Allahabad High Court
Veda Alias Vedpaland Others vs State Of U.P. on 16 October, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:164222-DB AFR Court No.43 Reserved on 02.09.2024 Delivered on 16.10.2024 Criminal Appeal No.4672 of 2007 1. Veda alias Vedpal 2. Ganga 3. Jagan 4. Praye Appellants vs. State of Uttar Pradesh Opp. Party WITH Criminal Appeal No.5743 of 2007 Rakesh Appellant vs. State of Uttar Pradesh Opp. Party WITH Criminal Appeal No.5037 of 2007 Babloo @ Balua Appellant vs. State of Uttar Pradesh Opp. Party xxx Counsel for the Appellants : 1. Sri P C Srivastava 2. Sri Pankaj Kumar Tyagi assisted by Sri Ankit Tyagi 3. Ms Kanchan Chaudhary Counsel for the Respondent : 1. Sri Vikas Goswami, AGA Hon'ble Ashwani Kumar Mishra, J.
Hon'ble Mayank Kumar Jain, J.
(Per: Mayank Kumar Jain, J)
1. Accused Veda @ Vedpal, Ganga, Jagan, Pyare, Rakesh, Babloo @ Balua, were tried together by the learned Additional Sessions Judge under Sections 148, 302 read with Section 149 IPC relating to Crime No.252 of 2004, Police Station Debai, District Bulandshahr and Section 25 Arms Act. They have been convicted under Section 302 read with Section 149 IPC and Section 25 Arms Act and sentenced to life and lesser sentences all of which are to run concurrently.
Accused Neetu, Vimlesh and Keshav Giri @ Naga Baba were tried under Sections 120-B read with Section 302 IPC relating to Crime No.252 of 2004, Police Station Debai, District Bulandshahr. Accused Keshav Giri @ Naga Baba was also tried under Section 25 Arms Act. They were acquitted after trial.
2. Aforesaid criminal appeals are preferred by the appellants against the judgment and order dated 30.6.2007 passed by Sri Raj Singh Verma, the then Additional Sessions Judge (Fast Track), Court No.20, Bulandshahr, whereby:
(a) All the six appellants, namely, Veda @ Vedpal, Ganga, Jagan, Pyare, Rakesh and Babloo @ Balua have been convicted and sentenced to one year rigorous imprisonment under Section 148 IPC, with a fine of Rs.500/- each, and sentenced to rigorous imprisonment for life under Section 302 IPC read with Section 149 IPC, with a fine of Rs.5000/- each in Sessions Trial No.625 of 2004, State vs. Veda @ Vedpal and 8 others;
(b) The appellant Rakesh has been convicted and sentenced to one year rigorous imprisonment under Section 25 Arms Act, coupled with a fine of Rs.1000/- in Sessions Trial No.766 of 2004, State vs. Rakesh;
(c) The appellant Veda @ Vedpal has been convicted and sentenced to one year rigorous imprisonment under Section 25 Arms Act, coupled with a fine of Rs.1000/- in Sessions Trial no.1138 of 2004, State vs. Veda @ Vedpal;
(d) The appellant Babloo @ Balua has been convicted and sentenced to one year rigorous imprisonment under Section 25 Arms Act, coupled with a fine of Rs.1000/- in Sessions Trial No.1139 of 2004, State vs. Babloo @ Balua;
(e) The appellant Jagan has been convicted and sentenced to one year rigorous imprisonment under Section 25 Arms Act, coupled with a fine of Rs.1000/- in Sessions Trial No.1140 of 2004, State vs. Jagan;
(f) The appellant Pyare has been convicted and sentenced to one year rigorous imprisonment under Section 25 Arms Act, coupled with a fine of Rs.1000/- in Sessions Trial No.1141 of 2004, State vs. Pyare; and
(g) The appellant Ganga has been convicted and sentenced to one year rigorous imprisonment under Section 25 Arms Act, coupled with a fine of Rs.1000/- in Sessions Trial No.1142 of 2004, State vs. Ganga.
3. The trial Court further directed that in case of default of fine, each appellant shall undergo one-year additional imprisonment. It was also directed that all sentences shall run concurrently.
4. During the pendency of the present appeals, appellant Jagan died on 02.04.2014 and vide order dated 5.8.2024 of this Court, the appeal in respect of accused Jagan stands abated.
5. Since all the appeals arise out of a common judgment and order, therefore, they are being disposed off by this common judgment.
6. This is a case where four persons were done to death during one go of incident that occurred in the intervening night of 24/25.5.2004.
In the first occurrence, Zalim Singh was shot dead at his tube well, in the second occurrence, Santosh and Dinesh were done to death at their tube well and in the third occurrence, Kunwar Singh was shot dead by assailants at his tube well.
The FIR
7. The First Information Report was registered at Police Station Debai, District Bulandshahar on the basis of a written report submitted by informant Bunty, the son of deceased Dinesh on 25.05.2004 at 6:20 AM.
8. The case of the prosecution unfolded in the FIR is summarised thus:
(a) Accused Neetu W/o Pramod was having illicit relation with accused Veda @ Vedpal. Their relation was opposed by the informant and his family members. Veda and his family were prejudiced against the informant. They had started to hold grudge against them. They threatened to take care of the informant and his family.
(b) Accused Vimlesh and Naga Baba visited Village Aukhand and met Veda on 24.05.2004. Naga Baba and Vimlesh threatened the informant and his family members. They asked the informant that why they were stopping Neetu from going to Veda. On this, informant asked them how they were concerned with Neetu and Veda. Naga Baba and Vimlesh told the informant that Neetu and Veda were their friends and that Neetu and Veda love each other. They said that the informant must not intervene in their relationship, else they will have to face dire consequences.
(c) On the intervening night of 24/25.5.2004 at about 1:00-1:30 am, accused Veda, Jagan, Pyare, Ganga, Nahariya, Rakesh and one unknown person, armed with country-made pistols and guns, in continuation to their common intention, reached at the tube-well of Zalim Singh. Zalim Singh was at his well. The uncles of the informant, namely Sheeshpal and Sukhveer Singh were irrigating their field. Upon reaching there, the accused shot Zalim Singh and he died. Witnesses Sheeshpal and Sukhveer Singh rushed towards the tube-well and identified them running away in the torch light.
(d) After this, the assailants reached the tube well of Santosh and Dinesh, who were irrigating their fields. They attacked and shot them dead. The informant along with Pappu and Punji identified them in the torch light.
(e) After this, they reached the tube-well of Kunwar Singh and shot him dead. His son Vinod, who was irrigating his field with his father, witnessed the incident. Besides this, Singhveer Singh and Om Prakash, who were on their tube-well, had also seen the assailants running away in the light of torch and bulb.
(f) Due to fear and in order to save their lives, they were unable to oppose the accused because they were armed with deadly weapons. The informant and witnesses were all empty-handed. The miscreants spread so much terror by firing that they could not go to their village at night.
(g) Accused Naga Baba, Vimlesh and Neetu had committed conspiracy to commit the murders of Zalim Singh, Dinesh, Santosh and Kunwar Singh.
Investigation
9. On the basis of the aforesaid written report (Ex.Ka.1), First Information Report (Ex.Ka.8) came to be registered under Sections 147, 148, 149, 302, 120-B IPC, as Case Crime No. 252 of 2004 at Police Station Debai, District Bulandshahr. The investigation was entrusted to Station House Officer, Yashveer Singh.
10. Inquest of the bodies of deceased Kunwar Singh (Ex.Ka.51), Santosh (Ex.Ka.56), Dinesh (Ex.Ka.61) and Zalim Singh (Ex.Ka.66) were conducted. The dead bodies were sent for postmortem with relevant documents.
11. The autopsy of deceased Kunwar Singh was conducted by Dr. A.K. Bansal on 26.5.2004 at 11:00 AM. Report (Ex. Ka. 12) was prepared. The following injuries were noted:
(i) Firearm wound of entry 4 cm x 4 cm x chest cavity deep on the front of outer part Rt Chest below Rt clavicle. Blackening tattooing present all around.
(ii) Firearm wound of entry 4 cm x 4 cm x chest cavity deep on the front of Lt side chest 8 cm above Lt nipple. Blackening and tattooing present all around wound.
12. The autopsy of the deceased Santosh Kumar was conducted by Dr. A. K. Bansal on the same day at 11:30 am. Report (Ex. Ka.13) was prepared. Following injuries were noted:
(i) Firearm wound of entry 4 cm x 4 cm x chest cavity deep on the front of Lt side chest 4 cm below Lt clavicle. Blackening and tattooing all around.
13. The autopsy of the deceased Zalim Singh was conducted by Dr. A. K. Bansal on the same day at 12:45 pm. Report (Ex. Ka.14) was prepared. Following injuries were noted:
(i) Firearm wound of entry 1.5 cm x 1.5 cm over front of chest 10 cm from Rt nipple at 2'O clock position. Blackening and tattooing all around wound.
(ii) Firearm wound of Ext. 2 cm x 2 cm over Lt side back of lower part chest 6 cm Lt to mid line.
14. The autopsy of the deceased Dinesh was conducted by Dr. A. K. Bansal on the same day at 12:15 pm. Report (Ex. Ka.15) was prepared. Following injuries were noted:
(i) Firearm wound of entry 3 cm x 3 cm x chest cavity deep on Lt side chest just below Axilla (out ax line). Blackening and tattooing all around present.
(ii) Lac wound 2 cm x 1 cm over front of chest middle in between nipple x subcut tissue deep.
(iii) ab. contusion 2 cm x 3 cm adjacent to Injury no.2.
(iv) Lac wound 2 cm x 1 cm x muscle deep over front of Rt Thigh Middle Part. Fracture femur Rt Traumatic swelling around.
15. The Investigating Officer visited the places of occurrence. Out of the pointing of the informant, he prepared site plans of the places where deceased Kunwar Singh (Ex. Ka.16), Santosh & Dinesh (Ex.Ka.17) and Zalim Singh (Ex.Ka.18) were done to death.
16. The appellant - Babloo @ Balua was arrested on 28.5.2004 and on the basis of his disclosure statement, a country made pistol of 315 bore, one fired cartridge in its barrel and seven live cartridges were recovered out of his pointing in the presence of independence witnesses Vinod Kumar and Pappu. Recovery memo (Ex.Ka.28) was prepared. Case Crime No.254 of 2004 under Section 25 Arms Act was registered against him.
17. On the same day, the appellant- Veda @ Vedpal was arrested and on the basis of his disclosure statement, one country made pistol of 12 bore, six live cartridges and one fired cartridge in its barrel were recovered out of his pointing in the presence of independent witnesses Vinod Kumar and Pappu. Recovery memo (Ex.Ka. 28.) was prepared. Case Crime No.253 of 2004 under Section 25 Arms Act was registered against him.
