Allahabad High Court
Jawahar Singh vs State Of U.P. on 28 February, 2013
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
COURT NO. 35 RESERVED/AFR
Criminal Appeal No. 2740 of 2001
Jawahar Singh son of Jwala Prasad Singh resident of Seer Goverdhanpur, police station Lanka, District Varanasi.
..... ..... ...... Appellant
Versus
State of U.P.
...... ...... ..... Respondent
Counsel for the appellant: Sri J.S. Senger, Senior Advocate assisted by Sri Raghavendra Dwivedi, and Sri Prabhuji. Amicus Curiae
Criminal Appeal No. 3214 of 2002
Virendra Singh son of Tej Bahadur Singh, resident of village Bhikari Pur, Police Station Mirza Murad, District Varanasi.
...... ....... ........ Appellant
Versus
State of U.P.
....... ....... ......... Respondent
Counsel for the appellant: Sri J.S. Senger, Senior Advocate assisted by Sri Jitendra Kumar.
Counsel for the respondent: Sri Ram Yash Pandey, A.G.A.
Counsel for the complainant: Sri Murli Dhar Mishra, Advocate
(in both the appeals)
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
(Delivered by Justice Anil Kumar Sharma) Both the aforesaid appeals emanate from the common judgment dated 1.8.2001, passed by Additional Sessions Judge, FTC Jaunpur in S.T. No. 203-A of 1984 and S.T. No. 39 of 1998, arising out of crime no. 57 of 1984, under sections 147, 148, 302, 307 and 109 I.P.C. P.S. Jalalpur, District Jaunpur, so they have been heard and are being decided together. Each appellant had been found guilty for the offence punishable under sections 148, 307/149 and 302/149 IPC and had been sentenced to undergo rigorous imprisonment for one year, three years and imprisonment for life respectively. Fine of Rs. 10,000/- each has also been imposed for the offence under section 302/149 IPC with default stipulation. All the sentences have been directed to run concurrently.
2. Succinctly, stated the facts giving rise to the present appeals are that Chirnjivi Rai son of Raja Ram Rai resident of village Lakhmipur, P.S. Jalalpur, District Jaunpur submitted a written report at 2.30 a.m. on 8.5.1984 in P.S. Jalalpur, wherein he stated that on account of election rivalry Hari Shankar Rai of his village was killed in the night of 24/25-3-1984 and in the criminal case he along with his younger brother Mewa Prasad Rai and one Ram Sevak Kurmi were nominated as accused. The report stated that due to this enmity in the night of 7/8-5-1984 at about 1.00 O'clock Uma Shankar Rai, Rama Shankar Rai, Madhav Shankar Rai, Satya Prakash Rai, Rakesh Prakash Rai, Gyan Prakash Rai @ Munna, Jai Prakash @ Lallan, Sri Prakash Rai @ Babban, Mahendra Prakash @ Lala, Chandra Bhan Singh, Jawahar Singh and Virendra Singh (present appellants) along with 4-5 other persons came at his house. The informant was sleeping at the door of his house, the ladies were also sleeping there. At the door a lantern was lighting and there was electric light at the pumping set of Sita Ram. Whispers of movement of these persons woke up the complainant and he saw that Jawahar Singh and Virendra Singh (present appellants) were armed with guns, while Daya Shankar Rai, Satya Prakash Rai, Mahendra Prakash Singh and Jai Prakash Rai were carrying country made pistols in their hands and the remaining accused were armed with lathis and ballams. Accused persons exhorted and challenged them to take revenge of the murder of Hari Shankar Rai and discharged shots from fire arms causing injuries to Mewa Prasad Rai, Manoj Kumar Rai, Smt. Ramkali @ Kagna, Manbhawati and informant's relatives Atma Rai and Achhaibar Singh. The complainant ran towards the jack-fruit tree and set ablaze the sarpat. When the accused failed to locate the informant then they said to see their sureties and went to the house of Sita Ram Rai and inflicted fire arm injuries to Smt. Dulari, Basmati, Manraji, Pyari, Dhan Devi, Sanjay Kumar @ Mammu, Thakur Prasad Rai, Shashi Kala and Ram Kumar. Thereafter the accused persons proceeded towards the house of Ram Sevak Kurmi but he could not be found as there was no one at his house. The accused then came to the house of Uma Shankar Rai and started hurling abuses to the complainant. It was noted by the complainant that the condition of the aforesaid injured was serious. The incident was witnessed by Udai Bhan Rai, Gulab Rai, Keshav Prasad Rai and Ram Sevak Kurmi in the light of torches and lantern, electric light and flames of sarpat. The report further stated that on account of fire arm injuries Atma Ram, Achhaibar, Ram Kali @ Kagna, Smt. Dulari, Smt. Basmati, Smt. Pyari, Manraji, Dhan Devi and Sanjay Kumar @ Mammu have succumbed to the injuries on the spot. After incident the accused persons made their escape good.
3. On the basis of this report case crime no. 57 of 1988 under sections 147, 148, 302/149, 504, 506 IPC was registered at the police station, the investigation whereof was taken up by SHO Yogendra Singh. He sent S.I. Lallu Ram Bhaskar and other police officials to the spot. In the morning of 3.5.1984 inquest reports of deceased Akshaybar Singh @ Reeshu, Dhan Devi and Manraji were prepared by S.I. Bhaskar. S.I. Sankatha Prasad was deputed to prepare inquest of other deceased. The injured were sent by the police for medical examination. Dr. Hari Shankar Singh PW-5 had medically examined Manoj Kumar, Smt. Manbhawati Devi and Smt. Mithlesh on 8.5.1984 at 3.20 a.m. 3.45 a.m. and 7.30 a.m. respectively and found the following injuries on their person:
Manoj Kumar - 8.5.1984 at 3.20 A.M.:
1.Firearm wound of entrance 3 cm x 2 cm x bone deep on outer aspect of right arm 17 cm, below the top of right shoulder. Bleeding from wound present.
2.Firearm wound of 12 cm x 3 cm x muscle deep connecting to injury no. 1 on middle part of right arm 18 cm below the right shoulder. Bleeding present underlying bone fractor. Advised for x-ray.
3.Firearm wound of entrance multiple in number each side 0.5 cm x .5 cm x muscle deep on right side chest 5 cm below the right nipple in area of 5 cm x 4 cm bleeding present.
In the opinion of doctor all the injuries were caused by firearm and referred for x-ray. The duration of injuries was fresh within of one fourth day old.
Smt. Manbhawati - 8.5.1984 at 3.45 A.M.:
1.Fire arm wound of entrance 4 cm x 2 cm x muscle deep on palmer surface of right hand. Extensively from root of right thumb to upward bleeding present.
