Allahabad High Court
Rama Kant Dixit vs State Of U.P. on 8 May, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:101498-DB A.F.R. Court No. - 47 Case :- CRIMINAL APPEAL No. - 1268 of 2007 Appellant :- Rama Kant Dixit Respondent :- State of U.P. Counsel for Appellant :- Krishna Ji Khare,Arun Kumar,Arvendra Singh,Lav Srivastava,Rajeev Nayan Singh,V.P. Srivastava Counsel for Respondent :- Govt. Advocate,J.S. Sengar With Case :- CRIMINAL APPEAL No. - 1321 of 2007 Appellant :- Vipin Kumar Dixit Respondent :- State of U.P. Counsel for Appellant :- Anubhav Trivedi,A.K.Pandey,Arvendra Singh,Brijesh Sahai,Chandan Sharma,J.S.Sengar,Samit Gopal,Sarvesh Kumar Dubey,V.Singh Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 1386 of 2007 Appellant :- Kaushlendra Respondent :- State of U.P. Counsel for Appellant :- Anubhav Trivedi,A.K.Pandey,Arun Kumar Shukla,Arvendra Singh,S.P. Tewari Counsel for Respondent :- Govt. Advocate,J.S. Senger With Case :- CRIMINAL APPEAL No. - 1623 of 2007 Appellant :- Chandra Kant Respondent :- State of U.P. Counsel for Appellant :- Shri Kant Shukla,Arvendra Singh,Brijesh Sahai,Krishna Shukla,Sanjay Srivastava,Sarvesh Kumar Dubey Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 1757 of 2007 Appellant :- Devendra Respondent :- State of U.P. Counsel for Appellant :- Brijesh Sahai,Arvendra Singh,Rajiv Lochan Shukla,Sarvesh Kumar,Sarvesh Kumar Dubey Counsel for Respondent :- Govt. Advocate,J.S. Sengar With Case :- CRIMINAL APPEAL No. - 2213 of 2007 Appellant :- Hari Om Respondent :- State of U.P. Counsel for Appellant :- Brijesh Sahai,Sarvesh Kumar Dubey Counsel for Respondent :- Govt. Advocate Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
(Delivered by Hon'ble Ashwani Kumar Mishra, J.)
1. This bunch of criminal appeals is by the accused-appellants assailing a common judgment and order dated 1st February, 2007 passed by the Sessions Judge, Mainpuri in Sessions Trial No. 97 of 2005 (State Vs. Jagannath and 5 Others) and Sessions Trial No. 104 of 2005 (State Vs. Hariom), arising out of Case Crime No. 286 of 1996, under Sections 147, 148, 302/149, 307/149 I.P.C., Police Station-Bhogaon, District-Mainpuri, whereby all the accused-appellants have been convicted and sentenced to two years rigorous imprisonment each under Section 148 I.P.C.; seven years rigorous imprisonment each under Section 307/149 I.P.C. with fine of Rs. 30,000/- each and in default thereof, to further undergo one year additional simple imprisonment; life imprisonment each under Section 302/149 I.P.C. with fine of Rs. 70,000/- and in default thereof, to further undergo one year additional simple imprisonment each. All the sentences are to run concurrently.
2. As these appeals arise out of the same judgment and order. As such they were clubbed together and are now being decided by this common judgment.
3. We have heard Mr. V.P. Srivastava, the learned Senior Counsel assisted by Mr. Rajiv Lochan Shukla, Mr. Rajeev Nayan Singh and Mr. Arun Sharma, learned counsel appearing for the accused-appellant Rama Kant Dixit, Mr. Brijesh Sahai, learned Senior Advocate assisted by Mr. Bhavya Sahai, Mr. Sarvesh Kumar Dubey, Mr. Waquar Ahmad and Abhay Singh Yadav, learned counsels appearing for the accused-appellants Vipin Dixit, Chandra Kant and Hari Om, Mr. Rajiv Lochan Shukla and Mr. Sarvesh Kumar Dubey, learned counsel appearing for the accused-appellant Devendra and Mr. Arun Kumar Shukla, learned counsel appearing for the accused-appellant Kaushlendra and Mr. Arunendra Singh and Mr. Amit Sinha, learned A.G.As. for the State.
INCIDENT
4. On 6th September, 1996 an incident occurred at around 04:30 p.m. on Mainpuri-Bhogaon road near Raja ka Bagh at a distance of nearly 3 kilometres from Bhogaon Police Station, where six persons travelling in a Commander Jeep from Mainpuri to Bewer were shot dead in broad day light in a brutal shoot-out. Those killed in the incident were Hem Singh, Gajendra Singh alias Tillu, Ram Kishan Singh, Naresh Dixit, Ashok Parihar and Mahesh Yadav.
PROSECUTION CASE
5. The first informant Surendra Singh (P.W.-1) submitted a written report on 6th September, 1996 at Police Station-Kotwali, District Mainpuri on the basis of which a first information report (Exhibit-ka/8) came to be registered as case crime no. Nill of 1996 at 17.35 p.m. No case crime number was assigned to this FIR, since the offence was committed within the territorial limits of Police Station-Bhogaon. Constable Udai Ram of Police Station-Kotwali brought the FIR and the written report submitted by the first informant to Police Station-Bhogaon on the basis of which case crime no. 286 of 1997 was allotted to the FIR and its contents were recorded in the General Diary maintained at Police Station-Bhogaon.
6. The written report of first informant/P.W.-1 has been proved by him in which it is alleged that he, his son Gajendra Singh alias Tillu, driver Hem Singh Yadav, Mahesh Singh Yadav, Ashok Parihar, Naresh Dixit, Ex-Pradhan Devendra Singh, Santosh Gupta and his younger brother Santosh were going to Bewar from Mainpuri by his jeep. While on their way ahead of railway crossing, a Gypsy and Maruti Van overtook his Jeep at around 4.30 pm and positioned them in front of the jeep. Accused Ramanand, Hariom, Hukam Chand, Anand, Jagannath, Devendra, Vipin, Kaushlendrapal Singh, Raj Bhushan, Billu, all residents of Bewer armed with rifles and guns, got down from these two vehicles and exhorted to finish them all and thereby take revenge. The informant along with Santosh Gupta, Santosh Singh and Devendra Singh ran out of their jeep and from the nearby field saw that all the above named accused persons fired indiscriminately with their rifles and guns, in which except the four who ran out of the jeep all other passengers of the jeep were killed on account of firearm injuries. Previous enmity was stated as the cause behind the occurrence. The informant is said to have come walking by concealing himself all the way to lodge the report.
INVESTIGATION
7. It transpires that someone informed about the firing/shootout at Rooi Tiraha to Police Station-Bhogaon at 04:50 p.m. The Station House Officer, Police Station-Bhogaon noted such fact vide Entry-26 in G.D. maintained at Police Station Bhogaon and left for the place of occurrence along with other Police personnel and commenced investigation at 04:50 p.m. The Station House Officer found that Jeep No. 84A-0340 had hit a Eucalyptus tree and its bumper was stuck in the tree. A dead body was lying on the steering wheel while another dead body was partly on bonnet of Jeep. Another dead body was on the seat behind the driver. Two bodies were on the ground on left and right side of the Jeep. Another dead body was at a distance about 15 paces from the Jeep towards north west. Information was transmitted on wireless to the higher authorities about the incident.
8. Constable Sumit Narain along with the copy of check FIR, G.D. entry etc. of Police Station-Bhogaon came on the spot along with first informant/P.W.-1. Statement of first informant/P.W.1 under Section 161 Cr.P.C. was recorded on the spot and on the date of incident.
9. After completing necessary formalities, the inquest proceedings of the bodies of all the six deceased were undertaken on 6th September, 1996. As per the inquest reports/panchayatnama (Exhibit-ka/13, 21, 29, 36, 44 and 54), proceedings of inquest in respect of deceased Hem Singh commenced at 18:20 p.m. and concluded at 19:20 p.m.; 19:30 p.m. to 20:30 p.m. in respect of the deceased Gajendra @ Tillu; 20: 35 p.m. to 21:40 p.m. in respect of deceased Ram Kishan; 21.50 p.m. to 23:00 p.m. in respect of deceased Naresh Dixit; 23:10 p.m. to 00:15 a.m. on 7th September, 1996 in respect of deceased Ashok Parihar; 00:25 a.m. to 01:30 a.m. on 7th September, 1996 in respect of deceased Mahesh. The Inquest witnesses have opined that the death of all the six deceased appear to have been caused due to firearm injuries. However, for ascertaining the exact cause of death, post-mortem be got conducted. Prima facie in the opinion of witnesses of inquest (panch witnesses) the death of the deceased was characterized as homicidal. Thereafter the bodies of the deceased were sealed and dispatched for post-mortem.
10. The post-mortem of the bodies of the deceased, namely, Hem Singh, Gajendra Singh alias Tillu, Ram Kishan Singh, Naresh Dixit, Ashok Parihar and Mahesh Yadav were conducted on 7th September, 1996 by a team of doctors headed by Dr. R.P.S. Chauhan (P.W.-4).
The post-mortem of body of deceased Ashok Parihar was conducted at 10.15 a.m. on 7th September, 1996. In the opinion of team of doctors which conducted the autopsy of aforesaid deceased, the cause of death is shock and hemorrhage as a result of following ante-mortem injuries:
"1. Lacerated wound 18 cm x 9 cm x lower part of buccal cavity (lower jaw which is missing) over lower part of the face and neck. Margins are blackened and tongue is blackened. Trachea upper part ruptured.
2. Firearm wound of entry 3 cm × 2.5 cm x thigh on medial side of right leg 15 cm below the knee joint. Margins are inverted. Both the bones of leg are fractured.
3.Firearm wound of exit 5 cm X 3.5 cm on back right leg 13 cm above ankle.
4. The firearm wound of entry 3 cm x 2.5 cm x bone deep a medial side of left leg 13 cm above left knee joint. Margins are inverted. Both bones of the leg are fractured. (five pieces of metallic are found in the bone) ."
The autopsy of the body of deceased Ramkishan Singh was held at 12:05 p.m on 7th September, 1996. As per the team of doctors which conducted the post-mortem the cause of death was opined as shock and hemorrhage as a result of following ante-mortem injuries:
"1. Lacerated wound 6 cm x 5 cm x through and through injury no.2 on right side of face 4 cm away from right ear. Margins are blackened and inverted.
2. Lacerated wound (bone of exit) 18 cm x 18 cm on left side of deaf, forehead and head. Brain matter is coming out.
3. Firearm wound of entry 0.5 cm 0.5 cm x through and through injury no.4 on medial aspect of right thigh
4. Firearm wound of exit 2 cm x 1.5 cm on anterior aspect of right thigh 3 cm above from injury no.3
5. Traumatic swelling 18 cm x 10 cm on middle of left thigh, bone fractured.
6. Traumatic swelling 10 cm x 6 cm on left leg lower side. Both bones are fractured."
The autopsy of the body of deceased Naresh Dixit was conducted at 02:00 p.m on 7th September, 1996. As per the opinion of the autopsy team the cause of death was concluded to be shock and hemorrhage as a result of following ante-mortem injuries:
"1. Firearm wound of entry 1.5 cm x 1 cm x through and through injury no.2 left side of forehead 2 cm above eye brow. Margins are inverted and blackened.
2. Firearm wound of exit 4 cm x 2.5 cm. above right eyebrow and forehead. Right eye bulging.
3. Lacerated wound 7 cm x 1 cm x bone deep on left side of forehead and just above eye brow. Margins are blackened.
4. Lacerated wound 8 cm x 2 cm x muscle deep on left side of chest. Upper part 1 cm below clavicle. Margins are blackened and wound gutter like. "
The autopsy of the body of deceased Hem Singh was conducted at 11 a.m. on 7th September, 1996. As per the opinion of the autopsy team the cause of death of deceased was delineated as shock and hemorrhage as a result of following ante-mortem injuries:
"1. Lacerated wound 6 cm x 2 cm x scalp deep on front of forehead and right side of head. 4 cm above root of nose.
2. Firearm wound of entry 3 cm x 1.5 cm x cavity deep on back of right side of chest 7 cm below inferior angle of scapula. Surrounded by two small wound of size 0.3 cm x 03 cm x skin deep in area 12 cm x 8 cm. No blackening found.
3. Firearm wound of entry 3 cm x 3.5 cm x through and through injury no.4 on back of abdomen right side. No blackening found.
4. Firearm wound of exit 4 cm x 3 cm on right side of back of abdomen in axillary line 8 cm above iliac crest."
On the same day at 1:15 p.m. the autopsy of the body of the deceased Gajendra alias Tillu was conducted. As per the post-mortem report the cause of death of aforesaid deceased is shock and hemorrhage as a result of following ante-mortem injuries:
"1. Firearm wound of entry over left side of jaw and neck 2 cm away from mid line of chin. Size 5 cm x 3 cm x through and through injury no.2. Margins are blackened and inverted.
2. Firearm wound of exit 18 cm x 6 cm on right side of head and forehead just near right ear. Brain matter coming out of wound. Bone of skull are fractured.
3. Traumatic swelling 10 cm x 8 cm on right upper arm 6 cm above elbow joint. Bone of upper arm fractured.
4. Firearm wound entry 3 cm x 2.5 cm x cavity deep on right side of abdomen 6 cm away from umbilicus at 7 o'clock potion. Margins are inverted and blackened.
5. Firearm wound entry 1.5 cm x 1.5 cm x through and through injury no.6 on back of left right 5 cm above knee joint. Margins are inverted and blackened.
6. Firearm wound of exit 18 cm x 7 cm on medial aspect of left thigh 7 cm above knee joint.
7. Lacerated wound 3 cm x 1 cm x skull bone deep on forehead 5 cm above of root of nose."
At 12:35 p.m. the autopsy of the body of deceased Mahesh was performed. The cause of death has been opined by the autopsy team as shock and hemorrhage as a result of following ante-mortem injuries:
"1. Lacerated firearm wound 18 cm x 5 cm x brain deep on left side of forehead and head. Margins are blackened. Bone of left side skull are fractured. Brain matter coming out of bone.
2. Firearm wound entry 3 cm x 2.5 cm x through and through injury no.3 on right side of chest. 5 cm below clavicle. Margin blackened and inverted.
3. Firearm wound of exit 5 cm x 3.5 cm on right side of nipple. Margins inverted.
4. Firearm lacerated wound 5 cm x 3 cm x bone deep on base of right thumb of right hand. Bones are fractured.
5. Firearm lacerated wound over front of right knee joint 12 cm x 8 cm. Bones are fractured. Margins blackened.
6. Firearm lacerated wound 11 cm x 4 cm x bone deep over left scapula of back.
7. Traumatic swelling 10 m x 8 cm on left upper arm. 6 cm above elbow joint. Bone fractured."
11. On 7th September, 1996 itself the Police collected four portions of blood soaked rexine from the Jeep vide Exhibit-ka/63. Blood soaked earth and plain earth were also collected by the Police from near the dead body of the deceased Naresh Dixit vide Exhibit-ka/64. Blood soaked earth and plain earth were also collected by the Police from near the dead body of the deceased Mahesh Fauzi vide Exhibit-ka/65. Blood soaked earth and plain earth were also collected by the Police from near the dead body of the deceased Ashok Parihar vide Exhibit-ka/66. The shoes and slippers of the deceased found in the Jeep along with tiffin and spectacles were recovered vide Exhibit-ka/67. The Jeep bearing Registration No. U.P.84 A-0340 was also recovered vide Exhibit-ka/68.
12. The Police on 7th September, 1996 also recovered following empties from the spot vide Exhibit-ka/69:
"1. 6 empty cartridges of 12 bore of red colour cardboard, "Astram Magnum" was mentioned in English on three empty cartridges, whereas on the other three, "Shaktiman" was mentioned.
2. 3 empty cartridges of 12 bore of red colour cardboard, "Indian Ordinance Factory" was mentioned on each cartridges.
3. 5 empty cartridges of 12 bore of red plastic, "Clay ground prix" was mentioned on each cartridges.
4. 5 empty cartridges of 12 bore of brass metal out of which on base of one cartridge, " 8 M.M./315" was mentioned, whereas on two, "8 M.M.K.F. 92" was mentioned.
5. 4 empty cartridges of 12 bore of brass metal which seem to be semi-automatic, "P.K.B.30" was mentioned on base of each cartridge.
6. 2 empty cartridges of 12 bore of brass metal, "43 E.C." was mentioned on the base of each cartridge.
7. 1 live cartridge of brass metal on which base "P.K.B.30" was mentioned.
8. 1 live bullet of brass metal in which colour was filled."
13. A Maruti car bearing Registration No. M.P. 14/D-2312 was found on 9th September, 1996 at about 12:00 in the afternoon in an open plot at new Baghwan Colony which was having blood stains on the back of its seat cover. Upon examination certain empties were also found therein. Accordingly, a recovery memo of same was prepared which is Exhibit- ka/10. The details of the same are as under:-
"(i) one missed live cartridge, 30 PKB was written on its base,
(ii) one empty cartridge, 8 MM KF 92 was written on its base, (both the cartridges were found below the driving seat of the car)
(iii) two empty cartridges, PKB 30 and 67 respectively were written on them (both the cartridges were found below the seat adjacent to the driving seat."
14. The recovered items, noticed above, were sent to Forensic Science Laboratory, Agra for their scientific examination. A report of the Joint Director of Forensic Science Laboratory, Agra dated 16th December, 1996 is on record as per which blood stains have been found on all the recovered items sent for forensic examination.
"(1) On the recovered items mentioned at serial nos.4 (rexine seat/cover), 5 (small piece of rexine seat/cover, 8 (a pair of brown slippers), 13 (a painted black belt), 14 (shirt), 15 (sando vest), 18 (gray pant/trouser), 19 (navy blue shirt), 20 (underwear), 26 (brown underwear), 28 (paijama), 29 (Kurta/shirt), 30 (vest), 31 (underwear), 32 (paijama), 33 (Kurta/shirt), 34 (vest), 36 (cotton towel/aungauchha), 37 (Janeoo), 40 (shirt) 41 (west), 42 (underwear), 44 (a pair of shocks), 46 (black door), 47 (Kalava) and 49 (a piece of green cloth), human bloods were found.
(2) On the recovered items mentioned at serial nos. 1, (earth), 2 (earth etc.), 3 (earth etc.) (which have been kept in a tin can), 6 (a pair of while slippers), 7 (a pair of slippers), 9 (tiffin), 10 ( plastic shoe), 11 (spectacles), 12 (a frame of spectacles), 16 (yellow underwear), 17 (black handkerchief), 21 (brown handkerchief), 22 ( a pair of brown shoe), 23 (belt), 24 (shirt), 25 (brown underwear), 35 (underwear), 38 (a plastic slipper of left leg), 39 (pant/trouser), 43 (handkerchief), 45 (a Tabeez of red cloth) and 48 (a pair of shoe), blood stains were found to be disintegrated.
(3) No definite result could be ascertained from the forensic examination of the blood stains found on the recovered items mentioned at serial no. 4 (rexine seat of jeep), 5, (small piece of rexine seat), and 49 (piece of green cloth).
(4). Blood stains on the recovered items mentioned at serial nos. 8 (a pair of brown slippers), 13 (a painted black belt), 14 (shirt), 15 (sando vest), 18 (brown pant/trouser), 19 (navy blue shirt), 20 (underwear), 26 (brown underwear), 28 (paijama), 29 (Kurta), 30 (vest), 31 (underwear), 32 (paijama), 33 (Kurta), 34 (vest), 36 (Aungauchha/cloth towel), 37 (Janeoo), 40 (shirt), 41 (vest), 42 (underwear), 44 (a pair of shocks), 46 (black door) and 47 (Kalava), were found unsuitable for classification."
15. After completion of statutory investigation under Chapter XII Cr.P.C., a charge-sheet came to be submitted on 23rd May, 1998 against all the named accused. The Magistrate took cognizance on the charge-sheet and committed the case to the Court of Sessions, where it got registered as Sessions Trial No. 197 of 2005 (State Vs. Jagannath & Others).
The concerned Sessions Judge charged the accused-appellants of having committed offences under Sections 147, 148, 302/149 and 307/149 I.P.C. on 19th July, 2005. The accused-appellants denied the charges so framed and pleaded innocence. Resultantly, the trial procedure commenced.
THE TRIAL
16. The prosecution in order to establish its case has adduced following documentary evidence:
"i). Written report dated 6th September, 1996 submitted by Surendra Singh/informant-P.W.-1 has been marked as Exhibit-Ka/1;
ii). The first information report dated 6th September, 1996 at Police Station Bhogaon has been marked as Exhibit- Ka/34;
(iii) The first information report dated 6th September, 1996 at Police Station Kotwali Mainpuri has been marked as Exhibit-Ka/8 iv. The inquest reports (Panchayatnamas) of all the six deceased dated 6th September, 1996 have been marked as as Exhibits-ka/113, 21, 29, 36, 44 and 54;
v). Recovery memo of blood stained and plain rexine of seat of jeep dated 7th September, 1996 has been marked as Exhibit-ka/63;
vi). Recovery memos of blood stained and plain earths dated 7th September, 1996 have been marked as Exhibits-ka/64,65 & 66;
vii). Recovery memo of shoes, slippers, tiffin & spectacles dated 7th September, 1996 has been marked as Exhibit-ka/67;
viii). Recovery memo of jeep dated 7th September, 1996 has been marked as Exhibit-ka/68;
ix Recovery memo of empty cartridge and bullets dated 7th September, 1996 has been marked as Exhibit-ka/69;
x). Site plans with index dated 7th September, 1996 and 15th September, 1996 have been marked as Exhibits-ka/62 & 70;
xi). Post-mortem reports of all the six deceased dated 7th September, 1996 have been marked as Exhibits-ka/2, 3, 4, 5, 6 & 7; and
xii). Recovery memo of Maruti Car & Empty Cartridge dated 9th September, 1996 has been marked as Exhibit-ka/10 ."
17. In addition to above, the prosecution has adduced three witnesses of fact, namely, Surendra Singh (P.W.-1/first informant), who happens to be the father of the deceased Gajendra Singh, Devendra Singh (P.W.-2), who happens to be the brother of the deceased Gajendra Singh and son of P.W.-1 and Santosh Gupta, who happens to be an associate of the informant/P.W.1. Apart from the above, Dr. R.P.S. Chauhan (P.W.-4) who conducted the autopsy of the bodies of all the deceased was also produced and he proved the post-mortem reports dated 7th September, 1996 (Exhibits-ka/2, 3, 4, 5, 6 & 7), Babulal Gautam, Head Constable (P.W.-5) who had prepared the check first information report dated 6th September, 1996 (Exhibit-ka/8) at Police Station Kotwali Mainpuri and also proved the same. Mubin Ahmad (P.W.-6), the then Station House Officer, Kotwali Mainpuri, who had prepared the recovery memo (Exhibit-ka/10) of Maruti Car, seat cover of the car, one live cartridge and three empties were also produced and he proved the same. The then Head Moharir Mangal Singh (P.W.-7) who had prepared the check first information report dated 6th September, 1996 at Police Station-Bhogaon was also produced. The then Station House Officer of Police Station Bhogaon, District-Mainpuri, namely, Rampal Singh (P.W.-8) who had conducted the investigation in the case was also produced. Sub-Inspector Jaichandra Singh (P.W.-9) who has recovered the Gypsy on 10th September, 1996 from Mughal Road, in front of Raju Hotel was also produced.
After the prosecution evidence was over all the incriminating material which emerged during the course of trial was put to the accused-appellants for recording their statements under Section 313 Cr.P.C. for having their version of occurrence in which they have denied the questions put to them.