18. On 3.6.2004, the accused- Keshav Giri @ Naga Baba, during Police Custody Remand (PCR), got recovered out of his pointing out a country made pistol of 12 bore, one fired cartridge in its barrel and two live cartridges of 12 bore in the presence of independent witnesses Mohar Singh and Ravindra Singh. Recovery memo (Ex.Ka. 29) was prepared and Case Crime No.260 of 2004 under Section 25 Arms Act was registered against him.
19. On 5.6.2004, the appellant - Rakesh was arrested. One SBBL gun of 12 bore, one fired cartridge in its barrel and two live cartridges were recovered out of his pointing in the presence of independent witnesses, Mohar Singh and Kamal Singh. Recovery memo (Ex. Ka. 30) was prepared and Case Crime No.261 of 2004 under Section 25 Arms Act was registered against him.
20. Appellants - Jagan, Pyare and Ganga, during Police Custody Remand (PCR), got recovered out of their pointing three country-made pistols of 12 bore, two fired cartridges in the barrel and six live cartridges in the presence of witnesses, Kamal Singh and Mohar Singh. Recovery memo (Ex.Ka.34) was prepared. Case Crime Nos.265, 266 and 267 of 2004 under Section 25 Arms Act were registered against them respectively.
21. During the investigation, recovered arms and cartridges, clothes of the deceased and other articles were sent for forensic examination. FSL Report (Ex.Ka. 92) is brought on record.
22. During the investigation, statements of the informant and the eyewitnesses were recorded. Torches were taken by the Investigating Officer from informant-Bunty, Singhveer Singh, Sukhveer Singh, Sheeshpal Singh, Punji Singh, Pappu, Om Prakash and Vinod Kumar, the witnesses alleged to have seen the incident. Recovery memos (Ex. Ka. 42 to 49) were prepared. The torches were returned to the aforesaid persons, with a direction that they shall produce them before the Court/Police when required.
23. After investigation, charge-sheet (Ex. Ka. 50) came to be filed against all the appellants under Section 147, 148, 302/149 and 120-B of IPC. Simultaneously, charge-sheets under Section 25 Arms Act were also filed by the Investigating Officer against appellant - Rakesh (Ex.Ka.72), Keshav Giri @ Naga Baba (Ex.Ka. 80), appellant - Jagan (Ex. Ka.85), appellant Pyare (Ex. Ka.86), appellant Ganga (Ex. Ka. 87), appellant - Veda @ Ved Pal (Ex.Ka.75) and appellant Babloo @ Balua (Ex.Ka.76).
24. The case was committed to the Court of Sessions by learned Chief Judicial Magistrate, Bulandshahr. It was registered as Sessions Trial No.625 of 2004 (State vs. Veda @ Vedpal and 8 others). Similarly, cases under Section 25 Arms Act were also committed to the Court of Sessions and were registered as Sessions Trial Nos.766 of 2004 (State vs. Rakesh), 1138 of 2004 (State vs. Veda @ Vedpal), 1139 of 2004 (Babloo @ Balua), 1140 of 2004 (State vs. Jagan), 1141 of 2004 (State vs. Pyare) and 1142 of 2004 (State vs. Ganga).
The Charges
25. Charges were framed against appellants, namely, Veda @ Vedpal, Ganga, Pyare, Nahariya, Jagan, Rakesh and Balua @ Babloo under Sections 148, 302 read with Section 149 IPC, whereas charges were framed against appellants, namely, Keshav Giri @ Naga Baba, Vimlesh and Neetu under Section 302 read with 120-B IPC. Separate charges under Section 25 of the Arms Act were framed against appellants - Rakesh, Keshav Giri @ Naga Baba, Ganga, Pyare, Jagan, Veda @ VedPal and Babloo @ Balua. All the appellants denied with the charges and claimed to be tried.
Documentary Evidence
26. The prosecution witnesses proved the following documents, executed during investigation, as exhibits:-
(1) Ex. Ka.1 - Written Report (2) Ex. Ka.2 - Chik FIR (3) Ex. Ka.3 - Copy of Report (4) Ex. Ka.4 - FIR (5) Ex. Ka.5- Copy of Report (6) Ex. Ka.6- FIR (7) Ex. Ka.7- Copy of Report (8) Ex. Ka.8- FIR (9) Ex. Ka.9- Copy of Report (10) Ex. Ka.10- FIR.
(11) Ex. Ka.11- Copy of Report (12) Ex. Ka.12- Postmortem report of Kunwar Singh (13) Ex. Ka. 13- Postmortem report of Santosh Kumar (14) Ex. Ka. 14- Postmortem report of Jalim Singh (15) Ex. Ka. 15- Postmortem report of Dinesh Kumar (16) Ex. Ka.16- Site plan - Kunwar Singh (17) Ex. Ka.17- Site plan - Dinesh & Santosh (18) Ex. Ka. 18- Site plan of Jalim Singh (19) Ex. Ka. 19- Site plan of Jalim Singh (20) Ex. Ka. 20- Recovery Memo of blood stained and plain earth.
(21) Ex. Ka. 21- Recovery Memo of blood stained and plain earth.
(22) Ex. Ka. 22- Recovery Memo of blood stained and plain earth.
(23) Ex. Ka. 23- Recovery Memo of blood stained and plain earth.
(24) Ex. Ka. 24- Recovery of empty cartridge.
(25) Ex. Ka. 25- Recovery of empty cartridge (26) Ex. Ka. 26- Recovery of blood stained Ban of Cot (27) Ex. Ka. 27- Recovery of blood stained Khus (28) Ex. Ka. 28- Recovery of Tamancha, empty and live cartridges (29) Ex. Ka. 29 - Recovery of Tamancha, empty and live cartridges (30) Ex. Ka. 30- Recovery of SBBL gun, live and empty cartridges (31) Ex. Ka. 31- Statement of Maharaj (32) Ex. Ka. 32- Statement of Raghvendra (33) Ex. Ka. 33- Tehrir - CD (34) Ex. Ka. 34- Recovery memo of 3 Tamancha, empty and live cartridges (35) Ex. Ka. 35- Site plan of recovery by Keshav Giri @ Naga Baga (36) Ex. Ka. 36- Site plan of recovery by Jagan (37) Ex. Ka. 37- Site plan of recovery by Pyare (38) Ex. Ka. 38- Site plan of recovery by Ganga (39) Ex. Ka. 39- Site plan of recovery of 12 bore pistol (40) Ex. Ka. 40- Site plan of recovery by Babloo @ Balua (41) Ex. Ka. 41- Site plan of recovery by Veda @ Vedpal (42) Ex. Ka. 42- Recovery Memo and supurdiginama of Torch (43) Ex. Ka. 43- Recovery Memo and supurdiginama of Torch (44) Ex. Ka. 44- Recovery Memo and supurdiginama of Torch (45) Ex. Ka. 45- Recovery Memo and supurdiginama of Torch (46) Ex. Ka. 46- Recovery Memo and supurdiginama of Torch (47) Ex. Ka. 47- Recovery Memo and supurdiginama of Torch (48) Ex. Ka. 48- Recovery Memo and supurdiginama of Torch (49) Ex. Ka. 49- Recovery Memo and supurdiginama of Torch (50) Ex. Ka. 50- Charge-sheet under Sections 147, 148, 149, 302, 120-B of IPC (51) Ex. Ka. 51- Panchayatnama of Kunwar Singh (52) Ex. Ka. 52- Letter RI (53) Ex. Ka. 53- Letter to CMO (54) Ex. Ka. 54- Photo of dead body (55) Ex. Ka. 55- Chalan - Dead body of Kunwar Singh (56) Ex. Ka. 56- Panchayatnama of Santosh Kumar (57) Ex. Ka. 57- Letter RI (58) Ex. Ka. 58- Letter to CMO (59) Ex. Ka. 59- Photo of dead body (60) Ex. Ka. 60- Chalan - Dead body of Santosh (61) Ex. Ka. 61- Panchayatnama of Dinesh Kumar (62) Ex. Ka. 62- Letter to CMO (63) Ex. Ka. 63- Letter RI (64) Ex. Ka. 64- Photo of dead body (65) Ex. Ka. 65- Chalan of dead body of Dinesh (66) Ex. Ka. 66- Panchayatnama of Jalim Singh (67) Ex. Ka. 67- Letter RI (68) Ex. Ka. 68- Letter to CMO (69) Ex. Ka. 69- Photo of dead body (70) Ex. Ka. 70- Chalan of dead body of Jalim Singh (71) Ex. Ka. 71- Site plan for recovery u/s 25 Arms Act by Rakesh (72) Ex. Ka. 72 - Charge-sheet - Rakesh (73) Ex. Ka. 73- Order DM (74) Ex. Ka. 74- Site plan for recovery u/s 25 Arms Act by Veda (75) Ex. Ka. 75- Chargesheet u/s 25 Arms Act by Veda (76) Ex. Ka. 76- Chargesheet u/s 25 Arms Act by Babloo (77) Ex. Ka. 77 - Order DM - Veda (78) Ex. Ka. 78- Order DM - Babloo (79) Ex. Ka. 79- Site plan for recovery u/s 25 Arms Act by Keshav Giri (80) Ex. Ka. 80 - Charge-sheet against Keshav Giri u/s 25 of Arms Act (81) Ex. Ka. 81 - Order DM - Keshav Giri (82) Ex. Ka. 82- Site plan for recovery by Jagan (83) Ex. Ka. 83- Site plan for recovery by Pyare (84) Ex. Ka. 84- Site plan for recovery by Ganga (85) Ex. Ka. 85- Charge-sheet against Jagan u/s 25 Arms Act (86) Ex. Ka. 86- Charge-sheet against Pyare u/s 25 Arms Act (87) Ex. Ka. 87- Charge-sheet against Ganga u/s 25 Arms Act (88) Ex. Ka.88- Order DM - Jagan u/s 25 Arms Act (89) Ex. Ka. 89- Order DM - Pyare u/s 25 Arms Act (90) Ex. Ka. 90 - Order DM - Ganga u/s 25 Arms Act (91) Ex. Ka. 91- FSL Report - dead body (92) Ex. Ka. 92 - FSL Report of CMP and Gun.