2.Firearm wound of entrance 2 cm x 1 cm x muscle deep on palmer surface of right hand 4 cm away the injury no.1.
3.Firearm wound of entrance of 10 cm x 2 cm x muscle deep on abdomen 4 cm above the umbilicus horizontal in position. Bleeding from wound present. Margin irregular and torned. No smoky and charring present.
In the opinion of the doctor, all injuries are caused by firearm. All injuries are advised for x-ray. Duratioin of injuries was fresh within one fourth day old.
Smt. Mithlesh - 8.5.1984 at 7.20 A.M.:
1.Abrasion 2 cm x 1 cm on lower part of right ear.
2.Firearm wound of entrance size 0.5 cm x 0.5 cm x muscle deep on distal part of right Ist toe.
3.Firearm wound of entrance 0.5 cm x 0.5 cm x deep on right Ist toe 2 cm away the injury no.1.
4.Firearm wound of entrance 0.5 cm x 0.5 cm x muscle deep on left sole 7 cm away the root of left great toe.
5.Firearm wound of entrance 0.5 cm x 0.5 cm x muscle deep on right great toe distal part.
In the opinion of doctor, all injuries were simple and caused by firearm . Duration of injuries was within one/fourth day old.
4. Dr. S.P. Ram, medically Thakur Prasad, Smt. Shashi Kala and Raj Kumar on 8.5.1984 from 7.00 a.m. onwards and found the following injuries on their person:
Thakur Prasad Rai - 8.5.1984, 7.00 A.M.:
1.Incised wound 2 cm x 0.5 cm x skin deep on the palmer aspect of the middle of the right foot.
2.Firearm injuries in area 10 cm x 5 cm on the lateral aspect of the root of neck. Kept U.O. Adv. X-ray of the part. Ref. To surgeon for expert opinion. No blackening and tattooing was prersent.
3.Contusion 13 cm x 6 cm on the upper part of the right scapular region.
In the opinion of doctor, injury no. 1 was caused by sharp object which was simple, Injury no. 3 was caused by blunt object, Injury no. 2 was caused by firearm and kept under observation. Advised x-ray. The duration of all injuries was fresh.
Smt. Shashi Kala - 8.5.1984 at 7.30 A.M.:
1.Lacerated wound 13 cm x 10 cm x bone deep on the joint of right upper arm, leg including right elbow joint and kept under obervation. Advised x-ray of part.
2.Lacerated wound 10 cm x 3 cm x bone deep on the palmer aspect of the left hand. Little finger amputated from the base of the band, thumb of the left hand hanging frontier middle portion by skin flap. Advised x-ray of left hand.
3.Multiple lacerated wound in area of 5 cm x 5 cm on the right breat S.C. Advised for x-ray.
4.Firearm injuries 4 in number size .3 cm x .3 cm x skin deep on the lateral front of the right leg 2 cm below the right knee joint in area of 9 cm x 2 cm. No blackening, No tattooing present.
Injuries no. 1, 2 and 3 were kept under observation. Injury no. 4 was caused by firearm and rest were simple and fresh in nature.
Raj Kumar - 8.5.1984 at 8.00 A.M.:
1.Multiple lacerated wound in area 7 cm x 7 cm on the left side head just above the left ear. Kept under observation. Advised x-ray of skull and firearm injuries.
2.Abrasion 0.5 cm x 0.5 cm on the left side neck 4 cm below the left ear caused by firearm.
3.Firearm injury in area 9 cm x 6 cm on the anterior aspect of the right leg for 7 cm below the right knee joint. Kept under observation. X-ray was advised of right leg.
4.Firearm injury 2 in number in area 3 cm x 1 cm on the medial aspect of the middle of the right foot 3 cm below the right medical malleolos. Kept under observation. X-ray was advised.
5.Abrasion 3 cm x 1 cm on the medial aspect of the right thigh 2 cm above the right knee joint.
In the opinion of doctor all the injuries except no. 4 were caused by firearm and were kept under observation. The duration of the injuries was fresh. Injury no. 4 caused by friction simple.
5. The investigating officer recorded the statements of complainant, Kamla Rai and Udai Bhan. He also prepared the site plan, recovery memos regarding seizure of plain and blood stained earth from the spot. Statements of Keshav Rai, Ram Sevak Kurmi, Gulab Rai and Smt. Mithlesh were recorded on 9.5.1984. Thakur Prasad and injured Shashi Kala were interrogated on 10.5.1984. Accused Girja Shankar, Uma Shankar and Rakesh Prakash were arrested. The dead bodies of the deceased after preparation of inquest reports were sent in sealed cover for post mortem examination along with usual papers.
6. Dr. D.N.Tiwari conducted autopsy on the cadavers of Manoj Kumar, Achhaibar Singh, Mewa Prasad Rai, Manraji and Smt. Dhan Devi and has noted the following ante mortem injuries on their respective post mortem examination reports:
Manoj Kumar - 9.5.1984 at 8.50 A.M. :
1.Multiple small lacerated wound in area of 17 x 12 cm. at right side chest just below right nipple size 2 cm. not probed in diameter with blackening present.
2.Lacerated wound size 12 x 10 cm. humorous fractured blackening present. Vessels, Nerves cut Intervene wound, 8 cm. above elbow right bone deep.
3.Lacerated wound 3 cm. at right arm 12 cm. above elbow, outer side bone deep.
4.Abrasion 3 cm. x 2.5 cm. at right thigh outer side in middle.
In the opinion of doctor, death was caused due to shock and hemorrhage as a result of ante mortem injuries.
Achhaibar - 9.5.1984 at 9.30 A.M.:
1.Lacerated wound at right index finger, finger absent, size 3 cm. x 2.5 cm. through and through.
2.Lacerated 4 cm x 4 cm viscera deep at abdomen on 5 cm down to umbilicus.
3.Lacerated 4 cm x 4 cm at abdomen, 10 cm down to injury no.2. Blackening present.
4.Lacerated 6 cm x 3 cm at thigh in front present (upper part).
5.Lacerated 3.5 cm x 3.5 cm at left scrotum testicle outer.
6.Lacerated 4 cm x 4 cm at left perineum.
In the opinion of doctor, the death was caused due to shock and hemorrhage as a result of ante mortem injury.
Mewa Prasad Rai - 9.5.1984 at 10.30 A.M.:
1.Lacerated wound 6 cm x 6 cm at right chest nipple & Viscera deep.
2.Lacerated 4 cm x 4 cm at left side chest, Blackening present. Skin deep.
In the opinion of doctor, the death was caused due to shock and hemorrhage as a result of ante mortem injury.