18. Defence also adduced six witnesses in support of its case. D.W.-1 is Ramesh Chandra Sharma, Senior Assistant, Commercial Tax Officer at Shikohabad, District Firozabad. Head Constable-179 Surya Pal Singh is D.W.-2. Rajesh Kumar Singh (D.W.-3), Officer In-charge of Police Station Hari Parwat, District Agra, who from July, 1997 to July, 1999 was Inspector in the Crime Branch, Crime Investigation Department (for short "C.B.C.I.D."). S.C. Pal (D.W.-4), who was posted as Inspector in C.B.C.I.D. Agra from 30th November, 1996 to 28th January, 1998. D.W.-5 is Kamlesh Kumar, Revenue Inspector, District Panchayat Mainpuri, District Mainpuri. D.W.-6 is Mahak Singh, who was posted as Inspector, C.B.C.I.D., Agra from 18th February, 2000 to 14th March, 2000.
FINDINGS AND CONCLUSION OF THE TRIAL COURT
19. Court below on the basis of the evidence on record came to the conclusion that the prosecution has succeeded in establishing that the shootout was committed by the accused-appellants on account of previous enmity, they resorted to indiscriminate firing resulting in the death of six persons. Court below has come to the said conclusion on the basis of oral evidence to the effect that the incident was witnessed by the three prosecution witnesses of fact, namely, P.W.-1, P.W.-2 and P.W.-3 and their testimonies are natural and reliable. The ocular version of the occurrence as disclosed in the statements of aforesaid witnesses stands corroborated by the medical evidence as well as the forensic evidence. It has, thus, been held by court below that the prosecution has succeeded in establishing the guilt of the accused-appellants beyond doubt. On the plea of delay in the lodging of the FIR, trial court has recorded the finding that the charge against the accused-appellants under Section-147 I.P.C. does not require conviction as the accused-appellants were equipped with deadly firearms and they have committed 6 murders being members of an unlawful assembly, as such the accused-appellants are liable to be convicted under Sections 148, 307/149, 302/149 I.P.C. Accordingly, the trial court vide impugned judgment and order has convicted the accused-appellants and sentenced them to life imprisonment with fine.
APPELLANTS' CONTENTIONS
20. The broad spectrum of the arguments advanced on behalf of the accused-appellants can be summed up on following three counts:-
(i) the accused-appellants have been falsely implicated on account of previous enmity between the parties. Specific instances of enmity have been highlighted vis-a-vis the accused-appellants and the informant/ P.W.-1;
(ii) the prosecution witnesses were actually not present at the place of occurrence nor have they seen the incident and their depositions are neither credible nor reliable. Arguments at length have been advanced highlighting the evidence on record to doubt their presence at the place of occurrence as well as inherent improbability in their versions/ stands;
(iii) On behalf of the accused-appellants it has also been strenuously urged that the incident of shoot-out was carried out by Subhash Gang and evidence in that regard was also collected during the course of investigation. However, the investigation was not taken to its logical end. The same was deliberately left un-concluded on account of the influence of the informant's side to falsely implicate the accused-appellants due to previous enmity.
The individual submissions of the learned counsels for the accused-appellants shall be referred to, in detail, in the later part of this judgment.
21. Having examined the broad contentions urged in these appeals and upon perusal of record, the question that primarily arises for determination in these appeals is:- as to whether the conclusion of guilt of the accused-appellants, arrived at by the trial court, as also the sentence awarded to them is legal and sustainable in law. Vice versa the same does not suffer from any infirmity and perversity.
22. Before considering the merits of the submissions raised by the learned counsel for accused-appellants and the learned A.G.A., qua the impugned judgment and order of conviction and sentence passed by the court below, it is desirable to refer to the statements of the prosecution witnesses in detail in view of the question which arises for determination in the present appeals as formulated in paragraph no.21 of this judgment.
BRIEF STATEMENTS OF PROSECUTION WITNESSES P.W.-1/First Informant (Surendra Singh son of Babu Singh)
23. This witness has stated that he was coming back to Bewer in his commander jeep after seeing his ailing maternal aunt (Mausi) and was accompanied by his sons Devendra Singh and Gajendra Singh, his younger brother Santosh Singh, Santosh Gupta, Ashok resident of Bankati, Mahesh Fauji resident of Pakaria and Ramkishan, driver Hem Singh and two others, namely, Naresh Dixit and Ex-Pradhan of Humayunpur, namely, Kishan Pal Singh. At around 4.30 p.m., a Maruti car and a van overtook his vehicle from behind. Ramanand, Jagannath, Hariom and Anand all four persons were in the car and in the second Gypsy Chandrakant alias Billu son of Vishwanath Singh, Devendra, Vipin, Kaushalendra and Rajbhushan, total six persons were sitting with guns and riffles in their hands. All these persons got out of the vehicles and shouted to finish all the passengers in the said vehicle with intention to take revenge. Seeing them, first informant/P.W.1, Santosh Singh, Devendra Singh (P.W.-2) and Santosh Gupta (P.W.3) jumped towards the west and fled into pigeon pea (Arhar) field. All the accused persons started firing from their respective firearms due to which his son Gagendra, Ashok Parihar, Mahesh Yadav, Naresh Dixit, Ramkishan and Hem Singh driver died on the spot. Driver Hem Singh drifted on being hit by gun shot and the vehicle came to a halt after colliding with an eucalyptus tree. Leaving behind the three others, who were with him, on the spot, the first informant came to Police Station-Kotwali and met Satendra Singh, Ramesh Singh and Dinesh Singh at the petrol pump in front of Kotwali, to whom he narrated the entire incident. He then scribed the written report of the incident, signed it and submitted it at the Police Station. On seeing paper No. 5A/2, this witness has proved the same on which Exhibit Ka-1 was marked. This witness has further stated that an old enmity is going on between the accused and his family. In the murder of his younger brother Shivraj Singh, various persons from the side of accused, namely, Chhote, father of Chhote, named accused Jagannath, accused Hariom and his brother and accused Anand were implicated and the case is pending. Accused Ramanand has died whereas accused Rajbhushan Singh and Anand are absconding.
24. In the cross examination first informant/P.W.-1 has stated that the name of the former Pradhan of Humayunpur was not known to him at the time of incident, so he indicated him as the Ex-Pradhan (Purva Pradhan). Devendra Singh is not the former pradhan but was his son. P.W. 1 in reply to a question as to why he has not written the name of his son Devendra Singh, only the name of his other son Gajendra alias Tillu has been written, has submitted that he has written the names of both sons in the written report. Name of Devendra Singh has not been mentioned as his son but he is his son. He has further stated that he reached the place of crime for the first time at 4.00 in the evening, later he said that he had reached at 4.30. He was sitting on the left side of the back seat in the jeep. He, his son Devendra, Santosh Gupta and his younger brother Santosh were sitting on the back side of the jeep, whereas the Driver Hem Singh, Gajendra Singh, Mahesh Fauji were sitting on the front seat and Ashok Parihar, Pradhan of Humayunpur i.e. Kishanpal Singh and Naresh Dixit were sitting on the middle seat of the vehicle. Krishna Pal Singh's name has not been mentioned in the written report but he has been indicated as former Pradhan of Humayunpur.
25. P.W.1 has further stated that in the incident all the three persons sitting on the front seat were killed. Two persons had died in the vehicle itself while the third died after falling near the foot of the vehicle. All the three persons, who were sitting on the middle seat also died of whom one died inside the vehicle and two outside the vehicle. Both the vehicles of the accused were positioned in front of his jeep. Surrounding the jeep from the front the accused exhorted and started firing in which four passengers sitting at the back side of the jeep, including the informant (P.W.-1), ran towards the west. They fled to a distance of 50-55 paces into a pigeon pea (Arhar) field, from where they saw the incident. Accused also fired on those who escaped but he cannot remember the number of shots fired on them. He had disclosed to the inspector that many shots fired at all the four but none of them actually hit them. By taking the cover of trees all four, including himself, fled to the pigeon pea (Arhar) field. He could not disclose whether the bullets hit the trees or not.
26. P.W.-1 further stated that all the accused fled towards Mainpuri from the place of occurrence. P.W.-1 came towards the railway crossing and from there he took a tempo and came to Mainpuri. He has further stated that the fact qua his coming by the tempo to Mainpuri was not mentioned in the written report and that it was neither asked from him nor did he disclose about the same. In the written report, the fact that he came secretly has been written but the fact that he came by the tempo has not been written. He has further stated that accused Kaushalendra had filed a case against his brother Shivraj Singh and Upadesh Singh for theft of spare tire of vehicle (stepney) before this incident.
27. This witness has further stated that on the date of incident he along with 7 others left for Audanya Padaria after 1.30 p.m. from his house, where his maternal aunt (Mausi) was living but he did not know her name. However he has stated that his maternal aunt must have been around 60 to 70 years of age. His maternal uncle (Mausa) was not alive at that time. Mausa had died about 15-20 years before the incident. Maternal aunt's (mausi) original place of residence was Badapur Pinjri, which falls within the territorial limits of Police Station, Jakra and he went directly to Audanya Padaria and that he did not stop in between. Audanya Padaria is about ten and a half kilometres away from Bewer. Those who accompanied him were from different communities/caste. Ashok Parihar is son of his maternal uncle, Santosh Gupta was his friend, Mahesh Fauji was of his close acquaintance, Ramkishan was Pradhan and because of the same he had good relations with him. He has denied that the aforesaid persons lived in his house. His maternal aunt (Mausi) used to live at his house. His maternal aunt was sick for many days and was suffering from fever and what other disease she was suffering from was known to the doctor and that he had not taken his aunt (mausi) anywhere for treatment. He stayed at aunt's (mausi) place for about one and a half hours and at about 3:30 in the evening he left for Bewer. Satendra Singh, Ramesh and Dinesh were not his relatives but he knew them for the last 2 to 4 years before the incident.
28. P.W. 1 has also disclosed that his two brothers were Members of Legislative Assembly (for short "MLAs") and Satendra Singh, Ramesh and Dinesh were known to him since then and they visited his place. On coming back from his maternal aunt's place, Ramkrishna @ Krishnapal Pradhan and Naresh Dixit met him at Jail intersection. There were total 8 persons in the jeep and the other two met at the Jail intersection. He has admitted in his examination-in-chief that the nickname of Ramkishan is Kishanpal has not been disclosed by him. He has denied that Ram Kishan and Kishanpal are two different persons. He has also denied that two persons had not met him at the Jail intersection and that is why he has not disclosed about them to the Police.
29. P.W.-1 has also stated that the place of occurrence is at a distance of one and a half kilometer from the railway crossing towards Bhogaon. Both the vehicles of the accused were at a distance of 7 to 8 paces from the place of incident towards the east. His jeep was at a distance of 7 to 8 paces from both the vehicles. There was maize field on the west of pigeon pea (Arhar) field. From black top road, the place of incident is about 8 to 10 paces. Distance between the place of occurrence and Kotwali, Mainpuri is 8 to 9 kms. Kotwali Bhogaon is about 3 kms. from the place of occurrence. He has further stated that knowing the fact that the accused went to Mainpuri, he also went to Mainpuri because there were fields, fences and shed etc. whereas there was an open space on the side of Bhogaon. The witness along with three others feared for their life at the hands of accused. Ten minutes after the departure of the accused, he went to Mainpuri from the pigeon pea (Arhar) field and that his brother Santosh (not produced in evidence) asked him to go and lodge a report while they (remaining three) stayed back.
30. From the spot till the railway crossing he went hiding towards the field. He reached Kotwali Mainpuri at 5.30 in the evening and at that time Satyendra, Dinesh and Ramesh were at the petrol pump. It would have taken 20 to 25 minutes to write the report. Those three persons went to the police station with him. The written report was given to Dewan ji. This witness has denied that due to the fact that his two brothers were M.L.A's and one of them contested the election for Member of Parliament, the policemen went to the spot and inspected the spot and later wrote the FIR at the police station. When he reached the spot with the police, the Bhogaon police with the sub-inspector was present and his three companions who had stayed back also met at the spot. He did not know whether any of his three companions had given any written report regarding the incident to the Bhogaon police at the place of incident as the same was not given in front of him nor did they disclose about any written report. He has denied that he was not present at the spot at the time of the incident but was in Mainpuri and he had lodged a first information report at police station Kotwali Mainpuri under political influence after consulting Dinesh, Ramesh and Satyendra. He had disclosed to the Inspector that the accused had semi autometic and automatic weapons in their hands. He did not disclose as to which accused had which weapon in his hand and neither did the Inspector ask him about it.
31 P.W.-1 has further stated that he knew the accused Jagannath Prasad who is a retired teacher. He did not know whether Jagannath Prasad was currently handicapped with one hand and one leg and that he was not handicapped at the time of incident. He didn't know that Jagannath Prasad had poor vision at that time. He has denied that Jagannath Prasad already had a disability since prior to 6.9.96 and his vision was low. Whether Jagannath Prasad was a patient of heart disease or not he didn't know. Ramesh Chandra Dixit alias Pahalwan had been murdered and that he knew him. Accused Vipin Dixit is the son of the same Ramesh Chandra Dixit. In the murder case of Ramesh Chandra Dixit the son of P.W.-1, namely, Devendra, his brother Shivraj Singh, Upadesh Singh, Santosh Singh were implicated as the accused.
32. P.W.-1 also knew Hukam Chandra Dixit, who was murdered wherein his son Munesh and brother Upadesh Singh were implicated as the accused. Sons of Hukam Chandra Dixit, namely, Hariom and Ramanand are the accused in this case and Ramanand has died. He knew the accused Jagannath's son Chhote alias Rajveer in whose murder case his brothers, namely, Upadesh Singh, Shivraj Singh and his son Mallu were accused. Santosh Gupta, who is a witness in this case, is also an accused therein. He himself said that the name of Santosh Gupta was added in the case later on. Rajveer alias Chhote's cousins were Ramakant Dixit, Chandrakant and Billu.
33. This witness has further stated that as soon as the accused overtook his vehicle, all four of them who were sitting in the back seat jumped out of the jeep and ran away and that is why he cannot say whether the shots were fired to puncture the wheels or to stop his vehicle. There were four to six bullet marks on his jeep which were noted by the police. As soon as they jumped out of the jeep, the firing started. The incident lasted for 5 to 7 minutes. He could not disclose as to which accused fired how many shots. On account of indiscriminate firing it was difficult to pin-point as to whose bullet hit whom. There must have been 30 to 35 gun shots fired in all. All the accused were firing from the front side of jeep. The accused fired from a distance of 2 to 8 paces. The accused surrounded his vehicle from the front and started firing from the east. The accused had also fired at all four of them while they were running away, but they escaped unhurt. At the time of inquest proceedings all four of them were not near the dead bodies, rather his three colleagues were near the dead bodies and he was being interrogated by the Inspector, separately.
34. P.W.-1 has denied the suggestion that all four of them were not present on the spot, and that is why they are not seen in the photographs produced by the prosecution. None of them had signed on the inquest reports as witness. This witness has denied that he was not present at the spot and that he did not see the occurrence and that is why he did not tell the names of the accused to the police personnel who completed the inquest (Panchayatnama). This witness has admitted that on the date of incident his brothers Updesh Singh, Shivraj Singh and his son Mallu were in jail in connection with the murder of Rajveer alias Chhote. He has denied that on the date of incident they had gone to jail to meet them. He has also denied that after getting information from the jail, he went to Mainpuri police station and gave a written report. He has also denied that due to old enmity, he had falsely implicated the accused in the case.
35. This witness has further stated that his enmity was going on for the last ten years with Jagannath and that he was not aware of any case lodged by Jagannath against him or other accused of his family before the incident. This witness has also stated that the vehicles of the accused were facing towards Bhogaon when both the vehicles stopped. The driver of his jeep tried to move forward by crossing both those vehicles, but in the meantime he was hit by a bullet and could not move forward, This fact has not been written by him in the written report. He has stated that he had told the Investigating Officer about the jeep getting disbalanced and hitting the Eucalyptus tree, but he has not disclosed the Investigation Officer about the driver being shot or the jeep getting disbalanced due to the driver being shot.
36. This witness has further stated that one of the assailants followed them while they ran for safety and hided in pigeon pea (Arhar) field. They must have stayed in the field for about 15 minutes but the standing crop did not got damaged due to them. He got the spot inspected by the Investigating Officer at around 6.30 p.m. on the date of incident. He stayed at the spot till 2:30 in the night whereafter he left home leaving other three persons on the spot. His house is about six miles away from the place of incident. Various persons of his village later came to the spot with whom he left. When he left the place of incident the dead bodies had already been sent for post mortem at around 2:30 in the night. The dead bodies were sent by hand trolley. Next day morning he came to the Mortuary at Mainpuri and his other three companions met him there.
37. This witness has further stated that the branch of the tree with which his jeep collided was broken. On returning from the pigeon pea (Arhar) field, he had seen his vehicle, of which, the front windshield was broken. Before coming to lodge the report, he had seen his son's dead body but he did not cry, hugged him or inspected his son's dead body by turning it upside down. He did not touch his son's dead body. This witness has further stated that none of those sitting in the jeep had any weapons. Mahesh Fauji had a licensed gun which was deposited at that time. However, he was not aware as to how many days before the incident the firearm was deposited. None of the passengers had any weapons like Kanta, lance/spear (Ballam), Axe with them in the jeep.
38. This witness in his further cross-examination has stated that the officers/officials of CBCID had also recorded his statement regarding the incident. He did not remember as to after how many days his statement was recorded by the CBCID. He had not disclosed the officers/officials of CBCID that all four of them had witnessed the entire incident hiding in the pigeon pea (Arhar) field. He cannot say as to how they wrote in his statement about mustard crop which is not cultivated in the month of September. Ashok Parihar is his cousin's son and he always had good relations with him. He knew Mahesh Fauji for 20 years before the incident and had good relations with him. He had known Santosh Gupta for 20 years and had good relations with him also. This witness has also stated that he did have the business of farming, running a cinema hall, renting out a hotel. Earlier he used to work as transporter but now it is closed.
39. P.W.-1 has denied that he indulged in trade of liquor, narcotics (smack) and illegal weapons from his place. His son Dinesh Singh had the contract of country-made liquor. The policemen had picked up some liquor from his son's liquor shop and he could not disclose its quantity. The shop of his son was a government liquor shop and in connection with it the police had taken him and his son Bantu alias Manoj from the house. He has also denied that smack worth one crore rupees had been seized from the possession of son of his brother Shivraj Singh, namely, Titu alias Satyendra, who was absconding and his house had been attached.
40. P.W.-1 has also stated that Police has shown recovery of motorcycle, SBBL gun, 80 grams of opium from his hotel which belonged to the customers and that 80 grams of opium was planted by the police. Police has taken away 386 quarter bottles of country-made liquor from his son's liquor shop. The Police brought half a truck of liquor from somewhere, mixed it with a half drum of water and showed that a total of four drums of liquor were recovered from him along with his two sons Mallu and Bantu and implicated them falsely in the said case.
41. P.W.-1 has stated that he did not know as to why these three persons, namely, Satyendra, Ramesh and Dinesh who accompanied him to Police Station Kotwali had come to the petrol pump. He did not know whether twenty cases are pending against Santosh Gupta. Santosh Gupta has come to the court on the said date. He has denied that he had not seen the incident and was giving false testimony due to enmity. P.W.-1 has further stated that accused Vipin has land and farm in his village. Vipin's land and farm would be about one and a half furlongs away from his house. He has denied that he wanted to buy Vipin's land and farm and when he refused to sell the same, he harboured enmity with him. He has admitted that in the year 1985, his brother Shivraj Singh was fatally attacked in Bevar. In the year 1986 he was fatally attacked in Lucknow and in 1996 his brother Shivraj Singh and Upadesh Singh etc. were attacked in which his friend Jaigovind Dixit was murdered. The said fact has been disclosed by him to the Investigating Officer to explain the enmity. He could tell the difference between a gypsy, a van and a car by looking at these vehicles. At the time of the incident, he had seen the Gypsy and the car, the Gypsy was of blue colour and the car was of cream colour. He has stated in his examination-in-chief that it was a Gypsy and a van, but in fact the accused used a gypsy and a car at the time of the incident and he could not disclose the reason as to how such statement was recorded. He has denied that he was not present on the spot and hence he created a confusion about Gypsy and van. No person with weapon was present on the date of the incident and therefore, he could not have any weapon with him. When the accused overtook his vehicle, they had weapons in their hands. Their windows were open but he did not remember whether he had told this to the Inspector or not. The rear curtain was fixed in his jeep. After coming out from the jeep, they saw the accused with weapons.
42. P.W. -1 has then stated that they had left the house after having their meal. On the date of incident they went to place of his maternal aunt (Mausi) and name of her husband was Lal Singh. The pradhan of the village where he went to see his maternal aunt was Salendra Singh or not he did not know. P.W.-1 has further disclosed that Tukman Singh was the real brother of his brother's (Shiv Raj Singh) father-in-law (Munshi Singh). He did not know whether Tukman Singh had enmity with Subhash gang or not. Tukman Singh's friend Jagdish Mishra, a resident of Rampur, lived in Bever as well as in the village. He did not know whether Subhash Gang had killed four to five persons of Jagdish Mishra's family after robbing them. At the time of the incident, no member of his family had been provided Police protection. With regard to the present incident, both the Police as well as CBCID have recorded his statements separately. He had not seen Devendra's house so could not tell as to in which direction the door of his house was situated.
43. P.W.-1 has denied that he had a house in Bewer and Rakshapal lived there and he was murdered there. He did not know Rakshpal was accused in the murder of brother of Subedar Pandey. He also did not know Subhash Pandey at all, so he could not say how many cases of murder and dacoity were pending against him and his gang. P.W.-1 has denied that the vehicle which was taken into custody by the Police from the spot had no window in it. At the time of firing, Ashok Parihar was sitting in jeep and got out of the vehicle and ran 10 to 12 steps towards Bhogaon, when he was shot and fell down. Naresh Dixit also tried to come out of the vehicle but was shot and fell near the foot step of the vehicle. He has however denied that Mahesh Fauji got out of the jeep and ran four-five steps towards east.
44. P.W.-1 has stated that the bonnet of his jeep was towards Bhogaon, He cannot specify the size of bonnet of the jeep. The jeep did not have a rear window but a curtain. He has denied that there were bushes in which Subhash Pandey Gang had hidden themselves and fired indiscriminately due to which the incident took place. He has further denied that all the persons who were sitting in his jeep were killed in the incident. He has also denied that he was not a co-passenger of the jeep. He has also denied that he had came to lodge the report due to enmity and that he had not seen the incident.
P.W.-2 (Devendra Singh son of Surendra Singh)
45. P.W.-2 is the son of P.W.-1 and has lost his brother in the incident. He has stated that the incident took place on 6.9.96 at 4.30 p.m. They were going towards Bewer by jeep after seeing his father's maternal aunt (Mausi) were returning from Audenya. There were eight persons in the jeep, namely, PW-2 himself, his father (first informant/P.W.-1), his uncle Santosh Singh, his brother Gajendra Singh alias Tillu (deceased), Mahesh Fauji, Ashok Parihar, driver Hem Singh and Santosh Gupta (P.W.-3). When they came to Jail intersection (Chauraha) at Mainpuri they met Naresh Dixit and former Pradhan Ramkrishna who accompanied them in the jeep. Before the railway crossing Naresh Pandit Ji asked the driver to stop the vehicle to ease himself and the driver stopped the vehicle. Naresh Dixit and other persons got down from the vehicle and after easing themselves all the persons again sat in the jeep and then crossed the railway crossing. The place of incident was about 1.5 km from Bhogaon and about 1.25 furlong before Rui Sinaura Tiraha. At that time it was around 4.30 p.m. A blue Gypsy and a cream colour Maruti car of which the gypsy was in front overtook his vehicle. His driver Hem Singh tried to overtake both the vehicles which were positioned in front of the jeep. While the jeep was in motion the accused Ramanand, Jagannath, Hariom, Anand, Devendra, Rajbhushan, Kaushalendra, Vipin, Billu @ Chandrakant and Ramakant, total ten persons got down from those vehicles and exhorted to finish them with an intention to take revenge. Immediately he, his father (first informant/P.W.-1), Santosh Gupta (P.W.-3) and his uncle Santosh, all of them jumped from the back of their vehicle and ran towards pigeon pea (Arhar) field.
