Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
MOTI RAM AND ANR. ETC. ETC.
DATE OF JUDGMENT02/05/1990
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1990 AIR 1709 1990 SCR (2) 939
1990 SCC (4) 389 JT 1990 (2) 358
1990 SCALE (1)152
ACT:
Constitution of India--Article 136--Appeal by special
leave by State against acquittal by High Court--Held evi-
dence ambulatory and vacillating--Suffering from insurmount-
able infirmities and probabilities-Suspicion however
strong--Not sufficient to take place of legal proof and
warrant finding of guilt against accused.
HEADNOTE:
This appeal has been preferred by the State against an
order of acquittal recorded by the High Court in respect of
the accused respondent. According to the prosecution there
were two rival factions in village Deotaha (U.P.), one led
by the accused-respondents and the other by the deceased
victims. There existed bitter enimity between the two fac-
tions, one faction was out to take the blood of another and
due to this deep-rooted animosity Accused 1, 2 and 27
hatched a conspiracy with some other associates to murder
Prabhu Nath and his men on 14.1. 1974. on which date they
were scheduled to cut the standing sugar cane in Plot Nos.
736 and 737. It is alleged by the prosecution that in pursu-
ance of this conspiracy, Accused 3 deposited his licensed
gun with the arms dealer on 12.1.1974 with a view to screen
himself from any prospective accusation and Accused 1, 2 and
27 in order to set up a plea of alibi connived with Accused
40, Travelling Ticket Examiner in the Railways, traveled
without ticket, got themselves checked and sentenced to
imprisonment by the railway magistrate on 13.1.1974 and were
incarcerated in the Gorakhpur jail till 18.1.1974. According
to the prosecution on 14.1.1974, when the deceased 13 per-
sons and others went for cutting the sugar cane crops raised
by one of the deceased. At about 1 p.m. by which time the
cut crop was being loaded in the tractor trolley brought by
the deceased persons, Accused persons with their men 80 to
90 in number attacked them with spears, lathes and pharsas
and started firing indiscriminately. The deceased persons
and others ran with a view to save their lives; some hid
themselves behind the tractor and trolley, and others ran
towards north and south directions. As a result of the
attack PWs 3 and 24 received injuries and 13 persons suc-
cumbed to their injuries instantaneously. It is alleged by
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the prosecution that during the course of the occurrence,
the deceased Prabhu
940
Nath who had a gun rued at the accused party in self-defence
and injured Accused 36, Rambali. Thereafter Accused 10 and
16 covered the dead bodies with sugar cane leaves and sprin-
kled diesel oil by taking it from the tractor and set fire
to the bodies. Thereafter the accused left the scene of
occurrence; accused 32 carried away the gun of the deceased
Prabhu Nath. P.W. 1 thereupon lodged the F.I.R. and the
police took up the investigation. After completing the
investigation, P.W. 38 laid the chargesheet in 4 batches
which gave rise to 4 different sessions trials which were
disposed of by a common judgment by the Sessions Judge. All
the accused pleaded not guilty and denied their complicity
with the offence. Accused 36, Rambali admitted his presence
and stated that the sugar-cane belonged to one Phunni and
not to Tirjugi and his men and while Phunni and his men were
cutting the crops, the deceased Prabhu Nath and other de-
ceased persons attempted to forcibly take away the crops and
during the course of such attempt, Phunni and his men at-
tacked the deceased party and that he was shot by the de-
ceased Prabhu Nath when he entreated that the sugar cane
should not be taken away. Accused 1, 2 and 27 denied the
charge of conspiracy contending that they were in prison on
the date of occurrence consequent upon their conviction by
the railway magistrate.
The learned Sessions Judge acquitted 25 accused persons
out of the total of 41 accused, viz., 4-6, 11-14, 17-22,
24-26, 28-32, 35 and 39-41 finding them not guilty of any of
the charges and convicted the remaining 16 accused for
various offences and passed sentences of the prisonment in
respect of each accused.
