Allahabad High Court
Bhonda Alias Gotar And 2 Others vs State Of U.P. on 15 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 439
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on: 10.01.2019 Judgment delivered on: 15.02.2019 Court No. - 1 Case :- CAPITAL CASES No. - 2719 of 2016 Appellant :- Bhonda Alias Gotar & 2 Others Respondent :- State Of U.P. Counsel for Appellant :- Dileep Kumar,Rajrshi Gupta Counsel for Respondent :- G.A. Connected with Case :- CRIMINAL APPEAL No. - 5194 of 2016 Appellant :- Ramsagar Respondent :- State Of U.P. Counsel for Appellant :- Amit Kumar Singh Counsel for Respondent :- G.A. And Case :- CRIMINAL APPEAL No. - 3252 of 2016 Appellant :- Munshiwa Respondent :- State Of U.P. Counsel for Appellant :- Ram Raksha Tiwari,Amit Kumar Singh Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)
1. Heard Sri Dilip Kumar and Sri Amit Kumar Singh, learned counsel for the appellants and Sri S.K. Pal, learned Government Advocate assisted by Sri J.P. Tripathi, learned A.G.A. for the State.
2. The present Criminal Capital Appeal No. 2719 of 2016 (reference no. 05 of 2016) has been preferred against the judgment and order dated 7.5.2016 passed by Special Judge, D.A.A. Act/Additional Sessions Judge, Court No. 4, Chitrakoot in S.S.T. No. 240-A of 2006 (State of U.P. Vs. Bhonda @ Gotar, Rohini @ Tehsildar and Radhey) arising out of Crime No. 53 of 2006, under Sections 148, 302 read with 149, 201, 404, 426 IPC and Section 14 D.A.A. Act, P.S. Manikpur, District Chitrakoot, whereby the accused-appellants Radhey, Rohini @ Tehsildar and Bhonda @ Gotar are held guilty for charges under Sections 148, 302 read with Section 149, 201/149, 404/149, 427/149 IPC and Section 14 D.A.A. Act and they have been sentenced as mentioned in the chart below.
3. A separate criminal appeal no. 3252 of 2016 has been preferred by the accused-appellant- Munshiwa S/o Gulzar against the same judgment arising out of the above mentioned S.S.T. No. 240-A of 2006, (State Vs Bhonda @ Gotar and others and the appellant has been sentenced as mentioned in the chart below.
4. A separate criminal appeal no. 5194 of 2016 has been preferred by Ram Sagar against the same judgment arising out of S.S.T. No. 240- B of 2006 (State of U.P. Vs. Ramsagar), in which the accused-appellant has been convicted under Section 148, 302 read with Section 149, 201/149, 404/149, 427/149 IPC and Section 14 D.A.A. Act and sentenced as mentioned in the chart below.
Sr. No. Name 148 IPC 201/149 IPC 404/ 149 IPC 429/149 IPC 302/149 IPC and 14 D.A.A. 1 Bhonda @ Gotar 6 months R.I. Fine Rs. 5,00/-
In default of payment of fine, additional imprisonment of one month 5 years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of one year 5 years R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months 1 year R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months To be hanged by neck till death, Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of three years which shall be executed only after confirmation of by the High Court 2 Rohini @ Tehsildar 6 months R.I. Fine Rs. 5,00/-
In default of payment of fine, additional imprisonment of one month 5 years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of one year 5 years R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months 1 year R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months To be hanged by neck till death, Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of three years which shall be executed only after confirmation of by the High Court 3 Radhey 6 months R.I. Fine Rs. 5,00/-
In default of payment of fine, additional imprisonment of one month 5 years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of one year 5 years R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months 1 year R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months To be hanged by neck till death, Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of three years which shall be executed only after confirmation of by the High Court 4 Ramsagar 6 months R.I. Fine Rs. 5,00/-
In default of payment of fine, additional imprisonment of one month 5 years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of one year 5 years R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months 1 year R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months Life Imprisonment with no remission, Fine of Rs. 5,000/- In default of payment of fine, additional imprisonment of three years 5 Munshiwa 6 months R.I. Fine Rs. 5,00/-
In default of payment of fine, additional imprisonment of one month 5 years R.I. Fine Rs. 5,000/-
In default of payment of fine, additional imprisonment of one year 5 years R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months 1 year R.I. Fine Rs. 2,000/-
In default of payment of fine, additional imprisonment of three months Life imprisonment with no remission, Fine of Rs. 5,000/- In default of payment of fine, additional imprisonment of three years
5. Since all the above appeals are arising out of common judgment, they are being taken up together and are being decided by this common judgment.
6. In brief the facts of the prosecution case are as follows.
7. As per the first information report, which was lodged by Chunni Lal Mishra, who has not been examined in the present case by the prosecution, the facts of the case are that his brother Munni Lal Mishra S/o Dwarika Prasad Mishra along with his son Bhakku @ Harish Chandra Mishra had gone for getting diesel filled in his tractor and for its repair by their Tractor Taifi No. U.P. 96 A-1306 on 11.8.2008 from his house in village Mau-Gurdari to Manikpur within the jurisdiction of P.S. Manikpur, District Chitrakoot and when he was returning from there, just before village towards south of the Gadhva Ghat towards (Athrahaghat) Gram Sabha- Uncha Deeh at about 7:45 pm, the men of the gang of Dadua got the said tractor halted and, thereafter, his brother Munni Lal and nephew Bhakku @ Harish Chandra Mishra were shot dead by the men of the said gang and the diesel, which was kept on the cultivator in drum, was also fired at, so that diesel spread out of it and the said diesel was allowed to so spread so that it reached both the deceased who were burnt with its help and, thereafter, the rear right wheel was also burnt and 12 bore licensee gun of his brother Munni Lal was also taken away. In the light of burning of tractor and the dead bodies of the deceased, the informant and various other persons of the village had seen the dacoit Dadua and his companions fleeing towards southern pahad. The dead bodies were lying on the place of incident and also empty cartridges were lying there. Because of the said area being a jungle and because of there being fear of miscreants/dacoits he could not go in the night for lodging the report and, therefore, he gave written report (Ext. Ka-3) at the P.S. on 12.8.2006 at 6:30 a.m. which was registered as Crime No. 53 of 2006 against only Shiv Kumar @ Dadua and the men of his gang under Sections 147, 148, 149, 302, 201, 404 and 427 IPC.
8. Upon a written report (Exhibit Ka 3) being given at the police station Manikpur by the informant Chunni Lal case crime no. 53 of 2006 was registered under sections 147, 148, 149, 302, 201, 404 and 427 IPC on 12/8/2006 at 6:30 AM against Shiv Kumar alias Dadua and his gang men, chick F.I.R. (Exhibit Ka 21) was prepared and entry was made of this case in GD at report no. 6, Time 6:30 hours on 12/08/2006 (Exhibit Ka 22).
9. It appears that investigation was handed over to S.I. S.K. Singh, S.H.O., G.R.P., Rae Bareli, who has deposed as PW-7 as follows in examination-in-chief. He was posted on 18.8.2006 as S.H.O., Manikpur and in the present matter, after the registration of the case at P.S. Manikpur, it was investigated by the then S.H.O. Rajkumar Singh and after his transfer, the investigation was handed over to him and he took up the investigation from parcha no. 4, dated 18.8.2006 onward.
10. In parcha no. 5, dated 20.8.2006, he tried to find out the accused-appellants of this case. On 23.8.2006, he arrested the named accused Phool Chand, who confessed to have committed offence and, thereafter, his remand was obtained for getting his statement under Section 164 Cr.P.C. On 24.8.2006, in Parcha No. 7, he recorded statement of eye-witness Aditya Narayan. In parcha no. 8, dated 29.8.2006, he arrested the accused Heera Lal and recorded his statement, who also confessed to have committed offence, hence report was sent for getting his statement recorded under Section 164 Cr.P.C. In parcha No. 9, dated 31.8.2006, the surrender of the accused- Hari Shankar has been mentioned. In parcha no. 10, dated 03.9.2006, he recorded statement of eye-witness Rajendra Prasad Mishra. In parcha No. 11, dated 8.9.2006, he made search of the wanted accused persons and made raids at their places. In parcha no. 12, dated 13.9.2006, he recorded technical inspection. In parcha No. 13, dated 17.9.2006, he recorded statement of HCMT Jai Prakash Mishra in which apart from the Sections 147, 148, 149, 302, 210, 404 and 427 IPC, during investigation, offence of Section 14 D.A.A. Act was also added. In parcha no. 14, dated 19.9.2006, the search of the accused was made. In parcha no. 14-A dated 19.9.2006, the confessional statement of accused Hari Shankar Tiwari, who was taken on remand, was recorded and its report was separately sent to the court. In parcha no. 15, dated 25.9.2006, entry was made in respect of the wanted accused Suneel Dwivedi of P.S. Vargadh, who had appeared in some case before the court and his warrant was prepared. In parcha No. 16, dated 28.9.2006, accused were taken on remand. In parcha no. 17 dated 2.10.2006, the men of wanted Dadua gang were sought to be searched. In parcha No. 18, dated 8.10.2006, there is endorsement of panchayatnama, post-mortem report and other papers of deceased Munni Lal and deceased Harish Chandra Mishra and also statement of constable Suraj Bali. In Parcha No. 19, dated 11.10.2006, the remand was taken of accused persons and in parcha no. 20, dated 14.10.2006, the statement of witness Amarnath was recorded. In parcha no. 21, dated 18.10.2006, remand of the accused was taken. In parcha No. 22, dated 19.10.2006, after taking remand from the court, statement of accused Sunil Kumar has been taken, who has confessed to have committed this offence. In parcha no. 23, dated 22.10.2006, statement of Ram Dayal Tiwari and Sant Ram Mishra, were recorded and on the basis of their statement, it transpired that Kamta Prasad was also involved in the incident and he tried to search the absconded accused persons by making raid at their place. In parcha no. 24 dated 26.10.2006, he submitted charge sheet no. 51 of 2006 against the accused Phool Chand and others and sent the same to court which was registered as S.S.T. No. 226 of 2006, which is Ext. Ka-25 and against rest of the accused, investigation was kept pending.
11. Thereafter, in supplementary parcha no. 1, dated 30.10.2006, he obtained non bailable warrant and warrant under Section 82 Cr.P.C. against accused Dadua, Radhey, Sugreev, Bhonda @ Gotar, Natthu @ Chelwa Kol, Dadu Kol, Rohini @ Tehsildar, Ashok Kol and search was made against the absconded accused. In supplementary parcha no. 2, dated, 30.10.2006, search was made against the absconded accused Natthu, Dadua, Ashok, Aniruddh, Ram Sagar, Munshiwa Kol but could not be found and the statements were recorded of the witnesses before whom proclamation under Section 82 Cr.P.C. was executed and these witnesses were namely Raja Ram, Bhagwan Deen, Vinod Kumar, Ravi Payasi, Lalman, Nathuwa, Munn, Ram Kushal, Mukhiya and Raghuraj and apart from that of Rewati Raman, Vivek Kumar. Vide parcha no. 3, dated 1.11.2006, remand was prayed for till the production of the accused before the court. Vide supplementary parcha no. 4, dated 4.11.2006, search for absconded accused was made. In supplementary parcha no. 5, dated 5.11.2006, absconded accused were searched and warrant under Section 82 Cr.P.C. was tried to be executed. The supplementary parcha no. 6, dated 7.11.2006, and parcha no. 7, dated 9.11.2006, were written and, thereafter, in supplementary parcha no. 8 dated, 10.11.2006, he recorded statement of Subhash Yadav (S.O.) Raipura and also obtained warrants against absconded accused under Section 83 Cr.P.C. In supplementary parcha No. 9, dated 13.11.2006 and supplementary parcha no. 9-A of the same day, the statement of witnesses of attachment of properties of the accused namely Raghunandan, Heera Lal, Smt. Ram Pyari, Premwati, Munshiwa, Rajman Kol, Ramsukh and Shiv Kumar were recorded. In supplementary parcha no. 10, dated 14.11.2006, the witnesses of attachment namely Uma Shankar Mishra, Baboo Mishra, Sharda Prasad, Pawan Kumar and Bhullan were recorded and the attached property was deposited in possession of the police and its entry was made in G.D. and after finding sufficient evidence against accused Munshiwa Kol, Ramsagar, Chhota @ Shivkaran Patel, Radhey @ Subedar, Natthu Kol, Raju Kol and Ashok Kolgun and charge sheet no. 51-A of 2006, dated 14.11.2006, was submitted under Sections 147, 148, 149, 302, 201, 404 and 427 IPC and 14 DAA Act, which is available on the file of S.S.T. No. 240 of 2006, which is Ext. Ka-A-1. He submitted charge sheet against this accused in abscondance and against rest of the accused, investigation was kept pending. In supplementary parcha No. 11 dated 18.11.2006, making mention of the earlier attached property of accused Shiv Kumar @ Dadua, Bhonda @ Gotar and Rohini @ Tehsildar, the statement of S.I. M.P. Singh, H.C.P. Vyasmuni Mishra and Constable Shivram were recorded. In supplementary parcha no. 12, dated 20.11.2006, the memorandum of plain soil as well as blood soaked soil was sent to FSL for examination and the statement of H.C. Ram Hirday Sharma was recorded, who has taken the same to F.S.L. and, thereafter, search of the absconded accused was also made. In supplementary parcha no. 13, dated 23.11.2006, entry was made regarding attachment of the properties of absconded accused and also statements of witnesses of attachment namely Vivek Kumar Mishra, Ram Sanehi, Rewati Raman and Mohan were recorded and after finding sufficient evidence against accused, Dadua @ Shiv Kumar, Rohini @ Tehsildar, Bhonda @ Gotar, Angad, Sugreev and Aniruddh Yadav, charge sheet no. 51-B of 2006 was submitted on 22.11.2006, under Sections 147, 148, 149, 302 and 201 and 14 D.A.A. Act which was registered as S.T. No. 226 of 2006, which had been proved as Ext. Ka-27 in the said S.S.T. and the same was again verified by him. In supplementary parcha no. 14, dated, 29.11.2009, the wanted accused Aniruddh Yadav surrendered before court and permission for recording his statement was taken from court. In supplementary parcha No. 15, dated 3.12.2006, the remand of accused Anirudh Yadav was recorded in District Jail, Banda in which he admitted to having been involved in giving effect to this incident and also stated that he would get the licensed gun, which was used in commission of this offence, recovered and on the basis of that statement, separate prayer for his remand was made. As per supplementary parcha no. 17, dated 9.12.2006, his remand was allowed from 10 a.m. to 4:00 p.m.. Pursuant to that remand, police custody prayer was made before District Jail which was refused saying that no such order had been received by him and, thereafter, the court inspector personally apprised about the same. In supplementary parcha no. 19 dated 11.12.2006, the search of father of accused Anirudh Yadav was made and his uncle Ram Sanehi was enquired in respect of the licensee double barrel gun of Aniruddha, who apprised that Anirudh Yadav had gone away after placing his licensed gun at his house, which was given by him to his father Mata Badal who is his real brother as they were living together. The said gun was got deposited by Mata Badal under the orders of S.D.M. in Rajpoot Gun House in the name of repairing on 30.11.2006. Therefore, he recorded statement of Mata Badal also. In supplementary parcha no. 20 dated 15.12.2006, after showing a copy of the order of the court to the S.D.M., the order was obtained for receiving the gun from Rajpoot Gun House but the same could not be found because of the parts of the said gun being dismantled. In parcha no. 21 dated, 18.12.2006, the remand of accused was prayed for. In parcha No. 22, dated 23.12.2006 also remand was prayed. On 28.11.2006, the concerned case property which were sent to F.S.L. for examination, S.I. Noor Mohammad was directed to collect the double barrel gun from Rajpoot Gun House, which was received from there and its memorandum was prepared which is Ext. Ka-28 in S.T. No. 226 of 2006 and its copies filed in the present case as paper no. 9-Ka. In parcha no. 24 dated 15.11.2007, statement of witnesses Sanjay Singh, Suneel Kumar and Dharampal were recorded and charge sheet no. 51-C of 2006 against accused Anirudh Yadav was submitted under Section 30-A of the Arms Act, which is Ext. Ka-26 in S.S.T. No. 226 of 2006 and further stated that against the said accused, another charge sheet no. 51-B of 2006 had been sent by him on 23.11.2006 and also against other accused the charge sheet had been submitted which are on the file of S.S.T. No. 226 of 2006, 240 of 2006, 240-A of 2006, 240-B of 2006 and S.S.T. No. 14 of 2006.
