Allahabad High Court
Prabhat And Others vs State Of U.P. on 9 April, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.F. Judgment reserved on 27.02.2019 Judgment delivered on 09.04.2019 Court No. - 1 Case :- CRIMINAL APPEAL No. - 792 of 1983 Appellant :- Prabhat And Others Respondent :- State Of U.P. Counsel for Appellant :- S.D.N. Singh,Ajai Kumar,Brijesh Tiwari,Dileep Kumar,Nanhey Lal Tripathi,P.K.Singh,Rajrshi Gupta Counsel for Respondent :- A.G.A. (connected with) Case :- CRIMINAL APPEAL No. - 891 of 1983 Appellant :- Uma Shanker Respondent :- State Of U.P. Counsel for Appellant :- T Rathore,Ajai Kumar,Brijesh Tiwari,S.D.N. Singh Counsel for Respondent :- Dga Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)
1. Heard Sri V.P. Srivastava, learned Senior Advocae and Sri Dilip Kumar, learned counsel for the appellants and Sri J.P. Tripathi, learned A.G.A. for the State and perused the record.
2. This Criminal Appeal No. 792 of 1983 has been preferred by accused-appellants Prabhat, Udai Singh, Ram Shankar, Munna Singh and Kashmir against the judgment and order dated 24.03.1983 passed by the then VIII Additional Sessions Judge, Kanpur in Sessions Trial No. 201 of 1982; State vs. Harnam Singh and others and Sessions Trial No. 256 of 1982; State vs. Munna Singh @ Shiv Pratap Singh, whereby all of them have been convicted and sentenced under Section 302 read with Section 149 I.P.C. with life imprisonment and accused-appellants Prabhat, Udai Singh, Ram Shankar and Munna @ Shiv Pratap Singh have been convicted and sentenced under Section 147 I.P.C. with one year rigorous imprisonment and accused-appellant Kashmir has been convicted and sentenced under Section 148 I.P.C. with rigorous imprisonment of one year, and the second Criminal Appeal No. 891 of 1983 has been preferred by co-accused-appellants Uma Shankar and Bahadur against the same judgment, whereby both of them have been convicted and sentenced under Section 302 read with 149 I.P.C. with life imprisonment and both of them have also been convicted and sentenced under Section 148 I.P.C. with one year rigorous imprisonment. All and sentences are directed to run concurrently.
3. Since both the appeals arise out of the same sessions trial, hence they are being taken up and being decided together.
4. In short the prosecution case, as disclosed in the first information report, is that between the brother of the informant Balbir Singh s/o Dalchand, r/o village Bargadiya, Purwa Mauja Kureh, Police Station-Kakwan, District-Kanpur, namely, Balwant Singh was village Pradhan and Uma Shankar Yadav s/o Munshi (A-2), r/o village Maujampur and Prabhat Singh s/o Yogendra Pal Singh (A-5), r/o Kure there was old enmity. On 08.04.1982 there was a Mela of Chhattar Mai Devi in his village, in which his brother and other persons of his village and village Maujampur had also come. In the night Nautanki was going on and in making arrangement for the same, his brother and Venkatesh Narain etc. of village Maujampur were involved. Then at about 11.00 p.m., after hearing some commotion from southeastern direction, informant and Sobaran Singh s/o Baijnath (PW-1), Ram Sewak s/o Triloki, Mane Singh s/o Darshan Singh, residents of his village and Vijay Singh s/o Balwant Singh (PW-3) and Sobaran Singh s/o Govardhan and Ram Sanehi s/o Drigpal Singh of village Maujampur also reached there and saw that Harnam Singh s/o Subedar (A-1), r/o village Maujampur was exhorting Uma Shankar s/o Munshi (A-2) and Bahadur s/o Saeed Khan (A-3) and Harnam Singh s/o Subedar, who was wielding Farsa in his hand, and Kashmir s/o Sukwasi (A-4) having Ballam in his hand, Prabhat Singh (A-5) and Udai Singh (A-6) both sons of Yogendra Pal Singh, Ram Shankar s/o Guru Dayal (A-7) r/o Kureh and Munna (A-8) r/o Baidi, P.S. Bilhore, who is brother-in-law of Prabhat Singh having Lathies in their hands were making blows upon his brother and Venkatesh Narain by respective weapons, by which his brother and Venkatesh Narain, after getting injured, fell down. Informant and his companion challenged the accused and tried to defend both the injured. The accused fled towards southern direction, while fleeing Prabhat Singh also made a fire. After the accused had fled from there, informant saw that his brother and Venkatesh Narain had died. He along with other persons of the village and witnesses had seen this occurrence and had recognized the accused in the light of moon and Gasbatti.
5. On the written report (Exhibit -Ka-1) of the informant Balbir Singh (P.W.-2), Case Crime No. 30/1982 was registered against the accused Harnam Singh s/o Subedar, r/o Maujampur, Uma Shankar s/o Munni Lal, Bahadur s/o Saeed Khan, Kashmir s/o Sukwasi, r/o Maujampur, Prabhat Singh and Udai Singh both sons of Yogendra Pal Singh, Ram Shankar s/o Guru Dayal, r/o Kureh, P.S. Kakvan, Munna s/o Bedi, P.S. Bilhore, Kanpur under Sections 147, 148, 149, 302 I.P.C. on 09.04.1982 at 2.30 a.m. at police station Kakvan, sub district Bilhore by head constable 118 Ram Niwas, who prepared Chik F.I.R. (Exhibit Ka-4) and made entry of this case in G.D. (Exhibit Ka-5). At about 3.30 a.m. by report no. 4 on 09.04.1982 the Inspector had departed for place of incident. Ram Narain Dixit,(P.W.-7) has stated in his cross-examination that special report was sent of this case at 16.05 hours by a constable but his return had not taken place the same day till 12 O'clock in the night. Sri Yogendra Singh, Sri Deshraj Singh and Sri R.K. Verma, S.O. had departed for the place of incident and return of S.O. is recorded at 12.30 hours. The first information report was sent through Pairokar and not with special report. In G.D. the place of incident is recorded as Bargadiya, Majra Kureh and it is also recorded that injuries were caused by Farsa and Ballam and not by Lathi. The entries in the G.D. were made on the basis of Tahreer, which was brought by informant and he has denied that after having made entry in the G.D., first information report was changed and reference was made therein of Bhala and Lathi and he also denied that the report was written at the instance of the Inspector. The special report is sent by Dakbahi.
6. The investigation of this case was assigned to S.I. Yogendra Singh (P.W.-8), who was posted at police station Kakvan, on 09.04.1982. He departed for the place of occurrence at 5.00 a.m. and deputed there a constable and thereafter he went to Bardaiyapur where both the dead bodies were lying on the Chabootra in front of the house and Deshraj Singh was appointed to prepare the Panchnama and he himself became busy in investigation. He had taken down the statement of Balbir Sigh (informant). He came to know there that two accused were of village Kureh and were about to flee, whereon he and the other Inspector went Kureh village and arrested there Prabhat Singh and Ram Shankar Nai and also recorded their statement and after having apprehended them they were sent to police station. Thereafter he went to place of incident where he recorded statement of Sobaran Singh, Ram Sewak and Vijay Singh and made inspection of the place of occurrence and prepared site plan, which is Exhibit Ka-6. From the place of incident, where the dead bodies were stated to be lying, plain soil as well as bloodstained soil were separately collected in containers and were sealed, the memos of which were prepared, which were Exhibit Ka-3 and Ka- 8 respectively, whereon signatures of witnesses were also obtained. Rest of the investigation was done by S.O. Ram Kumar Verma, who submitted the charge-sheet Exhibit Ka-9.
