity supply at 7:50 pm, he had gone to Akil Tiraha and had obtained information that about 15 to 20 minutes ago the cable had broken and there was no reason to disbelieve his statement because he had received information on telephone about this broken cable pursuant to which the supply was shut down and after its repair the electricity supply was restored. This witness had also stated that electricity phase giving supply to Subhash market and Suphiganj was dis-continued because of breaking of cable, although he has further stated that there were three phases and he could not tell as to from which phase the connection was given to Akil Tiraha.
224. We are not inclined to accept the above reasoning given by the trial court that there was no electricity on the date and time of occurrence simply because DW-3 has stated that there was receipt of information of cable having been broken because of which power was shut down in the said area where the incident happened. It is very common that in cities the public remains dependent not only on the road lights but they keep their own system of light such as generator etc. to meet out the supply needs. Moreover, DW-3 has also admitted that there were three phases and he could not be sure as to by which phase the electricity connection was given to the place where incident happened, hence it could not be ruled out that there would have been light of bulb and rod in which PW-1 and PW-2 would have witnessed the incident. It may also be mentioned that there being light of bulb and rod not being mentioned in the F.I.R. would not be treated to be any infirmity in prosecution case because F.I.R. is not an encyclopedia which is a settled position of law.
225. The trial court has further recorded that it was argued before it that the date of occurrence being Republic Day, it was very natural that the light would have been there in market but the trial court held on its own that it was not necessary that the electricity would have been there on the Republic Day it being night hours and that it could not be taken to be believable that on the said date, people would have illuminated their houses and shops on the said occasion because no such evidence has been brought on record from the side of prosecution. The trial court has further recorded that in the evidence of PW-2 it has come that when he reached the place of incident, the shop of Naseem was open and there was light in it but the shop was closed as soon as he reached there. The trial court has further gone on to speculate that it could be possible that inside the shop of Naseem, the light would have been generated by using lamp or candle but in the said light, the incident which is alleged to have taken place in front of the house of Parma Pandit which was to the west of house of Naseem at a distance, it was not possible for the prosecution side to identify the accused persons.
226. We are totally in dis-agreement with the finding of the trial court because much speculation has been made by the trial court in respect of the light being there on the spot. We do not find any reason to dis-believe the statements of PW-1 and PW-2 that there was light on the poles in which they had seen the occurrence and had identified the accused. The interpretation of the evidence made by the trial court in this regard appears to be biased and in-appropriate.
227. The trial court has taken up as to how the incident happened and has recorded that it was argued before it by the prosecution side that this occurrence was given effect to in a pre-determined manner while at the time of investigation, the framing of charge and adducing of evidence, no such case was placed before the trial court and accordingly, no charge has been framed by the trial court under Section 120-B IPC in this case.
228. It is further recorded that when the prosecution side drew attention of the trial court towards this fact, it was argued that the sequence of events and the circumstances are such which prove that the occurrence was premeditated and it was brought to the notice of trial court that Rakesh Shukla (deceased) and others had gone in Jonga to invite the family of his sister, who live in Sunrahi Gali, on the occasion of birthday of his child and this somehow came in the knowledge of accused persons that the deceased would be returning by the said passage (where the incident happened) and the accused were sitting in the shop of Naseem in order to ambuish the deceased on their return and from the side of complainant, Rajiv Shukla had gone out to give order for sweets and in the meantime, in front of the shop of Naseem, seeing Rajiv Shukla and Lallan (servant), Rakesh Shukla (deceased) halted his vehicle and started talking. It was argued before the trial court that it could be possible that sombody would have indicated under conspiracy to get the Jonga of the deceased halted and, thereafter, all the accused after having come out started indiscriminate firing upon those, who were sitting in Jonga and, thereafter, Raghuveer and others also came there and started firing. When the first part of the incident had been over, thereafter, Rajesh Shukla turned around his Jonga towards hospital and again these accused started firing and thus the second incident was also complete.
229. Further the trial court has recorded that it has come on record that after coming back to the house of informant from Sunahari Gali, there were three routes, in response to which from the side of prosecution it was stated that the house of Sri Kant was situated on the route of Subhash market, hence the complainant side would have returned from the said route, but the trial court has written that no body knows as to why deceased came by that route only, nor is it known as to whether the deceased had proclaimed from before about his return by that route or that somebody had told the accused side that the deceased would return by that route and, thereafter, there was no earlier scheduled programme that the deceased would stop his vehicle in front of the shop of Naseem. It is further recorded that by perusal of the first information report and the evidence given from the side of prosecution, it is clear that informant Rajiv Shukla and his servant, all of a sudden were seen by the deceased Rakesh Shukla and others in front of the Naseem Shop, where both of them met the persons sitting in Jonga, which was only an ill-fated happening, as there was no pre-determined programme of their meeting at the said place, hence the occurrence cannot be held to have been done with premeditated mind.
230. Further the trial court has recorded that now question arises as to how such huge in-human incident has happened which would shake one's heart? and further he went on to record that the F.I.R. and the evidence of prosecution does not throw any light on answer to the above mentioned question and in these circumstances, it becomes natural conclusion to be drawn that Rajiv Shukla was not present on the place of incident and his statement that after seeing him there, Rakesh Shukla had stopped his Jonga to talk to him and then indiscriminate firing started happening, seems unbelievable.
231. Further the trial court has cited 11 circumstances in the impugned judgment to prove that Rajiv Shukla (PW-2) was not present on the spot and the learned counsel for the respondents has argued that these circumstances shown by the trial court on the basis of which the said conclusion has been drawn by it that Rajiv Shukla was not present on the spot and hence, his testimony is not believable, is a reasonable conclusion drawn by the trial court which does not deserve to be set aside, as that is a possible view taken.
232. It would be appropriate for us to go through these 11 circumstances and to see whether actually the evidence which has been cited in respect of these 11 circumstances has been reasonably appreciated so that a person of common prudence would arrive on the same conclusion on which the learned trial court has reached or does it appear to be absurd and may result in failure of justice.
(1) According to PW-1, during first incident, from the Chabutra situated outside the shop of Naseem, firing was made by Ashok Singh Chandel by D.B.B.L. gun and Sahab Singh was having rifle, Shyam Singh with S.B.B.L., Rukku with D.B.B.L., Jhandu with D.B.B.L and Naseem with D.B.B.L. and gunner by his weapon, made indiscriminate firing upon Jonga and after hearing sounds of fire from the side of market, Raghuveer Singh with rifle, Uttam Singh with D.B.B.L. gun, Pradeep Singh with S.B.B.L. gun, Dabbu with D.B.B.L. gun and Bhan Singh with D.B.B.L. gun also came towards Jonga and also started indiscriminate firing upon it. It has also come on record that at that time Jonga was little towards west from the gun shop of Nasem and the assailants had spread on the Chabutara and were making fires. At the time of occurrence, the screen of Jonga from three sides i.e. the driver side, non driver side and rear side were rolled over and were tied and there was only one pole on the front screen of the Jonga, no wheel got punctured nor any shot was made on wheels; in screens of Jonga which were rolled, no through and through hole was found of any bullet; there was no hole on the front side of Jonga nor was there any hole on the rear side of it nor any hole was on the seats through and through; lights of Jonga were not broken; there was one hole on the left side in the body of the Jonga in the rear portion which was oval shaped but in straight line, there was no damage done to any part of the Jonga; the holes in seat which were stated by PW-4 and in screen, appeared to be because of the Jonga being old and much used; these holes were not of bullet injury; the hole was of the size 1.5 inch x 1 ¼ on the west side of the body of Jonga and no damage to the body of Jonga beneath that would make it clear that even that was not a hole of bullet; one mirror was found broken and its frame was only found fixed without any mirror; no broken pieces of glasses were recovered from the spot (It was argued that this was a wrong observation by the court). Thus, only one hole was found in Jonga which could have been caused by bullet, which was on the front wind screen on the right side. Therefore, the way in which the indiscriminate firing was stated to have been done upon the occupants of the vehicle by the above mentioned weapons by 12 persons did not match the condition of Jonga and the same makes the story unbelievable. Further it is recorded that it was also worth pointing out that the other incident which was stated by the prosecution to have occurred in front of the house of Parma Pandit, in which also 12 persons are stated to have made indiscriminate firing on the same Jonga from the front side, also makes it clear that this would show that Rajiv Shukla (PW-1) was not present on the place of incident at the time of first occurrence.
(2) It is further recorded that according to Rajiv Shukla (informant), at the time of first incident, he was on non-driving seat where he had gone to talk something and upon driving seat was sitting Rakesh Shukla. The face of Jonga was towards east right in the middle of road. To the south of this Jonga, on the patri of road, was located Chabutra which was in front of the shop of Naseem and from this Chabutara, Ashok Singh Chandel and others, in all, seven persons and from the western side Raghuveer Singh and others (in all five persons) started making indiscriminate firing. Rajiv Shukla stated that in this incident, he did not receive even a single pallet and also conceded that he had seen only one hole in the Jonga which was there in the wind screen and during this firing also the location of Rajiv Shukla is stated by him in paragraph 102 and 225. He was on the non-driving seat and prior to that he was in front of Jonga and after stepping back two paces, he saw all around, which shows that the way he has narrated the occurrence to have happened, if Rajiv Shukla had been there when the firing during first incident was going on, he certainly would have got hit by the bullets. Particularly when the intention of the accused persons was to decimate the entire Shukla family as is prosecution case, non receipt of any injury in the first incident totally belies the presence of Rajiv Shukla on the place of incident during the first occurrence.
In respect of first occurrence, the statement of PW-1 makes it evidence that in the said occurrence Rakesh Shukla, Ambuz, Sri Kant and Ved Nayak were killed and Vipul and Chandan became injured. He in paragraph 6 of his statement has stated that by firing in first incident, Rakesh Shukla, Gudda (Ambuz), Chandan, Vipul, Sri Kant and Ved Nayak had received injuries and in the same paragraph he stated that in the second incident of firing Rajesh Shukla, he himself, Ravi Kant and Har Dayal received fire arm injuries. In paragraph 227 of this witness, this witness has stated that after the first firing Ved Nayak and Sri Kant had rolled on their respective seats and accordingly half their body was below the seat while half on the seat and they were sitting on their respective seats in rolled condition. Rakesh Shukla had rolled on his own seat and Gudda had also rolled on his seat which makes it evident that these persons had died during the first occurrence.
(3) PW-5 Dr. P.N. Parya had found that injury no. 1 caused to Rakesh Shukla was fire arm wound of entry on left supra clavicular fossa and injury no. 2, which was exit wound, was on the right side of neck and on right supra clavicular fossa. The said injury could have been received by a person sitting on steering on the left side. PW-1 has stated in paragraph 227 of the evidence that after rolling of Rakesh, he was resting against the steering wheel which makes it evident that the said wound could have been caused from left side only and in this regard the statement given by Dr. P.N. Parya was not wrong, however, in respect of injury no. 3, he because of not paying attention, by mistake has gone on to say that the said injury was caused from the left side, because the same was not found to be on left arm. The trial court held that this witness did not pay attention to the fact that the said injury was on left arm on medial aspect and the exit wound of bullet was on outer side of left arm. Thus, the said injury would have been caused when hit from right side. The injury no. 5 of this deceased was found on the front side of left elbow and exit wound connected with this was injury no. 6, which was on rear portion. Upon head on the front side, on nose, left eye, left cheek, there were various wounds of entry measuring 20/11 cm and besides them, in front of the left shoulder and above the left chest, there were various wounds of entry measuring 11 cm x 6 cm. One wound of entry was found on the right finger. The injury no. 10 was such which was not possible to be received if he was sitting on the seat because there were plenty of entry wound which were present on right lower portion and upon right hip measuring 21 cm x 9 cm. There were wounds found of entry upon hip and it is the prosecution's case that this person at some point of time was also out of Jonga as well. The wounds of entry on the right thigh on outer side measuring 5 cm x 2 cm was also found. The deposition made by Rajiv Shukla in respect of the first incident does not find corroboration from the injuries found upon the person of the deceased Rakesh Shukla. From the side of prosecution, it was argued that it could be possible that while being fired upon from behind, he might have seen behind turning himself and in that process he may have received injuries nos. 1 and 2. The trial court has opined that if Rakesh Shukla had turned around to see, in that case he would not have been in a position to take a turn before the firing was also started being made upon him from the rear side because indiscriminate firing had been started already from the side of Chabutara and right in front of Chabutara, on the steering wheel was there the vehicle upon which Rakesh Shukla was sitting and the assailants who came from behind after some time, makes it clear that by that time, Rakesh Shukla and Ambuz might have already received fire arm injuries.