12. In cross-examination, this witness has stated that first charge sheet no. 51 of 2006 was filed by him on 26.10.2006 against Phool Chand, Suneel Dwivedi, Hari Shankar Tiwari, Heera Lal Tiwari. Whether any other investigating officer, other than him, has submitted charge sheet or not, he has no knowledge. He could not file charge sheet against rest of the accused till 26.10.2006, because of non-completion of the proceedings of attachment. Till then, he had full knowledge that Dadua and other accused had absconded. Till 26.10.2006, he had not sent charge sheet in abscondance against the remaining accused. He has not submitted any list of members of Dadua gang and does not recollect as to how many active members were there in Dadua gang till date nor could he tell their names even today. He also could not tell as to prior to this case, how many cases were there against accused Ashok Kol. At the house of Ashok Kol, during investigation, he made raids several times but he could not tell the boundary of his house as he does not recollect the same nor could he tell that in which direction in the village, his house is located. He admitted that there is no entry made in the case diary about house of Ashok Kol being raided, however, it is mentioned that raid was made against above accused persons. He remained posted at P.S. Manikpur from 15.8.2006 to 21.1.2007 and that prior to this incident, there was a complaint and information with respect to Dadua gang staying at the house of Ashok Kol but he does not recollect whether there was any record to that effect in writing at the police station or not, although many informers had made oral complaint about this. Further he stated that on which dates, this accused Ashok Kol accompanied the said gang and cooperated with it, he does not recollect but there was general complaint that he used to help the said gang. He denied that he had implicated falsely the accused on the basis of false complaint and he had concocted a false story in this regard.
13. He further stated in cross-examination that he did not know Anirudh Yadav prior to the incident, although he knew Ramsagar and Munshiwa Kol from before and also knew Radhey since prior to the incident, but he could not tell whether Ramsagar, Munshiwa and Anirudha Yadav were listed members of the Dadua gang as he does not recollect about the same. He further stated that he had not filed any listed members, therefore, he could not tell as to who else were the members of the Dadua gang. During investigation, he came to know that Anirudh Yadav was having license of gun. Earlier investigating officer had not made any investigation in respect of Anirudh Yadav having any licensed gun since the name of Anirudh Yadav came into light in the statement of eye-witnesses, as they had told about the said licensee gun having been used in this incident, hence legal action was taken in respect to the said gun. Witness Rajendra Prasad Mishra has stated that Anirudh Yadav and other accused had guns and rifles in their hand but he had not stated that Anirudh Yadav had licensed gun in his hand or not.
14. On the basis of evidence on record in SST No. 240-A of 2006 (State vs. Bhonda and others), charges were framed against appellants (1) Bhonda @ Gotar, (2) Rohni @ Tehsildar, (3)) Radhey, Raju (non-appellant), Ashok Kol (non-appellant) under sections 147, 148, 302/149, 201, 404, 427 IPC and section 14 Dacoity Affected Area on 24.7.2008 to which accused-appellants pleaded not guilty and claimed to be tried.
15. Against accused Munshiwa charges were framed under the aforementioned sections on 13.08.2010 to which he pleaded not guilty and claimed to be tried.
16. Against accused Ram Sagar in connected SST No. 240-B of 2006, charges were framed on 31.3.2011 under the same sections to which he pleaded not guilty and claimed to be tried.
17. To prove the case of prosecution, from its side Sant Das as PW1, Aditya Narain as PW2, Rajendra Mishra as PW3, Ram Dayal Tiwari as PW4, Dr. Mani Ram Ambedkar who conducted post-mortem of the deceased persons as PW5, Suraj Mishra who is scribe of the written report (Tehrir) as PW6, S.I. Sanjai Singh, who conducted investigation as PW7, have been examined.
18. After the prosecution evidence was closed the statement of accused were recorded on 06.9.2013 in which accused appellants Radhey @ Subedar, Rohni @ Tehsildar, Bonda @ Gotar, Munshiwa and Ram Sagar, all the accused appellants have stated that entire evidence adduced against them is false, all the witnesses have made false statement in court against them and they are absolutely innocent although no evidence has been adduced in their defence.
19. It would be appropriate for us to go through the evidence, which has been produced from the side of the prosecution to form an opinion as to whether the learned trial court has drawn conclusion of conviction rightly or does it deserve to be interfered with in the light of the arguments made by the learned counsel for the appellants as well as learned G.A.
20. Learned counsel for the appellants has at the very outset argued that in the present case the first informant Chunni Lal, who is the brother of the deceased Munni Lal, has not been examined by the prosecution, although he has been examined in SST No.226 of 2006 (State vs. Phool Chand and others) as PW4 in which co-accused were tried separately as their trial was separated from the present trial. In this background, it is stated that the statement of the informant which was recorded in separate SST, shall not be read in evidence in the present SST i.e. SST Nos. 240-A of 2006 and 240-B of 2006. However, he drew our attention towards section 367 Cr.P.C. which provides that the duty of High Court in dealing with the reference, is not only to see whether order passed by the Session Judge is correct, but to examine the case itself and even to direct for further enquiry or taking of additional evidence, if the Court feels it desirable in order to ascertain guilt or innocence of the convicted persons. In view of this, it was argued that since this was a case of death reference, this court was within its jurisdiction to peruse the statement of the informant Chunni Lal which was recorded in the separate SST of the co-accused, which otherwise was not admissible in evidence in the present SSTs.
21. After having pointed out this provision, learned counsel for the appellants has taken us through the evidence of Chunni Lal so as to point out infirmities contained therein and further has also taken us through the statement of other eye witnesses PW1 to PW4 named above and argued that the statements of these witnesses do not establish the prosecution case against the accused appellants at all because of their being numerous material contradictions in respect of very important aspects of the case. Since the entire emphasis of the argument of the learned counsel for the appellant has been on the fact that these witnesses could not have been present near the place of incident from where they have stated to have seen the incident, as well as the material contradictions in regard to other aspects which are very vital, it would be appropriate to first go through the said piece of evidences which have been pointed out by the learned counsel for the appellants and thereafter only an opinion could be formed as to whether the argument of the learned counsel for the appellants holds any substance. Since the statement of informant Chunni Lal is permissible as per section 367 Cr.P.C. due to this being a death reference, we would like to go though the relevant piece of his statement.
22. This witness has stated in examination-in-chief recorded on 7.7.2007 that about one year ago in the month of ''Bhando' the incident of committing murder had taken place. The deceased Munni Lal was his younger brother and other deceased Harish Chandra @ Bhaggu was his nephew. Munni Lal (deceased) was coming from Manikpur by his tractor with a drum containing diesel on the cultivator which was being driven by Harish Chandra, when they reached near Atrahar, after getting down from Garwaghat at about 8.00 P.M., he heard 3-4 fires and thereafter, after a gap of sometime again few fires were made due to which he suspected that Dadua had murdered Munni Lal because Munni Lal had opposed him. After having heard gun shots, he reached the school which was situated in the western side of the village, where four persons (identities of these persons not mentioned) told them that his brother and nephew had been killed by Dadua gang and set them on fire and their gun had also been taken away. These persons only had given information on phone (not disclosed to whom). All these four persons had gone for nature's call before fires were made as was narrated by these four persons. He had got a written report (Tehrir) prepared by Suraj Mishra, PW6. Next day, in the morning at about 6.00 a.m. the said report was given at the police station. He was read out the said written report and after having seen the same, he stated that it bears his signature which was exhibited as Exhibit Ka-3. Further, he stated that these persons who had told about this incident, had apprised him that the said incident was given effect by firing upon the deceased and setting them to fire by men of Dadua gang. (Learned counsel for the appellants has pointed out that this witness has not stated as to who was person out of the said gang of Dadua, who had made fires and who had burnt the deceased). This witness further stated that the Investigating Officer had made his interrogation and had stated to him that he should give an application in writing.
23. In cross examination, this witness has stated that he had not seen the incident with his own eyes and was stating on the basis of what was told by other villagers that Dadua gang had killed his brother and nephew. Further, he stated that he could not come to know till now who else were involved in this incident other than Dadua gang. At the time when firing was being made and its sound was being heard, the persons of whole village had assembled in a school, which included Sant Das (PW1), Ram Dayal (PW4), Aditya Narain (PW2) and Arvind. From school, they had seen flames of fire, then Sant Das, Ram Dayal Tiwari, Rajendra Prasad and Aditya Narain proceeded towards the place of incident and when they all returned, they told about the incident to him and on that basis he had lodged written report.
24. This witness has further stated that he knew all the five accused appellants present in court since prior to the occurrence.(It was clarified by the learned Counsel for the appellants that these five accused were of SST No. 226 of 2006 and not of the present SST Nos. 240-A of 2006 and 240-B of 2006). Further, this witness had stated that till then Ram Dayal, Sant Das, Rajendra Prasad and Aditya Narain had not disclosed the names of all the five accused persons to him nor did they disclose their names till he had dictated the first information report that all the five accused present in court were involved in the present incident with accused Dadua dacoit. Further, he had stated that about 3-4 days after the incident, it was told by these witnesses that the accused present in Court were involved in the incident. Despite knowledge of this fact, he had not given any information to either any police officer or SHO in writing about the said five accused being involved in the incident with accused Dadua.
25. Further, this witness had stated that he had given statement to Investigating Officer to the effect that the accused present in Court had given effect to the incident with Dadua, if same has not been written, he could not tell its reason although he denied any enmity with the Investigating Officer.
26. Further, this witness had stated that SHO had reached, with other police personnel, on the place of incident on the same night at 9.00 p.m. and from there, police went to school and made queries and also took down statements of Aditya Narain, Sant Das and Rajendra, who all also had given him the names of all the five accused and also the names of other members of the said gang. Investigating Officer stayed at the school for about two hours and then went to Manikpur. PAC also reached village and the SHO leaving other police personnel near the dead body, went to police station. Next day, at about 8.00 a.m. the SHO again reached the village and thereafter, after having taken him and others, went to the place of incident near the dead bodies and after having completed the writing work, dead bodies were despatched to police station. When he reached the place of incident, there were many people of the village but no outsider was there. He stayed there for about 1 ½ hours. The written report was prepared by him outside the police station although within the boundary wall of the same. He is illiterate, therefore, he dictated the said report and person who was writing the same had reduced it into writing. The village was about two furlongs away from the place of incident. (Learned counsel for the appellants pointed out, according to site plan, it is 1 ½ kms.) Bardaha river was about one furlong away from village towards west.
27. PW1 Sant Das has stated in examination in chief that the incident took place on 11.08.2006. On the said date he along with Ram Dayal, Aditya Narain and Rajendra Prasad had gone for nature's call towards river together because of fear of dacoit and had also taken with them a gun, lathi and torch etc. on the bank of river Bardaha at about 7.00 p.m. After the nature's call was over, they were preparing to return village, soon they had heard sound of fire which was coming from south western direction and by the time they reached the place of incident about 36 fires had already been made. From a distance of about 25-30 steps, from the cover of bushes, he had seen that the whole gang was there comprising Dadua, Radhey, Tehsildar, Bhonda, Nathuwa, Chelwa, Raju, Phool Chand, Sunil, Ashok, Hari Shankar and many other who were all armed with weapons. (This witness has not taken the names of co-accused Hira Lal, Munshiwa, Ram Sagar and Aniruddha). He further stated that these dacoits were known to him from before because they used to come there often. Further, he stated that Tehsildar and Bhonda were not present in court today and that they had once abducted him also, hence he knew them. Further he stated that when he reached there, the rear wheel of the tractor was burning and lights of the tractors were on and the drum full of diesel was kept on cultivator which had a hole in it made by fire and in the light of burning of the said wheel, he had identified the accused persons.