7. This witness in cross-examination has stated that informant Balbir Singh had not accompanied him to the place of incident, his statement was recorded by him after reaching Bargadiyapur and on the place of incident he had left behind home-guards, namely, Kalika and Durga Prasad, who had accompanied him from the police station itself. He had not recorded statement of these home-guards. The departure of these home-guards was made for the Mela Chhatar Mai Devi from police station. At the place of incident, at a distance of about 15-20 paces, some villagers were standing when he reached the place of occurrence, but he did not know their names. He stayed there 5-7 minutes and Deshraj had prepared Panchnama in his presence. He stayed in village Bargadiyapur for about one hour and recorded statement of witness Sobaran as well as inspected the place of incident same day at about 10.30-11 a.m., although the time was not noted in his diary. Sobaran had given eyewitness account but he had not stated in the words that Maar-peet had taken place in the field of Kalika but had stated the same had happened on the passage of Kureh, blood was spread there. Balwant on the east and the Venkatesh on the west side of passage had fallen. Maarpeet had taken place about 130 paces away from the place of Devideen in southeastern direction. This incident happened at a distance of about 50-60 paces from the place where Mela ended. The dead bodies of Balwant and Venkatesh were brought by them (informant and others) to their house after two hours of occurrence. The persons, who were present on the spot, had fled from there and due to fear they had brought the dead bodies home. Since the Mela was organized in jungle, therefore, there was apprehension that somebody could take away the dead bodies and could have beaten the informant and his companions. The persons who were participating in Mela had also run away because of murder. This witness (P.W.-8) had further stated that he had not investigated whether Venkatesh and Balwant had enmity with any other person in the village or not. Sobaran had not stated to him that rest of the accused were friendly with Prabhat. Sobaran has also not stated to him that Prabhat Singh and Munna Singh were teasing a girl in the evening of the day of occurrence and that the Pradhan had objected to that and because of that some hot exchange had taken between them. Sobaran has stated to him that Gasbatti was burning in Mela but had not disclosed their number. He had also not stated that blows were made 5-6 times by Farsa and Lathi, rather it is stated that blows were made and that Prabhat had made a fire by pistol. He has further stated that Sobaran had stated that Prabhat had exhorted and made fire and not that when they raised alarm and chased Prabhat then Prabhat made fire. Sobaran had also not stated to him that when they (informant and others) returned they saw that both the deceased were laying in dead condition, rather he had stated that when the accused had fled from there, they went and saw that both the deceased were lying dead.
8. This witness has further stated that Balbir had not stated to him that in the evening Subhash and Munna had teased a girl, whereon Pradhan and Venkatesh had slapped them because of which they became annoyed. Balbir had given statement that they (Pradhan and Venkatesh) were making arrangement for Nautanki and not that Nautanki had already started.
9. Further this witness has stated that Vijay Sing had not given him statement that when incident of teasing happened Venkatesh was with Balwant nor did he give statement that he was strolling in Mela in the southern side and also did not state that at a distance of 40-50 paces away from the place of Mela end this incident happened, he also did not state that Harnam Singh had stated that "Sala Bahut Neta Banta Hai. Jab Marne Lage Tab Ham Chilla Kar Daude." He further stated that it was also not stated by this witness that when they (informant side) proceeded 8-10 paces ahead, then Prabhat had made fire, rather it was stated that he had made fire while running. He had also not stated that Balwant and Venkatesh had told Prabhat and him that they should flee away from the Mela.
10. In the site plan the Chabootra had not been shown where the Nautanki had taken place, rather he stated that he did not remember that nor had he seen any Chabootra at the place of incident. The field of Kalika is situated towards north of the passage leading to Kureh. He had not seen any 'Nali' between the place of incident and the temple nor had he seen any bushes on the either side of the 'Nali'. He was told that in entire Mela Gasbatti were installed but no specific place was shown. The place where dead bodies were stated to be lying, lot of blood was found lying there and at same places some blood was visible. Thereafter he stated that he did not pay much attention whether blood was there or not where dead bodies were lying. He did not recollect whether children of Venkatesh were there or not, although there were many people. He did not record statement of wife of Venkatesh. He did not pay attention whether on the Chabootra, where dead bodies were kept, Gasbatti was there or not. He was not told by any witness that Gasbatti were burning in Mela. He had come to know that dead bodies were brought on tractor but he did not record the statement of owner of the tractor nor did he see the tractor. He did not find any Mali or Pujari at the temple nor he did find as to whether Nautanki had taken place nor did he try to know as to who were the people and where did they belong to, who had come to participate in Nautanki because 2-3 days after having been gone this investigation, the same was taken away from him.
11. He has further stated that Ravanagi of home-guard Durga Prasad on 08.04.1982 for Chhattar Mai Mela is recorded at report no. 15, time 17.5 hours, but no mention is made in G.D. abut Chhattar Mai Mela, only Mela is mentioned. He denied that he did not find the dead bodies on the Chabootra of Balwant. He further stated that on the Chabootra, where dead body of Balwant was lying, if he had found blood stains there, he would not have taken the same in his possession because the incident had not happened there. Ordinarily it is essential to take sample of blood where the dead body is found.
12. He has further stated that after investigation he returned to the police station on 10.04.1982. In the intervening night of 9/10th April he remained for some time in village Kureh and thereafter went to nearby villages in search of the accused. The S.O. had departed from the police station at about 10-11 a.m. for arrest of two accused. He had not recorded the acts of the witnesses, whose statements were recorded by him in G.D..
13. Further this witness has stated that constable Madan Lal has proceeded with him from the police station for the place of incident and it is wrong to say that when they reached there, they found dead body on the place of incident and it was also wrong to say that there were many people assembled near the dead body and it is also wrong that after asking for the tractor from the Chowkidar, the dead bodies were sent to Bargadiyapur. He does not know at what time the dead bodies were despatched for postmortem but has denied that report of this case was written ante-timed after the S.O. having returned and that it was also wrong to say that Harnam Singh had come to lodge the report at police station and was apprehended there.
14. From the statement of this witness, it is apparent that during investigation he had found the dead bodies of the deceased not at the scene of occurrence rather they were found kept on the Chabootra of Balwant, whereas according to the prosecution, the dead bodies had already been brought by the informant and his companion, keeping in view that during the night time it could be possible that the bodies could have been taken away or destroyed, as the same was a lonely place and moreover, it was difficult for the complainant side to stay back at the place of occurrence in the night time due to fear of being assaulted and beaten. It has also come in the statement of this witness that he had subsequently visited the place of incident where he had pointed out the bodies lying before they were taken to the Chabootra of Balwant and had collected the blood-stained soil and plain soil in separate container.
15. S.I. Deshraj Singh has stated as P.W.-9 that on 09.04.1982 he was posted at police station Kakwan. On that date he had gone with S.O. and S.I. Yogendra Singh to Bargadiyapur and had found that dead bodies of Venkatesh and Balwant were lying on Chabootra in front of door of Balbir (appears to be wrong). On the direction of S.O. he had conducted Panchayatnama of Balwant Singh (Exhibit Ka-10), Challan lash (Exhibit Ka-11), Photo Lash (Exhibit Ka-12), letter to R.I. for postmortem is Exhibit Ka-13 and letter to C.M.O. regarding receiving of cloth is Exhibit Ka-14 and for conducting the postmortem is Exhibit Ka-15. The dead body was sealed by him. The sample seal of which is Exhibit Ka-16. The Panchnama of dead body of the Venkatesh is Exhibit Ka-17, Photo Lash is Exhibit Ka-18, Challan Lash is Exhibit Ka-19, letter to R.I. Is Exhibit Ka-20, letter to C.M.O. is Exhibit Ka-21 and Exhibit Ka-22. The said dead body was also sealed and its sample seal is Exhibit Ka-23. Both the dead bodies were given in the custody of constable Madan Lal at about 10-10.30 a.m. for being taken for postmortem along with necessary documents.
16. In cross-examination this witness has stated that the time when the Panchayatnama proceedings were started, has not been mentioned in the relevant column and also the column wherein the time of closing the proceedings was to be recorded was lying blank. Although he stated that when he closed writing Panchayatnama, that time is recorded as 10-1/2 a.m. When the dead body was given in the custody, the same is recorded. There is no over-writing at 10-1/2 a.m. The date of lodging report has been recorded in Panchayat Nama as 09.04.1982. He had gone to the place of incident with I.O. first and at that time constable Madan Lal was also with him and stayed there for about one hour at the place of incident. He has denied that the dead bodies were found by him at the place of incident.
17. It is evident from the statement of this witness that he has prepared the Panchayatnama of both the deceased, which he has proved. We do not find any infirmity in his statement with regard to proving the aforesaid documents simply because there was some discrepancy pointed out from the side of defence that the time was not recorded in the relevant column when the proceedings were started. It could at the most be treated to be an irregularity on the part of Investigating Officer which may not be taken to be fatal for prosecution case single handedly.
18. After submission of charge-sheet by the investigating officer having collected entire evidence, the cognizance was taken of this case and charge was framed by the trial court on 07.12.1982 against accused Prabhat, Udai Singh, Ram Shankar, Munna Singh @ Shiv Pratap under Sections 147 and 302 I.P.C. read with Section 149 I.P.C. on 07.12.1982 and against accused Harnam Singh, Uma Shankar, Bahadur and Kashmir under Sections 148, 302 read with Section 149 I.P.C., to which they pleaded not guilty and claimed to be tried.