46. He has further stated that In the indiscriminate firing by the accused all six persons who were sitting in the vehicle, namely, Hem Singh, Gajendra @ Tillu, Mahesh Fauzi, Ashok Parihar, former Pradhan Ram Kishan Singh and Naresh Dixit died on the spot. Since the driver Hem Singh died in the said firing, their jeep got dis-balanced and collided with the Eucalyptus tree. After the accused fled towards Mainpuri by their vehicles they came out of the pigeon pea (Arhar) field to the spot and saw that six persons had died. They came towards the railway crossing hiding themselves. They had later hidden themselves in the fields. In the cross-examination P.W.-2 has stated that former Pradhan Ramkishan and Naresh Dixit had met them at the jail intersection and the said fact has been disclosed by him to the Inspector. If the same has not been incorporated in his statement then he does not know the reason. C.B.C.I.D. had taken his statement after three to four months of the incident. He has further stated that on the date of incident his uncles Shivraj Singh @ P.T.I., Updesh Singh, his brother Vijender @ Mallu were in jail in connection with the murder case of Chhote alias Rajveer and on the date of incident they had not gone to meet them in jail. His father always sits at the back of the jeep, so even on the date of the incident, he was on the back seat. At the time of the incident his father was the eldest among all the persons who were sitting in the jeep. This witness has further stated that before the incident he had came from Bewer to Mainpuri about ten times. At the time they jumped from their jeep it was moving. In a rush to save their lives they jumped and ran to the field. When they were running, no one followed them. They were looking back while running. While they were running the accused fired towards the jeep and also towards them but none of them were hit by the bullets as the jeep was between them and the person firing. After the four of them jumped out of the car, their jeep must have moved about 10 to 12 steps.
47. This witness has further stated that due to panic on the spot they forgot that one or two of them should have stayed near the dead bodies. They had not touched the dead bodies. When they found that no person was coming, they left the place of occurrence towards railway crossing. He admitted saying for the first time that his father had gone to lodge the report by a tempo. The curtain of the jeep was dropped. At the time when jeep got disbalanced and the driver was shot dead, they jumped out of the jeep and ran towards the field as they had no other option. When the accused exhorted, they all jumped off the jeep. At the time all four of them jumped from behind the jeep, which was moving at a slow speed. He has further stated that in the murder case of Jagannath's son Chhotey, Gajendra @ Tillu and Mahesh Fauji were accused. He has also stated that he had not lodged any first information report. He could not disclose whether any of the dead was an accused or not. He has further stated that the police of Bhogaon Police Station reached the spot fifteen minutes after they reached the spot and before his father returned from Mainpuri.
P.W.-2 has stated that none of them who jumped from the back of the jeep had sustained any scratch or any other injury. The four of them remained in hiding for 15 minutes in the pigeon pea (Arhar) field. None of the accused came near the field to kill or surround them. He has denied that there was no land in his father's name in Kishunpur Gadiya. The tempo was found standing at the railway crossing towards Mainpuri and that he could not tell the reason why the tempo was standing at the crossing and that no person of village was seen nearby.
48. P.W.-2 has denied that it would be difficult to jump out from the jeep if the rear end of the jeep was close to the Stepney. The jeep has been sold by his uncle. He has also denied that his family had no enmity with accused Vipin and that is why accused Vipin has been falsely implicated in order to pressurize him to sell the land, which he was not selling. In the written report he has not been mentioned as son of informant. He has further denied that he was not on the spot and that is why the person who wrote the written report did not write his name as son of first informant (PW-1), Surendra Singh. He has also stated that he did not know whether Rakshpal Singh's enmity was going on with Subhash Pandey or not and whether Rakshpal Singh and Tukman Singh were accused in the murder of Subhash Pandey's brother Subedar. He also did not know whether there was an encounter between Subhash Pandey's gang and the police and the empties found in the encounter and the empties found in the present incident were sent for examination or not. He has denied that Subhash gang had enmity with his family and because of this enmity Subhash gang could have caused the incident in question. He has also denied that the accused present in the Court could not have caused the incident. He has also denied that the two constables who were posted with accused Devendra by the I.G. Zone Kanpur for his protection, accompanied him for his security on the date and time of incident and that the accused Devendra was not involved in the incident in question. He has further denied that the gunners, who were posted with his uncle used to go for their personal work after asking him and they used to keep their weapons at his uncle's place. He has stated that accused Kaushalendra had lodged a robbery case against his family members before the incident in question and that was the cause of enmity. They did not take any female member of their family to see his father's maternal aunt. He has further stated that at that time his uncle Shivraj Singh was the manager of Amar Shaheed Inter College but he was not aware since when he was holding the said post. He has denied that the accused Koshlendra Pal Singh was falsely implicated due to enmity arising out of school for the post of manager. He has also denied that the family members who died in the incident in question had gone to meet his uncle who was in jail. He has also denied that at that time he, his father, his uncle Santosh Kumar, and Santosh Kumar Gupta were not present in the jeep.
49. P.W.-2 has further stated that on the date of incident they went to see his father's maternal aunt from their village. Total eight persons went to see her. Naresh Dixit and Ram Kishan (former Pradhan), met them at the Mainpuri Jail crossing while they were returning after seeing his father's maternal aunt. It was not correct that ten of them had left the village and did not meet the above two persons on the way. He has also denied that both the above persons did not met at Jail intersection and that is why the same was not disclosed to Inspector and C.I.D. He has further stated that at the time of incident driver Hem Singh was sitting on the front seat of the Jeep along with Gajendra @ Tillu and Mahesh Fauzi. Naresh Dixit, Ramkishan Former Pradhan and Ashok Parihar were sitting in the middle seat of the Jeep and remaining four persons were sitting on the back side of the jeep.
50. This witness has further stated that all the accused had fired at the moving vehicle. When all four of them jumped out of the vehicle, the accused were eight to ten paces away. While all four of them were jumping from behind the jeep, the accused also fired towards the jeep. The statement related to survival of four of them and the death of other 6 persons was given to the inspector. He has further stated that at the time when all four of them were running to hide, the accused fired at them but they did not get hurt as there was a jeep between them and the assailants. Accused started firing from the side of black top road. At the time of firing, the accused did not came from all sides of the jeep but they were firing from the eastern side of the jeep. He has denied that the place of incident was a dense forest comprising of Eucalyptus trees. He has also denied that there was a dense forest of Eucalyptus trees from Sarwa village to the drain at the time of the incident. The field where all four of them were hiding was about one and a half feet depressed from the place of incident. There was no ditch around the eucalyptus trees at the time of the incident. His height is five feet eight inches. All four of them had seen the incident from the agricultural field. He has also denied that the place of the incident was not visible because of trees, pigeon pea (Arhar) plants and the ditch where they were hiding. He also denied that they have seen the incident by hiding in the mustard field and not by hiding in the pigeon pea (Arhar) field. He has stated that all three of them came back to the place of incident after his father got seated in the tempo. There were more than 25 shots fired in total. He would not be able to tell which accused's bullet hit which deceased. He would also not be able to tell how many shots were fired by which accused. He would not even be able to tell which deceased was hit by how many shots. They saw the dead persons after coming out of the pigeon pea (Arhar) field. All the injuries of the deceased could not be seen. Nearly all the deceased had injuries above the neck. Even on that day, he could tell how many injuries the deceased sustained. After the Bhogaon police arrived they inquired and were told about the incident. At the time when the police was inspecting the place of occurrence no questions were asked from them nor they disclosed anything to the Police, as all three were sitting separately.
P.W.-3 (Santosh Gupta son of Shri Ramnath)
51. The incident took place nine years ago. They were going from Garhiya Kishanpur to Audenya in a commander jeep. In that jeep driver Hem Singh, Gajendra @ Tillu, Mahesh Fauji, Ashok Parihar, Santosh Singh and P.W.-1 Surendra Singh, Devendra (P.W.-2) and P.W.-3 were sitting. When they were coming back to Bewer from village Aurenya, Naresh Pandit and Ram Kishan Pradhan met at the jail intersection and both of them also sat in the jeep. When they reached 1.25 furlong east from Rui Sinaura, a Gypsy and Maruti car overtook his jeep and they were positioned in front of the jeep in which this witness alongwith others were travelling. Immediately, Devendra, Rajbhushan, Kaushalendra, Vipin, Ramakant, Villu, Jagannath, Ramnand, Hariom, Anand came out of the two vehicles, out of them Rajbhushan, Vipin, Jagannath, Ramanand had guns in their hands and the remaining six accused had rifles in their hands. At that time it was around half past four in the evening. All these accused exhorted that they would not spare any of them and take revenge. Seeing the accused persons, first informant/P.W.-1 Surendra Singh, Devendra (P.W.-2), and Santosh Singh along with him jumped from the jeep and ran towards the pigeon pea (Arhar) field in the west. As the driver was shot, the jeep got dis-balanced and collided with the tree. Due to the firing, Hem Singh driver, Gajendra @ Tillu, Mahesh Fauji, Ashok Parihar, Naresh Pandit, Ram Kishan Pradhan of Himayupur died on the spot. The incident was seen by them from pigeon pea (Arhar) field. After the incident, the accused left towards Mainpuri by their vehicles. After that all four of them came towards the railway crossing, where a tempo was standing by which first informant/P.W.-1 Surendra Singh went to Mainpuri to lodge report. After that all three of them returned to the spot. They had gone to see Surendra Singh's maternal aunt who was sick in Audenya. He has further stated that he had been living in Kishanpur Gadhiya for the last 4 to 5 years before the incident. He had a room in Kishanpur Garhiyan. His house would be one furlong away from the house of informant/P.W.-1 Surendra Singh. He knew first informant-Surendra Singh and his family for the last 14 to 15 years. In times of trouble, they visited the places of each other and also helped each other. He has further stated that he was an accused in one or two cases along with the family of the informant. He was an accused in the cases under Section 302 I.P.C. and 307 I.P.C. and was also an accused in one robbery and one kidnapping case. He has then stated that he was accused in two kidnapping cases and a total of four to five criminal cases were pending against him. When he was in Chilousa, no case was filed against him. He was also prosecuted under the Goondas Act and the Gangsters Act. It is not correct that there were twenty criminal cases against him from 1990 to 2004. Cases against him were in Police Station Kotwali and Police Station Bhogaon. There was no case registered against him at Police Station Kotwali Mainpuri.
52. P.W.-2 has further stated that he saw and identified the weapons that the accused had at the time of the incident. He informed the Inspector that four of the accused had guns and remaining six had rifles in their hands. If the inspector had not written the said fact in his statement, then he could tell the reason for the same. There was no other weapon in the hands of the accused except rifles and guns. He did not have information about automatic and semi automatic weapons. He did not inform the inspector that some of the accused had automatic and semi-automatic weapons in their hands. If the inspector had written the same in his statement, then he could not give any reason for it. He has further stated that after the incident, all four of them had gone to the railway crossing along with the informant Surendra Singh to drop him to a tempo. He informed the said fact to the Inspector and if he had not written it in his statement, he could not tell the reason for it. He did not inform the Inspector that after the departure of the accused, all four of them secretly went to Mainpuri. He has further stated that C.B.C.I.D recorded his statement after 7-8 months of the incident. At the time when his statement was recorded by C.B.C.I.D, he was in jail in a case under the Goondas Act. He did not give any statement to the C.B.C.I.D that ten people had gone with him in the jeep on the day of the incident. Naresh Dixit and Ram Kishan had not come with him. If the names of these people were not written in his statement among those going to Audenya, then the same is wrong. He did not give statement to the C.B.C.I.D. that at around 4:30 p.m. their jeep was trying to overtake the accused's vehicles after which it got disbalanaced and hit the tree. He gave the statement to C.B.C.I.D. that Jagannath Dixit had filed a case of murder of his son Rajevar @ Chhote Dixit against Surendra Singh's brother Upadesh Singh in Bhogaon Kotwali and because of the said enmity, the accused have committed the incident in question. He did not give statement to C.B.C.I.D. that the first informant Surendra Singh had left them on the spot and went to Mainpuri
53. P.W.-2 has further stated that in the case relating to the murder of Chhote Dixit, he was not named in the F.I.R. Later he was made an accused. He has further stated that after the accused left, they came to the spot looking for the dead bodies. After 10 minutes, the police of Bhogaon Police Station came and only then they came out of the field. The police of Bhogaon Police Station had come on the spot at half past five. On looking at the photographs of the dead bodies, he could identify two of them as photographs had been ruined. On looking at the photograph paper no. 10 a/1, the witness identified it as the body of Gajendra @ Tillu. He has also stated that the spot from where they jumped from the jeep and the pigeon pea (Arhar) field was 10-12 paces. About 15-16 minutes after the accused had left the spot, fist informant Surendra Singh was made to sit in the tempo at about 5 o'clock.
P. W. 4 (Dr. R.P.S. Chauhan), who conducted the autopsy of the deceased
54. P.W. 4 has stated that all the dead bodies were sealed and he had opened these dead bodies by matching them with the sample seal. He has further stated that injury No. 1 of Ashok Parihar was an injury caused by an Explosive, Injury No. 2 was in the form of Entry Wound fired from the left side of the decease. Injury no. 4 must have been inflicted from the right side. Injury No. 1 on the dead body of Ramkishan was inflicted from the right side. Injury No. 3 is possible to have been inflicted from the left side. Injury number 5 and 6 could be caused by a blunt hard object. Injury No. 1 on the dead body of deceased Naresh Dixit is possible to have been inflicted from left side. Injury No. 3 and 4 may have come from the friction of the bullet fired from the firearm. It is possible to inflict this injury from the left side. Injury No. 1 on the dead body of deceased Hem Singh is possible to be inflicted from the right side and this injury is possible to be caused by firearm bullet, Injury No. 2 can be said to have been inflicted from the back side. Injury No. 3 is possible to have been inflicted from the right side from the back. Injury No. 1 on the dead body of deceased Gajendra Singh is possible to have been inflicted from left side. Injury No. 3 is likely to be caused by a blunt object from the right side. Injury No. 4 is likely to be caused by a firearm bullet from the right side, Injury No. 5 is likely to be caused by a firearm bullet from the front right side. Injury No. 1 on the dead body of deceased Mahesh is possible to have been caused by bullet from front left side. Injury No. 2 is likely to have been caused from the front right side. Injury No. 5 is likely to be from a firearm shot from the front right side. Injury No. 6 was caused by a bullet from firearm from rear left side.
55. P.W.-4 has further stated that the injuries on the body of the deceased Ashok Parihar is possible to have been inflicted from left, right and from behind. The injuries on the body of the deceased Ramkrishna is possible to have been inflicted from left and right. The injuries on the body of the deceased Naresh Dixit is possible to have been inflicted from left side. The injuries on the body of the deceased Hem Singh is possible to have been inflicted from right and from behind. The injuries on the body of the deceased Gajendra Singh is possible to have been inflicted from left and right. The injuries on the body of the deceased Mahesh Singh is possible to have been inflicted from left and right. None of the injuries on the body of the deceased were inflicted from pellets and were bullets fired from the firearm. The metal pieces that have been removed from the dead bodies can also be such pieces which can enter the body after the blast of hand grenade etc. Ashok Parihar's injury number 06 is possible due to lathi blows.
P.W.- 5 (Mr. Babulal Gautam), the then Head Moharir of Police Station-Kotwali, Mainpuri
56. P.W.-5 has stated that after making an entry in G.D. at Police Station-Kotwali, District Mainpuri, the copy of the F.I.R. and the written report were sent by Constable 196 Udayaram to Police Station- Bhogaon. The original G.D. got weeded out as it was old. The original and carbon copy of GD is not available in front of him. He has further stated that when first informant/P.W. -1 Surendra Singh came to lodge the report, there were many persons, but three persons came with him inside the police station. At that time Kotwal Sahab, the inspector, was not present in Kotwali and he did not know as to after how long Kotwal Sahab had returned. He came to know on the basis of written report that the place of incident was not within the territorial limits of Kotwali Mainpuri. He has further stated that Bhogaon Police Station would be 13 to 14 kms away from Mainpuri Police Station. That road is connected to Mainpuri Police Station. As soon as written report was received, the other Head Muharrir informed other officers, S.H.O. Mainpuri and Kotwali of Bhogaon about the incident through wireless. Head Muhrrir was not questioned and at the time of incident Ashok Chauhan was BJP's worker and not MLA. P.W.-5 has denied that due to the pressure of the politicians, they have lodged an ante-timed F.I.R.
57. P.W.-5 has stated that at the time when the informant brought written report, S.I. Ram Awadh Singh was the Officer and on his orders he filed the check F.I.R. He was not ordered to lodge the F.I.R. in writing but orally. There is no entry in G. D. and that check FIR was written on the instructions of S.I. Ram Awadh Singh. There was no written order in his knowledge as to whether the Bhogaon police had sent the force on the spot or not. Whether any cognizable offence was registered or not could not be stated by him as the concerned G.D. was not in front of him. The informant Surendra Singh had given a written report to him and no conversation was held with him about the incident. He has denied that since he was known to Updesh Singh i.e. the brother of first informant Surendra Singh, therefore, he has lodged an ante-timed F.I.R.
P.W-6 Mr. Mubeen Ahmed the then S.H.O, Kotwali Mainpuri
58. This witness has stated that on information that a Maruti car was standing in New Bagwan colony for three days, he reached the New Bagwan colony and found that on the vacant plot of one Mukesh Kumar Shukla, a covered maruti car was parked. On removing the cover, he found that there were blood stains on the back seat and a live brass cartridge on the front foot board of the car on which P.K.B 30 was written and an empty on which K.F. 92 8MM was written. He also found that on the back seat there were two empties on which P.K.B 30 was written on the bottom of one and P.K.B 67 was written on the bottom of the other.
P.W.7 H.C.P. Mangal Singh, the then Head Moharir at Police Station-Bhogaon
59. This witness has stated that on the basis of written report of the first informant Surendra Singh and copy of check FIR of Police Station Kotwali, he has registered the case at Police Station-Bhogaon at 18:10 p.m. bearing Report No. 30 on 6th September, 1996 as Case Crime No. 286 of 1996. He has denied that the information of the incident was given to Kotwali Bhogaon at 5:35 p.m. by public.
P.W.-8 Rampal Singh, then Station House Officer of Police Station-Bhogaon, District Mainpuri/Investigating Officer
60. This witness has stated that on 6.9.96, he was posted as Inspector-in-Charge of Police Station Bhogaon, District Mainpuri. On that day, at about 4:50 p.m., information was received from a public person at the police station that firing was taking place at Rui Tiraha (cross road). Receiving the said information and after making necessary endorsement in the G.D. he left the Police Station along with other police personnels for the place of incident and on reaching the spot he saw that a Jeep No. UP 84A-0340 had collided with a Eucalyptus tree and the front bumper of the Jeep got stuck in the tree. A dead body is lying on the steering inside the jeep; another dead body broke the front window pain of the jeep due to which its half part is lying inside the jeep and half on the bonnet; a dead body is lying on the right seat behind the driver; two dead bodies lying on the right and left side of the jeep; one dead body is lying fifteen feet away from the jeep in the north-west direction. About the incident, immediately information was given to the higher officers on wireless. SI Vijay Singh Kagla, H.C. Raghunath Singh and Constable Bani Singh also reached the spot. From the spot, HC Raghunath Singh was sent to Bhogaon to get camera for taking photographs of the dead bodies. Constable Premkumar Awasthi was deployed for security at the spot till the spot was inspected. SI Vijay Singh and Constable Sukhveer Singh were directed to search the accused. Devendra Singh, Santosh Singh and Santosh Gupta, who were present at the spot, were inquired, and they disclosed that informant Surendra Singh had gone to Mainpuri Kotwali to lodge report about the incident, and after some time, Constable Sumit Narayan gave him a copy of the check FIR, G.D. entry and blank document for holding inquest etc. It was then that the informant Surendra Singh came and his statement was recorded. After taking the photographs of the dead bodies of deceased, the inquest of deceased Hem Singh was first conducted between 18.20 to 19.20 hours and same was handed over to H.C. Raghunath Singh Constable Bani Singh and Constable Mahesh for the postmortem after sealing the clothes. Along with the same, the documents relating to the letter C.M.O, sample seal challan lash, photo lash duplicate chik, duplicate report etc. on which exhibits K-13 and K-20 were also marked, were given to the police personnel along with the dead bodies of the deceased. Inquest of other dead bodies of the deceased were also conducted in the same manner and after sealing the same and following due procedure, the same were sent to Mortuary with Police personnels for their post-mortem. After that, he inspected the place of occurrence at the instance of the informant Surendra Singh. The site plan was prepared by P.W.-8 himself and he has also appended his signatures thereon, the site plan was marked as Exhibit-ka/62. P.W.-8 has also inspected the Jeep bearing No. UP 84A-0340, which was standing at the place of occurrence and has collected blood stained rexine from the front seat of the jeep and a few samples of bloodless rexine from nearby the seat. He has also collected blood stained rexine and few samples of bloodless rexine from the back seat of the jeep and same were sealed in four different clothes separately. Recovery memo of the same has also been prepared by him, which was marked as Exhibit-ka/63 and on the said recovery memo, the signatures of witnesses have also been taken. Thereafter, the blood stained earth and plain earth were collected from the places where the dead bodies of deceased Naresh Dixit, Mahesh Fauzi and Ashok Parihar were lying and kept in separate boxes and prepared recovery memos of the same. After that P.W.-8 also collected the other things which were lying on the place of occurrence like empties, slippers, spectacles etc. and recovery memos of the same have also been prepared.
61. In the cross-examination, P.W.-8 has stated that the place of incident is 3 kms away from Bhogaon police station. There is no railway crossing between the place of incident and Bhogaon police station. They were coming from Mainpuri to Bhogaon. There is a railway crossing between the place of incident and Mainpuri. He did not know as to how far the railway crossing is from the spot. He has further stated that there is only one railway crossing between the place of incident and Mainpuri. He was present at the police station when the incident was reported. He did not know the name of the person who gave the information and where he lived as he did not try to know the name and address from him. When he proceeded for the place of incident, one SSI, one SI and three constables accompanied him in Commander Jeep. When he reached the spot, he found three persons present there. He has also stated that It was not noted as to when he reached the place of incident, nor was it mentioned in the case diary. The presence of the three surviving persons on the spot was not mentioned in the case diary. At 4.55 PM. when he was nominated as Investigating Officer, he proceeded with the same.
62. P.W.-8 has stated that it was clear from the statement of the informant that the three persons are eyewitnesses of the incident but due to paucity of time, the statements of those three persons were not recorded on the spot. It is not correct that he did not meet the three persons on the spot, nor did he ask them. After arrival of P.W.-8 at the place of occurrence, the Mainpuri Police also reached there after half an hour. The inquests were prepared by his assistant policemen on his instructions. The inquest was conducted in his presence. He had also instructed the concerned police personnel to get the fard prepared. Apart from recording the statement of the informant, he has also prepared the site plan, recovery memos, etc. in his own handwriting. Seeing the photographs bearing paper nos. 10 A/1 and 10 A/17 available on record, P.W.-8 has stated that all these photographs are of the place of incident, where the jeep hit the Eucalyptus tree. He has stated that there are many Eucalyptus trees at a distance of four to five steps. There were small bushes attached to these trees. Seeing the photograph bearing Paper No. 10 A/1, he (PW.8) has stated that there are no five feet tall bushes in it. After having a glance at the photograph bearing paper no.1 10A/1, P.W.-8 has stated that the bush which is visible in front of the jeep is a fallen branch of Eucalyptus tree. He had seen the tree whose branch got damaged and was stuck in the jeep. He has further stated that Eucalyptus trees stood very tall.