It may be mentioned that Accused Nos. 10 and 16 were
convicted under Section 302 read with Section 149 I.P.C. and
each of them was sentenced to death, besides their convic-
tion under Section 307 I.P.C.
All the convicted accused filed Criminal appeals in the
High Court. The reference made by the Trial Court for con-
firmation of the sentence of death imposed on A-I0 and A-16
was heard as Referred Case No. 31 of 1976. The State pre-
ferred appeal under Section 378 Cr.P.C. against the acquit-
tal of all the 24 acquitted persons. In the case of A-40,
the High Court did not grant leave as required under Section
378(3), Cr.P.C. The High Court disposed of all the appeals
inclusive of the State Appeal and the Referred Case by the
common judgment whereby all the criminal appeals preferred
by the convicted accused except the appeal preferred by
Rambali (A-36) was allowed and their sentences were set
aside. The State Appeal was dismissed and the referred case
in view of the acquittal of the accused was rejected. Hence
this
941
appeal by the State. The contention of the State is that the
acquittal of the accused is not proper and unwarranted on
the basis of the evidence led in the case.
Dismissing the appeals, this Court,
HELD: When viewed from any angle, the reasons assigned
by the High Court for disbelieving the testimony of all the
ocular witnesses are not unreasonable. The evidence is
ambulatory and vasulating besides suffering from insurmount-
able infirmities and improbabilities. The totality of the
evidence is unworthy of the credence when examined by the
standard of yardsticks of credibility. [956G]
There is a deliberate false implication of the Accused
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1, 2 and 27 to whom overtacts are attributed in Ex. Ka-1. In
fact, the High Court has gone in great depth into the facts
and circumstances of the case and rightly concluded that the
prosecution has miserably failed in establishing the guilt
of the accused except A-36. [956H: 957A]
Suspicion by itself however strong it may be is not
sufficient to take the place of legal proof and warrant a
finding of guilt of these three accused. [957C]
The entire evidence is nothing but a coloured version
with concocted story and exaggerated account mixed with
falsehood and that the prosecution has miserably failed to
make out the charges against all or any of the accused
beyond all reasonable doubt except Rambali (A-36) who him-
self admitted his presence at the scene. [957H; 958A]
No doubt it is true that this heinous offence is diabol-
ical in conception and executed in gruesome and ghastly
manner. It is shocking that 13 persons have been done away
with in a broad day light in the course of the same transac-
tion. Nonetheless the Court when satisfied that the evidence
adduced by the prosecution is not only unworthy of credence,
but also manifestly and inextricably mixed up with falsehood
cannot be carried away merely on the fact of multiplicity of
victims and on the bias of speculations and suppositions in
the confused stream of facts. The High Court has apprised
the evidence in the proper perspective and arrived at a
correct conclusion which is neither perverse nor unreasona-
ble. [958D-E]
Balaka Singh & Ors. v. State of Punjab, [1975] 4 SCC
511, referred to.
942
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 5
17-523 of 1978.
From the Judgment and Order dated 17.2.1977 of the
Allahabad High Court in Crl. A. Nos. 1143, Referred No. 31
of 1976 connected with Crl. A. Nos. 1132, 1133, 1156, 1158
of 1976 & Govt. Appeal No. 2129 of 1976.
Prithvi Raj, Dalveer Bhandari and Prashant Choudhary for
the Appellant.
R.L. Kohli, H.K. Pun and C.P. Lal (NP) for the Respondents.
Yogeshwar Prasad, Ms. Rachna Gupta and P.K. Bajaj for
the Complainant.