19. It would be pertinent to mention here that accused-appellant Munna Singh @ Shiv Pratap and accused-appellant Kashmir both had died and because of that their appeals have been abated by this Court on 15.12.2011. Accused Harnam Singh appears to have died prior to filing the appeal, hence his appeal is not in existence. Therefore, we are left with the appeals of surviving accused before us, namely, Uma Shankar, Prabhat Singh, Bahadur, Udai Singh and Ram Shankar out of total 8 accused, who were convicted by the trial court.
20. In order to prove the prosecution case from it side, Sobaran Singh-nephew of the deceased Balwant as P.W.-1(eye witness), Balbir Singh-brother of the other deceased Venkatesh (informant of the case as well as eye witness) as P.W.-2, Vijay Singh- nephew of Venkatesh and eyewitness as P.W.-3, Dr. R. Prakash, who conducted postmortem of the deceased Balwant Singh as P.W.- 4, Dr. Satish Chandra, who conducted postmortem of other deceased Venkatesh as P.W.- 5, Contable Madan Lal, who had brought the dead bodies for postmortem, as P.W.-6, Head Moharrir Ram Nivas Dixit, who prepared chick report and G.D., as P.W.-7, S.I. Yogendra Singh, who conducted part investigation as P.W.-8 and S.I. Deshraj Singh, who conducted remaining investigation as P.W.-9, have been examined.
21. Thereafter prosecution evidence was closed and the statements of the accused were recorded under Section 313 Cr.P.C. All the accused have denied the truthfulness of the evidence which has come on record against them and have stated to have been falsely implicated due to enmity.
22. Accused Bahadur has specifically stated that all the witnesses are of one family and that his land and house have been got forcibly written by Kunwarpal Baladeen. Accused Uma Shankar has stated nothing additional. Accused Ram Shankar has stated nothing in addition. Accused Prabhat Singh has stated that there was friendship with Rama Singh and Dalchand of his village. Rama Singh has got him arrested in a case under Section 25 of Arms Act, in which he was a witness but he (accused) had been acquitted. Rama Shankar is a man of police and that he only had got his implicated. Accused Man Singh has additionally stated that he is student of class 12 and studying in Bilhor, lives there and on the date of incident he was not present and has been falsely implicated.
23. From the side of defence one witness, namely, Chhammi Lal s/o Raja Ram, aged about 28 years, r/o Nauda, Naugaon, police station Kakwan has been examined, who has stated that about 11 months back at about 9.00 p.m. he was going from Bilhor to his house with Jagdish by cycle and when he reached at Lodhwanpurwa, one man shouted at him and thereafter he stated that the accused Harnam Singh, who is present in court, had told him that he was beaten by miscreants in which he had received injury. Therefore, he should be reached at police station Kakwan and thereafter he arrested him in boarding one bus. In cross-examination this witness has stated that in his presence none had beaten Harnam Singh nor he had seen any injury caused to him nor he had accompanied him to police station. Nobody's name was disclosed by him except that his cycle had been looted. The place where Harnam met him, from there village Bargadiyapur was located about 5 kilometer away. He does not know whether in the night of 8/9.4.1982 Harnam had committed murder of Venkatesh Narain and Balwant and had fled from there.
24. From the above statement of this witness it is apparent that the said accused Harnam had not been seen by him and what-ever is stated by him in his statement before the Court in the examination-in-chief would fall in the category of hearsay evidence and hence not believable. Therefore, on the testimony of this witness, it cannot be held that any injury was caused to the said accused Harnam Singh.
25. On the basis of the entire above evidence, the learned trial court has come to the conclusion that the accused were guilty of having committed above mentioned offences and hence they have been convicted and awarded the punishment cited above.
26. Now we have to see in light of the arguments made by the learned counsel for the appellants and the learned Additional Government Advocate as to whether the trial court has rightly appreciated the evidence on record and has rightly held the accused appellants guilty or does the impugned judgment require interference by us.
27. In support of the prosecution, as mentioned in the first information report, the eyewitness Sobaran Singh has stated in examination-in-chief as P.W.-1 that accused Kashmir Singh and Uma Shankar belong to Maujampur, Harnam and Bahadur also belong to the same place while accused Prabhat Singh, Udai Singh and Ram Shankar belong to Kureh and accused Munna Singh @ Shiv Pratap belongs to village Bairi. His village is about 1 mile away from village Bargadiyapur, while from village Bairi his village would be about 5-6 miles away. Munna Singh and Prabhat Singh are brother-in-laws of each other. Prabhat Singh and Udai Singh are real brother and rest of the accused are friends of Prabhat Singh. Further this witness has stated that Balwant Singh (deceased) was Pradhan of village Bargadiyapur. The Pukka village of Bargadiyapur is Kureh. Accused Uma Shankar and Ram Babu had common tractor regarding which a dispute had taken place between them and intervening therein Balwant and Venkatesh Narain (both deceased) had given the said tractor to Ram Babu. Since thereafter Uma Shankar had been harbouring enmity. Accused Uma Shankar and accused Prabhat Singh had illegal possession over a barren land, Patta of which was executed by Balwant Singh in favour of Harijans and because of that the said accused had also started having enmity with the deceased. On the date of incident at about 5.00 p.m. in Mela accused Prabhat Singh and Munna Singh had teased the girl, which was objected to by the Balwant (deceased) and heated arguments had taken place between them. The occurrence happened about 9-10 months ago about 11.00 p.m. when in the Mela of Chhatarmai Nautanki was going on, which held at each year on Purnamasi in village Kureh. There was moon light as well as Gas light in the Mela, which(Gas light) was burning at various places, about 50 lights may have been there. The light would have been extending to 100 to 150 yards. The arrangement of Nautanki was being looked after by Balwant and Venkatesh, together with them P.W.-1 and other persons were also there. After hearing some commotion towards southern side of Mela, Shiv Baran, Vijay (P.W.-3), Ram Sewak, Mohar Singh, Balbir Singh (P.W.-2) etc. reached there and from a distance of about 15 paces they saw that Bahadur, Harnam Singh, Uma Shankar having Farsa, Kashmir having Ballam, Prabhat, Udai Singh, Ram Shankar and Munna having Lathies in their hand (all accused present in the court at the time of deposition of this witness whom he recognized). Harnam Singh exhorted other accused "Mar Sale Ko Bahut Netagiri Dikhata Hai" and upon this all the accused had surrounded Venkatesh and Balwant with the weapons they were having in their hands and about 5-6 blows were made. When P.W.-1 and his companions ran towards accused, pursuant to which the accused fled from there and while they were being chased, Prabhat Singh had made fire and thereafter P.W.-1 and his companions returned. Balwant and Venkatesh were killed by all these accused present in the court. The said occurrence took place in the field of Kalka, which was on the passage leading to Kureh, where blood was lying. Balwant was towards east and Venkatesh was towards west of the passage. The place of Deviji was about 130 paces towards east-south from the place where the occurrence took place. Further he stated that the said place of occurrence was situated at a distance of 50-60 paces in east-south direction from the place where Mela ends. The dead bodies of Balwant and Venkatesh were taken by them to their home after two hours and the people who had come to see Mela had also fled. They had picked up dead bodies because of fear. Mela was held in Jungle and they had apprehension that the said dead bodies could have been lifted by others and P.W.-1 and others could have also been killed. The people, who had come to Mela, had fled only because of murder having taken place.
28. In cross-examination this witness has stated that he had not gone to police station. Balbir Singh (P.W.-2), Inspector Singh, Prakash and Suresh had gone to the police station. Inspector belongs to Newda Kheda, the distance of which is about 1/2 mile from his village. The distance is about 1-1/2- 2 miles or not from his village cannot be said by him. From the police station they had come home at about 5.00 a.m. Balbir Singh after returning Bargadiya came to house and with him 3 Inspectors and 5-6 constables had also come. He had talked to Inspector at about 10-11 a.m. and his statement was recorded by the Inspector and at that time Ram Sewak and Vijay were also present there, whose statements were also taken by the Inspector. Balbir Singh had taken away dead bodies to Kanpur. The I.O. had completed his writing work in respect of dead bodies and closed the proceedings by 9-9.30 a.m. and thereafter after 9-10 a.m. the dead bodies were sent for postmortem by tractor. He had no occasion to talk to the police subsequently. However, he stated that he was inquired as to whether Balwant and Venkatesh had any enmity with someone and also had inquired abut partybandi.