63. P.W.-8 has further stated that one by one inquest was prepared of which details are mentioned in the case diary. At 1:30 a.m. in the night the last inquest was prepared. He has further stated that after making endorsement of details of inquests in C.D. he inspected the spot and prepared the site plan. While inspecting the place of occurrence, he found one empty and blood. The distance from which place the empty was found from the jeep was marked in C.D. No empty was found on the road. He has further stated that to the south of pigeon pea (Arhar) field, there is a maize field. P.W.-8 has also stated that he collected earth and other objects. All empties were found on the right side of the jeep. No empties were found on the left side or behind the jeep. He has also stated that there is no mention of any weapon in the column of the first page of any inquest report. He has stated that this column is not related to weapon. In inquest report, on the back side of the first page, where the details of the information are given, there is no name of the accused in it. He has denied that till the completion of inquests of the body of the deceased, FIR was not registered in this case.
64. P.W.-8 has further stated that he has written the first paper only in C.D. and the rest of the contents have been made by the second I.O. in the C.D. A copy of the FIR and G.D. entry were sent along with each inquest report. Some photocopies of the FIR and G.D. entry and some handwritten copies were received by him from constable Suryanarayan of Police Station Bhogaon at 6.15 pm. He has further stated that the dead bodies were sent from the spot in his presence at 1:45 a.m. on the same night. He did not remember as to by which vehicle dead bodies of the deceased were taken. The distance of the police line from the place of incident is about 10 kilometers. P.W.-8 has further stated that informant Surendra Singh had given his statement that ten persons including himself had returned from Bewer in that jeep after seeing his maternal aunt. The informant/P.W.-1 had not disclosed in his statement about any person sitting in the Jeep near the Mainpuri Jail. It has been disclosed by the first informant in his statement that when the driver Hem Singh Yadav tried to save the jeep from the offending vehicles, the jeep got dis-balanced and collided with the Eucalyptus tree. Immediately thereafter the accused got down from the Gypsy and Maruti Car, surrounded them and started firing indiscriminately. The informant had also disclosed him that he somehow reached Mainpuri by concealing himself. The informant went to Mainpuri by a tempo.
65. P.W.-8 has also stated that he did not care whether Updesh Singh Chauhan contested against Mr. Mulayam Singh Yadav in the general elections for Member of Parliament in the year 1996 or not. As soon as he reached the spot, he took control of that area and also took precautions that no tampering is done on the spot. P.W.-8 has also stated that the presence of the eyewitness on the spot is an important issue, which was photographed on the spot. He did not have the photographs of the informant Surendra Singh and the three persons accompanying him. The photography was done by a friend of the first informant. After meeting these three persons for the first time, he did not meet them again. He has also stated that the officers of CBCID had recorded his statement twice. In the statement which he gave to the CBCID, there is no mention of these three persons with whom he met on the spot. He could not give any reason why these three persons were not mentioned in his statement. He could not send the information of the incident to the relatives of the deceased through any means because he did not have time. He did not know whether any person from the house of the deceased had come to the spot or not. He has also stated that the second Investigating Officer also did not mention in the Case Diary as to whom the six dead bodies were handed over after post-mortem.
66. P.W.-8 has also stated that it has come to his notice that the bodies of the deceased were handed over to their heirs. The names and addresses of the heirs have not been recorded in the Case Diary. P.W.-8 and the second investigating officer did not investigate whether the six deceased had any criminal history or not, nor did they verify it from the concerned police stations. He was not aware whether the cases under 302, 307, 345 IPC are pending against the deceased Ashok Parihar and Mahesh Fauji or not. He has further stated that the rear cover of the jeep was down, while taking out the dead bodies and taking photographs, the curtain was rolled up and tied up. Jeep is a case property. Rolling up its cover and tying it up would not be considered as tampering with the case property. He has denied that he had not restored the cover of the jeep with a view to defraud or tamper with the case property and to help the prosecution.
67. This witness also stated that there is no such column in the inquest/ panchayatnama form for mentioning the name of weapon with which the deceased was hurt. It is printed in the Government Press. He has denied that he has not followed the procedure prescribed under the provisions of Code of Criminal Procedure. He has further denied that at the time of inquest he did not have the check FIR and the statement of the witnesses and therefore, he has not mentioned in the inquest as to by which weapon the deceased sustained injury. During inspection, neither at the place of occurrence nor inside the jeep, any bag was found. He has further stated that he did not remember whether the higher officials had seen the spot and recovered empties etc. or not. He has further stated that 10 to 11 days before the incident in question persons of Subhash gang had an encounter with the police in which empties were recovered. The empties recovered in the said encounter and the empties recovered in the incident in question were sent to the court of Chief Judicial Magistrate Mainpuri for investigation. No pellets or cardboard of cartridges were recovered from the spot and the jeep. None of the accused was taken into police custody. Witness P.W.-1 Surendra Singh had disclosed him that his jeep was overtaken and the vehicles of the accused were positioned in front of it. PW-1 did not disclose that the windows of the vehicles of the accused were open and they were carrying weapons in their hands. Witness Santosh Gupta has not given the statement that he had gone to see the maternal aunt of the informant at village Odai along with PW-1 on the date of incident. Aforesaid witness i.e. Santosh Gupta has not disclosed to him that Naresh Pandit and Ram Kishan Ex-Pradhan met them at Jail intersection while they were returning and they met him in the jeep. Aforesaid witness Santosh Gupta also did not disclose in his statement under Section 161 Cr.P.C. as to what weapons were in the hands of the accused.
68. P.W.-8 has further stated that witness Devendra Singh (P.W.-2) had disclosed the police that after the incident all four came to the railway crossing and got the informant Surendra Singh seated in a tempo. Naresh Dixit and Ram Kishan had met him at Jail intersection. This witness had also disclosed that Hem Singh, driver of the jeep in which the deceased and four others were travelling, wanted to take the jeep ahead for saving the passengers in the jeep due to which the jeep got dis-balanced and collided with the Eucalyptus tree. After getting down from the Gypsy and Maruti car, the accused Ramanand etc. armed with rifles, guns, automatic and semi-automatic weapons in their hands exhorted that they would take revenge and finish all of them, who were sitting in the jeep. P.W.-8 has denied that investigation was done under political pressure and influence of the first informant and the charge-sheet was submitted. It has come to his notice that the investigation of the case was transferred to the C.B.C.I.D. on the orders of the State Government where also the investigation was conducted.
69. P.W.-8 has also stated that in this case raids were conducted before the submission of the charge-sheet. During that period he did not know about the bodyguard of accused Kaushalendra Pal Singh. Raid was conducted at the place of accused Kaushalendra for his arrest. Police personnel from several police stations were deputed to arrest the accused in this case. The statement of the bodyguard of accused Kaushalendra was not taken by the police. P.W.-8 has also stated that name of Ram Kishan is not mentioned in the FIR. He himself has stated that in the FIR his name has rather been mentioned as Ex-Pradhan. Aforesaid fact had been discovered later on the disclosure of witnesses. The name Devendra Singh has been mentioned in the First Information Report. In the inquest report Exhibit K-29, name of Devendra Singh was wrongly written, which was scored out and re-written as Ramkishan. On top of the first page of that inquest report, only the name of the deceased Ram Kishan is written, but the father's name is not written. However, in the concerned column, the father's name is written as Kalyan Singh. On the back of the first page of this inquest report the name of Devendra Singh was written at two places, which was corrected as Ram Kishan.
70. P.W.-8 has further stated that before reaching the spot, he did not get the copy of the First Information Report and other documents. He got the said documents about quarter to one hour after reaching the spot. He has further stated that after reaching the spot but before getting the above documents, he had inquired from the three persons present on the spot. Before preparing the inquest, he had seen the check FIR and other relevant records and accordingly started with the proceedings of inquest of the dead bodies and completed it. P.W.-8 has denied that the name of Devendra Singh was crossed out in the inquest report and Ramkishan was mentioned as per the FIR i.e. Exhibit K-29.
71. P.W.- 8 has also stated that the informant could have told about the collision of the jeep with the Eucalyptus tree in the incident, but he had not told so and that he had seen with his own eyes that the jeep collided with the tree. Witness Devendra Singh did not state in his statement under Section 161 Cr.P.C. that the accused stayed at the spot for seven to eight minutes. All the accused had come near the jeep and fired bullets and inspite of them coming close four person ran away.
BRIEF STATEMENTS OF THE ACCUSED RECORDED UNDER SECTION 313 Cr.P.C.
72. In his statement the accused- appellant Vipin Kumar has stated that he has not committed any offence as alleged by the prosecution and he has been falsely implicated in the present case by the first informant/P.W.-1 due to enmity, as his land is adjacent to the house of P.W.-1 which he had refused to sell. He has further stated that he neither belongs to the family of co-accused Jagannath nor has any relation with him.
73. The accused-appellant Kaushalendrapal Singh has stated that since the first informant/P.W.-1 and his brother have enmity with him due to school, for the post of Manager and political rivalry, he has been falsely implicated in the present case. He has further stated that when he was working on the post of Vice-President, Amarshaheed Inter College, for non performing of his duties, the uncle of the deceased, who was working on the post of P.T.I. in the said school, a notice was given to him for removing him from his service and because of it, the uncle of the deceased harboured a grudge with the accused-appellant and he has falsely implicated him in the murder of his nephew i.e. the deceased.
74. Accused-appellant Chandrakant Dixit has stated that he has not committed the alleged offence and due to litigation and enmity between the first informant/P.W.-1 and his family members, he has been falsely implicated in the present case. He has also stated that the first information report has been scribed by P.W.-1 after consultation with Police and the Police has also conducted false investigation against the accused. He is a Government servant and is working as a Junior Clerk in the Commercial Taxes Department. He doesn't have any criminal history.
75. It has been stated by the accused-appellant Devendra that since litigation is going on between his family and the family of the informant/P.W.-1, he has been falsely implicated in the present case. He has further submitted that the murders of all the six deceased were carried out by the gang of Subhash Pandey. He has also stated that he has fifty bighas of land which the first informant/P.W.-1 neither allows him to plough nor sow. The bundle of mustard crops of the accused-appellant was burnt by the first informant/P.W.-1 and his sons and in that regard he had lodged a report at Bhogaon police station against them due to which he has been falsely implicated in the present case.
76. Accused-appellant Ramakant Dixit has stated that he has not committed the alleged offence and since litigations are going on between his family members and first informant/P.W.-1, he has been falsely implicated in the present case. He has further stated that at the time of the alleged incident, he was present at home in Hathras, as his wife was unwell and he was on leave.
77. The accused-appellant Jagannath has also stated that due to litigations which are going on between his family members and first informant/P.W.-1, he has been falsely implicated in the present case. It has also been stated that he was working as conductor in U.P.S.R.T.C. and was posted at Hathras. On the day of the alleged incident, he and his nephew i.e. co-accused Ramakant Dixit were present at home and he was in the company of the police guards.
78. The accused-appellant Hariom has also pleaded innocence. He has stated that he has fifty bighas of land and orchard in village Kishanpur Gadhiya, which the first informant/P.W.-1 and his relatives do not allow him to sow and cultivate, due to which some altercations took place between him and them.
TESTIMONY OF DEFENCE WITNSSES
79. In order to establish their innocence, the accused-appellants produced six witnesses who are detailed hereinunder.
D.W.-1 (Mr. Ramesh Chandra Shamra, Senior Assistant in the office of Trade Tax at Shikohabad)
80. This defence witness has stated that on 6th September, 1996 the accused-appellant Chandrakant Dixit was posted as Junior Clerk in the office of Trade Tax Officer, Shikohabad namely Sri Pradeep Kumar Yadav. He produced the attendance register of September, 1996. He has also verified the attendance register brought by Rakesh Chaturvedi, Senior Clerk wherein Chandrakant Dixit is shown to be present in the office on 6th September, 1996. His signatures also appeared in the attendance register. As per this register the accused-appellant Chandrakant Dixit attended the office between 10:00 a.m. to 05:00 p.m. Chandrakant Dixit has also received salary for the period 1st September, 1996 to 6th September, 1996. This witness has also been cross-examined wherein he has stated that he cannot tell as to when other 8 workers had come to the office and thereafter left the office. This witness has stated that he cannot say as to at which time Chandrakant Dixit had left the office on 6th September, 1996.
D.W.-2 (H.C.-179 Surya Pal Singh, Head Constable, who was then deputed to work as Gunner with the accused Kasuhlendra Pal Singh till 7th September, 1996, whereafter he returned to Police Line)
81. This defence witness has stated that he was with Kaushlendra Pal Singh on 6th September, 1996. He visited Amar Saheed Intermediate College Bewer at 11.00 a.m. along with Chandra Pal Singh and remained there till 12.30 p.m. Thereafter Kaushlendra Pal Singh along with D.W.-2 went to the place of Tota Ram at 03:00 p.m. as uncle of Tota Ram had died and remained there till 06:30 p.m. It is at the place of Tota Ram that this witness came to know that some incident has occurred at Bhogaon in which certain persons were killed. He has then stated that he along with Kaushlendra Pal Singh had gone to this place at 06:30 p.m. and remained with him till 08:00 p.m. and after Kaushlendra Pal Singh went inside his room for rest, this witness came back. Later this witness came to know that name of Kaushlendra Pal Singh had figured in the incident. In the cross-examination this witness could not give the detail of other persons with whom he had worked as gunner. This witness has further stated that he knows Tota Ram from 1990. He always accompanied Kasuhlendra Pal Singh. The Police raided his house on 6th September, 1996 at 09:00 p.m. and interrogated him but Kaushlendra Pal Singh was not found. He was not informed as to whether he was to go anywhere late in the evening. This witness informed the Police of Bewer Police Station that since Kaushlendra Pal Singh is not present, therefore, he is leaving for Police Line. He had not given any information that Kaushlendra Pal Singh was not traceable from 09:00 p.m. on 6th September, 1996 till 07:00 a.m. on the next morning. This witness has been confronted on the need to maintain the diary and he has admitted that movement of the presence is mentioned but he has not brought such daily diary. He has denied the suggestion that since the facts about the movement of Kasuhlendra Pal Singh was not mentioned in the diary, therefore, he has not produced the same. He has also denied that he was not with Kaushlendra Pal Singh on 6th September, 1996. He has also denied having given any statement to Inspector C.B.C.I.D. that he was a gunner with Kaushlendra Pal Singh since 1st September, 1996.
D.W.-3 (Mr. Rajesh Kumar Singh, the then Inspector of C.B.C.I.D. Agra (from July, 1997 to July, 1999)
82. This witness has stated that after receiving the investigation, he recorded the FSL report dated 28.9.96, which was received from the Forensic Science Laboratory, Agra and attached the related documents along with it. On 5.2.99, he also recorded the statement of Mr. Rampal Singh, Station In-charge of Police Station. On 23.4.99. after reaching the Commercial Tax Office at Mainpuri, he inspected the attendance register dated 6th September, 1996 which relates to accused Chandrakant Dixit, and obtained certified photocopy of the attendance register for the month of September 1996. He also recorded the statement of Mr. R.S. Vimal T.T.O. He then obtained photocopy of the records regarding criminal history of accused of Police Station-Bhogaon. On 01.5.99 he recorded the FSL report which was received from Forensic Science Laboratory Agra. On 07.5.99 he recorded statement of Mr. Pradeep Kumar Yadav, Trade Tax Officer. On 13.5.99, he has verified the death of named accused Samanand Dixit from Police Station Bewer.
83. D.W. 3 has then stated that the In-charge officer of Police Station-Bhogaon Rampal Singh had disclosed in his statement that information was received at the police station at 16:50 hours by a member of the public that firing has taken place at Rui Tiraha. Ballistics expert's report dated 31.7.98 was copied by him in the C.D. He has further stated that from the perusal of result column of the aforesaid report, it was opined that empties recovered in the incident of Case Crime No. 539 of 1996, Police Station Kotwali, Mainpuri vide Paper no. EC-32 and EC-34 and the empties EC-15 EC-17 EC-19 and EC-29 recovered from the Maruti car were fired from the same firearm. He has further stated that in the incident of Case Crime No. 539/96 Police Station Kotwali Mainpuri, two empties being Ch. E.C.-31 and E.C.-33 were recovered. He had investigated the case from 31.7.98 to 13.5.99. After that investigation was done by Mr. Mehak Singh. He has further stated that from the statement of Rampal Singh, which has been recorded by him on 5.2.1999, he came to know that Constable Vijay Singh, Head Constable Raghunath Singh and Bani Singh went to the place of occurrence. In the statement of Rampal Singh, there is no mention of presence of witnesses Surendra Singh, Devendra Singh, Santosh Singh and Santosh Gupta on his reaching the spot nor the same has been mentioned in their statements under Section 161 Cr.P.C.
D.W.-4 Sri S.C. Pal Retd. Deputy S.P., then Inspector of C.B.C.I.D., Agra (from 30.11.1996 to 28.01.1998
84. This defence witness has stated that from perusal of the records of Police Station-Bewer, it was discovered that on 23rd May, 1996 a shoot-out allegedly took place between these two parties and in that regard Shiv Raj Singh P.T.I. brother of the informant/P.W.-1 had lodged the FIR which was registered as Case Crime No. 153 of 1996 under Sections 147, 149 and 302 I.P.C., Police Station -Bhogaon, District Mainpuri. In the aforesaid FIR Ramakant and 6 others along with his two gunners were nominated as accused. However, on 7th July, 1996 a police report (final report) was submitted. A cross case being Case Crime No. 153A under Sections 147, 148, 149, 307 and 302 I.P.C. was lodged by accused Jagannath Dixit against Shiv Singh, Updesh Singh, Surendra Singh @Mallu and Sushil Gupta in which charge-sheet was submitted on 7th July, 1996. He has further stated that Anand Dixit told him that his father Jagannath Dixit had gone to Delhi for his treatment and after his coming back statements of all could be recorded. Statements of named accused Rajbhushan Singh and Kaushalendra Pal Singh were recorded on 1.12.96. He has further stated that the higher officials had suggested the former investigating Officer Mr. Nand Kumar that there was possibility of involvement of Subhash Gang in the incident in question, therefore, information of sending the empties recovered in respect of Case Crime No. 539 of 1996, which was connected with Subhash Gang and empties recovered in the incident in question for forensic examination, was recorded by him on the statement of Mr. Mall. In his statement Mr. Mall did not state that there was possibility of involvement of Subhash Gang in the incident in question but when he inquired from Mr. Mall, he stated that on the orders of the S.S.P., some of the empties recovered in both the incidents have been sent for forensic examination. He has then stated that Constable Munshi Lal told him that on 6th September, 1996, the accused Jagannath was with them throughout the day. A similar statement has also been given by Constable Vijay Kumar but he has only indicated him as old man. Witness Santosh Kumar told him that on the alarm of a women that there is firing on the road, he had written in the C.D. near the school that Maharani Avanti Bai Primary School is located on the side of the road, about 100 steps south of the place of incident.
85. D.W.-4 has further stated that Daggi Lal had told him that at the time of the incident, he was in the village with his family and it was raining mildly between the village and the place of incident and there were crops of maize and there were tall bushes near the Eucalyptus trees on the side of the road. He has then stated that the informant/P.W.-1 Surendra Singh also told him on 15.5.97 that he had gone to Mainpuri Kotwali and not to Bhogaon Kotwali because the Police of Bhogaon was under the influence of the accused.
86. D.W. 4 has then stated that he had inspected the place of incident on the telling of witness Devendra Singh. He has not prepared any site plan. The site plan prepared by the Civil Police has been confirmed by him. D.W.-4 has further stated that before starting the investigation, he examined the FIR. The informant Surendra Singh and the witnesses Devendra Singh and Santosh Gupta did not disclose that Naresh Dixit and the former Pradhan of Humayupur, namely, Ramkishan, met at Jail intersection, while returning from Odai Padariya and they were seated in the same jeep. The said three witnesses had disclosed that their jeep was overtaken by vehicles of accused which positioned itself in front of their jeep, on which their jeep driver tried to overtake after avoiding them due to which their jeep got disbalanced and collided with the Eucalyptus tree. It was not disclosed by any of the witnesses that the jeep collided with the Eucalyptus tree after the driver Hem Singh was shot. He has further stated that Devendra Singh had given his statement to him that all four of them had witnessed the whole incident by hiding in the mustard field but he had not disclosed that he had seen the incident by hiding in the pigeon pea (Arhar) field. It has also not been disclosed by any of the witnesses that the nick name of Ramkishan is Kishanpal. The informant Surendra has not disclosed him as to how and by what means he had reached Mainpuri Police Station Kotwali but on 15.5.97 he has disclosed that after incident occurred, leaving three survivors on the spot, he reached on the road by foot and thereafter travelled to Mainpuri on a three wheeler tempo.
D.W.-5 (Shri Kamlesh Kumar, Revenue Inspector, District Panchayat Mainpuri, District, Mainpuri)
87. This defence witness has stated that he is posted in the office of District Panchayat for the last three months. Signatures appended on the paper No. 129, are his own and he has issued it. He has also certified it on which exhibit kha-3 has been marked. He has further stated that the licence for holding Rui Cattle Fair has been given since 1988. According to records, this fair is held on Tuesday and Friday. He cannot say as to whether this fair is held at the spot or not. This witness has also been cross-examined in which he has stated that such cattle fairs are held at about twenty places in Mainpuri district. In connection with such cattle fair, some persons deposit the requisite fee but do not get it organized. In the certificate marked as Exhibit Kha-3 the place of cattle fair has been mentioned as Rui and village Rui is 3 to 4 kilomtres from Mainpuri- Bhogon road. He does not know whether any cattle fair was held in Rui on 6th September, 1996 or not?
D.W.-6 ( Shri Mehak Singh, Retired Inspector C.B.C.I.D. Agra
88. This witness has stated that he had conducted the investigation of the case from 18.2.2000 to 14.3.2000. He recorded the statements of many witnesses including Arvind Singh Tomar, who disclosed that he had heard that on 06.09.1996 on Bhogaon to Mainpuri road in front of railway crossing, Gajendra Singh @ Tillu, nephew of Shiv Raj Singh, resident of Bewer, along with his five companions, who were travelling in a jeep after meeting Updesh Singh and Shiv Raj Singh in Jail, were killed. Tomar also disclosed that Shivraj Singh and Updesh Singh (of Fata) were related to the Janta Party. He has further stated that Tomar did not disclose him that there was any other person in the jeep other than the six deceased.
89. D.W.-6 has further stated that Rambabu Kushwaha also reiterated the version of Arvind Tomar. Rambabu has also disclosed that he heard that Ramnand Dixit, Rajbhushan etc. were named accused in the incident in question and there was enmity due to party bandi between them. D.W.-6 has also stated that he had inspected the place of occurrence. At the time of inspection, he found a primary school on the south side of the place of occurrence. Thereafter he has described the place of occurrence with reference to its vicinity. He has also stated that at the time of his inspection, he found that the primary school was closed. Matadeen had disclosed him that when the police arrived at the place of occurrence he also reached there and saw that six persons were lying dead but he did not know as to who were the assailants and what was the quarrel and how many persons were there. A similar statement was also given by Mohan Lal but he did not disclose as to whether any person other than police was present at the place of occurrence or not?
90. D.W.-6 has further stated that during the course of investigation, he came to know that the accused was known to Subhash Pandey but after sometime, he has stated that only Anand Dixit knew the accused Subhash Pandey and was not related. He has further stated that during the investigation, Deputy Jailor Mr. Pathak had disclosed him that on 6.9.96 no one had met Updesh, Shivraj Singh who were detained in the District Jail. Witness Arvind Tomar had also not disclosed him that from whom he came to know about the incident during the course of investigation. He has also stated that he came to know that Subhash Pandey is not related to the Dixit family gang. Criminal history was also found against Subhash Pandey. He has also stated that during the investigation, no witness disclosed him about the involvement of Subhash Pandey or his gang members in the incident in question.
