Allahabad High Court
Gajraj Singh vs State Of U.P. on 23 January, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on: 20.11.2018 Judgment delivered on: 23.01.2019 Court No. - 1 Case :- CRIMINAL APPEAL No. - 1530 of 2011 Appellant :- Gajraj Singh Respondent :- State Of U.P. Counsel for Appellant :- S.P.S. Rathore,Lav Srivastava,V.P. Srivastava,Vijay Singh Sengar Counsel for Respondent :- Govt. Advocate (connected with) Case :- CRIMINAL APPEAL No. - 721 of 2011 Appellant :- Hari Singh And Others Respondent :- State Of U.P. Counsel for Appellant :- Vinay Saran,Ajay Kumar,Anvir Singh,G.S.Chaturvedi,Prem Shankar,Vijay Singh Sengar Counsel for Respondent :- Govt.Advocate,D.P.Singh,S. Niranjan (connected with ) Case :- CRIMINAL APPEAL No. - 832 of 2011 Appellant :- Anar Singh Respondent :- State Of U.P. Counsel for Appellant :- Saurabh Gour,A.B.L.Gour,Anvir Singh,Arimardan Yadav,Hitesh Pachauri,Jadu Nandan Yadav,Syed Mohammad Abbas Abdy Counsel for Respondent :- Govt. Advocate,Rajul Bhargava,V.S.Dwivedi (connected with) Case :- CRIMINAL APPEAL No. - 872 of 2011 Appellant :- Sadhu Singh Respondent :- State Of U.P. Counsel for Appellant :- P.C. Mishra,Vijay Singh Sengar Counsel for Respondent :- Govt. Advocate,V.S.Dwivedi Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)
1. Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Saghir Ahmad, Sri Vijay Singh Sengar and Sri Anvir Singh, learned counsel for the appellant, Sri Dharampal Singh, learned Senior Advocate, assisted by Sri S.Niranjan, learned counsel for the complainant, Sri Jai Narayan, learned AGA for the State and perused the record.
2. In this judgment, we are dealing with four criminal appeals i.e. Crl. Appeal No. 1530 of 2011, preferred by appellant- Gajraj Singh, Crl. Appeal No. 721 of 2011, preferred by appellants- Hari Singh, Sripal Singh, Shyam singh, Het Singh and Crl. Appeal No. 832 of 2011, preferred by appellant- Anar Singh and Crl. Appeal No. 872 of 2011 preferred by the appellant- Sadhu, against common judgment and order dated 24.1.2011 passed in S.T. No. 281 of 1981, State of U.P. Vs. Sadhu Singh, S/o Chheda Singh and six others, u/s 395, 364, 147, 148, 302/149, 201 and 120-B IPC, P.S. Patiyali, District Etah, pertaining to Crime No. 170 of 1980, whereby all the appellants have been convicted and awarded following punishment and all the sentences are directed to run concurrently.
3. During pendency of appeal, appellant Shyam Singh died and his appeal has been abated on 22.11.2013, while appellant Het Singh also died hence his appeal is also abated on 6.8.2014.
4. Sr. No. Name 364 read with Section 120 B IPC 364 IPC 147 IPC 148 IPC 302 IPC read with Section149 IPC 201 I.P.C.
395 IPC 1 Sadhu Singh 10 Years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of two months 2 Years R.I. 3 Years R.I. Life imprisonment, Fine Rs. 25,000/-, In default of payment of fine, additional imprisonment of 5 months 7 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months
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2Anar Singh
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10 Years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of two months 2 Years R.I. 3 Years R.I. Life imprisonment, Fine Rs. 25,000/-, In default of payment of fine, additional imprisonment of 5 months 7 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 10 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 3 Gajraj Singh
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10 Years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of two months 2 Years R.I. 3 Years R.I. Life imprisonment, Fine Rs. 25,000/-, In default of payment of fine, additional imprisonment of 5 months 7 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 10 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 4 Hari Singh
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10 Years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of two months 2 Years R.I., 3 Years R.I., Life imprisonment, Fine Rs. 25,000/-, In default of payment of fine, additional imprisonment of 5 months 7 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 10 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 5 Sripal Singh
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10 Years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of two months 2 Years R.I. 3 Years R.I. Life imprisonment, Fine Rs. 25,000/-, In default of payment of fine, additional imprisonment of 5 months 7 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 10 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 6 Shyam Singh
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10 Years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of two months 2 Years R.I., 3 Years R.I., Life imprisonment, Fine Rs. 25,000/-, In default of payment of fine, additional imprisonment of 5 months 7 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 10 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 7 Het Singh
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10 Years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of two months 2 Years R.I. 3 Years R.I. Life imprisonment, Fine Rs. 25,000/-, In default of payment of fine, additional imprisonment of 5 months 7 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months 10 Years R.I., Fine Rs. 5000/-, In default of payment of fine, additional imprisonment of 2 months
5. Since all the appeals arise out of common judgment, they are being taken up together and are being decided by this common judgment.
6. Since these appeals are very old, we have taken assistance from the learned counsel for the appellants as well as learned counsel for the informant side as well as learned A.G.A. with respect to number of accused who were charge sheeted and how many out of them had actually faced trial and whether there were any other accused who had yet to face trial and their status and to our query, a brief note was submitted by the learned counsel for the appellants- Vijay Singh Sengar, in which he has clarified that charge sheet no. 16 (Ext.Ka-36) dated 2.8.1998, was filed against 12 accused namely Latoori Singh (appellant), Sadhu Singh (appellant), Het Singh (appellant), Gajraj Singh (appellant), Hari Singh (appellant), Sripal (appellant), Ram Prakash, Jai Singh, Raj Ram, Manohar, Constable 143 Gangadhar shadow, Chandu @ Chandra Prakash.
7. Apart from this, six accused have been pointed out to be absconders in this case, their name being (1) Jabar Singh (2) Ram Kishor (3) Lala Ram (4) Shyam Singh (5) Nanhey (6) Anar Singh, against whom the proceedings under Section 82 and 83 Cr.P.C. are reported to have been completed but their arrest was yet to be made. Further it is mentioned that a supplementary charge sheet, 1/16, Ext. Ka-35 contained names of three accused namely (1) Shyam Singh (2) Anar Singh (3) Nanhey @ Sri Niwas.
8. From the impugned judgment, it is apparent that as many as 12 accused namely, Latoori Singh, Sadhu Singh, Gajraj Singh, Hari Singh, Constable Gangadhar, Raja Ram, Manohar, Jai Singh, Het Singh, Shyam Singh, Anar Singh and Sripal, were charge sheeted by C.B.C.I.D. u/s 395/397, 364, 365, 302, 201, 120B IPC and because of death of accused Latoori Singh, Raja Ram, Manohar and Jai Singh, the cases had been abated against them and because of accused Gangadhar remaining absent through out, his file was separated by order dated 15.11.2007, therefore, the trial court held the trial in the said S.T. of only accused Sadhu Singh, Gajraj Singh, Hari Singh, Anar Singh, Sripal, Shyam Singh and Het Singh.
9. In brief the facts of the case are that informant Genda Lal (PW-1) had lodged a written report (Ext. Ka-1) at P.S. Patiyali on 18.11.1980 stating therein that his friend and a prominent worker of the party and also Ex- M.L.A. Sri Sateesh Chandra Sharma, had gone to his village Divaiya on 16.11.1980 for installation of hand-pump, for which cavity was being bored. He received an information in the night that he had gone for boring with gun of his brother and at about 11:30 in the night, 15 to 16 miscreants came there and had abducted him along with gun. At that time, there were labourers there as well as Prem Pal Singh R/o Lyondiya etc. Further it was mentioned in the written report that in 1969, Sri Sateesh Chandra Sharma (deceased) had also been shot regarding which a case was filed and its hearing was underway, in which M.L.A. Latoori Singh was an accused and on the previous date in the said case, the counsel for Latoori Singh had sought adjournment and had not cross-examined the witness in defense with a view to protracting the case and because of this, deceased Sateesh Chandra Shamra had given an application in court expressing apprehension therein that if the said case was further adjourned, he along with his witnesses could be murdered. Thus, the informant had full belief that the deceased Sateesh Chandra Sharma had been got abducted by Latoori Singh, the then M.L.A. and prayed that a case be registered in this regard. Upon the receipt of the said written report (Ext. Ka-1), the Head-mohrrir, Harihar Singh registered the case crime no. 170 of 1980, under Section 395/397, 364, 120B IPC at report no. 11, time 08:35 a.m. on 18.11.1980 and prepared chick F.I.R. which is Ext. Ka-24 and made entry of this case in G.D. which is Ext. Ka-25. The investigation of this case was handed over to S.H.O. Patiyali, Sri O.P. Sharma, who inspected the place of occurrence and prepared site plan (Ext. Ka-28) and also recorded statements of witnesses. On 12.3.1981, S.H.O. Kannauj, Keshav Singh Rana, received information through informer that at the house of Babooram Jatav in village Imaliyapur Poorva, there were persons present of Chhaviram and Mahaveera Gang, who had fire arm with them and upon receipt of the said information, he made raid along with other police personnel and also taking along public witnesses. Upon the said raid having been made, from the house of Babooram Jatav, accused Ram Prakash (PW-3) came out and started fleeing from there, who was arrested with a country made pistol and five cartridges, which were taken in police possession and were sealed. When interrogation was made from accused Ram Prakash, he stated that about four months back at the instance of Ex. M.L.A. Latoori Singh, other Ex. M.L.A., Sri Sateesh Chandra Sharma (deceased) was kidnapped by his companions and his dead body was buried in the field of Het Singh Yadav, the memo of the said confessional statement (Ext. Ka-7) was prepared. The S.H.O., Kannauj, had apprised the Circle Officer, S.P. and S.S.P.. Etah about this confessional statement of accused Ram Prakash (PW-3). On 13.3.1981, the said accused was taken to Fatehgarh vide report no. 5 (Ext. Ka-9). Thereafter, S.H.O. Keshav Singh Rana (PW-8) and S.S.P. Girdhari Lal Sharma along with force went to Naglabani with accused Ram Prakash and there they had also called S.D.M., Aliganj and at the pointing out of accused Ram Prakash, from the field of Het Singh Yadav, got dug out the dead body of Ex. M.L.A. Sateesh Chandra Sharma (deceased), which was buried six feet deep in a pit. At the direction of Sri Babu Lal, S.D.M., Aliganj (PW-9), S.I. Vedi Singh prepared panchayatnama (Ext. Ka-3) of the deceased and also prepared other challani papers such as Photo Lash- Ext. Ka-15, Challan Lash- Ext. Ka-16, report C.M.O.- Ext. Ka-17, report R.I.- Ext. Ka-18 and sealed the dead body for being sent for the post-mortem. Further soil was taken from the said place and its memo was prepared which is Ext. Ka-4 and near the dead body were found, shoes Angauchha and 50 paisa coin from the pocket of Kurta and its memo was also prepared which is Ext. Ka-5. The site plan of the place where dead body was recovered, was also prepared by Investigating officer which is Ext. Ka-29. On 14.3.1991, the post-mortem of the deceased was conducted and its report was prepared which is Ext. Ka-34. Thereafter Investigating Officer had taken the accused Ram Prakash S/o Harsukh Ahir, R/o Nagla Babri Majra Nauganv, P.S. Kayamganj, District Farrukkhabad, for his statement to be recorded under Section 164 Cr.P.C. before Judicial Magistrate, Etah, which was recorded. The witness Phool Shri, PW-6, was also presented before the Judicial Magistrate on 19.3.1981 by the Investigating Officer for her statement u/s 164 Cr.P.C. In both these statements of Phool Shri and Ram Prakash, they stated that dead body of deceased Sateesh Chandra Sharma had been buried there after being murdered in front of accused Latoori Singh, M.L.A., and his companions. Thereafter, the investigation of this case, was handed over to C.B.C.I.D. and the following facts came to light.
10. It was found that the accused Latoori Singh Yadav. M.L.A., R/o Village Nagla Tapua, P.S. Aliganj and deceased Sateesh Sharma Ex. M.L.A. R/o Village Dauraiya, P.S. Patiyali, District Etah, had deep enmity. In the year, 1969, Sri Sateesh Chandra Sharma was fired upon at railway station, Kayamganj (District- Farrukhabad) with an intention to kill in respect of which case crime no. 92 of 1969 was registered at G.R.P., Farrukhabad u/s 307, 120B IPC in which the investigation was done by C.B.C.I.D. and after investigation, a charge sheet was submitted against Latoori Singh, Sadhu Singh and some other accused. The said case was being tried as Sessions Trial No. 158 of 1970 in Sessions Court, Fatehgarh (Farrukhabad) and to get rid of that case, the accused Latoori Singh was making frantic efforts. Apart from that the deceased Sateesh Chandra Sharma (Ex. M.L.A.) used to oppose the method of work of accused Latoori Singh (M.L.A.) from time to time because of which , Latoori Singh in collusion with his close friend Veeri Singh, Ex. M.L.C., R/o Jaithra got Sateesh Chandra Sharma eliminated on 8.11.1980. After getting him abducted through a gang of companions known by the name of Mahaveera Gang for his murder, a conspiracy was hatched in pursuance of which, the deceased Sateesh Chandra Sharma, was abducted by the Gang of Mahaveera in the night of occurrence and at that time the deceased was having his brother's SBBL licensee gun of 12 bore which was also looted away. On 12.3.1981, one of the members of the said gang, Ram Prakash (PW-3) was arrested on information of an informer at P.S. Kannauj, District Farrukkhabad and in his interrogation, he had admitted about the abduction and murder of Sateesh Chandra Sharma (deceased) and on 13.3.1981, at his pointing out, the dead body of Sateesh Chandra Sharma (deceased) was recovered from the jungle of Village- Naglabani from the field of Het Singh (appellant) in presence of S.D.M. Aliganj (Etah). Upon post-mortem having been conducted, cause of death was found to be strangulation. The deceased- Sateesh Chandra Sharma after having been abducted was brought to the field of Het Singh and there Latoori Singh (M.L.A.) in a jeep along with Sadhu Singh, Constable Gangadhar and Anar Singh, reached in the said field and lot of talks happened between them and thereafter Latoori Singh held the hand of Sateesh Chandra Sharma and at his direction, the dacoit Mahaveera and Jai Singh had thrown one Angauchha at the neck of Sateesh Chandra and after pulling the same from two sides he was strangulated to death. After his murder, a spade was directed to be brought there by Latoori Singh and the dead body was buried after having dug five to six Ft. deep pit in the said field. Latoori Singh had also told Het Singh that in the morning, he should plough the field so that there could not be left any evidence of murder. After the arrest of Ram Prakash (PW-3) and his confessional having been made and the recovery of dead body having been made, his statement u/s 164 Cr.P.C. was recorded in the court of Judicial Magistrate on 17.3.1981 in which it was made clear that Latoori Singh after hatching conspiracy to murder Sateesh Chandra Sharma eliminated him and caused the evidence of his murder to disappear. In this matter, all the remaining accused were sent to jail with mask, who were 16 in number, against whom, charge sheet was submitted under Section 395/397, 364, 365, 302, 201 and 120-B IPC. Against the accused namely (1) Latoori Singh, (2) Sadhu Singh, (3) Gajraj, (4) Hari Singh, (5) Constable Gangadhar, charge under Section 120-B IPC and against accused- (1)Latoori Singh, (2) Sadhu Singh, (3) Gajraj, (4) Hari Singh, (5) Constable Gangadhar, (6) Raja Ram, (7) Manohar, (8) Jai Singh, (9) Het Singh, (10) Shyam Singh, (11) Anar Singh and (12) Sripal Singh charges under Sections 147, 148, 302/149 and 201 IPC, against accused (1) Raja Ram, (2) Manohar, (3) Jai Singh, (4) Het Singh, (5) Shyam Singh, (6) Anar Singh and (7) Shivpal, charges under Section 364, 395 IPC, were framed to which all the accused pleaded not guilty and claimed to be tried.
11. Thereafter from the side of prosecution to prove its case, informant Genda Lal (PW-1), Bramhanand (PW-2), Ram Prakash (approver) (PW-3), Bhav Singh (PW-4), Prem Singh (PW-5), Smt. Phool Sri (PW-6), Ramesh (PW-7), Keshav Singh Rana (Retd. C.O.) (PW-8), Sri Babu Lal (A.D.M) (PW-9), Arif Ali (PW-10), Ram Niwasi (PW-11), Chatrasal Singh (Retd. District Judge) (PW-12), Zafar Hussain, Lab Technician, District Hospital Etah, (PW-13), Vijay Prakash Sharma, (A.O.), Life Insurance Corporation (PW-14), Bhoj Raj Singh (PW-15), H.C.P. Ghanshyam Gaud (PW-16), Mahendra Singh Rathore (Retd. A.S.P.) (PW-17), Dr. Roop Narayan Gupta (PW-18), Gurudatt Sharma (PW-19), Mewa Ram Lakhoriya, In-charge Inspector (PW-20), Sri Harihar Singh, Retd. Constable PW-21, Babu Ram Gupta, Retd. P.C.S. (PW-22), Constable Mahipal Singh (PW-23) were examined.
12. Thereafter prosecution evidence was closed and the statement of accused under Section 313 Cr.P.C. were recorded in which they have stated that the entire prosecution against them is false and further stated that Ram Prakash (PW-3) was a notorious character and was police informer who had dozens of cases against him and accused persons had been implicated due to political rivalry falsely. The accused Shyam Singh stated that Genda Lal (PW-1), had made an assault on Latoori Singh in Tehsil premises of Aliganj at bus stand Kayamganj, which was dangerous to his life and he could barely escape unhurt and further stated that Ram Prakash (PW-3) and Smt. Phool Shri were living at the place of Genda Lal (PW-1). Ram Prakash (PW-3) is an absconder of army, who is hardened criminal and under a conspiracy Genda Lal (PW-1) had got Sateesh Chandra Sharma murdered. Accused-appellant Anar Singh has stated that he has been wrongly identified. He used to go with Latoori Singh asking for votes and used to work as his shadow. Accused-appellant Sadhu Singh stated that he used to participate in election activities with Latoori Singh and, therefore, a false and concocted story has been made against him to falsely implicate him in the present case only to take political benefit. All the statements of witnesses against him were false. Accused-appellant Het Singh has stated that witness Ram Prakash and Phool Shri were servants of first informant and under political conspiracy, he has been falsely implicated and his identification was also false. He also stated that he was also involved in election campaign with Latoori Singh and he was his companion, therefore, he has been falsely implicated. Accused- Hari Singh stated that he was not identified in District Jail rather he had already been shown to the witnesses before his identification by Administrative Officer and he has been implicated because of being involved in election campaign with Latoori Singh. The accused-appellant Sripal Singh has stated that he has been falsely implicated with the aid of police administration and also reiterated that Ram Prakash and Phool Sri were servants of first informant and that he was not kept Baparda (with Mask) and that he used to work with Latoori Singh, as his shadow. The accused Gajraj Singh stated that witness Ram Prakash used to work as shadow of first informant and Phool Sri was Ram Prakash's mistress and entire action against him has been taken with the help of administration and showing unknown dead body recovered in jungle, his false implication has been made in the present case, he was also shown to the witnesses before his identification and further stated that because he was shadow of Latoori Singh, he was falsely implicated.
13. In defense, from the side of accused-persons, Raghu Nath Singh as DW-1, Jabar Singh as DW-2, Kunwar Pal Singh (DW-3), Ram Pal (DW-4) have been examined.
14. It would be pertinent to take into consideration the statements made by the prosecution witnesses to see as to whether in the light of those statements the learned trial court has made the evaluation correctly or not.
15. Genda Lal, informant of the case who has been examined as PW 1 has stated in examination chief that he was a member of the legislative assembly since 1977 till 1980. The deceased Sateesh Chandra Sharma, MLA, who belonged to his party, was also his friend, who remained member of the legislative assembly from 1969 to 1974 and was resident of village Divaiya, PS Patiyali, District Etah. He remained MLA for 3 terms and had started living in Aliganj and used to practice at Tehsil Aliganj and had a land in village Divaiya. On 16/11/1980 Sateesh Chandra had gone to his village Diviya for boring of tube well, thereafter on 18/11/1980 at about 7 AM he received information that in the intervening night of 17/18 - 11 - 1980 at about 1130 a.m. he was abducted from there and at that time he was having a gun of his brother. At the time of his abduction he had with him some labourers as well as Prem Pal. As soon as he received information of his kidnapping he gave a written report on 18/11/1980 at 8.35 a.m. (Exhibit Ka 1) at PS Patiyali. It is further stated that when Shri Sateesh Chandra Sharma was MLA, in the year 1969 he was shot at Railway Station Kayamganj, a case regarding which was being heard in District Farukkhabad even at the time of his kidnapping. About 2 - 3 months prior to the occurrence of kidnapping there was the date fixed in the said case in District Farukkhabad, in which he had also gone and there cross-examination was going on of the witness of prosecution and during the said cross examination the counsel for Latoori Singh spoke to the court with an intention to linger on the case that he was going to attend to another case, hence the case should be adjourned, at this, the court told that it would give half an hour more and that he should try to finish the cross-examination, but even then said counsel got the case adjourned. Shri Sateesh Chandra Sharma gave an application to the court, the next day stating therein that if the said case was allowed to be prolonged, either he or his witnesses could be done to death or they could be abducted. About 4 months after the occurrence of kidnapping, the dead body of the deceased Sateesh Chandra was recovered by police buried in a field. Prior to the occurrence, on 27/05/1980 also, Sateesh Chandra had given an application to Chatrasal Singh Judge from the side of Election Commission which is Exhibit Ka 2.
16. In cross-examination this witness has stated that he had political as well as other litigation with Latoori Singh. In 1974 one case under sections 307 read with Section 120 B IPC was filed by Latoori Singh against his men, in which he had been acquitted and in the said case Latoori Singh himself was complainant and had received a firearm injury. Besides that from time to time Latoori Singh had filed many cases against him but in all of them he had been acquitted. He further stated on his own that in the year 1974 his nephew and two others had lodged three case against the Latoori Singh and others on the same day in 1974 on which a case under sections 307/120 B was filed by Latoori Singh against him and all these cases related to, dacoity,loot and setting ablaze properties etc. which were still pending, in which the police had not filed charge sheet against Latoori Singh. The cases which were got registered against him were all false and because of this he was annoyed with him. He had moved many applications before authorities apprehending threat to his life. He had also heard that Latoori Singh had been fired upon in High Court Allahabad also but he was not involved in that case and denied suggestion that he wanted to finish Latoori Singh.
17. He stated that about abduction of Sateesh Chandra no specific person had come to give him news, rather he had heard about it in the market and thereafter he sent someone to the house of Sateesh. Till his lodging the report there was no eye-witness of kidnapping of Sateesh nor any person from the house of Sateesh had met him. He further stated that the day he lodged the report, the investigating officer had recorded his statement the same day, in which he had told that about this incident the persons of village Divaiya had informed him at home and if this fact was not written in his statement, he could not tell its reason. Whatever he had lodged in the report, he had heard in the market about it from people, which also included some persons of village. Some persons had also come to his house to break this news. The distance of Divaiya from his house is about 10 km and he had a jeep at that time. Shri Sateesh Chandra was one of his good friends and after having heard about his kidnapping he felt really uncomfortable and started entertaining fear for his life. The village Divaiya is located about 3-4 furlong inside from the main road which goes from Aliganj to Patiyali. He had obtained whatever information was possible about the incident from the house of Sateesh Chandra which was situated in Aliganj, therefore he did not feel necessity to obtain further information by going to village Divaiya while going to P.S. Patiyali, but he could not disclose the name of person by whom he had called for the information from the house of Sateesh Chandra situated in Aliganj. He had not sent anyone to Divaiya for obtaining the information rather he considered it appropriate to inform the police first. He had reached the police station about 8 AM and his statement was recorded by the investigating officer at the police station itself. Further he stated that Sateesh Chandra Sharma used to live most of the time in Aliganj, but sometimes used to go to Divaiya also and it was wrong to say that till 18/11/1980 no one had known about his abduction and that he had lodged report on the basis of concoction in his mind. Further he stated that by the time of recovery of dead body he had reached there and that the dead body was exhumed in his presence, but he could not remember the time when the same was exhumed because of the gap of longtime but the sun had already set by then. ADM Aliganj had made arrangement for light by arranging handa. He was not asked to put his signature on any document by police. The dead body was also got identified by family members of Sateesh Chandra who had identified the same in the light of handa. He does not recollect whether photographs were also taken or not of the dead body and after having been shown photo Exhibit 1, when enquired whether the same was his photograph, he stated in affirmative and stated that the dead body in the said photo was that of Sateesh which was exhumed and also stated that the dead body shown in photo Exhibit 1 appeared to him to be that of Sateesh Chandra. The Exhibit- 1 was presented from the side of accused persons during cross-examination. In the said Exhibit- 1, there was photo of one police inspector also but he does not recollect his name. Further he stated that he remained there for about one hour and by the time he started leaving from there it had only become a little dark. He does not recollect whether the dead body was sealed in his presence or not but people from the family of Sateesh were present there but he could not say whether wife of Sateesh Chandra was there or not. He denied that when the photograph Exhibit 1 was shown to the wife of Sateesh, she denied that the said dead body was that of Sateesh Chandra and he also denied that he had put any kind of pressure upon her as well as other family members of Sateesh Chandra to say that the said dead body was of Sateesh Chandra.
18. He showed ignorance about there being any wireless set installed at the PS Aliganj at the time of kidnapping of Sateesh Chandra and stated that from his house the PS Aliganj would have been about one furlong and further stated that he did not consider it necessary to lodge report at PS Aliganj which was prior to Patiyali village. In his knowledge, there was no telephone at PS Patiyali and moreover the place of incident was under jurisdiction of Patiyali, therefore there was no necessity to lodge report at PS Aliganj. He further stated that he does not find his signature on chick F.I.R., paper number 13 Aa/1 and denied that he had lodged Exhibit Ka 1 report on the basis of suspicion and because of enmity with Latoori Singh and also denied that at the time of cross-examination being made of Narain Shukla, witness in District court Farukkhabad, he was not present in the court. Further he stated that witness Narain Shukla had already been cross-examined prior to the said date. Further he stated that the people kept coming to him at his house till he went for lodging report at PS but he could not tell as to for how long those persons stayed with him. He further stated that he knew Sadhu Singh from prior to the occurrence of kidnapping and that he had various cases lodged against him already but none of them was false, though he did not know as to whether he had been acquitted in those or not. Further he stated that Sadhu Singh was cousin brother of Latoori Singh and also knew that he was resident of Tapuan. He pleaded ignorance about his being President of Saraya Aghat Bus Union and denied that he had been acquitted in all the cases and because of this annoyance, he was implicated in the abduction and murder of Sateesh Chandra.