Manraji - 9.5.1984 at 11.30 A.M.:
1.Lacerated 5 cm x 4 cm x viscera deep at right shoulder. Blackening present.
In the opinion of doctor, cause of death was due to shock and hemorrhage as a result of ante mortem injury.
Dhan Devi - 9.5.1984 at 12.30 P.M.:
1.Lacerated wound size 5 cm x 5 cm x viscera deep just below left nipple.
In the opinion of doctor, the death was caused due to shock and haemorrhage as a result of antem mortem injury.
7. Post mortem examination of dead bodies of Atma Rai, Sanjay Kumar, Smt. Kagna Devi, Smt. Dulari, Smt. Ram Piari and Basmati were conducted by Dr. C.K. Prasad PW-8 and he has found the following ante mortem injuries on their person.
Atma Ram Rai - 9.5.1984 at 8.30 A.M.:
1.Gun shot wound 2.5 cm x 2.5 cm over the right internal to post fold of axilla. Blackening present in area of 8 the wound No exit wound noted. Direction of wound in towards the left side chest. Margins of the wound are smooth.
2.Gun shot wound 6 cm x 5 cm over the right lower back. Right iliac crest. Blackening present all over the wound direction Anteriorly towards left, Margins of the wound and edges are inwards. No exit wound noted.
In the opinion of doctor, cause of death was due to excessive hemorrhage and shock as a result of ante mortem injuries to vital organs.
Sanjai Kumar Rai - 9.5.1984 at 9.30 A.M.:
1.Gun shot wound 4.5 cm x 4 cm over the right side chest 2 cm below. Right sterno clavicular joint and 2 cm away from the right sternum border blackening present all over the wound in area of 7 cm x 6 cm all around the margins and edges are smooth & inwards, direction of the wound in and downwards towards left. No exit wound noted.
2.Abrasion 2.5 cm x 2 cm over the outer aspect of left wrist Joint. Blackening present.
In the opinion of doctor, the death was caused due to ante mortem gun shot injury to vital organs resulting in excessive bleeding and shock.
Kangna Devi - 9.5.1984 at 10.30 A.M.:
1.Gun shot wound 8 cm x 5.5. cm over the left shoulder Region 3 cm internal to left shoulder tip. Margins of wound are lacerated edges inwards. Direction of wound inwards, obliquely towards right side chest. No exit wound noted.
In the opinion of doctor, the death was caused due to ante mortem injuries to vital organs resulting excessive hemorrhage and shock.
Dulari - 9.5.1984 - 11.30 A.M. :
1.Gun shot wound 12 cm x 6 cm over the left chin and Left side upper chest. Blackening present all over the wound. Wound was lacerated margins all over. No exit wound noted. Direction of the wound inwards downwards.
2.Lacerated wound 7 cm x 5 cm over front of left hand including left left wrist joint, muscles are lacerated all over blackening present all over.
In the opinion of doctor, the death was caused due to ante mortem injury over the vital organs resulting excessive bleeding and shock.
Ram Piyaree - 9.5.1984 at 12.30 P.M.:
1.Gun shot wound 6.5 cm x 5 cm over the right lower Back. 3 cm internal to right iliac crest. Margins of the wound are lacerated and edged inwards,, Blackening present all over wound. No exit wound noted. Direction of the wound inwards upwards towards the left.
In the opinion of doctor, the death was caused due to ante mortem gun shot injury to vital organs of the body resulting excessive hemorrhage and shock.
Basmati - 9.5.1984 at 1.15 P.M.:
1.Lacerated wound 13 cm x 7.5 cm over the right back of chest outer aspect including right upper abdomen. Obliquely placed, the post fold of axilla. Margins of the wounds are lacerated. Chest lacerated. Ribs are broken. Blackening present all over the wound. No exit wound noted.
In the opinion of doctor, the death was caused due to ante mortem gun shot injury to vital organs of the body resulting excessive hemorrhage and shock.
8. The investigating officer prepared following recovery memos from different places of incident:
i) Collection of plain and blood stained earth from the house Chiranjivi Rai (Ex. Ka-47);
ii) Collection of plain and blood stained earth from the house Sita Ram (Ex. Ka-48);
iii) Blood stained mattresses etc. from the cots found in the houses of Chiranjivi Rai and Sita Ram (Ex.Ka-49);
iv) Four empties from door of Chiranjivi Rai and three empty cartridges from the door of Sita Ram Ex.Ka-50);
v) Lantern lighting at the door of Chiranjivi Rai (Ex.Ka-51);
vi) Ashes of sarpat from the court-yard of complainant (Ex.Ka-52);
vii)Torches of Kamla Rai and witness Udai Bhan Rai (Ex.K- 53);
viii)Torch found near the dead body Atma Rai Ex.Ka-54);
ix) Torches of Keshav Rai and Gulab Rai (Ex.Ka-55);
x) Torch of witness Ram Sewak Kurmi Ex.Ka-56); and
xi) Torch of Ram Raj Ex.Ka-57;
The investigating officer after completing the other formalities submitted charge-sheet against the accused-appellants and 12 other accused persons.
9. Case against all accused persons except Jawahar Singh was committed to the Court of Session and was registered as S.T. No. 230/84. However, as accused Virendra Singh absconded, so case against him was separated as S.T. no. 230-A/84. Accused Jawahar Singh could be apprehended much later and his case committed to the Court was registered as S.T. no. 39/98. Cases against both the accused were tried together.
10. Charges for the offences punishable u/s 148, 302/149 and 307/149 IPC were framed against them separately, however, they abjured the guilt and claimed trial.
11. In support of the charges, the prosecution examined Chiranjivi Rai PW-1, Thakur Prasad Rai PW-2, Gulab Rai PW-3, Dr. D. N. Tiwari PW-4, Dr. Hari Shanker Singh PW-5, Dr. S. P. Rai PW-6, Dr. A. L. Gupta PW-7, Dr. C. K. Gupta PW-8, SI Yogendra singh PW-9, SI Sankatha Prasad Singh PW-10, SI Lall Ram Bhaskar PW-11 and Constable Asha Ram PW-12.
12. Both the accused in their separate statements u/s 313 Cr.P.C. have again denied the entire prosecution story stating that they have been falsely implicated in the case due to pressure of S.O. Yogendra Singh. Accused Jawahar Singh has filed his written statement stating that in the night of incident dacoity was committed in village Lakhimpur and neighboring village Purev by gang of Bhragu Nath and maliciously the incident had been converted by delayed report into murder by the complainant; that the accused is resident of Varanasi situated at a distance of 60-70 kilometers from the place of incident and had been discharging his teaching duties in the college; that he never absconded and the CB CID had also found him innocent; that inmates of the house have not been examined because the incident was committed by unknown persons and the police had fabricated evidence against the accused persons; that there was no source of light and he has been falsely nominated by the complainant as there was enmity between him and Yogendra Singh.