91. D.W.-6 has further stated that in the murder of Subedar, brother of Subhash Pandey, neither the informant, nor deceased nor the family members were named as accused. He has further stated that the witness Matadin had disclosed him that when the shots were fired, he saw that there are about 10 to 12 persons who were firing from the road due to which he got scared and went to the village and hided himself. Witness Mohan Lal has disclosed him that some persons, who were about 10 to 12 in number, were firing.
ARGUMENTS ADVANCED ON BEHALF OF THE ACCUSED-APPELLANTS
92. On behalf of Accused-appellant-Rama Kant Dixit Mr. V.P. Srivastava, the learned Senior Counsel has made the following submissions:
(i) the FIR which was lodged on the basis of written report submitted by the first informant/P.W.-1 is ante-timed;
(ii) the prosecution witnesses were actually not present at the time and place of occurrence and the evidence to show their presence as such is manufactured;
(iii) the prosecution story that first informant/P.W.1 had gone to meet his maternal aunt (Mausi) along with nine others is a story full of concoction inasmuch as neither the informant/P.W.1 knew her name nor there was any reason to take seven persons (outside of his family) with him for the said purpose;
(iv) it is emphasized that if the purpose of such visiting was to see his maternal aunt, it was expected that some ladies of his family would also go, which is not the case here; justification that the male members accompanied informant/P.W.1 for his safety and security, is fallacious, since none of them carried any firearm/weapon;
(v) the alleged cause of shoot-out was the enmity of the accused-appellants with informant/P.W.-1 and it would be highly improbable that P.W.1 along with three others would be spared unharmed and uninjured while the six others were shot dead and that too when P.W.-1 was the primary target on account of enmity;
(vi) the prosecution story is contradictory as at one place it is alleged that the accused-appellants positioned their vehicles while the other version is that the driver sustained gun shot injuries on account of which the jeep in which the deceased and the prosecution witnesses of fact were travelling collided with the tree;
(vii) the prosecution version that four persons could jump out of running jeep without any injury and could flee unhurt is improbable;
(viii) the prosecution version that the prosecution witnesses could see the incident from pigeon pea (Arhar) field is highly improbable when the accused-appellants primarily wanted to alienate the first informant/PW-1 in the shoot-out;
(ix) the F.I.R. version of the prosecution story that first informant/P.W.-1 having gone to Police Station- Kotwali, District Mainpuri for lodging a report after travelling about 9-10 Kilometers even when the Bhogaon Police Station is situated much closer to the place of occurrence casts a serious doubt in the prosecution case. It was otherwise impossible for the first informant/P.W.-1 to have travelled such a long distance on foot while concealing himself and in a shot span of less than an hour;
(x) the fact that the name of Devendra Singh Ex-Pradhan of Himayunpur is mentioned in the F.I.R. whereas his name is Ramkishan shows that the informant/P.W.-1 has not witnessed the occurrence;
(xi) the circumstance that Santosh Singh son of P.W.-1 (not produced in evidence) P.W.-2 and P.W.-3 were not examined by the Investigating Officer on the spot under Section 161 Cr.P.C. and they are also not the witnesses of inquests including P.W.-1, are circumstances indicating that these witnesses were not present at the spot when the incident occurred;
(xii) the first informant/P.W.-1 stated that other three persons were left at the spot and he alone come to Police Station Kotwali, District Mainpuri for lodging the F.I.R. is contradicted by P.W.-2 and P.W.-3 who have stated that they accompanied P.W.-1 uptill railway crossing;
(xiii) in the F.I.R. the offending vehicles are mentioned as Gypsy and Maruti Van, whereas in the testimonies of the prosecution witnesses the vehicles have been described as Gypsy and Maruti Car, which too raises a doubt as to whether the prosecution witnesses have seen the incident and;
(ivx) as per prosecution witnesses, accused-appellants only had guns and riffles whereas the injured have sustained explosive injuries and also bullets fired from automatic and semi-automatic guns, which raises doubt as to whether the prosecution witnesses have seen the incident i.e. the medical evidence does not fully corroborate the ocular version of the occurrence.
On behalf of accused-appellants Vipin Dixit, Chandrakant and Hari Om
93. Mr. Brijesh Sahai, the learned Senior Counsel for aforesaid appellants while adopting the arguments of Mr. V.P. Srivastava, the learned Senior Counsel has laid much emphasis in challenge to the prosecution case and submitted as under:
(i) the prosecution witnesses are not consistent inasmuch as the witnesses at one place claim to have seen the incident from pigeon pea (Arhar) field while at other place they claim to have seen the incident from mustard field;
(ii) the jeep in which the deceased along with P.W.-1, P.W.-2, P.W.-3 were travelling, was not recovered and its whereabouts was also not available;
(iii) the details of the manner of incident have not been disclosed and it is not clear as to how four persons who were also travelling in the same jeep were spared which included the primary target i.e. P.W.-1;
(iv) the story of stopping of the jeep after it collided with the tree has come up for the first time during the course of trial;
(v) the fact that out of four alleged to have been spared in the attack, it is the eldest who was the prime enemy and he came to lodge the F.I.R. leaving behind three young survivors renders the prosecution version of the occurrence improbable;
(vi) the inquest of the last deceased is shown to have been completed at 01:30 A.M. on 7.9.1996, whereas the prosecution witnesses disclosed its time as 02:30 A.M. on 7.9.1996. As such there is contradiction in the testimonies of P.W.-1 and P.W.-2;
(vii) it is also not established from the evidence brought on record by the prosecution as to when the dead bodies of the deceased were sealed and when the constables, who carried the dead bodies reached the mortuary for their autopsy as there is an issue as to at what time the dead bodies were sent to mortuary for post-mortem;
(viii) the investigation is wholly dishonest;
(ix) criminal background of the prosecution witnesses have also been emphasized:
(x) there are material improvements i.e. embellishment and contradictions in the depositions of the prosecution witnesses;
(xi) the manner of assault is contradicted by the autopsy reports of the deceased;
(xii) there are three distinct versions of the incident, namely,
(a) version as per prosecution witness;
(b) version as per Autopsy Surgeon; and
(c) version as per Investigating Officer.
all of three of which are mutually inconsistent; and
(xiii) the prosecution witnesses have alleged that the accused-appellants fired from the front while the Investigating Officer claims that the empties were recovered from the right side of the jeep whereas the Autopsy Surgeon has proved that the injuries have been caused from the both sides of the jeep i.e. the left and right side and even from the front but none of the injuries have been caused from behind, which conclusively proves that the prosecution witnesses were neither present at the spot nor they have witnessed the occurrence.
On behalf of accused-appellant - Devendra
94. Mr. Rajiv Lochan Shukla, the learned counsel for the accused-appellant Devendra, while adopting the arguments of the aforementioned two Senior Advocates has highlighted the evidence on record to show the involvement of Subhash Gang in the shoot-out, which has been fully discarded by the prosecution.
95. It is also highlighted that in a different incident where Subhash Gang was involved in a shoot-out, certain empties were recovered. The said empties were matched with the empties recovered in the case in hand and it was established in forensic examination that the two sets of empties were fired from the same firearm. The original communication of Joint Director, Forensic Science Laboratory, U.P. Agra dated 31st October,1996 in the case of State Vs. Ramanand & Others, was not produced in evidence and its photo copy alone was brought on record vide Paper No. 131Aa/10 The then Investigating Officer of C.B.C.I.D. has proved the report which has also been incorporated in case diary of the investigation of the case in hand.
96. Mr. Shukla also submits as under:
(i) the above evidence clearly casts a doubt in the prosecution case in face of credible evidence suggesting involvement of Subhash Gang in the crime in question;
(ii) the informant/ P.W.-1 comes from a very influential family as his two brothers were M.L.As. (Members of Legislative Assembly);
(iii) the Jeep in which deceased were travelling was covered from the back side. Thus, it was impossible for P.W.-1 along with three others, who were sitting on the rear side of the jeep, to come out from the back door of the jeep easily, particularly when stepney was fixed on the back door of the jeep, which would act as an hurdle;
(iv) seeing the criminal antecedents of the prosecution witnesses,, their conduct is not natural and reliable;
(v) the statements of defence witnesses about the existence of Forensic Science Laboratory Report was not challenged nor the defence witnesses were controverted on this aspect and, therefore, the statements of defence witnesses remains intact; and
(vi) the photographs available on record would clearly show that the place of occurrence was such that it rendered impossible for someone to see the incident from pigeon pea (Arhar) from a distance of 40 to 50 paces.
On behalf of accused-appellant Kaushlendra
97. Mr. A. K. Shukla, the learned counsel for appellant Kaushlendra adopts the arguments advanced by Mr. V.P. Srivastava and Mr. Brijesh Sahai, learned Senior Advocates as well as Mr. Rajiv Lochan Shukla, Advocate.
Arguments advanced on behalf of State
98. Per contra, Mr. Arunendra Singh and Mr. Amit Sinha, the learned A.G.A. opposing the appeals submit as under:
(i) present case is a case of brutal shoot-out in which six persons have been shot dead on account of indiscriminate firing by accused-appellants;
(ii) the incident was reported to the Bhogaon-Police Station and as the information was circulated on wireless, the authorities responded and promptly rushed to the spot;
(iii) mere inadvertent omission would not discredit the prosecution case;
(iv) merely an error of punctuation i.e. a "comma" was left out in between Devendra and Ex-Pradhan of Humayunpur will not render the prosecution story unworthy of trust;
(v) there was no Ex Pradhan in the name of "Devendra" whereas his name is "Ramkishan" and that is why corrections were incorporated, wherever required including the inquest reports of the deceased;
(vi) in an incident of such a kind, it is but natural for anyone to rush to the Police Station situated in prime location of a city like Police Station Kotwali Mainpuri, rather than come to Police Station Bhogaon, which is situate outside the city. As such prosecution case cannot be disbelieved merely on the ground that the FIR was lodged at a police station which is situate far away even when another police station is already situated at a short distance.
(vii) no major inconsistency is shown in the prosecution case which may discredit the prosecution story;
(viii) in an incident of present kind where indiscriminate firing was made, it would be difficult to ascertain as to who had hit whom, from which side and these aspects cannot be decisive and the arguments that the manner of assault is inconsistent is misconceived; and
(ix) in an incident of firing one would rush in the safe direction available and it cannot be pin pointedly explained. As such the place of the injuries sustained by the deceased cannot be explained with precision.
FACTUAL ISSUES WHICH REQUIRE CONSIDERATION
99. The prosecution has come up with a specific case that accused-appellants are the persons who carried out the brutal shoot-out in which six persons have been done to death. The guilt of the accused-appellants is proposed to be established on the basis of documentary evidence filed before court below which we have already tabulated in the earlier part of this judgment as also the oral testimonies of witnesses of fact, namely, Surendra Singh (first informant/P.W.-1), who happens to be the father of the deceased, namely, Gajendra Singh; Devendra Singh (P.W.-2), who is the son of P.W.-1 and brother of the deceased Gajendra Singh; and Santosh Gupta (P.W.-3), who happens to be a close associate of P.W.-1/first informant.
100. In addition to above witnesses of fact, the prosecution has also adduced Dr. R.P.S. Chauhan (P.W.-4), who conducted the autopsy of the bodies of all the six deceased and proved the post-mortem reports. Other witnesses including the formal witnesses who have proved the police papers and the Investigating Officer, who had conducted the investigation have also produced.
101. With the above spectrum of these appeals in hand we now proceed to deal with each of the issues raised before us in support as well as in opposition to these appeals.
INIMICAL RELATIONSHIP BETWEEN THE PARTIES AND GENESIS
102. Before embarking upon the evaluation of evidence it would be worth noticing the inimical relations between the parties. According to the prosecution the shoot-out was a result of enmity between P.W.-1 and the accused party and the object of the shoot-out was to take revenge from P.W.-1. The aspect of enmity is also reflected in the statements of two other prosecution witnesses of fact i.e. P.W.-2 and P.W.-3.
103. P.W.-1 in his examination-in-chief has stated that there is an old enmity continuing with the accused. Prior to the incident in question earlier an incident had occurred at Lucknow in which the brother of P.W.-1, namely, Shiv Raj Singh was shot and he was injured. In the said case, Chhotey son of accused Jagannath and Hukum Chand father of accused Ramanand were accused. Whereafter another incident occurred in which the brother of P.W.-1 Shiv Raj Singh was again shot and he thus injured. His associate, namely Jai Govind Dixit was killed and Chhote son of Jagannath, Anand brother of Jagannath and accused Hariom son of Hukum Chand were implicated in the said case, which is said to be pending. The exact testimony of P.W.-1 in this regard is worth reference and is accordingly extracted hereinunder:-
"यह सही है कि वर्ष 1985 में मेरे भाई शिवराज सिंह पर बेवर में प्राणघातक हमला किया गया, वर्ष 1986 मे उन्ही पर लखनऊ में प्राणघातक हमला हुआ तथा सन् 1986 में मेरे भाई शिवराज सिंह व उपदेश सिंह आदि पर हमला किया गया। जिसमें हमारे साधी श्री जयगोविंद दीक्षित की हत्या हो गई थी इसी संदर्भ में मैने दरोगा जी को बताया था कि इन्ही रंजिशों के कारण यह घटना हुई है।
104. P.W.-1 in his cross-examination has admitted that in the murder of Ramesh Chandra Dixit, father of accused Vipin Dixit, names of P.W.-1, his son Devendra (since deceased), his brothers Shiv Raj Singh and Updesh Singh, Santosh Singh (P.W.-2) along with others surfaced. P.W.-2 in his cross-examination has also verified the said statement of P.W.-1 and admitted as under:
"रमेश दीक्षित की हत्या के मामले में उनके पिता श्री कृष्ण ने मेरे परिवार वालो के खिलाफ रिपोर्ट लिखाई थी यह कहना गलत है कि रमेश दीक्षित की हत्या वाले मुकदमे में सभी गवाही होस्टाइल हुए थे इसलिए वह केस छूट गया था।"
105. P.W.-1 has further stated in his cross-examination that Hukum Chandra Dixit, father of accused Hariom and Ramanand was earlier shot dead in which the son of P.W.-1, namely, Munesh and his brother Updesh along with others were accused. He has again stated that he knew Chhotey @ Rajveer son of accused Jagannath and in whose murder, Updesh Singh, Shiv Raj Singh, his son Mallu were accused and name of Santosh Gupta (P.W.-3) has subsequently been included in the said case. The cousin brothers of Rajveer @ Chhotey are Ramakant Dixit (accused-appellant herein), Chandrakant and Billu. Though in his cross-examination, P.W.-1 has stated that he does not remember as to whether any case was lodged by Jagannath and his family members against him but he has admitted that there is an ongoing enmity between Jagannath and him for the last ten years prior to this incident. The statement of PW-1 in this regard reads as under:
"जगन्नाथ के परिवार के इस मुकदमे मे कूल चार लोग मुल्जिम है जगन्नाथ से इस घटना से दस वर्ष पहिले से मेरी रंजिश चली आ रही है मुझे ध्यान नही है। कि जगन्नाथ व उनके परिवार में अन्य मुल्जिमान ने मेरे विरूद्ध घटना के पूर्व कोई मुकदमा लिखाया है या नहीं। मैने दरोगा जी को यह बता दिया था कि जगन्नाथ वगैरह ने मेरे परिवार वालो के खिलाफ कई झूठे मुकदमे दर्ज कराए थे। मैने यह ब्यान सही दिया था । यह बात हम लोगो को बुरी लगी थी कि जब जगन्नाथ वगैरह ने हम लोगो के खिलाफ मुकदमे दर्ज कराए थे। यह कहना गलत है कि इसी रंजिश के कारण मैने भी जगन्नाथ आदि के खिलाफ झूठी रिपोर्ट लिखाई हो।"
106. In his cross-examination, P.W.-1 has admitted that accused Kaushlendra had lodged a case of theft of stepney against the brothers of P.W.-1, namely, Shiv Raj Singh and Updesh Singh.
107. Lastly, P.W.-1 has stated in the cross-examination that there was enmity between the deceased Mahesh Fauji and the accused persons. He has denied the suggestion that he had more enmity with the accused than the deceased Mahesh Fauji.
108. P.W.-2 in his examination-in-chief has verified the said statement of P.W.-1 by stating that on the date of incident his uncles Shivraj Singh @ P.T.I., Updesh Singh, his brother Vijender @ Mallu were in jail in connection with the murder case of Chhote alias Rajveer. In his cross-examination, P.W.2 has stated that he had informed the Investigating Officer that his family is having enmity with the accused Jagannath since before ten years and that is why the accused Jagannath has committed this incident.
109. P.W.-2 in his examination-in-chief has stated that enmity between his family and the accused is going on since 1985. In between Devki Nandan, cousin of the accused Hariom, had lodged a report under Section 302 I.P.C., against him, his uncles Updesh Singh and Santosh Singh and his father (P.W.-1) and since they have been in jail for a month due to the said FIR, they were angry. P.W.-2 in his cross-examination regarding enmity with the accused Kaushlendra Pal, has stated as under:
"घटना के पहिले मेरे परिवार के लोग बी०एस०पी० एवं 1 बी०जे०पी० से सम्बन्धित थे मुल्जिम कौशलेन्द्र पाल सिंह सहित सबी मुल्जिम सपा से सम्बन्धित थे और आज भी है। यह सही है कि भिन्न-2 पार्टियों के होने के नाते मेरे परिवार से व मुल्जिम कोशलेन्द्र पाल से पार्टी को लेकर भी रंजिश हो।"
110. The aforesaid facts as born out from the testimonies of P.W.-1 and P.W.-2 are the genesis of enmity existing between the family of informant (P.W.-1) and the accused.
111. It is thus evident from the depositions of PW-1 and PW-2 that the main prosecution witnesses are not independent witnesses but are interested witnesses. P.W.-3 is a close associate of P.W.-1 and in the murder of Chhotey @ Rajveer son of accused Jagannath name of Santosh Gupta (P.W.-3) his name has subsequently surfaced along with brothers of P.W.-1, namely, Updesh Singh, Shiv Raj Singh and his son Mallu and therefore, he too would fall in the category of an interested witness.
112. In what manner should the statement of an interested witness be scrutinized by Court is not shrouded in obscurity but is now well settled that though it is admissible but is subject to critical scrutiny.
113. In Md. Jabbar Ali and others Vs. State of Assam, reported in 2022 SCC OnLine SC 1440, the Court has observed as under in paras 55 to 58 of the report:-
"55. It is noted that great weight has been attached to the testimonies of the witnesses in the instant case. Having regard to the aforesaid fact that this Court has examined the credibility of the witnesses to rule out any tainted evidence given in the court of Law. It was contended by learned counsel for the appellant that the prosecution failed to examine any independent witnesses in the present case and that the witnesses were related to each other. This Court in a number of cases has had the opportunity to consider the said aspect of related/interested/partisan witnesses and the credibility of such witnesses. This Court is conscious of the well-settled principle that just because the witnesses are related/interested/partisan witnesses, their testimonies cannot be disregarded, however, it is also true that when the witnesses are related/interested, their testimonies have to be scrutinized with greater care and circumspection. In the case of Gangadhar Behera and Ors. v. State of Orissa (2002) 8 SCC 381, this Court held that the testimony of such related witnesses should be analysed with caution for its credibility.
56. In Raju alias Balachandran and Ors. v. State of Tamil Nadu (2012) 12 SCC 701, this Court observed:
"29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364] and pithily reiterated in Sarwan Singh [(1976) 4 SCC 369] in the following words: (Sarwan Singh case [(1976) 4 SCC 369, p. 376, para 10) "10. ... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
57. Further delving on the same issue, it is noted that in the case of Ganapathi and Anr. v. State of Tamil Nadu (2018) 5 SCC 549, this Court held that in several cases when only family members are present at the time of the incident and the case of the prosecution is based only on their evidence, Courts have to be cautious and meticulously evaluate the evidence in the process of trial.
58. It is thus settled that the evidence of the related witnesses have to be considered by applying discerning scrutiny. ............."
(Emphasis supplied by us) Criminal antecedents to the credit of informant (P.W.-1) and his family including P.W.-2 and the deceased Devendra (son of P.W.-1)
114. In the cross-examination, the star witness i.e. P.W.-1 has stated that some cases have been filed against his brother Updesh Singh due to political rivalry, in some of which he has been acquitted whereas some are pending. He cannot say as to how many cases are pending against Updesh Singh. There are some criminal cases against his another brother Shivraj Singh. In some cases, Shivraj Singh has been acquitted while some are pending. He again cannot disclose as to how many cases are pending against Shivraj Singh. Some criminal cases are also pending against his son Mallu but he does not remember their numbers. There are some criminal cases against his son Munesh, whose number cannot be disclosed by him but in some cases he has been acquitted and only two are pending. There are some cases against his son Devendra (since deceased). He has further stated that some cases have also been filed against his brother Santosh but nearly in all cases he has been acquitted. This witness himself has stated that all the above cases are false and have been filed only due to political vendetta.
Criminal antecedents to the credit of P.W.-3
115. In his cross-examination P.W.-3 has admitted that he has been implicated in one or two cases along with the family of the informant (P.W.-1) and one of them is under Section 302 I.P.C, one under Section 307 I.P.C., one relates to robbery and one relates to kidnapping. After that he has admitted that he has been named as an accused in two kidnapping cases. He was facing total number of four-five criminal cases. When he was in Chilousa, no case was filed against him. He has then stated that he was also prosecuted in the cases under the Goonda Act and the Gangsters Act. This witness has also denied that there were twenty criminal cases against him from 1990 to 2004 at Police Station-Kotwali and Police Station-Bhogaon.
116. Though, testimony of a witness with criminal antecedents can be relied upon but such evidence has to be scrutinized very closely. In Murli & Another Vs. State of Rajashthan reported in (2009) 9 SCC 417 the Supreme Court has observed as under:
"There can be no doubt that the witness was of criminal character and that his statement was recorded later, but even then, if that caution is kept in mind while appreciating the evidence and if his evidence inspires confidence, it is not incorrect to accept such evidence. However, for that purpose, his evidence has to be scrutinized very closely."
THE EVIDENCE TO QUESTION THE PRESENCE OF WITNESSES OF FACT AT THE TIME AND PLACE OF OCCURRENCE
117. The testimony of the prosecution witnesses requires to be examined with caution and circumspection.
118. The first limb of the argument on behalf of appellants essentially questions the presence of the prosecution witnesses of fact at the time and place of occurrence and also discredits their testimony on this ground. There are different facets of this argument which need to be noticed and therefore referred to hereunder:-
I. First and foremost, it is commonly urged by the counsel for appellants that in a case of brutal shoot-out wherein six persons sitting in a Commander Jeep were shot dead, which incident occurred suddenly the passengers of the jeep had hardly any time to save themselves. The dead body of the driver Hem Singh was at the driver's seat with multiple gunshot wounds which appear to have been fired from different sides including from behind. The dead body of the passengers sitting next to the driver's seat was partly in the jeep and partly on the bonnet. Only two inmates could come out of the jeep from left and right sides but they were shot dead. It is, therefore, urged that the incident occurred suddenly and all the passengers of the jeep were shot dead. The possibility of the four passengers jumping out of the running jeep seems highly doubtful. The version of the prosecution witnesses that the accused-appellants had fired at them but did not chase them or cause any harm/hurt to them also seems improbable when the prime target for the accused-appellants would have been P.W.-1/first informant on account of the pre-existing enmity as noted in the earlier part of this judgment.
It is thus strenuously urged that the manner of shoot-out completely rules out the possibility of four passengers fleeing from the back of the Jeep and therefore, the prosecution version that the four persons escaped unhurt in the brutal shoot-out is a fanciful illustration and, therefore, not worthy of acceptance.
II. The accused-appellants have relied upon the testimony of the autopsy surgeon, who conducted the post-mortem of the bodies of all the deceased. As per the testimony of the autopsy surgeon the deceased were fired from left, right and behind without any shot having hit from the front. It is thus urged that the aforesaid clinching evidence clearly shows that there was no possibility of four persons coming out of the Jeep unhurt even when there was flow of bullets. This clearly belies the prosecution story.