Oral Evidence
27. To prove its case, the prosecution produced the following witnesses, during the trial:
(i) (PW-1) Bunti (informant)
(ii) (PW-2) Sheeshpal Singh, the eye witness
(iii) (PW-3) Vinod Kumar, the eye witness,
(iv) (PW-4) Constable Clerk Murari Lal
(v) (PW-5) Constable 1241 Shishupal Singh
(vi) (PW-6) Bunti S/o Om Pal Singh, witness of conspiracy
(vii) (PW-7) Raghvendra Singh, witness of conspiracy
(viii) (PW-8) Maharaj Singh, witness of conspiracy
(ix) (PW-9) HCP 178 - Rameshwar Singh
(x) (PW-10) Dr. A. K. Bansal
(xi) (PW-11) Inspector Yashveer Singh (I.O.)
(xii) (PW-12) Sub Inspector Nahar Singh
(xiii) (PW-13) SI Rajan Lal Yadav
(xiv) (PW-14) Sub Inspector Ram Avtar Sharma
(xv) (PW-15) Sub Inspector Anil Kumar.
28. After conclusion of the evidence of the prosecution, statements of the appellants under Section 313 Cr.P.C. were recorded.
29. All the appellants categorically denied that they committed the murder of deceased Zalim Singh, Dinesh, Santosh and Kunwar Singh on the intervening night of 24/25.5.2004 with firearm weapons. Further, they denied any recovery of firearm weapons and cartridges made on the basis of their pointing. They stated that the witnesses, Bunti, Sheeshpal and Vinod Kumar, were having enmity with them, so they deposed against them.
30. The appellant Babloo @ Balua stated that there was party-bandi in his village. He is falsely implicated at the behest of opposite parties.
31. The appellant Veda @ Vedpal stated that he had no relation with Neetu. He was doing the trading of Milk and had given advance money to Bunti, Sheeshpal and Vinod Kumar, but they did not supply the Milk. They did not return his money and stopped supply of milk. His father was village Head. They started holding grudge against his family. There was rivalry between the informant and the witnesses from the time of the tenure of his father as village head. Bunty was having enmity with his Fufa and his family members on account of dowry death of his Bua. Bunty was the informant, deceased Dinesh, Santosh and Kunwar Singh were witnesses, and Zalim Singh was doing pairvi in that case. It is possible that due to this rivalry, deceased were done to death by unknown persons.
32. The appellant Pyare stated that informant Bunty, witnesses Vinod Kumar and Sheeshpal had rivalry with appellant Veda due to money lending in milk trade. His brother Harfool had contested the election of village head. Due to this rivalry, he is falsely implicated in this matter.
33. The appellant Ganga repeated the version of appellant Pyare.
34. Appellant Rakesh stated that he is implicated for being a relative of Vimlesh.
35. Copy of FIR relating to Crime No.108/03, under Sections 498-A, 304, 201 of IPC and ¾ of Dowry Prohibition Act, P.S. Debai, District Bulandshahr and charge-sheet are filed on behalf of the appellants as documentary evidence in defence. Bunty, the informant of the present case, is also nominated as a witness (as informant) in the charge-sheet. Besides this, deceased Santosh Kumar and Dinesh Kumar were nominated as witnesses of fact.
Appellants' Contention
36. Sri P. C. Srivastava, Sri Pankaj Kumar Tyagi and Ms. Kanchan Chaudhary, learned counsels for the appellants submitted that it is the case of the prosecution that the occurrence had taken place, in a series, in the intervening night of 24/25.5.2004 between 1:00 am to 1:30 am. In the first occurrence, Zalim Singh was done to death, in the second occurrence Santosh and Dinesh were done to death and in the third occurrence, Kunwar Singh was done to death. At the time of first occurrence, Sheeshpal and Sukhveer Singh were irrigating their field. During the second occurrence, informant Bunty, Pappu and Punji were irrigating their field, while during the third occurrence, Vinod along with Singhveer Singh and Om Prakash were present at their Tube-well. The alleged eyewitnesses such as Sukhveer Singh, Pappu, Punjji, Singhveer and Om Prakash, were not produced by the prosecution during the trial. The motive attributed to the appellants to commit murder of four persons is alleged that they were opposing the relationship of Neetu and Veda @ Vedpal. On the eve of the occurrence, Keshav Giri @ Naga Baba, Vimlesh and Neetu visited the informant and lodged their protest over the opposition made by the informant and his family members.
37. It is submitted that admittedly, the intervening night of 24/25.5.2004 was dark. The identification of the appellants at the place of occurrence is highly doubtful since there was no source of light. It is stated by the witnesses that they along with other persons, who were with them, were having torches. Besides this, lanterns were also lighting near the place of occurrence. No such lantern was recovered by the Investigating Officer. Therefore, the existence of a lantern at the place of the occurrence is completely false. Secondly, it is stated that PW-1 Bunty, PW-2 Sheeshpal and PW-3 Vinod Kumar, who claim themselves to be the eyewitnesses to the incident, were having torches. They identified the appellants, armed with firearms weapons and committing murder of Zalim Singh, Santosh, Dinesh and Kunwar Singh in torch light.
38. The Investigating Officer, during investigation, took the torches from these witnesses. He prepared recovery memos. The torches were returned to them. These witnesses were directed to produce these torches at the time of their deposition during trial. These witnesses failed to produce torches before the trial Court when their testimony was recorded. No explanation was offered by them for the non-production of such torches. Even during the deposition of Investigating Officer, these torches were not produced by the prosecution before the trial Court. Therefore, this theory cannot be relied upon that the witnesses identified the appellants in the torchlight.
39. It is also submitted that as per the prosecution version, the occurrence took place between 1:00 am to 1:30 am. FIR was lodged at 6:20 am, while the inquests of the deceased were prepared from 1:00 pm to 5:00 pm. There is no recital of the name of the accused persons on the inquest report. The Investigating Officer had stated that he reached at 6:50 am at the place of occurrence, but no entry in General Diary about his Ravangi is brought on record. Therefore, the FIR is ante time. It has also come into evidence of the witnesses that the First Information Report was lodged after due deliberations.
40. It is also vehemently argued on behalf of the appellants that the conduct of all the three alleged eyewitnesses such as PW-1, PW-2 and PW-3 is highly unnatural. When the father of informant, Dinesh along with Santosh were already done to death, the informant did not disclose this fact to Sheeshpal and other persons, when he went to the place where Zalim Singh was done to death. As per his testimony, he did not even approach to the place where the bodies of Dinesh and Santosh were lying. He immediately started towards the tube-well of Zalim Singh in the morning without attending his father and uncle.
41. It is also submitted that so far as the recoveries of firearm weapons and cartridges out of the pointing of the appellants are concerned, all the recoveries are shown from the field of Karanwas, in and around the Ashram of Keshav Giri @ Naga Baba. The learned trial Court completely ignored the conclusion drawn by the Forensic Laboratory through its FSL report.
42. It is further submitted that no motive has been attributed to the appellants to commit the murder of the deceased persons. Neetu is not directly related to the informant and his family, therefore, there was no occasion for the informant and his family members to oppose the relationship between Neetu and Veda @ Vedpal. There are material contradictions in the statements of the witnesses as well as version of the FIR. No specific role has been assigned to any of the appellants in the FIR. During testimony of the alleged eyewitnesses, it was not stated as to which of the appellant committed the murder of which of the deceased. It is also submitted that the appellants are in jail since 18 years and with remission, it comes to 24 years.
43. It is further submitted that none of the independent witnesses before whom country made pistols and other ammunitions were alleged to be recovered were examined during trial. Therefore, the recovery is planted.
44. It is further contended that accused Babloo @ Balua was not named in the FIR. Informant Bunty has admitted, during his deposition, that he was knowing Babloo @ Balua since before the occurrence and he identified him at the time of occurrence, but he did not mention his name in the FIR.
45. It has been further argued on behalf of the appellants that the postmortem report of deceased Dinesh shows the presence of pellets in his body, which does not appear to have been fired by a firearm of 315 bore, though it appears to have been fired by a firearm of 12 bore. Recovery of a country made pistol of 315 bore along with one fired cartridge and seven live cartridges has been shown out of the pointing of appellant-Veda @ Vedpal. Postmortem report of Dinesh does not show any injury of 315 bore. PW-1 Bunty has deposed that appellant Veda @ Vedpal fired upon his father Dinesh and committed his murder. This factum demonstrates that PW-1 is not an eyewitness to the incident. FSL report does not corroborate that Veda fired with the country made pistol of 315 bore since it was not found to be matched.
46. In support of their submissions, learned counsels for the appellants placed reliance upon the following judgements of the Hon'ble Apex Court:
(i) Reena Hazarika vs. State of Assam, 2018 0 Supreme (SC) 1106;
(ii) Darshan Singh vs. State of Punjab, Laws (SC) 2024-1-18; and
(iii) State of Karnataka vs. Suvarnamma & Anr., (2015) 1 SCC 323.
State's Reply
47. Per contra, learned AGA Sri Vikas Goswami, vehemently argued that in the present case, four persons were done to death. All the three witnesses, namely, PW-1-Bunty, PW-2-Shishpal and PW-3-Vinod Kumar are the eyewitnesses to the incident. These witnesses identified the appellants at the time of incident, armed with firearm weapons. There is no contradiction, improvement or embellishment in their testimony. According to the prosecution case, entire incident happened in three phases. The appellants, in furtherance to their common intention, firstly, committed the murder of Zalim Singh. Thereafter, they committed the murder of Dinesh and Santosh and lastly, they committed the murder of Kunwar Singh. They threatened the informant and other witnesses at the place of occurrence. It is also submitted that out of the pointing of the appellants, country made pistols, live and empty cartridges were recovered. All the four deceased died on the spot. In the injuries of deceased Zalim Singh, Dinesh, Santosh and Kunwar Singh, blackening and tattooing were noted at the time of postmortem, which indicate that the appellants fired from the close proximity to ensure that in all probabilities, the deceased would die.
48. It is also submitted that it is the specific case of the prosecution that the eyewitnesses were having torches with them and they identified the appellants at the time of occurrence in the torch light. The torches were taken by the Investigating Officer and recovery memos were also executed, which are duly proved. It has also come in the testimony of the eyewitnesses that lanterns were also lighting at the time of incident.
49. Learned AGA further argued that the informant, appellants and the witnesses were known to each other because they are the residents of the same village. On the eve of the incident, accused Keshav Giri @ Naga Baba, Vimlesh and Neetu visited the informant and extended threat that they would face dire consequences, if they continue to oppose the relationship of Neetu and Veda @ Vedpal.
50. He further submitted that the statements of the witnesses have to be read as a whole and not in piecemeal. Minor contradictions are bound to occur during the testimony of the witnesses since they are rustic villagers. He vehemently argued that where direct evidence is available, the motive loses its importance. However, in the present case, the motive is also proved beyond doubt against all the appellants by cogent evidence.