13. In defence Constable Ram Avadh Yadav DW-1, Constable Ram Jiawan Yadav DW-2, Record Keeper of Police Record Room, Jaunpur Anil Kumar DW-3, and Constable Avadh Behari Yadav as DW-4.
14. The learned trial Court after hearing the parties counsel had convicted and sentenced both the accused-appellants as indicated in para-1 of the judgment. Aggrieved, they have come up in appeal.
15. We have heard Sri Jagdish Singh Sengar, learned senior counsel for the appellants, Sri Prabhuji, Amicus Curiae for accused Jawahar Singh, Sri R. Y. Pandey, AGA for the State and Sri M. D. Misra, counsel for the complainant at length and perused the original record of the case carefully.
16. Learned counsel for the appellants has argued the following points before us:
i)that the FIR is ante-timed;
ii)that there was no immediate motive for the accused to commit the crime;
iii)that the appellants were not known to witnesses but no test identification parade was held;
iv)that the presence of alleged eye witnesses is highly doubtful;
v)that the witnesses examined in the case are highly partisan and interested witnesses and no independent witness had been examined;
vi)that there was no light at the scene of occurrence;
vii)that the incident has not taken in the manner as alleged by the prosecution;
17. Per contra learned AGA has contended that the alleged incident took place at about 1 a.m. on 8.5.1984 in which 11 persons were killed and five others were injured, the report of the incident was promptly lodged at 2.30 a.m. with the police and investigation immediately started without delay; that witnesses of facts examined in the case are eye witnesses of the incident and one of them Thakur Prasad PW-2 is an injured witness; that there was light of lantern, electric bulb, torches and sarpat was also fired; that both the accused-appellants are named in the FIR and were known to the witnesses from before so there was no occasion to hold any test identification parade for them; that the eye witness account of the incident finds full corroboration from the medical evidence so any lapse or defect in investigation would not affect the prosecution story. Learned counsel for the complainant has argued that 13-other accused pertaining to the case were tried by the Court, out of which seven co-accused were convicted and six were acquitted by the trial Court. The appeals of convicted accused namely Criminal Appeal no. 465 and 466 of 1996 had already been dismissed by this Court vide judgment dated 9.5.2005. He has further contended that accused Virendra Singh was granted parole by the Court in the year 1986 and he could be arrested only in the year 1998 and the case against accused Jawahar Singh could be committed to the Court of Session in year 1998.
18. During the course of arguments in March, 2004, learned counsel for the appellants has filed Criminal Misc. Application 47917 of 2004 u/s 391/311 Cr.P.C. for summoning the following witnesses:
1.Sri Akshaybar Dubey, the then Dy. S. P., CB CID;
2.Sri Sankatha Singh s/o Sri Satya Deo Singh r/o Medhpur P. S. Jalalpur, District Jaunpur;
3.Sri Thakur Prasad Rai s/o Sri Vijai Bahadur Rai, r/o Lakhmipur P. S. Jalalpur District Jaunpur;
4.CW-1 Sri Vyas Muni Misra s/o Sri Ram Bachan Misra r/o Nauka Tola P. S. Panhar, District Deoria (Retired Inspector CB CID, Varanasi;
5.Sri Om Prakash Mani Tripathi, Ballistic Expert, Vidhi Vigyan Prayogshala, Lucknow (CW-2);
6.Sri Shailendra Singh, CW-4 the then Record Keeper in the office of Police, Jaunpur.
19. The application had been opposed by the State and the counsel for the complainant stating that it had been moved simply to delay the disposal of the appeals and the appellants are reiterating their dilatory tactics because earlier they had absconded for about 14-years to face trial in the case. At the time of hearing of appeals, learned counsel for the appellants requested for disposal of this application before hearing of the appeal. On 26.11.2012 after hearing parties' counsel following order was passed:
"In these circumstances, we are of the view that for just disposal of the application aforesaid it is necessary to hear arguments of both sides on merits of the appeal and then decision can be taken on the merits of the application."
The appeal is listed for hearing today, therefore, the witnesses can be directed to be summoned if required on hearing the appeal."
It is in this back ground that we propose to first dispose of the application of u/s 391/311 Cr.P.C.
20. Before we dwell upon to consider this application, it is necessary to mention that in this case 13-accused had already faced trial in S. T. No. 203 of 2004 and vide judgment dated 27.2.1996, accused Girja Shankar, Sri Prakash @ Babban, Daya Shanker, Gyan Prakash, Jai Prakash, Satya Prakash and Mahendra Prakash were convicted by the learned trial Court for the offence punishable u/s 148, 307/149 and 302/149 IPC, while accused Uma Shanker, Rama Shanker, Maya Shanker, Rakesh Prakash, Chandra Bhan and Aslam were acquitted. The convicted accused filed Criminal Appeals no. 465 of 1996 and 466 of 1996, while the State of U.P. Preferred Govt. Appeal no. 1139 of 1996 challenging the acquittal of aforesaid accused. All these appeals have been dismissed by a division bench of this Court vide judgment dated May 9, 2005. After going through the application and affidavit filed in support thereof, we find that it has been moved mainly on the ground that the trial Court during trial of S. T. No. 203 of 1984 had examined Sri Akshaybar Dubey as CW-3, Sri Vyas Muni Mishra as CW-1, Sri Om Prakash Mani Tripathi as CW-2 and Sri Shailendra singh as CW-4 as Court witnesses. It is trite law that every criminal case is decided on the basis of evidence adduced in that particular case. It would also apply to different criminal cases, may be pertaining to same incident if they are tried separately. The impugned judgment was delivered on 1.8.2001, therefore, during trial the defence was aware that the aforesaid witnesses had been examined as Court witnesses in the earlier decided case pertaining to this very incident, but no effort was made on their behalf to get them summoned as Court witnesses or examine as defence witnesses. In the instant case the check-up report of CB CID was summoned by defence and for that purpose Awadh Behari Yadav DW-4 was examined, who has stated that no check-up report is available. He has proved the report of Inspector Uma Shanker Misra as Ex.Kha-3, who has submitted a report dated 3.11.2000 to the trial Court intimating that entire record pertaining to the investigation of the case had already been submitted to the Court along with case diary, charge-sheet and other documents. He has further noted that no check-up report was prepared in this case. The trial Court as well as this Court in their judgment have discussed the evidence of these witnesses and have found that CW-1 Vyas Muni Mishra was not authorised to investigate the case. As regards present appellant Jawahar Singh, the observation of the Court was as under:
"On the other hand one of the accused Jawahir Singh had moved an application about his false implication in the case and there was an order for checking-up investigation and on the basis of this application he had moved an application for further investigation of the case. So far as the involvement of the gun of Bhrigu Nath Rai is concerned, it has come in evidence that Bhrigu Nath Rai was killed in an encounter and his gun was deposited in the Maalkhana. It is not clear whether on the alleged time of occurrence, Bhirgu Nath Rai was in possession of the said gun or not. CW-1 Vyas Muni Mishra admitted in his evidence that he had obtained cartridges from Maalkhana in sealed condition and since the seal was not legible, therefore, he had affixed another seal on the earlier seal. Similarly the gun which was obtained from the Maalkhana was not sent in original seal. He had broken the seal and again affixed his own seal. The ballistic expert opinion (Ex.Kha-56) does not indicate that the cover of the cartridges, which were received, had two seals. This clearly indicates that CW-1 Vyas Muni Mishra, had broken the seal and again affixed another seal on the cover. Similarly the evidence of CW-2 O.P.N. Tripathi indicates that there is error in the seals on the cover of the packets. Learned Sessions Judge considered all the contradictions and manipulations in the evidence by CW-1 Vyas Muni Misra and rightly rejected the same and we are of the opinion that learned Sessions Judge was justified in rejecting the testimony of CW-1 Vyas Muni Misra, and in our opinion no reliance can be placed on his testimony. There is nothing on record to indicate that Bhrigu Nath Rai was instrumental in the crime. The argument of learned counsel for the appellants has no force and is rejected."