III. Apart from above, another circumstance which has been raised to doubt the presence of prosecution witnesses at the time and place of occurrence is the alleged use of explosives in the crime in question. According to the learned counsel for accused-appellants, the prosecution witnesses have alleged use of fire arms in the incident (guns and rifles), alone whereas the Autopsy Surgeon has proved the presence of explosive injuries sustained by the deceased which remains unexplained and, therefore, creates a doubt in the prosecution case making it improbable. In short the medical evidence does not corroborate the ocular version.
IV. Inherent contradictions in the testimonies of the prosecution witnesses is highlighted with reference to the manner and direction in which P.W.-1 left the place of occurrence to lodge the FIR which also creates a doubt in the prosecution story.
V. It is then submitted that the prosecution witnesses claim to have seen the incident from a distance of 40 to 50 paces while shielding themselves in between the standing crops in a pigeon pea (Arhar) field. The place where the prosecution witnesses are said to have been hiding is a low/crater and it was therefore, difficult for anybody to have seen the incident from such a situation.
VI. The prosecution story that informant/P.W.1 had gone to meet his maternal aunt (Mausi) along with nine others is a story full of concoctions inasmuch as neither the informant/P.W.1 knows the name of her aunt, nor there was any reason to take seven persons (outside of his family) with him for the purpose; it is emphasized that if the purpose of visiting was to see his maternal aunt it was expected that some ladies of his family would also go, which is not the case here; justification that the male members accompanied informant/P.W.1 for his safety and security is fallacious, since none of them carried any firearm/weapon;
VII. The alleged cause of shoot-out is said to be the enmity of the accused-appellants with informant/P.W.-1. It would be highly improbable in such circumstance that P.W.1 along with three others would be spared while the six others would be shot dead;
VIII. The prosecution story is contradictory as at one place it is alleged that the accused-appellants parked their vehicles in front of the Commander Jeep in which the deceased and others were travelling while the other version is that the driver sustained gun shot injuries on account of which the jeep collided with the tree;
IX. The F.I.R. version of the prosecution story that informant/P.W.-1 had gone to Police Station- Kotwali, District Mainpuri for lodging an FIR after travelling about 9-10 Kilometers concealing himself on the way even when Bhogaon Police Station is situate at a much small distance casts a serious doubt in the prosecution case. It was otherwise impossible for the informant/P.W.-1 to have travelled such a long distance on foot while concealing himself in a short span of less than an hour;
X. The name of Devendra Singh Ex-Pradhan of Himayunpur is mentioned in the F.I.R. whereas his name is Ramkishan. This also is an additional circumstance to infer that informant/P.W.-1 has not seen the occurrence;
XI. The circumstances that P.W.-2 and P.W.-3 were not examined by the Investigating Officer on the spot under Section 161 Cr.P.C. and they are also not the witnesses of inquest, are such circumstances which go to indicate that these witnesses were not present at the spot when the incident occurred; the first informant/P.W.-1 stated that other three persons were left at the spot and he alone came to Police Station Kotwali, District Mainpuri for lodging the F.I.R. is contradicted by P.W.-2 and P.W.-3 who have stated that they accompanied P.W.-1 up-till railway crossing.
XII. In the F.I.R. the offending vehicles are Gypsy and Maruti Van, whereas in the testimonies of other prosecution witnesses of fact the vehicles are described as Gypsy and Maruti Car. This too raises a doubt as to whether the prosecution witnesses have seen the incident.
XIII. The prosecution witnesses are not consistent inasmuch as the witnesses at one place claim to have seen the incident from pigeon pea (Arhar) field while at other place they claim to have seen the incident from mustard field; the jeep in which the deceased along with P.W.-1, P.W.-2, P.W.-3 were travelling was not recovered and its whereabouts were also not available; the details of the incident have not been disclosed; the story of stopping of jeep after hitting the tree has come up for the first time during the course of trial. This is a departure from the basic prosecution case as unfolded in the FIR, for which no plausible explanation has been offered.
XIV. The inquest is shown to have been completed at 01:30 A.M. on 7.9.1996, whereas the prosecution witnesses disclosed its time as 02:30 A.M. on 7.9.1996; there is contradiction in the testimonies of P.W.-1 and P.W.-2; it is also not established from the evidence brought on record by the prosecution as to when the dead bodies of the deceased were sealed and when the constables, who carried the dead bodies for post-mortem reached the mortuary for their autopsy as there is an issue as to on what time the dead bodies were sent to mortuary.
XV. The investigation is wholly dishonest as no attempt has been made to fully investigate the involvement of Subhas Gang in the crime in question. The criminal background of the prosecution witnesses have also been emphasized to discredit them.
XVI. The prosecution witnesses have alleged that the accused-appellants fired from the front while the Investigating Officer claims that the empties were recovered from the right side of the jeep whereas the Autopsy Surgeon has proved that the injuries have been caused from both the sides of jeep i.e. the left and the right side and also from behind but none of the injuries have been caused from the front, which conclusively proves that the prosecution witnesses were neither present at the time and place of occurrence nor they have seen the occurrence.
XVII. PW-4 the autopsy surgeon has opined that none of the deceased sustained pellet injuries. However, PW-3 in his deposition before court below has stated that four of the accused had guns in their hands whereas the other six accused were armed with rifles.
119. On behalf of the accused-appellants it is also emphasized that the FIR is ante-timed and the prosecution version disclosed in the FIR about P.W.-1 travelling a distance of 8-9 kilometres on foot while concealing himself is highly improbable as it is impossible for anyone to cover such a long distance in half an hour. It is on account of above that material improvement was made in the testimony of P.W.-1 regarding use of Tempo from the Railway track to the police station. In short the submission is that the improvement made in the prosecution case during the course of trial is an unexplained embellishment which again creates a serious doubt regarding the probability of the prosecution case.
120. In addition to above, it is urged on behalf of the accused-appellants that the evidence on record clearly shows that P.W.-1 had enmity with Subash Pandey's Gang and its involvement was suspected during the course of investigation. Certain empties found from the place of occurrence were therefore, matched with the empties used in a distinct incident caused by Subash Pandey's Gang and it was conclusively established that the empties so recovered were fired from the same fire-arm, which thus proves the involvement of Subash Pandey's Gang in the commission of the crime in question, but this line of investigation was suddenly dropped which castes a serious doubt in the impartiality of the investigation as also the prosecution case.
121. It is in the light of above embellishment and contradiction in the prosecution story which the prosecution to set out to prove that this Court has to evaluate the evidence on record with great care and caution in order to arrive at a conclusive opinion before concluding that the alleged guilt of the accused appellants is proved beyond doubt or that the accused appellants are innocent.
122. The trial court came to the conclusion that the prosecution has succeeded in establishing the guilt of the accused-appellants on the basis of documentary and oral evidence led by the prosecution. The presence of the prosecution witnesses of fact i.e. PW-1, PW-2 and PW-3 at the time and place of occurrence has not been doubted. Resultantly their testimonies have been relied upon. The trial court has not found any major exaggeration, contradiction or embellishment in the testimonies of the prosecution witnesses of fact so as to make them unworthy of trust, and therefore they have been relied upon. As a consequence of above court below has returned a finding of guilt against the accused-appellants. It is this conclusion recorded by court below which requires to be considered by us in the light of the submissions urged by the counsel for the parties, and keeping in mind the reasoning given by the Supreme Court in Md. Jabbar Ali (supra).
CONSIDERATION
123. First and foremost, we would like to take up the argument raised by all the counsel for appellants questioning the presence of the prosecution witnesses of fact i.e. PW-1, PW-2 and PW-3 at the time and place of occurrence. The grounds on which the presence of aforesaid witnesses of fact are challenged, have already been referred to above. The argument is now being evaluated with reference to the evidence on record. The first circumstance for doubting the presence of aforesaid witnesses of fact at the time and place of occurrence is the absence of possibility of four persons to flee from a running Jeep when firing was taking place from all sides of the Jeep in which the deceased and the four persons who are said to have escaped unhurt were travelling.
124. P.W.-1 in his examination-in-chief has stated that he was returning after meeting his maternal aunt (Mausi). There were 10 occupants in the Jeep including P.W.-1. The Jeep belongs to PW-1. According to this witness, as they crossed the railway crossing, a Jeep and a Maruti Van overtook the Commander Jeep and positioned themselves ahead of it at about 04:30 p.m. The expression used by this witness to describe the same is as under:-
"समय लगभग 4.30 बजे दिन (का० फटा) हमारी गाडी के सामने एक मारुति कार व दूसरी वेन (का० फटा) जो हमारी गाडी को ओवर टेक करके हमारी गाडी के सामने लगा दी।"
125. In the FIR the two vehicles, which overtook the Jeep had been mentioned as Gypsy and Maruti Van, whereas in the testimony of P.W.-1 the two vehicles have been described as Maruti Car and Van. As per the testimony of P.W.-1, the accused-appellants were armed with Guns and Rifles when they came out of their vehicles and exhorted that all the passengers in the Commander Jeep be shot dead and thus take revenge.
125. P.W.-1 has stated that on seeing the armed accused-appellants coming out of the offending vehicles, he along with Santosh Singh (not produced), P.W.-2 and P.W.-3 jumped out from the back of the Jeep and rushed towards pigeon pea (Arhar) field. In his cross-examination P.W.-1 has stated that his jeep was surrounded by the two vehicles and later the Jeep collided with the Eucalyptus tree through the road side Patri. The testimony of P.W.-1 in that regard is as under:-
"हमारी गाड़ी को मुल्जिमान के दोनो गाड़ियों ने ओवर टेक करके घेरा था। हमारी गाडी को मेन रोड पर ही घेरा था बाद मे मेरी जीप पटरी से होकर पेड़ से टकराई थी। मेरी जीप बाई तरफ जा कर टकराई। सडक से तीन चार कदम दूरी पर पेड़ है वहाँ टकराई यूकेलिस्टिक व सीसम दोनो तरफ के पेड़ है मौके पर सड़क से खेत 10-12 कदम पर थे।
इस घटना में आगे वाली सीट पर बैठे तीनों लोगों की मृत्यु हो गई थी। दो लोग गाड़ी में मर गये थे एक व्यक्ति गाडी के पायदान के पास गिर कर मरा था। बीच वाली सीट के तीनों लोग मरे थे। एक गाडी के अन्दर व दो गाडी के बाहर गिरे थे।"
126. P.W.-1 in his examination-in-chief has stated that on account of firearm injuries sustained by the driver of the Jeep, namely, Hem Singh, he lost his balance and the vehicle stopped after colliding with the Eucalyptus tree. The statement of P.W.-1 regarding above reads as under:
"मुल्जिमान की दोनो गाड़िया मेरी जीप के सामने खड़ी थी। सामने से गाडी घेर कर मुल्जिमानों ने ललकारा व फायरिंग शुरू कर दी। सभी मुल्जिमान मेरी गाडी आगे से घेरे थे मुल्जिमान द्वारा ललकारने पर पीछे बैठे हम चारो लोग पश्चिम की तरफ भागे थे। गाडी से लगभग 50, 55 कदम थे। माडी की दूरी पर अरहर के खेत में भाग गए थे वही से घटना देखी थी"
(Emphasis supplied)
127. Thus the statement of P.W.-1 clearly shows that the vehicle was in motion and had not been stopped by the accused-appellants. The Jeep was in motion when the driver sustained bullet injuries and resultantly the vehicle got uncontrolled. The vehicle ultimately stopped after it collided with the Eucalyptus tree.
128. As per testimony of P.W.-1, two vehicles surrounded his Jeep. As is clear from the testimony of P.W.-1, his jeep was intercepted on the main road and later the Jeep steered on the left and collided with the Eucalyptus tree. The question that arises is as to whether the Jeep actually stopped when the two vehicles overtook it from behind and stopped in front of it or the Jeep on being overtook from behind steered towards left and collided with the Eucalyptus tree. P.W.-1 is not specific in stating as to whether Jeep had fully stopped or whether the driver turned on the left of the road and thereby collided with the Eucalyptus tree after crossing the road side Pathway (Patri).
129. In the above conspectus it is apposite to ascertain whether the vehicle was in motion when it steered towards the left and collided with the Eucalyptus tree or it stopped on the road and then later the driver steered it left and collided with the Eucalyptus tree.
130. On this aspect the testimony of P.W.-2 Devendra Singh is somewhat distinct. In his examination-in-chief, P.W.-2 has deposed as under:
"उस समय शाम लगभग साढे चार बजे शाम के होगे कि एक नीले रंग की जिप्सी एक मारूती कार क्रीम कलर की थी जिनमे जिप्सी आगे थी इन दोनो गाडियों ने मेरी गाडी को ओवरट्रेक किया, इस बीच मेरे ड्रायवर हेम सिंह ने अपनी कुछ वाए करके ओवरटेक की कोशिश कि दोनो गाडियां मेरी गाडी के आगे बढ़कर रूक गई उस समय मेरी गाडी चल रही थी इसी बीच उन गाडियों से रामानंद, जगन्नाथ, हरिओम, आनन्द, देवेन्द्र, राजभूषण, कौशलेन्द्र, विपिन, विल्लू उर्फ चन्द्रकान्त व रमाकान्त कुल दस लोग उतरे और कहा कि इन सभी सालो को भून देंगे और वदला ले लेंगे वैसे ही मैं व मेरे पिताजी, सन्तोष गुप्ता व सन्तोष चाचा हम चार लोग अपनी गाडी से पीछे से कूद पड़े और खेत अरहर खेत की तरफ भागे अरहर के खेत से (sic) दिखाई दे रही थी रामान्द के पास बन्दूक, आनंद के पास राइफिल, जगन्नाथ के पास बन्दूक, विपिन के पास व राजभूषण सिंह के पास बन्दूके थी और शेष पांचों के हाथों में रायफिले थी इन सभी लोगों ने फायरिंग की थी जिससे हेम सिंह, गजेन्द्र उर्फ टिल्लू, महेश फौजी, अशोक परिहार पूर्व प्रधान राम किशन सिंह व नरेश दीक्षित कुछ छह लोगो की मौके पर ही मृत्यु हो गई थी इनकी फायरिंग से ड्रायवर हेम सिंह यूकलिप्टस की मृत्यु हो गई थी इससे जीप असंतुलित होकर फुलिलिप्टस के पेड' से टकरा गई थी इन सभी दसो मुल्जिमान से मेरे परिवार की पुरानी रंजिश है मुल्जिमान इस घटना के बाद अपनी दोनों गाडियों से मैनपुरी की तरफ भाग गए।"
131. In his cross-examination, P.W.-2 has stated as under:
"जिस समय मुलजिमान की दोनो गाडियाँ मेरी गाड़ी को ओवरटेक किए उस समय मेरी गाडी की स्पीड प्रति घन्टा कितने कि०मी० थी नहीं बता सकता वैसे ठीक-ठाक चल रही थी जिस समय हम लोग अपनी जीप से कूदे उस समय जीप चल रही थी हडवडाहट में जान बचाने के लिए कूदे थे और जान बचाने के हिसाब से ही खेत में भागे चले गए थे जब हम लोग भाग रहे थे तब हम लोगों का किसी ने पीछे नहीं किया था हम लोग भागते समय पीछे मुड़कर देख रहे थे जब हम लोग भाग रहे थे तो हम लोगों की जीप की तरफ फायर किये थे हम लोगों को लगे नहीं की चोट हम चार लोगों को इसलिए नहीं लगी थी फायर करने वालों एवं हम लोगों के बीच हमारी जीप थी हम चार लोगों के गाड़ी से कूदने के बाद हम लोगों की जीप करीब 10, 12 कदम चली होगी। ऐसा नही है कि किलिप्टस जब हम लोगों की जीप जब फुलिलिप्टस के पेड से टकरा गई तब हम मुलजिमान को अपनी गाडियों से निकलते देखा हो।"
(Emphasis supplied by us) P.W.-2 has further stated as under:
"ऐसा नही है कि मेरी जीप का ड्रायवर जीप को मुलजिमान की गाडियों से आगे निकालने के प्रयास जीप असंतुलित होकर पेड से टकरा गई है।"
P.W.-2 has then stated as under:
"मैंने दरोगा जी को यह बयान नहीं दिया था कि हमारी जीप के ड्रायवर हेम सिंह यादव ने उनसे बचाकर चीप आगे निकालने चाही कि जीप असंतुलित होकर यूलिलिप्टस के पेड़ से टकराई बल्कि यह ब्यान दिया था कि ड्रायवर को गोली लगने के बाद जीप असंतुलित होकर पेड से टकराई थी यदि मेरा इस तरह का ब्यान नहीं लिखा है तो उसकी वजह नहीं बता सकता सी.वी.सी.आई.डी वालो को भी ड्रायवर के गोली लगने के बाद जीप के अंसतुलित होने के बाद बताई थी यदि उन्होने मेरे ब्यान मे ऐसा न लिखा हो तो मैं इसकी भी कोई वजह नहीं बता सकता।
जब मुलजिमान गाडियों से निकले उससे पहिले मेरी जीप पेड से नहीं टकराई थी।"
(Emphasis supplied by us)
132. P.W.-2 was confronted by the defence with his previous statement under Section 161 Cr.P.C. wherein he admitted that the Jeep got dis-balanced and collided with the Eucalyptus tree, whereafter the accused persons alighted from their vehicle. They thereafter exhorted and fired. Statement of P.W.-2 in that regard is extracted herein under:
"मैंने दरोगा जी एवं सी.वी.सी.आई.डी वालो कोयह नही बताया था कि 'जीप असंतुलित होकर यूकीलिप्टस के पेड़ से टकराई कि एकदम जिप्सी व मारूति कार से उतर कर मुलजिमान रामानंद आदि अपने हाथो राइफिल, बन्दूके निकलकर बढते हुए यह कहकर बढ़े की सभी सालों को भून देगें ऐसा ब्यान उन्होने कैसे लिख लिया उसकी वजह नहीं बता सकता किन मुलजिमान के हाथ में बन्दूके थी और किसके हाथ में साइकिले थी यह बात न तो दरोगा जी ने मुझसे पूछी। और न सी.वी.सी.आई.डी वालो ने मुझसे पूछी और न मैने उन्हे वताई आज पहिली वार यह बात अदालत में बता रहा हूँ अपनी जीप से हम चारो लोग अरहर के खेत में पश्चिम तरफ भागे। जब हम जीप से उतरकर भागे उस समय हमारी जीप सडक की पटरी की ओर चल रही थी मुलजिमान की दोनो गाडियां पक्की सड़क पर खड़ी थी मुल्जिमान हम लोगो की जीप से पूरव की तरफ से फायर किए थे तावडतोड गोलियाँ चल रही थी"
In his further cross-examination by the accused Vipin, P.W.-2 has stated as under:
"मुल्जिमान की दोनो गाड़ियो से मेरी जीप दस बारह कदम दूरी पर थी मेरी जीप के ड्रायवर ने मुल्जिमान की गाड़ियो से आगे निकलने की कोशिश की किन्तु इसी बीच मुल्जिमान फायरिंग करने लगे इसी बीच ड्रायवर के गोली लग गई मेरे ड्रायवर ने मुल्जिमा की गाड़ियो को क्रास करने के लिए स्पीड बढ़ाई तभी ड्रायवर के गोली लग गई जिस समय ड्रायवर से गोली लगी उस समय मेरी गाड़ी मुल्जिमान से आठ,दस कदम की दूरी पर होगी उस समय मुल्जिमान जीप से पूरब तरफ की गोली लगने के बाद जीप असंतुलित हो गई ड्रायवर के गोली लगने वाले स्थान से वह पेड़ जिससे जीप टकराई लगभग 7,8 कदम की दूर होगा।"
(Emphasis supplied by us) He has also stated as follows:
"जिस समय हम चारो लोग जीप के पीछे से कूदे थे उस समय जीप धीमी रफ्तार मे चल रही थी। जीप के पीछे से हम चारो लोग वारी-2 से सेकंडो मे कूद गए थे जिस समय हम लोग जीप से कूदे थे जीप डाला बन्द था परन्तु हाल से जीप के ऊपर फेंककर कूदे थे।"
In his cross-examination P.W.-2 has stated as under:
"हम चारो लोग जो जीप के पीछे से कूदकर भागे थे उनमें से किसी को खरोच या अन्य कोई चोट नहीं आई थी अरहर के खेत हम चारो लोग 15 मिनट तक छुपे रहे मुल्जिमान मे से कोई भी खेत के पास हम लोगो को मारने अथवा घेरने नहीं गया था।"
P.W.-2 was also cross-examined on the feasibility of a person to jump out of a running Jeep when the door of the back side of jeep is closed. In response to such question, P.W.-2 has stated as under:
"यह कहना गलत है कि जीप को पीछे वाला डाला यदि मय स्टेपनी के बद हो तो जीप से पीछे की तरफ कूदना कठिन होगा जीप मेरे चाचा ने बेंच दिया है।"
P.W.-2 has categorically stated that the accused fired on the vehicle when it was in motion and also at then (the four persons) when they were coming out of the Jeep. The following passage from the testimony of P.W.-2 is relevant and therefore extracted herein-below:
"मुल्जिमान ने हमारी चलती हुई गाडी पर फायर किया था. सभी मुल्जिमानों ने चलती हुई गाडी पर फायर किये थे। जिस समय हम चारों आदमी गाड़ी से कूदे उस समय मुल्जिमान आठ-दस कदम की दूरी पर थे. हम चारों के जीप के पीछे से कूदते समय हम लोगों पर भी जीप की तरफ मुल्जिमानों ने फायर किए थे।"
(Emphasis supplied by us)
133. P.W.-3 in his examination-in-chief has stated that the Gypsy as well as Maruti Car came from behind and stopped in front of the Jeep from which the accused persons came out armed with guns and rifles. On seeing them this witnesse along with three others jumped out of the Jeep and saw the accused firing leading to the death of the six inmates. In his cross-examination P.W.-3 has stated that the driver was hit while the Jeep was in motion on account of which the vehicle got dis-balanced and collided with Eucalyptus tree. His testimony in this regard reads as under:
"चलती हुई जीप में ड्रायबर को गोली लगी और जीप असंतुलित होकर पेड़ से टकराई यह बात मैंने दरोगा जी को बताई यदि यह बात मेरे ब्यान में नहीं लिखी गई।"
This witness when confronted with his own previous statement given to the Investigating Officer has stated as under:-
"मैंने दरोगा जी को यह ब्यान नहीं दिया था कि "दोनों गडियां जीप के आगे लगा दी यह देखकर हमारे जीप के ड्रायवर हेमसिंह यादव ने उनसे बचाकर जीप आगे निकालनी चाही कि जीप असंतुलित होकर युकेलिप्टस पेड़ से टकराई कि एक दम कहते जिप्सी व मारूति कार से उतरकर मुल्जिम यह कहते हुए कि आज बदला ले लेगे सभी को भून देंगें हमारी तरफ बढ़े कि मैं सुरेन्द्र सिंह व देवेन्द्र सिंह जीप से निकले" यदि दरोगा जी ने मेरे ब्यान में यह बातें लिखी तो मै इसकी कोई वजह नहीं बता सकता."