18. PW 2, Brahmanand has deposed in examination in chief that he is resident of Divaiya. The deceased Kishan Sharma was his uncle who lived in Aliganj and had about 100 bighas of land in the village Divaiya. About quarter to five years ago he had come to the said village in the afternoon for the purposes of boring of tube well with a licensed gun of his father and had told him to return home and not stay there in night. The deceased had litigation going against Latoori Singh etc. because of which he had threat to his life and for this reason he had told him to return home. At that time Prem Pal (PW 5), some labourers etc. and Mahesh were also there as cavity was being made, it was around 10 - 11 p.m. when Prem Pal returned home in Divaiya for taking oil which was kept in the house. About 10 - 5 minutes after his reaching home, Naubat came home running and stated that about 15 - 16 miscreants had reached where boring was being done, whereafter he, Mahesh, Prem Pal, Naubat and others of the village having taken weapons, all rushed to the place of incident where boring was being done, making fires but by then only Bhav Singh was left there who told them that Sateesh Chandra had been forcibly taken away by the miscreants and one of them had disclosed himself to be Mahavir, resident of Saragdwari and demanded Rs. 50,000 ransom amount for releasing the deceased. Bhav Singh told him that they had taken away Sateesh Chandra towards railway line, thereafter all of them also chased them in that direction in moonlight. Both the villagers as well as the miscreants had torches, the miscreants while taking away the deceased, were 20 - 25 steps ahead of them and both sides were firing at each other but none got injured and thereafter the miscreants hid themselves in another grove belonging to him, from there they returned and the next day, again they went out in search of the deceased but could not find him. PW 2 had recognised the miscreants in moonlight as well as in the light of torches. He had gone for identification of the miscreants to Fatehgarh and Etah and after touching Jai Singh, Shyam Singh, Anar Singh and Het Singh in court, stated that he had seen them when they were abducting Sateesh Chandra and thereafter they were identified by him in jail although between the period when incident happened till the time when they were lodged in jail, he had not seen them. Further he stated that the investigating officer had taken his statement the next day at about 12 - 1 p.m.. He must have sent information to the informant Genda Lal and he continued to keep searching about Sateesh Chandra. Genda Lal was got informed at about 5 a.m. in the morning while kidnapping took place in the night but he does not remember the name of the said person who was asked for conveying this information. On the day of kidnapping, Genda Lal had come to village in the evening but he had not told him the full details of the incident because he already knew about it and he had stated everything that he knew, to the investigating officer. He had accompanied the investigating officer to the place where the kidnapping happened and had shown him the rifle which was being wielded by them when they were chasing the miscreants but he did not recollect whether he had told the investigating officer about this fact or not that he had recognised the miscreants from a distance of about 20 - 25 steps. Whatever was asked, was replied and if it was not mentioned in his statement that he had seen the miscreants from about 20 - 25 steps he could not tell its reason. After reaching the grove he had understood that abduction was made by Mahavira gang although he had not heard the name of the said gang earlier. He had told the investigating officer that Bhav Singh had told him that one of the miscreants who was in the gang of dacoits had told that he was Mahavira of Saragdwari but if no such mention was made, he could not tell its reason. The said gang of dacoits had guns and rifles and the firing between the two sides must have been made for 45 minutes. Coming from the village he and his men had fired several rounds and after reaching grove, the dacoits also must have made 5 - 6 fires but he does not recollect whether he had shown the investigating officer any empty cartridge nor did the investigating officer get any empty cartridge which were fired from the side of dacoits, in his knowledge. When he and other men had reached Bhav Singh, who told them about dacoits, the dacoits were visible to them at a distance of about half furlong. They all had together challenged the dacoits who were on the line. Although he did not have any torch but he could not recollect as to who among the villagers had torches and he also does not recollect whether he had stated before IO that villagers had torches but if the same was not recorded in his statement he could not tell its reason and it was wrong to say that he was stating about it after having been tutored. He further stated that the dead body was not recovered in his presence nor the same was brought to village Divaiya. The day when the dead body was recovered, he was not in the village nor was he present at the time of last rites and had not seen the dead body of Sateesh Chandra after recovery. The deceased was wearing clothes when he had gone from village to his field which could be recognised by him and he denied that on the said night Sateesh Chandra was not abducted and he had concocted a false story in that regard.
19. In cross-examination he stated that he does not recollect whether he had told the IO the description of the dacoits. At the time when firing was being made, neither persons at his side nor the dacoits were in cover of trees. The dacoits were making fire and were proceeding ahead and he knew none of them, but it would be wrong to say that no firing was made there nor had he recognised any dacoit. He denied the suggestion that before the identification proceedings of accused Anar Singh he had already been shown and further denied the suggestion that he reads Nutan magazine, in July 1981 edition of which, the photo of Anar Singh was published which he had seen and the IO had shown him his photo which was pasted on his licence of gun. He further denied the suggestion that he had been shown Jai Singh at PS Kayamganj or PS Patiyali where he had gone after abduction in the month of March and also denied the knowledge about the said accused having been taken on police remand for 5 days, for being shown to him and was actually shown. Further he stated that at the time of firing both, the dacoits as well as they, were facing each other and both sides were in standing position. The dacoits were on the line while they were at nala on the lower side. The dacoits were given chase for about 1 furlong. He further denied that he had not seen the accused kidnapping Sateesh Chandra and that he identified them only at the instance of Genda Lal and Girish Chandra Tiwari, ex-MLA. He also denied suggestion that the other accused Het Singh was shown to him by police when he was taken on remand outside the Magistrate's Court and also denied that the accused present in court, i.e., Manohar had been shown to him when he was brought from jail in the court of Magistrate for being identified. Further he stated that he could not identify anyone from distance of half furlong in the light of torches and moon and reiterated that he had identified the dacoits from a distance of 20 - 25 steps and further denied that he could not recognise unknown persons from a distance of 20 - 25 steps and that he was not on the spot and had not recognised Het Singh and Manohar and was giving false statement due to being nephew of the deceased.
20. Ram Prakash, PW 3 has stated in examination in chief that police had submitted charge sheet against him and he had become an approver in this case and knew that he was supposed to give correct statement. He was resident of village Nagla Babary, PS Kayamganj District Farukkhabad and had got recruited in military in 1962 although he had failed in high school. He was the only son of his parents and there was 60 bighas of land in his family and his father was an income tax payee. There was none to look after the farming, therefore he had left the job 8 months after joining. Further he stated that he knew Balak Ram of Nagla Gadariyan who had grown relationship with a lady called Phool Shri who was wife of Lakshmana Jatav. Balak Ram had a connection with Mahavira gang and in those days he used to visit Balak Ram's place, due to which he had developed nearness with Phool Shri and in course of time the relationship converted into illicit relationship with her. These relations with Balak Ram and Phool Shri developed only because of the then situation in which he found himself as his uncle had made illegal possession of his land, so he wanted to strengthen himself by joining Mahavira gang so that he could deal adequately with his uncle. About 3 - 4 months prior to abduction of Sateesh Chandra he had joined Mahavira gang. He knew Sateesh Chandra very well, who was having enmity with Latoori Singh, whom also he knew well. After his joining Mahavira gang, Viri Singh MLC was murdered within the jurisdiction of PS Jethra about one or 2 days after the festival of Dipawali . The head of his gang Mahavir Singh had told him in jungle of Subhan Nagla that they would have to go to MLA Latoori Singh's place, hence he along with Mahavir Singh and men of his gang had gone to the house of Latoori Singh situated in village Tapua in the jurisdiction of PS Aliganj, where he found Latoori Singh, who was present in court. There they had their meals and had a talk with Latoori Singh. Latoori Singh spoke to Mahavir Singh stating that one of his arms had been broken by Brahmins & Banias which was required to be avenged and told Mahavir Singh to first of all eliminate Sateesh Chandra Sharma. Thereafter all the men of Mahavira gang departed from there. It was month of winters in the year 1980, 11th month was proceeding; 2 or 3 days subsequent to their return from the place of Latoori Singh he (PW 3) stayed at Lalbadara because he had become indisposed, where few persons of the gang had left him, in the same very night at about 3 - 3.30 a.m., the man of the said gang had abducted Sateesh Chandra Sharma and had brought him to Lalbadara. The persons of the said gang who had brought the deceased there, comprised Mahavir, Balak Ram, Jai Singh, Manohar, Rajaram, Gajraj, Hari Singh and he himself. But further he stated that he was not among those who had gone to kidnap him, rather when Sateesh Chandra had been brought to Lalbadara from his house, he also joined the gang and out of those persons, Jai Singh, Manohar, Gajraj, Shri Pal, Hari Singh were present in court but Rajaram was not present. In Lalbadara all of them remained till evening with Sateesh Chandra Sharma and when it became dark, they had carried Sateesh Chandra Sharma to jungle of Subhan Nagla, where they had reached in the morning at about 3 and 3 ½ a.m. and remained in the said jungle throughout the day and again when it started becoming dark in the evening they further proceeded with Sateesh Chandra and had taken him in the jungle of Bani Ka Nagla which was located about 1.1/2 Km away from Subhan Nagla. There accused Het Singh present in court, met in Bani Ka Nagla, who was brought there by Balak Ram and Phool Shri. Phool Shri was also in Bani Ka Nagla. Balak Ram had called Phool Shri and Het Singh there where all others were present. All of them were towards South from Bani Ka Nagla in the Chak of Het Singh underneath the mango tree and were gossiping with each other. After some time had passed, at about 7 p.m. in the evening, M.L.A., Latoori Singh came there in jeep with 4-5 persons which included accused Anar Singh, present in court who was having a double barrel gun. Apart from Anar Singh, the persons who were accompanying Latoori Singh, he did not recognise. Sateesh Chandra Sharma was sitting beneath the tree whom Latoori Singh told that he had got Viri Singh MLC killed, at this Sateesh Chandra Sharma stated what was he to do with that killing, at this he stated that he would not mend his ways and further stated that he should withdraw the case which had been slapped against him and should apologise to him, but Sateesh Chandra Sharma stated that he would prefer to die rather than bow down his head to a dog like him and at this Latoori Singh told Mahavir Singh and Jai Singh that he would not mend his ways and he should be eliminated. At this Latoori Singh held the hands of Sateesh Chandra and Jai Singh made a rope of Angaucha and threw the same in the neck of Sateesh Chandra and thereafter one end of the Angaucha was held by Mahavir and the other end by Jai Singh and both started pulling the same which resulted in death of Sateesh Chandra Sharma due to being strangulated. Thereafter Het Singh accused was told by Latoori Singh to bring a spade, who brought two spades and a pit was dug in the field of Het Singh 20 yard away from the said mango tree towards North, in which first five attempts of digging were made by Latoori Singh and thereafter others followed and about 5 - 6 feet deep pit was drug in which the dead body of Sateesh Chandra Sharma was buried along with the clothes which included Kurta,Tahamad, Baniyan, Jarsi and shoes. He could not tell exactly the time when Sateesh Chandra Sharma was murdered, but he stated that his dead body was buried about 12 O'clock in the night and till then it was not morning time. Thereafter Mahavir Singh was handed 100 cartridges by Latoori Singh stating that he had one more enemy who needed to be eliminated and further stated that he had deposited Rs. 16,000 for an SLR rifle to be given to him, which would soon be arranged. Latoori Singh had told the name of the other enemy to be eliminated I.e. Genda Lal and thereafter Latoori Singh went away with his men in jeep and Balak Ram told him (PW-3) that he should go to Gadariyan Nagla to leave Phool Shri there, while going there, on way Phool Shri told him that the men of this gang were hardened criminals as they had murdered an innocent person and therefore they should both run away from them and to the proposal of Phool Shri he agreed to flee away from the gang and had gone with Phool Shri to various places such as Mainpuri, Etawah etc. for two to three months and thereafter she told him that he should take him to her mother's place who was living in Imilia Purva, PS Kannauj District Farukkhabad, hence he went there to Kannauj and from there sent Phool Shri alone to village Imilia Purva while he stayed at Kannauj. After having waited in Kannauj for return of Phool Shri, when she did not come back from there, he went there and stayed there for about two hours and while he was lying there, in the afternoon, he heard noise outside to the effect that police had arrived with some public men, seeing police he tried to flee from there but hardly he could run for some distance where there was garbage collected, the police arrested him with a country made pistol and 5 cartridges and brought him to village where all the written work was completed and thereafter after having done the writing work of preparing memo of recovery etc. and having affixed seal he was interrogated and due to fear for his life, he revealed everything about the murder of Sateesh Chandra and also had shown the place where the dead body was buried. Police, first of all, after having arrested him had taken him to the PS concerned and thereafter from PS concerned to Nagla Bani in the field of Het Singh, where the said place where the dead body of the deceased was buried, was shown. Police had with it A.D.M. also and at his instance the dead body was exhumed, which was in recognisable condition.
21. In cross-examination this witness has stated that he had joined Mahavir gang about three to four months prior to the abduction of Sateesh Chandra Sharma and during this period he was not involved in any dacoity with the said gang. When he was arrested with possession of illegal weapons, the police had initiated case against him other than the present case as well, in which his identification parade was held but he could not be identified in any proceeding. He does not remember as to whether those cases in which identification proceedings were held related to dacoity or some other offence. He was put to identification 2-3 times which was conducted in Fatehgarh jail but he does not recollect as to which police station the said cases belonged and after how many days of the occurrence, the identification proceedings were held in those cases. In case under section 25 Arms Act he had confessed and had also undergone the sentence and at present he had no other criminal case against him except the present one in which he had become Government witness (approver). Further he stated that about five and five and a half years back he had met Phool Shri through Balak Ram in Gadariyan Nagla and in course of time he developed intimacy with her and established illicit relations with her and after the murder of Sateesh he had run away with her. Phool Shri had married Laxman but he did not recollect whether she had any child from him, although he had seen one boy 10 - 11 years old whom she called Pappu but what was relationship of that boy with her, he could not tell nor did he consider it necessary to know about the same. He knew Balak Ram since childhood. After the murder of Sateesh and till he was arrested, he had run away with Phool Shri to various places and was concealing his identity and had even visited District Etah because Phool Shri was mistress of Balak Ram and he had apprehension from Mahavir gang. He denied that he had never joined Mahavir gang and that he was making false statement in this regard only under pressure from police and also stated that he did not commit any dacoity during the period he remained with Mahavir gang, although the said gang in this period travelled to District Etah and various other districts including Farukkhabad and Mainpuri. During three to four months period when he remained with the said gang, one encounter with police had taken place in jurisdiction of PS Kampil. Phool Shri did not live with the gang although she used to come there sometimes and at that time she was with Balak Ram and might have visited the gang only two - four times. He further stated that as per his memory, Mahavir gang did not commit any abduction during the said period of 2 to 4 months. Prior to the murder of Sateesh Chandra Sharma during his membership of the gang no murder was committed by the gang and during the said period he was having one pistol and cartridges and when he was arrested he was in possession of 5 cartridges. While joining the gang he had no intention to commit murder of his uncle because he simply wanted to put pressure on his uncle to get his land released from his possession. During these 3 - 4 months period he had sought to put pressure on his uncle and a panchayat was also held in the second month after his joining the gang, in which Mahavir and Balak Ram etc. had joined the panchayat and after putting pressure on his uncle they had got his land released. Those fields were in the name of his wife, the area of the said field was just above one acre. Whatever is there in the form of land with him is in the name of his wife. He has other land also about 15-20 bighas apart from this in village Divaiya. Whatever land that he has, all that is in the name of his wife and the said land is in the Talari which must be around 15 bighas. The land in Talari was in the name of his father who has died, name of his father was Harsukhlal and his grandfather's name was Ishwari. The one acre land which was got released from his uncle was purchased by his father in his (PW 3) name. He used to indulge in gambling and also required money for romance, hence he had executed the sale deed of the said land in favour of Tej Singh son of Nirbhay and subsequently under pressure from his relative and home folks he called him back and took back that land and got the sale deed executed in the name of his wife Ramlali, although its mutation had not been done, hence the name on papers was still that of Tej Singh.
22. He has further stated that he had not stated before IO or CID that because uncle was encroaching upon his land, he had left military and joined Mahavir gang to put pressure on him because neither IO asked about it nor did he disclose it to him and about this he has stated only before court. He had not stated to the investigating officer or to the Magistrate who had recorded his statement that he along with Mahavir gang had gone to Latoori Singh's house where they had taken meals and that Latoori Singh had talked to Mahavir in regard to killing Sateesh Chandra nor was it stated that Latoori Singh had told that he had to avenge Brahmins and Banias because his one arm has been broken; he had not told about it because it was not enquired from him and therefore he had stated about it for the first time in court and denied the suggestion that it was being stated at the tutoring of policemen and Genda Lal. He could not tell as to how much after the talk between Mahavira gang and Latoori Singh at his house, the abduction of Sateesh Chandra was made, but he does know that the talk was held 5 - 6 days after Diwali while the kidnapping was done in the 11th month in the year 1980 but he could not tell the number of days passed since the talk, when the kidnapping was done and denied the suggestion that no such talk was held regarding kidnapping in his presence between Mahavir and Latoori Singh. He denied to have stated wrongly that the gang persons at the time of committing kidnapping had left him behind in Lalbadara because he was sick and when they were returning after having kidnapped the deceased, then he was taken along from Lalbadara and stated that the real thing was that when Sateesh Chandra was caught at his farm he was not present, but when he was being brought after being kidnapped, he was taken along from Lalbadara. He had stated to investigating officer when he was arrested with illegal weapons that he was involved both in kidnapping and murder of Sateesh Chandra. Further he stated that his first statement was recorded at PS Kannauj in District Farukkhabad by Sub Inspector Rai whom he had not stated that he was personally involved in kidnapping of Sateesh Chandra Sharma rather he had stated that he had been brought after being kidnapped before him and had stated that he was involved in kidnapping and murder, because all this had happened in front of him hence had stated so. He had not told him that when the kidnapping was done, then he was in Lalbadara. His statement was also recorded after his arrest in District court Fatehgarh in which the Magistrate had asked him as to how many persons were involved in kidnapping, in said statement he had told that he was also involved in kidnapping but had stated that at the time of his kidnapping he was at Lalbadara, if the same had not been recorded he could not tell its reason. He further stated that after kidnapping of Sateesh Chandra, the accused had brought him to Lalbadara and denied that he was taken away straight to Nagla Bani. He had stated that after kidnapping, Sateesh Chandra was brought to Lalbadara and thereafter was taken to Nagla Bani, if it was not written that first of all he was brought to Lalbadara, he could not tell its reason. Further he stated that he had stated before Magistrate that Sateesh Chandra after being kidnapped was kept in jungle of Subhan Nagla and if the same was not written, he could not tell its reason. He had not stated about his being taken straight to Nagla Bani, if the same was written he could not tell its reason. Further he stated that in Lalbadara he stayed whole day, rest of the persons of the gang had left for kidnapping at about 7 - 7:30 PM and these people had reached Lalbadara with Sateesh Chandra Sharma having been kidnapped in morning around 3.30 - 4 a.m. and after the kidnapping, they all stayed in Lalbadara till sunset and thereafter they took along Sateesh Chandra to jungle of Subhan Nagla and he had also accompanied them. In the jungle of Subhan Nagla, they had reached next day in the morning about 3 - 3.30 a.m. and had stayed in Subhan Nagla and when sun went down and it became little dark, they started for Bani Ka Nagla where they reached about 8 - 8:30 p.m. the same day. Balak Ram had gone for the kidnapping and remained with Sateesh till he was murdered. He denied that after kidnapping of Sateesh when he was being brought to Lalbadara, the next whole day and night they stayed in Subhan Nagla and thereafter in the next night they went to Bani Ka Nagla. He declined to remember which investigating officer had taken his statement at PS Patiyali, although he stated that various persons had taken his statement but denied to have given such a statement that after kidnapping the kidnapee was brought to Lalbadara, the next day and till night they stayed in jungle of Subhan Nagla and thereafter in the next night they proceeded for Bani Ka Nagla, if the same had been written he could not tell its reason. Further he stated that Balak Ram had not gone to bring Phool Shri after kidnapping and prior to the murder. Soon before the murder Balak Ram had gone to call Het Singh from Nagla Bani. It is not so that in the jungle of Subhan Nagla, Balak Ram had gone somewhere and had not accompanied him (PW 3) to Nagla Bani. Balak Ram had not gone to any other place in Lalbadara and had come along to jungle in Nagla Subhan. He also denied that on the date of murder Balak Ram had brought Phool Shri from Nagla Gadariyan or from house of her mother. Further he stated that in Bani Ke Nagla they had halted in the field of Het Singh at one place, the said field was toward South of the walls of the village. The said field was adjoining to wall of the house of Het Singh. The said field must have been about 25 - 26 bighas, in which tobacco was sown which had grown to about 1 feet height. In half the field there was tobacco and the other half had wheat. They were sitting on Mend towards South of the field near a mango tree. He does not recollect whether he had told the investigating officer of Kannauj or not that Sateesh Chandra was kept in Bani Ka Nagla where Latoori Singh MLA reached and when Sateesh Chandra was murdered, Phool Shri was present there, if the said statement was not written, he could not tell its reason. Further he stated that regarding committing murder of Sateesh Chandra, Latoori Singh and Mahavira had held talked at the house of Latoori Singh and thereafter till the murder was committed and Latoori Singh had come to Nagla Bani, in the meantime no talk or meeting had been held between Mahavir and Latoori Singh or any member of his gang. During the said talk he was continuously present at the house of Latoori Singh.
23. Further this witness has stated that he could not tell as to in whose house he had stayed in Lalbadara because of his illness. He was suffering from fever from 2 to 3 days prior to kidnapping of Sateesh Chandra. One day prior to kidnapping of Sateesh Chandra he along with the gang had reached Lalbadara at about 4 a.m. in the morning and the same day in the night at about 9 PM Sateesh Chandra was kidnapped. Even after kidnapping, he continued to have little fever. He denied that Sateesh Chandra was straightaway taken to Nagla Bani and also stated that after two days of his arrest on 14/03/1981 he had given statement under Section 164 Cr. P.C. to Magistrate in Farukkhabad in which he had not stated that Sateesh Chandra had been taken straight to Nagla Bani, rather he had stated that he was kept at Lalbadara and then in jungle of Subhan Nagla. The distance between Lalbadara and Subhan Nagla would be one and a half to two kilometres while distance of Nagla Bani from Nagla Gadariyan would be 3 to 4 miles. Further he stated that when Sateesh Chandra was brought to Lalbadara his hands were not tied rather his hands were tied with Angaucha when he was being taken from the jungle of Subhan Nagla to Nagla Bani. The said Angaucha belonged to somebody of the gang and his hands were untied before his murder but could not tell why. He further stated that 4 to 5 persons had come in Nagla Bani with Latoori Singh who were not got identified by him nor had he told their identity to the investigating officer or the Magistrate. The talk which took place among Latoori Singh, Sateesh Chandra and Mahavir and the murder of Sateesh all happened around 2 - 2 ½ a.m. in the night. They all had started to leave the place of occurrence around 2 ½ a.m., about 2 ½ - 3 hours prior to that Sateesh Chandra had been murdered. Latoori Singh had reached the spot at about 10 - 10.30 p.m. and thereafter after his reaching there, the talks were held for about one and a half - two hours and thereafter the murder took place. The jeep which was parked by Latoori Singh, from that place the abadi of Nagla Bani would have been around 50 - 60 steps toward West; in the field of Het Singh the Jeep was parked. It was parked 60 - 70 yards towards East of the pit which was dug. From amongst the persons who had accompanied Latoori Singh only Anar Singh had come to the place of occurrence alighting from the jeep while rest of the persons remained near jeep but he could not tell the registration number of the jeep nor could he tell as to who was driving the same. Till they were all present on the place of occurrence, no one passed from there belonging to Nagla Bani nor any other person of nearby village. In those days there was terror of Mahavir gang to the extent that people used to work during the day only. After the reaching of Latoori Singh there, about 1 ½ hours prior to that, Sateesh Chandra had been taken there in the field of Het Singh by them and had reached there about 8 - 9 PM and about 10 - 15 minutes thereafter Phool Shri also reached there from Nagla Bani. When they all had sat under the tree after reaching there, Balak Ram had gone to call Phool Shri who reached there about 10 - 15 minutes thereafter, with him. He (PW 3) had not gone to call Phool Shri and he also could not tell as to whether she was brought there after being beaten up or voluntarily but she was brought there from Bani Ka Nagla. No talk had taken place between him and other gang men with Phool Shri at the place of occurrence. Prior to that Phool Shri had come 2 - 3 times before the gang, but he could not tell when, in which months and whenever she came to join gang she would stay for a day or two and would go away. He could not tell the name of the person in whose house they stayed in village Gadia nor could tell the names of the persons where they had stayed in other two villages. Further he stated that he could not tell as to for how long the talks went on between them on the spot whether for - 4 minutes, 10 - 20 minutes or throughout night but no beating was given to deceased Sateesh Chandra prior to his murder. From the place where the pit was dug, the mango tree, underneath which talks were held between Sateesh Chandra and Latoori Singh was about 10 - 12 steps towards South. Further he stated that after his joining the gang he developed intimacy with Phool Shri and it was wrong to say that he had relationship with her from before and had not stated before Rana sahab that he was having intimate relation with Phool Shri since long time back. Even after the incident prior to his arrest he continued to meet the gang men. He was arrested on 12/03/1981 and 2 - 3 days prior to that he had gone to Kannauj. Further he stated that he had given statement to the Magistrate under Section 164 Cr. P.C. in which he had stated that 5 - 6 days ago on 11/03/1981 Phool Shri had gone to see her mother in village Imaliya Purwa, PS Kannauj alone and he did not accompany her because of fear and further stated that the said statement was absolutely correct. Further he stated that because of long-time having elapsed due to fading memory he had stated that 2 - 3 days prior to his arrest, Phool Shri had gone to his mother's place to see her mother. It was right that Phool Shri had gone to see her mother on 11/03/1981 and the same night he had also gone to meet her. He had reached there before it became dark after concealing his identity and stayed there night long and prior to his arrest he was at the house of Phool Shri. He denied that he was arrested on 13/03/1981. When his attention was drawn to statement that on the same 13th of March he had gone to find out as to why Phool Shri had not come to her village Imaliya Purwa, he stated that after lapse of a long time he could not remember the exact date and it could be possible that he would have been arrested on 13/03/1981 and the same day he might have gone to the village of Phool Shri. At the time of the statement made before Magistrate he remembered things correctly. Two - three days after his arrest, the SO Patiyali had also recorded his statement; he was read out the statement to the effect that 5 - 6 days ago Phool Shri had told him that he wanted to meet her mother, at this Phool Shri was sent to her paternal home Imaliya Purwa which is near Kannauj and to this the witnesses stated that he does not recollect that he made any such statement rather stated that whatever might have been asked, the same would have been replied but he does not recollect whether he had given correct reply or wrong reply to the investigating officer. One day prior to the day of his arrest in the evening he had gone to the village of Phool Shri and it was wrong to say that he had gone to the place of Phool Shri, the same day when he was arrested. He also stated that he does not recollect whether he had given such a statement to the SO Patiyali that when he had gone to take Phool Shri yesterday, the police along with public had together arrested him at about 12.30 - 1 PM and it was also denied that he was arrested by villagers and was handed over to PS Kannauj. He also stated that his statement under Section 164 Cr. P.C. to the effect that when he went to village Imaliya Purwa of Phool Shri, there the people started addressing him Badmash (person of bad character), to which Phool Shri stated that she was not Badmash, but they would not yield and after catching hold of him, was handed over to PS Kannauj. He further explained that the statement made before the Magistrate was correct and the statement made before court after a long time, to the effect that policemen had arrested him with the aid of public persons, has been given due to lapse of time, erroneously. She does not remember as to when villagers had brought him to PS Kannauj but he does recollect that when he was handed over to PS and whether it was day or night. Further he stated that all the written work with respect to his arrest was done at police station and the country made pistol and the cartridge were snatched from him by the villagers and were handed over to police.