The Judgment of the Court was delivered by
S. RATNAVEL PANDIAN, J. It is a very tragic and pathetic
case--tragic in the sense that 13 persons have been massa-
cred in a gruesome and horrendous manner and pathetic in the
sense that the culprits burnt the victims of this barbaric
act by covering with sugarcane leaves and sprinkling with
diesel oil. At the same time, we are deeply distressed and
pained to note that three of the accused persons i.e. A-1,
A-2 and A-27, who were in prison on the date of occurrence
are falsely implicated as having taken part in the occur-
rence and the main witness, Nitya Nand (PW-1) has made a
deliberate and suborn perjury by naming these three accused
persons even in the earliest complaint (Ex. Ka-1) with an
oblique motive of obtaining conviction of these accused
also.
Even at the threshold, we would like to point out that
as the appellant has not furnished the correct list of the
array of the accused with reference to each of the four
sessions trials in a chronological manner, we with great
difficulty have culled out the names of the accused persons
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and the sessions trial case numbers from the body of the
judgment of the Trial Court and appended a list of the names
of the accused as Annexure ’A’ to this judgment so that we
may not experience any difficulty in understanding and
appreciating the prosecution case.
There were 41 accused in total who took their trial in
sessions trial case Nos. A-119, A-160, A-265/74 and A-27/75
as indicated by us
943
tO the foot-note to Annexure ’A’. The Trial Court convicted
16 accused under various provisions of the Indian Penal Code
and the Arms Act and acquitted the remaining 25 accused. In
this judgment, we are referring to the accused persons in
the order, as arrayed in Annexure ’A’.
Indisputably, 13 persons ranging between 22-25 years of
age were done away with in the occurrence. Two other per-
sons, namely, Jama (PW-3) and Balai (PW-24) escaped with
injuries. Of the deceased persons, one by name Kedar be-
longed to a village called Baluahi, whereas the rest of the
deceased persons belonged to a village called Deotaha, to
which village the injured persons belong. The deceased
persons are either the members of the family or associates
of the complainant, Nitya Nand (PW- 1) whose father was one
among the 13 deceased persons. Of the accused, some are
inter-related and the rest are associates.
The scene of occurrence lies within the limits of Nebua
Naurangia Police Station in the District of Deoria in the
state of U ’PAt a distance of 10 miles to the west of this
police station, there is a village known as Bali. A few
furlongs to south of Bali, the village Deotaha is situated.
The agricultural area of the village Bali extends up to some
distance to the west of village Deotaha. About six furlongs
to the west of village Deotaha, there are two contiguous
plots bearing Nos. 736 and 737 without any dividing line.
The occurrence in question took place in the very same
plots.
There were two rival factions in the village Deotaha--in
that the deceased persons, their relations and associates
formed one faction and the accused formed the rival faction.
There was deep rooted enmity and simmering feelings between
the two groups due to the following incidents.
1. In a keenly contested Pradhanship election of the vil-
lage-Deotaha, the first accused became successful.
2. One of the deceased Prabhu Nath filed a suit as against
A-27 (Jangi) for recovery of a sum of Rs.20,000 and the suit
was decreed on A-27’s admission. At the time of the occur-
rence, the execution proceeding in pursuance of the decree
was pending. In that suit, Kedar one of the deceased was a
witness supporting the cause of Prabhu Nath.
3. On 15.5. 1973, the first accused and some others attacked
one
944
Rajeshwar Tiwari during the course of which one Saheb be-
longing to the accused party was murdered. The members of
both the groups were arrested and sent to jail in connection
with that occurrence.
4. After their release in the above case, they started
damaging each other’s crops. This led to the initiation of a
security proceeding under Section 107 of the Code of Crimi-
nal Procedure. In that the party of the first accused was
bound over.
5. In September 1973, another security proceeding was initi-
ated under Section 107 of the Code of Criminal Procedure,
wherein A-1, A-27 and 54 others belonging to A-1’s party
were bound over.
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Due to the above consecutive incidents, these two rival
factions were nursing and nurturing their ill feelings which
was gaming momentum day by day, ultimately culminating into
the occurrence in question. We shall now give a brief note
of the prosecution case.