(Emphasis supplied by us) This witness was also confronted with his own previous statement under Section 161 Cr.P.C. which is reflected from the following part of his statement:
"साढ़े चार बजे हमारी जीप ड्राइवर ने मुल्जिमान की दोनो गाड़ियो को बचाकर आगे निकलने की कोशिश की कि जीप असंतुलित होकर पेड़ से टकराई" यह ब्यान कैसे लिख लिया वजह नही बता सकता।"
P.W.-3 has further been confronted with his previous statement under Section 161 Cr.P.C. to the C.B.C.I.D. in which he has alleged that the driver sustained fire-arm injuries after the vehicle collided with the Eucalyptus tree. The exact testimony reads as under:
"मैने C.B.C.I.D वालो को यह ब्यान नही दिया था कि जीप टकराने के बाद ड्राइवर को गोली लगी थी।"
134. From the evaluation of the testimonies of the prosecution witnesses, it is apparent that they have come out with distinct versions of the occurrence at the stage of investigation i.e. the police and C.B.C.I.D. and during the course of trial. While at the stage of investigation they have alleged that the two offending vehicles came from behind over took the jeep in which the deceased and the prosecution witnesses of fact and another person were travelling, and stopped in front of it on account of which the Jeep was steered leftward and collided with the Eucalyptus tree whereafter the accused-appellants came out, whereas during the course of trial, their version is to the effect that the prosecution witnesses of fact alongwith one another jumped out of the vehicle from behind, on seeing the accused persons. coming out of two vehicles with fire arms. This embellishment in the testimonies of the prosecution witnesses is to the effect that the four passengers of the jeep (survivor) jumped out after seeing the accused persons coming out of their vehicles with firearms. The vehicle as per the prosecution witnesses was in motion. It is not clear as to how four survivors could see the accused persons, who were alighting from their vehicles armed, from a running Jeep, particularly when the back door (Dala) of the Jeep was closed. The version of the prosecution witnesses that they could jump out of a running Jeep without sustaining even a scratch, on their bodies, creates a serious doubt regarding the reliability of their statements.
135. The second ground on which the presence of the prosecution witnesses of fact at the time and place of occurrence is doubted by the counsel for the appellants is the use of explosives in the incident as per the post-mortem report of the deceased/opinion of the Autopsy Surgeon who deposed before the court below as PW-4. However, in their depositions before court below no explanation has been offered by the prsecution witnesses of fact regarding the explosive injuries sustained by the deceased.
136. In his examination-in-chief, P.W.-4, while referring to the second ante-mortem injury of the deceased Ram Kishan, has stated that the brain matter was coming out. The exact statement reads as under:
"चोट न0 2- एक फटा हुआ घाव ( अग्नेयास्त्र की गोली के निकलने से सम्बन्धित) 18 cm x 8 cm, चेहरे के बाई ओर माथे तथा सिर पर था। मस्तिष्क (भेजा) घाव से बाहर निकल रहा था।"
While referring to the ante-mortem injuries of the deceased Mahesh, qua Injury nos. 1, 5 and 6, P.W.-4 has opined as under:
"1. Lacerated firearm wound 18 cm x 5 cm x brain deep on left side of forehead and head. Margins are blackened. Bone of left side skull are fractured. Brain matter coming out of bone.
5. Firearm lacerated wound over front of right knee joint 12 cm x 8 cm. Bones are fractured. Margins blackened."
6. Firearm lacerated wound 11 cm x 4 cm x bone deep over left scapula of back."
Insofar as ante-mortem injuries of the deceased Ashok Parihar is concerned, P.W.-4 has found lacerated wound 18 cm x 9 cm on lower part of buccal cavity (lower jaw which is missing) over lower part of the face and neck of the deceased.
In the cross examination, P.W.-4 has clearly stated that injury no.1 found on the body of the deceased Ashok Parihar was due to explosive. He has further stated in his cross-examination that metallic substance removed from the body of the deceased could have entered the body due to the blast of a hand grenade. The statement of the P.W.-4 in this regard is as under:
"जो धातु के टुकडे शवों से निकाले गए है वे ऐसे टुकडे भी हो सकते है हथगोला वगैरह ब्लास्ट होने पर शरीर में घुस सकते है। अशोक परिहार की चोट नं06 जोर से लाठी मारने से आना संभव है ।"
With reference to the above statement of P.W.-4, it is strenuously urged by the learned counsel for appellants that explosives were used in the commission of the offence, which caused blast injuries and that non disclosure of the use of explosives in the testimonies of prosecution witnesses clearly suggests that the prosecution witnesses of fact have actually not seen the incident. Resultantly the prosecution witnesses of fact were not present at the time and place of occurrence.
137. Mr. Amit Sinha, the learned A.G.A., in opposition to the aforesaid submits that injuries referred to above could have been caused by use of hollow point bullets.
138. In support of this plea, he has referred to various authorities on Ballistic in order to emphasise the impossibility of the (above extracted injuries) being caused by the exit of a firearm bullet and in such circumstances the argument that explosives were used in the crime in question, cannot be accepted.
139. Countering the above submission urged by the learned AGA, learned counsel for some of the appellants namely Mr. Rajiv Lochan Shukla, submits that the argument advanced by the learned AGA regarding the possibility of use of hollow point bullets need not be entertained by this Court particularly as P.W.-4 has not been examined on this aspect with reference to the provisions of the Indian Evidence Act.
140. He further submits that in the event, the prosecution intended to impeach the testimony of P.W.-4 (Autopsy Surgeon) regarding the use of explosives in the crime in question on account of alleged use of hollow point bullets, then the Autopsy Surgeon (P.W.-4) ought to have been confronted with the above. It was only in the above situation that the accused would have an opportunity to counter the same during the course of trial. He therefore submits that the plea as urged by the learned AGA before this Court having not been taken before court below which plea is essentially a plea of fact this Court should not allow the same to be taken by the learned AGA at appellate stage.
141. We have carefully considered the contentions made by the learned counsel for the parties. We find substance in the argument advanced by Mr. Rajiv Lochan Shukla that the plea not raised during the course of trial on which the prosecution witness has not been confronted, cannot be allowed to be raised for the first time at the appellate stage. The manner of examination of witnesses is clearly specified in Section 138 of the Indian Evidence Act which provides a scheme for examination of witnesses on matters in issue. For ready reference Section 138 of the Indian Evidence Act is reproduced which reads as under:
"138. Order of examinations.--Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.--The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."
142. It is true that some of the injuries sustained by the deceased resemble to explosive injuries. The Autopsy Surgeon (P.W.-4), who is a prosecution witness and a competent witness regarding above anamoly has been specifically confronted during the course of trial regarding the same. The Doctor (P.W.-4) has clearly opined that some of the injuries on the body of the deceased could have been caused due to explosives. The Autopsy Surgeon (P.W.-4) has not been got re-examined by the prosecution on the issue relating to use of hollow point bullet in the incident. No suggestion was made to the Autopsy Surgeon (P.W.-4) about use of specific bullet (hollow point bullet herein). It is, therefore, clear that the Autopsy Surgeon (P.W.-4) has not been confronted by the prosecution during the course of trial on the possibility of use of hollow point bullet in the incident and therefore, we are not inclined to accept the submission made by Mr. Amit Sinha, the learned A.G.A. that some of the injuries found on body of the deceased which have been opined as explosive injuries were actually caused on account of use of hollow point bullet.
143. An argument was also raised about some of the injuries on the deceased having been caused by hard and blunt object, which was not explained by the prosecution witnesses. This argument on behalf of the accused appellant does not impress us inasmuch as the possibility of such injuries being caused due to inmates colliding with iron rods fixed in the jeep, cannot be ruled out. It is, otherwise, the specific case of the prosecution that the Jeep was in motion when it collided with the Eucalyptus tree. The testimony of the prosecution witnesses cannot be questioned merely on the ground that the deceased were assaulted with hard and blunt objects and that non narration of such facts creates a doubt in the testimony of prosecution witnesses.
144. Mr. Brijesh Sahai, the learned Senior Counsel appearing for some of the accused-appellants has placed the testimony of the first informant/P.W.-1, as per which the accused-appellants started firing on the inmates of the jeep from the front. Incidentally, in his cross-examination, P.W.-1 has clearly stated as under:
"सामने से गाडी घेर कर मुल्जिमानों ने ललकारा व फायरिंग शुरू कर दी। सभी मुल्जिमान मेरी गाडी आगे से घेरे थे मुल्जिमान द्वारा ललकारने पर पीछे बैठे हम चारो लोग पश्चिम की तरफ भागे थे।"
145. The above statement shows that the accused-appellants positioned their vehicles in front of the Jeep; surrounded them; exhorted; and started firing. The accused-appellants were in front of the Jeep and that is how the four passengers could escape from the back door of the Jeep towards west.
146. This statement of PW-1 is sought to be impeached by the learned counsel for accused-appellants by placing reliance upon the testimony of P.W.-4, who has explained the direction from where the bullets had hit the inmates. The Autopsy Surgeon (P.W.-4), while explaining the injuries caused on deceased Ashok Parihar, has stated that the second injury was wound of entry and could have been caused on the deceased when bullet was shot from the left of the deceased. The exact statement of P.W.-4 is as under:
"अशोक परिहार की चोट नं० 1 Explosive थी/ चोट नं० 2 Entry Wound के रूप में थी जो कि मृतक के वाई ओर से फायर करने वाले ने फायर किया होगा तब यह चोट आई होगी"
With regard to injury no.4 on the body of deceased Ashok Parihar, P.W.-4 has opined that the same could have been caused from the right side. For ready reference the exact statement of PW-4 regarding above is extracted herein under:
"चोट नं० 4- दाहिनी तरफ से पहुँचाना सम्भव है।"
Qua Injury no.1 on deceased Ram Kishan, P.W.-2 has opined that the same could have been caused from the right side, whereas injury no.3 could have been caused from left side. The exact statement is as under:
"मृतक रामकिशन के शव पर आई चोट नं० 1 दाहिनी तरफ से पहुंचाया जाना संभव है।
चोट नं० 3 वाई तरफ से पहुंचाई जाना संभव है।"
Similarly in respect of first injury on the body of deceased Naresh Dixit, P.W.-4 has opined that the same could have been caused from the left side. The exact opinion is as under:
"मृतक नरेश दीक्षित के शव पर आई चोट नं० 1 बाई तरफ से पहुंचायी जाना संभव है। चोट नं० 3 व 4 अग्नेयास्त्र से निकली हुई गोली के रगड़ से आ सकती है। यह चोट वाई तरफ से पहुंचाना संभव है।"
Similarly, first and third injuries on the body of deceased Hem Singh could have been caused from the right side, whereas the second injury could have been caused from behind. The exact opinion of P.W.-4 in that regard is as under:
"मृतक हेमसिंह के शव पर आई चोट नं० 1 दाहिनी तरफ से पहुंचाई जाना संभव है यह चोट अग्नेयास्त्र की गोली से आना संभव | है चोट नं० 2 पीछे की तरफ से पहुंचाई जा सकती है। चोट नं० 3 पीछे की तरफ से दाहिने से पहुंचाया जाना संभव है।"
The above opinion of the Autopsy Surgeon (P.W.-4) is clearly reflected in the statement of P.W.-1, which has already been quoted herein-above.
In respect of injury no.1 on the body of deceased Gajendra Singh, P.W.-4 has stated that the same could have been caused from the left side, whereas injury nos. 3, 4, and 5 could have been caused from the right side. The statement of P.W.-4 regarding above is extracted herein-below:
"मृतक गजेन्द्र सिंह के शव पर आई चोट नं० 1 वाई तरफ से पहुंचायी जाना संभव है। चोट नं० 3 कुन्द आले से दाहिने तरफ से पहुंचायी जाना संभव है चोट नं- 4 दाहिनी तरफ से अग्नेयास्त्र की गोली लगने से आना संभव है चोट नं० 5 दाई तरफ पीछे की ओर से अग्नेयास्त्र की गोली से सामने से आना संभव है।"
Qua injury nos. 1, 6 and 7 on the body of deceased Mahesh, P.W.-4 has stated that same could have been caused from the left side, injury no. 2 could have been caused from the right side, whereas injury no.5 could have been caused from front right side. The exact statement of P.W.-4 reads as under:
"मृतक महेश के शव पर आई चोट नं० 1 वाई तरफ से सामने से गोली से पहुंचायी जाना संभव है। चोट नं० 2 सामने दाहिनी तरफ से पहुंचाना संभव है चोट नं0 5 अग्नेयास्त्र की गोली से सामने दाहिनी तरफ से आना संभव है। चोट नं० 6 पीछे वाई तरफ से अग्नेयास्त्र की गोली से पहुंचायी जाना संभव है। चोट नं० 7 कुन्द आले से वायी तरफ से पहुंचाना संभव है।"
147. Much emphasis has been laid by Mr. Brijesh Sahai, the learned Senior Counsel appearing for some of the accused-appellants on the following part of the statement of P.W.-4 in his cross-examination:
"मृतक अशोक परिहार की सभी चोटे दाहिने, वाएं एवं पीछे से पहुंचायी जाना संभव है। मृतक रामकिशन की सभी चोटे दाहिने एवं वाऐं से पहुंचायी जाना संभव है।
मृतक नरेश दीक्षित की सभी चोटे वायी तरफ से पहुंचायी जाना संभव है। मृतक हेमसिंह की सभी चोटे दाहिने एवं पीछे से पहुंचायी जानी संभव है।
मृतक गजेन्द्र सिंह की सभी चोटे दाहिनी एवं वायी ओर से पहुंचायी जाना संभव है।
मृतक महेश सिंह की सभी चोटे दायें एवं वाऐ से पहुंचायी जाना संभव है।
यह मैं नहीं बता सकता कि यदि मृतक किसी चलने वाले वाहन मसलन जीप में बैठे हो तो उनके ऊपर फायर करने वालों ने दाहिने एवं वाए से ही फायर किए हो।
मृतकों के चोटो में कोई चोटे छर्रे की नहीं है सभी अग्नेयास्त्र की गोली की है।"
148. On the above premise, it is urged that while star prosecution witness i.e. P.W.-1 alleges that the accused-appellants surrounded the jeep from the front and commenced firing but none of the injuries sustained by the deceased has been caused from gunshots fired from the front but rather from gunshots fired from the left, right and behind. It is further urged that some variation due to movement of inmates is possible but the direction of bullets when cumulatively assessed clearly reveals that the firing on the jeep was not from the front but from the left, right and from behind the jeep. It is also emphasized that the jeep driver got hit while sitting on the driver seat, where his dead body was found. The fact that the bullets were fired from the right and behind by the assailants, creates a doubt in the testimonies of the prosecution witnesses about the direction of firing by the accused persons, who surrounded the Jeep from the front. The same in turn further creates a doubt regarding the presence of the prosecution witness of fact on the spot.
149. On behalf of the accused-appellants it was also empathetically urged by the counsel for appellants that the existence of bullet injuries on the six deceased from the right, left and behind contradicts the testimony of P.W.-1 about firing on the passengers of the Jeep from the front, which also creates a serious doubt regarding the presence of P.W.-1 at the time and place of occurrence.
150. We now propose to examine the evidence in respect of the argument advanced on behalf of appellants that there are serious contradictions in the testimonies of the prosecution witnesses. P.W.1 has stated that the accused-appellants fired on them also, but the bullet did not hit them and in the cover of trees they could hide themselves at the distance of one furlong from the place of incident. He has stated that after the firing concluded and the accused-appellants left, they came out of the pigeon pee (Arhar) field and stopped at the place of occurrence for 2-3 minutes. All the accused-appellants had left towards Mainpuri. P.W.-1 claims to have come to the Railway Crossing and thereafter took a tempo to come to Mainpuri. This testimony of PW-1 in this regard reads as under:
"सभी मुल्जिमान मैनपुरी की तरफ भागे थे मौके से मै रेलवे फाटक की तरफ आया और वहाँ से टैम्पो पकडकर मैनपुरी आया। टैम्पो से मैनपुरी आने वाली बात तहरीर में नही लिखी है दरोगा जी ने न तो मुझसे पूछा था और नही मैने टैम्पो से आने वाली बात बताई थी।"
151. P.W.-1 has been confronted with his written report wherein there is no reference of his coming on a tempo, rather he has stated that he came to the Kotwali Police Station, Mainpuri on foot concealing himself on the way. The recital in the written report/FIR is as under:
"में पैदल भागकर छुपते छुपाते रिपोर्ट लिखाने आया हूँ।"
152. P.W.-1 when confronted with the aforesaid anomaly has stated that in haste he forgot to mention the fact about his coming on a tempo to the Kotwali Police Station, Mainpuri. At this juncture we may reiterate the argument on behalf of the appellants that the subsequent plea of P.W.-1 coming in a tempo is an afterthought and exposes the fallacy in the prosecution case. The unexplained embellishment is an additional ground to infer that the prosecution story is false.
153. It is admitted to the prosecution that the distance between the place of occurrence and the Kotwali Police Station, Mainpuri is about 9-10 kilometres and the report itself was lodged just after about half an hour. The argument with regard to the anti-timing of FIR has been raised precisely on the ground that it was not possible for anyone to travel 9-10 kilometres on foot and get the FIR registered in half an hour. The argument of Mr. V.P. Srivastava, learned Senior Counsel appearing for some of the accused-appellants is that in-fact the incident of firing was reported by someone else at Police Station-Bhogaon.
154. Since the shoot-out and killing of six persons immediately got the attention of the residents, as such informant/P.W.-1 has cooked up a story on the basis of information received as he was in Mainpuri, where he had political influence (it is an admitted fact that the brothers of P.W.-1 were Ex-Members of Legislative Assembly from Mainpuri). It is thus argued that the initial version in the written report was that the cause of occurrence was the enmity with the accused persons and the aspect of travelling such a long distance on foot apparently escaped their attention. It is urged that when aforesaid anomalies were realized then improvement was made in the statements of the prosecution witnesses regarding the alleged use of a tempo. The same amounts to embellishment in the testimony of PW-1 which remains unexplained. When PW-1 was confronted with the above aspect, he gave the following explanation regarding the same:-
"तहरीर में छुपते छुपाते आने वाली बात लिखाई है टैम्पो से आने वाली बात नहीं लिखाई है इस सम्बन्ध में तहरीर मे टैम्पो वाली बात हडबडाहट में लिखने से छूट गयी है इसलिए पैदल आने वाली बात लिखी है। मौके से रेलवे फाटक तक पैदल आया। जिसमे 10-12 मिनट लगे होगे। रेलवे फाटक पर पहुंचने के एक दो मिनट बाद ही टैम्पो मिल गया था ।"
155. In the examination-in-chief, P.W.-1 has stated that after the firing concluded, leaving the three survivors, who were with him, on the spot, first informant/P.W.-1 then came to Police Station-Kotwali. The exact testimony of P.W.-1 reads as under:
"मेरे साथ के तीन लोग वही मौके पर रह गए। मैं कोतवाली आया।"
In the cross-examination, P.W.-1 has stated that his brother Santosh (not produced) said to go and lodge a report and all three survivors would stay around the place of occurrence. The exact statement is as under:
"मेरे भाई सन्तोष ने कहा था कि आप जाकर रिपोर्ट लिखाओ हम तीनों यही आसपास है।"
156. As against the above testimony of P.W.1, P.W.-2 has stated that he accompanied his father (P.W.-1) upto the railway crossing and returned after he sat on a Tempo. P.W.-3 has stated that all the four survivors came upto railway crossing and returned only after P.W.-1 got seated in a tempo. This witness has also been confronted with his previous statement wherein this part is missing. He has explained the circumstance in the following manner:
"घटना के बाद हम चारो लोग रेलवे फाटक तक गए थे और वादी सुरेन्द्र सिंह को टेम्पो पर बैठाया था यह बात दरोगा जी को बताया था उन्होंने मेरे ब्यान में नहीं लिखी है तो मैं इसकी वजह नहीं बता सकता। मैने दरोगा जी को यह ब्यान नहीं दिया था कि मुल्जिमान के जाने के बाद हम चारो लोग छिपकर मैनपुरी गए थे यह ब्यान कैसे लिख दिया वजह नहीं बता सकता।"
157. From the statements of prosecution witnesses referred to above, it transpires that the initial written report (Ext.Ka.1) was submitted by P.W.-1. This witness alleges to have come to Kotwali Mainpuri on foot whereas his version has been subsequently improved upon in his deposition before court below so as to bring a story of coming to the Police Station on a Tempo. P.W.-1 has alleged that the other three survivors stayed behind and he alone came to the railway crossing but P.W.-2 and P.W.-3 have taken a different stand about coming to the railway crossing with P.W.-1 and then they returned from there to the place of occurrence.
158. An argument has also been raised to doubt the veracity of the prosecution witnesses on the ground that it was impossible for the witnesses to have seen the incident from a distance of 40-50 paces while hiding in the standing crops (Pigeon pea - Arahar field). The place from where the prosecution witnesses are alleged to have seen the occurrence is a crater and, therefore, there was no possibility for the prosecution witnesses of fact to have witnessed the occurrence. Therefore, the statements of prosecution witnesses about witnessing the occurrence is highly improbable.
159. On behalf of the accused-appellants, it is also urged that the entire story of P.W.-1, having gone to see his maternal aunt (Mausi), as she was sick, is also doubtful on the ground that neither the name of maternal aunt is known to P.W.-1 nor the story sounds credible as a lady in the family would be expected to accompany other family members and her absence raises doubt in the prosecution case. Reason for taking 7 other persons including the outsiders was the alleged threat to P.W.-1. However, none of these persons had armed himself. According to the learned counsel for the accused-appellants this version in the prosecution story is not credible and the entire story set up by the prosecution is therefore not worthy of acceptance.
160. It is also urged on behalf of the accused appellants that P.W.-1 has himself admitted that Police Station-Bhogaon is at a distance of nearly 3 kilometres and it remains unexplained as to why P.W.-1 had chosen to go to Police Station Kotwali at Mainpuri which is at a distance of 9-10 kilometres, when the above mentioned Police Station is situated much nearer the place of occurrence. Apart from above, it is also impossible to understand as to why after the firing stopped and all the assailants proceeded towards Mainpuri, yet PW-1 choose to go in the same direction, when it is an admitted fact that there was pre-existing old enmity in between the assailants and PW-1 and he was the primary target.
161. The other circumstance to doubt the presence of prosecution witnesses of fact is that none of the four survivors including P.W.-1 to P.W.-3 were witnesses of inquest (panchayatnama) of the bodies of the six deceased, even when they allege to be present at the time and place of occurrence and also at the time when police arrived at the spot.
162. In the cross-examination, P.W.-8 (Investigating Officer) has stated that witnesses of the inquest/panchayatnama of the bodies of six deceased are residents of two different Police Stations. The exact statement is as under:
"मै अपने काम में व्यस्त था। इसलिये बता नहीं सकता कि मौके निरीक्षण के समय घटना स्थल पर आस पास के लोग आए थे या नहीं लेकिन पंचायतनामें के गवाहान मौके पर थे। पंचायतनामों के गवाहान अलग-2 थाना क्षेत्रों में रहने वाले हैं।"
The testimony of P.W.-1 in that regard reads as under:
"दरोगा जी पंचायतनामा भरा था दो-ढाई बजे रात तक पंचायतनामे भरे गए थे। हम चारों में से किसी ने पंचायतनामे पर हस्ताक्षर नहीं किए थे।
प्रश्न:- क्या आपने पंचायतनामा भरने वाले अधिकारी (पुलिस कर्मियो) को यह बताया था कि मृतको को किस-2 व्यक्तियों ने मारा था ?
आपत्ति द्वारा अभियोजन पक्ष चूंकि यह साक्षी पंचायतनामा का गवाह नही है इसलिए यह प्रश्न इस साक्षी से नहीं पूछा जा सकता ।"
The statement of P.W.-2 in that regard is as under:
"लिखा पढ़ी के समय हम तीनों लोग अलग बैठे थे उस समय पुलिस वालों ने ना तो हम लोगों से कुछ पूछा था और न बताया हम चारो लोग पंचायतनामा के गवाह नहीं है।"
163. The presence of the prosecution witnesses of fact at the time and place of occurrence is also doubted by the learned counsel for accused appellants on the ground that the statement fo P.W.-1 alone was recorded under Section 161 Cr.P.C. by P.W.-8 on the date of incident, whereas the statements of other survivors were not recorded under Section 161 Cr.P.C.
164. It is also urged that the Police of Police Station Bhogaon including P.W.8 arrived first at the place of occurrence and as per the prosecution case, three survivors (except P.W.-1) were present at the place of occurrence. In that eventuality it would be quite natural that Police of Police Station Bhagaon would enquire from these three survivors about the manner of incident and record their statements immediately under Section 161 Cr.P.C.