24. He further stated that first of all he had stated about murder of Sateesh Chandra before police of Kannauj i.e. SO Rana the same day when he was arrested. At that time he had apprehension of his life as he could be killed. Police did not tell him anything about murder of Sateesh Chandra Sharma, rather he himself had narrated about it due to fear. He had told him everything about his murder, kidnapping and the conference which took place at the house of Latoori Singh and all this was noted down by him and was got signed also. The said statement was kept by Rana with him. He denied the suggestion that he had given no statement ever to police officer as is stated above. Further he stated that when he was presented before the Magistrate he did not get to read his written statement. Phool Shri had met him around 6 PM and had left after having given him food; he might have taken 20 - 25 minutes in having his food and thereafter the next day in the morning around 6 AM he had gone from Kannauj to Fatehgarh and at that time she had come. In Nagla Bani when he had reached the place of occurrence he had met SDM Shri Babulal. He continued to interrogate him but he does not recollect whether he had recorded his statement or not after his reaching, sometime thereafter Genda Lal had also come on the place of occurrence and at that time 4 - 5 hours were still left for the day to be over. He had reached about 1 ½ - 2 p.m. from Nagla Bani and 10 - 20 minutes thereafter, digging work had started, he could not tell who had done the digging work. He was made to sit under the tree and many persons were doing the digging work. About one half hours after his reaching there, the dead body was exhumed. He remained there till it became dark. The dead body had been taken away prior to sunset. He does not recollect whether the dead body was sealed by 5.30 p.m. or not but the same was sealed in presence of SDM and thereafter the same was dispatched. About 2 - 4 - 6 minutes thereafter, they had started for PS Kannauj, he had gone away. At the time of digging out the dead body, Het Singh was present at his field in Nagla Bani and he had pointed out to the police that he was Het Singh and he was arrested and was brought to PS Aliganj. He had reached PS Kannauj in the night about 2.30 - 3 a.m.. He has showed ignorance whether at the time of the dead body having been dug out, the wife of the deceased was present or not. He denied that the dead body was dug out and sealed in the night in the light of Handas and denied that no such action was taken of digging out the dead body during the day. Since morning about 2 ½ - 3 a.m. when he reached at PS, he remained there till 9 - 10 PM. Further he has stated that in Exhibit - 1 photo he recognises one constable who belonged to PS Kannauj, but the faces of others were not clear for being recognised and also stated that the face of the dead body was also not clear and hence was not identifiable. In Exhibit 1, photo of Genda Lal was not visible nor was anyone visible in photo, Exhibit - 2 because of his poor vision. In Exhibit - 2 the dead body was lying but no Handa for light was visible and he also does not remember whether any photo was taken of the dead body or not.
25. He denied to have given statement before SDM due to fear of police and also denied that the same was given due to avarice for money extended by Genda Lal who assured him that he would get his house constructed and would also arrange for studies of his children, rather he stated that he had given statement as per his own wish.
26. He denied to have written a letter to Latoori Singh stating therein that because of fear of police he had given his name. He had stated to the Magistrate that he should be made approver (prosecution witness). He denied that his arrest did not take place in the manner he has narrated and that the dead body was not recovered in the manner that he narrated and had given any statement due to greed for money to be received from Genda Lal and that he was not involved in the abduction of Sateesh Chandra and was giving false statement under pressure from police.
27. He further stated that when he developed intimate relations with Phool Shri, even then his relations with his wife were good. He had met Phool Shri in Gadariyan Ka Nagla through Balak Ram with whom he had acquaintance since the time he was 18 - 20 years old. He denied that when Balak Ram returned to Nagla Gadariyan, thereafter he started harbouring enmity towards accused Anar Singh nor does he know that one Subedar son of Ram Sahai had lodged a complaint with SSP and other authorities regarding his illegal relationship with Phool Shri and that in the year 1974 and 1977 he had got Anar Singh arrested in case under sections 25 of Arms Act nor does he know as to who were witnesses in those cases against him.
28. Accused Gajraj, Shri Pal and Hari Singh were Gadariya by caste and Balak Ram, who was his companion was also Gadariya by caste but he does not know whether the persons of his caste were annoyed with them because of being characterless nor does he know that prior to the abduction the persons of his caste had attempted to get him arrested by police. In his knowledge Balak Ram never went to Nagla Subhan for staying there, if he had gone there to reside he did not know, but regarding all these three accused he had never had any talk with Phool Shri.
29. Further he stated that when he had gone to village Imaliya, he was beaten there by hands and fists at the time of his arrest but not by any Lathi and he had only an abrasion. He does not recollect as to what was recovered by the SO apart from a coin of 50 paisa and Angaucha; written work of the same was done in front of him.
30. The whole gang had gone to see off Latoori Singh up to jeep and it was wrong that he was not on the spot and had not seen anything.
31. He has denied that prior to his going to jail he used to go to the place of Babu Singh in Nagla Mathuri. He knew Lakshmana Jatav of Nagla Mathuri but then again stated that he did not belong to Nagla Mathuri rather he belonged to Nagla Gadariyan, who is husband of Phool Shri. He showed ignorance that any brother of Laxman was living in Nagla Mathuri at present and denied that the houses of Babu and Laxman Jatav were near to each other and that he used to go to Nagla Mathuri to meet Laxman Jatav, where he had had a quarrel with him because of which he harbours enmity towards him and that it was also wrong to say that when Phool Shri started living in Nagla Mathuri, he developed illicit relations with her. He further stated that accused Jai Singh was a resident of village Kuberpur which was about 5 Kos away from his village and post, their villages fell in the jurisdiction of PS Kayamganj and that when he joined the gang, at that time Jai Singh was already in Mahavir gang and since then he knew him but it was wrong to say that he knew him since much before the occurrence and also denied that he himself was never a part and parcel of the gang. He also denied that he was taking name of Jai Singh to be involved in the incident on account of his enmity with him.
32. He further stated that he had never gone to village Ikalhara. He met Manohar at the time when he had joined the gang. He had joined the gang just 2 to 3 months prior to the kidnapping and knew Manohar since then only. He had never faced any case with Manohar. While moving ahead from Lalbadara, Manohar had Angaucha on his head and had not been seen by him with any dhata (mask) and denied that he had never joined the gang and that he was taking his name only on account of the police pressing for the same.
33. Bhav Singh has stated as PW 4 that he is a resident of village Devraiya, PS Raja Ka Rampur who does work of farming and is a mechanic of engine and trolley. Sateesh Chandra Sharma was an ex-MLA who was resident of his village. About 6 years back he was getting boring done in his village grove, trolley was on and near that place were Naubat, Prem Pal and Mahesh, apart from him. Sharma Ji had a single barrel gun with 25 cartridges in the belt and also a torch of 3 cells. At about 11 p.m. when oil of trolley depleted, Prem Pal and Mahesh were sent for bringing oil as well as rifle. About 10 - 15 minutes thereafter 15 - 16 miscreants came there from the line who were having firearms and torches. Naubat told that miscreants had come and saying this he fled towards village. He (PW 4) also told Vakeel Saheb that the dacoits had come therefore either he should fire or flee the place but due to injury in his thumb no fire was made. He had asked for the gun from vakeel Saheb but he would not give them the same, in the meantime the miscreants gheraoed them and held vakeel Saab. Out of those miscreants, one dacoit disclosed identity to be Mahavir of Saragdwari and demanded ransom of Rs. 50,000/- if vakeel Saab was to be set free. At this PW-4 started screaming but the dacoits intimidated him and forcibly took away vakeel Saab towards Dariyabganj station. Thereafter Brahmanand and others came from the village towards the grove firing, then it was told by him that one Mahavir of Saragdwari had taken away vakeel Saab. All of them tried to chase the miscreants and also made firing but they did not succeed in catching hold of them. The miscreants took along the gun of vakeel Saab also along with 25 cartridges and a torch. The night was bright on the said date, therefore in the light of torch as well as bright moonlight they had identified the faces of the dacoits. He had also gone to the jail for their identification. He did not know them from before and had seen them only at the time of incident and thereafter had seen them in jail at the time of their identification. After having seen accused Shyam Singh, Manohar, Het Singh, Jai Singh, who were present in court, he stated that he recognises them and that they were the same persons who were present on the spot at the time of kidnapping of vakeel Saab, who was wearing at that time Kurta, sweater, black coloured rubber shoe and a muffler. A sealed bundle was brought in court before him at the time of his deposition and he had identified sweater as Exhibit- 1, Tahamad as Exhibit- 2, muffler as Exhibit- 3, Kurta as Exhibit- 4 and shoe as Exhibit- 5 and stated that these were the articles which were being worn by the deceased at the time of being abducted.
34. In cross-examination this witness has stated that his statement was recorded by SO Patiyali and none else and was interrogated only once by him and he had not stated to him that what clothes were worn by the deceased because the same was not asked. The said clothes were not seen by him prior to the incident or thereafter. The police had not got these clothes and articles identified by him. Before giving statement she had not told that he could recognise those clothes. The clothes were in torn condition in small pieces but it was wrong to say that they could not have been identified.
35. When the miscreants were taking away Sateesh Chandra he had recognised them, thereafter he stated that he had recognised them at the time when they were holding vakeel Saab; he had not disclosed identity of miscreants to the police; among the miscreants one or two had marks of chickenpox and one or two had big moustaches. About these things he had noted in mind but it was wrong to say that the persons who were identified by him had been shown to him already at the police station and also at the time of the remand in the court and he also denied that prior to their identification he was told that the particular miscreants were wearing which clothes and they were to be identified.
36. Regarding Phulwari Kachi he stated that he was resident of his village, who was alive and he had no enmity with him. Brahmanand witness was also of his village. Both these witnesses had their houses about two furlong away from his house but it was wrong to say that Het Singh and Shyam Singh were seen by him prior to kidnapping at the place of Phulwari. He also denied that at the place of Phulwari he had talked in front of Brahmanand regarding pumping set of Het Singh. He does not know as to where the Het Singh resided. He had not gone to repair pumping set of accused Het Singh in front of Pradhan Ram Swarup in village Nagla Bani prior to the incident of kidnapping. Further he stated that the written work about recovery of clothes etc. was not done in front of him by the police; he had not disclosed to IO as to which miscreant was wearing which clothes. He admitted that Sateesh Chandra Sharma was a worker of Bharatiya Janata party. Further he stated that he had never gone to Aliganj and that he had no license to prove that he was a mechanic. At the time of incident, his Tehsil was Aliganj. Prior to the incident he had no relation with Sateesh Chandra Sharma, he had gone to his place for the purposes of boring work the same day in the evening around 4 PM and the same night he was abducted. His statement was recorded by police the next day. He had been taken there, by vakeel Saab himself. Regarding boring he had never had a talk with them prior to the said date. He does not know as to where the house of Sateesh Chandra Sharma is located in Aliganj. He denied that he used to go to Maha Deepak Singh's (MP) place in Aliganj and had seen the accused there. He denied to have seen the accused earlier in Tehsil. He also admitted that sometimes he would go to Raja Ka Rampur bazar which was about 2 ½ kos away from there and denied that he had seen accused there and also denied to know that bazars of Nagla Bani and Nagla Deepa were situated in Rampur only. He further stated that he had seen Popi Nagla which is a place to which witness Mahesh belongs. There is passage which goes from his village towards Popi Nagla and also stated that there was passage from his village to go towards Raja Ka Rampur via Popi Nagla but he denied that he had seen the accused in Popi Nagla. He also denied that he knew Dr. Rup Narain and Dr. Sateesh Chandra of Raja Ka Rampur and also denied that both the accused were known to him from before and had been shown to him at the police station prior to their arrest.
37. This witness further stated that in the night when the kidnapping took place he was in the grove itself. He had gone to his house from the grove in the morning around 8 - 9 a.m.. He had returned to the house of vakeel Saab in the night after his abduction and the trolley had been taken away by him the next day from the place of vakeel Saab. Genda Lal had not come to village on the said date in his presence. He had not heard about his coming in the morning neither in the day nor in the night. He had seen the miscreants from a distance of about 5 - 6 steps away; he and Sateesh Chandra Sharma both after fleeing from there had gone to the field of Sanai, which was in the same grove and the miscreants had caught hold of him there. He was about 20 - 25 steps away from the dacoits when they caught the deceased; the deceased was caught by the miscreants towards village, from the grove. He further stated that his village was situated towards East of the boring while the village of Sateesh Chandra was towards South. At the time when the dacoits were catching hold of Sateesh Chand Sharma, he had raised alarm. When they had caught the deceased, they had intimidated him (PW 4) because of which he did not scream; none was there. Naubat and Brahmanand had come there whom he had told everything. The police had recorded his statement about 12 - 1 O'clock, but he does not remember whether he had told police or not that he had not screamed because he had been intimidated by the miscreants. He had not told police about the fact that he could recognise the clothes of the deceased. After the dacoits had left the place, 10 - 15 minutes thereafter, villagers had arrived there. He had told the villagers that the miscreants had gone towards the side of railway line and they were chased in that direction but he had fear that the dacoits could fire upon him. The villagers who had reached there, also had licensed guns and had made fires from them towards the miscreants but he could not tell as to how many fires were made by them; the firing continued for about 15 - 20 minutes from both the sides. The villagers did not remain within the grove rather had chased the dacoits and had made fires upon them having chased them for 1 to 2 furlong. They had gone towards Dariyavganj station. PW 4 had no weapon. He could not tell as to how many fires were made by the villagers and whether fire was made by rifle or not.
38. He further stated that he had not gone to village Patiyali. The police had taken his statement at Chaupal of vakeel Saab. He had not gone to the place of incident with police nor does he know whether any empty cartridge was found there or not. From either side from a distance of about 2 furlong firing was being made; the miscreants were on the height towards the railway line while they were on the lower side. In his knowledge no one had received any injury. It would be wrong to say that SHO Patiyali had called him at PS and he had gone there and it is also wrong to say that on 18/03/1981 and 23/03/1981 he had been shown accused persons by the police at PS Patiyali and it was also wrong to say that on 01/04/1981 he had been taken to police line, Fatehgarh by police where he had been shown accused Ajay Singh. He also stated that no photograph was taken of Jai Singh in front of him there and that it was wrong to say that under influence of police he was giving false statement.
39. He further stated that the miscreants were not wearing Angaucha. He had not gone to Farukkhabad in April 1981 and it was also wrong to say that on 03/04/981 the police had shown him accused Manohar Singh and Raja Ram in police line, Fatehgarh and because of having seen him earlier he had identified him.
40. The next witness of the prosecution, Prem Pal Singh (PW 5) has stated that he was private shadow of the deceased who used to remain with him with a rifle. About 6 years ago vakeel Saab had got a boring done in his grove, the work of which was in progress and at that time he, Naubat, Bhav Singh and Mahesh were also present and vakeel saab had a single barrel gun along with 25 cartridges and a torch of 3 cells with him. At about 11 p.m. in the night when oil in trolley depleted, vakeel Saab sent him and Mahesh to Devraira to bring oil and rifle for which both of them had gone. As they were about to start back from the place where boring was being done with oil and rifle, Naubat - servant also reached there and stated that in vakeel saab's grove 15 - 16 dacoits had come armed with weapons. Hearing this he, Mahesh and Brahmanand and many others from the village reached the grove making fires and met Bhav Singh in the grove and he stated that Mahavir of Saragdwari had abducted vakeel Saab and was demanding ransom amount of Rs. 50,000. On Bhav Singh having said so, they all saw that the dacoits were taking away vakeel Saab towards station Dariayav Ganj on railway track; they all had chased them and had fired upon the dacoits and dacoits had also fired in return. In moonlight and in the light of torches they had recognised them; they had chased them for about 2 furlong but could not succeed to rescue the deceased. In the morning all of them again went in search of the deceased up to village Majhaula. Vakeel Saab had injury in his thumb and was wearing white khaddar kurta, pink sweater, pink muffler and green striped tahamad, underwear and plastic shoes. Vakeel Saab had received a firearm wound in his abdomen which was operated and he was having a scar of the same and in both his hands he had mark of injection which had pus in it. Since the time he was abducted vakeel Saab did not return.
41. About 4 months after his abduction, the dead body of Sateesh Chandra Sharma was found buried in the field of Het Singh regarding which he was told by police. The dead body was exhumed from a pit in his presence after having dug the pit 5 feet deep and he was identified by his clothes, face and operated scar. He also identified his kurta, muffler, sweater, tahamad, shoes, janeu and underwear. Angaucha was wrapped around his neck which had been pulled. janeu was Exhibit - 6, Angaucha Exhibit - 7, underwear Exhibit - 8 , baniyan Exhibit - 9 and all these clothes were identified by him as the clothes which the deceased was wearing at the time of his kidnapping.
42. He had gone to the jail for identification of the dacoits. After placing his hand upon Jai Singh, Shyam Singh, Shri Pal Singh, Het Singh and Manohar he had identified them as being involved in the incident and after the occurrence he had seen them in jail and thereafter he was seeing them today. These accused were not known to him earlier.
43. In cross-examination this witness has stated 20 - 25 days after kidnapping of vakeel Saab his statement was recorded by the police. Prior to giving statement before the police he had not told anything about the incident to anyone but subsequently stated that he does not recollect whether he had stated to police or not that what clothes were being worn by vakeel Saab and that those clothes he could recognise, but if the police has not recorded so in his statement he would not know its reason. Further he stated that Sateesh Chandra Sharma had muffler about one yard long and about little less than one balishta in width. Both sweater and muffler were of light pink colour. Further he stated that the sweater which was brought in court was of dark grey colour (katthai) but how many colours were there in muffler he could not tell but the same was a woollen one. We denied that muffler, Exhibit - 3 was of cotton. He further stated that he did not know as to how many pockets were in his kurta or how many buttons the same had. The clothes which were presented in court had all rotten/decayed and were in pieces, he does not recollect as to how many colours were there in his tahamad because much time had elapsed. He also could not tell as to shoe was of which company but the same was laceless and was of rubber and not of plastic or leather. After having seen shoe Exhibit - 5 he stated that the same was of rubber and not of plastic. He further stated that it was wrong to say that the clothes and shoe Exhibit- 1 to Exhibit - 9 were not that of Sateesh Chandra Sharma and that he was giving false statement under pressure from police or was stating wrong facts due to being his servant. The police had sealed the clothes of the deceased after having taken them out but the same was not done in front of him. Police had also taken off the underwear which was of blue colour and when he was shown the said underwear, he stated that the same was not appearing to be of blue colour because it had got soiled. He showed nara which was of blue colour. The defence counsel suggested that the underwear was of white colour, to which the witnesses stated that the same was of blue colour and not of white and was appearing to be white only because of the soil being stuck to it. The tahamad was of red colour but it's border was green and was in pieces. The Angaucha which was in the neck was of which colour and what was its length and width, he could not tell. When he was enquired whether the same was white or not, he stated that he did not know. Angaucha was twisted. The police had also got janeu off the body and denied the suggestion that the clothes were not taken off by the police and he was stating false and also denied that all this did not happen before him and was stating these facts on the basis of his imagination.
44. The dead body was exhumed from South of Nagla Bani but how far was that place from abadi area, he does not recollect. Het Singh was not arrested in his presence. There was a crowd of thousands of persons. The dead body was sealed around 5.30 p.m. and the same was exhumed by 4 PM. His village from Nagla Bani was about 7 kilometres away. He was not told by anyone rather he had reached there after hearing noises around 1 p.m. that a dead body was exhumed. Some cyclist had given this news. He had reached the spot at about 2.30 p.m. along with Ram Niwas who belonged to the house of deceased and Mahendra Pal and many other persons but Brahmanand had not gone there. When he had reached there the pit was being dug although the dead body had not been taken out. He denied that digging of pit and exhumation of the body was done in the light of Handa in the night.
45. The police had recorded his statement four times, if the police had inquired from him about the kind of light in which he had seen the miscreants, he must have told them and if the same had not been enquired, he might have omitted to tell, but he did not tell the police that he had recognised the miscreants in the light of torches and moon.
46. He was shadow of Sateesh Chandra Sharma only because of friendship for last 10 - 12 years although he had threat to his life staying with him; both of them were so deeply friendly that he could have laid down his life for him. At the time of exhumation of body of the deceased, his daughter in law had not come there. After post-mortem, the dead body was brought to Aliganj where it was seen by his daughter in law, son and other members of the family. When his statement was recorded by police, at that time the talks were going on in respect of ransom. Mahavir gang was a notorious gang of that area which had a terror in that area. After reaching home from grove, Bhav Singh had for the first time told him that Mahavir gang had kidnapped vakeel Saab. After having heard the name of Mahavir gang they all felt terrified and started firing only after protecting themselves. He further stated that he had no written proof of this that he was shadow of the deceased and denied the suggestion that he was not his shadow and that he was not present at the time when his dead body was exhumed and was giving false statement under pressure from police. He had seen Genda Lal on the spot, but he could not tell whether he came after exhumation of body or prior to that but he had seen him about 5 PM.
47. Further this witness has stated that he had not given in writing to the police that he was shadow of the deceased nor is it in his knowledge that the deceased had given in writing in respect of this fact. He had not taken any advice regarding lodging the report and had not gone to PS on his own. The house of the deceased was about 2 furlong away from the grove. He and Mahesh both had reached his house within 15 - 20 minutes. When he came to the grove by that time the miscreants had reached the railway track, they were on the run. He had not told the police that when he had reached that grove, at the time the miscreants were across the nala on the railway track but it was wrong to say that he was stating so after consultation with his counsel. In 1969 he was not private shadow of the deceased. In the year 1967, 1968, 1969 he was not with the deceased. He had seen the house of deceased in Aliganj; in front of his house in Aliganj near the road he had his bistar, where he used to sit, used to go to his bistar. Ramdev was Munshi of the deceased. He denied that he had seen Shreepal and Shyam Singh at the bistar of the deceased. About one and half furlong away from the village of the deceased there was other village called Devraiya where a Kachi by the name of Phulwari used to live. He denied that he had seen Het Singh, Shri Pal and Shyam Singh at the place of Phulwari Kachi. He has shown ignorance that Shivsharan resident of Chandanpur was a witness in a case under sections 307 IPC from the side of Sateesh Chandra and also denied that he had gone with Sateesh Chandra many times to Shivsharan's place. He also showed ignorance that there was house of Shyam Singh in Raja Ka Rampur or not. He had never seen house of Ashok son of Trigpal Singh resident of Raja Ka Rampur but he knew him. In a month or 6 months whenever there was necessity, he used to go to bazar, but he denied that in Raja Ka Rampur at the house of Ashok he had seen accused Shyam Singh. He also denied that he had seen him when he had come to court for remand. He also denied that he had seen accused Het Singh in Nagla Bani and Aliganj at the time of remand in court. He pleaded ignorance that the field of Het Singh where the dead body was found, the same was 20 hands in length and 100 yards long or how much long.
48. At the time of incident he had a license for gun. He denied that he had been shown accused Ajay Singh by police in PS Patiyali and showed ignorance about the said accused being brought to PS on five-day remand. He also denied that on 01/04/1981 he was shown accused Jai Singh by police in Fatehgarh police line. He also showed ignorance about photo having been taken of accused Jai Singh by police in April 1981 in police line or not.
49. Further he stated that he had made 4 - 5 fires from rifle which was of the deceased but had not told about it to the police nor had he shown the empty cartridges of the same to police which might have been there. About 10 - 15 fires were from their side while 10 to 15 fires from the side of accused were made. Who had made how many fires he could not tell. The rifle by which fire was made by him was not shown to police by him. He denied that accused Jai Singh had been shown to him and also his photo was shown and because of that only he could identify him and denied that he had not seen the occurrence and that Jai Singh was not on the spot. He stated that he had not made search for empty cartridges but he does not know whether police had made search about them or not.
50. Further he stated that the miscreants had not covered their face nor had they worn any Angaucha. He denied that his brother-in-law Kishnu was murdered by uncle of Manohar called Deep Singh, regarding which a case was registered and also denied the suggestion that he knew Manohar because of his sasural from before and also denied that he had done pairavi in the case of his brother-in-law because of which he knew Manohar from before.
51. Phool Shri, PW 6 has stated that she knows the deceased as well as Latoori Singh, both had been MLAs and had been seen during canvassing in village. Her parents house is in village Imaliya Purwa under PS Kannauj. She was married in village Gadariyan Nagla under PS Aliganj with Lakshmana Lal about 16 years ago and soon after marriage she had gone to Gadariyan Nagla. There, near her house was house of one Balak Ram. About one year prior to the murder of Sateesh Chandra Sharma, Balak Ram developed friendship forcibly with her. In friendship he used to forcibly indulge in sexual act with her and whenever her husband opposed, Balak Ram used to tie him with a cot. Balak Ram was a member of Mahavira- Pothi-Jai Singh gang and used to indulge in goonda activities and he used to be taken to the said gang forcibly by Balak Ram and was being exploited. Besides Balak Ram she also got to know Ram Prakash (PW 3). About 6 ½ years ago at about 5 PM Balak Ram had taken him to Nagla Gadariyan saying that she was not scared of him, let her see how big work would be done today by him and thereafter he took her to the house of Het Singh, who is in court. She remained at the house of Het Singh for about one and a half hours and thereafter she was taken by Balak Ram to the South of the village at the field of Het Singh, where there were 15 to 20 persons underneath a tree sitting and near them Sateesh Chandra Sharma was sitting with his hands tied behind and was wearing Angaucha. Those 15 to 20 persons included Shri Pal, Gangadhar, Anar, Gajraj Singh, Hari Singh, Mahavir, Jai Singh, Balak Ram, Latoori Singh, Ram Prakash, and others she did not know as much time had gone by. She had enquired from Balak Ram as to why she had been brought there, then he stated that they were awaiting Latoori Dada and see what happens when he comes. Thereafter Latoori Singh came in a jeep with 2 - 3 persons at about 8 - 8:30 p.m. and after parking their jeep 50 steps away near the tree where rest of the persons were sitting. Soon at his arrival, he stated to Sateesh Chandra Sharma that he had got Viri Singh killed, now he should withdraw his case, at this Sateesh Chandra Sharma stated where he had got him killed, then Latoori Singh told him to apologise to him by kneeling down his head at the feet, at this Sateesh Chandra Sharma stated that he would rather die than bow his head before a dog like him. Thereafter Latoori Singh exhorted to throw knot in his neck and to pull the same thereafter the same Angaucha, by which his hands were tied, Anar Singh, Jai Singh, Balak Ram and Shri Pal made a knot and Latoori Singh held his hands and Sateesh Chandra was killed. Thereafter Latoori Singh asked Het Singh to bring the spade and thereafter Balak Ram told Latoori Singh that he should dig the grave of his enemy and pursuant to that Latoori Singh made 4 - 5 blows of spade and thereafter all of them together dug the pit and buried the dead body of Sateesh Chandra Sharma therein. After his burial, his watch was taken off but other articles which he was wearing were buried with the dead body. He was wearing at that time rubber shoes, white kurta of khadi, muffler, full sleeves sweater, half dhoti and thereafter Latoori Singh told Het Singh that he should plough the said field in the morning and also gave Mahavir cartridges and told him that there was one more enemy who he should eliminate, then he would give him a rifle. Thereafter Balak Ram told Ram Prakash that they should take Phool Shri to Gadariyan Nagla and leave her there. Thereafter Ram Prakash took him to Rudayan near Alaiyapur instead of Gadariyan Nagla, where both of them consulted each other and thereafter she told Ram Prakash that these people were doing dirty work of killing, therefore both of them should leave the gang and thereafter they went to Farukkhabad and from there to Saharanpur and from Saharanpur to Delhi, from Delhi to Agra, from Agra to Haryana, from Haryana to Punjab and from there to Punjab and from there to Madras, from Madras to Amritsar and from Amritsar to Vijayawada and from Vijayawada to Delhi again and from there they went towards East. They had also gone to Roorki and Moradabad and from there they returned to Kannauj and stayed at powerhouse. There she told Ram Prakash that her mother was sick right from the time of kidnapping, whom she wanted to see and therefore she went to Imaliya Purwa alone from Kannauj, because Ram Prakash told her that he would stay back and she should go and see her mother. Thereafter she went to Imaliya Purwa where her mother was running sick. About 2 - 3 days thereafter, Ram Prakash came to Imaliya Purwa about 11 AM in the day, where Ram Prakash was seen by public men and he started running but he was arrested by public and police in the field near the place where there was garbage kept, around 2 ½ p.m.. From his possession, police recovered one country made pistol and 6 cartridges and thereafter the police took him to PS Kannauj, where he told policemen that he should not be beaten because he was ready to reveal everything about Sateesh Chandra Sharma with regard to his dead body being buried. The next day police took Ram Prakash to Bani Ka Nagla and she was also taken there after the dead body was exhumed. She had returned after identifying the body which was of Sateesh Chandra Sharma. Sweater Exhibit 1, tahamad Exhibit 2, muffler Exhibit 3, Kurta Exhibit 4, shoes Exhibit 5 were seen by her and stated that these were the same clothes and shoes which were being worn by the deceased prior to the incident and these articles were recovered at the time of exhumation of his body. Angaucha Exhibit 7 was also the same by which knot was made in his neck. When Sateesh Chandra Sharma was murdered, there was light of torch and a dim light of lantern and Moon. The witness after placing a hand on accused Anar Singh, Sadhu Singh, Shri Pal identified them to be the same persons who were recognised by her in jail and thereafter stated that they were the same persons who had murdered Sateesh Chandra. They were not seen by her between the time of incident and their identification. Jai Singh, Gajraj Singh and Hari Singh were present in court along with Latoori Singh. At this stage the State counsel stated that whether a prayer to cross-examine the witness on several points regarding which there were minor contradictions be made or not after consulting his other companions, he sought time to write an application for the same and it all consumed about 10 minutes, but till then he could not write application until it became 12:58 hours. Thereafter this witness has stated that she had not given any such statement that the wrist watch was taken off after burial of the deceased but it was right to say that when he was buried his wrist watch was taken off. Further she stated that the day when the dead body of the deceased was dug out, she had reached there about 12 - 1 p.m. and remained there till 4 - 5 PM.