29. This witness has further stated that about 1 or 1-1/2 hours, after the occurrence, they had gone for taking tractor and till then the dead bodies continued to lie there. The dead bodies were taken to the village Bargadiyapur and the tractor had reached the door of Balwant at about 1.00 p.m. The whole night he continued to be with the dead bodies. The entire village had collected there and the witnesses Ram Sewak, Mohar Singh, Vijay, Shivbaran, Ram Sanehi, Balbir (brother of deceased) all remained there with the dead bodies on Chabootra.
30. He does not know as to who was owner of Nautanki. Nautanki had started, in which dance and singing was going on. Dance was being done by unisex (Randi) but he could not tell the name of that Randi. In the said Nautanki there was about 8-10 persons, who were doing "Tamasha". Nagada, Harmonium and Dholak were being used as instrument. This Nautanki was taking place on Chabootra of Devi, which was 8-10 hands in length and 6-7 hands in width. From the place of Devi this Nautanki had taken place at a distance of 20-22 paces. There would have been 300-400 persons, to the west of the Chabootra there where a tent was installed, in which the participants used to dress up. The said Mela was being attended by all castes. The place where the murder took place, near that place, on the right side, there is a road leading to Kureh village and to the south-west corner of the same there was a Mahuwa tree and in the north there was a Jamun tree. The murder took place in the field of Kalika on the passage. The place where Nautanki was happening, was not shown to him by the Inspector but he might have been seen it on his own. It is wrong to say that because of the shops there was no passage going towards the south. At the time of murder people of Yadav community had reached there, who are residents of Bargadiya and Maujampur. Further this witness admitted that he is collateral nephew of deceased Balwant Singh and not real nephew.
31. Further this witness has stated that Prabhat Singh had forcibly taken possession of land number 1063 situated in Kureh, which was forcibly occupied one year prior to the present murder. There was about 1-1/2 Bigha land of Gaon Samaj. No proceedings of issuing Patta or giving possession was initiated in front of him. He has denied that Balwant had embezzled any amount of Gram Samaj and he himself had taken possession of said land, regarding which the villagers had given an application against him. He also had denied that Zila Panchayat Adhikari had conducted any enquiry in this regard. He did not have knowledge that three months prior to the incident Harnam Singh accused was beaten by Rambabu and Chhote Yadav, regarding which report was lodged. He has also shown ignorance that Raja Singh had falsely implicated accused Prabhat in a case under section 25 of the Arms Act and has also shown ignorance whether in that proceedings Prabhat had been acquitted or not. He has further stated that in 1977 or near about that year, seven persons were killed by the police near Kharpatpur Nahar Ki Kothi. He further stated that when seven persons were killed, the Gherao was made, in which he had also gone with police. Balwant deceased was also amongst those who had led Gherao but not Venkatesh. The investigation was done by the C.I.D. and my gun was got deposited during investigation. He denied the allegation that the persons, who were killed, the family members of those persons were harbouring enmity towards Balwant and that they had given any threat.
32. This witness has further stated that the Prabhat is cousin brother-in-law of Munna. He had stated to the I.O. that Prabhat and Munna had teased the girl in the evening on the date of occurrence in which the Pradhan Balwant had restrained them, relating to which there was heated exchange between them but it was not written by the I.O., but he could not tell its reason.
33. He had stated to the I.O. that on the date of occurrence it was Purnamasi and that he had seen the occurrence from 15 paces away, that when the accused had surrounded the deceased, they had stated "Bahut Neta Giri Dikhata Hai". He had also stated to the I.O. that all the accused had made 5-6 blows by Farsa and Lathi upon the deceased and that when he raised alarm and chased the accused, Prabhat had made fire and after having returned he found that both the deceased had died and that this occurrence had taken place on the passage which led to Kureh. Blood was also found lying there. He had also stated to the I.O. that Venkatesh, on the left side of passage and Balwant on the right side of the passage, had fallen and that occurrence had taken place at a distance of about 130 paces from the Devi Temple and that the place of occurrence would have been 50-60 paces away from the place where Mela ended. He had also stated to I.O. that the people who had come to see Mela, fled from there and that they had brought dead bodies because they had fear that the dead bodies could have been taken away and also to ensure that they were not beaten by staying alone there. If all these facts were not recorded by I.O. in his statement he can not tell its reasons.
34. This witness has further stated that he was busy in settling down the crowed in Mela, right then he heard commotion from southeastern side of the Mela. He did not tell the persons attending the Nautanki that an incident of loot was happening nor did he raise any alarm. He had not come with any gun in the Mela. However, some persons had come there with Lathi Danda. This witness did not have any Lathi Danda or gun with him nor he did not consider it wise to take along with him a Lathi when he came to the place of incident; only he and witnesses had reached the place of incident while rest of the persons were watching Nautanki. He was just 15 paces away from the place where the quarrel (Jhanjhat) was starting and the accused were standing surrounding the victim/deceased. Prior to that he had not seen them. When the deceased were being beaten, he had challenged the assailants. Balwant and Venkatesh had fallen by side of their back, but none had assaulted them when they had fallen. He had not seen pistol in the hands of Prabhat at that time although he had chased him 4-6 paces. Where the deceased had fallen, from that place, at a distance of 6-7 paces, Prabhat had made fire while P.W.-1 and his other companions were about 3-4 paces behind him. There was no blank cartridge found there. After the murder having taken place, he had not gone to the house of the accused persons.
35. Further this witness had stated that Uma Shankar was doing cultivation with Ramsanehi and Rambabu by the same tractor, which used to be with all the three. He does not know as to whether 3-4 months prior to the occurrence a decision was taken in respect of the tractor by Uma Shankar and Ramsanehi and it was being rumored that after the decision the said tractor had been given to Rambabu but thereafter no dispute arose amongst Ramsanehi, Uma Shankar and Rambabu. He could not say as to who paid the installment of tractor.
36. Venkatesh and Shiv Singh were real brothers and they were born of the same mother while Balwant was born of the other mother. He does not know as to how much land gone in whose share. Venkatesh had no uncle. He also does not know whether there was any dispute between Venkatesh and Balwant and that there was any enmity between Uma Shankar and Bahadur on the one hand and Venkatesh on the other. The expenses of Gas Batti and Nautanki held in Mela at temple is borne by contribution given by the villagers. The shopkeepers bring their own Gas Batti. At the time of occurrence there was none between him and the persons who had beaten the deceased. Home-guards had not arrived there when P.W.-1 and others chased the accused to catch hold of them, they ran away. P.W.-1 and other persons were unarmed therefore they did not try to catch hold them but they did chase them. None of the accused had made a fire upon him or Ramsanehi after taking turn. Police chowki was situated about 3-4 miles away from the place of incident but nobody informed police chowki. Venkatesh did not have any Danda. Further this witness has stated that all the accused were surrounding both the deceased, whose faces he had seen and all of them had assaulted, who assaulted to whom he could not tell. All assaulted simultaneously at once. This witness has further stated that he does not know whether on 24.11.1981 Rambabu had beaten accused Harnam regarding which a case under Section 324 IPC was going on and that he was falsely implicated due to said enmity. He had not written in report that Harnam stated that "Mar Sale Ko Bahut Netagiri Kikhata Hai", but stated that it was wrong to say that he was stating so for the first time in Court.
37. We would like to evaluate the statement of this witness in the light of the side-plan (Exhibit-Ka-6). In the said site plan by "A" is shown the place where incident took place and by "B" is shown the place from where the witness had seen the occurrence and the distance between the place of Devi and "A" is shown 130 paces while distance between "A" and "B" is shown 15 paces and the distance of "A" from the place were Mela ends is shown 60 paces. The passage which leads to village Kureh to the north of it, shows the vacant field of Kalika and thus the occurrence is also shown to have taken place by the side of the said field of Kalika on passage leading to Kureh.
38. Statement of the above witness does not appear to suffer from any material contradiction, as with respect to the occurrence having taken place, has been shown by A-1 and A-2 because it is this place where both the deceased are stated to have been beaten by all the accused with the above mentioned weapons in their hands i.e. Farsa, Ballam and Lathi and by receiving injury they fell down on either side of this passage. This witness has stated that he has seen this incident in the moonlight as well as in the gaslight, which were burning in the whole Mela. Therefore, the discrepancies with regard to the number of gaslights, in which the said occurrence was seen, would not be considered to be material.