51. Reliance is placed by learned AGA on the judgment rendered by the Hon'ble Apex Court in Shahaja alias Shahajan Ismail Mohd. Shaikh vs. State of Maharashtra, 2022 SCC Online SC 883. The relevant paragraphs are extracted below:
27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096:(1983) 3 SCC 217:AIR 1983 SC 753, Leela Ram v. State of Haryana,(1999) 9 SCC 525:AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]
28. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
***
30. In the aforesaid context, we may refer to a decision of this Court in the case of State of U.P. v. Anil Singh: AIR 1988 SC 1998, wherein in para 15, it is observed thus:
"15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other Both are public duties which the Judge has to perform."
Testimony of the witnesses
52. PW-1 Banty, is the informant and the son of deceased Dinesh. During his statement, he stated that Neetu was having illicit relation with Veda @ Vedpal. On 24.5.2004, accused Vimlesh and Keshav Giri @ Naga Baba visited his village. They lodged their protest about opposition of the relationship between Veda @ Vedpal and Neetu by informant and his family members.
In the intervening night of 24/25.5.2004, he was irrigating his field along with his father Dinesh and uncle Santosh. Pappu and Punjji were also there. At around 1:00-1:30 am, the appellants committed the murder of Zalim Singh on his tube-well. Thereafter, they came to their fields. Accused Nahariya and Pyare committed the murder of Santosh, while Veda @ Vedpal and Rakesh committed the murder of his father Dinesh. He along with Pappu and Punjji witnessed the incident. After committing the murder of Zalim Singh, Dinesh and Santosh, the appellants had gone towards the tube-well of Kunwar Singh.
53. PW-2 Shishpal, is the real brother of deceased Zalim Singh. He supported the prosecution version and stated that Bhola and Balua committed the murder of his brother Zalim Singh with firearm weapon. Other appellants were also with them. He identified the appellants. He saw the incident in the light of torch and the lantern. He also supported the motive as alleged by the prosecution.
54. PW-3 Vinod Kumar, is the son of deceased Kunwar Singh. He stated that on the intervening night of 24/25.5.2004, he along with Om Prakash and Singhveer was at his tube-well. At around 2:00 am, appellants, armed with firearm weapons, came to his field. They hurled abuses to his father. Appellant Ganga exhorted the other appellants. Accused Rakesh, Jagan and Balua fired upon his father. His father died as a result of firearm injuries. Lantern was hanging outside the Kothari. He also supported the motive as alleged by the prosecution. This witness has also supported the recovery of firearm weapons made out of the pointing of appellants Veda @ Vedpal and Babloo @ Balua, in his presence.
55. PW-4 C/C 329 Murari Lal, has proved the execution of chik FIR of Crime No.260 of 2004 (State Vs. Keshav Giri @ Naga Baba) under Section 25 Arms Act registered by him on the basis of recovery memo. It was duly entered in the General Diary on Rapat No.25 at 16:00 hours. Further, on 10.6.2004, on the basis of recovery memo, he prepared chik no.118 relating to Crime No.265 of 2004:State vs. Jagan, Crime No.266 of 2004:State vs. Pyare, under Section 25 Arms Act. This witness has proved the related documents as Ex.Ka. 2, 3, 4 and 5.
56. PW-5 C/1241 Shishupal Singh, has stated that he prepared chik on the basis of recovery memo against appellants - Veda @ Vedpal and Babloo @ Balua under Section 25 Arms Act. Crime Nos. 253 and 254 of 2004 were registered by him. Chik is proved as Ex.Ka. 6 and GD Entry is proved as Ex.Ka. 7.
57. PW-6 Bunty S/o Ompal Singh, PW-7 Raghvendra Singh and PW-8 Maharaj Singh, are the witness of perpetrating of conspiracy by accused Vimlesh, Keshav Giri @ Naga Baba, Rakesh, Jagan and Rajkumar. These witnesses did not support the version of the prosecution and were declared hostile.
58. PW-9 HCP 178- Rameshwar Singh, stated that he prepared chik FIR relating to Crime No.252 of 2004 under Sections 147, 148, 149, 302, 120-B IPC against the appellants, which is proved as (Ex. Ka.8.). GD entry is proved as Ex.Ka.9. Further, he stated that on the same day, he prepared Chik FIR relating to Case Crime No. 261/2004: State Vs. Rakesh which is proved as Ex.Ka. 10 and GD entry is proved as Ex.Ka. 11.
59. PW-10 Dr. A. K. Bansal, conducted the postmortem of the deceased, Kunwar Singh and noted that blackening and tattooing were present. Pellets were recovered from the Lungs. Injuries were caused by the firearm weapons. They were sufficient to cause death in ordinary course of nature.
60. During the postmortem on the dead body of deceased Santosh, blackening and tattooing were found. Injuries were caused by the firearm weapons. They were sufficient to cause death in ordinary course of nature. Pellets were taken out from the body.
61. During the postmortem on the dead body of deceased Zalim Singh, blackening and tattooing were found. Injuries were caused by the firearm weapons. They were sufficient to cause death in ordinary course of nature.
62. During the postmortem on the dead body of deceased Dinesh Singh, fracture on left thigh was noted. Blackening and tattooing were also found. Injuries were caused by the firearm weapons that were sufficient to cause death in ordinary course of nature.
63. PW-11 Investigating Officer Yashveer Singh, is the Investigating Officer of this case. He recorded the statements of the informant and witnesses, prepared the site plan of the places of occurrence, (Ex.Ka.16 - Kunwar Singh), (Ex.Ka.17-Dinesh and Santosh) and (Ex. Ka.18 & 19- Zalim Singh).
64. During investigation, accused Keshav Giri @ Naga Baba, Jagan, Pyare and Ganga were taken on Police Custody Remand. On the basis of their disclosure statements, firearm weapons along with live and empty cartridges were recovered out of their pointing. Accused Veda @ Vedpal, Babloo @ Balua and Rakesh were arrested by him. Their statements were recorded. Firearm weapons along with cartridges were recovered out of their pointing. Recovery memos were prepared by him which are duly proved during trial. The recovered articles were sent for forensic examination with relevant documents.
65. He took the torches from witnesses Banty, Singhveer, Sukhveer Singh, Sheeshpal, Panji, Pappu, Omprakash and Vinod Kumar, which they were having with them at the time of incident. The witnesses told him that they witnessed the incident in the torch light. Recovery memo was prepared. The torches were returned to the witnesses with the direction that they will produce the torches before police/court as per direction.
66. After conclusion of the investigation, charge sheet (Ex.Ka-50) against accused Veda @ Vedpal, Nahariya, Ganga, Jagan, Pyare, Neetu, Vimlesh, Keshav Giri, Rakesh and Babloo was submitted. Charge sheet against Rajkumar @ Bolia @ Bolambar was given in his abscondence.
67. PW-12 SI Nahar Singh, is the witness of inquest proceedings of deceased Kunwar Singh. He proved the inquest report and the other documents executed. He is also a witness of inquest proceeding relating to the dead bodies of Dinesh and Santosh. He proved the inquest report along with other documents.
68. PW-13 SI Rajan Lal Yadav, is the Investigating Officer of Crime No.261 of 2004 (State vs. Rakesh) under Section 25 Arms Act. He prepared site plan of the place of recovery, recorded the statements of the witnesses, obtained the prosecution sanction from the District Magistrate and submitted charge-sheet against appellant Rakesh. Related documents are proved by him.
69. PW-14 SI Ram Avtar Sharma, is the Investigating Officer of Crime Nos.253 and 254 of 2004 (State vs. Veda @ Vedpal & Another) under Section 25 Arms Act. He prepared site plan of the place of recovery, recorded the statements of the witnesses, obtained the prosecution sanction from the District Magistrate and submitted charge-sheet against appellant Rakesh. Related documents are proved by him.
70. PW-15 SI Anil Kumar, is the Investigating Officer of Crime No.207 of 2004 (State vs. Keshav Giri @ Naga Baba) under Section 25 Arms Act. He prepared site plan of the place of recovery, recorded the statements of the witnesses, obtained the prosecution sanction from the District Magistrate and submitted charge-sheet against appellant Rakesh. Related documents are proved by him.
Analysis
71. It is the case of the prosecution that during the intervening night of 24/25.5.2004, between 1:00-1:30 am, the appellants, armed with firearm weapons, committed the murder of Zalim Singh at his tube-well. After this, they reached at the tube-well of Santosh and Dinesh and shot them dead. Thereafter, they reached at the field of Kunwar Singh and shot him dead.
72. According to the prosecution version and testimony of the eyewitnesses, the night, when occurrences took place, was dark. Source of light at the time of occurrence is stated by the prosecution that witnesses, namely, PW-1, PW-2 and PW-3 and other persons such as Pappu, Punji, Sukhveer, Om Prakash, Singhveer and Sheeshpal, were having torches with them. Lanterns were also lighting there. They witnessed the incident and identified the appellants in the light of torch and lantern.
73. The informant averred in his written report that the incident was seen by him along with witnesses Pappu and Punji in the torch light. They were having torches with them. Similarly, when the appellants committed the murder of Zalim Singh, the incident was seen by witnesses Sheeshpal and Sukhbeer Singh in the torch light. Further, when the appellants committed the murder of Kunwar Singh, it was witnessed by his son Vinod and witnesses Singhveer Singh and Om Prakash in the light of torch and bulb. So far as the statement of PW-3, that he saw the incident and identified the assailants in the light of bulb is concerned, his statement does not inspire confidence for two reasons, one, that it is the admitted case of prosecution that it was dark night. During the entire night, no electric supply was available. Secondly, no bulb was recovered by the Investigating Officer and no recovery memo was prepared. No bulb shown in the site plan, either.
74. PW-1 Bunty, informant, is the son of deceased Dinesh as well as the eyewitness to the incident in which, his father Dinesh and uncle Santosh were shot dead. During his deposition, he stated that a lantern was lighting at his engine (tube-well). He along with Pappu and Punji were irrigating the fields. They were having torches with them. When they noted that some persons armed with firearm weapons were approaching there, they lit their torches and identified them as appellants who shot Dinesh and Santosh dead.
75. During his cross-examination, he admitted that he had no electricity connection since he did not have electricity operated tube-well. He stated about the source of light at the place of occurrences that they were having torches with them and a lantern was lighting there. The relevant part of his cross-examination is quoted as under:
"25. xxx घटना के समय (T.W.) इंजन पर लालटैन जलने वाली बात मैनें दरोगाजी को बता दी थी। अगर उन्होनें मेेरे ब्यान में लालटैन जलने वाली बात नही लिखी है तो मै इसकी कोई वजह नही बता सकता। लालटैन आम के छोटे से पौधे पर टंगी थी। आम के पेड पर लालटैन टंगे होने की बात अगर दरोगाजी ने मेरे ब्यान में नही लिखी है तो मै इसकी कोई वजह नही बता सकता.........