On account of the deep-rooted animosity between the
parties, the first two accused and Accused No. 27 hatched a
conspiracy with some of their associates to murder Prabhu
Nath and his men on 14.1.1974 when they were expected to be
engaged for cutting the standing sugar cane in plot Nos.
736,and 737. With an intention of screening himself from any
prospective accusation the third accused deposited his
licensed gun on 12.1.1974 with an arms dealer (PW-28) at
Gorakhpur. On the same day, namely, on 12.1.1974 at about
noon accused Nos. 1, 2 and 27 in order to create evidence of
their alibi entered into an agreement with one S.D. Dubey,
who was at that time working in the Railways as Travelling
Ticket Examiner (T.T.E.) and who is shown as Accused No. 40
in Annexure ’A’ to do an illegal act, to wit, to have the
deceased persons murdered by their associates on 14.1. 1974.
In pursuance of this conspiracy these three accused (1, 2
and 27) traveled without tickets by 2 Dn. Mail Train running
between Khora Bhar and Gauri Bazar which stations lie on
Gorakhpur-Bhatni line. As these three accused who traveled
as ticketless passengers did not pay the charges due from
them to the TTE (Accused No. 40), they as pre-planned, were
apprehended and produced before the Railway Magistrate on
13.1.1974 who convicted them and sentenced them to imprison-
ment till 18.1.1974. Thus these 3 accused were incarcerated
in the Gorakhpur jail till 18.1.1974.
945
The occurrence in question took place in the afternoon
of 14.1. 1974. On the day of occurrence at about 10.00 A.M.
all the 13 deceased persons accompanied by two injured
persons PWs 3 and 24 and few others went to plot Nos. 736
and 737 for cutting the sugar cane crops raised by one of
the deceased--namely Trijugi and his family members. The
deceased persons had also taken a tractor with the trolley
attached to it for removing the sugar canes. By about 1.00
P.M. the entire cane crops had been cut. Some bundles of the
sugar canes already cut had been loaded on the trolley. At
this point of time, about 80-90 persons inclusive of these
accused persons armed with lethal weapons such as fire-arms,
spears, lathes and pharsas surrounded the spot from 3 direc-
tions, namely, north, east and west and after nearing the
field started firing shots indiscriminately and also at-
tacked the prosecution party with pharsas, spears and
lathes. All those persons who were cutting the sugar cane
crops got panicky and started running helter-skelter. These
unfortunate 13 deceased persons ran towards north evidently
to save their lives by taking positions behind the trolley
and the tractor which were parked just north of the place of
occurrence. PWs 3 and 24 and some others ran towards south.
While so running PWs 3 and 24 received injuries. But the
other witnesses, namely, Nitya Nand (PW. 1), Om Prakash (PW.
6), Smt. Mala (PW. 11) and Smt. Chandgudi (PW. 12) escaped
unhurt. They all hid themselves in the fields of Hakim and
Paras which lie to the south of the place of occurrence and
witnessed the entire orgy of violence therefrom. The cul-
prits chased these 13 deceased persons like hunters chasing
the fleeing beasts and ruthlessly and indiscriminately
attacked them. All the 13 persons instantaneously succumbed
to their injuries. The dead bodies were found lying scat-
tered around the tractor and trolley providing a gory sight.
During the course of the occurrence, it is said that one of
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the deceased Prabhu Nath who had a gun fired at the accused
party in self-defence and injured Rambali (Accused No. 36).
Accused Nos. 10 and 16 covered the dead bodies with sugar
cane leaves and sprinkled diesel oil taken out from the
tractor and set fire to. After committing this heinous
crime, all the culprits left the scene of occurrence. While
leaving the scene, Accused No. 32 carried away the gun of
the deceased Prabhu Nath. The entire occurrence was over
within an hour.