39. The distance from the place of Deviji to the place of incident, as stated by this witness, is also matching with the site plan. The place from where this witness has seen the occurrence is also matching with the site plan, which is shown 15 paces from the place from where he had seen the occurrence. The presence of this witness on the place of occurrence is found to be believable because he had gone to see Nautanki, which was organized in the Mela of Chhatarmai. It is annual Mela and he was busy in making arrangements of Mela along with two deceased and upon hearing some commotion from the place where this incident happened, he went there and saw the occurrence. Therefore, his presence at the site of occurrence as well as testimony with regard to having seen the incident appears to be not doubtful, as despite allowing cross-examination, nothing such has been elicited which would make his testimony untrustworthy.
40. Balbir Singh (P.W.-2) has stated in his examination in chief that the accused Umashankar, who is present in Court, had a dispute with Rambabu pertaining to a tractor, as it was a common tractor between them, regarding which Balwant and Venkatesh both deceased had got the dispute resolved in favour of Rambabu, which led to the enmity of the deceased with the accused Umashankar. With regard to the dispute between the Prabhat Singh and deceased it is stated that the accused Prabhat Singh had illegally taken possession of barren land, which later on was given by the deceased Balwant, being Pradhan of the village, in favour of Harijan, which also led to enmity between Prabhat Singh and the deceased. It is further stated that on the date of murder, in the evening, Prabhat Singh and Munna Singh both the accused, who are present in the Court, were teasing a girl in the Mela, because of that they were slapped by Balwant and Venkatesh, which also led to their annoyance. This witness has further stated that about 9-10 p.m. he was in Mela and the Nautanki was about to start, in the meantime he heard some disturbing sound from southeastern side of Mela and went there and saw that Harnam, Uma Shankar, Prabhat, Munna, Ram Shankar, Bahadur, Kashmir and Udai Singh, who are present in the Court and are all accused were there. Out of them, Uma Shankar, Harnam and Bahadur were armed with Farsa, Kashmir was armed with Ballam and rest of them were armed with Lathies. Harnam was exhorting saying " Maro Salon Ko Netagiri Dikhate Hai" and then all the accused surrounded the deceased and started assaulting them with Farsa, Ballam and Lathi. He along with others rushed to the place of occurrence and challenged the accused, upon which they fled from there and while a chase was given to them, accused Prabhat made a fire upon them and thereafter they returned and saw that both the deceased had died. This occurrence was seen by Ram Sewak, Mohar Singh, Shivbaran Singh, Vijay Singh and Ramsanehi. At that time it was moonlight as well as light of Gas Batti. Further he has stated that Exhibit Ka-1 bears a signature, which is report of this incident and the said report was given at police station by him, where he stayed for 1,1/2 hours and thereafter he called for tractor of Ramsanehi and brought both the dead bodies at the Chabootra of his house.
41. The investigating officer had taken his statement in the morning at about 6.00 a.m. He had brought the dead bodies because of fear of the them being taken away and all of them being killed. This incident happened at a distance of about 40-50 paces towards south-east of the place, where Mela ends, in the field of Kalika in which there is passage and this occurrence happened right in the middle of passage. This witness in cross-examination stated that he did not find blood oozing out of the deceased but when he returned after having chased the accused he found the deceased bleeding and gave clarification that his first statement that blood was not oozing out was with respect of the time when he had seen the dead body after the same had been brought at home. His village from the place, of incident was about 1 mile away. After the murder having taken place about 1,1/2 hours thereafter he had sent for tractor to the house of Ramsanehi, Shivbaran and Vinay, who had brought the same within about 1/2 hour time and soon after dead bodies were placed in the said tractor. About 2-2,1/2 a.m. in the night they reached home with the dead bodies and placed them at Chabootra and kept sitting there. Venkatesh had two young brothers and his nephew Vinay was also in Mela but his brother was not seen in Mela. The inspector had seen the dead bodies but had not started writing work about them. When I.O. arrived at that time Shivbaran, Vinay, Ram Sewak, Mohar Singh and Ramsanehi were present and thereafter the investigating officer was sent away from there, but where, he does not know, probably had gone towards Kureh and thereafter he did not return to his door. Along with dead bodies Shivbaran, Ramsanehi and Mohar Singh had also accompanied and the dead bodies were taken to Kanpur where they reached at 11.00 p.m. and the postmortem was conducted in the afternoon next day.
42. The dead bodies were sent for post-mortem at about 10.30 A.M. and with the dead bodies Shiv Baran, Ram Sanehi, Mohar and PW2 had gone and the same were taken to Kanpur where they reached at about 11.00 A.M. and the post-mortem was conducted on the next day at about 2.30-3.00 P.M. and thereafter the cremation of the dead bodies was done and thereafter they proceeded back home where they reached early in the morning at about 5.00 A.M. When they returned, none of the police personnel was found in the village. Since the time when the dead bodies were brought home from the place of incident and till the same were sent for post-mortem, he continued to remain with them. The brother of deceased Venkatesh had reached after considerable delay i.e. he came at about one and half hours. At the place of incident, wives of Balwant and Venkatesh (both the deceased) had not come but one son of Venkatesh aged about 8-9 years was present but he had not gone to see Mela with Venkatesh. When the dead bodies were brought to his door, it was about 4.00-5.00 a.m. and then the wife of Venkatesh had come there but he had not seen his son there. The brother of Venkatesh had come on the place of incident. Lantern was burning at Chabutra all night long. Both Balwant and Venkatesh were close friends and had gone together to see Mela. Balwant had gone in the morning at about 7.00-8.00 a.m. and he (PW2) had also accompanied him. Mela starts from 6.00 A.M. Thereafter, he had come back after about half hour from there and Balwant had also come home. PW2 had gone to see Mela at 1.30 p.m. and returned at 6.00 p.m. and thereafter he again went there in the night between 9-10 p.m. Shiv Baran, Ram Sevak and Mohar Singh have not gone with him nor had they been seen in Mela prior to this incident. When he reached in the night in Mela singing was going on in Nautanki but he does not know as to which company the said Nautanki belonged but there were 8-10 men in the said company whose name, he does not know. There were around 200-300 persons and there was huge crowed all around and there were also 12-13 bullock cart, which were parked to the west of Nautanki. There were some shops on the east and west side of the Nautanki. About 8-10 hands away from Chabutra, people were sitting. Shops were installed upto the distance of 10-15 hands while Mela was organized in the width of 25-30 hands. Towards south, after shops were over, there were no bushes and clean field was visible. From the place of Nautanki, the place where incident of murder took place, was about 100 paces away and from the place where the shops ended, the place of incident would have been about 40-50 paces. There was no Nali between Nautanki and place of incident. He was there to arrange seating of the people who had come to witness Nautanki and he himself was standing there and was seeing the Nautanki then heard noise. Shiv Baran, Ram Sewak, Ram Sinehi and Mohar Singh were roaming in Mela. PW2 was at a distance of 30-35 paces from Chabutra and when he reached at Mela about one hour thereafter he heard noise. When he had reached Mela in the night, Balwant and Ventakesh were arranging for seating at about 9-10 p.m. but thereafter they were not seen. He did not enquire about them from anyone. The noise which he heard was like that people were talking in raised voice and he was unable to understand as to what was being talked. He did not raise any alarm nor did any person who had come to see Mela raised any alarm. The persons who were watching Nautanki and none of them got up after hearing noise nor did he (PW2) see any one about the noise and decided himself to go in the direction to see as to what was it all about. He did not apprehend that there could be miscreant. He did not utter anything to anyone and by himself went there and as soon as he reached there, he saw that Harnam was exhorting "Maro Salo Ko" and on this, all started beating and then he made noise and they all rushed towards the accused and pursuant to that accused also fled from there. He had raised alarm only when accused were beating. Apart from the witnesses, none from the Mela came there. PW2 was not beaten by any accused. When PW2 chased the accused, the accused were about at a distance of 6-7 paces from him and accused Prabhat had made fire from the place of incident when he was at a distance of about 4-5 paces from him. The accused Prabhat was firing towards south. The said fire did not hit anyone and thereafter when he returned to the place of incident, there was no person there except the witnesses and after sometime i.e. after about 4-6-10 minutes many people had come there but he does not know their names. Within a half an hour the whole premises where Mela was organized, became empty.