It appears that the learned counsel for the defence in the trial Court was aware of the depositions given by Court witnesses, therefore, he did not chose to request the Court to summon these witnesses u/s 311 Cr. P.C. Or examine any of them as defence witness. In these circumstances, we are not convinced that the deposition of aforesaid four witnesses is necessary for just disposal of the case. As regards summoning of Thakur Das as Court witness is concerned, he was examined during trial as PW-2, so he cannot now be summoned as a Court witness. The character of witness would remain the same and if any witness already examined by the prosecution is summoned as a Court witness, then the State counsel would also be entitled to cross-examine him as of right, which he cannot do without the leave of the Court. His deposition reveals that he was subjected to extensive and grueling cross-examination, which is contained in 18-typed pages. The position of Sankatha Prasad is not different. The defence had ample opportunity to examine him as witness before the trial. During the course of arguments, we could not find any material which requires clarification from any witness. Last but not the least, the incident took place on 8.5.1984 and so after more than 28-years there appears to be no justification to summon any witness even if he may be alive. After such long period, a witness howsoever material he or she may be, would not be in a position to recollect and depose the events.
21. In view of the above, the application filed on behalf of the appellants u/s 391/311 Cr.P.C. is not sustainable and is accordingly rejected.
F.I.R. - Whether ante-timed?
22. Before we proceed to evaluate the evidence on record in order to appreciate the arguments of learned counsel for the appellants, it has to be borne in mind that the incident had taken place on 8.5.1984 and the trial of accused-appellants had commenced from 16.12.1999. The deposition of prosecution witnesses had been recorded from 17.12.1999 to 29.8.2000. Thus, the witnesses have deposed in the Court about the incident which had taken place more than fifteen years ago.
23. The alleged incident took place at 1.00 a.m. on 8.5.1984 and its report was lodged by the complainant at 2.30 a.m. the same day. The complainant has lost his mother and real brother apart from other nine persons. The distance between the incident village and the police station is about 5 kilometers.. Learned counsel for the appellants has vehemently argued that it is ante-timed and did not come into existence even up to the post-mortem examination of the deceased. The contention of the learned counsel for the appellants is that the copy of check report and Copy of GD regarding registration of the case was not enclosed along with inquest reports of all the deceased, so it can safely be inferred that the FIR was not in existence till that time. Refuting the above argument, learned AGA has contended that in the incident 11-persons were killed, so it was not physically possible for the police officers to prepare copies in such large number, but the crime no. and sections have been noted on the inquest reports, photo-lash, letter of R.I. and sample seal etc., so the argument of appellants' counsel has no legs to stand. Chiranjivi PW-1 has stated in his examination-in-chief that after the incident he came back at his house and dictated the report and thereafter it was signed by him. He went to P.S. Jalalpur along with the report and handed over there. The written report has been proved by this witness as Ex. Ka-1. In cross-examination he has stated that along with Udai Bhan and Shiv Pujan he had gone to police station on cycles. He has admitted that earlier in S. T. No. 203/84 he had stated that the report was written by him and Udai Bhan Rai and Shiv Pujan have accompanied him to the police station. However, at other place in cross-examination he has stated that his earlier statement in this regard was not correct. Perusal of Ex. Ka-1 shows that it does not bear the signature of its writer, so it can be inferred that it was written by its maker. The statement of the complainant had been recorded in the Court more than 15 years after the incident, so such minor contradiction is bound to occur. The time of registration of the case is corroborated by the entry in the GD. Inspector Yogendra Singh PW-9 has also stated in his examination-in-chief that the report of the instant case was registered at the police station in his presence. The deposition of Constable Ram Achal Yadav DW-1 shows that on 8.5.1984 another case at crime no. 58/84 was registered at 6.45 a.m. which according to investigating officer was a case of dacoity. Since the report of another cognizable offence was registered subsequently on the same date at police station Jalalpur, so the possibilities of ante-timing of the report of the instant case are ruled out.