28. The deceased Munshi Lal fell down after getting hit by bullet behind the tractor while the body of Harish Chandra @ Bhaggu was burning. Munshi Lal was groaning, he was fired upon by four persons namely Phool Chandra, Hari Shanakar, Sunil and Ashok after coming near him and thereafter his body was placed on the dead body of nephew and diesel was spraying out of the said drum because of which both the deceased got burnt. (It was argued by the learned counsel for the appellants that the above statement shows that specific role of making fire has been assinged to above named four persons and it is presumed that they might have burnt them to death with the aid of diesel). Further, this witness has stated that all the accused had made fires, sound of which was heard by him, but has not seen them. He does not know as to what enmity was there of the deceased with the dacoits/ miscreants who had put fire to the tractor. They stayed at the place of incident for about 45 minutes and the miscreants went away towards south ''Pahar'. He further stated that all of them were assembled at school and it was told that the police station was informed by telephone. His statement was recorded by the Investigating Officer.
29. While reading out the abovementioned statement, it was argued by the learned counsel for the appellants that names of the four accused appellants namely Heera Lal, Munshiwa, Ram Sagar, Anirurudha ought to have been taken by this witness to be the persons who were giving effect to the incident but their names have not been taken and with respect to reaching the place of incident, the version given by witness Chunni Lal is divergent from the account given by this witness which makes the statement of this witness to be suspect.
30. In cross-examination, this witness has stated that around village Maugurdari there are bushes and on one side is Hillock (Pahar). In this region, bushes are mostly found on ''Medh' which clearly are of the height of a man and these bushes are very dense. On the date of incident, it was pitch dark. When they were about to return home after nature's call, they heard gun fires. All of them had defecated near Bardaha river which is close to the north of the place of the incident. The place of incident is located in the north eastern corner of the village at a distance of about one k.m. Munshi Lal and his son had gone to Manikpur for taking diesel. All of them have licence of gun and used to go with their guns but on the date of incident they had not taken the gun with them.
31. Further in cross-examination, it is stated by this witness that he had gone for the nature's call in the evening together with a double barrel licensee gun without any vessel. He used to go for nature's call almost every day together with Ram Dayal, Aditya Narain, Munni Lal (deceased), Rajendra with gun. In 1997 he was abducted and his licence was issued in the year 1999. He used to go for nature's call in the same manner every day but he does not remember whether this fact was told by him to the Investigating Officer or not. Further, he stated that they used to go for nature's call at about 7.00 p.m. or sometimes after the sunset. In the morning, they used to go separately for the nature's call but in the evening they used to go in group. On the date of incident, all persons had come at his door without being called and thereafter they had gone at about 7.00 p.m. regarding which he had stated to the Investigating Officer and if the same was not recorded by him, he could not tell its reason. With him, there were Aditya Narain, Ram Dayal, Rajendra and none else. Rajendra was having Lathi while rest of the three were having double barrel gun but none of them was having any vessel.
32. It was argued by the learned counsel for the appellants that it is very unnatural that these persons would go for nature's call without any vessel (Lota) which suggests it is a concocted story only to make themselves eye witnesses of the incident. It is further stated by this witness that he had stated to the Investigating Officer about this fact that they were having these weapons in their hands while going for defecating and if the same was not written by him, he could not tell its reason. It is further stated that all the three had 25-25 cartridges in whole belt. (Learned counsel for the appellants argued that these witnesses, though were armed with gun as stated, could have been seen by the dacoits, if they were actually present, it is ironic that they would not make any fire despite being armed, upon the miscreants and would keep hiding behind the bushes only to watch the proceedings of killing/burning of the deceased going on, which is unnatural). They had knowledge about the fact that since morning Munni Lal had gone to Manikpur and that he would not accompany them while going for nature's call. Further, this witness has stated that his house is located in the western direction in the village at the border of the village. From there, they had gone straight for the nature's call towards west which place must have been at a distance of about 150 meters from his house. They had not stopped anywhere on the way nor did they find anyone. They had taken about five minutes only for the said purpose at the most, they had nothing else with them except gun and lathi and with him and Ram Dayal, there were torch also. He had stated to the Investigating Officer that both had taken torch which was of three cells and if the same was not recorded by him, he could not tell its reason. There was little light when they had started from their home and that they had not switched on their torch even while returning. The place where they were defecating, from that place, the place from where they took water, was about 10-20 paces away. All the four were sitting at a distance of 10-10, 15-15 paces away from each other in the cover of bushes, about which the Investigating Officer was told but he had not taken the Investigation Officer to show those places. Water for cleaning themselves was taken by them from different places from Chakdalti Ghat.(Pointing out this statement, the learned counsel for the appellants argued that in the site plan, the places where these witnesses had gone for defecating, have not been shown). It would be pertinent to refer here to the details of the site plan also, towards which our attention was drawn by the learned counsel for the appellants before reading out the statement of PW1 so that the same could be appreciated in a better way in the light of the places shown in the said site plan. In the site plan (Exhibit Ka-6), Abadi of village Maugurdari is shown in the east; abadi of village Payasipur is shown in the south-west about 1 ½ k.ms. away from the place of incident which has been shown by 'A', by which the place is shown as the place where miscreants had shot dead the deceased. From the said place, abadi of village Maugurdari is shown 1 ½ k.ms. and abadi of village Gorwah is shown in the north from where Bardaha Ghat is shown at one k.m. distance which is on the bank of Bardaha river. By single arrow at Sl. No. 1 in the index of this site plan is shown route by which the deceased Munni Lal and Harish Chand were coming from Manikpur through tractor with cultivator and drum along with licensee 12 bore gun. At Sl.No. 2 is mentioned that at the place shown by ''A' is place on the said route from which the deceased was coming with tractor. At about 20 paces away to the north of this place, there was lot of blood spread there, where assailants were stated to have made fire upon the deceased persons. At Sl.No. 3 it is mentioned that at place shown by ''B' is shown that place where the tractor Taffi 30 DI No. UP 96 A-1306 was found, the direction of engine was towards south and the tyre of the rear wheel of the said tractor was wholly burnt and towards right side of the said wheel and cultivator, the place is shown by ''C & D', where the dead bodies of Munni Lal and Harish Chand were lying with face up which were lying in burnt condition. At this place, lot of diesel of the drum was found spread on the ground and nearby were recovered 29 empty cartridges. At Sl.No. 4 is mentioned the route by double arrow by which after hearing first sound many villagers/witnesses reached the place shown by ''E & F' and in the cover of bushes they saw the incident being committed by the accused from the said place and identified them. At Sl.No.5 is mentioned that this was the route shown by single arrow with double head by which the miscreants fled from the place towards Chiraula Pahar jungle in the southern direction. At Sl.No. 6 is shown the distance of village Gorache from Bardaha river to be one k.m. in the south and at Sl. No. 7 is shown the distance of Bardaha river from the place of incident to be 100 meters towards south.
33. Now we resume further statement of PW1 in cross examination which would now be easier to understand in the light of the above-mentioned site plan. It is stated by this witness that the river from which water was taken by them flows south to north (wrong direction as it flows from west to east as pointed out by the learned counsel for the appellants). When they were sitting for defecating, from there they had taken water from a distance of about 6-7 feets down towards the river for cleaning themselves. The water in the said river was in the width of about 100-125 feets and at around 7.15 p.m. when they had ascended the Ghat after having defecated and all of them had assembled at one place at the Ghat, the said place was not shown by him to the Investigating Officer. Further, he stated that even before, till the time they could not come at the Ghat, after having defecated, they had not heard any sound of fire nor had they seen any light. At the place where they were defecating, there were 6-7 feet high bushes which are known as ''Medh'. When all of them came at the Ghat and assembled there, they heard 25-30 fires which were made within 2-3 minutes by which they had guessed the direction from which they were being made and further he stated when they got up after defecating, the fires were being made in southern direction and that the distance of place of incident was about one k.m. from the said Ghat and they had heard sound of fire from there only and about this he had stated to Investigating Officer also but if he had not recorded the same, he could not tell its reason. Further, he has stated that the place from where they had heard sound of fire, the place of incident was not visible. However, from, the place where they were standing at the Ghat, they had seen the light of tractor and other light regarding which he had stated to the Investigating Officer also and if the same was not written by him, he could not tell its reason. Further, he stated that only light was visible but the place of incident was not visible and it was right to say that at the time when they heard fire and saw the burning of tractor and its light, till then they could not guess as to what was happening there. At the time when fire was being made and the light was there, they had full doubt that Dadua gang was giving effect to the incident. He was abducted in the year 1997 and there was deadly enmity with Dadua gang, therefore, they had apprehension that the Dadua could kill them. It was also right to say that whenever they received information about coming of Dadua gang, they used to take steps for their security and never would go before the said gang. At the time of incident, none of them could summon up courage to go before the said gang. However, in the day, they would dare to go there.
34. Learned counsel for the appellants while reading this portion of the statement of the witness, pointed out the conduct of the witness to be not upto the mark and argued that this would make his statement to be unbelievable. This witness stated that even though they harboured the doubt that it could be Dadua gang giving effect to the incident, they did not make any fire. When they heard fire from there, the village must have been at the distance of about 100-150 meters but they did not go to the village nor did they make any effort to apprise the villagers about the said incident nor they shouted to call any villager to show them that fire was being made. They were trying to be convinced as to whether it was police or the miscreants who were firing or some one else. Had they been convinced that it was miscreants who were firing, then they certainly would have fired. The Investigating Officer did not ask him about it as to why they did not fire, rather they themselves had told him that because of doubt being there that it could be miscreants and the police who could be firing, they had not made fire, and if the Investigating Officer had not recorded the same in his statement, he could not tell its reason.
35. When they had started from the place of incident it must have been around 7.15 p.m.; there was a route for reaching the place of incident from the Ghat but they did not go by that route rather they went there concealing themselves in the bushes. They all were consulting each other and thought that it would be proper to go to the spot and see whether the said incident happened with one of their companions who had gone to the market, regarding this he had stated to the Investigating Officer and if the same was not mentioned, he could not tell its reason. They had stated to the Investigating Officer the route by which they had gone to the place of incident orally but had not shown him the said passage nor the Investigating Officer had seen that route after taking them along. At the place of incident, they were hiding in the bushes. They had not removed the bushes rather followed the way where there were no bushes. They had taken about 10-15 minutes time in reaching from Ghat to the place of incident. When they had proceeded for the place of incident, the place of incident became visible from a distance of about 21-25 paces away. He could not know as to which miscreants were giving effect to the incident. During the time when they heard fire sound and till they reached the place which was 25-30 steps away from the place of incident and before reaching there, they had not talked to each other in this regard.
36. The route for the place of occurrence goes from west to east while they were to the north of the route at a distance of about 20-25 steps. The place where incident had happened, Kachchi road was about 15 ft wide and it was right to say that the place where they were standing, there was jungle and bushes. They could hear from that place screaming and other talks which was going on at the place of incident. After leaving the Ghat till they reached the place of incident, they did not hear any fire arm sound. The place from where they had seen the incident, they had heard 5-6 rounds of fire regarding which he had stated to the Investigating Officer and if the same was not written, he could not tell its reason. (Learned counsel for the appellant has argued that this statement of the witness is contradictory to his earlier statement in this regard). Further, this witness has stated that the place where they were concealing themselves near the place of incident, these were different bushes and not one single bush and had also stated to the Investigating Officer that they had seen the incident from four different bushes which were situated at a distance of 5-5 hands from each other and at that time the miscreants had not made any fire. Further, he stated that he had seen the incident concealing his identity in standing position but he could not tell about others in this regard and if the same has not been written by Investigating Officer, he could not tell its reason. Further, he stated that he was in standing position while witnessing the incident and was not in sitting position and he stayed for about ½ hours along with his companions regarding which he had told the Investigating Officer also but if he has not recorded the same, he could not tell its reason. Further, he stated that as soon as they had reached at the place where they had concealed himself to witness the incident, they had come to know that it was Dadua gang which was firing and regarding this he had told the Investigating Officer also, if he has not recorded the same, he could not tell its reason. Further, he stated that when he reached the place where he concealed himself, 2 to 4 minutes prior to that he had heard 5-6 fires and after hearing these fires till he reached home, he did not hear any other fires. At the time when he reached the place of incident, tractor was burning and its lights were also on. From the place where they were standing, light of the tractor was on towards south and both lights were on of the said tractor. They were concealing themselves in the eastern side of the place of incident at a distance of 25-30 steps away where there were lot of bushes. The rear portion of the tractor was towards north side. Towards north of the tractor, the dead body of Munni Lal was lying while towards west of the said tractor, the dead body of Harish Chand was lying which was burning. At the time when he reached there, the dead body of the Munni Lal had not burnt rather he was lying on the ground groaning which was heard 2-4 times by them. Harish Chand was burning. Further, it was stated that it was right to say that before their reaching there both the deceased had already received fire arm injuries; 10-15 minutes after his reaching, the miscreants had thrown the dead bodies into fire regarding which he had told the Investigating Officer but if the same had not been written, he could not tell its reason. Further, he stated that he does not recollect as to whether the fires made by the dacoits/miscreants had already hit the deceased before their reaching or not and further stated that Phool Chand, Hari Shankar, Sunil and Ashok had dragged the dead body of Munni Lal into fire. This witness has further stated that due to enmity with Dadua Gang, the District Magistrate had given licence to him along with Ram Dayal, Aditya Narain, Pancham Lal and deceased Munni Lal because they were having persistent threat from the said Gang. Further, he stated that the accused Ashok was resident of adjoining village Chowroha and that prior to this incident, he had full knowledge that Dadua Gang used to visit the house of Ashok and because of this reason, he was having enmity towards Ashok. (Learned counsel for the appellants pointed out that there was no enmity of this witness with the said accused).
37. This witness has further stated that he does not recollect the time when they reached the place of incident and that in the night of incident, police had reached his village at about 12-1.00 p.m. in the night and he had met the police at that time and Chunni Lal (informant) had also met the police and thereafter police along with them had gone to the place of occurrence at about 1.30 a.m. It is further stated that prior to the police reaching the place of incident, he also had gone there at about 8.00 p.m. and at that time there it was not pitch-dark rather there was light there. (It was pointed out by the learned counsel for the appellant that this statement is false because the occurrence is of the month of August, generally it becomes quite dark in the said month at about 7.30 p.m.).
38. This witness has further stated that with him there were four persons and none of them had objected to any accused nor had they talked to them, simply they had seen the occurrence and came back from there.
39. This witness has further stated that he had fear from Dadua Gang, earlier he did not know that the said incident was done by Dadua Gang; after having seen he came to know that it was same Gang in which there were 30-35 persons, all of whom were armed with guns setting the tractor on fire.