43. Further this witness has stated that he had heard the noise from the southern direction at about 11.00 p.m. and soon dashed in that direction to see what had happened. He had written in the report that the accused Prabhat was annoyed with Pradhan Balwant as Prabhat wanted to illegally occupy the ''Banjar' land which was given by Pradhana to Harijans. He had not written in report that Prabhat and Munna had teased the girl although the same was stated to Investigating Officer. He had also written in the report that he was in Mela but why the same is not found written therein, he cannot tell its reason. He had also written in report that "Gher Kar Maro" but why the same was not found written, he cannot tell its reason. He had not written in the report that when we all chased and returned, feeling apprehension, then they saw that both the deceased had died rather it was written that fire was made and both died. He has further stated that he had stated before Investigating Officer that they had chased the accused and when fire was made, he due to fear returned, if the same is not recorded, he cannot tell its reason. He did not write in the report that he stayed for about one and half hours and got the tractor brought there and thereafter both dead bodies were brought home and they were placed on Chabutra. He also had not written in the report that because of the fear the dead bodies were lifted. He also had not written in the FIR that at a distance of 40-50 paces from the place where Mela ends, there was field of Kalka and the incident had happened right in the middle of that passage. He did not state to the Investigating Officer but denied that he had given the said statement on being tutored. This witness has further stated that it is not mentioned in his report that the villagers had seen the occurrence and if it is found written he cannot tell its reason.
44. At the time when he lodged the report, witnesses were accompanying him. The report was written about one and half hours after the occurrence and about half hours would have been consumed in writing the same, no one was guiding him while writing the report. There is no fold in the written report Exhibit Ka-1. No mention is made in respect of ravangi of tractor in his report. He had come to know from the villagers about 4-5 months prior to the incident that a Panchayat was held in respect of the tractor. The accused had not covered their faces and he denied that he had not sent the accused giving effect to the occurrence. In coming to Kutchery from village it would have taken four hours. When they departed with the dead bodies, they had taken 8-10 hours in reaching Kanpur from village and there was no police station on way. Dead bodies were not taken to the police station. He denied that the dead bodies were sent to the police station in the evening. No one had told him to write a report and send the same. No witness had talked to him before writing of the report. The accused and the deceased Balwant and Venkatesh were talking and this occurrence happened behind the shop at a distance of about 40-50 paces. Ram Sinehi had a tractor, whom it belonged he does not know. He does not know that any Maar-Peet between Harnam and Ram Babu had taken place regarding which a case was going on. He denied that Ram Sanehi had told to write the name of Harnam because of which he got his name written in the written report.
45. A perusal of the statement of this witness would show that he is the first informant of this case who had lodged the first information report and is also an eye witness of the occurrence. As per his statement, it appears that he had gone on the said date when incident happened to watch Nautanki and while he was assisting in seating arrangement to be made for the persons who had come to see Nautanki, he heard some commotion, hearing which he proceeded in that direction and witnessed the occurrence in which both the deceased were being assaulted by the accused appellants as well as other co-accused who have died and after having seen them, he tried to chase them also upto some distance and thereafter when fire was made by the accused Prabhat, turned back and returned to the place where incident had taken place and found both the deceased had died. All this was seen by this witness in the moonlight as well as in Gas Batti. Report Exhibit Ka-1 has been proved and has been signed by him and that the same was given to Balveer Master (other persons by the name of this witness itself) who had gone to the police station and gave it there. It has also come in his statement that the dead bodies were transported from the place of incident to the house of the deceased Balwant in the night by tractor because it was not safe to leave the dead bodies there in lonely place as the same could be lifted away and concealed and it could be possible that they could be harmed. The description of the place of incident appears to be by and large in consonance with the site plan prepared by the Investigating Officer.
46. PW3 Sri Vijai Singh son of Balwant Singh, who is son of the deceased is also stated to be an eye witness by the prosecution of this occurrence and he has stated in examination in chief that about 9-10 months ago when he had gone to see Mela at about 11.00 p.m. in the night, he went to the place after hearing some noise where Mela ends and about 40-50 paces from that place, he saw Harnam Singh, Uma Shankar and Bahadur, present in Court, armed with Farsa; Kashmir Singh, present in Court, armed with Ballam, Udai Singh, Prabhat, Ram Shankar and Munna Singh, present in Court, armed with Lathis and Harnam Singh exhorted all of them " Maro Salo Ko Bahut Neta Banta Hai' and pursuant to this exhortation, all the accused started assaulting the Balvant and Venkatesh with those weapons. PW3, Ram Sanehi, Shiv Baran, Ram Sevak, Mohar Singh and Balbir Singh rushed there and all of them challenged the accused whereon they fled towards south and after having been chased for about 8-10 paces, the accused Prabhat Singh made fire from the country made pistol upon them, then all of them returned to the place of incident where they saw that Balwant and Venkatesh were lying dead. Entire occurrence was witnessed by him in the moonlight of Poornmasi and Gas Batti. He has further stated that he had gone to see Mela same day in afternoon at about 5.00 p.m., accused Prabhat Singh and Munna were teasing the girl which was objected by Pradhan Balwant Singh (deceased) and his companion Venkatesh (deceased). Prabhat and Munna were told by them to go away from Mela. This witness has recognized all the accused except Munna who was present in Court.
47. In cross examination, this witness has stated that Venkatesh was his uncle who though lived separate, brought him to see Mela. Balwant Singh had also come in Mela where villagers of 2 to 4 villages had reached. There was no police personnel. Mela had been seen by him within 10-15 minutes as it was small one. He did not return from Mela. In the morning of the day when murder took place, he had met Daroga Ji in Bargadhiyapur and thereafter in Mela where a constable was sent to call him. Balbir who was brother of deceased Balwant Singh, was not called there. When the girls were teased by Prabhat and Munna, it was not dark and the sunset had taken place about one and half hours after the said incident of teasing. At that time there might have been about 300-400 persons in Mela. Who were these girls, he does not know nor could he tell the names of their village nor could he describe their appearance. They were teased at a distance of about 60-70 paces south of temple. No alarm was raised by these girls and ladies. PW3 was also there towards south of the temple when this incident had happened a distance of 8-10 paces. When Balbir had written report, he was present but he did not see written in the said report about the girls being teased. He did not tell before the Investigating Officer that when this teasing incident happened, Balwant and Venkatesh were with him but cannot tell its reason why he did not tell. He denied that he did not know Munna Singh well. He has also stated that he had given statement to the Investigating Officer that he was roaming in Mela towards south and the occurrence took pace at a distance of about 40-50 paces away from the place where Mela ends and that Harnam Singh told "Sale Bahut Neta Banta hai" and also told that when they chased 8-10 paces, Prabhat made fire by country made pistol and told him that when they returned they found both the deceased dead and also told that Balwant and Venkatesh had told Prabhat and Munna to go away from Mela but why this fact has not been recorded by the Investigating Officer, he cannot tell its reason.
48. Further this witness has stated that after the incident of teasing, he went home for taking meals but was not accompanied by Venkatesh. He stayed at home for about for two and half hours and thereafter again came back in Mela at about 9-10 p.m. but had not brought any food for his uncle. By 9-10 p.m. Nautanki had started. He had shown the place to Investigating Officer where Nautanki was being done. He had heard after having come again to Mela small noise which he did not have any serious doubt and just to see as to who was being talked about, he went towards southern direction without having any lathi or raising alarm. The place where Mela ends, place of incident was visible as there was no bushes etc. and at that time when he had started from Mela, he had not seen Balwant and Venkatesh there. After having travelled some distance when the place of occurrence was left hardly 10-15 paces and he saw Balwant and Venkatesh had talked with them for about ¼ minutes. As soon as he reached there, exhortation was made and Harnam and accused persons started making assault. He did not come back to Mela and raised alarm, rather people came there. When the accused fled, about 100-200 persons had come there. He had not gone in search of the accused. Home guard had reached after the murder. He was standing in front of the passage where deceased were lying. Witnesses were also standing there in the north of the place where the dead bodies of both the deceased were lying. He remained there for about two and half hours. Report was written. Taking that report Balbir Master had gone to the police station. PW3 had gone to take tractor and not home. Ram Sanehi had gone to his door for bringing tractor.