52. Further she stated in cross-examination that she was 23 years old and was married at the age of 17 years and had 2 sons and a daughter, her eldest son was studying in Class 6 in village Josholi in primary school Kannauj and the name of eldest son was Ram Kishore and the younger one was called Vijay Singh. The name of their father was Laxman Singh. She could not tell as to at what age he started going to school but it was not that he was 15 - 16 years of age.
53. Her husband had 85 bighas of land in village Gadariyan Nagla in which there was share of other three brothers also of Laxman all these 3 brothers were elder to her husband whose names were Mohan Singh, Kabir Singh, and Praveen Singh and their father's name was Bhikham Singh. She denied the suggestion that her husband did not have even one bigha of land and stated that there was land in her husband's name who used to do farming himself and she could not tell whether she can file papers of land or not. She does not know who was Patwari; earlier Gadariyan Nagla was in jurisdiction of PS Aliganj but now it's PS was Raja Ka Rampur. Further she stated that she was not living in her matrimonial home since 1981, rather was living in Imaliya Purwa. She has no knowledge as to who ploughs her land in Gadariyan Nagla. Her husband does service, but since when he was doing service she could not tell. Her husband is working in police office in Farukkhabad as a servant. He was in service since three years prior to the discovery of dead body. He denied the suggestion that her husband was given employment by Superintendent police, Farukkhabad after exhumation of body of the deceased, but she pleaded ignorance about salary of her husband. Further she stated that she had not gone to Farukkhabad to live with her husband because her husband used to come to her and used to live in police barrack. She denied that she used to go there. She also denied the suggestion that she was given any temptation of giving employment to her husband in lieu of her giving false statement before police in respect of this incident. It is wrong to say that her husband was in service since prior to the dead body being found. She would not tell as to who had purchased sari, watch, kundal and spectacles which she was wearing. She had purchased sari from Fatehgarh in Rs. 200 and watch was purchased from military canteen this year only in 12th month. Sari was purchased in the month of March while kundal was purchased in the year 1984 for an amount of Rs. 65. The sari which she was wearing was of Rs. 225/- and the spectacle was of Rs. 75. She could not tell as to how many saris she had purchased because the box is full of saris which she could not count. The same number of spectacles and slippers she has as she has saris. She denied that MLA Genda Lal and the relatives of the deceased used to give her huge amount and also denied that police had given her huge amounts. She denied to tell the number of years since when she knew Latoori Singh but had seen him in election, but she could not tell as to how many times she had seen him in elections nor could she tell the month and the weather when she had seen him and who were the persons who had stood for election, whom she had gone to cast her vote. She could not tell whom she had voted for. She also could not tell as to how many days after exhumation of the body of deceased she had cast her vote but she denied that Latoori Singh had not come in election nor had she met him during canvassing.
54. She knew Balak Ram since one year prior to the murder of Sateesh Chandra. She had developed relationship with Balak Ram about one year prior to murder. And about 6 months after she had developed relationship with Balak Ram, she met Ram Prakash and prior to that Ram Prakash used to come to her but she did not know him. Ram Prakash was introduced by Balak Ram and she did not have dirty relationship with Ram Prakash. She could not tell whether she had relationship with Ram Prakash like the one which exists between man and woman. Ram Prakash used to come since prior to the murder.
55. She did not know anyone of the family of Ram Prakash although she has seen his house. To the East of house of Balak Ram is house of a Gadariya, whose name she does not know. Towards West of the house of Balak Ram is Ram Bharose and towards North is Baboo Ram Kumhar and towards South is Ram Singh Gadariya. Balak Ram used to take her to his home forcibly but not to the gang. For the first time she was taken forcibly by Balak Ram at the time of murder of Sateesh Chandra. During any other activity of the said gang she had never accompanied Balak Ram. She denied that Balak Ram used to take her to the gang men where they used to do the dirty work with her. Her statement was recorded before Magistrate in which she had not stated that Balak Ram used to take her off and on to the gang of Mahavir and Jai Singh, where they used to do dirty work with her. The police had recorded her statement but she had not given any such statement that that Balak Ram had relation with Mahavir gang and he used to take her to Mahavir gang sometimes, where Balak Ram used to do dirty work with her. It was not so that whenever she went to the gang, then Ram Prakash used to meet her, rather she got introduced to Ram Prakash in Gadariyan Nagla. In her statement before Magistrate and I.O. she did not say that Balak Ram often used to take her to Mahavir and Jai Singh gang and used to do dirty work there with her. She denied that Ram Prakash met her when she went to gang. She stated on her own that Balak Ram used to take her forcibly but where she used to be taken she could not tell.
56. On the day when the murder happened she was in Gadariyan Nagla right from the morning as she used to reside there. She does not know whether Balak Ram had come to her one day prior to the murder or not. He used to come daily but she could not tell exactly whether one day prior to the murder, Balak Ram had come to her or not. Then she stated that on the day of murder, Balak Ram had come to her at about 4 PM in Nagla Gadariyan and stayed there till 6 PM. She does not know the distance between Gadariyan Nagla and Nagla Bani but it is a small distance. She could not tell that the distance is 5 - 6 miles or 15 - 20 yards, nor does she know as to which direction Nagla Bani exists from Gadariyan Nagla. Prior to the day of murder, she had never gone to Nagla Bani. She was taken there after her eyes were covered with a cloth. She had not seen the house of Het Singh with her own eyes although she had stayed in his house for about one hour. Toward South of house of Het Singh at a distance of about 10 - 20 steps was the place where Sateesh Chandra Sharma was sitting with his hands tied. Between house and the field there were 2 trees and in the said field there, crop of wheat was standing. She did not know as to how much bigha was the area of the said plot. In the said field besides wheat there was also crop of peas, Masoor and tobacco and no other crop. There was also one tree of Babul. In the said field toward South was crop of wheat. Towards North and South was crop of wheat, where was tobacco she could not tell, where was Masoor she could not tell. How much crop of wheat was there standing, she could not tell although the crop of wheat was ripe. Sateesh Chandra Sharma was sitting North South of the crop of wheat, thereafter she stated that because of it being dark night she could not tell that he was sitting 10 - 15 steps toward South of wheat. The place where Sateesh Chandra Sharma was sitting, the mango tree was about 10 - 5 steps away toward South. Towards North of the mango tree was situated Babul tree at a distance of about 15 steps. In the said field there were two mango trees and one tree of Babul. She herself was sitting about 100 steps away from the tree of mango towards West. It was the same mango tree near which Sateesh Chandra Sharma was sitting. The whole story was seen by her from there where she was sitting. Near her was sitting Balak Ram, rest of the persons were sitting near Sateesh Chandra Sharma. She stayed at Bani Ka Nagla for about one hour. In the night of murder, she remained there for about one hour and in the village she stayed till 7:30 PM and thereafter on her own she stated that she was taken to the said field.
57. The jeep of Latoori Singh had come from the eastern side to the field in the night of occurrence which was parked about 50 steps away from the field on the road. On which side of the field was it parked, she could not tell. The said road was Kachchi. The driver was left in the jeep while rest of the persons had accompanied Latoori Singh to the field of Het Singh. Toward South of the tree of mango at a distance of about 4 steps, Latoori Singh had talked to Sateesh Chandra. She does not know whether the gang men sitting there with Sateesh Chandra, had any rifle, guns or not or whether they were empty-handed. She could not tell as to for how long the talk took place between Sateesh Chandra and Latoori Singh. Only three talks were held. She was not wearing wrist watch, therefore she could not tell as to for how long they had talked to each other. She could not tell it by conjecture as well, thereafter she said that she could guess the time, but till when the talk was held between them she could not tell even on conjecture. She herself stated that the talk had began at 8.30 p.m. and continued till 9 PM. The deceased was strangulated to death at 2 ½ a.m. in the night. After his murder the dead body was buried till about 3.30 a.m. and while he was being buried his wristwatch had been taken off. It would be wrong to say that the burial of the dead body was started at 2.10 a.m. and the talk with regard to giving of rifle and cartridges had been over by then. She does not remember whether she had stated before the Magistrate that the entire proceedings of burial of the dead body was over by 2.10 a.m. in the night or not. The witness was read out her statement and thereafter she stated that she does not recollect. Further she stated that she did not know whether she had given such a statement to police that the entire proceedings were over by 2:10 a.m.. If the police had not recorded so , she could not know the reason as many days had already elapsed . Latoori Singh had yelled out saying that he was giving 100 cartridges but she had not counted them. She also does not know whether anyone had counted the cartridges or not .
58. Toward southern med of Het Singh's field at a distance of about 10 - 15 steps, towards North the pit was dug. How far away from the western med the pit was dug she could not tell. From the said pit, the tree of Babul was 10 - 5 steps towards East. Towards field, nearby whether there was any Chak road, she does not know but there was a road but she could not tell whether this road goes east-west or north-south.
59. She had given statement to the Magistrate about knot being thrown in the neck of Sateesh but she does not recollect whether she disclosed it to the police are not.
60. Because of long time having elapsed she does not recollect whether at the time of giving statement to the Magistrate she stated or not that Anar Singh, Balak Ram, Shri Pal and Gangadhar had strangulated the deceased to death by a knot of Angaucha. He was strangulated by Jai Singh and Mahavir. The statement under sections 164 Cr.P.C. was read out to her in which she stated that she does not recollect whether Anar Singh, Balak Ram, Gangadhar and Shri Pal had strangulated the deceased to death or not. She does not recollect whether in her statement given yesterday to the effect that Anar Singh, Jai Singh, Balak Ram, Shri Pal had thrown the knot and Gangadhar had also thrown the knot, was given due to mistake because a long time had already passed. She had stayed in police line, Etah. She denied the suggestion that she was tutored to change her statement.
61. She further stated that in Kannauj she stayed with Ram Prakash for 8 - 10 days and thereafter she went to her parents house in Imaliya Purwa to see her mother alone. Ram Prakash had not taken her to Imaliya Purwa. She had given correct statement to the police but had not stated to police that Ram Prakash had left her at Imaliya Purwa, if the same had been written by the police she could not tell its reason. While she was staying for 8 - 10 days in Kannauj, for the first time she had told Ram Prakash that she should go to see her ailing mother, and then Ram Prakash had not allowed her to go. She does not know as to why Ram Prakash had not gone to her parents house in Imaliya Purwa. She could not tell the date when she had gone to Imaliya Purwa. Three days after that Ram Prakash had gone to Imaliya Purwa which she distinctly remembers. It is wrong to say that after reaching at Imaliya Purwa, 5 days thereafter Ram Prakash reached there to take her. She had stated to the Magistrate that Ram Prakash had come to take her at Imaliya Purwa three days thereafter, but if he had written 5 days, the same must have been written by him on his own. He was arrested there the same day when he had reached there.
62. She has further stated that on the date of arrest she had narrated to the police of Kannauj at 6 PM about the whole story of the murder of Sateesh Chand Sharma and where he was buried but she was not taken in police custody and had went home which meant that she had gone to Kazi Tola Kannauj.
63. She further stated that the digging out of the dead body of Sateesh Chandra Sharma had started about 2 PM in the day and at that time there was huge crowd, she could not tell as to how many persons were engaged for digging out the dead body.
64. Towards Northern medh of the field of Het Singh, the dead body was dug out from the place from the same pit where it was buried. The dead body was exhumed about 10 - 15 steps away from the western med of the field. At that time there was crop of sweet potato in the said field and the crop of wheat, peas, and masoor was ripe. To the East of the said plot was a Kachchi road. From the place where the dead body was exhumed, Nagla Bani was situated about 10 - 15 steps away. The dead body was dug out at about 3 - 4 PM and was sealed at about 5 PM. Prior to the dead body being sealed it was not night-time. She could not tell as to whether Genda Lal was present there at that time or not because there was too much crowd. It was daytime and at the time of doing of writing work, handa was not lighted although lantern and handa had been called for but the same were not lighted. She does not recollect as to where the said handa was kept. She does not recollect whether at the time of exhumation of dead body photos were taken or not because of huge crowd. The dead body was taken away at about 6 - 7 PM and she had also gone thereafter at the same time. From there she had gone to Imaliya Purwa the same night when the dead body was exhumed. Up to the police station she had come in a police jeep and from PS she had gone by tonga to her village, but she could not tell as to when she had reached PS, in the night; she had reached Kannauj at about 12 - 1 a.m. in the night and by 2 a.m. in the night she had reached her village.
65. She does not recollect the name of the police officer who had prepared panchayatnama. On the spot, the Magistrate was dictating and the police officer was writing. She had seen the faces of the police officer and the Magistrate. She was shown the photograph, seeing which the witness stated that she does not recollect whether they were the same Magistrate and the police officer in photo, Exhibit - 2.
66. She further stated that from PS Kannauj at about 6 AM she had gone to the field of Het Singh in Nagla Bani. She had gone in the jeep from the police station alone. In the vehicle coming behind him was sitting Ram Prakash. From police station, she had gone straight to Nagla Bani and nowhere else. Her vehicle and the vehicle of Ram Prakash had reached simultaneously at Nagla Bani. Magistrate had got the identification of the dead body done from her or not she does not recollect because of lapse of long time. She had a talk with the Deputy Saheb who had filled up panchayatnama but he had not got her thumb impression affixed thereon. The Superintendent Police, Etah had recorded her restatement but her thumb impression was not taken by him. She does not recollect whether on the date when the dead body of the deceased was recovered, she had gone to PS Aliganj or not.
67. Further she stated that it was wrong to say that the murder of Sateesh Chand Sharma was not committed in front of her and that she was not present at the time when the dead body of the deceased was exhumed. She also denied that the dead body which was exhumed from the field of Het Ram was not that of Sateesh Chand Sharma, rather was of someone else and that the dead body was totally decayed and could not be recognised and that Ram Prakash was not a member of the Mahavir gang and that she had never been taken to the said gang and that the arrest of Ram Prakash was not made in the manner stated by her and that she had given false statement in this regard on pressure from police and the informant Genda Lal who had given her huge amount for giving false statement.
68. She further stated that because of long time having passed she does not recollect as to how much after her reaching at the field of Het Singh, the digging work had started. She had reached the place where the digging was to be done at about 1 ½ p.m. and the digging had started about 2 ½ p.m.
69. She has further stated that her matrimonial home is situated in Nagla Mathuri. In her matrimonial home in Nagla Mathuri, near her house is lying vacant land and thereafter there are houses of Rajaram, Devi Maharaj, Bacha Ram, Babu Singh. Bacha Ram and Babu Singh are real brothers, who had insulted her husband and thereafter they started living in Gadariyan Nagla. They had shifted to Gadariyan Nagla about two months prior to the murder of Sateesh Chandra.
70. Sadhu Singh is cousin brother of Bacha Ram . She knows accused Jai Singh very well who is brother-in-law of Babu Singh of Nagla Mathuri or not, she could not tell. She had not seen accused Jai Singh or Babu Singh in Nagla Mathuri. After seeing Shyam Singh in court she stated that he was Shyam Singh of Ghiya Nagla. She denied that the witness of this case Ram Prakash used to come to her in Nagla Mathuri, where she developed illicit relations with him and because of that he was thrown out of Nagla Mathuri. She is living in Kannauj since 1981 and does not know as to where his three brothers-in-law were living in Nagla Mathuri or not. The name of her father-in-law was Bhikham Singh. When she had come after getting married then her husband was living in Nagla Mathuri and prior to that he lived in Raja Ka Rampur.
71. She denied that in Raja Ka Rampur she used to live Nakab Huzoor Diwan in PS Kannauj, in whose house her husband used to live and used to do farming work for him, because he had 85 bighas of agricultural land of his own. It was also wrong to say that Nakab Huzoor Diwan had got her married in Imaliya Purwa with Lakshmana Jatav and at that time she already had a child of three years who was as of now studying in Class 9 in Fatehgarh. Since the time when she left Nagla Mathuri she did not go there even for a day. Since 1981 she was living with police in Imaliya Purwa, when the dead body was recovered. Even today 85 bighas of land is there in Nagla Mathuri and Nagla Bani which belonged to her father-in-law. Her husband was in service. It was right to say that from Nagla Mathuri her husband was ousted, his brothers are still living there. She further stated that police did not leave her therefore she could not do pairavi for Ram Prakash. She has nothing to do with Ram Prakash nor did she consider it necessary to engage any counsel to seek the acquittal of Ram Prakash. She is living since 1981 in the supervision of police in village Imaliya Purwa. She was living in Imaliya Purwa since 1981 till now.
72. Further she has stated that she does not remember as to when she had cast her vote either prior to the kidnapping of Sateesh Chandra or thereafter but she had cast her vote during the lifetime of Sateesh Chand Sharma and never cast her vote thereafter. She denied that she had never cast her vote till now and she does not know the first polling station where she had cast vote and whether her name was in the list or not.
73. After her going with Ram Prakash she had met Lakshmana in 1981 in village Imaliya. Since then her husband is living in village Imaliya. Ram Prakash had never gone to Imaliya Purwa prior to his arrest even for once nor had he met her prior to his arrest. Her husband does service. After the departure of Ram Prakash she knows where her husband Lakshmana was living, he was living at his house in Mathuri Nagla. He was getting Rs. 913 as salary.
74. She denied that she had not stated name of Sadhu Singh to the police officer or Magistrate in her statement, who was present in court, thereafter she further stated that three other accused were present in court. She did not know Sadhu Singh's name, therefore that could be the reason why in her statement before the police officer and the Magistrate his name might not have appeared. But it was wrong to say that she was giving false statement in court that she did not know the name of Sadhu Singh earlier nor had she seen him. It was also denied that she was giving false statement against him because of enmity with Sadhu Singh and Jai Singh under pressure from police.
75. Balak Ram, Ram Prakash who were witnesses of this case, with whom she had forced relationship, were considered to be good persons by her
76. One year prior to kidnapping of Sateesh Chandra, she had developed illicit relations with Balak Ram for which she felt bad because she considered it bad that despite there being her husband she was having illicit relations with another person but on her own she stated that the said relationship was established forcibly by him, what could she have done.
77. When a question was put to her as to whether she would be able to show her face in society because she was being sexually exploited by Ram Prakash and Balak Ram, the said question was objected to by the prosecution side. She was also asked whether she ever opposed when she was being sexually exploited and had lodged any complaint about that, to which she replied that she was never left. She became free of Ram Prakash after his arrest. Since 1981 police was doing her security. She had never given any application against Ram Prakash and she denied that she had become habitual to immoral acts and had become habitual to keeping relations with different males.
78. She had not gone for identifying Anar Singh, Shyam Singh in jail and that it was wrong to say that she had put her hand on wrong persons while identifying them. Further she stated that she stays in police security.
79. Further she has stated that no identification was got done by her of the clothes which were found on the dead body of Sateesh Chand Sharma. She had seen the deceased in election of Mathuri Nagla. It was wrong to say that Subedar son of Ram Sahai Gadariya resident of Gadariyan Nagla and Sumarita Devi of the same village and some other persons had given any application stating that she was a lady of bad character and that she should be externed from the village and further she denied that the said Subedar Singh was Mausa of Hari Singh, Gajraj Singh and Shri Pal and because of that annoyance she had taken their names as accused persons and thereafter on her own she stated that all the three accused were brothers of Balak Ram. She further stated that in her restatement made on 27th she had stated that Anar Singh and Shri Pal had put knot in the neck of Sateesh Chandra and the same was stated by her for the first time in court. Further this witness's attention was drawn to her statements under sections 161 Cr.P.C. and 164 Cr.P.C., in which she admitted that she had not taken names of Shri Pal, Gangadhar and, Anar Singh and also stated that she does not recollect about it because much time had already elapsed and also stated that she could not tell as to why the names of these three persons were not in those statements. She denied that she had taken names of these three accused because their names were disclosed to her by the Government advocate as well as private advocate and also due to enmity. To a question put to her as to whether she had any hand in murder of Sateesh Chandra, she replied in the affirmative and stated that Balak Ram had brought him there. But she also stated that she does not recollect whether she had stated anything to police about there being her hand in murder of Sateesh Chandra. When attention was drawn of the witness to her statement in 161 Cr. P.C., she stated that she could not tell the reason why there was no mention made about it in the same.
80. She further stated that she had told about Sateesh Chandra Sharma having been buried in the field of sweet potato. When she was read out her statement under sections 161 Cr. P.C., she stated that she could not tell the reason as to why the same was not written in the said statement and also denied that the police had recorded her restatement after intimidating her. Her statement to the effect was correct that at the time when Sateesh Chandra Sharma was murdered, there was dim light of torch, lantern and moon, which was recorded on 27th in court for the first time. Similar statement was also given by her to the police as well as Magistrate and when she was confronted with her statement under sections 161 and 164 Cr. P.C. and such statement was not found there, she stated that she could not tell its reason and denied that she had given the said statement in court after being tutored.
81. When she was put a question as to when Ram Prakash was convicted whether she felt good or bad, to which she replied that he was not convicted and showed ignorance as to in which case he was detained or whether he was detained as a witness. She further stated that a person who would commit dirty work with her forcibly, she would continue to have sympathy for such a person. Further to a question as to whether she had talked to her mother in respect of Ram Prakash doing forcibly dirty work with her, to which she replied that she was not meeting her mother and thereafter she stated on own that when she became free from Ram Prakash she stated about her relations with him to her friends and all. Further she denied that she knew Ram Prakash since prior to the murder of Sateesh Chandra.
82. PW-7- Ramesh, has stated in examination-in-chief that the deceased Sateesh Chandra Sharma was kidnapped eight years ago. The next day of his kidnapping, he had gone to Ram Nagar in connection with she-buffalo along with Shanti. At about 6-7:00 p.m., when they started towards Ram Nagar, Ram Nath Singh told them that he would also accompany him to Aliganj and, thereafter, when all the three proceeded in a bullock-cart towards Aliganj and turned towards Dariyayganj, they saw light of one jeep coming from the side of Aliganj. The said jeep when passed from near their bullock-cart brushing it, they saw that the said jeep was being driven by Chandu and Latoori Singh, (Ex- M.L.A.), Sadhu Singh and Anar Singh, were sitting in the said jeep armed with rifle and guns with their shadows and, thereafter, they took their jeep towards Nagla Bani. Latoori Singh, Sadhu Singh, Anar Singh and shadow were present in court today. Thereafter, after about four months, he came to know in Aliganj that the dead body of Sateesh Chandra Sharma was recovered regarding which one lady had told that the same was buried in a field having crop of wheat. When he came from Aliganj to Nagla Bani, he saw dead body there. The crop of wheat had grown to considerable height. The pit was started to be dug there only and from five feet deep pit, the dead body of the Satish Chandra Sharma was exhumed. The persons who had dug the pit, were local people also and the police were accompanying them with S.D.M. He had identified the dead body of Sateesh Chandra Sharma by looking at his face and clothes. His face was visible distinctly, his fingers of hand were appearing clean and a green coloured Angauchha was found wrapped around the neck and the dead body was in Tahmad, Khaddar Kurta, Pink Sweater, Baniyan. From the pocket of Kurta, a coin of 50 paisa was taken out. One black shoe was also recovered which had sole of tyre and the shoe of one feet was broken. Thereafter, at the dictation of S.D.M. Panchayatnama of the dead body was prepared by one S.I. and signatures of the panchas were taken on the same and the same was signed by him also. Recovery memo of clothes and other articles were also prepared separately and was signed by him. He further stated that the Sweater (Ext.-1), Tahmad (Ext. 2), Muffler (Ext. 3), Kurta (Ext-4) ,shoes (Ext. 5), underwear (Ext. 8), Baniyan (Ext 9), Janeu (Ext. 6), were the same which deceased Sateesh Chandra Sharam was wearing, when his dead body was exhumed from the field. Angauchha (Ext 7) in the form of rope was found wrapped in the neck. After having taken out the clothes of the deceased, the injuries were seen and all of them were appearing to have been caused earlier and had also healed earlier. Their scar were visible; scar appeared to be of fire arm injury. The recovery memo was also prepared of Angauchha and the recovered coin, which were Ext. Ka-4 and Ka-5 respectively and were prepared by S.I. at the dictation of S.D.M. in his presence, which were signed by him also.
83. In cross-examination, this witness has stated that he knew the deceased because he was an M.L.A. He was employed as a peon by the Principal of DAV college five years ago but he denied that Genda lal (informant) had got him appointed on the said post so that he could make false statement in the present case. He had identified the dead body of the deceased having seen his face because he was an M.L.A. and showed ignorance that there was any political rivalry between Latoori Singh and Genda Lal and also denied that he was ever shadow of Genda Lal. He also denied the suggestion that about 10 to 12 years ago, he was a shadow of Genda Lal and gun of Genda Lal used to be kept by them and also denied that he had ever gone to the house of Genda Lal ever. Further he stated that he had reached in the after noon about 2.30 p.m. when the dead body was being exhumed and remained there till 5:30 p.m.. Handa was arranged but they were not lighted for doing writing work on the spot. There was lot of crowd and till the time he remained there, he had not seen Genda Lal and the ladies of the house of the deceased had also not reached there. The S.I. had asked him as to whether he recognized the dead body, then he had told that the same was of Sateesh Chandra Sharma. After 15 to 20 days of the recovery of the dead body, S.I. had recorded his statement for the first time but he does not remember whether he had stated to him that clothes which were mentioned above, were found being worn by the deceased. He also could not tell as to how big the area of the field was from where the dead body was dug out. Nagla Bani was situated in the South-West of the village in which the said field was located from where the dead body was dug out and the said field was about two furlong away from Nagla Bani. Further he stated that the place where bullock-cart had a brush with jeep of Latoori Singh, was located about 3 to 4 km away from Nagla Bani towards south and from Ram Nagar, Nagla Bani would have been around 2 and ½ km away towards south western direction.