40. Further, this witness has stated that towards eastern side of the said tractor, he was standing and towards west and south, miscreants were standing. The height of the tractor was six feet. There were bushes between the tractor and him, may be 2-4 bushes, through these bushes, they were seeing the occurrence and all of them were seeing from different bushes. Rajendra was at a little distance from him towards south and Ram Dayal also was at a distance of 10-12 paces away from him while 4th person was towards north.
41. When all the miscreants left the place, thereafter they did not go to the place of incident rather villagers had come there. He had visited the place of incident for the first time with the police.
42. He further stated that in 1997 prior to the said incident, he had been abducted by Dadua Gang but he does not know as to who was behind that and he was got abducted by accused Ashok. He was set free on the same day by the Gang. Till he remained with the said Gang, the accused Ashok, Phool Chand and Hari Shankar Tiwari were not there. Ashok is a poor person of Kol caste and in his knowledge there was no separate gang of Ashok and as and when it was needed, he used to join the said gang but he does not have any proof of the same as to when Ashok became member of the said gang. Further, he stated that in the said area, it was being discussed that Ashok had gone to help the said gang and regarding this the four witnesses of the occurrence including him, used to tell him and although he does not have any personal knowledge in this regard. Further, he stated that he does not have any enmity with Phool Chand, Hira Lal, Hari Shankar Tiwari. Phool Chand is about 55 years of age, who along with Hari Shankar Tiwari and Hira Lal Tiwari does agriculture work and that Hira Lal Tiwari was not at the place of incident. He denied that he had falsely implicated Ashok and that no such incident had taken place.
43. This witness has further stated that he was witnessing the said incident from a distance of 8-10 paces from the place of incident. (Learned counsel for the appellant pointed out that the said distance is now being reduced by this witness in his statement from his own part statement wherein he had stated bigger distance, which suggests that he was telling lie). Further this witness has stated that the accused were not in a position to see him because of his being concealed in bushes which were about 4-5 feet high and the same was their width also. All these bushes in which he and other witness were concealing themselves were lying towards east of the place of incident.
44. They had come from the north-eastern corner and to the south of the bushes in which he was concealed himself, Rajendra Mishra and Ram Dayal had concealed themselves in a bush situated towards north at 6-7 paces. Aditya had also concealed himself towards north in a bush and he had concealed himself 4-5 steps away from bush in which Ram Dayal had concealed himself, towards north.
45. One passage goes towards the river and place of incident is situated towards the side where both the passages meet. There was another passage, from that towards north was located, the place of concealment which was at a distance of 10-15 paces and that the place of incident was situated towards north-west of the place of their concealment.
46. When they had reached the place of incident, flames of fire were visible in which tractor and drum were burning and in the light of the said fire flames, the person could be seen even if he was 400 to 500 meters away and that when they had reached the said place they could see the accused persons from the place where they had concealed themselves and there were clearly 3 to 4 bushes between the place of incident and place where they were hiding. These bushes were 3-4 feets in height. When they had left from the river they could see the flames. The distance from the river to the place of occurrence would have been about 300-400 meters. From the river, they had heard about 20-30 fires together, which happened within 2-3 seconds and thereafter no other fire was heard and in his understanding these appeared to have been made by rifle. In reaching the place of incident from river that might have taken 10-12 minutes and they had left the river at about 7.15 p.m. and from the place of incident they had started back at about 8.00 p.m. Further, it is stated that between 8.00 p.m. to 8.15 p.m. they had reached home and he gave information about this incident to the family members of the deceased after going through the school at 8.30 p.m. that Munni Lal and Harish Chand had been killed. When he was asked, he told that they were killed by the gang and it was also told that four persons had made fire upon them and it was also told that the dead body of Munshi Lal was placed on the burning dead body of Harish Chand. (In this regard, learned counsel for the appellants pointed out that this is missing in the first information report or previous statement of this witness, which is nothing but subsequent modification made by this witness who after having found dead bodies, has developed this story and therefore his statement is not believable). He further stated that about the above statement made by him, he had told the Investigating Officer also but if the same was not written by him, he could not tell its reason and he had also told the wife of Munni Lal about this incident and to none else.
47. It is further stated that the Investigating Officer was informed about this incident by Aditya on phone and the police had reached there after having visited the place of incident and the police thereafter had taken them to place of incident. SHO had taken along 10-12 persons of village with him to the place of incident and had seen the pace of incident in the light as to how and where it happened and also made questions in this regard.
48. This witness has further stated that he had disclosed to the police as to what all had happened regarding the whole incident and it was also told that they were witnessing the occurrence from near the place of incident and that about 30-35 persons were there armed with weapons and out of them four were making fires upon Munni Lal and his dead body was dragged and was placed on the burning dead body of Harish Chand. Nothing else was stated by him. (It was pointed out by the learned counsel for the appellant that in the light of the above statement of this witness, it was clear that he did not disclose the name of any person of the gang of Dadua, and that in earlier part of his statement he did not tell that four persons of the said gang had made fire upon the deceased Munni Lal nor had it been mentioned in the FIR, therefore the statement of this witness seems to be not trustworthy).
49. He further stated that he was carrying a double barrel licensee gun with him and when Investigating Officer asked him as to whether he was having gun at the place of incident, he had told him that due to fear, he did not make fire from the said gun.
50. Further, he stated that out of these 35 men on the spot, some were in dress and some were without dress and some were in Kurta Paijama but could not tell their names. He denied that he had not seen the incident and that he was making false statement at the instance of police under pressure and has also stated that the FIR of this case was lodged by Chunni Lal. Munni Lal and Chuuni Lal belonged to same family being real brothers although they lived in separate houses. Further this witness has stated that he has not given any statement against the accused in any other case. He does not know as to whether prior to this incident accused were arrested or not but out of these accused, one accused namely Hari Shankar Tiwari belongs to his village and none else, all belong to distant villages. It is further stated that there is no dearth of gang in the jungle as there may have been around 15-20 gangs. (Learned counsel for the appellants stated that it is admission on the part of this witness that there were many other gangs and any of such gangs could have been instrumental in eliminating the two deceased.
51. Further, this witness has stated that which gang belongs to which place, he has no knowledge. The date on which the incident happened, it was pitch-dark. He used to accompany Munni Lal and Harish Chand whenever they would go out but he could not accompany them on the date of incident because of some obstruction and denied not to have seen the incident.
52. Aditya Narain (PW2) has stated in examination in chief that on 11.8.2006 at about 7.45 P.M. this incident happened near Garwaghat, Bardaha river. On the said date at about 7.00 p.m. he along with Sant Das, Ram Dayal Tiwari, Rajendra Prasad Mishra had gone for nature's call from their village to Bardaha river and heard sound of fire, where-after they took cover of bushes and proceeded towards place where fires were being made and there, from at a distance of about 25-30 paces saw Harish Chand son of Munni Lal and Munni Lal son of Dwarika Prasad, who were sitting upon the tractor who were shot dead by members of Dadua gang and both these persons were lying by the side of the tractor. Behind the tractor there was cultivator upon which drum full of diesel was kept, which was also fired upon and from out of it diesel flowed towards the dead bodies of Munni Lal and Harish Chand and thereafter the miscreants set them on fire. There was lot of light as the lights of tractors were on. In the said light, he and the other persons who were accompanying him had seen Dadua, Angad, Radhey, Tehsildar @ Rohni, Chhota Patel, Munshi Kol, Raju Kol, Aniruddha Yadav, Bhonda @ Gotar, Ashok Kol, Ram Sagar and Sunil, who all were known to him from before and they were also known to his companions, these persons used to come with Dadua gang. This occurrence took place about 50 paces prior to Bardaha river. From the place of incident, his village is situated towards east at a distance of about one and half kms. He had witnessed the incident from a distance of 30 paces and assailants were to the west of him, near the place of incident. He knew the miscreants since 17-18 years ago and all of them had rifle and other weapons but he did not see any of them making fire upon the deceased as by the time they had reached there, the deceased had already been shot dead. He had seen them making fire upon the drum. The miscreants remained present at the place of incident for half an hour. They had taken away double barrel gun along with cartridges of deceased Munni Lal and fled towards Chiraul Pahar. After the miscreants had left, he along with companions returned home and gave information to the family members of the deceased and other villagers and also informed Police Station Manikpur that the said miscreants had committed murder. His statement was recorded by police. He identified accused Radhey, Tehsildar, Bhonda @ Gotar who were present in court.
53. In cross examination, this witness has stated that he knew abovenamed accused since last 10 to 12 years as he used to hear their names in jungle but he could not tell as to who were members of Dadua gang. He had identified Radhey, Tehsildar, Bhonda @ Gotar because they were in jail for last three years. About 3-4 days after the incident he had visited the place of incident and not before that. Further he has stated that the persons of village who had informed him about this incident having taken place, he does not recollect their names and that on their having told about this incident, he was stating before the Court.
54. Learned counsel for the appellant after drawing attention of the above statement, argued that the above statement of the witness is based on hearsay because according to him, he had not seen the incident and was stating on the basis of what was told to him by other persons and hence his testimony should be discarded. Further, it was argued that even he did not tell the names of the accused when FIR was being lodged despite the fact that he knew the accused from before and had identified them in the light, hence it is unbelievable that he would not have stated their names to the police and further he has admitted to have identified these accused mentioned above on the basis that he had seen them earlier in jail which also makes his statement suspect and he has falsely implicated the accused persons.
55. Further, this witness has stated that this incident had happened at a distance of 500 meters from his village and also at the same distance from the place where he had gone for defecating, which was located in dense jungle full of 'Medhaki' trees. He had gone for nature's call around 5.00 p.m. without any gun, all were empty handed and had sat at different places for defecating. He must have taken about half hour where they were defecating and the same time must have been taken by him in coming home from the place of incident and also same time must have been taken in reaching the place of incident from the place where they were defecating. Further, he had stated that after hearing sound of fires, they had proceeded together from village Maugurdari for the place of incident. He had heard about 50 rounds of fire and thereafter all had assembled in the village and together they proceeded towards place of incident and thereafter he again stated that four persons including him i.e. Ram Dayal, Sant Das and Rajendra Prasad Mishra had gone there and when they had returned from the place of incident, by that time whole villagers had assembled in the school of the village and there were wife of Munni Lal, wife of Chunni Lal, Chunni Lal himself, Bhullar and other villagers and all of them were told about the incident but Sant Das who had accompanied him to the pace of incident had told entire details about the occurrence to Chunni Lal and other villagers and also told the names of persons who were involved in the said incident. He had telephoned S.O. Manikpur and told him about the incident and also disclosed the names of the accused persons. Police had come to the place of incident in the night itself where villagers were already present. He had not gone to the place of incident, hence he could not have told about the incident. He had not gone with the police. What actions were taken, he could not tell. Attention was drawn towards abovementioned statement of this witness by the learned counsel for the appellants and it was argued that his above statement is self contradictory as well as in contravention with other witnesses who have stated to have accompanied him at the time when he had gone for defecating and thereafter having heard sound of fire, had proceeded towards near the place of incident because this witness, on one hand has stated that he proceeded from the village towards place of incident after hearing fire shots while the other witnesses have stated that they proceeded towards the place of incident from the place where they were defecating. It is an important contraction and would make the presence of this witness at the place of occurrence to be doubtful. Subsequently, this witness has stated that he had not gone to the place of incident, hence could not tell anything about the incident and also stated that he had told the names of the accused to the Inspector, Manikpur which appears to be false statement because had that been correct, there could be no possibility of the Inspector not having entered the names of all the accused in the FIR.
56. Further he stated that at the place where he was defecating, he had reached at 6.00 p.m. On either side of the river, there is bank of the river. The width of river must be around 200 meters where they were defecating and from there the place of incident was not visible. For defecating, they remained seated for about 15-20 minutes, separately and after having become free from it, all of them had not assembled together. At the time when they had become free it must have been 7.30 p.m. and rest of his companions had also become free by then and thereafter they had gone to take water and there they had heard 7-8 rounds of fire and thereafter they had reached near the place of incident and then again he heard 2-4 fires. Apart from these fires, he also heard about 50 fires within 10-15 minutes thereafter.
57. He had neither enmity nor friendship with Dadua gang and the said gang had never come to him nor had he participated in any 'Bhandara' or other programme conducted by the said gang because he used to fear the miscreants. His statement was recorded by the Investigating Officer 4-5 days after the incident in village. He further stated that he had not told about the incident to the family members of the deceased because their nephew had accompanied him. Further, he had stated that when he had proceeded from the place where they had gone for nature's call towards the place of incident, by that time it had become dark. He had no torch with him nor anyone of his companions had any torch. The attention was drawn by learned counsel for the appellants that this was also in contradiction with the statement of other eye witnesses because they had stated that they were having torches and one fire arm with them.
58. Further, he had stated that the place of incident was not visible from the place where they had gone for defecating. When they had reached there, tractor was not burning. There was light of torches and not from the burning of tractor or diesel. The place where tractor was standing, a little away from there, all the four including him, had concealed themselves in bushes and had seen the incident from there although there were bushes between the tractor and the place where they had concealed themselves. Further, he had stated that when they had concealed themselves in bushes nothing was visible only light was visible and after having concealed themselves, 4-5 fires were also made, who had made them, he could tell. He further stated that which miscreant was having which weapon he could not tell although there were 10-11 miscreants. The dead bodies of the deceased were near the rear wheel of the tractor and the dead bodies were not visible prior to their being set on fire and they had not heard any sound of groaning at the said place.
59. Learned counsel for the appellants had argued stating the above evidence that this witness has admitted that nothing was visible from the place where they concealed themselves in bushes except some light and it is admitted by him that he could not tell as to who was making fire and there were 10-12 miscreant which shows that his statement is not in conformity with the statement of other eye witnesses who clearly stated that they could see from the said place the accused and their number was also stated by them to be about 30-40 persons, therefore, it was argued that the testimony of this witness cannot be held to be believable in respect of having seen the deceased having been murdered and having been set on fire by the accused and it was merely on the basis of conjecture that he had stated that there were 10-11 miscreants who had given effect to this incident.