(4) Sri Kant who was behind non driving seat, had his face towards south and towards north was his back, about him it could be said that when the assailants came from behind and started making indiscriminate firing, he received injuries in the same, because of which he died. He received only one injury which appears to have been caused after taking aim because the said bullet injury was on the right side of the face, two and half centimetre towards his nose and its exit was from right side of the occipital part, beneath which scull was found fractured, about this injury Dr. P.N. Parya stated that the posture in which Sri Kant was stated to be sitting in, the said injury was not possible to be caused to him in Jonga, rather the said injury was possible to be caused to him if fired from the front. The trial court concluded that it appeared to it that the firing started from the right side of Jonga and at that time deceased Sri Kant would have been either out of jonga or near about it concealing himself and then he would have been aimed upon from behind by the assailants. In fact it appears that when the firing began, he was standing with his face towards west and was trying to save himself by concealing because he did not know that the assailants would come from the west also and would fire.
(5) Injury no. 1 of the deceased Ambuz had blasted his scull and his bones were found crushed which makes it evident that the said injury could not have been caused from Chabutara, rather the same would have been caused from a near distance. In this regard, PW-6 Dr. R.S. Gupta had made it clear that the said injury could have been caused from a distance of about 2 inches. Injury no. 2 of Ambuz was on the right side and injury no. 3 was 6 cm beneath neck. Injury no. 4 is entry wound of "EPI Gastreium" which is a wound of entry. All these injuries, particularly injury nos. 3 and 4, if they were caused from the front, by making firing upon Jonga, in such a situation, Jonga would be reduced in smithereens because Ambuz was sitting on the left side of driver seat in the front.
6. Ved Prakash Naik had received only one bullet injury by which bone of left jaw was hit, its seat of entry was 3 cm below from the outer angle of mouth and 2 cm away from the left eye, its exit wound was also found and maxillae and mandible bones were found fractured. The Court opined that the said injury was not possible to be recieved while somebody was not in sitting position and it appears that when fire was made towards driver side, to defend himself, he would have lied down and the said injury was made from close distance after taking aim. The persons who had fired upon Ved Nayak and Sri Kant, knew that the said injury were sufficient to cause their death as they were fired upon after taking precise aim from a close distance by making one shot each. The statement of PW-1 to the effect that they were caused from western side near Bakar Ki Gali, where Jaonga was fired upon, in this regard trial court has written that Bakar Ki Gali was about 30-35 paces away, hence the injuries caused to Ved Nayak and Ravi Kant do not find corroboration from the statement made by PW-1 and his statement stands belied.
7. At the time when site plan was prepared, Rajiv Shukla had stated at the time of first occurrence about his presence with his servant Lallan near Jonga in front of it, while in evidence he has deposed about his place that at that time he was standing near non driving seat of the jonga because he had gone to that side to talk. According to Investigating Officer, at the time of preparing site plan, he had prepared the same at the instance of Rajiv Shukla and the other witnesses and all the five deceased were stated to have been killed inside Jonga while the case of prosecution as narrated by PW-1 is that the murder of Rakesh Shukla was committed outside the Jonga. In the said site plan, Vipul and Chandan are shown outside the Jonga at place 'D' 'D'. Therefore, the trial court held that this was very important contradiction in prosecution version because those very witnesses at whose instance the site plan was prepared and one of them was informant, have stated contrary to the prosecution case. In the first occurrence, about seven persons are stated to have made fire by their weapons upon Ved Prakash Narayan and Sri Kant but they have received only one bullet injury each, in such a situation, the version of indiscriminate firing stands ruled out and stands in contradiction to the prosecution case.
8. In these circumstances, it becomes important that the prosecution ought to have taken statements of witnesses living in that vicinity as there were large number of houses, who might have seen the incident, but it is not done.
9. The informant has stated in paragraph 224 that Bhaiya, who was sitting on driver seat, from him, he was standing at a distance of about quarter length of Jonga towards non driving side. About this, this witness had stated in respect of his presence at the time of first occurrence. In paragraph 225, this witness stated that when the accused, who were on Chabutara in front of Naseem's shop, started going from there, then at that time, he was towards north of Jonga about two paces away from his original place because when firing happened, he had stepped behind two paces. At that time, he could not tell as to in which direction his face was, rather he was looking all around. By the time accused fled from there, he had not fallen and continued to defend himself from getting hit. After getting down from Chabutara, the accused fled on foot towards the market. The accused, who had come afterwards and had parked their vehicle, whether they had mixed up with the accused who were firing from the Chabutara, he does not know. Thereafter, some part of the statement of PW-1 is quoted by the trial court which is not conveying any significant meaning as it appears that some error is committed in recording statement. The trial court concluded that in these circumstances, it was not possible for PW-1 and his servant Lallan not to have received any injury and, hence, his presence on the spot has been dis-believed by it. PW-1 in paragraph 110 has stated that during first firing the occupants of the vehicle were kept sitting inside, none came out, at that time Ved Nayak and Sri Kant were sitting in the left side of Jonga facing each other. Behind the driver seat was sitting Ved Nayak and the behind the non-driver seat was sitting Sri Kant. Keeping this statement in mind and taking into consideration the injuries found upon the persons of Rakesh Shukla, Ved Nayak and Sri Kant, the death of Rakesh Shukla on the spot becomes suspect.
233. A perusal of above analysis made by the trial court appears to have been done over meticulously with lot of guess work made on his part. It is quite often seen that when indiscriminate firing is made by the assailants, it becomes very difficult for any witness to recollect as to who, out of them was making fire from which side and which hit on which side particulary when there was large number of accused involved in causing this occurrence. It is too much to expect from any witness to depose distinctly about each and every injury received by deceased and the other injured and also the names of particular accused who would have caused the said injury. In such cases, normally it is seen that the persons (accused) were present on the spot whether armed or empty handed and whether they had come on the spot with common object to kill someone and in prosecution of the same, whether they had actually caused injuries to the deceased or the other injureds. The trial court appears to have paid more attention to ascertain as to which particular injury was caused in what sitting position to the deceased/injured when they were stated to be sitting in Jonga. There could be a possibility in such a situation that some of the inmates would have tried to come down also of the vehicle in order to save themselves form getting hit and in the process would have received injuries and in that case the aim of the accused persons would have been mainly to kill them whether after taking aim upon them or by making indiscriminate firing which is immaterial, the trial court also appears to have gone astray in holding the presence of the PW-1 unbelievable only on the ground that he did not receive any injury during first incident, which is also erroneous view because no body can foresee or visualise as to how one would have defended himself in such a situation by concealing himself. Similarly, not finding too many holes of bullets in the Jonga also appears to be the reason why the trial court held that the presence of PW-1 appears to be doubtful on the place of incident and also has found the prosecution version to be doubtful because in case of indiscriminate firing, there would have been large number of bullet holes in Jonga and no collection of broken glasses etc. were found which we have held to be wrong mentioning of fact as some broken glasses were found in this case. Therefore, 11 points which have been taken above by the trial court in disbelieving the presence of PW-1 on the spot who himself is injured witness does not appear to be sound view of the trial court and the same deserves to be discarded.
234. Thereafter, the trial court has taken up the injuries of injured Rajeev Shukla in view of the argument made from prosecution side that injuries caused to this witness indicate that he was present on the spot at the time of incident. It is mentioned in the judgment that it was argued from the side of the prosecution (it appears that it has been wrongly mentioned that it was argued from the side of the prosecution as it appears to have been argued from the side of defence) that the injuries caused to Rajeev Shukla were forged, the medical examination report of his was forged, X-Ray plate and X-Ray report were also forged and in fact Rajeev Shukla was not present. In this regard as many as eight points have been raised in the impugned judgment by the trial court to reach the conclusion that the entire evidence pertaining to injuries of this witness Rajeev Shukla were forged and hence his testimony was not believable, which are as follows:-
(i) When Rajeev Shukla reached the hospital according to evidence on record Dr. K.N. Gupta, (PW8) was on casual leave, who stated that in the cases of this nature the matter is registered in Medico Legal Register while in cases of accident, injuries are recorded in accidental register of the injured person. He admitted that the injuries found on the person of Rajeev Shukla were related to the Medico Legal Register but they were entered in accidental register but why he did so, no satisfactory explanation has come on record. From the side of prosecution, an argument was put forward that medical examination report was prepared on back date and time in forged manner and by that time the cases of the said date had already been registered in Medico Legal Register and therefore the medical examination report of this witness was not possible to be entered anti-timed on 26.1.1997 at 8.30 A.M. because of that only entry about this case could be made in accidental register in which there was no case registered between 25.1.1997 to 27.1.1997 and in that even the date 26.1.1997 was also left blank. Therefore, trial court has concluded that because of this, after doing manipulation and back dating, the injury memo of this witness was registered anti-timing the same. Further, it is recorded that the fee which is required to be deposited in respect of medico legal case was not got deposited in the present case as has been proved by PW7 Dr. R.S. Gupta in his statement and therefore in trial court's opinion, the said argument of the defence side deserves to be accepted.
(ii) According to the statement made by Dr. N.K. Gupta, PW8 the injuries in the left knee on Rajeev Shukla on the rear side and in the upper half portion of the said leg in the interior side and on left thigh on the rear side and in half lower portion of the thigh and on whole right thigh on the rear were found. It is evident from this evidence the portion of below knee of the leg in the rear side is called ''Pidhli' (calf). In whole statement of this witness no injury was found on calf of Rajeev Shukla. When Rajeev Shukla went to lodge report and he was asked by PW9 Constable Mahesh Singh about his injuries at the time of preparing chik report and G.D. that he and other injured had got themselves treated in hospital and treatment was still being continued. G.D. writer also recorded that the injuries of Rajeev Shukla were inspected and he found bandage on both legs around Pidhli of this witness. This fact also stands corroborated by PW9 that when there was no injury in Pndhli of this witness, there could not be any occasion for the witness to have bandage there and that place where he stated injury to have been caused, for which he had come after having taken treatment, no description has been given in G.D. It makes evident that till that time the said injury was not in existence. It was argued before the trial court from the prosecution side that it could be possible that bandage might have slipped below therefore because of that reason it might have been mentioned in G.D. that a bandage was found in Pidhli. The trial court has opined that if the bandage would slip from thigh then that would not stop at Pidhli because thigh is much thicker that Pidhli. Besides that when G.D. writer asked Rajeev Shukla about his injuries he had shown him bandage on both Pidhli, if he had any injury on his thigh, certainly he would have shown that injury to him. It is further mentioned that it was not so that Rajeev Shukla was unconscious and was not in a position to make statement.
(iii) Rajeev Shukla was admitted for treatment on 26.1.1997 at 8.30 p.m. and on the next day in the morning at 9.00 a.m. he was discharged. There is no entry made in this regard on his B.H.T. when he was admitted in hospital while according to prosecution in the same night at 21.10. hours he had reached the hospital and thereafter he also went to the place of occurrence.
(iv) According to PW7 Dr. R.S. Gupta on the basis of X-Ray plate he prepared X-Ray report on 26.1.1997 in his supervision for which Rajeev Shukla had come in emergency ward on his own. According to doctor, he had not deposited the required fee. According to him the work of X-Ray was closed at 2.00 p.m. In these circumstances how X-Ray could be done on 26.1.1997 in the hospital is unexplainable. Besides that there was no date found on the X-Ray report, which becomes more important because in G.D. no. 34, time 15.10 hours dated 28.1.1997 of the police station, reference of which has come in the statement of PW12, S.O. Lal Man Verma in paragraph no. 121, according to it Rajeev Shukla, Ravi Kant, Hardayal,Chandan and Vipul were brought by constable Sri Deen on 28.1.1997 to Sadar Hospital, Hamirpur for X-Ray and had returned them home. It was worth mentioning that it was entered in record that Ravi Kant, Vipul and Chandan were brought by Constable Sri Deen for X-Ray on 28.1.1997, therefore, in these circumstances, the entry made in the said G.D. of 28.1.1997 could not be stated to be wrong. Therefore, the X-Ray report and X-Ray plate of Rajeev Shukla were wholly unbelievable. Further, it is mentioned that it is worth mentioning that on 26.1.1997 there was no entry made on B.H.T. that for X-Ray the patient was taken from emergency ward to the office of X-Ray. Apart from it, if there was great emergency that in the night itself after calling technician and doctors etc. it was necessary to get the X-Ray of Rajeev Shukla done on 26.1.1997 in the night itself and X-Ray plate and X-Ray report (Exhibit Ka-8) were prepared on 26.1.1997 in the intervening night of 26/27.1.1997 then the doctor who was treating Rajeev Shukla and was having status of a surgeon would not peruse the X-Ray plate and X-Ray report in the same night and would have made the entry in B.H.T. and would have attempted to extricate the pallet etc. It is further mentioned that Rajeev Shukla was discharged at 9.00 a.m. on 27.1.1997, till then the said surgeon would certainly have visited in routine visit and would have made entry in this regard in the B.H.T.