84. Further he stated that he does not know name of shadow who was sitting in the jeep nor was he got identified by him till date nor his identity was asked for by the I.O. The Jeep of Latoori Singh had a brush with his bullock-cart, was not told by him to any police personnel or to any higher Authority. He had denied suggestion that neither he had gone to see she-buffalo nor his bullock cart had brushed the jeep of Latoori Singh and that he was giving the statement only at the instance of Genda Lal (informant). This witness also stated that he got employment in DAV college about two and ½ years after the kidnapping of the Sateesh Chandra Sharma.
85. PW-8, Keshav Singh Rana, retired Dy.S.P. has stated in examination-in-chief that on 12.3.1981 at 13:15 hours he had received information through informer that some members of the Chhaviram and Mahavir Gang were sitting in the house of Babu Ram Jatav of village Imaliya Purva who had weapons also with them. On receipt of the information, he went with other police team at 13:15 hours vide G.D. report no. 16 (Ext. Ka-6) and took name of Ram Sewak, Arif and Shahzad of village Zamauli for arresting the said accused persons and when Babu Ram Jatav tried to flee coming out of the house of Ram Prakash, he was arrested outside of his house and disclosed his name to be Ram Prakash of Nagla Bani. On his search, one country made pistol and five cartridges were recovered from him, recovery memo of which was prepared and on having inquired from him, he revealed that he was member of Mahavir and Chhavi Ram gang and had come there to meet Phool Shri and that the other members of the said gang were in Jungle of Maiki Ghat and that if police wanted to arrest them, they could accompany him. Besides that he also revealed that about four months ago, Sateesh Chandra Sharma (Ex. M.L.A.), Patiyali was kidnapped by him at the instance of Latoori Singh (Ex. M.L.A.) and he was murdered and was buried in the field of Het Singh Yadav of Nagla Bani and he could show them the said place. On the basis of said statement, Fard 'Inkshaf' (Ext. Ka-7) was prepared by him which was signed by Ram Sewak, Arif Husain, Abdul Sayeed Khan and S.I. Ram Manohar Singh and the same was prepared in presence of these witness at about 3:30 p.m. and the time of arrest of the said accused Ram Prakash is recorded as 2:30 p.m. and face of Ram Prakash was covered (baparda) and was given direction that he should keep his face covered because he was to be got identified. After preparation of Fard 'Inkshaf' and arresting accused Ram Prakash, he was taken to Mehndi Ghat in Katri and search was made for the gang which could not be found and, thereafter, inquiry was made regarding the gang there and, thereafter, the accused was taken along and got lodged in Hawalat on 12.3.1981 at about 10:30 p.m. in the night and other articles were deposited in Malkhana and the entry of the same was made in G.D.(Ext. Ka-8), report no. 35, time 20:30 hours on 12.3.1981. During interrogation of the said accused Ram Prakash, he confessed that along with co-accused, names of whom were entered in G.D, were involved in abduction and murder of Sateesh Chandra Sharma and also in burying his body. The accused Ram Prakash was kept at the P.S. with his face covered through out.
86. After having reached the P.S., he apprised the C.O. about this incident and on 13.3.1981 he had gone along with the said accused with covered face and other police officials namely S.I. Ram Manohar singh to Fatehgarh vide G.D. report no. 5, time 6:05 a.m. (Ext. Ka-9) and after reaching there at Fatehgarh, in front of A.S.P. Girdhari Lal Sharma the said accused was presented and he had also made interrogation from him. Thereafter, PW-8 Keshav Singh Rana and A.S.P. along with force and the accused Ram Prakash reached Nagla Bani at about 1:00 p.m. on 13.3.1981 and at his pointing out having been convinced about the dead body being concealed, a written letter (Ext. Ka- 10) was sent to S.D.M., Aligarh, which was taken there by S.I. Puran Singh. On the basis of this written report, S.D.M., Aliganj- Sri Babu Lal reached the spot who also talked to accused Ram Prakash and after having been convinced, gave direction in his presence to dig out the dead body of Sateesh Chandra Sharma, pursuant to which, the dead body of Sateesh Chandra Sharma was dug out from the field of Het Singh of Nagla Bani which was buried in a six fit deep pit. The same was got identified and it was found that the said dead body was of Sateesh Chandra Sharma (Ex.-M.L.A.). After the exhumation of the said body, S.D.M., Aliganj passed his order on Ext. Ka-10, which is Ext. Ka-11 and which was signed by Babu Lal. After identification of the body having been done, the S.D.M. got the inquest report prepared dictating the same to S.I. Sri Bedi Singh and also got prepared other relevant papers and after sealing the dead body, the same was sent for post-mortem. After the proceedings having been over in the field of Het Singh Yadav, he reached P.S. Kannauj on 14.3.1981 at 2:30 a.m. in the night along with accused Ram Prakash and other team of police and the accused was lodged in Hawalat (baparda) vide G.D. (Ext. Ka-12) report no. 2 dated 14.3.1981 at 2:30 a.m. Whereafter for recording the confessional statement of accused, he was sent to District Jail, Fatehgarh vide G.D. No. 8 (Ext. Ka-13), time 6:30 a.m. on 14.3.1981.
87. In the intervening night of 2/3.4.1981, an information was received that Balak Ram Gadaria, who was a member of Mahavir Gang, was to reach village Imaliya along with his other companions to either lift Phool Shri (who was in relation with Balak Ram Gadariya) or to get her eliminated. On receipt of the said information, PW-8 along with C.O. B.K. Sharma and other force reached the grove of Budhpal of Bahadurpur and challenged the miscreants there at which they fired upon them and in return police party also fired upon the miscreants and in the process, Balak Ram Gadariya was killed on the spot while rest of the miscreants had succeeded in fleeing and, thereafter, taking time out, case crime no. 135/136, under Sections 147, 148, 149, 307 IPC and 25/27 Arms Act was registered at the P.S. because the deceased also possessed illegal weapon, which was sealed on the spot. On 2.4.1981 at 20:35 hours in the night, the entry was made in G.D. (Ext. Ka-14) at report no. 51. Further this witness has stated that recovery memo regarding the said weapon having been recovered from accused Ram Prakash was prepared in Imaliya which was not in front of them and the Government counsel stated that the same was not on file but accused- Ram Prakash on his own stated that he had already been convicted under Section 25 Arms Act. This witness further stated that the recovery memo which was prepared by him on 12.3.1981 pursuant to the confessional statement given by the accused was not before him in court, although he had mentioned all the facts in that recovery memo correctly but he could not tell without having seen the said memo as to whether Ram Prakash was arrested inside the door of Ram Prakash or in his 'Sehan' and, thereafter, stated that he had arrested him outside the door in 'Sehan' which he was stating only on the basis of his memory and denied the suggestion that he was not presenting the said memo as the same would affect the case of the prosecution adversely.
88. Further this witness has stated that he did not know Ram Prakash and Phool Shri from before. For arrest of the accused- Ram Prakash he had departed from the police station around 1:15 p.m. when he had received information that Mahavir, a lieutenant of Chhavi Ram Gang had come to the house of Babu Ram in Nagla Imaliya, the gang of Mahavir was a modified gang but by that time he had not given any information to his head-quarter regarding this. Further he has stated that he had made entry in G.D. No. 35 at 22:30 hours on 12.3.1981 at P.S. Kannauj that the memo of Ram Prakash was deposited there but he had not made any mention in the said G.D. regarding preparing the fard 'Inkshaf' (disclosure statements) or of its deposit. He also does not recollect as to whether the said disclosure statement (Fard Inkshaf) prepared by him was kept and was also not in a position to tell as to for how long, the said report remained with him. He had also not made any mention in G.D. that Ram Prakash had told him that at the time of murder of Sateesh Chandra Sharma as well as his burial, Phool Shri was present. In G.D. of his police station or in any other record of the police station, it is not recorded that from the time when Ram Prakash was arrested till he was sent to jail, Phool Shri was with him. There is no mention made in G.D. that from the time Ram Prakash was arrested till he was sent to jail whether Phool Shri met him or not. In the said G.D., he had entered names of all such persons, who were accompanying Ram Prakash and it was also entered as to who had returned after recovery of the dead body but had not written that he had made any query regarding this from Phool Shri. He further stated that the C.D. of this case was not prepared by him. The entry of the name of Phool Shri in G.D. got omitted by inadvertent mistake on his part. Phool Shri was a witness of this case, therefore, she was taken along because she was a witness of the fact when dead body of the Sateesh Chandra was buried. He had arranged the talk of Phool Shri and Ram Prakash with A.S.P. Sahab but the same was not put in front of him but he could not tell as to whether he had recorded statements of Phool Shri and Ram Prakash or not but he denied the suggestion that the villagers had caught hold of Ram Prakash and that he was not arrested by him. Further he stated that whatever was relevant in the statement of Ram Prakash was recorded in G.D. by him. In G.D. No. 35, it is not mentioned that Ram Prakash had told that after the murder of Sateesh Chandra Sharma, he had taken away Phool Shri to some other District and continued to roam in different districts till he was arrested. In 'Fard Inkshaf' (Disclosure statements) he has not mentioned names of Latoori Singh and Phool Shri nor could he tell whether their names were stated by him or not because he did not have the recovery memo in front of him. In 'Fard Inksaph' (Disclosure statements), there is no reference of conspiracy for abduction. There is no mention made in G.D. about the fact that witnesses Ram Sewak, Arif and Abdul Sayeed were brought to the P.S. after arrest of Ram Prakash. It was wrong to say that 'Fard Inkshaf' (disclosure statements) was prepared with legal consultation much after the arrest of Ram Prakash and that he had not recorded any statements of Ram Prakash and Phool Shri. It was not so that Ram Prakash had reached the P.S. the same day in the evening when he was arrested but it was correct to say that after arrest of Ram Prakash, they continued to roam in search of gang men and he was brought to the police station at about 10:30 p.m. in the night. Further he stated that he had not sent any information to police station Patiyali when he had recorded statement of Ram Prakash at the police station or when after his arrest, the dead body was recovered, although, the said information was sent to P.S. Aliganj at about 1:00 p.m. on 13.3.1981. He had not sent any information prior to that to any officer in District Etah, but if the same was not sent to the S.P., he did not know. He further stated that D.M. and S.S.P. were present on the place when the dead body was being dug out but he does not recollect that S.S.P. or D.M. of Etah, had made any inquiry from him about this. Ram Prakash had stated that his gang had come at the bank of river Ganga at Mahando to defend themselves as the police activities had been expedited and Phool Shri who was resident of Imalia Purva with whom he was having loving relationship since long, to meet her he had gone to Imalia Purva. The same was mentioned by him in Exhibit Ka-8. He might have told him as to which place he had visited after murder of Sateesh Chandra but he had not made any mention of the same in G.D., Exhibit Ka-8. He was told that he was himself involved in abduction and murder of Sateesh Chandra Sharma. Further he stated that he does not know whether after arrest of Ram Prakash, the husband of Phool Shri called Lakshman was employed as a peon in police department in district Farrukhabad or not. In his presence, S.D.M. Babulal had not recorded any statement of accused Ram Prakash nor of Phool Shri, although some queries were made. At the time of arrest of Ram Prakash, Phool Shri was present but she was not made an accused, hence she was not arrested. He had not brought Phool Shri from her village with Ram Prakash, but although subsequently on 12th, she was called but he could not tell the exact time when she was called nor does he recollect about the same as to through whom she was called. He had made no entry in G.D. or in any other paper whether Phool Shri was called. He also does not recollect the time when for the first time her interrogation was made not even this much he could tell that whether she was called at the police station about 10:30 am. or thereafter or not. She was called inside the police-station for interrogation and, thereafter she remained at the police station only till he had gone for the recovery of the dead body of the deceased. She had stayed at the police station of her own free will as well as at their instance because, not that she had come to the police station to meet Ram Prakash nor was it correct to say that she had come with Ram Prakash to the police station or that when the dead body of the deceased had been dug out then she reached the said place. It is also denied that he had talk with Phool Shri at 6 O'clock after arrest of Ram Prakash. Ram Prakash and Phool Sri had come by the same vehicle because only one vehicle was taken there from the Police Station and from the other vehicle, the C.O. had come there from the Police Station simultaneously. It is not correct to say that Phool Shri had come to the police station with Ram Prakash on foot from the house of Ram Prakash. Further he has stated that it is wrong to say that Ram Prakash was still taken along with Jeep and the search was continued to be made of the gang till 10:30 a.m. He had not made entry in the G.D. in respect of the statement of Ram Prakash that on the place of incident where murder was committed, Latoori Singh and Sateesh Chandra Sharma had talked to each other or Latoori Singh had held the hand of Satish Chandra Sharma or that Latoori Singh had got the spade called for and himself had made five blows to dig out the soil and that Latoori Singh had given 100 cartridges to Mahaveer for killing Genda Lal and had also promised to give him a rifle for the same. It is further stated that after being convinced with the pointing out of Ram Prakash and Phool Shri, he had called S.D.M. and S.O. but the said pointing out, then, was not reduced into writing because the same was not considered important. The pointing out of the place where recovery of dead body was made, was done by Ram Prakash. They had left Nagla Bani after the recovery of the dead body in the evening around 06:00-6:30 pm. Panchayat Nama was prepared by S.I., Bedi Singh in his presence and till the dead body was sealed, no photograph was taken nor any photograph was taken after the body having been sealed. The photograph which were presented by the counsel of the accused were shown to this witness and it was pointedly asked whether in the said photograph (Exhibit-2), Bedi Singh and S.D.M., Babu Lal were appearing or not. This witness stated that it contained photos but 'Handa' being lighted was not appearing in the said photo and by perusing the said Exhibit-2, he could not tell whether in front of his feet, 'Handa' was not lighted but he could not tell as to what was the said article which was kept there of white colour. Other photograph (Exhibit-3) was also shown by the counsel for the accused after seeing which this witness stated that he could not tell whether 'Handa' was appearing in the said photograph or not. He could not tell as to how these two photographs were taken and who had taken them as there was a lot of crowd. One more photograph was shown by the learned counsel for the accused after seeing which, the witness stated that in the said photo, he was appearing and all were standing in a row and were looking in front of them but he could not tell as to who had taken these photos. This photo was marked as Exhibit- 4. Further he stated that in Exhibit-1, the person who was standing i.e. Genda Lal, he did not know him. He further stated that police-men who were standing in the middle, he does not recognize him. Further in Exhibit-4, he stated that the dead-body which is shown in it, the same is not in recognizable condition. Further he has stated that he did not go with Babu Lal, S.D.M., Aliganj ever for recovery of the dead body nor did he recover any dead body with S.I., Bedi Singh.
89. Further he stated that after the arrest of Ram Prakash and the recovery of dead body and sending the said accused to jail, whatever papers were prepared by him, in none of them, did he make any reference of witness, Phool Shri. He denied that his meeting with Phool Shri and her being with him at the time of recovery of dead body, was being stated by him with legal consultation or on the basis of concoction. At the time when dead body of Satish was recovered, S.O., Patiali was present there or not, he does not recollect but S.O., Patiali has recorded his statement on the spot. Ram Prasad, accused had not stated about any other murder except the present one. He could not tell without perusing the record as to who had moved an application for recording the statement of Ram Prakash and Phool Shri under Section 164 Cr.P.C. but after consulting the record, he stated that S.O., Patiali had moved an application for the same. After arrest of Ram Prakash, he was not intimidated that he would be encountered. He denied that the skeleton was recovered which was not in a condition to be identified and that he and Genda Lal had planted a fake skeleton only to implicate Latoori Singh. Further he stated that the clothes which were found with the dead body were not in torn condition rather were in intact condition but he does not recollect whether at that time, the clothes were taken off or not and he also does not recollect as to whether wife of Satish or any other lady from his house had reached there or not and also does not recollect whether Phool Shri had returned with him or had gone with him to P.S., Kannauj or not but she had gone to her home. There is no entry made in G.D. or not with respect to the fact that a constable had accompanied her to reach her home, he cannot tell. He has also not made entry of the fact whether Phool Shri had returned from the place where dead body was recovered, with him or not, but he denied that he was making false statement regarding Phool Shri being present at the time of recovery of dead body and, thereafter, she returned and had not accompanied him.
90. Shri Babulal, SDM, Hamirpur has been examined as PW 9 and has stated that on 13/03/1981 he was posted as SDM Aliganj and on that date upon receipt of police information he had gone to a field in village Nagla Bani and had given orders for digging. A dead body was dug out and was identified on the spot by persons present on the spot as that of ex-MLA Shri Sateesh Chandra Sharma. After recovery of the dead body, inquest report (Exhibit Ka - 3) was prepared at his direction and the dead body was sent for post-mortem. At the same time photo Nash Exhibit Ka 15, Challan Nash Exhibit Ka 16, report CMO Exhibit Ka 17, report RI Exhibit Ka 18 were also prepared and all these papers bore his signature. The pit out of which the dead body was taken out, some soil was also taken out of it and sealed and its memo (Exhibit Ka 4) was prepared by S I Bedi Singh at his direction which bears his signature. The dead body was also sealed and whatever articles were found on it, a recovery memo (Exhibit Ka 5) was prepared of all these items which was signed by him. On report Exhibit Ka 10, the order passed by him is Exhibit Ka 11 in his own handwriting. He further stated that Sateesh Chandra Sharma was a counsel whom he knew from before.
91. In cross-examination this witness stated that the persons who had identified the dead body, their names were mentioned in the inquest report and the signatures of those persons were also obtained on the inquest report at the place where the dead body was recovered. Whether photos were taken there or not, he could not tell but he stated that in photo Exhibit- 2 there was his photo and with him was Bedi Singh. He could not tell whether he had gone for recovery of any other dead body with Keshav Singh Rana. Further he stated that in Exhibits 2 and 4 a lighted Handa has been shown, in front of which is a dead body lying. The proceedings of sealing the dead body were completed at 5.30 p.m. and denied that the proceedings of inquest were completed in darkness in the night and the same was done of a skeleton.
92. Arif Ali has been examined as PW 10, who stated in examination in chief that it must have been around 8 - 9 years ago when police Jasoli comprising 4 to 5 constables and one Sub Inspector and one inspector had come, which proposed that one miscreant of Imaliya Purwa was to be arrested, whether they would accompany them, at this the police took him and said, along with it, and on the way was met Ram Sewak. The jeep was left with driver at Jasoli. They reached the house of Phool Shri in the rear portion in Imaliya Purwa. Phool Shri was daughter of Baboo Ram.
93. One miscreant fled from the house of Phool Shri as soon as he saw the police personnel, who was arrested and when his name was asked, he disclosed it to be Ram Prakash and further stated that he was resident of PS Kayamganj and also told that at the instance of Latoori Singh, Sateesh Chandra Sharma was murdered and buried in a field. Thereafter the S I made his personal search and one pistol and 5 cartridges were recovered from his person, written work about which was completed in triplicate, upon one copy of which were obtained his signatures. In front of many witnesses of public, the country made pistol was sealed. He also disclosed about the dead body that the same could be recovered at his pointing out and regarding this also written work was being done which was Exhibit Ka 7 bearing his (PW10) signature. Further he stated that Ram Prakash was kept Baparda after his arrest and witness Said had died.
94. It was stated by him in cross-examination that the paper which was prepared on the spot contained that Ram Prakash had told that at the instance of Latoori Singh Sateesh Chandra Sharma was buried after being murdered but when the contents of Exhibit Ka 7 was read out to him, he admitted that the same was not mentioned therein but further stated that he could not tell its reason. It was enquired from him as to whether there was no mention made in this paper about recovery of any country made pistol, to which he replied that writing work was done but the writing work relating to country made pistol was not done in his presence, nor the Government advocate had shown the same and also stated that the said country made pistol and cartridges were not shown to him in court today.
95. Further he stated that he had seen Phool Shri even prior to the incident, who belongs to a poor family, whose father has 8 - 9 bighas of land situated in village Imaliya Purwa. Her husband was employed as peon on in Police Deptt. to serve water. Ram Prakash was arrested at about 1 ½ - 2 p.m. and had been taken away from the village by 2:30 PM and was arrested about 10 - 12 feet outside the house. Said was Pradhan in Imaliya Purwa. He denied to have given any statement under influence/pressure from Genda Lal or police.
96. Ram Niwas son of Kedarnath resident of village Aureya has deposed as PW 11 that about 9 years ago Sateesh Chandra was kidnapped on 17/11/1980, thereafter, after 3 to 4 months of that incident, the rumour gained ground in the village that his dead body had been recovered. Thereafter he along with 10 - 5 persons from the village reached Nagla Bani and saw that by the side of Chack road which went from Ramnagar to Lohari kheda, to the North of it, in a field of Dev Singh his dead body was found. In south-eastern corner of the said field about 5 steps away from Babul tree, Deputy sahab had got the digging work done by the villagers and police and when about 5 feet deep pit was dug, therein was found the dead body of Sateesh Chandra Sharma, in whose leg there was one shoe and the other shoe was found after exhumation of body; he was wearing one baniyain, one kurta, sweater, muffler, one underwear upon which was tied dhanwala (tahamad) and the body was taken out of the said depth. He identified the dead body by face and clothes, which was of his real Tau. After seeing the clothes which were kept in a potly, he stated that they were the same clothes which the deceased had worn.
97. This witness in cross-examination has stated that all these clothes were in torn condition, however they could be identified ; muffler was of pink colour; kurta was of white khadi but he could not tell as to in how many pieces the same was. He denied to know as to which cloth was in how many pieces.
98. Prior to recovery of the dead body, police had not recorded his statement. When the dead body was recovered, the wife of Sateesh Chandra was alive, who was living then not in Dauraiya but was staying in Aliganj, which Kasba was about 4 kilometres away from the place of recovery of dead body. At that time, he had not seen police jeep although there were many policemen. Till the exhumation of body and it's being sealed, wife of the deceased was not called there.
99. No photograph was taken of the dead body in his presence as there was lot of crowd, although photos were taken at the time of last rites by the local residents at cremation ground, which photos he had seen which were with his brother Guru Dutt. He denied that at the time of recovery of the dead body and the preparation of the panchayatnama, the photograph which were taken, in them, the Sateesh Chandra Sharma was not in identifiable condition. The dead body was sent for post-mortem the same day in the evening about 5 PM. No statement of his was recorded by the investigating officer regarding recovery of the dead body and that he was stating before court for the first time, but he denied that because of there being 'gharauna' he was giving false statement.
100. PW-12, Chatra Pal Singh, retired District Judge, Kanpur stated that on 27/05/1980 he was posted as Addl. District and Sessions Judge, Etah and on that day he was observer in Aliganj area of Udai Bhan Singh. When he returned home, in the evening one person who identified himself has as Sateesh Chandra Sharma, gave him an application (Exhibit Ka 2) on 27/05/1980 at about 5 PM, on which endorsement was made ''received at 5 PM at my residence at Etah after returning back from Aliganj' and upon it he had put his signature as observer on 27/05/1980 which is Exhibit Ka 24. This witness stated in cross-examination that whatever has been mentioned in Exhibit Ka 2, he had not verified about the same. The person who had given him the said application, he did not know him from before.
101. Jaffer Hussain, x-ray technician has deposed as PW 13 in examination in chief that he had brought medico-legal register of x-ray with effect from 01/01/1981 to 30/09/1981, which discloses that on 14/03/1981, x-ray of the dead body of Sateesh Chandra Sharma was conducted which was brought by Dr. L S Raezada; the said x-ray was done by him in his presence as well as in presence of Doctor Goel. There were 3 x-rays taken which he had brought and which bear signatures of Doctor Anil Goel which were material Exhibit 10, 11 and 12 and the x-ray report was entered in register at serial no. 110 which was prepared by Doctor Anil Goel. Doctor L S Raezada had died.
102. Vijay Prakash, Sharma administrative officer life-insurance corporation, Etah has been examined as PW 14 who has stated that he had brought death claim note. The registers for death claims of the period 1882 - 83 had been destroyed in the year 1988 - 89, in which at serial no. 63 policy no. 7511839 and 46292511 pertaining to late Shri Sateesh Chandra Sharma were entered, the payment of which was made to Smt. Shikha Devi, wife of deceased which was Rs. 53171 . 20 and Rs. 50,000/- through cheque no. 240250 dated 31/08/1982 and cheque no. 889181 dated 5/1/1983 of Canara bank. He had brought the original register and its photocopy was received by him from the office of Life-Insurance Corporation, Agra, the photocopy of which was being filed (Exhibit Ka 19). He further stated that the record in respect of claims used to be weeded in his office after 5 years in accordance with the directions given in column number 4 and 5, photo copy of which was being filed by him. In cross-examination this witness stated that whatever record is weeded, there does exist a register of the same, upon which signature of officer and employee are not made.
103. Bhoj Raj Singh has been examined as PW 15 who has stated that from 12/10/78 to 31/1/84 he was Lekhpal in area Kaila ka Majra. In Nagla Bani the plot no. 974 of Hori Lal son of Shiv Charan has 3 - 12 hectares of land. He could not tell without seeing the record as to which crop was there in the said field in the year 1981 - 82 and in cross-examination he stated that he had gone to the said plot for partal and had not found any pit there but when he had gone with CID on the spot he had seen that toward South Eastern side of the said field, in corner there was a pit. In the said field there was one Babul and one mango tree standing which he had seen. The ginswar of the same was at page 34 in his handwriting which is Exhibit Ka 20. In cross-examination he stated that for partal he goes once in 3 years and keeps diary pertaining to it in which he keeps writing, the said diary is deposited but after having seen the said paper he stated that he could not tell what was the date of partal because the diary in which dates were entered, was not before him. He further stated that whatever crop is sown he writes about the same but in respect of one Babul tree and 1 mango tree existing on the said Khasra number was omitted from being mentioned in the said field.
104. HCP Ghanshyam Gaud has deposed as PW 16 that on 25/3/1981 he was posted as court Mohorrir in the court of JM Etah and on that date constable/143 Gangadhar had produced an accused Baparda who was sent to jail. On 28/03/1981, Gajraj Singh son of Het Ram, Hari Singh son of Ram Swaroop, Shri Pal son of Mathura Prasad had appeared Baparda and were sent to jail as such after counselling them that they should remain Baparda. In cross-examination this witness has stated that the face of Gangadhar, when he appeared in court was open or not he does not recollect. After attendance of the accused persons, their faces were covered under orders of the court. The faces of the accused was not possible to be shown in court nor is the same in his knowledge.