49. Further this witness has stated that for the first time when he saw the accused Prabhat and he was having lathi. No pallet had spread on the passage nor any empty cartridge was lying there. When police came there, the police had enquired as to with whom Balvant and Venkatesh had enmity. He denied that the contents of the report were prepared by the Investigating Officer and that at the instance of Ram Swarup, Kishore Singh was made accused. He has denied the suggestion that he has not seen the occurrence and because of the village party bandi he was giving false statement. When the dead bodies were placed on the tractor, there was no other witness except the above-named. Nobody had asked him as to how the murder happened although all of them were saying as to what had happened and who had killed. About two and half hours thereafter when he had gone to bring tractor, Mela had ended. Two Hondas were brought to be placed near the dead bodies but who had brought them he does not know nor does he know as to what happened of the said Handas.
50. He has further stated that when in the morning Investigating Officer had gone there he had found the blood lying there where murder had happened. He denied that because the deceased was Yadav, hence no one was ready to give evidence except Yadav and denied that Harnam was falsely implicated.
51. From the statement of this witness it is apparent that though he is a nephew of the deceased Venkatesh, but he has supported the prosecution version to the extent that he had seen both the deceased being assaulted by the accused-persons along with other co-accused who had died. He also corroborated the place of incident to be the same which is being stated by PW1 and PW2 also. As per prosecution he is to be eye witness and his testimony also stand corroborated by the site plan prepared by the Investigating Officer. Simply because he is related to witness, would not mean that his testimony should be discarded because law is settled on this point that in case any related witness comes forward to depose, his testimony would require to be scrutinized with caution and care from honesty and applying that principle, we find that despite there being several contradictions, this stands proved that he was on the place of occurrence and has seen the incident. His presence on the place of occurrence appears to be not doubtful because he had gone there to see Mela.
52. Dr. R. Prakash has stated in examination in chief as PW4 that on 10.4.1982 he was posted at ESI Dispensary, Pandu Nagar and on that date at about 2.00 pm. he had conducted post-mortem of the deceased Balwant whose dead body was brought in sealed condition by constable Madan Lal and was identified by him, and found following ante-mortem injuries were found on his person.
1. Incised wound 5 ½ x ¾ x brain deep at half side head on right side extending up to left side 1" from mid-lines situated ½" above external occipital protuberance. Brain matter was protruding from the wound.
He has further stated that the cause of death was shock and loss of blood due to the injury and the said injury could be caused by Farsa and has proved his report as Exhibit Ka-2. He has further stated that this deceased might have died on 8.4.1982 in the night at about 11.00 p.m. and in cross examination he has stated that there could be difference in duration of 6-12 on either side.
53. Dr. Satish Chand, Medical Officer, T.B. Clinic, Pratapgarh has stated as PW-5 that on 10.4.1982 he was posted in Kanpur in ESI Dispensary, Rail Bazar, Kanapur and on that date at about 1.00 p.m. he had conducted post-mortem of Venkatesh, whose dead body was brought by constable Madan Lal in sealed condition and identified the same. The death could have taken place on 8/9.4.1982 in the night and he found following ante-mortem injury on the person of the deceased.
1. Incised wound horizontal 6cm x 3cm x bone cut on right iliac fossa just above right anterior, supernar iliac spine.
2. Lacerated wound 4cm x 3cm x skin deep blique just above right eyebrow.
3. Incised wound oblique 25 cm x 4 cm x bone cut deep brain matter coming out on right side of head extending from the neck to anterior 1/3 of head on right side.
His death was also reported due to shock and haemorrhage as a result of head injury.
54. He has proved his report as Exhibit Ka-3 and in cross examination he has stated that there could be difference in duration of 4-6 hrs. on either side. He further stated that after getting these injuries, the deceased could have remained alive only for half hour but also could have died forthwith. The bleeding would have taken place till half hour after the death. He has further stated that incised wound could have been caused by Farsa and lacerated would could have been caused by Lathi.
55. Constable C.P. No. 1455 Madan Lal of police station Kakwan, District Kanpur has stated as PW-6 in examination in chief that on 9.4.1982 he was posted at the said police station and on that date two dead bodies were brought for post-mortem from Kureh whose names he does not recollect and thereafter stated that the dead bodies of Balwant and Venkatesh were brought in sealed condition at about 10.00 a.m. along with relevant papers, sample seal and were taken to mortuary. He had started by tractor of the village only and had reached the Kanpur hospital in night at about 9.30 p.m. When he had reached Belhor, tractor had gone out of order and it took about 4-5 hours in getting it repaired. The dead bodies were present before the doctor on 10.4.1982.
56. In cross examination, this witness has stated that he had told this fact to the Investigating Officer that the tractor had gone out of order at Belhor and the same consumed 4-5 hours in getting repaired and if the same was not written by him he cannot tell its reason. The dead bodies were taken to police line and entry was made in the G.D. but no reason was endorsed in it regarding delay because the same was not considered necessary. Further he has stated that he had reached the police line at about 10.30 p.m. The time is entered on form-nash in police line but when the same was not endorsed, he cannot tell its reason. Some fault had occurred in the engine of the tractor. He cannot tell the name of the mechanical fault and whether he had got it repaired. The money in respect of repairing the tractor was paid by tractorwala but how much was given, he does not know. He had received the expenses for transportation of the dead bodies. He got an amount of Rs.140/- as expenses for transportation of both the dead bodies and at that time the same was paid by him from his own pocket and also tractorwala was paid Rs.140/- and receipt was obtained in that behalf which was deposited when he had its reimbursement. Along with dead bodies, there were two and one persons which included brother of Venkatesh and other was from Bargadiyapur. Apart from 4 to 5 men with the dead bodies, he and two other police personnel had also gone. He had not gone to the police station with the dead bodies nor had he got any injury endorsed in G.D. at P.S. Bellaur. From the police station Kakaun, he had departed for the place of incident at about 3.00 a.m. in the night. The persons who had lodged the report at the police station, stayed there. Rest of them had returned with PW6. To the place of incident where they reached in the morning at about 5.30 p.m. near temple in Kurey, in nearby field the dead bodies were lying. To the southern side of that temple is a field where blood was lying on the ground. There were about 50 men there in the vicinity in Kurey. When he reached there, Mela was not found to be very big. The village Chaukidar had got the tractor brought there but from where he does not know.
57. This witness is of the fact that he had carried the dead bodies for post-mortem, therefore, he is a formal witness and is not eye witness of the occurrence. However, one important objection raised by the learned counsel for the appellant in regard to his statement was that this witness has stated that when the report was lodged at the police station, thereafter he came to the place of incident where he found the dead bodies lying near the temple while according to PW1 and other eye witnesses and as per prosecution case, the dead bodies had been taken to the house of Balwant in the night itself due to fear of being taken away and concealed, therefore, it was argued that this creates strong discrepancy of the prosecution case and would render the testimony of eye witnesses to be doubtful in respect of their having seen the occurrence and it was further argued that it could be quite possible that incident may have taken place somewhere else in some other manner by some unknown assailant and after having found the dead bodies of the deceased the witnesses who are alleging themselves to be eye witnesses have concocted this case against the accused persons because of enmity.
58. The second argument which was also made was with respect to FIR being ante timed because there was no injury found in Panchayatnama of the time when Panchayatnama proceedings were started nor the time was mentioned therein as to when these proceedings were closed which was a necessary provision and that the FIR was lodged in this case only after the Panchayatnama had already been done of the deceased.
59. Learned A.G.A. on the other hand vehemently argued that there is no infirmity in the impugned judgment because three eye witnesses PW1 to PW3 have clearly stated in unambiguous terms that they had gone to see Chhatramai Mela which used to be held each year on Poornmasi and therefore when these witnesses had heard noise/ commotion, they proceeded in the direction to the place of incident which is shown in the site plan by letter ''A' and saw the occurrence happening from a place which is shown in the site plan by letter ''B' at a distance of about 40-50 paces that the accused-appellants were assaulting with the aforementioned weapons in their hands and when from the prosecution side along with witnesses, chased the accused, one of the accused had made fire upon them which deterred them from proceedings further towards accused and consequently they returned to the place where the incident had happened and found that both the deceased had died. It is further argued that the post-mortem report fully corroborates the prosecution version as the injuries which are found to have been sustained by the deceased were found to have been caused by Farsa, Ballam and Lathi which are sharp edged weapon by which all the accused were armed. Therefore, there was no infirmity in the trial court's judgment in holding the accused-appellants guilty and prayed that the appeal should be dismissed.
60. We have gone through the entire record and considered the arguments in depth made from either side and make following analysis of the evidence on record.