(v) No documentary evidence has been produced proving that any bullet was found present in the said injury of Rajeev Shukla which was ever operated and was taken out.
(vi) In these circumstances, it becomes significant that the Investigating Officer neither took the cloth of injured Rajeev Shukla into possession nor did he see them so that it could be proved that in those clothes there would be holes at the places where Rajeev Shukla had stated to have injuries.
(vii) It has also come in evidence of Rajeev Shukla that despite having received these injuries, he came to hospital driving the Jonga and his servant Lallan was also accompanying him and from hospital subsequently at the time of inspection of place of incident, the said Jonga was driven by Lallan to the place of occurrence. This makes it clear that Lallan knew how to drive Jonga. Injuries which were received by Rajeev Shukla taking those into consideration and also taking into account that three persons of his family and two of his close relative having been murdered in front of him, despite presence of Lallan, he could have driven the Jonga to the hospital despite being in bad state of mind.
(viii) The injury memo of Rajeev Shuklla is also under cloud because his parentage is mentioned wrong which was subsequently corrected after making cutting; the insertion was made subsequently of fire arm injury, deleting it, thigh was mentioned and there was cutting on it; in B.H.T. his entry was shown in hospital on 27.1.1997 but after cutting it, it was made 26.1.1997.
The trial court taking all these circumstances into account, held that all this makes the injury memo, X-Ray Plate and X-Ray report of the said witness to be wholly unreliable.
235. After citing the above portion of the judgment, learned counsel for the respondent argued that for disbelieving the presence of PW1 at the place of incident on account of his being an injured witness because his injuries were found by the trial court to be forged and fabricated as it was held that his presence could not be there because there were lot of discrepancies as at the time when he has been shown to have been admitted in hospital for treatment, he was shown to have gone to lodge FIR and therefore it was concluded by the trial court that the injury memos were procured by PW1 and his testimony in the form of eye witness was wholly unreliable and view taken by the trial court was a reasonable view which was possible to be taken on the basis of evidence appreciated by the trial court and the same should not be disturbed. We are not inclined to accept the argument of the learned counsel for the respondent in this regard because earlier also we have held that simply because PW1 had gone to hospital for getting himself to be treated initially and thereafter from there went to police station to lodge FIR is not to be disbelievable because it is even seen that in such cases where injuries are not too serious, he would have been permitted to go and lodge FIR and thereafter his treatment might have been continued and he would have been discharged on the next day in the morning at 9.00 A.M. The inference drawn by the trial court from evidence cited above is totally biased and inappropriate which does not stand to logic as a person of ordinary prudence would conclude. Therefore, we find that the finding of the trial court in this regard deserves to be discarded.
236. Next the trial court has dealt with the presence of PW1 at the time of second occurrence and has taken into consideration 13 points to form opinion and has held that even at the time of second occurrence, this witness was not present on the scene of occurrence.
(i) Prior to the second occurrence when Rajesh Shukla, Ravi Kant and other came on the spot and Rajeev Shukla was stated to be present there already whether Rajeev Shukla told them even a word about first occurrence, no such evidence has come on record. When after such a big occurrence had happened and family members and other acquaintances/friends could not reach the spot, it would be very natural for them that those who had seen the incident and were present on the spot, they would definitely tell them about first incident. It would be normal that after their arrival Rajeev Shukla would have stated that see Bhaiya how Ashok Singh Chandel and Raghuveer Singh etc. have ruthlessly murdered after making fires. Ravi Kant would definitely have asked as to what had happened to his brother Sri Kant, how it happened and who had done it.
(ii) At the time of second occurrence Jonga was turned around and its face was turned towards west for going to the hospital and Rajesh was about to drive the same, in the meantime second incident happened but neither Rajeev Shukla nor Ravi Kant sat in Jonga. When injured were being taken to hospital, then it was natural that Ravi Kant would have also sat in the said vehicle but in fact the deceased's brother Sri Kant who was being considered alive and relative of Ved Nayak and father of Bhagwati Saran in particular who was considering his son Ved Nayak to be alive and Rajeev Shukla whose dead brother and nephew were there, would all have sat in the said Jonga but it did not happen.
(iii) In the second incident also in-discriminate firing is stated to have taken place but Ambuj and Rakesh Shukla had already died in the first incident who were sitting in front but even then no fire arm wound was found in postmortem of these deceased which was caused to them subsequent to their death (post mortem injury) and the condition of Jonga also reveals that no such in discriminate firing would have been made and belies the incident.
(iv) During second incident of firing Rajeev Shukla has stated his presence on the spot in paragraph no.118 stating that after first incident Jonga was driven by Rajesh Bhaiya. When second incident had happened thereafter he drove Jonga. Rajesh Shukla had not received bullet injury when he was sitting in vehicle. As soon as the vehicle was turned around and as soon as accused were seen coming, then Rajesh had opened the door of Jonga by giving it a push and controlled himself and got down from it, in the meantime firing began. At that time he (PW1) was out of Jonga on the road towards right side of it i.e. towards driving side in the rear side, meaning thereby he was not right in front of driving seat. Rajesh Shukla had got down from the driving seat and had stayed there and then he had received fire arm injury, at that time he was not behind Jonga. The trial court has mentioned that this situation clarifies that had Rajeev Shukla been there on the spot, he would not have been alive nor would he have received injuries on his knee in the rear side. It was worth keeping in mind that it was the prosecution case that in the second incident soon after coming there, Ashok Singh Chandel exhorted his companions that today no one of Shukla family should be left alive and in pursuance thereof Rajesh was murdered. In such circumstances Rajeev Shukla despite being there on the spot would not survive.
(v) Rajeev Shukla had stated that no one of Shuklal family should be left this was exhorted by Ashok Singh Chandel and it was also stated by him that rifle was snatched away by Ashok Singh Chandel from the hand of Rajesh after having murdered him but this important fact was not mentioned in the FIR.
(vi) In the second incident Ashok Singh Chandel came near Rajesh to snatch the rifle and Rajeev Shukla was also standing near to him then how Rajeev Shukla could survive.
(vii) The injuries received by Rajeev Shukla were totally different size from the injuries which were received by all the deceased and that of the injuries caused to Rajesh.
(viii) If all these facts were to be over looked, which is though not possible, it be assumed that Rajeev Shukla was present at the time of second incident, then keeping this fact in mind that, in all the three injuries there were wounds of similar size and dimensions and in the rear portion of right thigh, in the rear portion of left thigh and below that in half portion in the area of 10x10 cm and behind the left knee and half upper portion of the same leg in the area of 16 x 8 cm the injuries were spread which makes it clear that he had his back towards the side of assailant and was at a distance from the accused, therefore, it was not possible for him to see the accused and identify them.
(ix) Rajeev Shukla has elaborated his statement and has stated that who among the accused was having which weapon, rifle or SBBL or DBBL guns and started all in-discriminate firing in both the occurrences, if that be kept in mind, it was not possible for him to see all of this and yet despite remaining on the place of incident, came away from there alive. In such situation, he could not have noted as to who was having which weapon in respect of 12 accused although had there been one or two accused, it could be considered possible for him to reveal about the weapons which they were wielding, therefore, all this makes the presence of Rajeev Shukla improbable at the place of incident.
(x) Rajeev Shukla has stated that in the first occurrence after coming there of Ravi Kant and others, he sent Vipul and Chandan home with some one but he could not disclose as to who was that person although it is worth mentioning that Vipul was three years old and Chandan was son of his deceased brother Rakesh Shukla, in such circumstances Rajeev Shukla would not have sent these children with unknown person, certainly the person with whom he had sent them, would have been a near relative. At the place of incident the persons who are stated to be there, out of them the names are stated to be of Rajesh Shukla, Ravi Kant, Bhagwati Saran, Sri Prakash and Anil and various other persons of Mohalla whose names he could not tell. Out of them Bhagwati Saran is father of deceased Ved Nayak, Sri Prakash is brother of Ved Nayak, Ravi Kant is brother of deceased Sri Kant. Non-disclosure by Rajeev Shukla of the name with whom he had sent these children makes presence of Rajeev Shukla on the spot to be doubtful.
(xi) According to Rajeev Shukla all the five deceased were taken to hospital in Jonga at one time simultaneously but the memo Exhibit Ka-18 which was issued from the hospital with these dead bodies and reference of which is made in G.D. No. 53 dated 26.1.1997, the doctor who had sent the said memo, had sent information to the Incharge, Kotwali to the effect that it was being informed by him that in the Emergency Department of District Hospital, Hamirpur five persons in injured condition and four persons in dead conditions, were brought. Thereafter, after giving details of the injured persons, doctor had made his signature and put the date 26.1.1997 time 9.00 p.m. and thereafter he had made a note to the effect that one dead person was brought in the District Hospital. The number of which was 5th. This makes it evident that all the five dead bodies were not brought to the hospital simultaneously rather the 5th dead body was taken to hospital on 26.1.1997 after 9.00 p.m. Referring to this part of evidence, the prosecution counsel had argued that Rajeev Shukla had stated in para 250 that he had gone to Kotwali by Rikshaw and not by Jonga and reason for this was that some ladies had come from home. One dead body was still in Jonga and the Jonga was surrounded by the ladies. When he reached hospital at about 7.45 p.m. taking all the five dead bodies which were examined by the doctor to know whether they were alive or dead, therefore, it does appear that four dead bodies had been taken inside the hospital and the 5th dead body was left in the Jonga itself. Even then he would have been knowing that five persons had died and their dead bodies were brought and if they had declared five persons dead after making check up, in such condition he would not have mentioned at 9.00 p.m. in the hospital that four dead bodies were brought, rather would have written five dead bodies were brought, out of which four were in hospital and 5th was lying in Jonga.
xii) PW1 Rajeev Shukla has assisted the Investigating Officer in preparing the site plan and in that he had indicated the murder of Rajesh Shukla to have been done inside Jonga while according to Rajeev Shuklla the murder of Rajesh was committed out side the Jonga.
xiii) No correction is made in the injuries which have been received by Rajeev Shukla in chik FIR.
237. In these circumstances, the presence of Rajeev Shukla on the place of occurrence does not bear out to be true and his statement appears to not believable. In regard to the above statement, learned counsel for the appellant had pointed out that all the conclusions which have been drawn above by the trial court are perverse which are based on conjectures and speculation and no man of common prudence would draw such conclusion out of the said evidence. The conclusions drawn appear to be biased in favour of accused deliberately while on the other hand learned counsel for the respondents have stated that the conclusions which have been drawn by the trial court are very logical and view drawn by the trial court is a possible view which does not require to be interfered with in the appellate jurisdiction.