24. Learned counsel for the appellants has further contended that the special report in this case was not sent to the higher authorities immediately and the check report was also received in the Court of CJM on 26.5.1984. Copy of check report Ex. Ka-23 shows that the C.O. concerned has ordered to send it to the court concerned on 11.5.1984, so the fault lies with his office in its delayed dispatch to the Court of Magistrate. It has come in deposition of Inspector Yogendra Singh PW-9 that soon after getting the information regarding the incident he had sent SI Lalloo Ram Bhaskar with other police personnel to the spot and after registration of the case along with copy of check report, copy of GD and other related papers he had proceeded for the spot along with the complainant. It is noteworthy that the inquest of deceased persons began at 8.05 a.m. on 8.5.1984. Further co-accused Girja Shanker, Daya Shanker and Rakesh Prakash were arrested by the police on the date of incident itself and were produced in the Court for remand on 9.5.1984. Judicial notice can be taken that no judicial remand of the accused can be granted by the Magistrate without copy of FIR and copy of GD regarding its registration, unless contrary is proved. In catena of cases, the Apex Court has observed that if causes are not attributable to any effort to concoct a version and the delay is satisfactorily explained by prosecution, no consequence shall be attached to mere delay in lodging FIR and the delay would not adversely affect the case of the prosecution. Delay caused in sending the copy of FIR to Magistrate would also be immaterial if the prosecution has been able to prove its case by reliable evidence. [Vide - Ashok Kumar Chaudhary vs. State of Bihar, 2008 (61) ACC 972 (SC), Rabindra Mahto vs. State of Jharkhand, 2006 (54) ACC 543 (SC), Ravi Kumar vs. State of Punjab, 2005 (2) SCJ 505 and State of H.P. vs. Shree Kant Shekari, (2004) 8 SCC 153. It is important to note here that in the instant case no question had been asked from the investigating officer as to the reason for the alleged delayed dispatch of FIR, therefore, no adverse inference could be drawn. Ultimately it would depend upon the facts and circumstances of each case to draw any adverse inference against the prosecution in this regard. It is apt to note that in the facts of given case delay of ten days in sending the FIR to the Magistrate was not considered fatal by the Apex Court in the case of Paresh Bhavasar Vs. Sadiq Yakubhai AIR 1993 SC 1544. In the instant case the investigation has been taken up immediately after filing of FIR, so delay in sending the check report to the Magistrate would not be fatal. Thus, we conclude that the instant FIR is not ante-timed at all.
MOTIVE
25. Learned counsel for the appellants have vehemently argued that the present appellants are not residents of village Lakhamipur and have no axe to grind with the complainant or his family, so there was no motive for them to have associated with the crime. On the other hand learned counsel for the complainant has contended that both the appellants are close relatives of accused and deceased Hari Shanker Rai, so they have joined hands with other convicted accused persons in eliminating the family of the complainant and Sita Ram/Thakur Prasad. He further submits that both the appellants are named in the FIR and their role had been specifically mentioned therein. In the written report the complainant has noted two fold motive for the accused to kill his family members and others. First is the election rivalry and the immediate motive is murder of Hari Shanker Rai which took place 3-4 months prior to the incident in which complainant, his brother and Ram Sewak were accused and they were granted bail few days before the occurrence. It is incorrect to contend that the present appellants have no link with the other co-accused. Chiranjivi PW-1 has stated in his deposition that appellant Jawahar Singh is brother-in-law (sala) of Satya Prakash's (co-accused) father-in-law while appellant Virendra Singh is son of brother-in-law of Hari Shanker Rai who was murdered in March, 1984 and in this murder case complainant Chiranjivi Rai, Mewa Prasad Rai and Ram Sewak were accused, who were released on bail 3-4 days prior to the instant incident and later on they were convicted and sentenced to imprisonment for life. Thus we find that there was immediate motive for the present accused-appellants to have joined hands with other co-accused in eliminating the families of accused of murder case of Hari Shanker. It is difficult to perceive the mind of any individual. They react in different manner. The amount of anger and feelings of retaliation vary from man to man. The sequence of events since murder of Hari Shanker in March, 1984, clearly prove that his family members were waiting to take revenge from his killers. In this connection it is relevant to mention the pedigree of the parties, which had come through the testimony of PW-1 and has not been disputed by the defence. Pedigree of complainant and his family:
Ram Garib _________________________________ Vikramjit Sabhajit Raja Ram=Ram Kali @Kangna (kilied) Bhagwat Pd. ___________________________________ ______________ Chiranjivi Rai Kamla Pd Keshav Mewa Pd.Rai | | (PW-1) Rai Rai (killed) Manoj Vinod Wife-Manbhawati Kumar Kumar (Injured) (killed) Shanker Rai and Nanhku are brothers-in-law of Chiranjivi Rai. Achchai Bar Rai (deceased) is elder brother of Shanker Rai and Atma Ram son of Udai Narain Rai (elder brother of Nanhku) were also killed.
Pedigree of Thakur Prasad PW-2 injured (neighbor of complainant)
Jayanti Rai
_____________________________ | | |
Hanuman Rai Vibhuti Rai Surya Bali= wife Ram Dulari __________ wife Basmati (killed) (killed)
Vijay Bahadur Sita Ram _______________
=Ram Pyari =Manraji (killed) | |
(killed) Udai Bhan Vasudeo
___________ daughter Shashi Kala
| | (Injured)
Gulab Thakur Pd (Injured) _____________
Rai PW-2 =Dhan Dei (killed)
PW-3 Omkar Subhash
wife Mithlesh
__________________ (Injured)
| | |
Sanjay Sanjiv Raj Kumar
Kumar (Injured)
(killed)
Pedigree of accused persons in the case:
Mahesh Rai
_____________________
| |
Ram Swarath Musai
|
Chander Bhan (A-12)
________________
| |
Chander Prakash Mahesh Prakash (A-11)
____________________________________________
| | | | | |
Uma Rama Girja Maya Daya Hari
Shanker Shanker Shanker Shanker Shanker Shanker
(A-1) (A-2) (A-3) (A-5) (A-4) Killed in
_______________ ________ March '84
| | | | |
Jai Pr. Shri Gyan Satya Rakesh
@ Prakash Prakash Prakash Prakash
Lallan @Babban @Munna @Udaie (A-7)
(A-9) (A-10) (A-8) (A-6)
Appellant Jawahar Singh is brother-in-law (sala) of Satya Prakash's father-in-law. Appellant Virendra Singh is son of brother-in-law of Hari Shanker Rai who was murdered in March, 1984 and in this murder case complainant Chiranjivi Rai, Mewa Prasad Rai and Ram Sewak were accused, who were released on bail 3-4 days prior to the instant incident and later on they were convicted and sentenced to imprisonment for life. Thus, we find that the motive alleged by the prosecution for the present appellants also is duly proved.
26. Learned counsel for the appellants has next contended that the appellants were not known to witnesses but no test identification parade was held, so they have been materially prejudiced in their defence. On the contrary, learned AGA has submitted that both the appellants were named in the FIR along with their respective weapons and their role had also been specified by the eye witnesses examined in the case. The complainant has admitted in his cross-examination that accused Virendra resides in the circle of P.S. Mirza Murad of Varanasi district while Jawahar Singh is resident of police station Lanka and both have licensed guns. He has further admitted that the distance between their houses is about 25-30 kilometers between. Although it has been suggested to PW-1 that during investigation accused Jawahar Singh has filed an application in the Court of CJM, Jaunpur for his identification, but it was got rejected by the police, but he has pleaded ignorance. In this connection it is important to note that accused Jawahar Singh has not stated a single word in this regard either in his statement u/s 313 Cr.P.C. or written statement filed u/s 233(2) Cr.P.C. It is important to note that although all the three witnesses of fact namely PW-1 to PW-3 have been subjected to length and grueling cross-examination, but the defence has not to any of them by the defence that they did not know the accused-appellants from before. In the facts and circumstances of the case, it was not imperative for the prosecution to get the test identification of named accused-appellants from any eye witness or injured witness of the case.