"26. .........जब मुल्जिमान ने मेरे पिता व चाचा को गोलियां मारी तब हमने नाली में बैठे हुये टोर्च जला कर देखा था। टोर्च मेरे, पप्पू व पन्जी के पास थी। हमने तब टोर्च दो चार छः सेकेण्ड जलाई थी। टोर्चों को चार छः सैकेण्ड जलाने के बाद देखकर पहचान कर हम वरहा में लेट गये।............
...मुल्जिमान घटना के दो तीन मिनट बाद गंगाई तरफ जाते देखा था। एक खेत दूरी करीब 10-15 कदम तक देखा था। लेटे हुये नाली के पार से उच्चक कर देख रहे थे।...
X X X "29. मैनें लालटैन दरोगाजी को बतायी थी अपने हाथ से उन्हें लालटैन नही दी थी। दरोगाजी लालटैन लाये या नहीं मुझे पता नहीं। दरोगाजी मेरे सामने लालटैन को कब्जे में लेने की कोई लिखत पढत नही की थी। xxx दरोगाजी ने हम तीनों की मेरी पप्पू व पंजी की टार्चे अगले दिन गांव में हमसे मंगवा ली थी। आज मेरे सामने उन टार्चों में से कोई टार्चे मौजूद नहीं है। मुल्जिमान ने हमारे टार्चे लगाने पर हम पर गोलियां नही चलाई थी क्योकि हम उन्हें देख नही रहे थे। हमने जो टार्चे जलाई थी उसकी रोशनी मुल्जिमान ने देखी या नही वो ही बता सकते है।...
X X X
35. ...हम T.W./ इंजन पर शाम के करीब सवा आठ बजे पहुंचे थे। जब हम T.W./इंजन पर पहुँचे तब रात अन्धेरी थी। जिस वक्त घटना हुई तब भी अन्धेरी रात थी। ..."
76. PW-1 Banty, deposed about the source of light at the time of incident at the place of occurrence. On one hand, he admitted that the intervening night of 24/25.5.2004 was a dark night and on the other hand, he stated about source of light in which, he along Pappu and Punji identified the appellants committing the murder of deceased Santosh and Dinesh.
77. PW-2 Sheeshpal, is the real brother of deceased Zalim Singh. He stated himself to be an eyewitness to the incident in which, his real brother Zalim Singh was done to death by the appellants. He stated that he along with Sukhbeer Singh were the eyewitnesses to the incident. A lantern was lighting on the engine (tube-well). He had seen the incident in the light of lantern and torch light. During his cross-examination, PW-2 stated about identification of the appellants in the light of torch and lantern lighting at the place of occurrence. The relevant part of his deposition is quoted as under:
"13. ...जालिम सिंह के T.W. पर लालटैन जल रही थी। ये बात मैनें किसी दरोगाजी को नही बतायी मैनें बदमाशों को टोर्च लगा कर देखा व पहचाना था, ये बात मैनें किसी दरोगा को नही बतायी मुल्जिमान को जाते हुये मैनें नही पहचाना था। क्योंकि अन्धेरी रात में दूर से कैसे पहचानों। मैनें T.W. पर देखा व पहचाना था। ...
X X X
20. ...जो T.W. बिजली के हैं वे अपने खेतों में पानी लगा रहे थे या नही मुझे जानकारी नही। क्योंकि उस वक्त बिजली नही थी। बिजली कब तक नहीं आयी इस बारे में मुझे पता नही। घटना वाली रात बिजली कितने बजे गयी मुझे जानकारी नही। मुझे इस बात की जानकारी नही कि घटना वाली रात 10-11 बजे के बीच में बिजली भाग गयी हो और 38 घन्टे तक ना आयी हो। ...
X X X
23. ...मैने दरोगाजी को यह बात बतायी थी कि इंजन पर लालटैन जल रही थी। xxx मैं दरोगाजी को यह भी बताया था कि मैनें लालटैन की रोशनी में मुल्जिमानों को देखा था। अगर दरोगाजी ने मेरे ब्यान में यह बात नही लिखी तो इसकी वजह दरोगाजी बता सकते है। ..."
PW-2 also stated about existence of lantern at the time of incident at the place of occurrence.
78. PW-3 Vinod Kumar, is the son of deceased Kunwar Singh. He stated that at around 2:00 am, he heard the sound of firing from the tube-well of Bunty. After sometime, he saw that torch light was thrown towards his tube-well. A lantern was lighting outside the hut. He was having torch with him. He had seen the incident in the light of lantern and torch along with him, Singhveer and Om Prakash also witnessed the incident. He stated as under:
"21. ...घटना वाली रात को बिजली नही आयी थी। जब बिजली नही आयी थी इसलिये ट्यूबवेल नही चलाया हम बिजली आने के इन्तजार में थे इसलिये पानी नही लगा पाये।
22. दरोगाजी ने मेरे ब्यान लिया था। मैनें दरोगाजी यह बात बता दी थी कि बिजली नही आयी थी इसलिये पानी नही लगाया था इस समय मुझे ध्यान नही। जो ब्यान मैनें दरोगाजी को दिया होगा वही लिखा होगा।.....
X X X
27. ... बदमाशों की टार्च की रोशनी 20 मीटर दूरी से दिखायी दी थी। मैं ईख के पास ही खड़ा था। बदमाशों ने ट्यूबवेल की ओर टार्च की रोशनी डाली थी। xxx जब बदमाश ट्यूबवेल के दरवाजे पर पहुँचे उस समय मैं ईख में जाकर खड़ा हो गया। बदमाशों के आने तक मैं खड़ा रहा था और मैनें टोर्च रोशनी आती हुयी दिखाई देने वाली बात दरोगाजी को अगर उन्होनें पूछी होगी तो बतायी होगी। मुझे ध्यान नही है कि बदमाशों की ओर से टार्च की रोशनी दिखाई देने वाली बात और बदमाशों के ट्यूबवेल के दरवाजे तक पहुँचने तक मेरे खडे रहने वाली बात दरोगाजी को अपनी ओर से बताई या नही मुझे ध्यान नही है। लालटैन दरवाजे के बाहर टंगी थी। लालटैन दरवाजे के बराबर में टंगी थी ये बात मैनें दरोगाजी को बतायी या नही ध्यान नही। लालटैन की रोशनी 1-1/2 - दो मीटर तक दिखायी देखी दरवाजा 5- 5-1/2 फुट का है उसी के बराबर में खूंटी लगी थी उसी पर लालटैन टंगी थी। xxx ट्यूबवैल के अन्दर तीन बदमाश घुसे थे। ट्यूबवैल के अन्दर कोई लालटैन नही जल रही थी। xxx टोर्च मैनें एक आद सैकिन्ड जलाई थी वो टोर्च जलाई थी जब तीन बदमाश कोठरी के भीतर बाकी बाहर थे। इसके बाद बदमाशों जाने तक टोर्च नही जलाई।...
X X X
44. तीन बदमाश कोठरी में घुसे थे बाकी दरवाजे के सहारे खडे रहे। सब बदमाशों की पीठ मेरी ओर नही थी। तीन अन्दर घुसने वालों के अलावा बाकी बदमाश एक जगह खडे नही थे चहल कदमी कर रहे थे।
xxx xxx xxx
47. मैनें इससे पहले यह ब्यान दिया था कि टोर्च की रोशनी देखकर मैं ट्यूबवेल से हट गया था दरोगाजी को दिया होगा तो उन्होनें लिखा होगा और ब्यानों में नही लिखा है तो नही दिया होगा। इस समय मुझे याद नही है कि मैनें दरोगाजी को ये बयान दिया या नही। लालटैन टी. डब्लू. के दरवाजे के बराबर में लगी खुन्टी पर टंगी थी व मेरे पास टार्च थी यह ब्यान मैनें पहली बार अदालत में ही दिया है। ...
Source of Light: Lantern, Bulb and Torch
79. On the basis of aforesaid testimony of the alleged eyewitnesses such as Bunty, Sheeshpal and Vinod, it is the case of the prosecution that at the time of incident at the place of occurrence, lantern was lighting. Besides this, the alleged eyewitnesses of the incident, such as Bunty, Pappu, Punjji, Sukhbeer Singh, Singhbeer Singh, and Om Prakash identified the appellants in torch light since they were having torches. They were lighting the torches when appellants were approaching from one place to another place. PW-1, PW-2 and PW-3, lit the torches for a while. It has also come during their testimony that there was no electricity supply at the place of occurrence. As mentioned earlier, it is the admitted case of prosecution that the intervening night of 24/25.5.2004 was a dark night.
Lantern
80. So far as the existence of lantern at the respective places of occurrence is concerned, the statements of eyewitness cannot be relied upon. No such lantern was recovered by the Investigating Officer from the place of occurrence during investigation. The eyewitnesses did not say that they handed over the lantern to the Investigating Officer. They stated that they informed the Investigating Officer about existence of lantern lighting there.
81. PW-11, Yashweer Singh, who is Investigating Officer of this case, was confronted with the statements of PW-1, PW-2 and PW-3, about the existence of lantern at the place of occurrence. He stated that:
...मुझे गवाह बन्टी ने यह नही बताया कि मृतक दिनेश व सन्तोष के ट्यूबवेल पर घटना के समय लालटैन जल रही थी। मुझे उसने यह भी नही बताया कि लालटैन आम के पेड़ पर लटक रही थी। "
82. The eyewitnesses, Bunty, Sheeshpal and Vinod Kumar stated that they informed the Investigating Officer about the existence of lantern at the place of occurrence at the time of incident. They also told the Investigating Officer that they identified the appellants in the light of the lantern which was lighting. When the Investigating Officer confronted with the information given by the witnesses to him with regard to the existence of lantern, he specifically denied this version that none of the eyewitnesses informed him about the existence of lantern at the place of occurrence during his statement. This amounts to material contradiction between the testimony of eyewitnesses and the Investigating Officer and raises a serious doubt about the existence of lantern lighting at the time of incident.
83. On the basis of appreciation of evidence adduced by PW-1, PW-2, PW-3 as well as PW-11, the identification of the appellants at the place of occurrence at the time of incident seems to be highly doubtful in the light of lantern. The factum that a lantern was lighting at all three places, where occurrences took place in a series of three murders, is not proved by the prosecution since there are material contradictions in the testimony of eyewitnesses and the Investigating Officer about existence and lighting of lantern at the respective place of occurrences. The Investigating Officer did not recover any lantern from the place of occurrence. No recovery memo is brought by prosecution on record which can demonstrate that such lanterns were recovered by the Investigating Officer.
In 161 statement, no version of lantern was introduced and, therefore, this part is an improvement.