238. Next, the trial court made consideration of evidence in order to form opinion whether PW2 Ravi Kant was present on the spot and in this regard, the trial court has considered 22 points and on the basis of that has held the statement of the said witness to be not believable as his presence has also been held to be suspect on the spot, which are as follows:-
i) Ravi Kant stated that when he made statement to the Investigating Officer about the occurrence, after recording the same, Investigating Officer had obtained his signature thereon.
ii) Ravi Kant has stated that he was milking and after hearing the sound of fire, he came on the spot while he stated to the Investigating Officer that he reached the place of incident when he received information in that regard.
iii) Ravi Kant has stated that he came on the road after hearing sound of fire and saw that Rajesh Shukla was coming running with rifle who told him that Rakesh Shukla had been shot at but he did not give such statement to the Investigating Officer.
iv) This witness has stated that he does not remember that at that time when he was rushing towards place of incident with Rajesh Shukla then other persons also were fleeing from there or not; whether scooter, motorcycle, rikshaw etc. were in movement on the said road or not; whether the local residents were peeping through their respective windows or not.
v) This witness has further stated that when he reached the place of occurrence, only one Jonga was standing there in which there were injured persons. They were Rajesh Shukla and Lallan and none else, while it has already been stated that Rajeev Shukla was not there, hence the statement of Ravi Kant is false one.
vi) This witness has also stated that when he reached near shop of Naseem there was electricity light but Investigating Officer has stated that no such fact was stated by this witness to him.
vii) This witness has stated that when he reached there, he saw that Rajeev Shuklla and Lallan were taking out Chandan and Vipul from the vehicle, who were sent home but the Investigating Officer states that this was not stated to him by this witness.
viii) When this witness was enquired as to with whom Chandan and Vipul were sent home, he replied that with some known persons of Mohalla, they were sent home but he could not tell his name nor could he tell whether they were taken in jeep or on foot and that they were taken by the said man alone or with some other persons.
ix) This witness told the Investigating Officer that hardly few steps ahead of the house of Parma Pandit had they reached, Rakesh Shukla, Rajesh Shukla, Gudda, Sri Kant and Ved Prakash were fired upon by all with an intention to kill them and fires were also made upon him (PW2), Rajeev Shukla, Chandan, Vipul, Hardayal Verma also with an intention to kill with common object. When in this regard PW2 was put a question, he could not deny about it, rather he avoided to give answer saying that he did not recollect, by which the trial court concluded that this would make presence of PW2 Ravi Kant on the spot to be doubtful.
x) This witness has stated that Rajeev Shukla took injured persons in Jonga to the hospital and further this witness has stated that he himself had seen whether Vipul and Chandan had reached home or not, had gone to house of Rajeev Shukla at his instruction, while this witness in para 52 has stated that he had given statement to Investigating Officer and CB CID that injured persons were taken in Jonga to hospital by Rajeev Shukla, Lallan (Hum Log) where doctor declared dead. He also states that he had given this statement which was correct and the trial court had deduced from it that both the above statements were contradictory to each other which make the presence of this witness doubtful on the spot.
xi) If this witness had gone to hospital with deceased and Rajeev Shukla then his treatment would also have been done in the hospital in case he was injured. This witness has suffered minor injury of one bullet on his left leg on the front side beneath the joint of knee, because his medical examination was not done immediately in the light at 10.00 p.m., therefore this witness now says that he had gone to the house of Rajeev Shukla at his direction to see whether Chandan and Vipul had reached the home or not and thereafter continued to stay there while his real brother Sri Kant who was in injured condition, and he was considering him to be alone, was lying dead in hospital. In such circumstances, it would be natural that he would also go in the said Jonga when the same was being reversed by Rajesh Shukla and would have gone to the hospital with his brother and would not have gone to house of Rajeev Shukla. If it be assumed that because of personal relation and nearness of family members, he would have acceded to the request of Rajeev Shukla that he should go and see whether Vipul and Chandan reached home safely or not even in that condition, this witness after reaching the house of Rajeev Shukla and after having known about Chandan and Vipul having safely reached home, would not have stayed till 10.00 p.m. at his house only, rather would come to hospital and try to know the details of treatment being given to his brother Sri Kant. Further if this witness had come the house of Rajeev Shukla to know whether Vipul and Chandan reached home safely that his brother Sri Kant had already died, in that condition, he immediately would have gone to hospital and would not have continued to stay at the house of Rajeev Shukla and would have waited for vehicle to come at the instance of Bhism Prasad, father of the informant. The trial court concluded that condition proves that he was not present at the place of incident.
(xii) This witness has stated that Ashok Singh Chandel had exhorted that no one from the family of Shukla should be allowed to survive, but this statement was not made by him before the Investigating Officer as is mentioned in paragraph no. 102 of his statement.
(xiii) This witness has stated that after having come to the place of incident, he came to know that Sri Kant had also received injury and he had seen his injuries also, but when it was enquired as to whether Sri Kant had received injuries, he responded that he did not recollect. It was important to mention here that Sri Kant had only one wound on the nape of his neck and its exit wound was behind his head therefore had Ravi Kant been present on the spot, at least he would have seen the injury which was on the face and that anyone who would see such injury, would never forget the same in his life.
(xiv) In para 54 of the statement of this witness, it is stated that he did not send information home of Sri Kant getting injured. His parents were not at home and elder brother had met in the hospital itself. According to document, this witness had reached the hospital at 10.00 p.m. then certainly he would have met his elder brother, in these circumstances the natural conduct would be that after having seen the incident when he went to house of Rajeev Shukla, he certainly would have given information about the occurrence at his home so that the elder brother would have gone to see Sri Kant, particularly, when his house was situated on way.
(xv) It has come in the evidence of this witness that at the house of Rajeev Shukla, he got to know about death of Sri Kant but did he try to find out about the condition of his brother from any one because he was in a lot of tension and from whom he would have tried to know about it. The trial court had recorded that even if it be assumed that there was no such person for sending home, he would have got to know the condition of his brother Sri Kant, he himself could have gone to know about it. It does not appear to be believable that even till l1.00 p.m. when he was at the house of Rajeev Shukla, he would not have received information of the deceased persons and about three persons of the said family having been murdered.
(xvi) This witness has stated that when he came to hospital for his treatment, he came to know that Sri Kant had died but he did not go to see his body which is natural.
(xvii) In para 99 of the statement of this witness, he has stated that by indiscriminate, he meant that all of a sudden they (accused persons) got town from their vehicle and started making firing which was continued for about 3-4 minutes but in second incident, looking to the injuries of the deceased Rajesh Shukla and the condition of Jonga, the allegation of indiscriminate firing having been made stands proved wrong.
(xviii) Unknown persons are also stated to be involved in this incident because in FIR "unnamed" has been mentioned. In the evidence adduced before the Court their number is stated to be "two" while during investigation, the Investigating Officer of CB-CID was told "Kuchh Log". Even description of such people was not stated by Rajeev Shukla and Ravi Kant.
(xix) This witness has stated that initially he was standing by the side of Rajeev Shukla, it was then that he received fire arm injury. After receiving fire arm injury, he went behind the Jonga. The trial court has recorded that when incident of firing started, one would immediately try to run to conceal himself and would not wait there to be hit.
(xx) On the one hand PW 2 has stated that soon after the accused got down from the vehicle and started in-discriminating firing while on the other hand he states that these people were strolling towards north-south of the road and also were firing simultaneously.
(xxi) This witness has stated that the description of unknown person was not made by him while he has given details of the weapons which were being held by all the known accused persons.
(xxii) In para 53 of the statement he has stated that he had taken Chandan and Vipul home because Rajeev Shukla had told him so, is entirely against the prosecution version.
239. After having citing the above 22 points, learned counsel for the respondents has stated that detailed assessment has been made of the evidence which has been cited also by the trial court on the basis of which it has drawn conclusion that PW2 was not present on the place of incident because of his conduct being unnatural. While on the other hand, learned counsel for the appellant has argued that this witness being an injured witness, his testimony is wholly believable and the interference drawn by the trial court dependes upon it conjectures and speculation which is not the right way to interpret the statement of an injured witness. We are of the view that though the trial court had collected the relevant statements in order to prove that this witness was not present on the place of occurrence when this incident happened but we are not inclined to accept the argument of the learned counsel for the respondent and find that the interpretation made by the trial court of the statement of this witness is wholly biased and contrary to the principle of law laid-down for appreciating the evidence of injured witness. We believe the testimony of this witness to be true and have no doubt that he was certainly present on the spot and had seen the occurrence. The conduct that he had gone at the instance of Rajeev Shukla to his home to find out about two children Vipul and Chkandan whether they had reached safely and then thereafter he stays there for long and did not immediately go to the hospital thereafter, to know the condition of his brother Sri Kant, who had died, we do not find this conduct to be unreasonable. In a situation like this when so many peoples were killed by accused-assailants, one would not be expected to behave in a certain manner which would appear to be reasonable. How a witness would react in such a situation may not be visualized and simply because of his erratic behaviour, his presence may not be disbelieved.
240. It is also recorded by the trial court that keeping in view the circumstances, other eye witnesses not being examined from the side of prosecution, is fatal for the prosecution case.
241. The trial court has taken up that both the eye witnesses Rajeev Shukla and Ravi Kant have stated that official gunner of Ashok Singh Chandel was present on the spot and had also made firing but after investigation, his involvement was found to be false. From the side of prosecution, it was argued that the police personnel had saved their colleague by erroneously investigating the case but the same was not to be accepted because of following reasons:-
i) Both the witnesses have given the details of the weapons being wielded by the accused person but could not tell as to which weapon was held by the official gunner.
ii) The weapon which was given to the gunner for security of Ashok Singh Chandel, no empty cartridges were found on the spot which might have been fired by the said official gunner nor any injury was found to have been caused to injured or deceased person.
242. Further, it is recorded that it was argued from the side of prosecution that Ashok Singh Chandel and Rukka both had absconded and thereafter they surrendered simultaneously and got themselves bailed out but their bails were rejected and then they were declared absconder and a prize was declared upon them thereafter Ashok Singh Chandel subsequently surrendered in Court but Rukka remained absconding and by this it is proved that Ashok Singh Chandel was actually involved in the episode of causing murder.
243. In respect of absconding of Ashok Singh Chandel, PW13, K.D. Pal was examined who has proved the proceedings of attachment of property, a perusal of document would make evident that he was declared absconder on 3.12.1997 and in October 1998 he surrendered before the court and got himself bailed out and on 21.5.1999 his bail was set aside by the High Court and order was issued for rehearing. From 31.5.1999 to 25.9.1999 his arrest remained stayed under order of High Court. On 1.8.1999 the Apex Court stayed the hearing and on 4.10.1999 his bail order was set aside as has been stated by these accused in the statement under section 313 Cr.P.C. In that statement he has further stated that he was elected M.P. on 6.10.1999 and on 13.10.1999 he took oath in Parliament thereafter he fell ill and could not appear before the Court on 29.1.2000.
244. The trial court has held that simply because he had absconded, does not prove charge against him because even innocent person may remain absconded due to fear and in the present case the sole effort from the side of prosecution had remained to prepare false document against the accused and in such circumstances, absconded accused does not prove his involvement in the crime and on the basis of evidence placed before the trial court, it held that it was not proved beyond doubt that this accused (Ashok Singh Chandel) was involved in this occurrence.
245. It is also recorded that from the side of prosecution, it was argued that the said accused had also made a reference of cross case being registered in the writ petition which would also indicate that he was involved in this case but even in this argument, the trial court held that the accused was free to take contrary pleas in defence and that the prosecution cannot build its case on the infirmities of the defence.
246. It was also argued from the side of prosecution that the accused Raghuveer Singh and Ashutosh had given an application before the Special Judge (Anti Dacoity) being Criminal Misc. No. 8 of 1997 on 21.2.1997 and despite order passed on that application, they did not deposit their weapons on the basis of that it should be presumed that they were involved in the occurrence. The trial court held that after perusing the document in this regard, it would reveal that after presentation of application on 21.2.1997 before long, on very next day i.e. 22.2.1997 charge-sheet was submitted against them by Investigating Officer. After submission of charge-sheet when case came before the trial court, there were no questions of depositing the weapons. Besides that from perusal of the concerned file, it is evident that this accused had given application in Court praying that their weapons may be got deposited through authorized person, which application was given on 19.3.1997. It is worth mentioning that the accused were in jail and could have gone to deposit the weapons as they could be got deposited through some other means but no such person was provided by the Court to them. Ultimately on 25.9.1998 Raghuveer Singh had deposited his revolver and rifle in Kotwali and Ashutosh had deposited his DBBL gun on 29.3.1999. During this period Raghuveer had been bailed out.
247. Next, it was argued by the prosecution side before the trial court that Ashok Singh Chandel had made various complaints against S.P.Hamirpur Sri S.K. Mathur in respect of his indulgence in corruption in which enquiry was also made. The trial court after making evaluation of evidence has given its opinion that the said complaint was not baseless and forged. It is also mentioned in the judgment that from the side of prosecution, an argument was made on conduct of P.D. Salaunia, DW2 who was Jailor of Hamirpur particularly in respect of the fact that when summon was sent to Jail Superintendent that jailor had come, the trial court held that he had simply discharged his duty to help the Court. From the side of prosecution the conduct of doctor was also adversely commented in which it was stated that PW7 Dr. S.R. Gupta had given statement in para 14 in order to help the accused that he had a dispute with Ahok Singh Chandel in 1992 which was small but District Magistrate and Superintendent of Police had to intervene. The trial court had held that such kind of comments were uncalled for and that the said statement was not made with a view to giving help to accused Ashok Singh Chandel. It is also mentioned in the judgment that from the side of prosecution it was commended that Dr. P.N. Pariya had stated the injury no. 3 to have been caused from the left side with a view to helping the accused, in fact, the said injury was received on the left arm on the left side. The trial court in this regard held that the doctor did commit mistake but the prosecution did not get the said witness further cross-examined nor gave any application for the same and held that the said statement was not given with a view to helping the accused deliberately. It would be pertinent to mention here by us that it is not mentioned by the trial court as to injury no. 3 of which accused was being referred by him here which makes judgment vague on this point.