27. It has been vehemently argued by the learned counsel for the appellants that the presence of alleged eye witnesses is highly doubtful and they are partisan and interested witnesses and no independent witness had been examined by the prosecution in support of its case, so no reliance should be placed on the witnesses of fact examined in the case and no charge against the accused-appellants is proved beyond all reasonable doubt. Refuting the argument, the learned AGA has contended that the prosecution has examined material witnesses in the case in support of its story. Complainant Chinranjivi PW-1 and accused in the murder case of Hari Shanker Rai with their family were the targets of the accused persons. Thakur Prasad PW-2 is an injured witness, so his presence cannot be doubted and other witness Gulab Rai PW-3 is the eye witness of the incident. Considering the time of incident the presence of these witnesses at their respective houses is quite natural. It has been further contended that it is the prerogative of the prosecution to examine as number of witnesses as are required to unfold the prosecution story and prove its case. Chiranjivi PW-1 is the complainant of the case, who has lodged the FIR of the incident just after 90 minutes of the incident with the police. Injuries of injured Thakur Prasad were examined by Dr. S. P. Rai PW-6 on 8.5.1984 at 7 A.M. as Emergency Medical Officer in District Hospital, Jaunpur. Presence of PW-1 had been challenged on the ground that he was not injured in the incident and had he been present at the scene of occurrence, the assailants would not have spared him at all. The incident had taken place at the house of complainant and in the compound of Thakur Prasad. Attempt was made by the accused persons to search Chinrajivi after killing several persons at the house of Thakur Prasad, but he managed his escape good and could not be located by any of the accused. He had been extensively cross-examined by the defence on number of dates and his deposition is contained in 52-typed pages, however, the defence could not be able to disprove his presence at the spot. Simply because he did not receive any injury at the hands of the accused persons, his presence cannot be doubted. He had vividly described the entire incident in detail as also putting sarpat on fire to get more light in order to identify the assailants. His mother Ram Kali @ Kangana, real brother Meva Prasad Rai, nephew Manoj Kumar and close relatives Achchaibar Rai and Atma Rai were assassinated in the incident and brother's wife Manbhawati was injured. Similarly mother Ram Pyari, aunt Manraji, grand mothers Basmati and Ram Dulari, wife Dhan Dei and son Sanjay Kumar of Thakur Prasad PW-2 were killed in the incident. PW-3 Gulab Rai is real brother of Thakur Prasad. So, all the witnesses of fact are no doubt closely related with the deceased and the injured, but during night time their presence at their respective houses cannot be doubted and further they would be last person to leave the real culprit and rope the innocent persons in the case. Further the law is well settled that the testimony of a witness in a criminal trial cannot be discarded merely because he or she is a relative or family member of the victim of the offence. In such a case, court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible the accused can be convicted on the basis of testimony of such related witness. Further enmity of the witnesses with the accused is not a ground to reject their testimony and if on proper scrutiny, the testimony of such witnesses is found reliable, the accused can be convicted.
28. In the cases of Ashok Kumar Chaudhary vs. State of Bihar, 2008 (61) ACC 972 (SC), Chowdhary Ramjibhai Narasanghbhai vs. State of Gujarat, (2004) 1 SCC 184, Babu Ram vs. State of UP, 2002 (2) JIC 649 (SC), State of H.P. vs. Gian Chand, 2001(2) JIC 305 (SC) and Hukum Singh vs. State of Rajasthan, 2000 (41) ACC 662 (SC), the Apex Court has held that if a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. It would certainly depend upon facts and circumstances of each case. In the case in hand we had seen that in retaliation of murder of Hari Shanker Rai in March, 1984, lives of 11 people was taken and five remained hurt, so who would dare to come forward and depose against such dare devils. In a sessions trial, public prosecutor is not bound to examine all PWs mentioned in the FIR or charge-sheet. He is at liberty to choose only such of the several witnesses on the same point and when there are several eye witnesses or injured witnesses the public prosecutor may examine only two or some of them and he is not obliged to examine all the injured witnesses. Thus, we find that the prosecution story cannot be thrown away simply because the prosecution had examined interested and related witnesses and independent witnesses have not been produced to substantiate the charges against the appellants.
29. The next submission of the learned counsel for the appellants is that there was no light at the scene of occurrence in which the injured or other persons present at the spot could see and identify the assailants. Oppugnating the argument, the learned AGA has submitted that the source of light had been mentioned by the complainant in the promptly lodged report with the police. A perusal of the written report Ex. Ka-1 shows that the complainant has noted the light of torches, lantern, electric bulb and flames of sarpat, he set ablaze, to increase the source of light in which he and other persons including the injured have seen the incident and identified the accused persons. In the instant case right from the FIR the consistent case of the prosecution is that the witnesses saw the incident in the light of lantern, electric bulb and light emitting from flames of sarpat, which was set ablaze by PW-1. Considering the number of assailants and the time of incident, the accused also required proper light to recognize and identify their target. Further, in the case of Kalika Tewari vs. State of Bihar, JT 1997(4) SC 405, the Apex Court has observed that 'the visible capacity of urban people who are acclimatized to fluorescent light is not the standard to be applied to villagers whose optical potency is attuned to country made lamps. Visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such lights.' The sources of light have further been testified by PW-2 and PW-3 through depositions, so in the facts and circumstances of the case, we find that there was sufficient light and time for the witnesses to see the incident and locate the accused persons.
30. Learned counsel for the appellants has vehemently argued that that the incident has not taken place in the manner as alleged by the prosecution. His contention is that it was a case of dacoity in which gang of Bhirgu Nath was involved, but on account of animosity, the accused persons have been falsely implicated in the case. In the entire story of the prosecution it has not come that any property was looted by the miscreants during the entire incident. The prosecution has placed reliance on the testimony of complainant, injured Thakur Prasad PW-2 and Gulab Rai PW-3. We have already seen that the presence of these witnesses at the spot was well proved through their testimony. Among these witnesses Thakur Prasad PW-2 had sustained injuries in the incident. Learned counsel for the appellants has vehemently argued that there are material discrepancies in their testimony vis-a-vis their deposition recorded in the earlier S.T. No. 230 of 1984 and their police statement. At the sake of repetition we reiterate that in the instant case the statements of these witnesses were recorded more than 15-years after the incident, so it is very much natural that they may differ in some minute details of the incident as no witness howsoever truthful he may be cannot remember each and every thing, when he is required to depose in the Court and they are subjected to lengthy and gruelling cross-examination. If the testimony of an eye witness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony. If the inconsistencies, contradictions, exaggerations, embellishments and discrepancies in the testimony are only normal and not material in nature, then the testimony of an eye witness has to be accepted and acted upon. Distinctions between normal discrepancies and material discrepancies are that while normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. [Vide-Ashok Kumar Chaudhary vs. State of Bihar, 2008(61) ACC 972 (SC) and Dimple Gupta (minor) vs. Rajiv Gupta, AIR 2008 SC 239.