105. PW-17, Mahendra Singh Rathore, retired Additional SP has stated that he was posted as inspector, Agra sector in CID from the year 1962 to 1970. On 24/08/1969, Sateesh Chandra Sharma who was the then MLA was coming to Lucknow. About his having received a firearm injury at railway station Kayamganj a report was got written against Sadhu Singh, Kaptan singh, Latoori Singh and SP Shri A N Shah, under sections 307 IPC at PS Kayamganj, investigation of which case was done by him on 25/08/1969 and he had not found the said incident correct against SP, A N Shah while against rest of the accused he had submitted charge sheet in District Farukkhabad which is Exhibit Ka 22, having his signatures. In cross-examination this witness has stated that he had submitted charge sheet against Latoori Singh under sections 120 B IPC and the name of Latoori Singh was not mentioned in the column of accused persons but the same was in the body of the FIR and it was also written in the FIR that enmity was going on with Latoori Singh and he was the person responsible for the said attack.
106. Dr. Swaroop Narain Gupta has been examined as PW-18, who has stated that he knew the deceased Sateesh Chandra Sharma, whose life-insurance was done and for that he was medically examined, in which it is mentioned "medical examination report for LIC", which is in his handwriting, the original of which has been weeded out, the copy of which is Exhibit Ka 23. In medical examination, mention was made in the left side that he was having a linear scar of operation, which was written by him in the said report. In cross-examination he stated that his height without shoes was 169 centimetres and the length of linear scar was 28 centimetres long.
107. Guru Dutt Sharma has been examined as PW 19, who has stated that he is resident of village Devreya and that the deceased was his real elder brother. On 16/11/1980 he had come in village Devreya for boring in the grove. On 17/11/1980 cavity was started. On 16/11/1980 the condition of his brother had deteriorated. On 17/11/1980 in the night, his brother had taken his cousin brother Ram Swaroop's gun and with him were Brahmanand Mechanic and others also, there. At about 11 p.m. in the night Mahavir gang reached there and abducted Sateesh Chandra Sharma with his gun. The news about this was received by him in Aliganj, report regarding which was lodged by Shri Genda Lal, ex-MLA at PS Patiyali. When his brother was abducted he was wearing a white kurta of khaddar, sweater of pink colour of full sleeves, muffler with stripes, tahamad of green colour with a red border, underwear of blue colour, baniyain and Janeu. At the time of kidnapping of his brother they were asking for ransom of Rs. 50,000. Nothing could be known about his brother.
108. After about 4 months, SDM sahab Shri Babulal had got the digging work done in the field of Het Singh accused at the pointing out of co-accused Ram Singh in village Nagla Bani and after having dug 5 feet deep pit, the dead body was recovered, which was recognised by him by his clothes. The panchayatnama was prepared on the spot at the direction of SDM sahab and the dead body was sealed. His brother had become MLA defeating Latoori Singh in 1969.
109. In 1969 Latoori Singh had got his brother assaulted, a case of which was going on in District Fatehgarh, in which Sadhu Singh, Latoori Singh and Kaptan Singh were accused. On 30/08/1980 he had gone with his brother in pairavi of the said case to Fatehgarh. On that day, Latoori Singh was not allowing the case to proceed in which the evidence of Narain Shukla witness was being recorded and the cross-examination had been almost concluded. At that time Latoori Singh tried to get the case adjourned, then his brother had also asked him to bring tickets and had written an application stating that Latoori Singh had connection with Chaviram gang, certified copy of which is on file. On the said application Judge sahab had fixed 8/9/1980.
110. Further he stated that sweater Exhibit 1, tahamad Exhibit 2, muffler Exhibit 3, Kurta Exhibit 4, shoes Exhibit 5, Janeu Exhibit 6 were the same which his brother was wearing at the time of his abduction. Further stated that in 1980 at the time of election his brother had given an application to Judge Chatrapal Pal Singh who was an observer in election, which application is Exhibit Ka 2. His brother's looted gun had been recovered by police of Aliganj in an encounter with dacoits which was given in supurdigi of his cousin brother.
111. Mewalal Lakheria has been examined as PW 20 who was the then SI Kotwali, Etah in 1981. He has stated that in April 1981 he was on emergency duty in police line, Etah. On 06/04/1981 the accused Gangadhar, who was a shadow of Shri Latoori Singh, MLA and Latoori Singh were produced by him Baparda in the court of JM, Etah and at that time there were other policemen also with him and after having obtained remand, those accused were lodged in District jail, Etah. Further he has stated that on 10/04/1981 he had presented accused Shri Pal, Het Singh and Sadhu Singh Baparda from District jail Etah in the court of JM Etah and had obtained their remand and thereafter lodged them back in District jail Etah again Baparda.
112. In cross-examination this witness has stated that on 06/04/1981 he was assigned the duty to bring the accused Gangadhar and Latoori Singh in particular, Baparda from jail, accordingly he took them in a jeep in Baparda condition, which he was stating on the basis of his memory because GD had been destroyed. On 10/04/1981 he had taken out Het Singh, Shri Pal and Sadhu Singh in Baparda condition from jail. The investigating officer had recorded his statement in this regard on 27/04/1981 at Kotwali and denied that he had not brought accused Gangadhar Baparda although he was not in a position to tell because of lapse of time as to by which cloth the accused were asked to cover their face. The cloth which was used for becoming Baparda was of accused themselves. He denied the suggestion that he had not brought any accused Baparda.
113. Hari Singh retired HC has been examined as PW 21, who has stated that on 18/11/1980 he was posted as head Mohorrir at PS Patiyali and on that date at about 18.35 hours the ex-MLA Genda Lal had presented a written report (Exhibit Ka 1) at the police station, on the basis of which he had prepared the chick F.I.R. in his own handwriting which is Exhibit Ka 24 and entry of this case was made in GD at report no. 11, time 8.30 5 AM on 18/11/1980 which was Exhibit Ka 25.
114. Babu Lal Gupta, retired PCS has been examined as PW 22, who has stated that on 11/09/1981 he was posted as SDM Sadar, Etah. On 25/04/1981 he had taken the accused Chandra Pal, Gangadhar, Sadhu Singh, Shri Pal, Jabar Singh, Hari Singh and Het Singh from District jail, Etah and on the same date he had also got the identification done in the same jail of accused Shyam Singh, Anar Singh, Nanhe alias Shri Bhiwani also and two separate memos were prepared by him. In column no. 1 of the memo, names of the accused and their addresses and what was stated by them was entered; in column no. 2 of the memo, crime number, Section was entered; in column no. 3 specific marks of identification of the accused were entered; in column no. 4 of memo, specific marks were entered; in column no. 5 was entered the date of entry of the accused and his general condition; and column no. 6 the addresses and name of the witnesses were entered; in column no. 9 and 10 was entered the statements made by the witnesses in respect of the accused persons; in column no. 9 and 8 was entered the outcome of the proceedings; in column no. 11 of the memo, signature and thumb impression of the witnesses were entered. Further he stated that for each accused separate parade was arranged and in each parade the 10 - 10 under trial prisoners of the identity close to the accused were mixed and identical slips were pasted on all of them. The witnesses were called one by one and after the identification proceedings were over, they were made to sit at a place so that they could not talk to anyone who had come for identification even by gestures or by talking. At the time of identification proceedings and after having perused its record he had satisfied himself that the accused were kept Baparda.
115. On 25/04/1981 five different memos were prepared. In separate memos, the identification proceedings of accused Chandra Prakash, Gangadhar, Sadhu Singh, Shri Pal, Jabar Singh, Lala Ram, Ram Kishore by witness Smt. Phool Shri wife of Lakshmana were got conducted and she identified correctly Gangadhar, Sadhu and Sripal, however she did not identify accused Chandra Prakash, Jabar Singh, Lala Ram, Ram Kishore and committed one mistake, the memo of the said verification parade proceedings was prepared by him in his handwriting which was Exhibit Ka 24. In the 2nd memo the proceedings of identification were held of accused Shri Pal, Jabar Singh by witnesses Prem Pal Singh, Brahmanand, Naubat Ram, Bhav Singh the Ramesh Chand (appears to be wrong name , correct name being Mahesh). In 3rd, 4th and 5th memos the result of the identification proceedings of accused persons Lala Ram, Ram Kishore, Gajraj Singh and Hari Singh and Het Singh have been entered, the result of which was as follows. Witness Prem Pal identified accused Shri Pal, Het Singh correctly while made wrong identification of Jabar Singh and Lala Ram and committed no mistake in identifying Ram Kishore, Gajraj Singh and Hari Singh. Witness Brahmanand identified Jabar Singh, Lala Ram, Ram Kishore and Het Singh correctly while in respect of other accused the result of identification was zero. Witness Naubat Ram did not recognise anyone, however he committed mistake in identifying Het Singh, Gajraj Singh and Ram Kishore; witness Bhav Singh only identified Het Singh correctly while committed mistake in identifying the accused Shri Pal and Jabar Singh and regarding rest of them his result of identification was zero. Witness Mahesh Chand identified only Het Singh correctly and identified Shri Pal wrongly and regarding rest of the accused identification result was zero.
116. The memo of identification parade pertaining to Shri Pal, Jabar Singh, Lala Ram and Ram Kishore were in two copies, which was written by him and signed the same which was Exhibit Ka 25; the memo of identification of Gajraj Singh and Hari Singh was Exhibit Ka 26 and of Het Singh was Exhibit Ka 27, which were prepared by him at the time of identification parade.
117. On 11/09/1981 he had got accused Shyam Singh, Atar Singh and Nanhe alias Srinivas identified in District jail Etah, in which the witnesses for identification were namely Prem Pal Singh, Bhav Singh, Brahmanand, Naubat, Mahesh and Phool Shri. Witness Prem Pal had identified Shyam Singh correctly, regarding Amar Singh the result of identification was zero while he identified Nanhe wrongly. Witness Bhav Singh had identified Shyam Singh correctly, identification result in respect of Amar Singh was zero. Witness Bhav Singh had identified Shyam Singh, Amar Singh and Nanhe correctly; the result of identification by witness Naubat in respect of Shyam Singh and Nanhe was zero while the identification of Amar Singh was wrongly done. Witness Mahesh had identified Shyam Singh and Nanhe correctly while that of Amar Singh wrongly. Witness Phool Shri did not identify anyone and in identification parade of all the three there was one mistake each. The result of their identification parade was in two copies which were prepared in his handwriting and was Exhibit Ka 28.
118. This witness in cross-examination has stated that on 25/04/1981 and 11/9/1981 he had got the proceedings of identification parade conducted at the place where the ground is existing for this purpose, but he could not tell as to at what time the same was conducted. Further he stated that on specific marks, the slips were pasted.
119. Constable Mani Pal Singh has been examined as PW 23 who has stated that on 01/04/1981 he was posted as perokar at PS Patiyali and used to come daily to the court from PS Patiyali. On the said date accused Sadhu Singh had been brought in Baparda condition by court Mohorrir Radheshyam and him in the court of JM Etah. The said accused remained in Baparda condition even in hawalat and till he remained with him. In cross-examination this witness stated that when this accused appeared before court his face was covered or not, he could not tell but he denied that he was not kept Baparda nor was taken to court Baparda.
120. After the closure of prosecution evidence, the statement of accused persons were recorded under sections 313 Cr. P.C., in which all the accused have stated that the prosecution version was false and they pleaded to be innocent and further stated that Ram Prakash was a police informer of notorious character, who had against him dozens of cases and he had got the accused appellants implicated in present false case. Accused appellant Anar Singh stated that he was wrongly identified. He was falsely implicated because he used to go with Latoori Singh in canvassing and used to ask for votes and was working as shadow of Latoori Singh. Accused appellant Sadhu Singh stated that he was also involved in election proceedings with Latoori Singh, therefore he has been falsely implicated in the present case for political benefits on the basis of procuring false statements of witnesses. Accused appellant Hari Singh stated that he was identified in District jail, rather he had been shown to the witnesses prior to his identification and entire proceedings against him were conducted with the administrative help and also stated that because of his being involved with Latoori Singh in election proceedings he was falsely implicated. The accused appellant Shri Pal also stated that the informant with the help of police administration had got him falsely implicated. Witnesses Ram Prakash and Phool Shri were servants of the informant; he was not kept Baparda and he used to remain with Latoori Singh as his shadow and assistant because of which he has been falsely implicated. The appellant Gajraj Singh has also stated that the witness Ram Prakash was working as shadow of the informant while Phool Shri was mistress of Ram Prakash; the entire proceedings were done with the help of administration with support of which by getting a dead body, lying in jungle having been shown as that of the deceased Sateesh Chandra Sharma, a false prceedings have been initiated. He was shown to the witnesses and because of his working as shadow of Latoori Singh he also was falsely implicated.
121. From the side of defence following witnesses have been examined:
122. Raghunath Singh has been examined as DW 1 who has stated that he is a resident of village close to Divaiya and knew Sateesh Chandra Sharma very well, who was abducted about 27- 27 ½ years ago from his grove where he was getting boring done which was done by Mahavir gang, regarding which people had told him. He was there all night long and had also made search for him for 2 days but could not find him and thereafter, after 2 months of his abduction it came to light that his dead body had been found, which news was given to him by policemen that his dead body was found near Bani Ka Nagla. There were 4 - 5 persons of the nearby villages and the dead body was kept in a truck and a pit was dug. The dead body was got identified but none could recognise it and thereafter he had left the place and till date nothing could be known about Sateesh Chandra.
123. In cross-examination this witness has stated that he knew the whole family of Sateesh Chandra Sharma. He had 4 brothers, he used to go to his place on 8 to 10 days but he does not know the name of his father. Sateesh Chandra Sharma had one son but he does not know his name nor does he know the name of his wife. He has seen the grove where kidnapping had taken place which is located to the West of village Divaiya . Police had told him that dead body of Sateesh Chandra Sharma had been found in field of Bani Ka Nagla, in which crop of wheat was sown. He had stayed there for one hour. He had not seen any lady or miscreant having been taken in police custody. With him Rameshwar, Sonelal, Shyam Singh and other persons of Jatav & Dhobi caste had gone in search of the Ramesh Chand Sharma. He knew that Latoori Singh was an accused in this case. Prior to today he had never given any application or an affidavit stating that he had seen dead body kept in a truck. He also knew Genda Lal Gupta very well. Photo number 169A was shown to him and he stated that he did not recognise the persons who were in the said photo and further stated that he could not say with certainty whether Genda Lal was in that photo and denied that because of being of the same caste he was giving false statement.
124. Jabar Singh was examined as DW 2 who has stated in examination in chief that Divaiya village was adjacent to his village Nagla Asthai and also knew Sateesh Chandra Sharma because both used to come to the houses of each other. About 27 years ago Sateesh was kidnapped in the night around 8 - 9 PM. Since he was of adjacent village, he had also gone in his search and with him there were Diwari Lal , Chote Lal, Daya Ram and Jabar Singh etc.. The people there had told him that Mahavir gang had kidnapped him. About 4 months after his abduction, it came to light that his dead body was recovered from Bani Ka Nagla, where he had gone, where his dead body was kept in a truck and there was police. He could not recognise his dead body as it was a skeleton.
125. In cross-examination this witness states that he does not understand the meaning of the skeleton but further stated that it would mean the bones only, a structure of bones. He had seen the said skeleton kept in a truck because he had stayed there for some time and there must have been around 2000 people there. In the field of Het Singh pit was dug. When he had reached there the pit was being dug but he had no knowledge as to why the same was being dug. Police was denying to go there. The skeleton was covered by cloth, there were no clothes on the skeleton and a yellow coloured cloth was covering the dead body and beneath the said cloth the dead body was visible. The place from where the skeleton was dug out, he could not reach, but had seen. The skeleton was dug out after 3 PM and he had not seen any person belonging to the family of Sateesh Chandra Sharma there. In 1980 - 81 in Aliganj Jethra area there used to operate Chavi Ram, Mahavira, Pothi gang. Sateesh Chandra had been shot at, but when, he does not recollect. He had seen the skeleton from a distance of about 7 - 8 steps and denied that on the skeleton there was any flesh, clothes, hair, nails etc. and further stated that he belongs to Pal caste and denied that because of being of the caste of the accused he was giving false statement.
126. Kunwarpal Singh has been examined as DW 3, who has stated that he knew Sateesh Chandra of village Divaiya, which was 1 kilometre away from his village Nagla Pohadi and further stated that about 27 ½ years ago he was kidnapped by Mahavir gang. After his abduction he along with his companion villagers had gone in search for him but could not find and subsequently after about 4 - 4 ½ months he came to know that his dead body was recovered from Bani Ka Nagla, where he had also gone in the evening around 4 PM along with other persons and had seen that there was a truck standing. A pit was dug and when the dead body was seen it could not be identified as that of Sateesh Chandra Sharma. He had stayed there for about half hour to 45 minutes.
127. In cross-examination this witness has stated that he has studied up to Class two and used to go to the house of Sateesh Chandra Sharma who used to do practice as a counsel. He had participated in his search. It was all around being said that Mahavir gang had abducted him at the time when he was involved in boring. He does not know the father of Sateesh Chandra Sharma but Sateesh Chandra Sharma had two sons. Both the sons of Sateesh Chandra Sharma where not seen there in the night. He was told by policemen, rather it was general talk that in Bani Ka Nagla a dead body was recovered and he had gone to see the same. He had not seen the photographs being taken of the dead body. He could not tell as to in whose field the pit was being dug, but the same was being dug so as to see whether there was any dead body. He had seen the dead body from distance of about 6 - 7 steps which was a Skeleton without flesh which was seen by him in truck. There was no cloth on the skeleton. He had heard that a skeleton was found from a particular place, there was a lot of crowd and people were not allowed to come to the truck. Further he stated that he could not tell as to whether the sons of the deceased were present there or not but denied to have given false statement for defending the accused.
128. Ram Babu son of Mahavir Prasad has been examined as DW 4 who has stated that he knew accused Shyam Singh who had studied with him in BRS, inter-college Raja Ka Rampur. At that time Mahendra who is brother of late Brahmanand (a witness in this case) had also studied with him. He used to go to the house of Brahmanand as well as Shyam Singh.
129. On the basis of above statements the learned trial court has convicted the accused appellants of offences mentioned above and awarded the punishment which is also mentioned above. We have to see as to whether in the light of above statements the learned trial court has rightly drawn the conclusion of conviction or does it suffer from any infirmity.
130. The learned counsel for the appellants has argued that the learned trial court has misinterpreted the evidence and has drawn a wrong conclusion in the present case. There was deep-rooted political rivalry between the deceased Sateesh Chandra Sharma and Latoori Singh (now deceased). The alleged dead body of the deceased was found on 13/03/1981 and the post-mortem was conducted by Dr. N S Raezada, who has not been examined in the present case, therefore prejudice has been caused to the defence side as he could not be cross-examined and the record reveals that the post-mortem has been exhibited on the basis of admission of genuineness of the said document by the learned counsel for the defence under section 294 of the Criminal Procedure Code, in which asphyxia as a result of strangulation has been shown to be the cause of death of the deceased. Next he argued that four months after the kidnapping of the deceased the dead body is alleged to have been recovered at the pointing out of Ram Prakash (PW 3) which is absolutely false particularly the presence of the other witness Phool Shri (PW 6) to be there at the time of digging out the body is absolutely false because the same has been stated only to corroborate the version given by PW 3. It is further argued that Ram Prakash is the main accused in this case who has been granted pardon by the court vide order dated 23/05/1983 and has turned approver and the witness Phool Shri was mistress of Ram Prakash. The statement of both these witnesses have been recorded under sections 164 Cr. P.C. also. It was vehemently argued that the testimony of Phool Shri is not believable because her presence at the place of occurrence at the time of the murder of the deceased as well as at the time of exhumation of the dead body appears to be doubtful particularly in view of the GD entry not being presented before court to prove that she was taken to the place from where the dead body was exhumed and there were plenty of contradictions in material respect in her oral statement as well as in the statement of Ram Prakash in respect of material particulars. It was further argued that since the star witness of the prosecution i.e. Ram Prakash was an accused who had turned approver vide order dated 23/05/1983 of the court below, therefore on the sole testimony of this witness the conviction can not be made of the accused appellants unless his statements are corroborated by some independent evidence. In the case on hand the corroboration is sought to be made only by holding identification parade of the accused appellants, but even the evidence of identification parade is not satisfactory and is of very weak nature in the light of settled position of law in this regard. He further argued that in the present appeals there are only 5 accused appellants before us namely Gajraj Singh, Hari Singh, Shri Pal Singh, Anar Singh & Sadhu Singh, while rest of the appellants namely Shyam Singh, Het Singh have already expired and their appeals have been abated.
131. It is further argued that four months after the incident of kidnapping, the dead body of the deceased was allegedly recovered at the pointing out of Ram Prakash (approver) in presence of Phool Shri from open piece of land which was then in skeleton form on 14/03/1981. The statement of Ram Prakash (PW 3) and Phool Shri (PW 6) are also recorded under Section 164 Cr. P.C.. The learned counsel further raised question that since PW 3 had been granted pardon and had turned approver, whether on his sole testimony or on so-called corroborative evidence of Phool Shri, conviction could have been made of the accused and answered in the negative stating that the corroboration of their statement was sought to be made on the basis of identification made by other witnesses. Attention was drawn to paragraph 9 of the judgment in which PW 2 Brahmanand stated that he had gone to Fatehgarh and Etah jails for identifying the accused Jai Singh, Shyam Singh, Anar Singh and Het Singh who were present in court, and had identified them as the persons who had kidnapped Sateesh Chandra. In paragraph 11 of the judgment it was mentioned that Bhav Singh, PW 4 after having seen Shyam Singh, Manohar, Het Singh, Jai Singh who were present in court stated that he had identified them. In paragraph 12 of the judgment it is mentioned that Prem Pal Singh, PW 5 had stated he had gone to jail for identification of miscreants and after having seen accused Jai Singh, Shyam Singh, Shri pal Singh, Het Singh, Manohar, stated that he had identified them in jail. Further it was argued that there were only 5 accused left.
132. Further it was argued that PW 2 Brahmanand has identified 6 persons correctly, hence he has committed no mistake, but his identification would be treated to be too good to be believed and it would be taken to be in the category of 67%. PW 4, Bhav Singh has identified Shyam Singh and Het Singh correctly in jail. PW 5 Prem Pal identified Shri Pal correctly but identified Jabar Singh and Lala Ram wrongly, hence his category would be treated to be 30% and hence a bad witness in this regard. Further it is argued that in court, PW 2 Brahmanand identified Jai Singh, Shyam Singh, Anar Singh and Het Singh. PW 4 has identified Shyam Singh, Manohar, Het Singh, Jai Singh all of whom have died. PW 5 Prem Pal has identified Jai Singh, Shyam Singh, Shri Pal, Het Singh and Manohar, out of whom all have died except Shri Pal. This witness had identified in jail one accused correctly while two wrongly. Further it is argued that PW 6 Phool Shri had not identified any accused. Further it is argued that PW 2 Brahmanand has identified accused Jai Singh, Shyam Singh, Anar Singh and Het Singh in court while PW 4 Bhav Singh has identified Shyam Singh Manohar Het Singh and Jai Singh in court but they all have died. PW 5 Prem Pal identified Jai Singh, Shyam Singh, Shri Pal, Het Singh and Manohar out of whom all have died except Shri Pal. In jail he had identified one accused correctly while two were wrongly identified. Further it was argued that PW 2 Brahmanand had identified Jabar Singh, Lala Ram, Ram Kishore and Het Singh and all had either died or did not face trial, hence his testimony is hardly of any consequence. As regards PW 4 Bhav Singh it was argued that he identified only Het Singh who has also died and apart from him two persons were wrongly identified by him. PW 5 Prem Pal had identified 50% wrong. Further it was argued that there is evidence against Shri Pal only while Jabar Singh and Lala Ram were wrongly identified, hence his evidence would also fall in the category of 50% false identification. Further it was argued that Phool Shri wife of Laxman had developed illicit relations with Balak Ram who was associated with Gang of dacoits and she used to keep coming and going to the said gang and there she also developed about relations with Ram Prakash (PW 3) and according to prosecution she participated in every act, hence question arises as to whether she could be deemed to be an accused, to which the learned counsel for the complainant had raised objection that no such point was raised before the trial court. Further it was argued that since Phool Shri had fallen in love with Ram Prakash (PW 3) who was declared an approver, but his testimony was unreliable. Attention was drawn by him towards the statement of PW 8 Keshav Singh Rana the investigating officer to the effect that in the record prepared by him with respect to arrest of Ram Prakash, recovery of dead body and sending the accused to jail, he did not make any reference of Phool Shri (PW 6) and thereafter to statement of Phool Shri to the effect that Balak Ram Gadariya had forcibly become her friend and in the friendship he used to do dirty work (this was stated by twisting) and whenever her husband said anything, he used to be tied with the cot and Balak Ram used to take her forcibly to the gang and there also used to do dirty work. Apart from Balak Ram she also came in contact with Ram Prakash. It was argued that the above statement of hers was in conflict with her statement given under sections 164 Cr.PC in which she stated that the name of her husband is Laxman and she resided in Nagla Gadaria, PS Aliganj District Etah and near her house was house of Balak Ram Gadaria, whom she knew for last one year, who had beaten her to be his own and used to do dirty work with her and would not allow her to go to Laxman and used to compel her to sleep with him and whenever her husband protested, he used to be beaten and tied down. Balak Ram was connected with gang of Mahavir, Jai Singh and he used to take her to the said gang often - dirty work used to be done with her by Balak Ram but not by Mahavir. In the said gang she came to know about Ram Prakash. Thereafter attention was drawn to her statement under section 164 Cr. P.C. to the fact that Latoori Singh spoke to Mahavir and Jai Singh ''dekhte kya ho inka aakhiri faisala kar do', at this Mahavir and Jai Singh threw a knot of Angaucha in the neck of Sateesh Chandra Sharma and started pulling it in their own directions. Referring to this statement it was argued that all the 3 accused who are assigned the role of exhortation and actually committing murder of the deceased have already died. He also drew attention to the statement of PW 6 to the effect that from among those 15 to 20 persons she knew Shri Pal, Gangadhar, Manohar, Gajraj Singh, Hari Singh, Mahavira, Jai Singh, Balak Ram, Latoori Singh and names of rest of them she did not know because much time had elapsed. She had asked Balak Ram as to why he had made her sit there, and then he had told that they were waiting for Latoori Dada, let him come and then see what happens. Thereafter Latoori Singh came in a jeep along with 2 - 3 men around 8 - 8.30 p.m.. Further her statement was pointed out to the effect that by the same Angaucha, by which his hands were tied,, Balak Ram, Shri Pal threw a knot and Gangadhar threw a knot and Latoori Singh held his hand, then the deceased died and there after Latoori Singh told Het Singh to go and bring a spade from home. Citing this statement it was argued that she further added more names among those who had thrown a knot in the neck of the deceased which is an improvement in her statement. Thereafter attention was drawn towards her statement to the effect that she does not know what was the salary of her husband Laxman. She did not go Farrukhabad to be with her husband. Her husband was living in police line barrack and denied - she used to go there and also denied that her husband was given temptation of getting a service so that she could give false statement and also denied that after recovery of the dead body, her husband had got the employment. She refused to disclose the name of the persons who had purchased for her sari, kundal, watch and spectacles and thereafter told that the sari was purchased from Fatehgarh from military canteen in Rs. 200/- in the 12th month of the same year while in March 1984 she purchased kundal for Rs. 65/-. Further attention was drawn to her statement to the effect that the Magistrate had recorded her statement in which she had not stated about her relation with Balak Ram and her acquaintance to have developed with Ram Prakash in the said gang. Further she had stated that she was taken with her eyes closed with a strap and that she did not know as to in which direction the door of the house of Het Singh was. She had not seen his house with her own eyes however she stayed there for one hour. Further she stated that because of long-time having elapsed she did not recollect whether she had told the Magistrate Saheb that Anar Singh, Balak Singh, Shri Pal and Gangadhar had strangulated the deceased to death or not by a knot of Angaucha. He was strangulated by Jai Singh and Mahavir and when she was read out her statement under Section 164 Cr. P.C., then she admitted that she did not recollect whether Anar Singh, Balak Ram, Gangadhar and Shri Pal had strangulated the deceased to death or not and further stated that she does not recollect as to whether in her yesterday's statement she had stated or not to the effect that Anar Singh, Jai Singh, Balak Ram and Shri Pal and Gangadhar had put knot in the neck of the deceased rather she had stated so because of misconception and further because of long-time having elapsed but she did say that she had stayed in Etah in police line in the night. Further attention was drawn that she had visited various places with accused Ram Prakash prior to his arrest and that she was illiterate but used to apply lipstick and nail polish since the time of elders and that she did not know Gangadhar but had seen him in jail. Further attention was drawn to her statement that she had given statement on oath in the court that thereafter police took away Ram Prakash to PS Kannauj and subsequently the police had taken her also to PS Kannauj and thereafter stated that she does not remember things but both her statements were correct. When pointedly it was asked as to how could both these statements be correct, she replied that she does not recollect because it was more than 7 years' ago but it was correct to say that she had not accompanied Ram Prakash to police station and was later on taken there by police. She further stated that on the day of arrest at about 6 PM Sub Inspector Kannauj was told all the details about murder of Sateesh Chandra Sharma and also where he was murdered and where he was buried, but police had not taken her into custody and she had gone home to Kannauj. She also denied that the same Nawab Hujoor Deewan had got her married to Laxman Jatav of Imaliya Purwa and denied that when she had been married to him at that time she had brought with her 3 years old child. She denied that she had not disclosed the name of accused Sadhu Singh who was present in court to the investigating officer and the Magistrate Saheb and that she appreciated her relationship with Balak Ram, Ram Prakash which was of forceful nature. When she was put a question as to whether she had ever considered that because of her being sexually exploited by Ram Prakash and Balak Ram she would not be in a position to show her face in society, she kept silent for about 2 minutes and then she responded that she does not think that her social death had happened because of this reason. She further stated that after arrest of Ram Prakash, she became free from his grip and since 1981 police was in her security and she had never given any application against Ram Prakash till date. She denied that Ram Prakash was resident of Nagla Baburi, PS Kayamganj, District Farukkhabad nor does she know that near that village Dhanuks used to live, who were relatives of Anar Singh and denied that Dhanuks of village Bicholi had helped accused Anar Singh to drive away Ram Prakash from the village because of his bad character and denied that because of her deep relationship with the Ram Prakash she was stating false and further stated that she had soft corner for Ram Prakash because of friendship with him as she used to enjoy his company and upon being asked whether Ram Prakash's conviction was liked by her, she stated that he was not punished. Having drawn attention to these statements it was argued by the learned counsel for the appellants that statement of this witness Phool Shri was not worthy of credence and deserved to be discarded because of the contradictions pointed out above and Moreover the investigating officer Keshav Singh also has stated that this fact was not incorporated in GD that Ram Prakash had given the statement that Phool Shri was present at the time of murder of Sateesh Chandra Sharma and at the time of his burial and that there was no entry made in any GD of the police station or in any record showing that at the time of arrest of Ram Prakash, Phuool Shri was also there and no mention was made also of murder in the GD nor that of the fact that from the time when Ram Prakash was arrested till he was lodged in jail, Phool Shri met the investigating officer or not. Further he stated that he had recorded names of all those persons in GD who were accompanying Ram Prakash and also of all such persons who returned after the recovery of the dead body. He had also not mentioned in GD that he had made any questioning from Phool Shri but stated that the incorporation in GD or in other record might have been left because of inadvertent mistake. Since Phool Shri was witness of the case, she was taken along and because she was also a witness of the deceased having been buried he had got Phool Shri and Ram Prakash talk to SSP Saheb. It was also argued that the recovery of dead body under sections 27 of the Evidence Act could only be an evidence against PW 3 only and not against other co-accused and that corroboration of the same was sought to be made through the statement of Phool Shri which is unbelievable and reliance is placed in this regard upon Piara Singh vs State of Punjab, 1969 (1) SCC 379, in which the appellant, Piara Singh, along with Nand Lal Sehgal and Mohinder Singh sent by post a hand grenade in parcel to Mr. Ram Sahai to cause his death. On opening the parcel the bomb exploded causing death and injuries to several people. Appellant and Nand Lal Sehgal were tried under sections 302 of the IPC and sec. 3 of the Explosive Substances Act. Mohinder Singh became approver and the conviction was mostly based on his evidence. On appeal, the High Court acquitted Nand Lal Sehgal. On appeal to the Supreme Court, it was contended by the appellant that as Nand Lal Sehgal was acquitted, evidence against him must be totally rejected and that the remaining evidence against the appellant was insufficient. The principle of issue - estoppel was raised. Rejecting the argument, it was held that the High Court had acquitted Nand Lal because of insufficient evidence and not due to false implication. That in any case the principle of issue - estoppel was not applicable in that it was different to that of autre fois acquit embodied in sec. 403 of the Cr. P.C.. On the question for want of corroboration to approver's evidence it was held that an accomplice is undoubtedly a competent witness. He must, however, satisfy a double test, his evidence must show that he is a reliable witness and that his evidence must receive sufficient corroboration. This test was rightly applied and satisfied by the High Court.