248. The prosecution also assailed the statement of this witness in para 10 given in respect of deceased from which the fire was made because the distances were wrongly mentioned as he had colluded with the accused and was in influence of Ashok Singh Chandel. In this regard the trial court had given opinion that nothing was such in the said paragraph which could be taken to have been stated in favour of the accused which has been quoted by him in the judgment.
249. It is recorded in the judgment that from the side of prosecution the statement of PW6 Dr. R.S. Gupta was also referred in which he stated in para 5 that this injury could come by blast and it was argued that this statement was made by this witness in influence of Ashok Singh Chandel to help him but the trial court has negated the said conclusion drawn by the prosecution. It is further recorded in the judgment that from all above circumstances/facts it appeared to it (trial court) that the prosecution was busy in criticizing itself own witnesses while on the basis of the same it wanted to prove it's case. The prosecution side wanted only that much evidence to be taken to be true which came in its favour and whatever has been given against it, it is attributed to influence of Ashok Singh Chandel.
250. It is mentioned in the judgment that from the side of the prosecution, it was argued that five innocent persons were murdered, out of them, two were younger brothers of the informant, minor child who was nephew of the informant and two persons were close friends of the informant, in such circumstances why the informant would implicate innocent persons leaving aside the actual culprits. It was also argued that when five dead bodies were kept, in such situation when they are near and dear ones and relatives why the witness would tell the police administration to involve their enemies falsely. It is opined by the trial court in this regard that this situation would arise only when the informant knows about the actual culprits as to who committed the offence and when he and his wittiness had seen the occurrence. In a situation when there was no knowledge of fact and it is only a conjecture, in such situation it would not be surprising that old political rivalry between the family of Shukla (informant side) and the accused side which consists of Ashok Singh Chandel, Sahab Singh (his private gunner), Rukka, his driver, Naseem (who has gun shop) and used to sit with Ashok Singh Chandel in front of whose house the occurrence took place. According to informant, Shyam Singh Bhan Singh, Jhandu Singh lived with Ashok Singh Chandel, Raghuveer Singh, his friend, Ashutosh @ Dabbu son of Raghuviir, Uttam and Pradeep were in the liquor company of Raghuveer Singh and the informant believes that they all belonged to the same gang, hence it is not surprising that they all were made accused in this case.
251. Learned counsel for the appellant has cited the above paragraph and has argued that this is a perverse conclusion drawn by the trial court despite the fact that the prosecution has proved its case to the hilt by cogent and believable evidence while the trial court has simply explained away that the accused were falsely implicated without proper appreciation of the evidence.
252. Further, in the next paragraph of the judgement it was also pointed out from the side of the appellants, in which it is recorded by the trial court that in criminal matters, it is not necessary for the accused as to why they have been falsely implicated because it would be very difficult for them. In this matter, the accused persons have stated different reasons for being falsely implicated which were not simply their motives and because the prosecution case is not proved and therefore, there is no need to make any discussion on the same. In the same sequence, it is also mentioned by the trial court that when the first information report was lodged by the informant, in that he had written Sahab Singh son of unknown, Uttam Singh, son of unknown, Bhan Singh son of unknown, address of Sahab Singh was not written, name of father of Jhandu Arakh was not written, the name of father of Rukka was not written, address of Pradeep and Uttam was not written but 15 minutes thereafter he while making statement before the Investigating Officer, gave all the details and in this regard, he has given explanation that he did not remember the details at the time of lodging the report because he was mentally perturbed but he did recollect these details when he was making statement to which the trial court held that the same appears to be unnatural.
253. The trial court has summarized the following points which it had already discussed above, which are 37 in number and on that basis final conclusion has been drawn, which is as follows:-
i) The rifles of father of Rajesh Shukla which is stated to have been taken away by the accused from Rajesh Shukla, was not recovered.
ii) In the night of incident one rifle of 315 bore is stated to have been recovered from Sahab Singh as per fax (Exhibit Kha-7), which neither has been shown to have been recovered in document nor has been presented/produced.
iii) Weapons which were recovered from the house of Titu on suspicion that they might have been used in occurrence, were not sent to Forensic Science Lab for examination.
iv) No investigation was done regarding involvement of Tittu in this occurrence.
v) An effort was made to create evidence by carrying the Jonga at the place of incident again.
vi) Regarding unknown's presence, no investigation has been made nor any effort was made to know about their description nor any Mukhbir was contacted nor any other information was sought to be taken.
vii) No effort was made to make raid of shop of Naseem to immediately recover the weapons used in offence nor was any inspection made by going inside the shop of the weapons.
viii) Licensed rifle of Ashok Singh Chandel 8 x 60 bore was taken away and was foregedly planted upon Sahab Singh and the same was shown to have been recovered from the home of Sahab Singh. Rifle of 315 bore as per fax (Exhibit Kha-7) was stated to have been recovered and hence forged papers were prepared in this regard.
ix) Arrest of Sahab Singh was made in the night of 26.1.1997 by the then Superintendent of Police, Hamirpur while his false arrest is shown on 27.1.1997 at 6.30 p.m. from rear door of the house of Naseem.
x) Recovery of rifle 8x60 bore along with 18 cartridges was shown to have been made from the house of Ashok Singh Chandel and only 10 cartridges were shown.
xi) The expired railway card is forgedly shown to have been recovered from the place of incident belonging to Ashok Singh Chandel.
xii) Six empty cartridges of 12 bore and six empty cartridges of brass are stated to have been recovered but Investigating Officer had not stated that as to how many out of them were recovered from the place of first occurrence and how many from the place of second occurrence.
xiii) No effort was made to take accused on remand for recovering from them weapons used in commission of offence.
xiv) The statement of eye witness Hardayal was taken after much delay on 16.2.1997, similarly the statement of eye witness of Sri Prakash was recorded on 21.2.1997 and that of Anil Saran on 22.2.1997 after much delay.
xv) In this very serious and complicated matter, charge-sheet was submitted hardly on 22.2.1997 while the case property which was sent to Forensic Science Lab in April 1997 and the same was kept lying at police station prior to that and thereafter in the Malkhana.
xvi) Charge-sheet was submitted before Special Judge (Anti Corruption), Hamirpur wrongly while the case was mainly that of murder.
xvii) The blood stained soil was taken from one place of occurrence and not from the second place of occurrence.
xviii) The clothes of any injured in this occurrence were neither seen by the Investigating Officer nor were taken in its possession.
xix) No statement of any eye witness of the vicinity of the place of occurrence was recorded.
xx) No statement was recorded of any of the family members who were living in Sunahrigali whether brother-in-law of the informant lived, from where Rakesh Shukla and others were actually returning on the date of occurrence.
xxi) The X-Ray report of the injured was obtained by Investigating Officer after much delay on 18.2.1997.
xxii) The FIR was prepared ante-timed and the original written report was changed and in its place second written report was substituted on the basis of which chik FIR was prepared.
xxiii) Departure of S.I. Harish Chand was not made on 26.1.1997 and 27.1.1997 from police line, Hamirpur but Panchayatnama of Sri Kant Pandey, Gudda, Ved Prakash Narain are shown to have been prepared at the direction of Investigating Officer by S.I. Harish Chand Singh and the signatures of Investigating Officer Lal Man Verma are also made thereon. Therefore, probably the prosecution side despite summoning the S.I. Harish Chand Singh in Court did not produce him in evidence.
xxiv) The suspended S.I. Ram Sakat Tiwari and Roshan Lal Yadav, who were present on the scene of occurrence even then they could not stop this occurrence and their statements have not been recorded and thus the actual incident has not been allowed to come on record.
xxv) In small town of Hamirpur where indiscriminate firing was made for about 2-4 minutes twice but none heard the sounds at the police station nor they could know about the occurrence, while police jeep itself was stated to have reached the injured Hardayal who had received injury in this occurrence, to hospital at 8.45 p.m. and till then lot of crowd had assembled there and the dead bodies were also in the hospital premises while Kotwali was situated very near the hospital across the road.
xxvi) The vehicles by which the assailants are stated to have come, what was their registration numbers and what were their make, could not be sought to be known.
xxvii) S.I. Ram Surat Mishra whose statement was recorded by police under section 161 Cr.P.C. has not been included in the list of witnesses.
xxviii) To show false arrest of accused Sahab Singh, a forged parcha 2A has been prepared and also forged Parchas 3A and 3B have been prepared to show false recovery.
xxix) No documentary evidence was collected to prove the motive nor was any independent witness recorded.
xxx) There were relations of the accused among each other. No effort was made to know about it in detail and whether they belonged to the same group.
xxxi) Who had given information at the house of the first informant regarding first incident and on whose information Rajesh Shukla started from there, nor effort was made to know about the same.
xxxii) Soon after the first occurrence happened, how the residents who were living at Hathi Darwaja road at the place of incident from the western side and soon thereafter indiscriminating firing was started and in this regard no investigation is made.
xxxiii) How such heinous murder happened all of a sudden while halting of Jonga there by Rakesh Shukla was only a coincidence, on this point no investigation is made which could bring out truth.
xxxiv) Who reached Chandan and Vipul home, nothing could be found out about the said person nor his statements were recorded.
xxxv) No inviestigation was made regarding as to how informant knew Shyam Singh, Jhandu Singh and Uttam.
xxxvi) No shoes/slippers were found from the place of incident nor any investigation was done in this regard.
xxxvii) No convincing explanation has been given of the manipulation made in Panchayatnama of the deceased persons by the Investigating Officer and recorded the following sub points.
a) In the filling up of Panchayatnama of Rakesh Shukla, in respect of beginning of the same and its closing cutting has been made. In form no. 13 the time of sending the dead bodies to head quarter is recorded 23.25 hours while panchayatnama was over by 23.50 hours.
b) In the Panchayatnama of Rajesh Shukla there is cutting of time when it was finished. His Panchayatnama was done on 27.1.1997 which was concluded at 1.20 A.M. while the time of sending the dead bodies to Head quarter is recorded 00.40 a.m. which means that the dead bodies were sent before and Panchayatnama was continued even thereafter.
c) Cutting is found in the Panchayatnama of Sri Kant Pandey both in the time of its being started and being finished. His Panchayatnama was finished on 27.1.1997 at 2.50 a.m. while the dead bodies were despatched at 3.55 a.m.
d) There were cutting on the dates of initiating Panchayatnama of deceased Ambuj and also at time when it was concluded. His Panchayatnama began at 3.35 a.m. on 27.1.1997 and was concluded at 4.45 a.m. and time of despatch of dead body is 3.55 a.m. which shows that despite his body having been sent, proceeding of Panchayatnama continued.
e) Similarly in Panchayatnama of Ved Prakash, cutting was found on both its initiation and closure. It began at 5.00 a.m. on 27.1.1997 and was closed at 5.55 a.m. while his dead body was despatched at 3.55 a.m.
254. The above irregularities were very serious which goes to the root of the matter, which irregularities appeared to have been committed by those who prepared Panchayatnama and had proved that forged proceedings were conducted. From the side of the prosecution, it was argued that according to judgment of Apex Court in 1998 Cr.L.J 869 (Banwari vs. State) no ill effect would be there on the prosecution case even if Panchayatnama and post mortem is not done. The said ruling was distinguishable on the facts of the case and has given conclusion that the prosecution has failed to prove the case against the accused beyond reasonable doubt and passed the acquittal judgment.