31. It is noteworthy that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing and reliable evidence is required to discredit an injured witness. In the instant case we have the testimony of Thakur Prasad PW-2 as injured witness, whose presence at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. Further he would not allow the real culprits to escape and falsely implicate the accused. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. If there be any exaggeration or immaterial embellishments in the evidence of an injured witness then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
32. Learned counsel for the appellants has taken us through the entire deposition of PW-1 to PW-3. PW-1 has vividly stated the entire incident, which had taken place at different places at or near his house and he had been hiding himself behind the trees and bushes. According to this witness all the accused persons including both the appellants first of all opened fire at his house injuring Mewa Prasad Rai, Manoj Kumar Rai, Ramkali @ Kangna, Manbhawati, Achchaibar and Atma Rai. In the meantime the complainant ran towards the jack-fruit tree and set fire to sarpat. Hearing report of fires and screams Ram Sewak Kurmi, Gulab Rai, Udai Bhan and other villagers flashing their torches reached there and saw the incident. He has further stated that both the appellants chased Achchaibar inside the house and fired shot on him. They were searching for him and when could not succeed they said to settle scores with his surety and then proceeded towards the house Sita Ram Rai. The complainant also hiding himself from the accused took position by the side of pumping set of Sita Ram. They found Thakur Prasad and one unknown miscreant scuffled with him and when the later tried to escape accused Gyan Prakash @ Munna injured him on foot with ballam and accused Jawahar Singh fired shot on him and sustaining injury he ran towards southern-western side. PW-1 has further stated that then the accused persons entered in to the compound of Thakur Prasad and all of them including the appellants started firing. The ladies of the house opened doors of the house and then accused went inside the house and killed them by fired shots. Then the accused proceeded towards the house of Ram Sewak Kurmi saying to kill him, but they did not find him there and then came at the door of Uma Shanker and hurling abuses tried to locate him (PW-1). Then several persons arrived there and the accused took their to heels. After departure of the accused persons, the complainant along with other persons reached at his house and found his mother Ramkali @ Kangna, Atma Ram Rai and Achchaibar Rai dead and Mewa Ram, his wife Manbhawati and Manoj Kumar were seriously injured due to fire-arm injuries. In the compound of Sita Ram, they found that Sanjay Kumar @ Mammu, Smt. Manraji and Dulari Devi had died and inside his house the dead bodies of Basmati, Ram Pyari, and Dhan Dei were found on the cots who all have sustained fire-arm injuries. Smt. Shashi Kala, Mithlesh Kumari and Raj Kumar were lying injured and were screaming. This witness has been subjected to lengthy, searching and gurelling cross-examination, but his testimony could not be shaken with regard to the real incident and role of both the present appellants.
33. Injured Thakur Prasad PW-2 at the time of incident was posted as constable in Excise Department. He has stated that at the time of incident he was on leave and in the night he was sleeping at the door of his house in between the pumping set and dalan. Nearby Udai Bhan Ria and his brother Gulab Rai were sleeping. On that night in the ahata his son Sanjay Kumar @ Mammoo, aunt Manraji Devi, Aaji Dulari Devi were sleeping and in the inside court-yuard his wife Dhan Dei, mother Ram Pyari, Aaji Basmati, sister Shashi Kala, brother's wife Mithlesh and younger son Raj Kumar were sleeping. His uncle Sita Ram Rai was not at home on that night. According to PW-2, at about 1.00 a.m. they woke up on hearing noise and report of fires. He saw 18-19 persons towards the house of Chiranjivi Rai, who were making fires and people were sustaining injuries. Then they saw that sarpat was put to fire in the north of Madhai of Chiranjivi Rai. His brother Gulab Rai and unlce Udai Bhan Rai flashing torches went towards the house Chiranjivi Rai where a lantern was lighting at the door of his house and at his pumping set there was light of electric bulb. After the incident at the house of Chiranjivi Rai all miscreants came towards his house and in the light of aforesaid objects he recognized Jawahar Singh armed with SBBL and Virendra Singh having DBBL gun in his hand along with other accused armed with various weapons. The witness has stated the names of all other accused and weapons carried by them, which is not necessary to note for the purpose of this appeal. He has corroborated the statement of PW-1 about the manner in which he has sustained ballam injury and fire-arm injury at the hands of Jawahar Singh. In the Court during examination he had shown the scars of fire-arm injury sustained by him saying that pellets are still inside his body. The defence could not extract any thing adverse from the cross-examination of this witness, which may belie his presence at the spot or create doubt about his testimony.
34. Gulab Rai PW-3 is younger brother of Thakur Prasad PW-2 and he has also vividly narrated the entire incident which had taken place at their ahata and house. He has narrated the names of both the appellants, weapons carried by them and their role in the incident and there is no material contradiction in this regard vis-a-vis the testimony of other eye witnesses. He has corroborated the testimony of both the aforesaid eye witnesses on all material particulars.
35. We have also thoroughly examined the depositions of DW-1 to DW-4, but find that it had no connection with the real incident or belie the prosecution story with regard to participation of both the accused- appellants in the incident.
36. In view of what has been stated and done above, we find that the prosecution had successfully proved its case against each accused-appellant beyond all reasonable doubt and the trial Court has not erred in returning guilty verdict against them. The appeals have no force and are hereby dismissed. Both the appellants are in jail and would serve out the remaining part of the sentence.
37. Sri Prabhuji, Amicus Curiae be paid Rs. 2,100/- by the State for his valuable assistance in arguing the case on behalf of appellant in Criminal Appeal no. 2740 of 2001 within 4-weeks.
38. Let certified copy of the judgment be transmitted to the court concerned and Chief Judicial Magistrate, Jaunpur for ensuring compliance. The accused-appellants be informed about the outcome of the appeal through Superintendent Jail concerned. The compliance report be submitted within 4-weeks.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J) February 28, 2013 KCS/-