After the accused persons had left the scene, PW-1 went
to the police station which is at a distance of 10 miles
from the scene and presented a written complaint (Ex. Ka. 1)
which was registered at about 2.45 P.M. The ’chik report’
(The First Information Report) is Ex. Ka. 51 the copy of
which is Ex. Ka. 52. The Station House Officer
946
(PW-43) took up investigation and proceeded to the scene
accompanied by his head constable and other constables,
after giving instruction to PW-17 to proceed to the scene by
arranging some vehicles. PW-43 reached the scene of occur-
rence at 4.00 P.M. and examined PWs 3, 24 and others and
sent the injured witnesses for medical examination. Then
PW-43 held inquest over the dead bodies and thereafter sent
the dead bodies for post-mortem examination. After despatch-
ing the dead bodies PW-43 inspected the scene of occurrence
and found marks of pellets on all sides of the trolley and
ash of burnt leaves lying around the trolley. The wheels of
the trolley were also found burnt. Two live cartridges and
several used and fired cartridges of 12 bore gun together
with the pellets and some burnt clothes were found by the
investigating officer on the spot. Patches of blood were
found at different places. PW-4, the Medical Officer exam-
ined the injured witnesses and found on their person punc-
tured wounds besides abrasions. PW-3 had two gun shot
wounds. The Doctor had noted the injuries. in Exhibits Ka-5
and Ka-6. The Medical Officers, namely PWs 2, 9, 10 and 46
conducted necroscopy on the dead bodies and noted various
kinds of injuries such as incised wounds, lacerated in-
juries, contusions and gun shot wounds etc. There was super-
ficial burn on the dead bodies indicating that the dead
bodies were set fire to. PW-43 searched for the accused
mentioned in the F.I.R., but none was available. Then he
took proceedings under Sections 87 and 88 of the Code of
Criminal Procedure (old). He arrested Accused No. 39 on
16.1.1974 and seized his licensed gun. Accused Nos. 3 and 16
were arrested in the house of Accused No. 38. A rifle (Ex.
11) and a gun (Ex. 12) were seized by PW-43 from the house
of Accused No. 38. On 16.1.1974, the sub Inspector, PW-43
was suspended. Thereafter the investigation was taken up by
the Circle Inspector of Police on 17.1. 1974. Subsequently,
on 21.1. 1974 the investigation was entrusted to the C.I.D.
Branch. PW-38, an Inspector of that branch took up further
investigation. During the investigation he came to know that
Rambali (Accused No. 36) was admitted to Gorakhpur Hospital,
but slipped away from the hospital. on 18.1.1974. PW-38
collected evidence about the arrest of Accused Nos. 1, 2 and
27 by the T.T.E. while the latter found these three accused
travelling without tickets on 12.1.1974. He sent the two
cartridges recovered from the place of occurrence to the
ballistic expert, who opined that the same should have been
fired by rifle (Ex. 11). Some of the accused surrendered
before the court on different dates. After completing the
investigation, PW-38 laid the chargesheet in 4 batches which
gave rise to 4 different sessions trials which were disposed
of by the learned Sessions Judge by this impugned common
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judgment.
947
All the accused pleaded not guilty and denied their
complicity with the offence in question. Rambali (Accused
No. 36) admitted his presence and stated that the sugar cane
crops belonged to one Phunni and not to Tirjugi and his
relations and that while Phunni and his men were cutting the
sugar cane crops, the deceased Prabhu Nath and the other
deceased persons attempted to forcibly taking away the crops
and during the course of such attempt, Phunni and his men
attacked the deceased party and that he was shot by the
deceased Prabhu Nath when he entreated that the sugar cane
crops of Phunni should not be taken away. Accused nos. 1, 2
and 27 denied the charge of conspiracy and stated that they
were in prison on the date of occurrence consequent upon
their conviction recorded by the Railway Magistrate for
their ticketless travelling.