255. It appears from the summary given by the trial court of the entire case in 37 points, it has disbelieved the prosecution evidence on technical ground rather than on proper appreciation of evidence of eye witness' account. The greater emphasis has been laid by it only on discrepancies which were noticed by it in the evidence which were adduced from the side of prosecution which we do not find to be proper because whenever the occurrence happened, it would be very difficult for any eye witness to give complete details as to how it happened, which accused was standing where, which weapon he was carrying, from which side he had made fire and which hit the deceased on which side, particularly when 12 assailants were making indiscriminate firing upon the deceased/injured persons. It may also be mentioned that recovery of weapons which were used in the incident are also corroborative piece of evidence and simply because weapons cannot be recovered by the prosecution/Investigating Officer, would not lead the court to conclude that the occurrence did not happen and was not caused by the assailants provided the eye witnesses' account is found to be trustworthy. In the present case the evidence which was cited by the trial court, the eye witnesses which it has disbelieved, we find the same to have been disbelieved not on sound basis and therefore, the judgment of the trial court seems to be wholly erroneous.
256. As per FIR, prosecution case is that on 26.1.1997 at 7.30 p.m. when PW 1 had come to the market with his servant Lallan to make purchase of some articles, his elder brother Rakesh Shukla and his two sons Gudda and Chandan and PW1's son Vipul, Sri Kant and Ved Prakash who had gone Sunehrigali to the house of brother-in-law of PW1 and were returning in Jonga and as soon as they reached in front of gun shop of Naseem, Jonga stopped and they started talking. In the meantime, from the side of house of Naseem, Naseem, Ashok Singh Chandel, Shyam Singh, Sahab Singh, Jhandu Arakh, Rukku (driver of Ashok Siingh Chandel), Ram Babu (Gunner of Ashok Singh Chandel) came armed with rifle and guns in their hands and in prosecution of common object of unlawful assembly formed by them armed with deadly weapons to kill, started firing upon them, hearing which from the side of market, other co-accused Raghuveer Singh and his son Dabbu Singh, Pradeep Singh, Uttam and Bhan Singh also came there armed with guns and rifles and started making fires upon Jonga which hit Sri Kant, Ved Nayak who were sitting behind and also Rakesh Shukla, Gudda, Chandan and Vipul who were sitting in the front, by which they fell in the vehicle. This incident followed stampede and market was closed. After information being given by someone, PW1's elder brother Rajesh Kumar Shukla, Ravi Kant Pandey, Bhagwati Saran Nayak, Sri Prakash, Anil and many other of the Mohalla also came there and thereafter all of them reached Vipul and Chandan home who had received minor ;injuries while rest of the injured were taken to hospital and as soon as they reached near house of Parma Pandit, Raghuveer Singh and Ashok Kumar Chandel came there with his companions and exhorted no one of their family should be left alive and started making indiscriminate firing by which his elder brother Rajesh Shukla fell down on the spot after getting hit by the bullets. PW1 received injuries in his legs and he also fell down. Ravi Kant Pandey also received injury. In this melee, after coming near Rajesh Shukla, the licensed gun which belonged to his father was taken away by Ashok Singh Chandel and by his vehicle fled towards Chauraha. After the accused had fled from the spot, he (PW-1) saw that his brother Rakesh Shuka, Gudda and Rajesh had died on the spot and Sri Kant Pandey and Ved Prakash believing them to be alive, were taken in Jonga to the hospital where doctor declared them dead.
257. It is apparent from above FIR that according to the prosecution, incident happened in two parts and all the 12 accused named above had initially caused incident in front of the shop of Naseem and thereafter when injured/deceased were about to be taken to hospital by the complainant side, they were again assaulted by the same accused persons in front of the house of Parma Pandit and in this incident, five persons have died namely Rajesh Shukla, Rakesh Shukla, Gudda, Sri Kant and Ved Prakash and five got injured namely informant Rajeev Shukla, Chandan, Vipul, Ravi Kant, Hardayal. Out of these injured witnesses, Rajeev Shukla has been examined as PW1 and Ravi Kant has been examined as PW2.
258. The prosecution story as narrated in FIR has been proved by PW 1, Rajiv Kumar Shukla who himself is an injured witness by stating that on 26/1/1997 at about 7:30 PM he and his servant Lallan were going to the market to purchase some articles and sweets and as soon as they reached near the gun shop of Naseem, from the side of market, Jonga of his brother Rakesh Shukla was coming in which his son Chandan, Gudda, his own son Vipul, Vednaik and Shri Kant Pandey were also sitting who were returning from the house of brother-in-law of Rakesh Shukla, seeing PW 1 Jonga was stopped there so that they could talk and in the meantime the accused named above in the F.I.R. armed with their weapons started making fire upon them which led to panic like situation in the market and market was closed. When this incident happened all those who were sitting in Jonga got injuries and the accused fled towards the market. In this firing Rakesh Shukla, Gudda, Chandan, Vipul, Srikanth and Vednaik received injuries. Ravi Kant Pandey, Bhagwati Sharan, Shri Prakash, Anil and Rajesh Shukla and various other persons of the Mohalla assembled there. Chandan and Vipul who had received mild injuries were sent home while rest of them began to proceed towards hospital and hardly they could reach near the house of Parma Pandit, Raghuveer Singh and Ors., meaning thereby Ashok Singh Chandel, Raghuveer Singh, Naseem, Saheb Singh, Jhandu, Shyam Singh, Pradeep Singh, Uttam Singh and Bhan Singh, Rukku and gunner Ram Babu and 2 unknown persons came there in a Sumo and a jeep and after getting down from it Ashok Singh Chandel exhorted that no one of this family should be left alive today, at this all the accused again started making a indiscriminate firing upon Jonga and upon PW 1. In the Jonga there were injured and Rajesh Bhaiya and in this firing Rajesh Shukla, PW 1, Ravi Kant Pandey, Hardayal received injuries and while making fires, Ashok Singh Chandel snatched away the rifle from the hands of Rajesh Shukla who was alive till then, which belonged to his father as it was his licensed gun. In this occurrence Rajesh Shukla, Rakesh Shukla, Gudda, Vednaik and Shri Kant had died on the stop but believing that they could be alive all were taken to hospital where they were declared dead. After this firing and before PW 1 could reach hospital, the accused fled towards the market. This witness has stated that in this occurrence he had received injuries on both his thighs and on calf. Apart from himself, Ravi Kant Pandey, Vipul, Chandan and Hardayal had also received injuries and who were medically examined. This occurrence was seen by him in the light of street light as well as light emitting from out of the nearby houses. This witness had dictated written report to Saraswati Sharan Dwivedi which has been proved by him as Exhibit kha 1 on the basis of which he had lodged the F.I.R. at the police station. The motive of this occurrence is stated by this witness to be political rivalry between Ashok Singh Chandel and the complainant side, details of which have already been mentioned above. Despite very long and searching cross-examination made by the defence side we find no such infirmity in the statement of this witness to disbelieve his presence on the spot. The trial court has made extensive analysis of his statement but while dealing with the said part of the judgment of the trial court we have already expressed that the deposition of this witness was found to be believable as he is an injured witness who had received injuries in this very occurrence. The site plan which has been prepared by the investigating officer during investigation also is found to be in consonance with the testimony of this witness and whatever minor contradictions are found to be there, we do not find them to go to the root of the matter. Much doubt was sought to be created in respect of the F.I.R. being not the same which was lodged by this witness because there was found to be difference in the written report and the chick F.I.R. and on that basis it was sought to be argued that the F.I.R. was anti-timed but that has been explained away by us while dealing with the said part of the judgment of the trial court and we have already opined that the said F.I.R. was not anti-timed even after taking into consideration the evidence on record which was pointed out from the side of the accused that he was admitted in the hospital on the same day when he had received injuries, because it was found by us that the hospital and the police station were very close to each other and therefore it was well within the reach of this witness to initially go to the hospital for his medical examination and thereafter to go for lodging the report and comeback for further treatment and get proper discharge thereafter. We find that there was enough motive for causing this incident because of political rivalry although from the side of accused it is stated that they have been falsely implicated for various reasons which have been cited above in their statements under sections 313 Cr. P.C.
259. The corroboration of the testimony of PW 1 is made by PW 2 Ravi Kant Pandey who is also an eye-witness of this case who has stated that on 26/1/1997 at about 7:30 PM when he was at home, he heard the sound of fires and came on the road and saw that Rajesh Shukla was coming running with Shri Prakash, Bhagwati Sharan, Anil and other residents of Mohalla and he was told by Rajesh Shukla that Rakesh had been shot at and thereafter he also ran towards the market with them and reached near the place where the shop of Naseem was located & in the light of electricity witnessed that Rajesh Shukla, Lallan were taking out Chandan and Vipul from the Jonga in injured condition and both these injured who had received minor injuries were sent home. In the Jonga there were Rakesh, Gudda, Srikanth and Vednaik in injured condition who were being taken to the hospital and hardly they could reach in front of the house of Parma Pandit, again the same accused came there in vehicles armed with weapons and started making indiscriminate firing upon the Jonga on exhortation of Ashok Singh Chandel, in which occurrence Rajesh Shukla received firearm injury and fell down and thereafter in the said firing PW 2 also received injuries, apart from him Rajiv Shukla also received injuries. PW 2 had received injuries in his legs and he also saw that Ashok Singh Chandel had snatched away rifle of Rakesh and all the accused fled from there. He has also stated that he has seen this occurrence in the light of electricity because there was electricity pole on which a rod/tube light was there. He also stated that Rajiv Shukla had told him that he was going to hospital and PW 2 should go home to see whether Chandan and Vipul who were sent home in injured condition had reached there safely or not and PW 1 himself had gone to the hospital taking with him the other injured persons/deceased. A very incisive cross-examination was made of this witness from the side of the defence but we do not find any substantial thing which would make us discredit the testimony of this witness which is stated above. The relevant part of his statement has already been quoted above on the basis of which his testimony has been discarded by the trial court, which was considered by us at the same place and it was expressed that the appreciation made by the trial court of his statement was not appropriate and the same deserved to be interfered. Both these witnesses i.e. PW 1 and PW 2 are injured eye-witnesses, hence their testimonies can not easily be thrown out merely because some superficial contradictions were found. We have already expressed very clearly in our earlier part of the judgment that such kind of occurrences wherein large number of accused are found involved, against whom the eye-witnesses, that too injured eye-witnesses, have clearly stated that the accused were involved, it is difficult to discard their testimonies. We have also simultaneously stated that it is very difficult in situations like this to remember all the details with respect to the incident and the manner in which actually the assault took place , therefore on small points/contradictions such as there being lack of light and there being some discrepancy in entry made in GD and some discrepancies in respect of some entries in the post-mortem reports with respect to the timings when it started and when it was closed, the truth of the occurrence cannot be disbelieved in which five persons have been inhumanly done to death and five other have received firearm injuries. There does not remain any element of doubt that PW 1 and PW 2 who are injured witnesses had actually seen the occurrence and were on the spot when this occurrence happened. Some doubt was sought to be created in the mind of court as to whether the occurrence happened when the occupants of the vehicle were inside it or were out of it because the seat of injuries of the deceased as well as injured , according to the defence side, were not in consonance with the statements of doctors who conducted the medical examinations of the injured and the post-mortem of the deceased. Again in this regard we would like to reiterate that when such kind of incident takes place in which large number of accused have participated in giving occurrence to the incident in prosecution of their common object of eliminating the entire family of the informant because of political rivalry, to remember that who was firing from which side and where it hit, would be difficult to notice, understand and remember and also in the testimonies of the witnesses who actually had seen the occurrence there may also be inconsistencies but that would not be belie the occurrence. It is well established that this occurrence has been seen by these two witnesses. Nothing in the cross-examination of PW 2 has been elicited which would make us believe that his testimony was false with respect to this occurrence and that he had not seen the occurrence. Both these eye-witnesses have taken names of all the above named accused persons to be there who were involved in giving effect to this occurrence.
260. Some doubt was also sought to be created in the mind of court by arguing that the condition of Jonga would not have been the same as it was found to be in because hardly few holes were found in it and that, had there been indiscriminate firing made upon the Jonga, then it would have been riddled with bullets, but we do not find that to be a ground on which we should discard the testimony of PW 1 and 2 in respect of the occurrence.
261. Doctor P N Parya (PW 5) has proved the post-mortem report of deceased Rakesh Shukla as Exhibit Ka 3, Rajesh Shukla as Exhibit Ka 4 and Shri Kant Pandey as Exhibit Ka 5 and in these reports he has clearly stated the injuries which were found on the person of these deceased were that of fire arm and the details of which have already been cited above by us and he has also given suggestion that these injured could have died by the fire arm injuries which were caused to them on 26/1/1997 in the evening, therefore the injuries found in post-mortem of these three deceased persons are found corroborated by the ocular testimony of PW 1 and PW 2.