133. Further it was argued that Prem Pal (PW 5) was only 33% correct because he identified only one accused correctly and two wrongly and hence his testimony was a week one . Moreover identification was done on 25/04/1981 in jail while occurrence was of 17/18 November 1980 that is after about 5 months of the occurrence. Therefore his testimony would also be of week nature. Therefore on the basis of these statements which have come on record, the argument of the learned counsel for the appellants is that there is no credible evidence against the appellants to prove that they were the ones who had kidnapped the deceased and thereafter had murdered him in pursuance of criminal conspiracy and that the prosecution has utterly failed in proving its case.
134. Further, reliance has been placed on Asharfi and another vs the State, AIR 1961 Allahabad 153, in which law relating to evidence of identification was explained and the liability of the 2 appellant was examined in a case under sections 396 IPC and it was held that the evidence against both the appellants was purely of personnel identification. In the jail 7 of the eye-witnesses of the crime identified Ashrfi, and 6 identified Ram Dhani. At Asharfi's parade none made any mistake except Sukh Lal (who was 50% correct) and in Ram Dhani's parade none made any mistake except Sheo Prasad (who was 75% correct). The slips of paper had been pasted on marks, but these were not such as to obscure the contours of the face. All the afore- mentioned witnesses repeated their identification before the trial court and stated on oath that they had seen these persons participating in the crime. They also swore that the persons they identified were totally strangers to them and had not been seen by them between the dacoity and the real parades. The available sources of light were highly satisfactory and witnesses had stationed themselves between, 8 and 15 paces from Gaya Prasad's house, hence the opportunity of making out the features of the miscreants was excellent. The defence of both the appellants was not found creditworthy and hence accepting the identification evidence against them the conviction was affirmed. It was argued in the light of this ruling that in the present case, the identification of the accused appellants was not beyond reasonable doubt as they could not have been identified in the night in the light of torches and moon and that there were plenty of opportunity to the witnesses to have seen the accused prior to their identification, as the procedure adopted was not aboveboard, hence no credit could be given to the identification of accused persons made by the witnesses.
135. Further reliance is placed upon Poshaki vs State, Laws (Allahabad) 1952 10 15, which is an appeal against the conviction under section 395 IPC and sec. 412 IPC, in a case of dacoity which took place in the intervening night of 8/09-08-1949 which is committed in the house of one Rewa Ram by 14 or 15 persons and ultimately 6 accused persons stood their trial before the Sessions Judge, who after trial acquitted 4/6 accused and convicted the 2 appellants who were arrested on 13/08/1949 from their residential village not far away from the scene of dacoity. The case rested on two kinds of evidence - one consisted of usual identification by witnesses and the other was the proof of his statement by the accused to the investigating officer which led to the discovery of a well which, in turn, yielded a box from which certain articles were recovered, which were identified at the trial to belong to the complainants. As regards the evidence of identification, Poshaki was identified by only 2 witnesses, Ganga Ram and Hetram. Ganga Ram made four mistakes and identified 3 correctly while Hetram made 4 mistakes and identified 4 correctly. The value of this identification was adjudged to be very poor and it was found to be very unsafe to rely on this identification and also there was found to be a long gap between the date of the dacoity and the identification parade. As regards other evidence against the appellants in respect to recovery of incriminating articles, it was held that from the statement of the witness it would appear that information in regard to the well and what was inside the well, was conveyed to the police, more or less, jointly by 2 appellants. There was a variation found in regard to which the 2 accused appellants first pointed out the well in the version recorded in Exhibit P 16 and the version given in court. The prosecution led evidence to prove the statement made by the accused presumably under Section 27, Evidence Act . On account of variation in the two versions, one recorded in Exhibit P 16 and the other is stated in court, the same was found to be a bit suspicious. It was held that Section 27 is required to be construed strictly. The use of the word ''person' in singular, in Section 27, is somewhat significant. The word was used in singular designedly because the joint statement of a number of persons, cannot be said to be an information received from any particular one of them. When a fact is discovered in consequence of information received from one of several persons charged with an offence, and when others give like information, it is impossible to treat the discovery as having been made from the information received from, each one of them. Ultimately the court did not find sufficient evidence for conviction of the appellants and allowed the appeal.
136. The next judgment relied upon by the learned counsel for the appellants is Subhash and Shiv Shankar vs State of U.P., (1987) 3 Supreme Court Cases 331 in which it was held that there was a long interval of nearly 4 months before the test identification parade was held and it was found to be difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade. In absence of any descriptive particulars of the accused in the FIR or in the statements of witnesses during investigation, it was held to be not safe and proper to act upon the identification of the accused by the witnesses at the identification parade and hold that he was one of the assailants of the deceased.
137. Lastly reliance was placed by the learned counsel for the appellants upon Dularey vs the State, Laws (Allahabad) 1955 11 51, in which in an appeal against conviction under sections 395/397 IPC and 19 (f) Arms Act the judgment of the trial court was reversed holding that the identification of the accused which was held in District jail, Etawah was not creditworthy because the 5 witnesses who identified the appellant in the test identification parade, each of them committed 50% mistake during the identification.
138. On the other hand the learned counsel for the informant/complainant Shri Dharam Pal Singh has vehemently argued that the prosecution has succeeded in proving the case against the appellants to the hilt and argued that the kidnapping of the deceased had taken place on 17/18 November 1980 in the night which has been proved by PW 2 Brahmanand, PW 4 Bhav Singh and PW 5 Prem Pal Singh (private shadow of the deceased Sateesh Chandra Sharma), therefore it was absolutely proved that the deceased had been kidnapped and even if any particular Accused could not be pinpointed it is established that the occurrence did take place. On 12/03/1981, Ram Prakash who is one of the accused and was arrested and made approver has clearly stated as to where the body of the deceased had been concealed and this fact has been proved by Keshav Singh,, SO Kannauj who has been examined as PW 8 and one SDM, Babulal was examined as PW 9 who have distinctly proved that he had reached the place from where the body of the deceased was dug out and its identification was got done as that of the deceased Sateesh Chandra Sharma, ex-MLA and thereafter all the relevant papers including panchayatnama etc. were prepared and the dead body was sent for post-mortem. Further it is argued that the identity of the deceased was proved by PW 5 Prem Pal who was private shadow of the deceased particularly on the basis of an old scar which existed on the body of the deceased on account of his having received one firearm injury 3 months prior to his death, regarding which a case under section 307 IPC was lodged. His dead body was also identified by PW 1 Ram Niwas who was Tau of deceased and also by PW 19 Guru Dutt Sharma, who had identified different items which were found on the body of the deceased. As regards evidence of murder it was argued that PW 6 Phool Shri might have been a lady of easy virtue but her testimony cannot be discarded on that count alone and also the approver's evidence (PW 3) was considerably reliable as the same was corroborated by recovery of dead body at his pointing out. Further he pointed out that accused Ram Prakash had to be made approver as there was no clue available to nab the real culprits and his statements have categorically supported role of Hari Singh, Shri Pal, Anar Singh, Gajraj Singh and Sadhu Singh as he was an eye-witness of the occurrence. It was also stated that PW 3 had specifically stated that kidnapping was done by Mahavir Singh. The learned counsel for the complainant side has also relied upon the law laid down in Asharfi and another vs the State (supra).
139. First of all we would like to consider whether prosecution has been able to prove motive of eliminating the deceased by the informant side or not. The main argument of the learned counsel for the appellants in this regard is that there was deep-rooted political rivalry between the deceased and the accused Latoori Singh because of which Latoori Singh got the deceased kidnapped and finally murdered and on this point it was argued that deceased was an ex-MLA and the informant Genda Lal was also an ex-MLA and because in 1980 accused Latoori Singh had won the election of MLA, he was harbouring political enmity towards Genda Lal and that is the reason why he got Latoori Singh along with his companions implicated in this false case.
140. Regarding the above argument from the side of prosecution learned counsel for the complainant side argued that because of the said deep-rooted political rivalry only, the deceased MLA Shri Sateesh Chand Sharma was got kidnapped in the intervening night of 17/18 - 11 - 1980 in the night around 10:30 PM from his field and after having murdered him his dead body was buried so that no evidence could remain. It is apparent that normally the offences are committed only due to some motive barring exceptions. It is apparent from record that in FIR Exhibit Ka 1 itself it has been mentioned that in 1969 the deceased was shot at when he was on railway station Kayamganj, the hearing of the said case was fixed in a court, in which accused Latoori Singh's counsel had not cross-examined a witness only with a view to protracting the proceedings, at which the deceased had given application in court stating that he along with his witnesses was being threatened to be killed, hence the informant had full belief that in kidnapping of the deceased there was hand of Latoori Singh. PW 1 has admitted that deceased had contested election of MLA against Latoori Singh and had won the seat, therefore due to this enmity, the deceased was earlier fired upon with an intention to kill him, in which case Latoori Singh, Sadhu Singh and Kaptan Singh etc. were accused as FIR was got registered against them under sections 307 IPC being ST no. 158 of 1970, which is paper no. 14 Ka/17 on record. In that incident the deceased had also got injured and certified copy of injury memo was paper no. 14 A/24 which reflected that the deceased had received 10 fire arm injuries. The said case was proceeding in the court of Sessions Judge, Farukkhabad, in which various ploys were being adopted for delaying the proceedings so as not to allow conclusion of prosecution witnesses and when the evidence of the prosecution witness in that case was not allowed to be completed, 2 to 3 months prior to the present incident, the deceased had made an application before the Sessions Judge expressing his apprehension therein that he and his witnesses could be eliminated and subsequently the same happened, the certified copy of the said application is on record as paper no. 14 A/ 22 dated 30/08/1980. In that application it was also mentioned that the accused was a notorious criminal having links with Chavi Ram Gang. PW 1 had also deposed that the deceased had moved an application on 27/05/1980 before the then Judge, Shri Chatrasal Singh, in Etah when he was appointed as observer by the election commission, which is paper Nos. 165 A (Exhibit Ka 2), in that application also the deceased had expressed threat to his life from Latoori Singh and thus there was continuous pressure being exerted upon the deceased to withdraw his case which was pending in the District court of Farukkhabad failing which he could eliminate him. It is also on record that the co-accused Ram Prakash who has been examined as PW 3 because of his having turned approver has also stated that when he had gone to Latoori Singh's place, in his presence, Mahavir was told by him that he wanted to avenge Sateesh Chandra Sharma by eliminating him and that when after his kidnapping he was brought before Latoori Singh, Latoori Singh had told him that he should withdraw the case pending in Farukkhabad which was declined and pursuant to that he was strangulated to death. We have to see as to whether this statement of PW 3 should be taken to be believable or not because he himself was an accused who has turned approver, therefore there could be strong possibility to make incrementing statements against others so as to save his own skin, therefore his testimony would need to be a scrutinised with extreme caution on two counts i.e. the statement made by him was wholly believable and that the same was corroborated by independent evidence. We may rely about this on law laid down in Mrinal Das and others vs the State of Tripura, (2011) 9 Supreme Court Cases 479 which is as follows:
"Evidentiary value of Approver/Accomplice:
16) Before considering the impugned judgment on merits, inasmuch as the High Court heavily relied on the evidence of the "approver", let us find out the legal position about the evidentiary value of "approver" and its acceptability with or without corroboration.
17) Though a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an approver, yet the universal practice is not to convict upon the testimony of an accomplice unless it is corroborated in material particulars. The evidence of an approver does not differ from the evidence of any other witness save in one particular aspect, namely, that the evidence of an accomplice is regarded ab initio as open to grave suspicion.
If the suspicion which attaches to the evidence of an accomplice be not removed, that evidence should not be acted upon unless corroborated in some material particulars; but if the suspicion attaching to the accomplice's evidence be removed, then that evidence may be acted upon even though uncorroborated, and the guilt of the accused may be established upon the evidence alone.
18) In order to understand the correct meaning and application of this term, it is desirable to mention Section 133 of the Indian Evidence Act, 1872 along with Illustration (b) to Section 114 which read as under:-
"133. Accomplice .- An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
Illustration (b) to Section 114 " The Court may presume -
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(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;"
19) Dealing with the scope and ambit of the above-noted two provisions, this Court, in Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599 , has held that both the sections are part of one subject and have to be considered together. It has further been held: (AIR p. 601, para7) "The combined effect of Section 133 and Illustration (b) to Section 114 , may be stated as follows:
According to the former, which is a Rule of law, an accomplice is competent to give evidence and according to the latter, which is a Rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars."
20) The very same principle was reiterated in Mohd. Husain Umar Kochra etc. v. K. S. Dalipsinghji (1969) 3 SCC 429 and it was held: -( SCC p. 438, Para 21) "21..... The combined effect of Section 133 and 114, Illustration (b) is that though a conviction based upon accomplice evidence is legal, the Court will not accept such evidence unless it is corroborated in material particulars. The corroboration must connect the accused with the crime. It may be direct or circumstantial. It is not necessary that the corroboration should confirm all the circumstances of the crime. It is sufficient if the corroboration is in material particulars. The corroboration must be from an independent source. One accomplice cannot corroborate another ....."
21) While considering the validity of approver's testimony and tests of credibility, this Court, in Sarwan Singh S/o Rattan Singh Vs. State of Punjab, (AIR 1957 SC 637) has held as under: ( AIR pp. 640 - 42, Para 7 and 8) "7.....An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.
Is It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.
But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered.
In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.
8.....Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts"
22) Further, in Ravinder Singh v. State of Haryana, (1975) 3 SCC 742, this Court, while considering the approver's testimony within the meaning of Section 133 of the Indian Evidence Act, 1872 has observed: (SCC pp. 740 - 48, Parra 12) "12. An Approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in Court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case, taking into consideration all the factors, circumstances and situation governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based."
23) In Abdul Sattar v. Union Territory, Chandigarh, 1985 (Supp) SCC 599 where the prosecution had sought to prove its case by relying upon the evidence of the approver, it was held that: (SCC p. 602, Para 6) "6. ....... The approver is a competent witness but the position in law is fairly well settled that on the uncorroborated testimony of the approver, it would be risky to base the conviction, particularly, in respect of a serious charge like murder."
Once the evidence of the approver is found to be not reliable, the worth of his evidence is lost and such evidence, even by seeking corroboration, cannot be made the foundation of a conviction.
18) The above said ratio has been reaffirmed and reiterated by this Court in Suresh Chandra Bahri v. State of Bihar (1995 Supp 1995 Supp (1) SCC 80); Ramprasad v. State of Maharashtra, (1999) 5 SCC 30 and Narayan Chetanram Chaudhary v. State of Maharashtra: (2000) 8 SCC 457.
24) In Narayan Chetanram Chaudhary (supra), it was further held that : (SCC p. 479, Para 37 ) "37. For corroborative evidence, the court must look at the broad spectrum of the approver's version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration may depend upon the facts of different cases. Corroboration need not be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. Corroborative evidence must be independent and not vague or unreliable."
25) Similar question again came up for consideration before this Court in K. Hashim v State of Tamil Nadu, (2005) 1 SCC and Sitaram Sao @ Mungeri v State of Jharkhand, (2007) 12 SCC 630 wherein this Court has held that:
"26. Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on an uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this Section has to be read along with Section 114, illustration (b). The latter section empowers the Court to presume the existence of certain facts and the illustration elucidates what the Court may presume and make clear by means of examples as to what facts the Court shall have regard in considering whether or not maxims illustrated apply to a given case. Illustration (b) in express terms says that accomplice is unworthy of credit unless he is corroborated in material particulars. The Statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) to Section 114 of the Evidence Act strikes a note of warning cautioning the Court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the Judge"
26) In Sheshanna Bhumanna Yadav vs. State of Maharashtra (1970) 2 SCC 122, the test of reliability of approver's evidence and rule as to corroboration was discussed. The following discussion and conclusion are relevant which read as under (SCC pp. Parra 12 & 13) "12. The law with regard to appreciation of approver's evidence is based on the effect of Section 133 and 114, illustration (b) of the Evidence Act, namely, that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone. The warning of the danger of convicting on uncorroborated evidence is therefore given when the evidence is that of an accomplice. The primary meaning of accomplice is any party to the crime charged and some one who aids and abets the commission of crime. The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of second witness or of circumstances like the conduct of the person against whom it is required. Corroboration must connect or tend to connect the accused with the crime. When it is said that the corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated. That evidence must confirm that part of the testimony which suggests that the crime was committed by the accused. If a witness says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the witness as against the accused. But if the skins were found in the accused's house, this would corroborate because it would tend to confirm the statement that the accused had some hand in the theft.
13. This Court stated the law of corroboration of accomplice evidence in several decisions. One of the earlier decision is Sarwan Singh v. State of Punjab, AIR 1957 SC 637 and the recent decision is Lachi Ram v. State of Punjab, AIR 1967 SC 792. In Sarwan Singh case this Court laid down that before the court would look into the corroborative evidence it was necessary to find out whether the approver or accomplice was a reliable witness. This Court in Lachi Ram case said that the first test of reliability of approver and accomplice evidence was for the court to be satisfied that there was nothing inherently impossible in evidence. After that conclusion is reached as to reliability corroboration is required. The rule as to corroboration is based on the reasoning that there must be sufficient corroborative evidence in material particulars to connect the accused with the crime."
27. .In Dagdu and Ors. vs. State of Maharashtra, (1977) 3 SCC 68, the scope of Section 133 and Illustration (b) to Section 114 of the Indian Evidence Act, 1872 and nature of rule of corroboration of accomplice evidence was explained by a three-Judge Bench of this Court in the following manner (SCC p. 76, Paras 24 - 25) "24. In Bhiiboni Sahu v. King the Privy Council after noticing Section Section 133 and Illustration (b) to Section 114 of the Evidence Act observed that whilst it is not illegal to act on the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The rule of prudence was based on the interpretation of the phrase "corroborated in material particulars" in Illustration (b). Delivering the judgment of the Judicial Committee, Sir John Beaumont observed that the danger of acting on accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence and the story may be true in all its details as to eight of them but untrue as to the other two whose names may have been introduced because they are enemies of the approver. The only real safeguard therefore against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates each accused.
25. This Court has in a series of cases expressed the same view as regards accomplice evidence. (See State of Bihar v. Basawan Singh; Hari Charan Kurmi v. State of Bihar; Haroon Haji Abdulla v. State of Maharashtra; and Ravinder Singh v. State of of Haryana.) In Haricharan, Gajendragadkar, C.J., speaking for a five-Judge Bench observed that the testimony of an accomplice is evidence under Section 3 of the Evidence Act and has to be dealt with as such. The evidence is of a tainted character and as such is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars."
28) In Rampal Pithwa Rahidas and Others vs. State of Maharashtra, 1994 Supp (2) SCC 73, while considering the very same provisions, this Court has held that approver's evidence must be corroborated in material particulars by direct or circumstantial evidence. This Court further held that while considering credibility of the approver and weight to be attached to his statement, the statement made in bail application of approver can be looked into by the court.
29) It is clear that once the evidence of the approver is held to be trustworthy, it must be shown that the story given by him so far as an accused is concerned, must implicate him in such manner as to give rise to a conclusion of guilt beyond reasonable doubt. Insistence upon corroboration is based on the rule of caution and is not merely a rule of law.Corroboration need not be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence.
30) Keeping the legal principles enunciated by this Court in respect of interference by the appellate court in case of acquittal by the trial Court and evidentiary value of "approver"/"accomplice", let us discuss the oral and documentary evidence led in by the prosecution and the defence."
141. Further with respect to the motive part of the case, the learned trial court has also recorded in its judgment that PW 17, Mahendra Singh Rathor, Additional SP had also stated that on 26/08/1969 when Sateesh Chandra Sharma, the then MLA was to go to Lucknow and was at Kayamganj railway station, he was fired upon, in which accused Sadhu Singh, Latoori Singh and others had been made accused and in that case charge- sheet was submitted against them including Kaptan Singh which is Exhibit Ka 22. Further it is recorded that PW 19 Guru Dutt had also stated that in 1969 election was contested by Sateesh Chandra Sharma and Latoori Singh for MLA in which Latoori Singh was defeated by the deceased and since then, Latoori Singh was harbouring enmity towards the deceased and wanted to remove him from his way and thereafter in 1969 he was attempted to be killed when the deceased was at Kayamganj railway station but the deceased survived the injuries regarding which the case was registered which was being contested in particular court and there Latoori Singh did not want any evidence of prosecution to be completed by seeking frequent adjournments, although the deceased Sateesh Chandra Sharma had continuously having threat to his life, regarding which he had moved an application dated 30/8/1980 before the court also stating therein that in case delay was allowed to happen in the said case, he and his witnesses could be eliminated. It was also recorded in the said judgment that the said testimony of this witness remained unimpeached despite meticulous cross-examination and therefore the trial court found the motive of the case proved against accused Latoori Singh and his companions. We agree to the conclusion drawn with respect to proof of motive to eliminate the deceased by Latoori Singh and his men, even if the statement of PW 3 be excluded and do not find any infirmity in this regard in the impugned judgment. Although we would like to judge the veracity of the statement of PW 3 at appropriate place when it comes to assessing his statement with regard to the occurrence of kidnapping as well as murder of the deceased.
142. Now we would like to deal with the point of identification of the dead body of the deceased. It was argued by the learned counsel for the appellants that the alleged body of deceased was in highly decomposed condition which could not have been recognised and in the case on hand the same has been identified to be of the deceased Sateesh Chandra Sharma on account of the belongings i.e. his clothes and shoes. It was also argued that by planting somebody else's dead body in beyond recognisable condition the accused have been implicated falsely. In defence DW 1, Raghunath was examined who deposed that the dead body was a skeleton which could not have been recognised and similarly PW 2 Jabar Singh and DW 3 Kunwarpal also stated the dead body to be in completely unrecognisable condition and denied the same to be the dead body of Sateesh Chandra Sharma. On the other hand the learned that counsel from the side of complainant vehementally argued that the dead body of the deceased was exhumed at the pointing out of PW 3 who has been made an approver and was an active member of the gang of the accused. PW 3 has clearly stated that Sateesh Chandra Sharma was murdered and was buried in the field of Het Singh in a pit 5 - 6 feet deep at the direction of Latoori Singh along with his clothes and other belongings such as Kurta, tahamad, baniyain, Jersey and shoes. At the time when the dead body was being buried PW 3 was present on the spot with other accused persons which included Ram Prakash, Balak Ram, Phool Shri, who all were arrested with PW 3 by police. Further it is mentioned in the judgment that Phool Shri has been examined by prosecution as an independent witness as PW 6 who has clearly deposed that the deceased was strangulated to death and thereafter Het Singh had brought spade to dig the pit in which he was laid to rest. At that time the deceased was wearing clothes and other belongings which were identified by this witness as Exhibit 1 to Exhibit 5 and the rope which was used for the said purpose was Exhibit 7.