60. Further this witness has stated that he remained concealed for about 15 minutes in the bushes and thereafter he saw that after giving effect to the incident, the miscreants fled towards southern direction and due to it being dark, some weapons of miscreants could not be seen. He denied that all the four witnesses were concealing themselves in one bush while he had reiterated that none of them had any weapon. He further stated that Sant Das and Ram Dayal had not taken their licensee guns to the place of incident and if the Investigating Officer has recorded in his statement that they had taken the same, he could not tell as to how the same was written. All the four accused had returned home at about 7.45 p.m. from there. He has further stated that he did not tell about the incident to informant Munni Lal or his family members because Rajendra Mishra was present on the spot who is son of Chunni Lal. Further he had stated that the police had arrived in the night of the occurrence but he was not called for his statement and his statement was recorded about 3-4 days after the incident, when the Investigating Officer called him in village itself and prior that he had not made any discussion about this incident with any one. He has stated it to be correct that when all the four witnesses were returning from the place of incident, the family members of the deceased and other villagers were assembled in school and there were around 50-60 persons all included. He had not told about the incident to any one there nor does he know whether his three companions had told about it or not. He further denied the suggestion that he had not seen the incident and because of being of the same village and due to enmity he had given statement against the accused.
61. Further, this witness has stated that he did not have any licensee gun at the time of incident although now he has the same, license for which was obtained by him in the year 2008. He had stated that Sant Das, Ram Dayal and Rajendra Mishra had earlier not gone together for the nature's call, it was only sometimes they used to go together for defecating. He denied to know parentage of the accused and stated that he does not know the reason how in his statement, Investigating Officer has recorded the parentage of the accused. He had informed the police at about 8.30 p.m. Further, he has started that when he was returning from the nature's call, on way he had given information to police.
62. Further he has stated that he had mobile number of the Inspector from before because he used to go to Manikpur and the same was written on the wall of the police station. He had informed the Investigating Officer that Dadua gang had given effect to the incident but had not told names of the accused. Further he has stated that in the statement to Investigating Officer he had given names of some members of the said gang, roughly names of 10-11 members were told which were Dadua, Angad, Radhey, Tehsildar, Bhonda @ Gotar, Ram Sagar, Naththu (Raju) Chhota, Aniruddha, Munsi and none else was known to him, who were at the place of incident.
63. Accused Ashok Kol is resident of adjacent village Chamroha whom he did not know since prior to the incident but his companion Ram Dayal had enmity towards him. Now he knows Ashok Kol. At the time of incident, he was away, hence he did not known him and also did not know where he used to live. Further, he had stated that at time of incident, mother of Ashok Kol was Pradhan of village Chamroha. He knew Sunil, Phool Chand and Hira Lal all residents of village Cherulu since prior to the occurrence and also knows Hari Shankar Tiwari of his village. He has no knowledge whether the gang had given effect to this incident all of sudden or was there any prior enmity between the deceased and the gang. Dadua gang was not coming to his village although it used to visit Chamroha but in whose house it used to go, he could not tell.
64. At what time the dead bodies of the deceased were lifted from the place of incident, he had no knowledge. The burnt tractor was taken away from there on the next day i.e. 12.8.2006 as he was told about it by someone whose name he does not remember. He used to meet Rajendra almost daily prior to the incident and on the next day of incident also he had met him in the morning in the village. He had met his father Chunni Ram 3-4 days after the incident who did not enquire anything about the incident as he had already known about the occurrence.
65. On the date of incident it was dark. He has further stated that the place where the incident happened, was situated about one k.m. away from his village. He further stated that on 2.4.2007 he had given statement before the court that this incident was given effect to by Dadua gang and he had not disclosed the names of any accused except that of Dadua. Chunni Lal had not met him when he had lodged the report and nothing was told to him by him and for the first time today he was taking the names of the accused in the court. The accused who were in jail, their identification was not got done from him. Learned counsel for the appellant argued that stating the names of the accused before the court for the first time is an improvement by this witness and if he knew the names of the accused, he would have certainly given those names to the informant as well as Investigating Officer at the time of lodging the FIR and again it was emphasized that his testimony is unbelievable and should be discarded.
66. PW-3, Rajendra Mishra has stated on 13.10.2011 that the incident took place about five years back. On the date of incident, at about 7 p.m., he had gone for nature's call with Ram Dayal Tiwari, Aditya Tiwari and Sant Das Mishra towards Bardaha river at Ramghat, he immediately after being free from nature's call heard shots of fire from the southern-western direction of Akahra Har, hearing which they reached the place of incident taking cover of bushes and just before reaching 20-25 steps prior to the place of incident, he again heard 20-30 fires and saw that the dead body of Harish Chnadra was burning and the dead body of the Munshi Lal was being dragged by the miscreants and was thrown upon the dead body of Harish Chandra. The diesel was thrown upon both the dead bodies by way of firing the diesel drum which was placed on the cultivator and towards right side of the tractor, near it both the dead bodies were burning and even tyre was burning and due to that there was lot of light. Fire flames were rising high and in the light of these flames, he saw that the dacoit Dadua- deceased, Radhey, Tehsildar, Bhonda @ Gotar, deceased-Angad, Rajua Chelwa, Hari Shankar, Phool Chandra, Heera, Ashok, Sunil, Munshiwa, Ram Sagar and Anirudha and all were wielding guns at the place of incident and Hari Shankar had made a fire in front of him which hit body of the tractor. He does not know whether his uncle Munni Lal had any animosity with the miscreants. Munni Lal had with him his licensee gun and cartridges in a belt and he had seen the said gun and the cartridges being lifted by the Dadua. The miscreants had halted at the place of incident for about half an hour. The accused present in court namely Radhey, Tehsildar, Bhonda, Ram Sagar, Munshiwa and Ashok were seen by him firing as well as setting the deceased persons on fire and after about half an hour all the miscreants left towards Chirbal Pahad. Thereafter, they all returned home and Aditya gave information to the P.S. by mobile-phone and his father Chunni Lal gave written report at the police station. He stayed within his house for about two days subsequent to the incident because of fear and on the third day at about 12 O' clock in the day, he met his father. Police had taken his statement. He is illiterate therefore, he had stated before the Investigating Officer what he had seen.
67. In cross-examination, this witness has stated that the informant Chunni Lal is his father while deceased Munni Lal was his uncle and other deceased Harish Chandra @ Bhakku was the son of his real uncle. At the time of incident, his father and his uncle, were living apart after partition but they had good relations with each other and belong to the same caste i.e. they were all Brahmans and at the time of incident, he had good friendship with them and all the four (eye-witnesses of this case) used to go together for nature's call about which he had stated to the Investigating Office also. They used to go for nature's call together since four to five years prior to the incident but he could not tell the reason as to why they used to go for the said purpose towards Ramghat Bardaha only. Both the Ghat were adjacent to each other and they used to go for the said purpose in the evening around 7:00 p.m. regarding which he had not spoken to the I.O., he could not tell its reason as to why he did not state so before the I.O. From his village- Mau-Gurudari, the place where they had gone for defecating, distance is the same which would be the distance of Railway Station from the court. Thereafter, he gave reply to the court on query that the place where both, his uncle and his son were killed, was away from the place of defecating equivalent to the same distance, which is the distance between the court and the station. At the time of hearing the sound of firing, how many persons had assembled in the school of his village, he could not tell. When he returned from the place of incident, a large number of villagers were assembled in the school of village, but he had not seen any of them, he had come to know about this subsequently and he could not know about this fact even today as to how many people had assembled there. After the incident, all the four had returned together. Ram Dayal, Aditya and Santdas had stayed in the school while he had returned home directly. He had not seen these two persons as to where they had remained during night. At about 8:00 p.m., they had reached the school. He could not tell the reason why he did not go with them (the other three) to school. Thereafter, he stated that because of fear he did not stay in school. When he was going for defecating, after becoming free, he had heard 20-25 fires from the side of place of incident, but he was not feeling scared and had reached near the place of incident. When he reached there he saw that the miscreants were standing but had not seen them firing; just after four to five minutes after the fire, he had reached the place of incident. When he had gone for defecating, he had hardly taken two to three minutes for the said purpose and they might have taken two to three minutes in becoming free from the nature's call and soon after it they again heard the sound of fire and soon after that they proceeded towards the place of incident. He had gone for nature's call at about 7:00 p.m. and had come back home by 8:00 p.m. and also had stayed at the place of incident for about half an hour. They had not gone to the place of incident running rather had gone at leisurely pace and were proceeding in that direction in crouching position and sometimes they used to be straight also and they could see ahead for about 30 paces. When they were proceeding towards the place of incident, from the place where they were defecating, it must have been four minutes to 8:00 p.m. From the place where they were defecating and from where they proceeded towards the place of incident, throughout the passage, there were small bushes and at some place, there was open field. The bushes were at a distance of one to two paces.
68. Further, he has stated that Dadua, Angad, Radhey, Tehsildar, Bhonda @ Gotar, Ramsagar, Munshiwa, Phool chand, Ashok, Sunil, Heera, Aniruddh and Hari Shankar used to live with gang all along, but he had not seen them giving effect to any incident till now except the present incident. In his knowledge, no litigation was contested against these persons nor does he have any knowledge of the fact that all these persons were resident of Chamrauha, Sakrauha and Gauraiya villages. They live in their respective villages even today. After having witnessed the incident, he did not go to lodge any FIR at police station- Manikpur nor anyone had lodged the same till three days nor he disclosed about this incident to his father till three days, although the informant of this case is his father Chunni Lal and the deceased was his real uncle and his uncle's son. When he returned home after the incident, his father had not gone out in his relation, rather was present at home. After the incident, when he returned home, his father had gone for lodging the report same night in which he had mentioned the name of Dadua gang but had not mentioned the name of any accused. The S.H.O. of Manikpur had come to his house after the incident and had met all the villagers there including him and his father. He had told everything about the incident. He was also inquiring from everyone there but he does not know as to what others had told him. About three days after this incident, the police had taken him, Aditya, Sant Das, Ram Dayal to P.S. where it had taken his statement but he does not know where the statement of other witness were recorded, although they belong to the same village and caste. He denied the suggestion that the other three witnesses belong to his family and he was concealing this fact deliberately.
69. Aditya Narayan was married in Chamrauha in the house of Zamahil Paroha. The aunt of Ram Dayal was also resident of Chamrauha and they also have relations in Gauraiya village; accused Ramsagar is resident of village Gurdaru and was living at present in Sakrauha and these are Majras of Chamrauha village. Accused Munshiwa, Radhey, Ashok Kol, whether they work as labour at the place of Phool Chand, he could not say and further denied that they used to do work of labour there or were his servant and that because of old enmity with Phool Chand, he has falsely implicated them. He further denied the suggestion that Phool Chand, Ramsagar and others were involved in this incident nor were they ever member of the said gang and further denied the suggestion that on the date of incident he had not gone for the defecation with others, who are named above nor had seen any incident and was giving false statement under pressure of police as well as due to enmity. He further denied the suggestion that he had not seen the incident and that is why the names of the accused were not mentioned in the F.I.R. because had he seen the incident, he would certainly have then mentioned the names of accused in the F.I.R. and further denied the suggestion that his father had also not seen the incident because of which he mentioned in the F.I.R. the name of Dadua gang only. He has further stated that on making complaint in respect of Dadua, he, Ram Dayal, Ram Sushil, Munshiwa, Munni Lal Mishra, Santdas and Panchanan were issued license by the District Magistrate, he has no official information with regard to the number of members of gang of Dadua and that apart from Dadua gang, there were other gang also who used to roam in the jungle. His village is situated in jungle area. On the date of incident, at what time Munni Lal (deceased) and his son (deceased) had gone to take diesel to Manikpur, he does not know but he was stating about this fact because he had seen that the diesel was kept on the cultivator/tractor. How many days after the incident, the tractor was taken away from the place of incident, he has no knowledge. At that time, pradhan of his village was Mohan. The pradhan of village Chamrauha was mother of accused Ashok and Natthu Dhaturaha was Kotedar of the said village; what was the relation of Ram Dayal with the Kotedar, he has no knowledge; Sasural (matrimonial home) of uncle of Ram Dayal is situated in village Chamrauha and the Nanihal of witness Ram Dayal was also in Chamrauha. The accused Phool Chand and Hari Shankar are maternal uncle (mama) and nephew (bhanja). He has no knowledge as to whether there was any litigation going between him and Hari Shankar. Sundar Lal Tiwari is his grandfather, whether he had filed any case or not, he has no knowledge. He could not say whether Dhaturaha Kotedar is grandfather of Ram Dayal or not, nor does he have any knowledge whether prior to the incident, the mother of accused Ashok had got the kota of Nathu Dhaturaha, who is relative of Ram Dayal, cancelled or not, or whether at all it was cancelled. He further stated that three years prior to the incident, he was having enmity with the Dadua in respect of repair of a gun. Prior to this incident, Dadua gang had taken shelter in the house of accused and had meals there or not, he has no knowledge. Further he has stated that neither he nor other witnesses namely Ram Dayal, Sant Das and Aditya Narayan had made any complaint in respect of the Dadua gang halting at the place of accused. Lastly, he has denied the suggestion that he had not seen the occurrence and was giving false statement and further asserted that all the persons had assembled near school in the village and further denied the suggestion that at the instance of police, he was taking names of Rahey, Tehsildar, Gotar.
70. PW-4, Ram Dayal Tiwari, has stated in examination-in-chief that on 11.8.2006 at about 8:00 p.m., he along with Aditya Narayan Tiwari, Sant Das Mishra and Rajendra Mishra had gone for the nature's call at about 7:00 p.m. towards Bardaha river at Ramghat, where after becoming free from it, as they were about to leave back for the village, they heard sound of fire coming from the southern-western direction, pursuant to which concealing themselves, they headed towards that place and from at a distance of about 30-35 steps, he saw that fire was burning and lights of tractor were on (the head light and the rear side light). One dead body was being placed by the miscreants by the side of the right wheel of the tractor. The miscreants had made fire upon the drum which was kept on the cultivator, out of which, diesel was leaking and the fire was burning intensely which made a whole area well lighted and in the light of flames of fire, he saw Dadua Gang comprising Dadua, Angad, Chelwa, Ramsagar, Radhey, Tehsildar, Gotar and many persons of Chamrauha, Sakrauha namely Heera Tiwari and 16 to 18 others. The miscreants were firing. He stayed there for about quarter of an hour only and kept witnessing the incident. The miscreants after having given effect to the incident, went towards Chiraul Pahad, he along with others did not make any noise because of fear and when they were returning towards village, all the people of the village were present including family members whom they told that Munni Lal Mishra and Harish Chandra were killed by Dadua gang by fire arm and, thereafter, they were burnt with the help of diesel which was kept on the cultivator of the tractor. Aditya Narayan Tiwari gave information to the police of police station Manikpur. His statement was recorded by the investigating officer, whom he had told all the facts which he was narrating before the court today. He further stated that the accused, who were present in court, he knows them and that they had committed the said offence.