262. Doctor RS Gupta, PW 6 had conducted post-mortem of deceased Ambuj @ Gudda alias Ambuj and proved his report Exhibit Ka 6, of deceased Ved Prakash and proved his report Exhibit Ka 1 and further stated that both these deceased had died due to fire arm injuries found on their person, details of which have already been cited above by us in cross-examination of this witness, we do not find any such thing which would make us disbelieve his statement in examination chief. He has also proved the approximate timing of their death to be the same as is mentioned in F.I.R.
263. Dr. S R Gupta has proved as PW 7 X-ray report of injured Rajiv Shukla (PW 1) which is Exhibit Ka 8, who had examined him on 26/1/97 and on the same day he had also examined other injured Hardayal Verma and proved his x-ray report as Exhibit Ka 9. He also had examined Vipul whose injury memo is proved by him as Exhibit Ka 11 and also examined Chandan whose medical report is proved by him which is Exhibit Ka 12. These injuries clearly prove that these injured persons had received injuries in this incident which has been seen by PW 1 and PW 2. An in-depth cross-examination was made with respect to entry of cases in medico-legal register and accidental register but that controversy does not require to be looked into by us as we do not find that it would make any adverse impact on the case of prosecution. We find the testimony of this witness to be creditworthy as nothing in the cross-examination has come out which would make us disbelieve his testimony.
264. Dr. N K Gupta examined as PW 8 has proved injuries upon the body of PW 1 Rajiv Shukla which are found by him of firearm and were three in number. The proved injury memo is Exhibit Ka 13 and he also examined Hardayal Verma who also suffered the injuries of firearm in this occurrence and his injury memo is proved by him as Exhibit Ka 14. This witness also examined Ravi Kant and found one firearm injury on his leg and that too was of fire arm and proved his injury memo as Exhibit Ka 15. This witness also examined Vipul and he was also found to have suffered one firearm wound which was proved by him as Exhibit Ka 16 and lastly he examined Chandan who also was found to have two firearm injuries on his person and his report is Exhibit Ka 17. This witness has clearly stated that all these injuries were possible to have been received on 26/1/1997 at about 7:30 PM which finds corroboration from the ocular testimony of PW 1 and PW 2. In cross-examination some difference in ink was pointed out to be there found in entries made in the accidental register and also doubt sought to be created that why the names of these injured and their injuries were not registered in medico-legal register instead were mentioned in accidental register, we are not inclined to discuss this matter much because we do not find this anomaly to be of any substance to reach the truthfulness of the occurrence. Regarding PW 1's admission on 26/1/97 at 8 PM in hospital and in that view of the argument of the defence that FIR should be treated on this ground to be anti-timed as this witness who is also the first informant could not have lodged the report, had been admitted in hospital and was discharged on the next day at 9 AM, we have already discussed this matter in earlier part of the judgment holding that it could be possible that he might have been allowed to go by the Doctor and lodge the F.I.R., and comeback and would have been officially discharged the next day at 9 AM. Therefore we do not find any such thing in the testimony of this witness so as to make us disbelieve his testimony.
265. Constable Mahesh Singh (PW 9) is a formal witness who had written chick F.I.R. and GD and the controversy with respect to several omissions found in chick F.I.R. while copying from the written report, have already been dealt with by us in the earlier part of this judgment at length hence it does not require to be repeated here.
266. Head constable Munna Lal Mishra is a formal witness of this case whose testimony is not of much consequence.
267. Constable of Aftab Ali has proved Exhibit Ka 24 with is recovery memo, which relates to arrest of Sarnam Singh, Naseem, Bhan Singh and Shyam Singh from the side of the house of Naseem at the tipoff of police and from search on these persons 10 cartridges and a rifle were recovered from Sahab Singh while from rest of the accused nothing was recovered. He has proved recovery of one DBBL, 1 rifle and 10 cartridges in one belt, 8 empty cartridge of 12 bore out of which 7 were of red colour, 1 of green colour and 3 were of 12 bore and 8 empties of rifle. The rifle was exhibited as material Exhibit 52 and cartridges where marked material Exhibit 54 to 63. It was argued from the side of the respondent that the testimony of this witness was not believable because he did not recollect even the time of mukhbiri nor could he give the distance from the said place where mukhbiri happened. It was also pointed out that he did not make any effort to take public witness from the road nor could he give details of such persons whom he had spoken to to be witness. He could not give any details about the house of Naseem which would indicate that he had never been to the said place. The number of jeep he could not remember by which the raid was made nor clear entry of the said jeep was found to be there in GD of the police station. He had denied the suggestion that under the pressure from SP, the rifle along with cartridges (14 - 15 in number) were taken away from the house of Ashok Singh Chandel and the same were shown wrongly to have been used in this occurrence and have been shown to have been recovered from accused Sahab Singh. We will deal with the evidence of the recovery of this weapon at appropriate place.
268. Lal Man Verma is investigating officer of this case who has been examined as PW 12 who had gone to the place of incident soon after the incident and had prepared the site plan at the instance of the informant and the eye-witnesses which is Exhibit Ka 25, had collected blood stained coal-tar, soil and grass etc. from the place of occurrence and had made its recovery memo which is Exhibit Ka 26, had also prepared recovery memo of 12 cartridges which were found on the spot which is Exhibit Ka 27, also found one Manarth card from the place of occurrence belonging to Ashok Singh Chandel, memo of which was Exhibit Ka 28, also had taken pieces of bloodstained footrest and broken glasses from Jonga recovery memo of which is Exhibit Ka 29. He went to the hospital and found 5 dead bodies and prepared their panchayatnamas and other relevant documents which have been exhibited, details of which have already been mentioned by us in the earlier part of the judgment. On 27/1/1997while taking search of the accused on tipoff from mukhbir, arrested Naseem, Shyam Singh, Bhan Singh and Sahab Singh from the rear portion of the house of Naseem at 6:30 PM and on search of accused persons one rifle was recovered along with 10 cartridges, recovery memo which is Exhibit Ka 24 and after concluding the investigation filed charge sheet Exhibit Ka 58 against all the accused. He has also proved the charge- sheet against accused Sahab Singh under sections 25 of Arms Act and the charge- sheet under section 30 of the Arms Act against accused Ashok Singh Chandel which are Exhibit Ka 59 and 60 respectively, which were in the handwriting and signature of investigating officer R N Singh Pal, who had died but he was conversant with his writing and signature and also proved the prosecution sanction which is Exhibit Ka 61 which was in the handwriting of DM B P Sharma, with those handwriting and signature he was conversant. In cross-examination made from the side of defence he has been extensively cross-examined in respect of the place of occurrence as shown by him in the site plan and all the details have been given by him where the incident happened both during the first incident and the second incident, the said statement finds corroboration from the eye-witnesses PW 1 and PW 2. This witness has found the implication of Ram Babu, Gunner of Ashok Singh Chandel to be wrong. His statement has been recorded in the earlier part of the judgment at length and we find that nothing such has emerged in his statement which would make his testimony to be untrustworthy and we find that he did not conduct the investigation under any kind of influence from SP as was suggested from the side of defence with whom Ashok Singh Chandel was said to have enmity.
269. K D Pal, retired Sub Inspector has been examined as PW 13 who was posted in Hamirpur at the relevant time mainly with respect to declaring the main accused Ashok Singh Chandel to be absconder and the same has been marked as Exhibit Ka 63. He is a formal witness, hence his testimony need not be discussed in detail.
270. Sukhram Sonkar, retired Deputy SP, has been examined as PW 14 who had conducted the investigation from the side of CB CID and has proved the report submitted by him which is Exhibit Ka 64 and has been stated in cross-examination that he was satisfied with the charge sheet submitted by police hence and that he did not consider it necessary to file a separate charge sheet.
271. The trial court itself had examined S I Ram Surat Mishra as CW 1 whose testimony mainly relates to an effort made to recover the weapons belonging to accused Raghuveer Singh and Ashutosh, but the same could not be found despite his repeated efforts. He is only a formal witness.
272. The main defence which was taken by the main accused Ashok Singh Chandel was that he was falsely implicated due to political rivalry and that it was actually being heard that Rajesh, Rakesh, Gudda, Vipul had left their Jonga in the market on the middle-of-the-road because its fuel had exhausted and then these people were making purchases holding the finger of Vipul. Alok Purwar alias Titu, who was owner of the patrol pump and had lot of influence over police administration, told them to remove the vehicle, but these persons told him that they would remove the vehicle only when diesel would come and at this Alok Purwar alias Titu and his companions who were armed, abusingly started pushing the said vehicle which escalated the dispute and Rakesh and others were also armed with weapons and firing started happening between the two sides which led to stampede, in that very incident Srikanth and Vednaik received fire arm injuries along with Vipul and Gudda, Rakesh and Rajesh died on the spot. Unknown persons reached the dead bodies of four deceased persons to the hospital and one other dead body which was lying somewhere else was also reached to the hospital and these people had also given arms of the deceased to the police and it was also heard that in this incident some bomb was also blasted. The said defence is not found to be borne out from the evidence which has been gathered in respect of this occurrence by the prosecution side, hence the version of the main accused is not found substantiated.
273. In defence Lala Ram Kushwaha was examined as DW 1 who was mainly produced to establish that there was no light on the scene of occurrence because the cable which was responsible for supply of light in that area, had broken and the same was restored subsequently but during the time when incident is stated to have happened, there was no light, but we do not find his testimony to be creditworthy because even if such kind of breakdown happened, it could not be believed that there was no light at all in which the accused persons could have been recognised by the complainant side particularly when they were known to them. And it was also discussed by us that this witness had admitted that there was three-phase connection, therefore even if cable of one phase was broken, the possibility of the supply of light by other phases could not be ruled out as the eye-witnesses i.e. PW 1 and PW 2 have clearly stated that there was light on the electricity pole on the said date in which they had seen the occurrence.
274. Prem Das Salonia has been examined as DW 2 from the side of defence and in view of his statement which is cited above in the earlier part of the judgment we do not find his testimony to be of much significance.
275. Constable Akilesh has been examined as DW 3 in defence who appears to have been examined only to prove enmity between Ashok Singh Chandel and the then SP Sri S K Mathur, but we do not find his testimony to be of much significance.
276. From the side of appellant following case laws have been relied upon:
(i) In Masalti vs State of U.P., (1964) 8 SCC 133, the death sentence on ten members of unlawful assembly was justified where their participation and gruesome nature and manner of the murder of five persons was established.
It has been laid down in this case that where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill five persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult, but criminal courts have to do the best in dealing with such cases and it is the duty to sift the evidence carefully and decide which part of it is true and which is not.
Further it is held that what has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that, however, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common object specified by the 5 clauses of sections 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It would be correct to say that before a person is held to be a member of unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of common object of the assembly. In fact sections 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in the prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence and that emphatically brings out the principle that punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.
It is further laid down in this case that in a murder trial when the accused person stands charged with a commission of an offence punishable under sections 302, he stands the risk of being subjected to the highest penalty prescribed by the Indian Penal Code and naturally judicial approach in dealing with such cases has to be cautious, circumspect and careful. In dealing with such appeals or reference proceedings where the question of confirming a death sentence is involved, High Court has also to deal with the matter carefully and to examine all relevant and material circumstances before upholding the conviction and confirming the sentence of death. All arguments urged by the appellants and all material infirmities pressed before the High Court on their behalf must be scrupulously examined and considered before a final decision is reached. The fact that 10 persons had been ordered to be hanged by the trial court necessarily imposed a more serious and onerous responsibility on the High Court in dealing with the present appeals.
It is further held that there is no doubt that when a criminal court has to appreciate the evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
277. We do not have any quarrel with the above position of law and would like to mention here that in consonance with the above principles of law, the evidence of the eye-witnesses who are stated to be partisan have been meticulously scrutinised and their presence on the place of incident was found to be believable being injured witnesses. It is also found proved that all the accused had formed an unlawful assembly armed with deadly weapons with an object of the said unlawful assembly being to eliminate the deceased persons and in prosecution of the same the assaults were made by them in which five persons lost their life and other 5 had received injuries some of them serious.