The Torches
84. The torches which were taken by the Investigating Officer during investigation and recovery memos thereof were prepared, which were duly exhibited by PW-11, were returned to Banty, Shishpal and Vinod with a direction that they would produce these torches at the time of evidence before the trial Court. The eyewitnesses such as PW-1, PW-2 and PW-3 failed to produce the torches before the trial Court during their deposition. Therefore, the torches could not be exhibited as material exhibits. PW-11 stated during his deposition that:
"जिन गवाहान से मैनेे टार्च देखकर फर्द बनाकर इनकी सुपुर्दगी में दी गयी थी वह टार्च मेरे सामने नही है। टार्चों के बारें में जो फर्द बनाई थी उनका मार्का किस कम्पनी की थी तथा कितने सैल की थी उसका उल्लेख किया है।
85. So far as the identification of the appellants in torch light is concerned, it also seems to be highly doubtful for two reasons; firstly, those torches were not produced at the time of evidence during trial although they were taken into possession by the Investigating Officer and the execution of recovery memos were proved. Had those torches been produced during the evidence before the trial Court, the appellants would have an opportunity to exercise their right to cross examine about those torches and secondly, it has also come in the statement of the witnesses that they lit a torch for a few second. As per their testimony, they threw the light of the torch towards the assailants for few seconds. Identifying a person in a dark night in a duration of 2 to 3 seconds in torch light cannot be believed. If it was so, there was a strong possibility that assailants could cause injury to the witnesses also.
86. The Hon'ble Apex Court in Durbal vs. State of UP, Criminal Appeal no.1398 of 2008, decided on 25.1.2022, observed about the non- production of seized and recovered articles during investigation, during the trial. The relevant paragraphs are extracted as hereunder:
"15. It is also required to note that all the eyewitnesses had stated in their evidence that lantern was burning in the verandah and Kaldhari (PW 1), Sheo Kumar (PW 2) and Sonai (PW 3) were having torch lights in their hands and only with the help of the lantern and the torch lights they could recognize and identify the assailants. The lantern and the torch lights though were alleged to have been seized, vide seizure mahazar Exts. Ka-2 and Ka-3 respectively, were not produced in the Court. The seizure memos Ext. Ka-2 and Ka-3 did not contain the crime number and other recovery particulars. In the circumstances, it becomes highly doubtful as to whether those torch lights and lantern were actually seized during the course of investigation by the Investigating Officer. The Investigating Officer (PW 8) did not explain as to why the crime number was not noted on Ext. Ka-2 and Ka-3 and as to why the material objects if at all seized, were not produced in the Court. The very fact that the lantern and torch lights were pressed into service for the purpose of identifying the accused, itself suggests that it was a pitched dark night during the mid winter and it was not possible to identify the assailants without the aid of lantern and torch lights. It is highly doubtful as to whether PWs 1, 2 and 3 had actually torch lights in their hands as stated by them, in the absence of their recovery details in the seizure memo and their not production before the Court. Moreover, Kaldhari (PW 1) refused to state as to whether the assailants were covering their faces with chadar. His evidence does not inspire any confidence."
87. In an another judgment of the Hon'ble Apex Court in Nallabothu Ramulu @ Seetharamaiah vs. State of Andhra Pradesh, 2014 (12) SCC 261, it was observed as under:
"16. The trial court rightly observed that assuming the prosecution witnesses had torches in their hands, they would not switch them on for fear of being spotted and subjected to attack. Besides, according to the prosecution, there were 50 accused. Some of them hurled bombs at the witnesses. Therefore, the attack must have resulted in smoke and dust rising in the air. In such a situation, it would not be possible for the prosecution witnesses to identify the assailants out of 50 persons, who, according to the prosecution, launched the attack. In any case, it would not be possible for the witnesses to note what role each accused played. The overt acts attributed by the witnesses to the accused must be, therefore, taken with a pinch of salt. All the accused were not known to the witnesses, because some witnesses stated that they would be able to identify them if they are shown to them. But even assuming they knew the accused and there was some light at the scene of offence, it does not appear that it was sufficient to enable the witnesses to identify the accused and note the overt act of each of them. Possibility of wrong identification cannot be ruled out. The view taken by the trial court on this aspect is a reasonably possible view. The High Court was wrong in disturbing it in an appeal against acquittal."
(emphasis supplied)
88. We have also perused the impugned judgment of the trial Court. The trial Court did not consider this aspect that the torches which were taken into possession during investigation were not produced by the witnesses during their testimony before the trial Court. The trial Court concluded that since the witnesses were well known to the appellants, therefore, they identified them at the place of occurrence at the time of incident. The trial Court completely lost sight of the evidence given by the eyewitnesses such as, PW-1, PW-2 and PW-3 about existence of lantern, allegedly lighting at the time of incident at the place of occurrence, while the Investigating Officer has categorically denied that the eyewitnesses did not inform him about existence of lantern at the place of occurrence.
89. It is the case of the prosecution that informant-Banty, Sheeshpal, Vinod along with other persons such as, Punji Singh, Pappu, Om Prakash, Sukhveer Singh and Singhveer were having torches with them at the time of incident. The existence of lantern and bulb was not averred either in the FIR or in the statements of Banti, Sheeshpal and Vinod Kumar recorded by the Investigating Officer. It appears that the source of light through lantern and bulb was narrated first time at the time of recording of testimony of these witnesses. In our view, it amounts to an improvement by the witnesses. On the perusal of the statements of PW-1, PW-2 and PW-3, it appears that existence of lantern and bulb is not substantiated by the evidence of these witnesses.
90. In view of above, we arrive at the conclusion that the prosecution has failed to establish that there was sufficient source of light for the identification of the appellants, committing murders of the deceased in the absence of any source of light at the time of occurrence. The existence of lanterns and the torches with the eyewitnesses as alleged by the prosecution, is not found to be proved on the basis of the evidence of eyewitnesses and Investigating Officer.
Motive
91. Learned counsel for appellants vehemently argued that the motive attributed to the appellants is not proved by the prosecution. The motive is not so strong for which appellants could commit four murders during a short span of two hours during a dark night.
92. In the First information Report motive is averred as appellant Veda was having illicit relation with Neetu, wife of Pramod. The said illicit relation was opposed by the informant and his family members. The appellant Veda and his family were prejudiced to him and were having enmity. They threatened to informant and his family that if they continue to oppose the relationship of Veda and Neetu, they would have to face its consequences. It is further alleged that on 24.5.2004, Vimlesh and Naga Baba (who were acquitted after trial) visited the house of appellant Veda in village Aukhand and threatened the informant and his family.
93. It emerges from the perusal of the first information report that following motive was mentioned, as the basis of committing the incident by the appellants. It reads thus:-
"हमारे गाँव के प्रमोद की घरवाली नीतू गांव के वेदा पुत्र हरफूल से अवैध सम्बन्ध है जिसका हमने विरोध किया क्योंकि इनकी वेजा हरकतो से हमलोगों के परिवार पर गलत प्रभाव पड़ता था इस वेदा व उसके परिवार वालों ने हमसे रंजिश मानने लगे। और उन्होनें हमलोगों को व हमारे परिवार वालों को देख लेने की धमकी दी कल दिनांक 24.5.04 को विमलेश व नागा बाबा हमारे गांव में वेदा के यहा आए नाग बाबा करनवास में रहता है नागा बाबा व विमलेश ने हमलोगों को व हमारे परिवार वालों को धमकी देकर चले गये तथा कहा कि तुम नीतू को वेदा के पास जाने से क्यों रोकते हो जबकि नीतू वेदा के पास जाना चाहती है इस पर हम लोगों ने विमलेश व नागा बाबा से कहा कि तुम्हारा नीतू व वेदा से क्या मतलब है तब बाबा व विमलेश ने बताया कि नीतू व वेदा एक दूसरे से बहुत प्यार करते है व बहुत चाहते है नीतू व वेदा हमारे मित्र है तथा हम उनके मददगार है तथा नीतू व वेदा से हमारे अच्छे सम्बन्ध है और हम एक दूसरे के यहां आते जाते है नागा व विमलेश ने कहा कि हम लोग, नीतू व वेदा के बीच मत पढ़ो नहीं तुम्हें इसका परिणाम भोगना पड़ेगा यह धमकी देकर चले गये।"
94. In order to prove the aforesaid motive, PW-1 Banty stated during his testimony that:
"7. दिनांक 24.5.2004 को दिन में दोपहर के बाद मुल्जिम श्रीमती विमलेश व नागा बाबा हमारे गांव में वेदा के यहां आये थे। उसके बाद हमारे यहां आये थे। वहाँ पर मेरे पिता व चाचा दिनेश व सन्तोष जालिम एंव कुंवर सिंह तथा अन्य व्यक्ति गांव वहां मौजूद थे उस समय वहाँ मुल्जिमा नीतू भी मौजूद थी। तब मेरे पिता व चाचा दिनेश व सन्तोष ने नीतू से कहा कि " तूने हमारी नाक काट दी " तभी वहाँ पर मौजूद मुल्जिमा विमलेश व नागा बाबा ने कहा कि " वेदा व नीतू एक दूसरे को प्यार करते है अगर तुम नीतू को वेदा के पास जाने से रोकोगे तो तुम्हें इसका गम्भीर परिणाम भुगतना होगा।
X X X ""17. वेदा व नीतू के अवैध सम्बन्ध घटना से करीब दो माह पहले से चल रहे थे। हमें दो महीने से ही ज्ञान था। नीतू के साथ-2 हमने उसके पति प्रमोद से भी कहा था। कि तेरी घर वाली नीतू के वेदा से गलत सम्बन्ध है। मुझे ये जानकारी नही है कि प्रमोद भी नीतू से विरोध कर रहा हो मैनें प्रमोद से ये नही पूछा कि उसने अपनी पत्नि को वेदा के पास जाने से रोका था या नही। "
x x x x x x x x x
36. जिस दिन नागा बाबा व विमलेश ने धमकी दी थी उस दिन मैं गावं में ही था। उस वक्त जब धमकी दी थी तब मैं स्वंय भी मौजूद था तथा परिवार वालों ने भी बताया था। तब मैं मेरे पापा, दिनेश चाचा सन्तोष, ठा० कुवर सिंह जालिम सिंह, और गांव के अन्य लोग भी मौजूद थे। धमकी दोपहर बाद की थी समय याद नही है। ये धमकी नागा बाबा व विमलेश दोनों ने ही दी थी। दोनों ने एक साथ ही धमकी दी थी। धमकी दोनो ने दी थी। धमकी देकर वे गांव से बाहर चले गये थे। धमकी वाले दिन मैं घर पर 12 बजे के करीब आया था। विमलेश हमारे घर पर दो दिन आयी थी पहली बार अकेली फिर नागा बाबा के साथ आयी थी। धमकी दोनों दिन दी थी। "
"37. इस धमकी की बाबत हमने पुलिस में कोई रिपोर्ट नही लिखाई।"
"38. शुरू में 23 तारीख को धमकी देने में नीतू व विमलेश थी। अवैध सम्बन्ध वेदा व नीतू के अवैध सम्बन्ध की बात मुझे मेरे घर वालों ने बतायी थी व गांव में भी हल्ला हो रहा था।"
PW-2 during his examination in chief stated that:
"6. घटना के एक दिन पहले नीतू और नागा बाबा आये थे। और धमकी दी थी कि तुम्हे देख लेंगे। नीतू ने कहा मेरा बहनोई राकेश डकैत है। फिर कहा कि विमलेश ने कहा कि बाहापुर का राकेश मेरा बहनोई राकेश डकैत है। तुम ठाकुरों को कटवा दूंगी। ये बात गांव में आकर कही थी ।
7. नीतू व वेदा के गलत सम्बन्ध थे।"
This witness during his cross examination stated that:-
"18. मैनें नीतू व वेदा के गलत सम्बन्धों के बारे में कुछ देखा नहीं था। वेदा, प्रमोद व नीतू को एक साथ कही गये इस बारे में मुझे कुछ पता नहीं है। मैनें वेदा व नीतू के सम्बन्धों के बारे में किसी से शिकायत नहीं की।"
PW 3-Vinod Kumar stated about the motive arose to appellants that:-
"5. 24 तारीख 24.5.04 को घटना से पहले विमलेश व नागा बाबा हमारे गांव में आये थे। और इन्होनें धमकी दी थी कि वेदा और नीतू सम्बन्धों में जो बाधा डालेगा तो बुरा परिणाम होगा।"
He further stated that:-
"15. ... मुझे बन्टी ने यह बात बताई थी कि दिनांक 24.5.04 को विमलेश व नागा बाबा गांव में आये थे और उन्होनें यह धमकी दी थी कि जो नीतू व वेदा के सम्बन्धों बाधा डालेगा उसका बुरा परिणाम होगा।
16. यह बात मैनें जालिम सिंह के घर के आगे चौराहे पर उस समय सुनी जब मै अपने टी.डब्लू. से सुबह गांव आया था। वहां उस समय चौराहे पर बन्टी, सुखवीर कन्चन सिंह और कई आदमी थे।"
95. The aforesaid witnesses, about motive to commit the crime by the appellants, stated that appellant Veda was having illicit relations with Neetu. On the eve of fateful night, Keshav Giri @ Naga Baba along with Vimlesh (both acquitted after trial) had visited village Aukhand and extended threat to informant and his family members that if the relationship of appellant Veda and Neetu would be opposed by them, they would face dire consequences. It is pertinent to note here that the case of prosecution is that the threat was extended by Keshav Giri @ Naga Baba and Vimlesh when they visited village Aukhand on the eve of the incident. It would have been Pramod, husband of Neetu, who got the reason to raise objections against illicit relation of his wife Neetu with appellant Veda. He never objected it even after the informant Banty informed him about illicit relations of his wife Neetu.