The testimony of P.W.-8 S.I. Ram Pal Singh in this regard is relevant and accordingly extracted herein-below:
"चार बजे सुबह तक मै उक्त तीनों व्यक्तियों का ब्यान अंकित नही किया था। वादी का ब्यान मौके पर लिया था वादी के ब्यान से यह स्पष्ट हो गया था कि उक्त तीनो व्यक्ति घटना के चश्मदीद गवाह है समय की कमी के कराण उन तीनो व्यक्तियों का ब्यान मौके पर नही लिया। ऐसा नही है कि उक्त तीनों व्यक्ति मौके पर हमें न मिले हो और न मैने उनसे पूछताथ की हो। मौके पर उक्त तीनों व्यक्तियों से पूछताछ का कोई उल्लेख C.D. पर नही है। ऐसा नही है कि अपने व्यान खाश में हमने उक्त तीनो खाश व्यक्तियों की मौजूदगी व उनसे पूछताछ करना सिखाने पर बताया हो। मैने केवल एक परचा इस घटना के सम्बन्ध में काटा है।"
165. The very fact that the statements of these three survivors were not recorded under Section 161 Cr.P.C. raises a serious doubt regarding their presence at the time and place of occurrence.
166. The presence of prosecution witnesses of fact at the time and place of occurrence is further questioned on the ground that the description of the passengers of the Jeep was not correctly mentioned in the FIR and that the name of Ex-Pradhan of Humayunpur is mentioned as "Devendra Singh". The FIR while referring to the passengers of the jeep mentions the Ex-Pradhan of Humayunpur as Devendra Singh. Much emphasis has been laid by the counsel for the appellants on this aspect, as it has later been admitted by the prosecution witnesses that the correct name of Ex-Pradhan of Humayunpur is not Devendra Singh but Ram Kishan.
167. Mr. Arunendra Singh, the learned A.G.A., however, submits that in recording the contents of the FIR, a comma has been inadvertently omitted between the "Ex-Pradhan Humayunpur Devendra Singh". He submits that one of the passengers of the jeep who got killed was "Devendra Singh".
168. Our attention has been drawn to the statement of P.W.-1 who has stated that the name of Ex-Pradhan of Humayunpur was not immediately known, as such he was referred to as "Ex-Pradhan of Humayunpur" and Devendra Singh is not his son. This is clearly reflected in the following testimony of P.W.-1:
"हुमायू पुर के पूर्व प्रधान देवेन्द्र सिंह का नाम तहरीर में लिखा हैं स्वयं कहा हुमायू पुर के पूर्व प्रधान का नाम हमें उस समय ज्ञात नही था इस लिये पूर्व प्रधान के रूप में उन्हें इंगित किया, देवेन्द्र सिंह पूर्व प्रधान नही अपितु मेरा लडका है। तहरीर में मैने अपने दो पुत्रो देवेन्द्र सिंह व राजेन्द्र उर्फ टिल्लू का नाम लिखा है। प्रश्न- तहरीर प्रदर्श क-1 में अपने लड़के देवेन्द्र सिंह का नाम आपने नहीं लिखा है केवल एक लड़के गजेन्द्र उर्फ टिल्लू का नाम लिखा है?"
In response to the question posed in cross examination about Devendra Singh having not been referred to as son of P.W.-1, the witness (P.W.-1) has furnished the following explanation:
"प्रश्न- तहरीर प्रदर्श क-1 में अपने लड़के देवेन्द्र सिंह का नाम आपने नहीं लिखा है केवल एक लड़के गजेन्द्र उर्फ टिल्लू का नाम लिखा है?
उत्तर:- मैने तहरीर मे दोनों लड़कों का नाम लिखा है। देवेन्द्र सिंह को अपना पुत्र नहीं लिखा है लेकिन वह मेरा पुत्र है।"
169. We have analysed the evidence on record pertaining to above in the light of the submissions urged before us and upon careful and cautious evaluation of the same, we find substance in the explanation furnished by Mr. Arunendra Singh, the learned A.G.A. that the Ex-Pradhan of Humayunpur and Devendra Singh are not one and the same person but are two different entities. Admittedly the name of Ex-Pradhan of Humayunpur is "Ram Kishan" and not "Devendra Singh". Devendra Singh admittedly was one of the passengers, who got killed in the shoot-out. This anomaly apparently was the reason for some corrections in the inquest report also, where the name of Ram Kishan was mentioned after scoring out the previous description of the deceased.
170. In view of the specific and unambiguous explanation offered by the learned AGA, we are inclined to accept the argument of Mr. Arunendra Singh, the learned A.G.A. as per which the Ex-Pradhan of Humayunpur and Devendra Singh are two separate and distinct persons. The argument to the contrary raised on behalf of the appellants regarding above is therefore rejected.
171. The other limb of the argument pressed by the learned counsel for the appellants is regarding to the involvement of Subhash Pandey gang in the commission of the crime in question. The basis for such claim is the assertion reflected in the case diary regarding an incident of Police encounter in respect of which Case Crime No. 539 of 1996 under Section 307 I.P.C. was registered at Police Station Kotwali, District Mainpuri. In this incident certain empties were recovered by the Police from the place of occurrence. According to the learned counsel for appellants, the informant Surendra Singh (P.W.-1) has enmity with various persons and dozen of criminal cases are registered against his sons, namely, Mallu and Santosh relating to loot, robbery, dacoity, kidnapping, murder etc. Subhash Pandey allegedly is a criminal, who was operating a gang. Brother of Subhash Pandey, namely, Subedar Pandey was killed allegedly by Rakshpal Singh, who is the brother-in-law of informant's real brother Shiv Raj Singh. The real sister of Rakshpal Singh, namely, Kanti Devi was married to Shiv Raj Singh. It is further alleged that the informant (P.W.-1) with his real brothers, namely, Shiv Raj Singh and Updesh Singh used to actively help Rakshpal Singh with whom Subhash Pandey maintained enmity.
172. Soon after the incident of shoot-out in respect of which Case Crime No. 286 of 1996 was registered, the Superintendent of Police, Mainpuri and the Inspector of Police Station-Bhogaon as well as other police personnel apparently suspected the role of Subhash Pandey gang in the commission of the shoot-out. Pursuant to the order of the Superintendent of Police, Mainpuri and with the permission of the Chief Judicial Magistrate, Mainpuri, some of the empties recovered in the incident (Case Crime No. 286 of 1996) were sent to Forensic Science Laboratory, Agra for matching them with some of the empties recovered in the incident (Case Crime No. 539 of 1996) with regard to the Police encounter. The Scientific Officer of F.S.L. Agra submitted the report dated 31st October, 1996, which is on record as Paper No. 131A/10. After comparing the empties recovered from the aforementioned two incidents, the Scientific Officer opined as under in his FSL report:
"परिणामः-
अपराध सं० 539/96 थाना कोतवाली मैनपुरी के घटनास्थल से प्राप्त खोखे कारतूस चि० ईसी-32व ईसी- 34 उसी आग्नेयास्त्र से चले हैं जिससे घटनास्थल से प्राप्त खोखे कारतूस चि० ईसी-15, ईसी-17 व ईसी-19 तथा मारूति कार से प्राप्त खोखा कारतूस चि० ईसी-29 चले हैं।
अपराध सं० 539/96 थाना कोतवाली मैनपुरी के घटनास्थल से प्राप्त शेष दो कारतूस चि० ईसी-31 व ईसी-33 अन्य आग्नेयास्त्रों द्वारा चले हैं।"
173. This report has, however, not been produced by the prosecution but has been brought on record by the defence. According to the defence, the prosecution has not been fair and impartial in conducting the investigation in the present case and that is why the evidence relating to involvement of Subhash Pandey gang in the present incident has been deliberately excluded, as it would have demolished the entire prosecution case.
174. The arguments at length have been advanced from both sides with regard to the admissibility of the F.S.L. report Agra dated 31st October, 1996 (Paper No. 131A/10) as also the extent of reliability which could be placed upon such evidence. It therefore becomes imperative for us in such circumstances to address on the aspect relating to the evidence regarding involvement of Subhash Pandey gang in these two incidents.
175. The photo copy of the report of the F.S.L. Agra sent by the Joint Director, F.S.L. Agra dated 31st October, 1996 under the signatures of Ramesh Kumar Rawat, Scientific Officer vide office order no. /96168531/Agney/349 addressed to the Chief Judicial Magistrate, Mainpuri is on record. The defence, in addition to above, placed such photo copy on record, has produced the testimony of Rajesh Kumar Singh (D.W.-3) who was Inspector in C.B.C.I.D. Agra between July, 1997 to July, 1999. From 31st July, 1998 this witness had partly conducted the investigation in C.B. No. 420/98 arising out of Case Crime No. 286 of 1999. In his deposition, D.W.-3 has stated that the report of the F.S.L. Agra was incorporated in case diary on 1st May, 1999 and he had also recorded the statement of Ram Pal Singh, Officiating Inspector. In his examination-in-chief D.W.-3 has deposed as under:
"......एक्सपर्ट रिपोर्ट की मूल प्रति पत्रावली पर कागज सं० .... उपलब्ध है इस रिपार्ट के परिणाम वाले कालम में अप०सं० 539 /96 थाना कोतवाली मैनपुरी के घटना स्थल से प्राप्त खोखे कारतूस चि० ई०सी०-32 व ई०सी०-34 उसी अग्नेयास्त्र से चले है जिससे घटना स्थल से प्राप्त खोखे कारतूस चि० ई०सी०- 15, ई०सी०- 17, ई०सी०-19 तथा मारूति कार से प्राप्त खोखा कारतूस चि० ई०सी०-29 चले है अप०सं० 539/96 थाना कोतवाली मैनपुरी के घटना स्थल से प्राप्त शेष दो कारतूस चि० ई०सी०-31 व ई०सी०-33 अग्नेयास्त्र द्वारा चले है। मैने इस केस की तफतीश दिनांक 31.7.98 से 13.5.99 तक की है। इसके बाद यह तफतीश श्री महक सिंह द्वारा की गई है दिनांक 5.2.99 को मैने रामपाल सिंह के बयान में अंकित किया है कि तलविदा विजय सिंह काजला, एच०सी० रघुनाथ सिंह सी०/ बनीसिंह मौके पर घटना स्थल पर आए थे। निरीक्षक रामपाल सिंह के ब्यान में गवाह सुरेन्द्र सिंह, देवेन्द्र सिंह, सन्तोष एवं सन्तोष गुप्ता के मौके पर पहुचने/मिलने का 161 सीआर०पी०सी० में उल्लेख नही है अपराध संख्या की विवेचना में पूर्व विवेचक द्वारा की गई कार्यवाही का संछिप्त कथन अंकित किया जाता है।"
176. This witness has also been cross-examined wherein he has stated that investigation could not be concluded by him and no supplementary report under Section 173 (2) Cr.P.C. was submitted by him. However, there is no challenge to the correctness of report of the F.S.L. Agra nor the report has even been questioned by the prosecution. No suggestion has even been given to this witness for doubting the report of the F.S.L. Agra. The conclusions drawn in the report of the F.S.L. have also not been questioned.
177. In addition to the testimony of D.W.-3, the defence has also produced S.C. Pal (D.W.-4), who was Inspector in C.B.C.I.D. Agra Division, Agra between 30th November, 1996 to 28th January, 1998. He has stated that between the same parties a previous shoot-out was carried out on 23rd May, 1996 in which a report was lodged against seven persons by Shiv Raj Singh, brother of the informant (P.W.-1) against Ramakant and others. This case was registered as Case Crime No. 153 of 1996 under Sections 147, 148 and 302 I.P.C. in which final report was submitted on 7th July, 1996. A cross case was also lodged from the side of the accused, wherein Jagannath Dixit was the informant, under Sections 147, 148, 149, 307 and 302 I.P.C. at Police Station-Bhgaon. In this cross case a charge-sheet was submitted against the informant of this case, namely, Surendra Singh (P.W.-1), his two brothers, namely, Shiv Raj Singh and Upedesh Singh, his son Mallu as well as one Sushil Gupta on 7th July, 1996. These materials were included in the case diary. This witness in his deposition has clearly stated that the higher authorities had suggested the previous Investigating Officer Mr. Nand Kishor Mall of involvement of Subhash Pandey gang in respect of which Case Crime No. 539 of 1996 was lodged. On interrogation, this witness was informed by one Mr. Mall that some of the empties recovered in two cases were sent on the direction of the Senior Superintendent of Police for forensic examination. This witness has also stated that the informant/P.W.-1 Surendra Singh had disclosed him on 15th May, 1997 that he had not gone to Bhogaon Police Station as the Police of Bhogaon Police Station was under the influence of the accused persons. In his further cross-examination he has stated that no further investigation about Subhash Pandey gang was made by him and the case diary only records as was informed to him by the Inspector Sri Nand Kishor Mall.
178. The defence had also produced Mahak Singh, retired Inspector, C.B.C.I.D. as D.W.-6, who had investigated this case between 18th February, 2000 to 14th March, 2000. This witness has stated that during investigation he found that in 1984 the elder brother of Subhash Pandey, namely, Subedar Pandey was killed in village Elahabas, Police Station Elow, wherein Tukpal Singh, Rakshapal Singh and few others were suspected to be accused and in respect of which Case Crime No. 183 of 1984 under Sections 302 and 394 I.P.C. was registered. He also found that sister of Rakshapal Singh, namely, Kanti Devi is married to Shiv Raj Singh on account of which enmity was going on between the informant's party and Subhash Pandey gang.
179. In his further cross-examination this witness stated that he came to know that the accused persons were also known to Subhash Pandey. He clarified his statement while stating that the accused Anand Dixit was known to Subhash Pandey gang. There is no relationship between them. He also discovered the criminal history of 9 cases against Subhash Pandey. He also stated that none of the witnesses in this case had disclosed to him about the involvement of Subhash Pandey gang in the commission of the offence.
180. The first and foremost since we have to consider is as to whether the F.S.L. report dated 31st October, 1996 i.e. Paper No. 131A/10 can be read in evidence in this case or not? This report is the photo copy and its original has not been produced. This document could be in possession of the prosecution and cannot be expected to be available with the defence. The reference of this document is clearly made in the case diary which we have perused.
181. The defence has tried to bring this document as secondary evidence since the original was not available and to prove the same. The defence has produced D.W.-3, D.W.-4 and D.W.-6 in this regard. All these defence witnesses had been Investigating Officers of the case while the investigation was with the C.B.C.I.D.
182. We are informed that the decision to transfer the investigation to C.B.C.I.D. was ultimately quashed but during the course of argument our attention has not been drawn to any such order. However, existence of such fact is not doubted even by the appellants. The mere fact that the investigation was restored to Civil Police would not mean that the material collected during the course of investigation by the C.B.C.I.D. cannot be looked into. The Investigating Officers of C.B.C.I.D. i.e. D.W.-3, D.W.-4 and D.W.-6 have specifically stated that the decision was taken by the higher authorities for recovered empties to be sent to F.S.L. Agra in order to explore the possibility of the involvement of Subhash Pandey gang in this shoot-out/incident. The F.S.L. report dated 31st October, 1996 has been taken note off by D.W.-3, D.W.-4 and D.W.-6 and the contents of the said report have been mentioned in the case diary. The scientific report is otherwise a report which need not be proved by producing the Scientific Officer/Forensic Expert by virtue of the exception carved out in Section 293 Cr.P.C. The defence has placed the photo copy of the scientific report and has also shown that the contents of this report were recorded in the case diary but the prosecution at no stage has either challenged the existence of this report or the incorporation of the contents of the report in the case diary. The prosecution has also not furnished any explanation as to why involvement of Subhash Pandey gang had not been investigated further, despite the F.S.L. report, as per which some of the empties recovered in the Case Crime Nos. 539 of 1996 and 286 of 1996 were fired from the same firearm.
182. The learned AGA has contradicted the argument raised by the learned counsel for accused appellants regarding involvement of Subhash Pandey gang in the present incident on the basis of F.S.L. report dated 31st October, 1996. It is urged by the learned AGA that no firearm was recovered from any of the two places of occurrence and in its absence it is not conclusively proved on the strength of the F.S.L. report alone that the some of the empties recovered in both the incidents were fired from the same firearm.
183. The above objection of Mr. Amit Sinha, the learned A.G.A. has been opposed by Mr. Rajiv Lochan Shukla, who by placing reliance upon the Literature regarding Forensic Science has endeavoured to show that even in the absence of firearm, it was possible to hold that the empties recovered from two different places of occurrence were fired from the same weapon.
184. Irrespective of the submissions urged on behalf of the parties regarding the admissibility of FSL Report, we do find that material in the form of FSL Report dated 31.10.1996 had surfaced on record during investigation suggesting possible involvement of Subhash Pandey Gang in the shoot-out in question. The investigation has neither probed this line of investigation nor has disclosed any reasons to give it up. The FSL Report has otherwise been suppressed. This unexplained act of the investigation does create a shadow of doubt upon the conduct of the investigating agency in not completing the investigation, in the light of the above FSL Report, to a logical conclusion.
CONCLUSIONS ON THE BASIS OF ANALYSIS
185. The prosecution on the commencement of trial has set out to prove the incident of shoot-out in question as per which it was the accused-appellants who indiscriminately fired on the jeep in which the deceased, three prosecution witnesses and one else were travelling and led to the brutal murder of six passengers travelling therein. According to the prosecution the incident is seen by three prosecution witnesses of fact i.e. P.W.-1, P.W.-2 and P.W.-3 who are said to have jumped out of the running jeep alongwith another from the back door and have further witnessed the occurrence. The evidence on record reveals that these witnesses of fact are highly interested witnesses and their credibility and reliability as well as their presence at the place of occurrence becomes doubtful on account of the facts noted hereinabove and also their criminal antecedents. We are, therefore, called upon to determine whether the prosecution witnesses of fact are credible and their statements are worthy of trust before returning a finding regarding the guilt of the accused appellants beyond doubt or their innocence.
186. We have already referred to the various anomalies in the prosecution case with reference to the credibility and reliability of the prosecution witnesses of fact, the various contradictions and embellishment in their statements, their presence at the time and place of occurrence being seriously doubtful, the medical evidence not corroborating the ocular version, the long pre-existing enmity in between the accused-appellants and the first informant PW-1. Upon evaluation of the entire material on record with caution and circumspection we however find it difficult to agree with the reasoning and the conclusion recorded by the trial court. Having gone through the record and upon critical appraisal and appreciation of the evidence on record in the light of the submissions urged for and against the appeals as noted above we are inclined to allow the appeals preferred by the accused-appellants, who are otherwise in custody and have undergone incarceration for more than 18 years for the following reasons:-
(I) it seems doubtful to us that the four passengers of the jeep (including the three witnesses of fact, namely, P.W.-1, P.W.-2 and P.W.-3) could jump out of a running jeep and escape unhurt when ten armed men are indiscriminately firing at the jeep. We further find it difficult to believe that in such a shoot-out, the prime suspect (P.W.-1) would be spared by the assailants, particularly when they (the four who escaped) were unarmed and in close range of the assailants and were also seeing the assailants. It is apparent from the nature of the crime that the assailants had no intentions to spare any of the passengers of the jeep. We have difficulty in accepting the explanation of the prosecution witnesses that they jumped out of the running jeep, without sustaining any injury, and hide themselves at a distance of 40 to 50 paces in a pigeon pea field (arahar) and witnessed the occurrence from there. We have already stated in the earlier part of this judgment that the place from where the three prosecution witnesses of fact are alleged to have witnessed the occurrence is a crater in a pigeon pea field (Arahar) and, therefore, it was virtually impossible for the prosecution witnesses of fact to have witnessed the occurrence. The witnesses of fact have alleged that they were fired upon by the accused but they escaped unhurt because the jeep came in between them and the assailants. Even if this was to be accepted, we find it unnatural that having spotted these four passengers, the assailants would allow them to leave and would not walk a few paces further to eliminate them, particularly when P.W.-1 was their prime suspect on account of their pre-existing enmity. We, therefore, do not find the testimonies of the prosecution witnesses of fact trustworthy and reliable, particularly as they are highly interested witnesses. Their very presence at the place of occurrence is doubtful and hence their testimonies are not worthy of trust.
Having given our anxious consideration and upon realistic assessment we find that it would not be safe us to rely upon the statements of the three eye witnesses in view of their incredible character for the reasons noted above.
187. We are further inclined to ignore the minor inconsistencies and contradictions in the testimonies of the prosecution witnesses. But even if we ignore them, yet, we find that it would not be prudent to rely upon the prosecution case as explained by the three prosecution witnesses of fact. In this regard we deem it appropriate to clarify that many of the issues pressed by the learned counsel for accused-appellants do not merit serious consideration like inconsistencies in the prosecution case about P.W.-1 going to meet his ailing maternal aunt (Mausi) or the fact that no ladies had accompanied them though several persons had gone with P.W.-1 to cater to his safety but none of them carried any firearm or weapon; the fact that the prosecution version is shaky on account of two inmates, namely, Naresh Dixit and Ram Kishan (former Pradhan) joining later on the Mainpuri jail crossing; whether the witnesses have seen the incident from pigeon pea (Arhar) field or mustered field; the contradiction in the timing when the autopsy was concluded; error in recording the name of Pradhan of Humayunpur, namely Ram Kishan etc. yet the prosecution does not succeed in establishing its case beyond doubt for the reasons set-forth above.
188. We also find some substance in the argument of the learned counsel for the appellants about the possibility of Subhash Pandey gang being responsible for carrying out the shoot-out with whom also the informant's side had inimical relations. As already noted above, the FSL Report submitted by the FSL Agra was incorporated in the case diary which clearly shows that the empties recovered from different incidents were fired from the same weapon. Inspite of this the Investigating Officer has not taken the investigation to its logical end. Even if the FSL Report is not strictly read in evidence, yet, it being a material gathered during investigation was required to have been further probed to ascertain involvement of Subhash Pandey Gang in the shoot-out and the failure of investigation to do so has rendered the investigation questionable.
189. When the judgment of the trial court is examined in the light of the facts and circumstances of the case, the inherent fallacy in the prosecution story which the prosecution set out to prove and noticed by us in the previous part of this judgment coupled with the fact that the prosecution witnesses of fact are not credible, therefore, their testimonies are not worthy of trust, the very presence of the three prosecution witnesses of fact at the time and place of occurrence being not fully established, the ocular version of the occurrence not being corroborated by the medical evidence, we have no hesitation to hold that the findings returned by the trial court for recording the guilt of accused-appellants are not only illegal but also perverse.
190 Summing up our conclusions, we have no hesitation to hold that the prosecution has not been able to establish the very story which it set out to prove, on the basis of evidence adduced by the prosecution itself. Having said so, we disapprove the findings returned by court below and also the reasons assigned by court below for recording the guilt of the accused appellants. We, accordingly, disagree with the same.
191. In view of the discussions and deliberations made above, these appeals succeed and are liable to be allowed. They are accordingly allowed. The judgment and order dated 1st February, 2007 passed by the Sessions Judge, Mainpuri in Sessions Trial No. 97 of 2005 (State Vs. Jagannath and 5 Others) and Sessions Trial No. 104 of 2005 (State Vs. Hariom), arising out of Case Crime No. 286 of 1996, under Sections 147, 148, 302/149, 307/149 I.P.C., Police Station-Bhogaon, District-Mainpuri, against the accused-appellants, is hereby set aside.
192. The accused appellants, who are reported to be in jail for nearly 18 years, shall be released forthwith, unless they are wanted in any other case on compliance of Section 437-A Cr.P.C.
193. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Mainpuri henceforth, who shall transmit the same to the concerned Jail Superintendent for release of the accused-appellants in terms of this judgment.
(Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)
Order Date :- 08.05.2023
Sushil/Ranjeet Sahu/Ashok Kr.