(ii). In Praveen Kumar vs State of Karnataka, 2003 (47) ACC 1099 the appellant was a regular visitor to the house of Appi who along with her son Govinda, daughter Shakuntala and granddaughter Deepika were found murdered in her kitchen. The trial court convicted the appellant on circumstantial evidence because recovery of gold ornaments was made at the instance of appellant from the place near his house four days after incident. Some ornaments as belonging to the victims were placed with a firm. These facts were established by prosecution through Mahazar documents and by evidence of Panch witnesses. The fact of ornaments belonging to the victims being in constructive possession of appellant immediately after murder, in absence of any explanation, led to the clear inference that appellant had robbed the victims of ornaments and had committed murder in the process. The appellant was found guilty of committing cold-blooded murder of four persons of one family with motive of looting gold ornaments, who was 31 years of age at the time of occurrence and in such a case sentence of death was fully found justified.
(iii). In State of U.P. vs Gokaran and others, AIR 1985 Supreme Court 131, it is held that ordinarily Supreme Court does not interfere with the acquittal recorded by High Court but when incrementing evidence of a satisfactory character is brushed aside mainly by relying upon a few circumstances which do not go to detract from value of such incriminating evidence, it becomes a duty of Supreme Court to interfere with the acquittal in order to redeem the course of justice. In a trial on charges under sections 436/149, 302/149 and 307/149 IPC, the High Court adopted a hyper technical approach to the entire prosecution case, particularly the direct ocular testimony furnished by the three injured witnesses, whose presence at the scene of occurrence could not be doubted, much was made of the circumstances which did not detract from the evidence. Further, some of the circumstances relied on by the High Court for acquitting the accused, were inferential in nature while some were innocuous or immaterial and none was of such a nature as would detract from the probative value of a strong and consistent ocular evidence furnished by the eye-witnesses particularly the injured inmates of the house when the dacoity was committed. It was held in the facts of the case that the High Court had clearly erred in relying upon the circumstances for the purpose of rejecting the prosecution story and the acquittal of the accused was not proper and he was liable to be convicted. The judgment of Allahabad High Court was reversed.
(iv). In Menoka Malik and others vs State of West Bengal and others, 2019 (106) ACC 291 it was held that where a large number of offenders and a large number of victims are involved, evidence of only two or three witnesses, who gave consistent account of the incident, would be sufficient to sustain conviction. It is further held that on the basis of embellishments and inconsistencies in the testimony of witnesses cannot be discarded in toto as the doctrine of falsus in uno falsus in omnibus is inapplicable in Indian scenario. The entire evidence of the witness cannot be ignored on the ground of improvements and minor variations in the evidence if that does not affect the root of the matter. Further it is held that in a situation where conflict occurs between ocular testimony and medical evidence, the ocular testimony shall prevail. Where the eye-witnesses account is found to be trustworthy, credible, the medical opinion pointing to alternative possibilities cannot be accepted as conclusive. In this case the prosecution case was that 250 - 300 party workers of CPI (M) armed with ballam, lathi and tangi set on fire houses of IPF members, assaulted them and destroyed household articles. The trial court gave benefit of doubt and acquitted all the 32 persons. The High Court found no perversity or gross procedural error of law leading to glaring injustice. There was no significant variation in testimonies of the prosecution witnesses. The presence of witnesses was not doubted. Certain minor variations which were natural in the testimonies were consistent with material facts. Primafacie, court could visualise common object from the evidence. It was held that High Court failed to consider whether trial court brushed aside material evidence related to issue of murder, attempt to murder, house burning: grievous hurt and unlawful assembly. The view taken by the High Court was held to be not reasonable. The fact that 24 witnesses suffered injuries, could not be disputed. The High Court failed to exercise its revisional jurisdiction in accordance with established principles, hence matter was remanded to the High Court to undertake proper consideration of material with the application of judicious mind to find whether trial court's order caused gross miscarriage of justice, manifest illegality or perversity.
278. It is apparent from the above quoted citations that the principle of falsus in uno falsus in omnibus has been discarded by us as it is not applicable in India and whatever was found to be believable out of the testimonies of the eye-witnesses, on the basis of that only the judgment of conviction has been passed because the appreciation of evidence made by the trial court was totally against the principles of law and no person of common prudence would draw the conclusions which the trial court has drawn and hence the said conclusion had to be reversed.
279. From the side of the respondents following case laws have been relied upon:
(i). In Dilawar Hussain etc vs State of U.P. Gujarat and another, 1990 JIC 865 (SC), it is held that sentiments or emotions, howsoever strong are neither relevant nor have any place in a court of law. Acquittal or conviction depend on proof or otherwise of the chronological chain which inevitably comprises of why, where, when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecution. Each link, must be so consistent that the only conclusion which must follow is that the accused is guilty. Although guilty should not escape. But on reliable evidence truthful witnesses and honest and fair investigation reliance must be placed. The heinous-ness of crime/or cruelty in its execution, howsoever abhorring and hateful, cannot reflect in deciding the guilt. The credibility of witnesses has to be measured with same yardstick, whether it is ordinary crime or a crime emanating due to communal frenzy. In this case eight persons of other community had been burnt to death in their house in a most inhuman, ghastly and dreadful manner but the prosecution failed to prove identity of accused persons, the manner of the attack and also the location from where eye-witnesses had seen the incident and with these infirmities, the prosecution case was found doubtful , hence it was held that accused were entitled to acquittal.
(ii) This Sheo Swarup vs Emperor, Cr LJ 1935 786, it has been held that sections 417, 480 and 423 of the Code gave to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon the power, unless it is found expressly stated in the Code. But in exercise of power conferred by the Code and before reaching its conclusion upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with Rules and principles well known and recognised in the administration of justice.
(iii). In Prandas vs the State, 1954 Cr LJ 331 (Supreme Court) the following is held:
"(6) it must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under sections 417 Cr. P.C. to reverse the judgment of acquittal unless the judgment is perverse or the subordinate courts has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under sections 417 Cr. P.C. in an appeal from an order of acquittal has been stated in ''Sheo Swaroop vs Emperor', AIR 1934 PC 227 (supra)"
(iv) In Tota Singh and another vs State Punjab, 1987 Supreme Court Cases (Cri. ) 381, it is held that the jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is initiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore liable to be characterised as perverse. The two views are possible on an appraisal of evidence adduced in the case and the court below has taken a view which is plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.
(v) In Dhanna vs State of MP, (1996) 10 Supreme Court Cases 79, the High Court found that there was no unlawful assembly as the strength of the assembly was insufficient to constitute it into "unlawful assembly". But if the court enters upon a finding that any of the remaining persons who participated in the crime had shared common intention with the main perpetrators of the crime, the court is not helpless in seeking the aid of Section 34 IPC to enter a conviction against such persons arraigned as accused. This is despite the difference between the scope of Section 34 and Section 149. Yet they have some resemblance between each other and are to some extent overlapping. It is, therefore, open to the court to take recourse to Section 34 of IPC even if the said Section was not specifically mentioned in the charge and instead Section 149 IPC has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. It is also held that though the court does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate court are concerned, certain unwritten rules of adjudication have been consistently followed by judges while dealing with appeals against acquittals. No doubt, High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate court has to bear in mind: first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him, he would retain that benefit in the appellate court also. Thus, the appellate court in appeals against acquittals, has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed.
(vi). In Chandrappa and others vs State of Karnataka, (2007) for Supreme Court Cases 415, the following general principles regarding power of appellate court have been laid down while dealing with an appeal against an order of acquittal:
(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of the appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If 2 reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court.
(vii) In Samghaji Hariba Patil vs State of Karnataka, (2007) 1 Supreme Court Cases (Cri. ) 113 it is held that the High Court should not ordinarily reverse the judgment of acquittal when two views are possible. When the trial court's judgment cannot be said to be perverse or that the view taken by it was not possible, the High Court should not reverse the trial court's judgment.
(viii). In Murlidhar @ Cridda and another vs State of Karnataka, 2014 (5) SCC page 370 it is laid down that the appellate court must bear in mind the following while dealing with appeals against acquittal:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against conviction is but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of the acquittal is not justified. Unless the conclusions reached by the trial court palpably wrong are based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
280. We do not have any quarrel with the principles of law laid down in the above citations relied upon by the learned counsel for the respondents and find that the interpretation made by the trial court of the evidence on record was totally against the principles of law and if interference was not made that would result in miscarriage of justice.
281. In the light of above analysis we have come to the conclusion that it is well proved on the basis of evidence on record that the accused respondents named above had formed an unlawful assembly armed with deadly weapons and had all come prepared in prosecution of their common object to eliminate the entire family of informant and his friends and in prosecution of the same they assaulted the complainant side which resulted in deaths of five persons and injuries to other five, therefore we find that on the basis of evidence discussed above the prosecution has succeeded in proving the case against accused respondents namely Raghuveer Singh, Asutosh Singh @ Dabbu Singh, Uttam Singh, Pradeep Singh, Ashok Singh Chandel, Naseem, Shyam Singh, Sahab Singh, Jhandu and Bhan Singh under sections 148, 302/149, 307/149. Accordingly they are held guilty and convicted under the above-mentioned sections. All these accused are sentenced to undergo rigorous imprisonment for 3 years for an offence under section 148 IPC and a fine of rupees 5000/- each and in default they shall each undergo further simple imprisonment of 6 months. All these accused are sentenced to undergo 10 years rigorous imprisonment for an offence under section 307/149 IPC and a fine of rupees 10,000/-each and in default of payment of fine they shall further undergo 6 months simple imprisonment. All these accused are further sentenced to undergo life imprisonment for an offence under sections 302/149 IPC and a fine of Rupees 20,000 each and in default of payment of fine they shall further undergo 6 months additional simple imprisonment. However, the acquittal of Ashok Singh Chandel u/s 379 & 404 IPC by the trial court is upheld. The offences under those sections not being proved.
282. The Government Appeal 5123 of 2002 deserves to be partly allowed and Criminal Revision No. 1548 of 2002 is disposed of accordingly and the impugned judgment as regards acquittal of above accused for offences under sections 148, 307/149 and 302/302 IPC is set aside. All these accused are on bail except Shyam Singh, respondent no. 7, therefore their bail bonds and personal bonds are discharged, they shall be taken into custody and shall serve out the sentence awarded to them
283. In respect of the case under sections 25 of Arms Act against Sahab Singh, we are of the view that the evidence against him of recovery of fire arm weapon, though has been sought to be proved on the basis of police witnesses, we are of the view that the prosecution ought to have made effort to take public witnesses of recovery. The witness concerned has failed to give even names of such persons who would have been asked to be witness of the said recovery, which would go to show that no effort had been made to take public witness to prove the said recovery. Therefore we do not find it safe to convict Sahab Singh under sections 25 of Arms Act, but even in absence of his conviction under sections 25 of Arms Act, in view of eye-witnesses account in respect of his involvement in commission of above-mentioned offence of murder and attempt to murder in prosecution of common object of the unlawful assembly will remain unaffected. Nowhere it is essential that for proving case under sections 302/149 IPC it would be necessary to establish the recovery of weapon of assault also.
284. As regards charge under section 30 of Arms Act against the accused Ashok Singh Chandel, we would like to mention that Section 30 of the Arms Act provides that whoever contravenes any condition of licence or any provision of this Act or any rule made thereunder, for which no punishment is provided elsewhere in this Act, shall be punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to Rs. 2000/- or with both. It is evident from evidence on record that prosecution has failed to prove as to the breach of which of the conditions of licence has been done by the accused Ashok Singh Chandel, the same has not been clarified neither during argument nor otherwise. Evidence which has come on record appears to be that according to Ashok Singh Chandel the police had gone in his absence and had taken away weapon and cartridges. From the said evidence it does not stand proved that this accused made any breach of conditions of licence, therefore we are of the view that he deserves to be acquitted for an offence under sections 30 of the Arms Act.
285. Accordingly the acquittal of accused Sahab Singh for an offence under section 25 of Arms Act and acquittal of accused Ashok Singh Chandel for an offence under Section 30 of Arms Act are upheld/affirmed and the Government Appeal no. 5123/2002 and Criminal Revision No. 1548 of 2002 are partly dismissed against acquittal for the above-mentioned offences of the above two accused respondents.
286. Let a copy of the judgment be transmitted to the trial court for immediate compliance along with record of the lower court with the direction to ensure that the accused respondent nos. 1 to 6 and 8 to 10 are taken into custody to serve out the sentence. The respondent no. 7 is already in jai, he shall also serve out the remaining sentence.
287. Appeal is partly allowed and revision is accordingly disposed of.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Dated: 19.4.2019
A.Mandhani/AP Pandey/AU