96. PW-1 has also stated that prior to this incident, appellant Veda and his family members had threatened him and his family members including appellants Jagan, Pyare, Ganga and Veda and others. If so happened, a report must have been lodged by him, but it seems that he did not take any action.
97. According to the informant, the threat was given by Keshav Giri @ Naga Baba and Vimlesh and not by any of the appellants on the eve of incident. It appears that PW-1 Banty and PW-3 Vinod Kumar deposed about the motive on the basis of hearsay evidence of this fact that appellant Veda and Neetu were having illicit relation. Informant Banty has also stated that his family members told him about illicit relations between Veda and Neetu, while PW-3 Vinod Kumar stated that Banty told him that on 24.5.2004 Vimlesh and Naga Baba visited their village and extended threat to them. The allegation of threatening on the eve of the occurrence was attributed to Keshav Giri @ Naga Baba and Vimlesh while they have been acquitted by the trial Court.
98. On perusal of the statement of PW-2 Sheeshpal about the motive to commit incident, it transpires that he did not state anything specific about any person who was threatened by Vimlesh and Naga Baba on the eve of incident.
99. We are conscious that in this case four persons are brutally murdered. On the basis of the testimony of PW-1, PW-2 and PW-3, the motive so asserted by the prosecution does not seem to be such a strong motive which can lead appellants to commit murder of four persons. Therefore, we are of the opinion that the prosecution has completely failed to establish and to prove the motive to commit the murder of four persons by the appellants. Merely opposing the illicit relations between appellant Veda and Neetu does not seem to be a cogent reason for the appellants to commit such a heinous crime.
Informant's Conduct
100. Another aspect, which we would like to consider, is about the conduct of the informant. He deposed that after his father Dinesh and uncle Santosh were shot dead, he continued to sit at the same place, hiding himself where he was sitting at the time of occurrence, till morning. He directly proceeded to the tube-well of Zalim Singh, where he came to know about his murder. The real brother of Zamil Singh, Sheeshpal (PW-2) and other persons were taking the dead body of Kunwar Singh to their village. Banty did not inform them about the murder of Dinesh and Santosh. The informant did not go to the place where the dead bodies of his father and uncle Santosh were lying, rather he opted to return to his village without attending them. This conduct of informant appears to be unnatural.
101. Learned counsel for the appellants vehemently argued that the informant and the other witnesses stated, during their deposition, that they identified appellant Babloo @ Balua, who was involved in the incident. The informant did not mention appellant Babloo @ Balua as a person involved in the incident when he lodged the FIR of this case. It appears that the name of appellant Babloo @ Balua was disclosed first time at the time of his deposition. Therefore, the presence and identification of appellant Babloo @ Balua is also doubtful.
102. Appellant Balua @ Babloo was not named in the FIR. Informant Banty stated during his deposition that:
"(11) मैं बलुआ उर्फ बबलू को घटना से पहले से ही नाम से अच्छी तरह से जानता था। ये बलुआ उर्फ बबलू हमारे गाँव के वेदा उर्फ वेद प्रकाश मुल्जिम के यहाँ आता-जाता था। इसलिए अच्छी तरह से पहचानता था। तथा ये जागन के यहाँ भी आता-जाता था। मैंने अपने पिता व चाचा के कत्ल के समय मुल्जिमानों में मुल्जिम बलुआ उर्फ बबलू को देखा व अच्छी तरह पहचाना था। मुझे जालिम सिंह व कुंवर सिंह के कत्ल के गवाहान ने यह नहीं बताया था कि उनके कत्ल में बलुआ उर्फ बबलू भी शामिल था। रिपोर्ट लिखते समय मैं परेशान था मुझे बलुआ उर्फ बबलू का नाम ध्यान नहीं आ रहा था क्योंकि मेरे घर में दो-दो मौत हो गयी थी। इस कारण रिपोर्ट में बलुआ उर्फ बबलू का नाम नहीं लिखा सका था। घटना से पूर्व मैं यह जानता था बलुआ उर्फ बबलू ग्राम भावापुर का रहने वाला है और जाति से गड़रिया है।
PW-2 Sheeshpal, stated that:
"मैंने बंटी को तभी यह बता दिया था कि मैंने बबलू को जालिम सिंह के कत्ल के समय पहचान लिया था।....मैंने बंटी को यह बात सुबह पाँच बजे बतायी थी। ...मैंने बबलू को जालिम सिंह के कत्ल के समय पहचान लेने की बात बंटी के अलावा गाँव के किसी अन्य को नहीं बतायी... मेरे द्वारा बंटी सिंह को जालिम सिंह के कत्ल करते हुए बबलू को पहचानने वाली बात बताने के बाद बंटी ने रिपोर्ट कर दी थी।"
103. On the basis of the aforesaid evidence, it is apparent that informant Banty was knowing appellant Babloo @ Balua prior to the incident, but he did not array him as an accused in the FIR. He stated that he identified Babloo @ Balua at the time of incident. PW-2 also informed him that he identified Babloo @ Balua at the time of occurrence. It is also pointed out by learned counsel for the appellants that even during his statement under Section 161 Cr PC, the informant did not disclose the name of appellant Babloo @ Balua, as one of the assailants. It raises a serious suspicion about the conduct of the informant that despite he was knowing the appellant Babloo @ Balua and identified him at the time of incident, he did not lodge named FIR against him.
104. The Hon'ble Apex Court in Darshan Singh vs State of Punjab, Criminal Appeal No. 163 of 2010 has held that:-
"26. If the PWs had failed to mention in their statements u/s 161 CrPC about the involvement of an accused, their subsequent statement before court during trial regarding involvement of that particular accused cannot be relied upon. Prosecution cannot seek to prove a fact during trial through a witness which such witness had not stated to police during investigation. The evidence of that witness regarding the said improved fact is of no significance.
105. Considering the aforesaid oral evidence as well as legal pronouncements, the involvement of appellant Babloo @ Balua seems to be doubtful since no FIR was lodged against him inspite of the fact that the informant and witnesses identified him during the incident.
Recovery and Forensic Evidence
106. Sri P.C. Srivastava, learned counsel for the appellants vehemently argued that the doctor who conducted the autopsy on the bodies of the deceased has stated that pallets were taken out from the dead body of deceased Dinesh, which does not appear to have been fired by the firearm of 315 bore and appears to have been fired by a firearm of 12 bore. A recovery of country made pistol of 315 bore along with one fired cartridge and seven live cartridges are shown out of the pointing of appellant Veda. Deceased Dinesh did not sustain any injury of country made pistol of 315 bore. PW-1 Banty specifically stated that fire blow on his father was given by appellant Veda. It reflects that he did not see the occurrence as alleged. The fired cartridge found inside the barrel of the weapon allegedly recovered out of the pointing of the appellant-Veda, was sent for forensic examination. It was concluded by the Laboratory that the fired cartridges, allegedly fired through a weapon by appellant Veda, were found to be mismatched. Besides this, the public witnesses of the said recovery were not produced during the trial.