71. In cross-examination, this witness has stated that at that time, there was gang of Munni Lal @ Khadag Singh in the said jungle and also there were gang of Chukki Yadav, Thokiya Gang, Rampa Yadav Gang and there was no dearth of these gangs in the said jungle because he used to hear names of all these gangs but he did not have any connection with them nor had he visited them nor any person of these gangs had come to him ever. Mau-Gurdari village is surrounded by dense jungle by the side of river Bardaha, which has very dense bushes. He possess a double barrel licensee gun.
72. At the time of incident, he could not identify any miscreant. On the date when the incident happened, he was in the village and the date was 11.8.2006. The name of his village is Mau-Gurdari and the place of incident was 1.5 km away from his village and the place of incident was located towards south-west of his village. The river Bardaha does not flow through the said village, rather the same flows towards the west of the village at a distance of about 500-600 metres. The place of incident is about 75-80 metres away from the said river and the place of incident is situated towards east of the said river and towards south-east of the said river is a wall which was meant for carrying water. In the eastern direction also, there is eight feet high wall. On the date of incident i.e. on 11.8.2006, from about 7:00 p.m. till 8:00 p.m., he was between the Bardaha river and the place of incident. From that mid point, the river was at a distance of about 50-55 metres then he stated that the place where they were defecating, from there the place of incident is about 250 metres away. They were four men and all of them were sitting for defecating and had not taken any vessel (Lota) with them, they were namely, he himself, Sant Das, Aditya Nrayan, Rajendra Prasad Mishra and all of them were having their own licensee guns also. They were defecating around 6:30 p.m. and had left for the said purpose at about 5:00 p.m.. It was right to say that in the entire process of the nature's call being over including the time that they had taken in sitting there and talking to each other etc., it must have taken about 1:30 hours time. Further he has stated that all the four persons used to go there only for the purposes of nature's call.
73. This witness has further stated that the Investigating Officer has recorded his statement next date of the incident at about 2:30 p.m., whom he had told that Dadua gang had murdered Munni Lal and Harish Chand and had not told anything else nor the I.O. had made any other query from him. At that time, he was inside his house. The same inspector had also come to his village with 7-8 persons on the date of incident in the night at about 12 O' clock and stayed in the village for about four hours and also near the dead bodies, thereafter, he stated that inspector stayed in the village for about half hour and, thereafter, went near the dead bodies. Further, he stated that thousands of the people of village had gone near the dead bodies. Rajendra Das had not come near the inspector. Rajendra was called by the Inspector through someone but he had not gone there. He and other villagers had told the inspector that the said incident was given effect to by Dadua Gang and none else. When the inspector came in the night at about 12:30 a.m., all of them had gone on foot to the place of incident, where they reached in 10 to 15 minutes. Thereafter, he stated that all of them including police personnel had reached the place of incident running and when they reached there, they found burnt tractor and two dead bodies. When for the first time, they reached the place of incident, they found that both the dead bodies were lying there and a burnt tractor was parked nearby, then only they could know that the Munni Lal and Harish Chandra were murdered and not prior to that. This was told by inspector to him that Dadua gang had killed Harish Chandra and Munni Lal, thereafter, he stated that he and others had told the inspector about this that the said incident was given effect to by Dadua gang only. Further he stated that they had reached the place of incident even prior to the inspector reaching there and Rajendra, Sant Das and Aditya Narayan had also accompanied with the Inspector to the place of incident, prior to that they had not gone there. Further he stated that when they were hearing fire from the village, at that time, only Aditya Narayan had telephoned the inspector informing him that the miscreants were firing in the jungle and that Harish Chandra and Munni Lal had been murdered. Four hours after making phone call, police reached the school where all the villagers had assembled; when police reached the place of incident, Chunni Lal, real brohter of Munni Lal and four sons of Chunni Lal were also present. He did not see whether Chunni Lal or his sons had given anything in writing to the inspector. When they had reached the place of incident, it had become dark and without torch nothing could have been seen. The inspector and many others had switched on their torches, in the light which they all had seen that Munni Lal and Harish Chandra were lying in burnt condition. It was right to say that at the place of incident, there was only a passage for bullock cart, it being very dense forest and that eight years prior to this occurrence, he had seen Dadua gang and not in the meantime. He knew Dadua, Nakua, Angad, Rajua but Radhey was not there. Teshildar was there. He knew these persons because they used to come in the village for canvassing. In his village, they had come twice for the canvassing, during which they had told that they belong to the said gang. He did not know them personally. On 12.8.2006, at about 4:00 am, both the dead bodies were sealed by the inspector and by jeep were taken to police station Manikpur along with Chunni Lal. Chunni Lal reached the village on 13.8.2006. Further this witness has stated that it was being talked in his village that Dadua gang had only given effect to this occurrence and no other gang. Further this witness has stated that the deceased persons had no enmity with Dadua gang, although it could be possible because they were having license for guns, the said gang might have felt annoyance with them. We people used to remain cautious. Eight years before the incident, when parliamentary election had taken place, Dadua had come to the field and had beaten up his uncle but by that time, vote had already been cast and he had also tried to snatch his gun. All the persons, who were having licenses, the said gang was having enmity with.
74. Thereafter, this witness has again stated that in the nature's call, they might have taken about 15 minutes time. Further this witness has stated that Phool Singh Vs. State, case was pending in which he had come for giving statement. In his earlier statement, he had stated that at the time of incident, there was enough light, in which people could be seen moving about and could be identified by their face. Further he stated that it was right to say that no body could be identified by his face and denied that he was giving false statement and that he had seen the incident and denied to have given statement against the accused under police pressure and also stated that the police had not got any identification made by him of the accused persons.
75. Dr. Mani Ram Ambedkar (PW 5) stated on oath in examination in chief that on 12/08/2006 he was posted at District hospital, Chitrakoot as medical officer, on that day constable no. 225 Amarnath and constable no. 146 Suraj Bali of PS Manikpur had brought a sealed dead body for post-mortem along with relevant papers and after verifying the papers it was found that the dead body was of Munni Lal son Dwarika Prasad resident of Maugurdari, PS Manikpur District Chitrakoot, aged about 16 years, whose post-mortem was conducted by him on 12/08/2006 at 2:30 PM and found that he had died about one day ago; the dead body had shrunken and following ante- mortem injuries were found on his person: -
1. Badly charred whole body with a pugilistic attitude.
2. Upper limbs and lower limbs badly burnt out of skin superficial, facial muscles and bones burnt, line of redness present.
3. Lacerated wound 3 cm. ×3 cm. × bone deep put on right side of face, margins are inverted, 3 cm. lateral to right angle of mouth.
4. Half of the left side of skull absent, brain material protruding out.
5. Lacerated wound 4 cm. ×4 cm. but on left side of neck 2 cm. on lateral to medial end of the left clavicle, margins are inverted.
6. Lacerated wound 5 cm. ×5 cm. × chest cavity deep put on left side of chest, margins are inverted, 7 cm. below the left axilla.
7. Lacerated wound 4 cm. ×4 cm. × abdominal cavity deep but on left side of skull 14 cm. below the interior angle of left scapula, margins are inverted.
8. Lacerated wound 9 cm. ×6 cm. × abdominal cavity deep, but on the left side of the abdomin vertical. Intestine protruding out just above iliac bone.Tasnsverse.
76. The cause of death was found to be shock as a result of ante- mortem burn and fire arm injuries. These injuries were possible to be received on 11/08/2006 at 7:45 PM. He proved this post-mortem report as Exhibit ka 1.
77. On the same day constable Amar Nath and constable Suraj Bali had also brought deceased Harish Chandra alias Mukkhu son of Munni Lal Mishra aged about 26 years, resident of Maugurdari in sealed condition along with relevant papers and his post-mortem was conducted the same day at about 3 PM by him and he was found to have died one day before the post-mortem. He found following ante- mortem injuries on his person: -
1. Badly charred whole body with a pugilistic attitude.
2. Upper limb and lower limbs badly burned skin superficial facial muscles and bones burnt, line of redness present.
3. Lacerated wound 4 cms ×4 cms × chest cavity deep, below right side of chest, just below right axilla, margins everted.
4. Lacerated wound 10 cms ×9 cm × abdominal cavity deep on right side of abdomen, 7 cm below to the right intestine protruded out. Tranverse.
The cause of death was found to be shock as a result of ante-mortem burn and fire arm injuries.
78. The post-mortem report was proved as Exhibit Ka 2 by this witness and also stated that his death could have been done on 11/08/2006 at 7:45 PM by firearm injuries as well as the burning in fire.
79. This witness in cross examination has stated that the condition of both the dead bodies was such that they could not be recognised. On the body of deceased Munni Lal there were 3 entry wounds and injury no. 1 and 2 could have come due to burning and he had 3 firearm injuries. He further stated that the direction of injury no. 3 could be from downward to upward, the said injury could also be parallel. From how much distance the said injury would have been caused, was difficult to state, however it could have been caused from a distance of around 15 - 20 feet. Further, he stated that he had not mentioned the direction of injuries. The direction of injury no. 5 and 6 could have been from higher to lower side and these injuries could have been caused by the assailants upon the deceased from a height but could not have been caused if he was standing parallel to him. Further, he stated that if the assailant was in standing position while the deceased was in lying position, these injuries could not be received. Further he stated that if the assailant makes a fire in crouching position and the accused would have been in a standing position, these injuries could have been caused. Further he stated that if the deceased was lying with his stomach down and the assailant was in standing position, these injuries could have been caused from a distance of 10 - 15 feet.
80. He further stated that there was no smell of diesel or petrol emanating from the dead bodies. The deceased Munni Lal might have consumed meals 5 - 6 hours prior to his death and not just 1 - 2 hours. The period of death of the deceased could have been of 6 - 8 hours prior to the conducting of post-mortem, but in a burnt case, it is difficult to pinpoint the time of death, because the death could occur within half an hour of being burnt.
81. Upon the dead body of Bhukku just one injury of firearm was found and not many. There was only one entry wound and one exit wound of firearm, the direction of which was from higher side to lower side and that the said injury could have been caused to him had he been in lying condition while the assailant would have been in standing position or in sitting position.
82. Further he stated that these injuries were possible to have been caused from a distance of about 15 - 20 - 25 feet. Further, he stated that in wind-pipe of the deceased there were found carbon particles, therefore he could not have stated with exactness as to whether at the time of being burnt the deceased were alive or not.
83. He further stated that both the deaths might have been caused within 24 hours of the conducting of post-mortem, but he could not ascertain exactly as to whether both the deceased had died of firearm injuries or due to burn injuries. Upon the dead body of both the deceased only one cloth each was found, hence it could not have been said as to on which part of the body the said cloth was worn.
84. Suraj Mishra son of Geeta Prasad has stated as PW 6 that the incident had occurred 7 - 8 years ago when his grandfather, Munni Lal had been murdered. He further stated that his grandfather Chunni Lal (first informant) was present in house with him. The information in respect of the incident after reducing it into writing was given by him at police station in accordance with his knowledge, whatever he had written in the report was written as was told by his great-grandfather. Further he stated that Munni Lal had enmity with Dadua only and written report was given by him at the police station in his handwriting, which was signed by him as its writer and Chunni Lal had got it written ; he identified Chunni Lal's signature upon it, which is Exhibit Ka 3. He also proved the recovery memo of bloodstained soil (Exhibit Ka 7), recovery memo of the soil which was soaked with diesel (Exhibit Ka 8) and the recovery memo of the cartridges recovered from the spot which is Exhibit Ka 9.
85. In cross-examination this witness has stated that he had written only the report but he does not have any knowledge about the incident. His grandfather Chunni Lal had told him only about enmity with Dadua because of which FIR was lodged. The day on which the incident happened, he along with his grandfather Chunni Lal was at his house situated in Manikpur.
86. Two persons had come from the police station to his house, out of whom one was a police personnel and the other one was PRD Wala, who had stated that the inspector was calling him and when he reached at the police station, the inspector told him that his grandfather Munni Lal and his cousin brother Harish Chandra alias Bhukku had been murdered. Further he stated that he had not gone to the place of incident till about one year of the incident. The inspector had obtained his signatures at the police line or police station on all the papers. He had not received any phone call nor Chunni Lal had, about this incident, nor had he received any information in that regard from anyone, whatever he came to know, could be known only from the police station, further he has stated that the written report was written by him sitting outside the police station on Bench and at that time inspector was not available there and he along with his grandfather only were present there. The inspector had asked as to upon whom he had suspicion, to which his grandfather stated that he had enmity only with Dadua and had no enmity with any other miscreant of the area and on the basis of this enmity, the written report was got lodged. He further stated that till date he had no knowledge as to who was made accused by the inspector in this case nor the villagers had told him anything about the incident. After having seen all the three accused who were present in court namely, Radhey, Rohani and Tehsildar, he could not tell as to whether they were involved in the murder of his grandfather or not nor any information was given to him about the incident by Ram Dayal, Aditya Tiwari, Sant Das and Rajendra Prasad.
87. First of all we would like to consider the FIR particularly in respect of the fact about non-mentioning the names of the accused persons therein despite the fact that the eye witnesses of this case have stated to have seen the incident and yet the names of the accused persons were not mentioned in the said FIR. This point was mainly emphasised by the learned counsel for the appellants and it was argued that the evidence which has come on record would show that in the FIR the name of Dadua and men of his gang has been mentioned on the basis of conjectures only and not as per the actual incident having been witnessed by the eye witnesses. It was also emphasised that since Dadua Gang was operating during the time when this incident occurred, it was probably guessed by the prosecution side that men of his gang including Dadua might have killed the deceased persons while in fact there was no eye witness.
88. It is apparent from the record that first informant namely Chunni Lal has not been examined in the present case though he was examined in the separate SST No. 226 of 2006 (State vs. Phool Chand and others), but as per legal position in normal circumstances, his evidence could not be taken into consideration in the SSTs which are concerned in the present appeal, however, as pointed out by the learned counsel for the appellants that this being death reference, the said statement could be taken into consideration for the limited purpose of assessing the correctness of the incident.