61. We find that as per prosecution case as given in the FIR that the accused-appellants Uma Shankar, Prabhat Singh, Bahadur, Udai Singh and Ram Shankar along with three other accused namely Harnam Singh, Kashmir and Munna who have died now, had assaulted the deceased Balwant Singh and Venkatesh by Farsa, Ballam and Lathi at about 11.00 p.m. in the night in village Kurey. The accused-appellant Uma Shankar was having Farsa, Prabhat was having Lathi, Bahadur was having Farsa, Udai Singh and Ram Shankar were having lathi and they assaulted both the deceased along with three other accused, who have been named above, who by now had died, had caused injuries cited above in the post-mortem which resulted in their death. All this was done at the exhortation of accused Harnam Singh in prosecution of their common object of murdering the two deceased. It is also evident from the FIR that the witnesses namely PW1 Shobran Singh son of Baij Nath, PW2 Balbir Singh, who is nephew of the deceased Balwant Singh and brother of the other deceased Venkatesh and PW3 Vijai Singh who is nephew of Venkatesh have all seen this incident from a close distance and have also stated that they had tried to chase the accused and came back only to the place of incident as one of the accused Prabhat Singh has made fire upon them. The post-mortem report has shown that the deceased Balwant Singh had one incised wound on the head of above cited specification and the other deceased Venkatesh was found to have two incised wounds, one on lower portion of abdomen and other is on head by which the bone of his head was fractured and brain material was coming out and the third injury on his person was lacerated wound on the right eyebrow and by these injuries both the deceased were found to have died by the Dr. PW4 R. Prasad and Dr. Satish Chand PW5 respectively. Both these doctors have clearly stated that these injuries were caused by Farsa, Ballam and Lathi and these were the weapons which the above-mentioned eye witnesses had seen the above-named accused-appellants to be armed with. Therefore the post-mortem injuries corroborate the eye witness account of the three above-mentioned witnesses. The place of incident which is shown in the site plan Exhibit Ka-6 by the Investigating Officer stands proved by the statements of the above-mentioned eye witnesses as there is hardly any material discrepancy noticed in their testimonies despite some incisive and searching cross examination having been made by the learned counsel for the accused-appellant. The distance shown of the place of occurrence from Chhatramai Temple as well as from the place where Mela was being held also stand corroborated in the light of statements of the above eye witnesses. It has also come on record in the testimonies of these witnesses that the entire occurrence was seen by them in the moonlight of Poornmasi as well as Gas Batti which were in large numbers because Mela was going on.
62. It has come on record that both the dead bodies were taken by the witnesses to the house of Balwant in the night itself and were placed on Chabutra. The Investigating Officer had collected blood stained soil and ordinary soil from the place of incident which is shown in the site plant. The said soil was found to contain human blood in the FSL report (paper no. 35 K/29). It is also found that some issue was raised in the mind of Court that no blood was found where the dead bodies were kept on Chabautra in frond of the house of Balwant and therefore the place of incident was alleged to have been shifted by the prosecution and it was argued that if the dead bodies were kept on Chabutra, the Investigating Officer ought to have collected the blood stained soil and ordinary soil from that place also where the dead bodies were kept, the same has not been done. In this regard, we have already come to the conclusion actual place of the incident is in village Kurey which has been shown by letters ''A1', ''A2' in the site plan, Exhibit Ka-6 to the north of which is the field of Kalka and the said incident has been shown to have occurred on the passage which is going on to the south east towards Chhatarmai Temple area and that has been corroborated by all the three eye witnesses and it is this place from where blood stained soil and ordinary soil had been collected by the police which was justified because that was the actual place of incident. The Chabutra in front of house of Balwant where the dead bodies of the deceased are stated to have taken by the complainant side due to fear of the bodies being tampered with, would not be treated to be the place of occurrence, therefore, on this count, we do not find any infirmity in the prosecution case.
63. With regard to enmity, it has come on record in the evidence of all the three eye witnesses that two accused namely Munna and Prabhat had teased the girls which was objected to by the deceased Balswant and Venkatesh and some hot exchange had also taken place between them, this incident had happened at about 5.00 p.m in the evening which has given triggering effect to the present incident which has been caused subsequently in the night at 11.00 p.m. by all the accused because that annoyance led to all the accused to form common object of killing the above-named two deceased. Although this fact has not been mentioned in the FIR nor any other details have been mentioned of enmity but it has been mentioned in the FIR that there was old enmity between the two sides.
64. Apart from this enmity, PW1 and PW2 have also pointed out the enmity between two sides stating that between accused Uma Shankar and Ram Babu there was a common tractor regarding which some quarrel had happened between them and in that dispute both the deceased Balwant and Venkatesh had mediated and had got the tractor delivered to Ram Babu and because of this reason Uma Shankar had wholly become inimical towards both the deceased. Other dispute between them is stated to be that Udai Shankar and Prabhat Singh had in their illegal possession some ''Banjar' land regarding which the deceased Balwant Singh had got Pattas executed in favour of Harijans and due to this also the said accused had started feeling inimical towards the deceased.
65. Law is settled on this point that all the details need not to be mentioned in FIR, hence if these facts have been omitted by the informant from being mentioned in the FIR that would not be treated to be any infirmity. The said animosity between two sides could be a cause due to which the accused side would have given effect to the present occurrence.
66. Most important argument from the side of the appellants which has been tried to be objected from the side of the prosecution is that the FIR is ante-timed and the incident has not happened in the manner in which it is being alleged by the prosecution and reasons have been cited to be that there was no mention of time of initiation of Panchayatnama nor time of its conclusion has been mentioned in the relevant column and that the FIR has been lodged after conclusion of Panchayatnama. We are not inclined to accept this argument because we find that the FIR shows that the occurrence took place on 8.4.1982 at about 11.00 p.m. and the report of this case has been lodged at police station Kakwan on the next day i.e. on 9.4.1982 at 2.30 a.m. in the night while the distance of the police station from the place of incident is six miles, therefore the FIR would be treated to have been lodged very promptly without having any loss of time giving opportunity to the informant side to consult anyone.
67. As regard post-mortem of the two deceased, we have perused both the post-mortem reports i.e. Exhibit Ka-10 which relates to Balwant and Exhibit Ka-17 which relates to Venkatesh respectively and find that the time and date of making report at the police station is mentioned in this post-mortem report to be 9.4.1982 at 2.30 a.m. while in the column of dead bodies being sent for post-mortem is recorded as 9.4.1982 at 10.30 hours although in the column meant for time of concluding the proceedings, time has not been filled up which definitely is a shortcoming left by the Investigating Officer but we are of the opinion that any lacuna of such kind, if the same is left by the Investigating Officer, would not be allowed to give the benefit to the accused. We do not find any other infirmity in conducting of Panchayatnama proceedings nor has it been shown by the learned counsel for the appellants. Only one discrepancy which we have noticed is with respect to PW6 having stated that he had found the dead bodies at the place of incident and not on Chabutra in front of the house of Balbir when he departed from Police Station for the place of incident because as per prosecution case the dead bodies had been taken away to the house of Balbir in the night itself, therefore, there was no occasion for PW6 to have seen the dead bodies lying on the place of incident. We are not able to comprehend as to how this statement has been made by this witness which is not in consonance with the other evidence which has come on record and this appears to be one stray piece of evidence which needs to be ignored by us taking into consideration the other strong pieces of evidence which have been collected by the prosecution as a whole in this case.
68. With respect to minor contradiction noticed in the statement of PW1 to PW3, we find that they do not relate to any material aspect of the case and they are ignorable and it is very natural that when three witnesses who are eye witnesses in the present case would depose in respect of the same occurrence, there would certainly be some discrepancy but this discrepancy does not go to the root of the matter in respect of holding that whether it was accused-appellants or not who actually gave effect to this occurrence. On the basis of entire evidence on record which has been cited by us above, we are of the firm opinion that the prosecution has been able to prove its case to the hilt that the accused-appellants had actually in association with the three other co-accused had in prosecution of their common object assaulted the two deceased with weapons which are shown above as being wielded only related in the death of the aforesaid two deceased and therefore, no infirmity is found in the impugned judgment. The judgment needs to be upheld and the aforesaid appeals deserve to be dismissed and they are accordingly dismissed.
69. Since the accused-appellants namely Prabhat, Udai Singh, Ram Shankar, Uma Shankar and Bahadur are on bail, their personal bonds and bail bonds are discharged. They shall be taken into custody to serve out the remaining sentences.
70. Let a copy of this judgment be transmitted to the trial court along with lower court's record for immediate compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Dated:09.04.2019
Pkb/AU