107. PW-10 Dr. A.K. Bansal, who conducted autopsy of four deceased persons, stated that the pallets were recovered from the body of deceased Kuwar Singh, Santosh and Dinesh. The prosecution has alleged that during investigation, recovery of country made pistols and cartridges out of the pointing of appellants, Jagan, Pyare, Ganga, Balua @ Babloo and Veda @ Vedpal were made, while one SBBL gun of 12 bore was recovered out of the pointing of appellant Rakesh. It is to be noted that the alleged recovery is said to have been made in the presence of the eyewitnesses. The recovery of weapon, SBBL gun of 12 bore out of the pointing of the appellant Rakesh is said to have been made before the public witnesses. Recovery of country made pistol of 12 bore and cartridges from appellants Pyare and Ganga is alleged to be made in presence of witnesses, namely, Mohar Singh and Kamal Singh. Recovery of one country made pistol of 12 bore and live cartridges with fired cartridge is also shown in the presence of public witnesses. None of the public witnesses of such recovery has been produced during the trial. It is worth to be noted that according to the forensic laboratory report the recovery of firearm and cartridges made out of the pointing of appellant Veda, is found to be mismatched. Therefore, the statement of PW-1 that appellant Veda committed the murder of Dinesh with a firearm weapon becomes fallacious.
108. During the forensic examination, empty cartridges recovered with the country made pistols out of the pointing of appellants Jagan, Balua @ Babloo and Ganga are not found to be matched. Although empty cartridges were found to be matched from the firearms recovered out of the pointing of appellants, Rakesh and Pyare, but in view of our discussion over the identification of accused and insufficiency of source of light, as made herein-before, this evidence cannot be considered to be a conclusive evidence against appellants, Rakesh and Pyare.
109. We have perused the judgment of the learned trial Court. We find that the learned trial Court has completely lost sight to the conclusion drawn by the forensic laboratory. The trial Court only referred that the FSL report was available on record as exhibit Ka-92.
110. The public witnesses who were present at the time of recovery of firearms and cartridges were not produced during the trial. Therefore, the alleged recovery of firearm weapons and cartridges out of the pointing of appellants appears to be doubtful.
111. The Hon'ble Apex Court in Subramanya vs. State of Karnataka, (2023) 11 SCC 255, observed that the disclosure statement of the accused must be recorded in the presence of public witness before making recovery. The relevant paragraph is extracted below:
"78. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
112. In Boby vs. State of Kerala, 2023 SCC Online SC 50, the Hon'ble Apex Court observed as under:
27. As early as 1946, the Privy Council had considered the provisions of Section 27 of the Evidence Act in the case of Pulukuri Kotayya v. King-Emperor. It will be relevant to refer to the following observations of the Privy Council in the said case:
"The second question, which involves the construction of s. 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms. [His Lordship read ss. 25, 26 and 27 of the Evidence Act and continued : ] Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and there upon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. On this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity, would all be admissible. If this be the effect of s.27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s. 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A.", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
[Emphasis supplied]
28. It could thus be seen that Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. The said view has been consistently followed by this Court in a catena of cases.
113. In view of the above legal proposition laid down by the Hon'ble Apex Court, it is pertinent to mention that in the present case, such disclosure statements were not recorded before whom the said recovery is said to have been made. Mohar Singh, Kamal Singh, Ravendra Singh and Vinod Kumar are the independent witnesses before whom such recovery is said to have been made. We have already observed that these witnesses were not produced before the trial Court to support the genuineness of the recovery made on the pointing out of the appellant concerned. Therefore, considering the evidence available on record, the recovery from the appellants becomes doubtful.
114. So far as the argument of Sri P.C. Srivastava, learned counsel for the appellants that the FIR of the case is ante time is concerned, it is the case of the prosecution that FIR was registered as 6.20 am on the basis of written report submitted by informant Banty. Merely, non mentioning of the names of the appellants on the inquest report does not conclusively indicate that the first information report came into existence after inquest proceedings. It is worthy to be noted that the crime number along with relevant sections are mentioned on the inquest report of the concerned deceased.
115. PW-9 HCP 178 Rameshwar Singh, stated that on the basis of the written report submitted by informant, he prepared chik No.110 against accused Veda and others, as Crime No.252 of 2004 under Sections 147, 148, 149, 302 & 120B IPC. It was duly entered in the general diary of the Police Station Debai at Rapat No.8 at 6.20 am. This witness has proved the chik FIR as well the entry made in general diary on the basis of original endorsement before the trial Court.
116. It is also worth to be noted here that during investigation, statements of PW-6, Bunty S/o Om Pal, PW-7 Raghvendra and PW-8 Maharaj were recorded by the Investigating Officer. These witnesses were said to have the witnesses of fact and they saw Vimlesh, Naga Baba, appellant Rakesh and appellant Jagan, perpetrating conspiracy of murder of the deceased persons. PW-6, PW-7 and PW-8 were produced by the prosecution. All these witnesses denied such statements to the Investigating Officer. These witnesses were declared hostile. Therefore, the evidence of perpetrating conspiracy by appellants Rakesh and Jagan is not supported by any corroborative evidence.
117. We do not find any weight in the argument advanced by learned counsel for the appellants that the FIR of this case is ante time.
Statements of Accused u/s 313 Cr PC
118. Learned counsel for the appellants vehemently argued that the learned trial Court completely ignored the documents produced by the defense after recording their statements under Section 313 Cr PC. The prosecution has utterly failed to prove the motive behind the assassination of four persons alleged committed by the appellants. It is submitted that aunt (Bua) of informant Banty was done to dowry death by her husband. A case crime number Crime No.108/03, under Sections 498-A, 304, 201 of IPC and ¾ of Dowry Prohibition Act, P.S. Debai, District Bulandshahr was registered. After investigation, charge-sheet was filed. Deceased Santosh, Dinesh and Kunwar Singh were nominated as witnesses in the charge-sheet. Deceased Zalim Singh was doing pairvi of that case. The copy of FIR and charge-sheet was filed before the trial Court in defence evidence, being Paper no.129A, paper no.129A-3. It might be possible that on account of nomination as witnesses and doing pairvi in that case, deceased were killed by some unknown persons. The learned trial Court opined that if it is assumed that the deceased were nominated as witnesses and doing pairvi in that case, why the informant lodged FIR against the appellants.
119. Learned counsel for the appellants placed reliance upon the judgment rendered by the Hon'ble Apex Court in Reena Hazarika vs. State of Assam, 2019 (13) SCC 289. The relevant paragraph is extracted herein-below:
"19. Section 313 CrPC cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2) Cr PC. The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr PC the Court is duty-bound under Section 313(4) Cr PC to consider the same. The mere use of the word "may" cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available, is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr PC, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing.
120. We have perused the judgment of the trial Court. It did not express any conclusion about the nomination of deceased Dinesh and Santosh as witnesses in charge-sheet. Leaned trial Court although considered this aspect, but concluded that there was no evidence that deceased Zalim Singh was doing pairavi in the said case.
121. We have considered the argument raised by learned counsel for the appellants. A case, being Crime No.108 of 2003 under Sections 498-A, 304, 201 of IPC and Section ¾ of Dowry Prohibition Act came to be filed at Police Station Chatari, District Bulandshahr on the basis of information given by Banty Singh, who is informant of the present case. It was the case of the prosecution that the Aunt (Bua) of the informant was done to dowry death. After investigation, a charge-sheet came to be filed against Pawan Kumar and Sunil Kumar. Deceased Santosh and Dinesh were nominated as witnesses. This fact is not denied by the prosecution that the FIR was not lodged by the informant and witnesses Santosh and Dinesh were the same persons, who were done to death in the present case.
122. We have observed that the motive attributed to the appellants to commit the murder of four persons in one go was not so strong that could lead to the appellants to commit such offence. The motive that appellant Veda @ Vedpal was having illicit relation with acquitted co-accused Neetu, which was opposed by the informant and his family and, therefore, the appellants eliminated Santosh, Dinesh, Kunwar Singh and Zalim Singh, is not found to be substantiated with cogent evidence.
123. In view of the documentary evidence brought on behalf of the appellants, it can be said that since in the dowry death case of the aunt of informant-Banty Singh, deceased Santosh and Dinesh were witnesses in the charge-sheet and deceased Zalim Singh was a pairokar on behalf of the informant, therefore, possibility of committing murder of Santosh, Dinesh and Zalim Singh by some unknown persons, to ensure that they could not depose against the accused, prevent deceased Zalim Singh from doing pairavi and to ensure acquittal in that case, cannot be ruled out.
CONCLUSION
124. In view of the foregoing discussions and appreciation of documentary as well as oral evidence available on record, we arrive at a conclusion that the prosecution has failed to establish that at the time of incident there was sufficient source of light in which the witnesses identified the appellants, committing the murder of four persons. The theory of prosecution that witnesses identified the appellants in the torch light is not proved on the basis of the appreciation of the evidence of these witnesses. The alleged torches were not produced before the trial Court at the time of evidence of the eyewitnesses by the witnesses and the Investigating Officer, either. The existence of lantern and bulb, as source of light, is not substantiated by any evidence. Therefore, the identification of the appellants by the witnesses, committing the murder of Santosh, Dinesh, Zalim Singh and Kunwar Singh is not proved beyond reasonable doubt. The recovery of firearm weapons and cartridges is also not substantiated with the forensic laboratory report and in view of the testimony of the witnesses. The independent witnesses of such recovery were not produced during trial. It would be imperative to mention here that other eyewitnesses, Punji, Pappu, Sukhveer, Om Prakash were Singhveer were not produced by the prosecution. The documentary evidence filed as defence evidence by the appellants appears to be a strong reason than the motive attributed to the appellants to commit the murder of the deceased. We find substance in the argument of the learned counsel for the appellants that the deceased were done to death by some unknown persons and not by the appellants.
125. For the reasons and discussions held above, these appeals succeed and are allowed. The impugned judgment and order dated 30.6.2007 passed by the then Additional Sessions Judge (Fast Track), Court No.20, Bulandshahr, in Sessions Trial No.625 of 2004 (State vs. Veda @ Vedpal and 8 others), arising out of Crime No.252 of 2004, under Sections 147, 148, 149, 302, 120-B IPC, Sessions Trial No.766 of 2004 (State vs. Rakesh) arising out of Crime No.261 of 2004, under Section 25 of the Arms Act, Sessions Trial No.1138 of 2004 (State vs. Veda @ Vedpal) arising out of Crime No.253 of 2004, under Section 25 Arms Act, Sessions Trial No.1139 of 2004 (State vs. Babloo @ Balua) arising out of Crime No.254 of 2004, under Section 25 Arms Act, Sessions Trial No.1141 of 2004 (State vs. Pyare) arising out of Crime No.266 of 2004, under Section 25 Arms Act and Sessions Trial No.1142 of 2004 (State vs. Ganga) arising out of Crime No.267 of 2004, under Section 25 Arms Act, Police Station Debai, District Bulandshahr, is set aside. The appellants are reported to be in prison. They shall be set at liberty, forthwith, unless they are wanted in any other case, subject to compliance of Section 437A Cr PC.
(Mayank Kumar Jain, J) (Ashwani Kumar Mishra, J)
Dated:16.10.2024
RKK/-Mohit.