89. In the present SSTs to prove FIR Suraj Mishra as PW6 has been examined who has clearly stated that he had written FIR; whatever was told to him by his grandfather, Chunni Lal (first informant) who had enmity only with Dadua was written by him in the report. He is not an eye witness of the incident. In the night of incident, his grandfather Chunni Lal was in his house at Manikpur. In the night, two persons from, Police Station had come to his house informing him that he was being called by the Inspector whereon he reached the police station and he was told by the Inspector that Munni Lal and his cousin brother Harish Chand @ Bhaggu had been murdered. Neither he nor Chunni Lal had received any phone call in respect of the incident and for the first time he could come to know about the incident only at the police station. The Inspector had also asked them as to whether he had any doubt upon any person who might have committed the murder on which Chunni Lal had told him that he had enmity only with Dadua and none else and on the basis of the said enmity the first information report was got lodged and he did not know the name of any accused nor their names were told to him by any of the villagers or family members. He also stated that Radhey, Rohni, Tehsildar who were present in court, whether they had murdered the deceased, he does not know. He also stated that Ram Dayal (PW4), Aditya Tiwari (PW2), Sant Das (PW1) and Rajendra Prasad (PW3) had not given any information to him with respect to this incident.
90. From the above statement, it becomes evident that this witness who is scribe of the FIR, has clearly admitted that the name of Dadua was mentioned in the FIR only on the basis of enmity with the deceased and that he was not informed by any of the eye witnesses mentioned above with respect to accused who had committed this offence and it also becomes clear from his statement that he could come to know about the incident only after the Inspector of the said area had apprised him about the incident.
91. Now we would have to see as to whether the eye witnesses mentioned above i.e. Sant Das (PW1), Aditya Narain (PW2), Rajendra Mishra (PW3) and Ram Dayal (PW4) had actually seen the incident and were present on the spot.
92. It may be mentioned here that all these four witnesses have stated that they had gone for nature's call from their houses situated in village Maugurdari towards Bardaha river at about 7.00 p.m. in the evening and were about to return after having become free from nature's call, they heard sound of firing there which came from southern-western direction and thereafter proceeded towards place of incident and by the time they had reached near the place of incident which is shown by letters 'E' & 'F' in the site plan, they had seen the incident from there taking cover of bushes. It was vehemently argued by the learned counsel for the appellants that the testimony of these four witnesses was not believable because there are number of discrepancies with respect to fact as to whether they had come to the place situated near the place of incident from where they had stated to have seen the incident directly or had they gone to the village after having defecated and after hearing sound of fire, they proceeded for the place where they have stated to have taken cover of bushes and to have seen the incident. Therefore, their testimonies are not inspiring confidence and need to be discarded. It was also stated that reference is also made in their statements of having reached the school situated in village Maugurdari where they all assembled, the location of the said school in village Maugurdari has not been indicated in the site plan but it was argued by the learned counsel for the appellants that it was stated to be towards western side in the village and from there the place of incident is said to be 100 meters away towards west. It was also argued that the places where these witnesses had gone for defecating, have not been shown in the site plan near Bardaha river. It was also argued that from the place of incident, the distance of abadi of village Mauagurdari is shown to be one and half kms. towards east and the distance of abadi of village Gram Piyasi is shown to be one and half kms. towards south west and that of distance of abadi of Gram Garwa is shown more than one km. towards north. The place where the incident has happened is shown by ''A' where the deceased are stated to have been fired upon and 20 paces towards south of it is shown by ''B', where the tractor was burning and nearby that are shown the places shown by letters ''C' and ''D' where two dead bodies were lying. It is argued that the distance between the places shown by ''A' and ''B' where the incident happened and the places shown by ''E' & ''F' where the witnesses were stated to be present and to have seen the incident, which was an area covered with small bushes, was 25-30 paces. It was argued that it was not possible for the witnesses from such a distance to have seen the incident and to have recognized the accused persons making fire upon the deceased or burning their bodies and that it was on the basis of conjectures that they have stated that actually it was the men of the gang of Dadua whom they had seen giving effect to this occurrence that names of some of these accused have been taken by them as persons whom they knew from before because they used to visit the village. Pointing out towards this statement, it was also argued that if these persons had seen these accused persons giving effect to the occurrence and knew them from before, what prevented them from disclosing their names to the first informant and from mentioning their names in the FIR in the column of accused, and since their names do not find mention in the FIR, it should be concluded that these witnesses were making untrue statement to have seen the incident and only because of Dadua gang being operative in that area, it was conjectured that it might have committed these offences, hence they have stated that the accused-appellants were among those who actually gave effect to this incident, being members of Dadua gang.
93. Sant Das (PW1) has stated that after becoming free from nature's call, when they were about to return home they heard sound of firing which was coming from southern-western direction and as soon as they reached near the place of incident, already 30-35 fires had been made. They had seen the incident from cover of bushes which were 25-30 paces away and had seen whole gang of Dadua comprising Dadua, Rathey, Tehsildar, Bhonda @ Gotar , Nathuwa , Chelwa, Raju, Phool Chand, Sunil, Ashok, Hari Shankar and many others who were all armed with weapons, whom he knew as they used to come and once they had abducted him also. When they reached near place of incident, he saw that rear wheel of tractor was burning and from its light it was seen that a drum of diesel was kept on cultivator which had holes in it and in the light of burning of tyre of rear wheel of the tractor and in the light of the tractor, they had identified the accused. Munni Lal after getting hit by fire, fell down behind the tractor. The dead body of Harish Chand was burning while Munni Lal was groaning. Four accused namely Phool Chand, Hari Shankar, Sunil and Ashok had fired upon the deceased after coming close to him and thereafter he was dragged and was placed upon the dead body of his son. The diesel of drum had caught fired in which both the dead bodies were burning. All the accused had made fires, sound of which was heard by him but had not seen them making fires. Gun of Munni Lal was lifted by Dadua and after having stayed there for quarter of an hour, they saw that the accused went towards southern direction. All of them were assembled in the school of the village, where they had told about the incident and thereafter information was sent to the police station.
94. In cross-examination he has stated that on the date of incident, it was pitch dark. He and Ram Dayal had torches with them which were not lighted by them. The distance from the place where they were defecating to the place of incident was about one km. towards south, from where sound of fire was heard by him. From that place, the place of incident was not visible. However, only light was being seen and not the place of occurrence. At the time of fire being heard, he had full doubt it must have been gang of Dadua only which had once abducted him also which must have committed this offence. They did not make any fire. From the place from where they heard sound of fire, village must have been around 100-150 meters but they did not go towards village nor had they gone to village in order to tell the villagers about this incident nor they called the villagers to state that fire was being made because they were trying to be convinced whether they were fires by police or by miscreants or someone else. Had they been convinced that the fire was being made by the miscreants, they would also have made fire. They had reached the place from where they witnessed the incident concealing themselves in the cover of bushes. They had discussed among themselves that one of their companions had gone to the market, hence they ought to go to the place of incident to see whether the incident was happening against him. About 10-15 minutes time must have been taken in reaching near the place of incident from the place from where they were defecating and when they had reached just before 22-25 paces were left for the place of incident, from there the place of incident had become visible. The place where they had heard the sound of firing, from there the place of incident was about 25-30 paces away; which miscreants were committing this offence, he could not know. The place where incident has happened, the passage is 15 ft. wide; from the Ghat where they were defecating till their reaching near place of incident, they did not hear any sound of fire. At the place from where they had seen the place of incident, they had heard 5-6 fires. They had not made any fire upon the miscreants from the place where they were hiding. As soon as they had reached the place where they were hiding they had come to know that it was Dadua Gang which was firing. They were hiding towards east of the place of occurrence, about 20-25 paces away where there were little bushes. To the north of tractor, dead body of Munni Lal was lying while west of the said tractor, the dead body of Harish Chand was burning. At the time when they reached there, the dead body of Munni Lal was not burning rather he was groaning on the ground and prior to reaching there, both of them had already been fired upon and after having reached there, 10-15 minutes thereafter the miscreants set the dead bodies on fire. Thereafter, this witness had modified the statement stating that the place from where they were witnessing the incident was 8-10 paces away and the accused could not have seen them. About 8.00 p.m. and 8.30 p.m. they had reached home and there he gave information of the incident to the family members of the deceased at the school and it was also told that four persons had made fire upon the deceased and that the dead body of Munni Lal was dragged and was placed on the burning body of Harish Chand. He had stated to the police that 30-35 persons armed with guns, out of whom four were making fire upon the deceased Munni Lal and after dragging him he was placed upon the burning dead body of the deceased. The entire statements of this witness are full of discrepancies with respect to hearing sound of firing and place of occurrence having been seen from the distance where they were concealing themselves. This witness has admitted that by the time he reached near the place of incident, fire had already been made upon the deceased, therefore his statement is found to be self contradictory with respect to having seen four accused who have not been named to have fired upon the deceased although he has stated that 30-35 persons were there armed with guns at the place of incident belonging to Dadua gang. He has admitted that it was pitch dark, therefore, in our assessment it would be very difficult to have witnessed the incident particularly identification of the accused in the light of fire which is alleged to be there because of burning of rear wheel of tractor as well as the tractor's light. It is common knowledge that tractor light would always focuss in front of it and not the side ways. This witness has stated to have concealed himself in bushes towards eastern side of the place of incident while the passage on which the tractor was stopped and incident happened is going north to south, therefore, the light of tractor could not have lighted the area nearby the said tractor, side ways where the incident is reported to have happened of making assault on the deceased and setting them on fire by the accused persons. It is also argued that the light of burning tyre would form huge smoke of the kind which would make visibility further low and silhouette would not be sufficient to identify the accused. We find substance in this argument of the learned counsel for the appellants that the light in which it is being stated by this witness to have seen this incident, does not inspire confidence. Further, the fact that this witness had seen the incident for about half hour and thereafter he went to the village to inform about the incident to the relative of the deceased and yet no names of the accused were disclosed by him to be involved in the incident, is illogical. Had he seen the incident, he certainly would have told the names of the accused to the family members of the deceased and consequently their names ought to have been mentioned in the FIR and therefore, we find that the names of the accused were being taken by him only on the basis of their being the members of the gang of Dadua. We do not find the testimony of this witness credible with respect to having seen the incident.
95. Aditya Narain (PW2) who was also with Sant Das (PW1) at the time of defecating has stated that after hearing sound of fire, when they proceeded towards the place from where fires were being made, just 25-30 paces before the place of incident, he saw that members of the gang of Dadua made fires upon Harish Chand and Munni Lal, dead bodies of both of them were lying near rear wheel of tractor. On the cultivator of the tractor, drum full of diesel was kept on which fire was made, as a result of which diesel had spread towards dead body of Munni Lal and Harish Chand and miscreants put fire to it by which the said area became quite lighted and the light of the tractor was also on and in the light of both, he had seen Dadua, Angad, Radhey, Tehsildar @ Rohni, Chhota Patel, Munshia Kol, Raju Kol, Anirudhdha Yadav, Bhonda @ Gotar, Ashok Kol, Ram Sagar and Sunil. He knew them from before because they used to visit there. The place of incident was 50 paces away from Bardaha river and village was situated towards east at a distance of about one and half kms. He had seen the occurrence from a distance of 30 paces. The miscreants were known to him for last 17-18 years who were armed with rifle and other weapons but he had not seen them making fire because the deceased had already been shot dead before their reaching there. He had seen them firing upon the drum. The miscreants had made fire in his presence. He was present on the spot for about half hour. The double barrel gun of the deceased Munni Lal along with cartridges had been taken away by the miscreants and thereafter they had left towards Pahar and he with his companion went to his village and would give information to the family members of the deceased as well as other villagers and also informed by mobile phone to P.S. Manikpur. He also identified Radhey, Tehsildar, Bhonda @ Gotar in court, who have remained involved in the incident.
96. In cross examination, this witness has stated that he is unaware as to who were members of Dadua gang but was recognising Radhey, Tehsildar and Rohani because they were in jail for last three years. This would indicate that he did not know the accused and was naming them only because they had been seen in jail. This witness had further stated that he does not recollect the names of those persons who had told him about the incident, however, on the basis of what had been told by them, he was stating before the Court. The statement of this witness appears to show that he was not eye witness as per his own admission. Again, this witness has stated that they had gone for the nature's call at about 5.00 pm without having any gun i.e, empty handed which is again in contradiction with the other eye-witnesses' statements because there was statement made by PW1 that all the four witnesses had gone for nature's call together and one of them had a gun. This witness has further stated that after hearing sound of firing, they had proceeded from village Maugurdari towards place of incident and had heard about 50 fires, all the four witnesses Ram Dayal, Sant Das, Rajendra Prasad and he himself had gone there and had returned from there and thereafter they stayed for whole time in school situated in the village, where Chunni Lal and the wife of Munni Lal were present, apart from other family members, whom he had told about the incident. This statement would show that the version of the prosecution that all the four witnesses had gone for the nature's call towards Bardaha river and from there they had gone near the place of incident after hearing sound of fire, stands belied because according to above statement of this witness, they had heard sound of fire in the village Maugurdari and from there they had proceeded to near place of incident from where they had seen the incident. Further, this witness has stated that Sant Das who was with him, had told Chunni Lal and other villagers about the incident including the names of the accused and had also told on telephone to S.O. Manikpur about incident whereon police had come on the place of occurrence in the night where all the villagers were present. He himself had not gone to the place of incident, therefore, he could not tell about the incident nor had he accompanied the police to the place of incident because of which he could not tell what proceedings were done by the police. This statement is also self contradictory as well as in contravention with the statement of scribe Suraj Mishra because Suraj Mishra has stated that he came to know about the incident from the police for the first time and not by this witness while according to this witness police had arrived at the place of incident on phone being given to the police by his companion Sant Das. Further, It is also beyond comprehension as to when this witness had spoken to police about the names of the accused and why the names of accused could not be mentioned in the FIR. It is also beyond comprehension as to why this witness did not accompany police to the place of incident in the night when according to him police had come there in the night. These anomalies make this witness's statement to be questionable. This witness has further stated that the place where they were defecating, from there the place of incident was not visible. They had become free from nature's call in 15 to 20 minutes and it was 7.30 p.m. by then when they had heard 7-8 fires and thereafter when they reached near the place of incident they heard 2-4 fires further and apart from these fires, about 50 fires were also heard within 10 to 15 minutes. From the place where they were defecating and the place of incident is 500 meters away and from the said place of defecating, they reached near the place of incident by concealing themselves in jungle. This statement also seems to be in contravention with his above given statement that firing was heard by them in village Maugurdari and from there they had proceeded to near the place of incident, hence there is inconsistency in the testimony of this witness with respect to his having seen the incident.