143. Another independent witness in this regard examined by prosecution was Bhav Singh as PW 4 who has also identified the said belongings of the deceased and the other witnesses namely PW 3 and PW 6 also have corroborated the statement of Bhav Singh regarding these belongings of the deceased. PW 4 has stated himself to be present with Sateesh Chandra Sharma when he was kidnapped and he was the sole accused who was gheraoed by the accused persons at the time of kidnapping and therefore had full knowledge as to what was being worn by the deceased when he was kidnapped because he only was there at the time of boring being done. Apart from him, the shadow of Sateesh Chandra Sharma, Prem Pal Singh has also identified the above belongings on the deceased. Further has stated that the deceased had received gunshot injury in his abdomen, which he was operated for and scar car was left of the said injury and both his arms were injected, in which abscess had formed and therefore he was identified on account of these scars. The trial court has also relied upon statement of PW 7 Ramesh, who knew the deceased earlier and he also identified the body on the basis of the belongings of the deceased. This witness identified Exhibit 1 to Exhibit 10 as belonging to the deceased and also proved panchayatnama and other memos prepared which were Exhibit Ka 3, 4 and Ka 5 . The learned trial court has also taken into account the statement of PW 13 Jaffer Hussain who has proved Exhibit 11 and 12, x-ray plates for identifying the deceased. The statement of PW 18 , Dr. Rup Narain has also been considered by the trial court who had done medical examination of the deceased at the time of the life insurance policy and had found the marks of operation on his body and has proved his report Exhibit Ka 23. The statement of SDM who had filled up panchayatnama and was examined as PW 9 has also identified the deceased as Sateesh Chandra Sharma. It is also recorded in the impugned judgment that PW 15, Bhoj Raj was examined, who was Lekhpal of Nagla Bani, who proved that Khasra number 1388 Fasli showed the plot number 974 as belonging to Hori Lal, from where the dead body of the deceased was recovered. Hori Lal is follower of Het Singh. On the above basis, the trial court has returned the finding that there was no infirmity in identification of the alleged dead body to be of the deceased Sateesh Chandra Sharma.
144. We find that although the learned counsel for the appellants did argue that the clothes which are alleged to have been recovered and have been exhibited and are being said to belong to the deceased, were not in recognisable condition as they were badly soiled and in torn condition, but we find that even if the testimony of PW 3 and Phool Shri (PW 6), be kept apart with respect to the fact that they had witnessed the burial of the deceased and therefore being the persons who had immediately prior to murder of the deceased and his being buried had seen what he was wearing, hence they could be in a better position to identify the belongings, we find that the other witnesses who have been examined from the prosecution side have given no less important evidence in respect of recognising the dead body on the basis of personal belongings of the deceased to be that of Sateesh Chandra Sharma, because PW 4 is a witness who is alleged to have remained present when the deceased was kidnapped and therefore he knew what he was wearing then and therefore he was also in a position to identify him through his belongings. Prem Pal Singh (PW 5) who was shadow of the deceased has also identified the dead body on the basis of personal belongings of the deceased. Therefore we find that the judgment of the trial court in respect of identification of the dead body to be that of Sateesh Chandra Sharma is not erroneous.
145. Now we would like to discuss in respect of the identification of the accused persons by the prosecution witnesses both before the trial court as well as during identification parade and whether on the basis of their identification results, the accused persons could be treated to have been correctly identified or not. It has come on record that SDM Babu Ram Gupta (PW 22) had conducted the identification proceedings of the accused persons in District jail Etah, the results of which are as follows which are being shown in tabular form on the basis of identification memorandums i.e. Exhibit Ka 24 to Exhibit Ka 28 and also the names of the accused who were identified by prosecution witnesses in court are also mentioned as below:
Accused persons named below witness Phool Shri PW 6 witness Prem Pal PW 5 witness Brahmanand, PW 2 witness Naubat witness Bhav Singh PW 4 witness ''s edition Mahesh Chand Chandra Prakash No, one mistake Gangadhar, files separated due to abscondance Yes Sadhu Singh Yes, In court Shri Pal Yes, In court Yes In court No No Wrong Wrong Jawar Singh No, one mistake Wrong Yes No Wrong No Lala Ram No, one mistake Wrong Yes No No No Ram Kishore No, one mistake No Yes Wrong No No Shyam Singh Wrong Yes, In court Yes, In court No Yes, In court Yes Anar Singh Wrong, In court No Yes, In court Wrong No Wrong Nanhe alias Srinivas Wrong Wrong Yes No Wrong Yes Het Singh Yes, In court Yes, In court Wrong Yes, In court Yes Gajraj In court No No Wrong No No Hari Singh In court No No No No No Jai Singh (died) In court In court In court In court Latoori Singh (died) In court Manohar(died) In court In court Rajaram(died) Note- (i) No- means witnesses did not identify.
(ii) Yes- means witnesses identified the accused.
(iii) Wrong- means witnesses made wrong identification.
146. We would like to deal with the testimony of Ram Prakash, PW 3 who is the star witness of the prosecution because he has turned approver after his arrest and having made confessional statement, we have to form an opinion as to whether his testimony is believable or not. He has stated to have joined the Mahavir gang just 3 to 4 months prior to abduction of Sateesh Chandra with a view to wrest back the land from his uncle who had grabbed the same due to his having joined the military and after relinquishing the job on his return found his uncle in possession of the said land belonging to his father so that he could create pressure on him. He has also stated to be present when Mahavir Singh had gone to Latoori Singh's place and had a discussion over there that Sateesh Chandra Sharma was to be eliminated. It does not appear to be believable that a person who had joined the gang just 3 to 4 months back, would be reposed so much confidence in him by the gang leader that he would take him along to be party to a conspiracy being hatched by Latoori Singh in order to murder Sateesh Chandra Sharma. In his statement it has also come that he did not join the gang when it had gone for kidnapping of the deceased, and remained at Lalbadara because of being sick and met the gang men at Lalbadara only when that returned with the deceased with them. It appears that this is also a story concocted by him, because he was unable to disclose the name of the person where he was staying at Lalbadara. Had he stayed there, he certainly should have disclosed the name of persons where he stayed for the period till the other gang men returned with the deceased after his abduction. According to his version he joined the gang at Lalbadara from where he was taken to the jungle of Bani Ka Nagla and also stated that there he met Het Singh who had been brought there by Balak Ram and Phool Shri. Balak Ram had called Phool Shri and Het Singh there and then the details are given as to how the deceased was murdered after being strangulated and thereafter buried in the field of Het Singh. He has stated that after the burial of Het Singh when he returned with Phool Shri, on being convinced by Phool Shri that the gang was indulging in abominable activities of killing people he should quit the gang and go away with her and he agreed to her proposal and thereafter he roamed to various places till he was finally arrested by police when he had gone to meet Phool Shri since she did not return after having been allowed to go to see her ailing mother. There are discrepancies in his statement made before the investigating officer when he was arrested with illegal weapons because he had stated that he had told investigating officer at that time that he was involved both in kidnapping and murder of Sateesh Chandra Sharma and further stated that his 1st statement was recorded at PS Kannauj in District Farukkhabad by Sub Inspector Rai whom he had not stated that he was personally involved in kidnapping of Sateesh Chandra Sharma rather had stated that he had been brought after being kidnapped, before him and therefore had stated that he was involved in kidnapping and murder because all this happened in front of him. He also stated to Magistrate when asked as to how many persons were involved in kidnapping, he replied that he was not involved in kidnapping but had stated that he was at Lalbadara at the time of kidnapping, if the same was not recorded, he could not tell its reason. Therefore there is material contradiction in respect of his not being party to kidnapping of the deceased as he was staying at Lalbadara which was not stated by him to police as the same was found not recorded by the investigating officer. It also appears to be little unreasonable that a murder conspiracy which was hatched between Latoori Singh and Mahavir Singh to which the PW 3 was a party, that he would not accompany the gang to carry out the plan, rather he would stay back at Lalbadara only on the ground of illness. There is no evidence extended on his part as to what was he suffering from and whether he had taken any treatment for the same, to corroborate his statement that he was sick and did not join the gang at the time of kidnapping. Another important omission in his statement appears to be that he did not recollect whether he had told the investigating officer of Kannauj or not that Sateesh Chandra Sharma was kept in Bani Ka Nagla where Latoori Singh MLA reached and when Sateesh Chandra Sharma was murdered, Phool Shri was present there and further stated that if the same was not recorded in his statement he could not tell its reason. This statement would certainly raise doubt about presence of Phool Shri at the time of murder of Sateesh Chandra Sharma which was very important and it was specifically told by him that she was there and the same had been specifically told to police, therefore it appears to be an afterthought to state that Phool Shri was also brought there to witness the elimination of the deceased, which seems to be very awkward that a lady who is stated to be visiting the gang off and on to satisfy the lust of gang men particularly that of Mahavir and PW 3, would be called there at such a sensitive moment when a deadly enemy of Latoori Singh were to be murdered as per plan, only to create an evidence which could be used as a corroborative piece of evidence by prosecution as the same would be badly required because of there being no independent eye-witness of the incident and the statement of an approver would by itself not be sufficient to prove the guilt of the accused persons but for its corroboration. It also appears to be very suspicious statement of the witness PW 3 that after having witnessed the murder of the deceased by him and Phool Shri both of them disappeared from the scene for a long time and kept roaming at distant places. If they were actually witness of the occurrence being part of the Mahavir gang, there would be strong chances that they would not be allowed to leave the gang so easily when they had witnessed the killing of Sateesh Chandra Sharma at the hands of the Mahavir gang, for fear that they could inform about the said incident to the police. The manner in which the narration has been made by this witness of the deceased being murdered by being strangulated and thereafter being buried after digging the pit so close to the village Abadi by so many men and he watching the entire proceeding with composer with Phool Shri does not inspire confidence in his statement to be true. It is very unnatural that this witness has stated that Sateesh Chandra had been taken in the field of Hari Singh by them and they had reached there by 8 - 9 PM and about 10 - 15 minutes thereafter Phool Shri also reached there from Nagla Bani because why would that lady have been brought there unless she was of some use in committing murder of the deceased, only to become witness of such a sensitive murder? This is also a little unnatural that Phool Shri is said to have intimate relations with Balak Ram, who was a member of the gang and she also developed intimate relation with PW 3 and thereafter would prefer to go with PW 3 instead to remain with Balak Ram or the gang. Therefore this witness's testimony does not appear to be confidence inspiring to us.
147. Next we would like to deal with that portion of the judgment of the trial court wherein identification of the accused persons has been considered. It is mentioned in the impugned judgment that according to prosecution the identification was done in accordance with Rules because prior to the identification proceedings, the accused persons were kept Baparda, which fact has been proved by constable Mahipal who has been examined as PW 23, who has proved his oral statement by paper no. 409A and the identification proceedings dated 25/04/1981 has been proved by retired PCS officer, Shri Babu Lal Gupta by proving paper no. 408A and he has also proved the concerned identification memorandums i.e. Exhibit Ka 24, Ka 25, Ka 26, Ka 27 and Ka 28.
148. The witness Bhav Singh who is examined as PW 4 has stated in his oral testimony that on the date of kidnapping there was enough brightness in the night and there was light of torches also, in the light of which he had identified accused Shyam Singh, Het Singh, Jai Singh and Manohar etc and he had also identified these accused in court also. Similarly witness Prem Pal Singh (PW 5) identified Shyam Singh, Shri Pal, Het Singh etc. by placing his hand upon them in court and had also recognised them in the jail. One independent witness Ramesh (PW 7) has also stated that on the date of incident when he was returning from Ramnagar, the Bullock cart of Ram Nath Singh had brushed with a jeep which was being driven by Chandu, in which MLA Latoori Singh and with him Anar Singh were sitting with rifles and were going towards Nagla Bani and on the basis of this statement the Learned trial court repelled the arguments of the defence that the accused were not identified and that their names were being taken only due to political animosity.
149. Here we would like to take assistance from the chart which has been given above so as to see as to whether the accused who are now left alive were identified correctly by the witnesses both in court as well as in jail or not and whether their testimony would be worth believing. As we have already indicated that by now only 5 accused had been left alive out of a number of accused who had faced trial namely, Sadhu Singh, Shri Pal, Anar Singh, Gajraj and Hari Singh. Sadhu Singh was presented for identification in jail and was correctly identified by witness Phool Shri (PW 6), while before rest of the witnesses of prosecution he was not presented for being identified and this accused was also identified in court correctly by the said witness. The accused Shri Pal was identified in jail by PW 6 and PW 5 only while PW 2 could not identify him in jail and PW 4 and witness Mahesh Chand identified him wrongly in jail while witness Naubat did not identify him in jail. Accused Anar Singh was identified in jail wrongly by PW 6; could not be identified by PW 5 in jail; was identified correctly by PW 2 in jail; witness Naubat identified him wrongly in jail; PW 4 could not identify him in jail while witness Mahesh Chand identified him wrongly in jail, however this accused was identified correctly in court by PW 6 as well as by PW 2. Accused Gajraj was only correctly identified by PW 6 in court; by PW 6 he could not be identified in jail; by PW 2 he could not be identified in jail; by witness Naubat he was wrongly identified in jail; PW 4 could not identify him in jail and witness Mahesh could not identify him in jail. Accused Hari Singh was recognised by PW 6 in court but could not be identified by PW 5 in jail; could not be identified by PW 2 in jail; could not be identified by witness Naubat in jail; could not be identified by PW 4 in jail; could not be notified by witness Mahesh Chand in jail. We find that the occurrence of kidnapping took place on 16/11/1980 while the dead body of the deceased was discovered on 13/03/1981 and the identification parade was conducted on 11/09/1981 and 25/04/1981. PW 2, Brahmanand has recognised accused Shyam Singh and Anar Singh both in court as well as in jail, but when we see his statement before court he has stated to have seen the miscreants in the light of torches and moonlight when the miscreants, among whom the aforesaid two accused are also included, when they were 20 - 25 steps ahead of him in the dead of night , we find that it would be very difficult for any person who had seen a miscreant about 5 months ago, to recognise him correctly in identification parade if such a person was not known to him earlier and as far as identification in court further after a great lapse of time is concerned, that would be further difficult for such a person to identify him correctly. Hence we find that the statement of PW 2 in respect of identifying the aforesaid two accused does not inspire confidence.
150. Bhav Singh, PW 4 has identified none of the above-mentioned alive accused appellants in court nor in jail, though he had recognised only Shyam Singh and Het Singh correctly in jail and had also identified them along with 2 others namely Jai Singh and Manohar in court, therefore as regards the present accused appellants his testimony is of no consequence as regards their identification.
151. Prem Pal Singh (PW 5) has also stated that he had recognised the miscreants in the light of torches and the moon when the miscreants were taking away the deceased in the late hours of night. Out of the alive accused appellants he has identified only Shri Pal correctly both in jail as well as in court but even his testimony in this regard does not appear to be believable because it would be difficult for identifying a miscreant who was never seen by him before and was seen once only about 5 months ago and that too in the night in dim light.
152. Phool Shri (PW 6) has identified accused Sadhu Singh, Shri Pal correctly both in jail as well as in court but has wrongly identified Anar Singh in jail but correctly in court and Gajraj and Hari Singh were also identified by her correctly in court out of the alive accused appellants. We will express opinion about her testimony and its credibility while dealing with her statement at length.
153. Rest of the witnesses whose names are mentioned in the tabular chart above have not identified any of the alive accused appellants neither in court nor in jail.
154. Phool Shri, PW 6 is a witness who is alleging herself to have seen not the kidnapping of the deceased but his murder and exhumation of his body. It is apparent from her statement which has been cited above that she was brought at the place where the deceased was murdered and thereafter was buried as she was watching the entire proceedings, She claims to have been brought there by Balak Ram who was having illicit relations with her and she witnessed the entire proceedings in the presence of PW 3 with whom also she had illicit relations, who is approver. Her statement is inconsistent because of number of discrepancies as she had not made any statement under sections 161 and 164 Cr. P.C. to the effect that Shri Pal, Gangadhar and Anar Singh were also involved in this incident and admitted that she could not tell about that because of considerable lapse of time. She also stated that Anar Singh and Shri Pal had put knot in the neck of the deceased for the first time in court. She also stated before court that she does not recollect whether she had stated anything to police about her hand being there in murder of Sateesh Chandra and when her attention was brought to the statement recorded under 161 Cr. P.C. she could not tell the reason why there was no mention made therein in respect of the same. She also admitted that the deceased was murdered and there was dim light of torches and the lantern and the moon, regarding which a statement was given to the police as well as Magistrate but when she was confronted with her statement under 161 and 164 Cr. P.C., no such statement was found to have been given and then she failed to tell its reason. We further find that while discussing the statement of PW 3 it has been concluded by us that why a lady like PW 6 who was probably engaged for the entertainment of the dacoits gang would be taken to be a witness of murder of the deceased is beyond comprehension as she could not have been asked to perform any act which she was meant for, there. Besides her antecedents which have been narrated above, her statement appear to be not such which would inspire confidence. The defence has also suggested that her husband was given employment in police Dept so that she could be a witness in this high-profile case and could be found to be a corroborative piece of evidence. The police has also admitted that her presence at the place of occurrence when the dead body was being recovered was not entered in the GD, therefore her presence there also would be doubtful. After having gone through her entire statement the same is not found very inspiring, therefore on the basis of her statement, the involvement of the above-mentioned accused appellants cannot be held proved beyond reasonable doubt.
155. We would also like to take into consideration the arguments which were made by the defence counsel before the trial court and findings thereon. It is mentioned by the trial court that PW-19 Guru Dutt Sharma was examined by the prosecution who was a real younger brother of the deceased and hence was an interested witness whose statement could not be believed and it was also argued that the defence side was not given opportunity to cross-examine him and under these circumstances the evidence was not admissible. On the other hand the said contention was repelled by the prosecution side stating that the accused persons were, from the beginning, harassing the witnesses and only to remove them from their path, they were trying to delay the disposal of the said case by obtaining frequent adjournments and giving threats to their lives and in pursuance to that conspiracy, the frequent adjournments were being sought and adjournment was also granted on 23.09.1991 when real brother of the deceased was examined in court. The then Presiding Officer had passed an order on 23.9.1991 in which it was specifically mentioned that the said witness had moved an application that the accused persons had made a fatal attempt on complainant Genda Lal in which he escaped, but his shadow had been killed. The accused persons had also assaulted the Investigating Officer, Sri K.S. Rana and had murdered S.I. Sri K.M. Pandey who was connected with this case and also another officer Brijendra Singh connected with this case, was murdered and they also wanted to murder PW 19 Guru Dutt Sharma. It was then argued that the court had passed an order in similar circumstances for delaying the proceedings in the case pertaining to Farrukkhabad; the accused persons had killed the deceased Satish Chandra Sharma and similar situation was being created by the accused in the present case so that threat to the life of Guru Dut Sharma who was elder brother of the deceased would be created and in such circumstances, he could not be left at the mercy of the accused persons. The court had also passed an order that the accused persons were deliberately avoiding the case and in such circumstances, the witness could not have been left at the mercy of the accused and after having passed the order, the Presiding Officer closed the evidence of PW-19. Learned trial court had recorded that from perusal of the said order of the court, the argument of the defence counsel stands repelled and no opportunity was given to the accused side to cross examine PW-19 rather all the situation/circumstances have been narrated by the court indicating the conduct of the accused persons.
156. Next argument before the trial court was that there was material contradiction in the statement of witnesses, which makes testimony of the witnesses unbelievable such as that of PW-3 who had stated that the deceased was wearing 'Tehmat' while PW-6 stated that he was wearing half 'Dhoti'. PW-6 also stated that the wrist watch of the deceased had been taken off before he was killed, while nothing such was stated by PW-3. Repelling this argument from the side of the prosecution, it was stated that the deceased was wearing 'Tehmat' which also stood corroborated by other independent witnesses and in place of 'Tehmat' PW-6 stated that he was wearing half 'Dhoti' that could not be treated to be a contradiction of much significance because both appeared to be the same. Further it is stated that PW-6 is a lady of rural background and therefore such contradictions were not material one but even if it be taken to be correct that there were certain contradictions and discrepancies in the statement of the witnesses, the whole evidence of the said witnesses cannot be disbelieved and also mentioned that minor contradictions rather increase the credibility of the statement of witnesses and has cited several judgments of Supreme Court in this regard.
157. Further it was argued before the trial court that the report for kidnapping was lodged with delay as the kidnapping took place in the intervening night of 17/18.11.1980 at about 11.30 p.m. while the report was lodged next day i.e. 18.11.1980 in the morning at about 8.35 A.M. i.e. after a delay of nine hours which makes the incident to be doubtful. Repelling this argument, the prosecution side argued that on the basis of the documentary and oral evidence, it is evident that soon after kidnapping at 11.30 p.m. the family members of Satish Chandra Sharma and others had started searching for him and had also chased miscreants who fled from the place of incident taking benefit of darkness and when they continued to keep searching for him and the deceased could not be found, then report was lodged, therefore, in these difficult circumstances, the delay of nine hours could not be taken as unusual delay and accordingly the trial court has ignored the argument of defence that there was any delay in lodging the FIR.
158. The trial court has also recorded that from the side of the prosecution it was stated that the report of incident was lodged without any delay. Satish Chandar Sharma was kidnapped which was witnessed by Bhav Singh, PW-4 and in support of that PW-3 and PW-6 have also stated. It was also stated by the prosecution side that regarding kidnapping and murder of the deceased, the approver, Ram Prakash, PW-3 and Phool Sri, PW-6, had made statement before the Judicial Magistrate under section 164 Cr.P.C. indicating therein the involvement of the accused persons and both these witnesses have also appeared before the Court and also gave the statement before the court in support of involvement of the accused in the incident. The whole matter came to light after recovery of the dead body of the deceased at the pointing out of Ram Prakash, PW-3 where-after he (deceased) was identified, prior to that nobody had any clue about the dead body of the deceased that the same was buried in field of Het Singh and that this special knowledge was only with the witness, Ram Prakash, in these circumstances, the statement of Ram Prakash become more important. It is further recorded that for identification of accused, oral and documentary evidence such as charge-sheet, FIR, recovery memos etc. and several documents which have been filed from the side of the accused have also been admitted. Further, it is mentioned in the judgment that it was also argued from the side of the prosecution that the conduct of the accused persons right from beginning was to delay the trial as it began in the year 1981 and continued upto the year 2011 i.e. for 30 long years and during this period for procuring the attendance of the accused persons, for framing charges against them and for recording statement of witnesses and statement of accused persons under section 313 Cr.P.C. and also at the stage of argument, different ploys were adopted by the defence to delay the disposal of the said case. In this regard, number of Presiding Officers have expressed their view and made comments regarding delay which may be found in the orders passed by them. For example in the order sheet, an order dated 24.10.1991 has been passed in which it is mentioned that the accused persons are deliberately making delay while on the application of the accused person, High Court had passed an order of expeditious disposal of the case. In court's orders dated 25.11.1991, 20.12.1991, 20.2.1992 and 23.3.1992 continuously it was expressed that the accused were deliberately delaying the proceedings by making adjournments and according to the order dated 3.3.2008 the evidence had already been concluded in this case, prior to the year 1985 and the case was continuously running at the stage of argument since 20.08.2008 and thus only at the argument stage, this case remained pending for 2 ½ years .
159. After considering the entire evidence, the trial court had reached the conclusion that the accused Anar Singh, Gajraj Singh, Hari Singh, Sri Pal, Shyam Singh and Het Singh were guilty under sections 364, 395, 147, 148, 302/147, 201 IPCS because they had kidnapped Satish Chandra Sharma with an intention to kill him along with his gun and cartridges in prosecution of common object and thereafter he was murdered and to remove evidence of such murder his dead body was buried. The trial court further held the accused Sadhu Singh guilty under sections 364 IPC read with 120B, 147, 148, 302 read with 149 IPC because these offences were proved by way of strong circumstantial evidence as well as on the basis of co-accused Ram Prakash, approver, independent witnesses and eye witnesses' statement.
160. We have gone through the entire evidence and find that as for as lodging of FIR is concerned by PW-1, the same is lodged with promptness as we find no delay in getting the same lodged and the trial court's verdict in this regard is absolutely. The finding is also correct that the dead body of the deceased was dug out at the pointing out of PW-3 the approver of this case, who was co-accused which was subsequently identified by some of the family members of the deceased who are made witness in this case, on the basis of belongings of the deceased and minor contradiction in regard to articles such as clothes and shoes found from the place from where his dead body was dug out after kidnapping but the statement of PW-3 who has turned approver is not found to be wholly believable but the same is only partly believable to the extent that at his pointing out the dead body of the deceased was recovered. His testimony does not appear to be confidence inspiring as regards implicating other accused in this case, particularly appellants who are left alive. He is not a witness of the kidnapping of the deceased because he has stated that he was not present at the time when the deceased had been kidnapped rather he stayed at Lalbadra and when the co-accused of Mahavir Lal Gang had kidnapped the deceased and brought him after his kidnapping to Lalbadra then he joined them and thereafter he has given graphic details of the deceased being murdered in his presence and also in the presence of PW-6 with whom he had illicit relationship. Both PW-3 and PW-6 have stated themselves to be eye witness of this occurrence of murder of the deceased, which we do not find confidence inspiring because PW-3 had kept himself away from participating in murdering the deceased. It appears not believable that he would have been allowed to be there only to witness the murder of the deceased by other co-accused who are alleged to be men of Mahavir Gang. Similarly, the PW-6 also had been brought there only to witness the committing of murder of the deceased, does not appeal to reason aove because she is alleged to be a lady who was having illicit relationship with Balak Ram and Ram Prakash and also to entertain the men of Mahavir Gang. We have also discussed above that the evidence which has been gathered by the prosecution in respect of identification of the appellants who are left alive is not strong enough to hold them guilty on the basis of evidence of PW-6 and PW-3 only and also on the basis of other witnesses who have been examined by the prosecution. Therefore, we are of the view that the accused persons, namely Sadhu Singh, Anar Singh, Gajraj Singh, Hari Singh and Sri Pal do not deserve to be convicted rather deserve to be given benefit of doubt and the learned trial court has misinterpreted the evidence which is on record against them particularly when we find the testimony of PW-3 and PW-6 are not wholly believable. Accordingly, the above appeals as regards to accused-appellants Sadhu Singh, Anar Singh, Gajraj Singh, Hari Singh, Sri Pal are allowed and their conviction is set aside being given benefit of doubt. They are already on bail, hence their bail bonds stand discharged.
161. It is further directed that all the appellants shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of provisions of section 437-A Cr.P.C.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date :- 23.01.2019/A.P. Pandey