97. The next eye witness PW3 Rajendra Mishra has stated that he had heard the sound of fire when he had gone for nature's call near Ramghat and after hearing the same taking cover of bushes, they reached near the place of incident which was about 20-25 paces away from the place of incident and after having reached there they heard 25-30 fires and saw that the dead body of Harish Chand was burning and dead body of Munni Lal was being dragged and was being placed on the dead body of Harish Chand by the miscreants. The miscreants had spilled diesel after making fire upon the drum full of diesel which was kept on the cultivator of the tractor, upon the dead bodies and put it to fire which resulted in diesel catching fire apart from burning of the of the dead bodies of the two deceased. In the flames of the fire so generated, there was enough light in which he had seen Dadua dacoit (deceased) Radhey, Tehsildar, Bhonda @ Botar and Angad (deceased), Rajua, Chelwa, Harish Chand, Phool Chand, Hira, Ashok, Sunil, Munshia, Ram Sagar, Aniruddha who all had guns in their hands and he had seen Hari Shankar making fire which hit the body of the tractor. It has also stated that he had seen that Radhey picked up the gun of the deceased. He stayed there for half an hour and had seen the accused Radhey, Tehsildar, Bhonda @ Gotar, Ram Sagar, Munshia and Ashok putting fire and also making fire shots. After half hour, these miscreants proceeded towards Chilbal Pahar. Thereafter, they had come home and Aditya had given information to the police station and his father Chunni Lal had given Tehrir at the police station. He remained at home for two days continuously because of fear and he talked to his father on the third day about 12 noon.
98. In cross examination, this witness has stated that when he returned from the place of incident, people were assembled in the school, he did not stop there although his companion Ram Dayal, Aditya and Sant Das had stayed there. When he reached the place of incident, the miscreants were standing there. He had not seen the firing because they had reached there 4-5 minutes after the fire. Dadua, Angad, Radhey, Tehsildar, Bhonda @ Gotar, Ram Sagar, Munshia, Phool Chand, Ashok, Sunil, Hira, Aniruddha and Hari Shankar used to always remain with gang but he had not seen them with the gang nor had he seen them causing any incident except the present one. After having seen the incident, he did not go to lodge FIR at Police Station, Manikpur for three days nor he made any FIR nor he told about the incident to his father although informant Chunni Lal is his father and the deceased is his real uncle and Harish Chand is his cousin brother. This conduct of the witness does not inspire confidence that despite being so closely related to the deceased, he did not lodge any FIR, nor had he told anything about the incident to his father which is quite abnormal. He has admitted in the statement above that he had not seen the deceased having been fired by any of the accused who have been named above by him as he had reached there subsequent to the firing although he is claiming to have seen the accused having burnt bodies of the deceased by diesel and putting fire to it. His testimony also does not inspire confidence in respect of his having seen the occurrence.
99. The last eye witness Ram Dayal Tiwari (PW4) has stated in examination-in -Chief that when they had gone for nature's call and heard fire at about 8.00 pm on 11.8.2006 they proceeded towards the place where fire was being heard and saw from a distance of 30-35 paces concealing themselves that fire was burning and front and real lights of the tractor were on. One dead body was kept by miscreants towards right wheel of the tractor and miscreants had made fire on the drum of diesel kept on the cultivator because of which diesel started flow out of it and caught fire and there become a lot of light there due to flames, in which he saw the men of Dadua gang, comprising Dadua, Angad, Chelwa, Ram Sagar, Radhey, Tehsildar, Bhonda @ Gotar and many persons of Chamroha Sakroha, Hira, Lal Tiwari in all 16-18 persons. The miscreants were making fires. They stayed there for quarter of an hour and continued to witness the incident whereafter the accused fled to Chiraul Pahar. They did not make any noise because of fear and when they went towards village they found the villagers were present there including their family members, whom they apprised that Munni Lal and Harish Chand had been killed by men of Dadua Gang and their dead bodies were burnt by diesel kept on the tractor and by the mobile, an information was given to P.S. Manikpur by Aditya Narain, He identified the accused persons in the light. This witness in cross-examination has stated that he did not recognize any miscreant at the time of incident. The incident happened in dense forest. All the four witnesses had guns with them when they had gone for nature's call. The SHO had come there in the night of incident itself about 12.00 O clock and stayed there for four hours near the dead bodies. All of them including the villagers had told the Inspector that the incident was done by Dadua Gang and thereafter all of them had gone to the place of incident on foot and found the tractor in burnt condition and both the dead bodies were also in burnt condition. Then only they could know that Munni Lal and Harish Chand were killed and not prior to that to which the Inspector had told them that Dadua Gang had murdered Harish Chand and Munni Lal and he subsequently changed his statement to the effect that they had told the Inspector that the incident was caused by Dadua Gang. They had not gone to the place of incident prior to coming of the Inspector. Rajendra, Sant Das, Aditya Narain had also accompanied the Inspector to the place of incident and prior to that they had not gone to the place of incident. When they were hearing sound of fire in the village, right then Aditya Narain of the village had telephoned the Inspector saying that miscreants were making fire in the jungle and that Harish Chand and Munni Lal had been killed. After having made the said phone, about four hours thereafter, all the people of village had assembled in the school and when police reached the place of incident, real brother of deceased Munni Lal i.e. Chunni Lal and his four sons were present. He had not seen Chunni Lal or his sons giving anything in writing to the Inspector. When they had reached the place of incident, it was absolutely dark and without light of torch nothing could be seen and the Inspector had shown them after lighting the torch that Munni Lal and Harish Chand were lying there in burnt condition. At the place of incident there was a Kachcha passage for bullock-kart and there was dense forest on either side. He had seen Dadua gang eight years ago and knew Dadua, Nakua, Angad and Rajua, Tehsildar because they used to come for canvassing in the village, since thereafter he had not seen them. The above testimony of this witness also does not inspire confidence because in cross examination he has clearly stated that he could not identify the accused. It also appears that there is discrepancy in his statement with respect to having seen the accused making fire upon the deceased because according to him they had reached there after the fires had already been made upon the deceased rather the dead bodies were in the process of being burnt. He has claimed to know the accused named-above from before only on the basis that he had seen them earlier also eight years ago when Dadua gang had come for canvassing there and not thereafter. Eight years ago is a long time and in the light of fire which is alleged to be there on account of burning of diesel, it does not appear feasible that this witness could have identified the accused as to who was dragging the dead body of Munni Lal for being placed on the dead body of Harish Chand. His statement is not found to be confidence inspiring in this regard.
100. From the statement of all the four eye witnesses, the relevant parts of whose statements are discussed above, it appears that all the witnesses were not eye witnesses of the incident. They appear to have heard sound of fires in the jungle where incident is stated to have taken place, from long distance and after hearing the fire, they appear to have guessed that it would have been caused by gang of Dadua who might have killed the two deceased who had gone out for taking diesel because the said gang was operative in the said area in those days. It is only after the incident had happened they appear to have gone there with the police and found that the two deceased were murdered and their dead bodies were set on fire. We reach this conclusion only because there are huge discrepancies in the statement of these eye witnesses of the incident as well as scribe of the FIR in respect of lodging the FIR and place of incident had been seen by them from the distance which is being stated to be 25-35 paces away. We have strong doubt that these witnesses could have seen the deceased being burnt after having been killed by the accused-appellants. None of the witnesses has stated to have seen the accused having made fire upon the deceased and whatever evidence has been given from the side of the prosecution indicates that they have tried to depose that they had seen the two deceased being set upon fire by the miscreants, which does not appear to be feasible to have been seen in the light of diesel fire. It also appears to us that only because of suspicion the names of these accused appellants appears to have been taken by the witnesses because they were supposed to be the members of Dadua gang, but the suspension how so ever strong, cannot take place of proof. It was required of the prosecution to prove beyond doubt that the accused persons had been seen by the witnesses murdering the deceased and thereafter setting them on fire but that has not been done.
101. From the side of Learned Government Advocate, a list of members of gang of Radhey @ Subedar son of Mithai Lal Kurmi, resident of village Sapha, P.S. Kotwali, Kavri, District Chitrakoot (HS No. 120A) which is known as 1S-112 has been provided in which the names of seven hard-core members of the said gang and 18 adhoc members of the said gang have been mentioned among whom three accused namely Radhey @ Subedar son of Mithai Lal, resident of village Sapha, P.S. Kotwali Karvi, Bhonda @ Gotar son of Bhairo Chamar, resident of Ahira, P.S. Raipura, P.S. Raipura Rohni @ Tehsildar son of Shiv Mohan Kurmi, resident of Unna Banna, P.S. Raipura, all belonging to District Chitrakoot are shown among hardcore category members of the said gang while accused Phool Chand Kol @ Langra son of Vishnoo, resident of Daooa Majra Khandeha, P.S.Mau, Sunil Kumar son of Mewa Lal Brahman, resident of Chamroha, P.S. Manikpur both resident of Chitrakoot have been shown to be adhoc members of the said gang and it was argued that this gang was being led by Dadua and it was vehemently argued that because of fear of that gang, no one used to come forward to depose against them and that there was sufficient evidence on record to hold the accused-appellants guilty despite the fact that, there were several deficiencies/discrepancies in the statement of witnesses as they should be taken to be natural one, because such kind of discrepancy may occur when statements of witnesses are recorded at distant point of time.
102. We are not inclined to accept the argument of the learned G.A. with respect to the discrepancies found in the statements of witnesses because severer the punishment, tougher must be the scrutiny of evidence which is adduced from the side of prosecution to prove its case against the accused beyond reasonable doubt, more so in a case where death penalty has been awarded.
103. Although it is beyond doubt that the two deceased have been killed and their post-mortems were conducted which have been proved by PW5 Dr. Mani Ram Ambedkar but nothing much has been argued by the learned counsel for the appellants in this regard. It was pointed out by them that on both the dead bodies, line of redness was found present, therefore, it was stated that this shows that at the time when they were burnt, they might have been alive and could not be said with certainly that prior to their being burnt, they had been killed. Hence, it was further argued that the incident might have taken place in some other manner than in the manner as stated by the prosecution. We do not want to enter into this aspect of the case as to whether prior to the deceased being burnt, they were alive or not because this argument was probably made to highlight that if they were alive prior to being burnt, they would have screamed out loud but that would not lead us to draw different conclusion than what we have already mentioned above. The fact stands that both the deceased have been killed which is beyond doubt, what was important in this case was for the prosecution to prove beyond doubt that it was the accused-appellants who actually had caused their death and we have not found on the basis of prosecution evidence, proved beyond doubt that actually accused-appellants were the persons who had killed them.
104. After having made a meticulous and in depth analysis of the evidence which has come on record, we are unable to convince ourselves with the finding given by the trial court on the basis of believing the testimonies of four eye witnesses of this case because we find their testimonies full of number of lacunas/discrepancies with respect to material aspects/circumstances and after having scrutinized the whole evidence of these eye witnesses, we have come to the conclusion that their testimonies do not inspire confidence as they do not appear to have seen the incident with their own eyes, strongest proof of which is that had they seen the occurrence, the names of the accused certainly would have been mentioned in the FIR, which is not the case in hand and it is also apprehended that none of them had seen the accused-appellants making fire upon the deceased and we have found that it was not feasible for these witnesses to have seen the incident particularly when the accused-appellants are alleged to have given effect to the incident in the night hours when there was complete dark, only in the light of fire which is said to have taken place on account of fire having been made upon the drum of diesel as well as the fire arising out of burning of tyre of the tractor, more so from a distance which is being stated by these witnesses from where they have seen the incident. Had they been present there, there would be strong possibility of their being fired upon by the assailants as well. It appears that these witnesses have come to know about the incident only when it had already taken place in the middle of jungle on a lonely passage and thereafter they had reached there with the police and had found dead bodies of the deceased as well as the tractor in damaged condition and pursuant to that on the basis of conjecture, FIR appears to have been lodged in this case against Dadua gang.
105. In view of the foregoing discussions, the finding recorded by the trial court awarding death sentence to the three appellants namely Bhonda alias Gotar, Rohini alias Tehsildar and Radhey, is against the evidence on record and also the conviction and sentence of appellants Ramsagar and Munshiwa is not proved beyond reasonable doubt by prosecution. Therefore, t8he judgment and order dated 07.05.2016 passed by Special Judge, D.A.A Act/Additional Sessions Judge, Court No. 4, Chitrakoot, is hereby set aside. The death sentence reference made by the trial court for confirmation of the sentence of the appellants Bhonda alias Gotar, Rohini alias Tehsildar and Radhey thus stands rejected.
106. In view of the aforesaid, the accused Bhonda alias Gotar, Rohini alias Tehsildar, Radhey involved in SST No. 240A of 2006 (State vs. Bhonda alias Gotar and others) arising out of Case Crime No.53 of 2006 under sections 148, 302 read with section 149, 201/149, 404/149, 429/149 IPC and section 14 D.A.A. Act, accused Ramsagar involved in SST No. 240B of 2006 (State of U.P. Vs. Ramsagar) arising out Case Crime No. 53 of 2006 under sections 148, 302 read with 149, 201/149, 404/149, 427/149 IPC and section 14 D.A.A. Act and accused Munshiwa involved in SST No. 240A of 2006 arising out of Case Crime No. 53 of 2006 under sections 148, 302/149, 201/149, 404/149, 427/149 IPC and 14 D.A.A Act, Police Station Manikpur, District Chitrakoot are acquitted of the above charges, if they are not detained in any other case, they shall be set at liberty forthwith subject to their furnishing bail bonds in terms of section 437-A, Cr.P.C. to the satisfaction of the court concerned. A copy of this judgment be transmitted to the trial court forthwith for immediate compliance along with original record of this case.
107. The appeals stand allowed.
Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date :- 15.2.2019 AU/A.P. Pandey