The prosecution in all examined 53 witnesses and filed
number of documents. The accused examined DWs 1-7. Of the
witnesses examined by the prosecution, PWs 1, 3, 6, 11, 12,
20 and 24 are ocular witnesses. It may be mentioned here
that PW-20 has been treated as hostile as he has not sup-
ported the prosecution case. Of these witnesses, PWs 3 and
24 were injured witnesses. One Ganga Prasad Pande mentioned
as an eye witness in the F.I.R. was examined as a court
witness (C.W. 1) and he did not support the prosecution
version. The learned Trial Judge believing the plea of
accused Nagendra alias Tara (A.4) on the basis of the evi-
dence of DW. 1 (Dr. Krishna Swarup) found this accused as
having not participated in the occurrence. However, he
spurned the plea of defence put forth by rest of the ac-
cused.
The learned Sessions Judge for the discussions made in
his judgment acquitted 25 accused persons out of the total
of 41 accused, namely, 4-6, 11-14, 17-22, 24-26, 28-32, 35,
39-41 finding them not guilty of any of the charges and
convicted the rest of the 16 accused under various charges
and sentenced them as hereunder:
Accused Nos. 1, 2 and 27 were sentenced to life impris-
onment under Section 302 read with Sections 109 and 120 (B)
IPC and Accused Nos. 3, 7, 8, 15, 23, 33, 34, 36 and 37 were
convicted under Section 302 read with Section 149 IPC and
sentenced to imprisonment for life and in addition to that,
these 9 accused were convicted under Section 307 read with
Section 149 IPC and each of them was sentenced to undergo
rigorous imprisonment for a period of 4 years. Accused No. 9
was convicted under Section 302 (simpliciter) and sentenced
to life imprisonment and convicted under Section 307 (sim-
pliciter) and sentenced to 5 years rigorous imprisonment. In
addition to that, A. 9 was con-
948
victed under Section 27 of the Arms Act and sentenced to
rigorous imprisonment for a period of two years and also
under Section 147 for a period of one year.
Accused Nos. 10 and 16 were convicted under Section 302
read with Section 149 IPC and each of them was sentenced to
the extreme penalty of law, namely, death. These two accused
A. 10 and A. 16 were also convicted under Section 307 read
with Section 149 IPC and each of them was sentenced to
rigorous imprisonment for a period of 5 years.
Accused Nos. 3, 7, 8, 10, 15, 16, 23, 33, 34, 36 and 37
were convicted under Section 148 IPC and each of them was
sentenced to undergo rigorous imprisonment for a period of
one and half years. Apart from this, all the convicted
accused persons except Accused Nos. 1, 2, 27 and 38 were
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convicted under Section 201 read with Section 149 IPC and
each of them was sentenced to rigorous imprisonment for a
period of 4 years. Added to that, all these accused except-
ing the above four were convicted under Sections 435 and
427, IPC and sentenced each one of the accused to undergo
rigorous imprisonment for one year under each of these two
charges. Accused No. 37 was also convicted under Section 27
of the Arms Act and sentenced to undergo rigorous imprison-
ment for a period of two years.
All the convicted accused filed Criminal Appeal Nos.
1132, 1133, 1143, 1156, 1157 and 1158 of 1976. The reference
made by the Trial Court for confirmation of the sentence of
death imposed on A. 10 and A. 16 was heard as a Referred
case No. 31 of 1976. The State preferred an appeal under
Section 378 of Cr.P.C. against the acquittal of all the 24
acquitted persons. It may be mentioned at this juncture that
the High Court did not grant leave as required under Section
378(3) of the Code of Criminal Procedure to entertain an
appeal against the acquittal of S.D. Dubey (A. 40). The High
Court disposed of these appeals inclusive of the State
appeal and the Referred case by the common impugned judgment
dated 17.2.1977, allowing all the criminal appeals preferred
by all the convicted accused except the appeal preferred by
Rambali (A. 36) and setting aside the convictions and the
sentences of those whose appeals were allowed. The State
appeal was dismissed. The referred case was rejected conse-
quent upon the acquittal of A. 10 and A. 16.
The State on being dissatisfied with the impugned judg-
ment of he High Court, has preferred as many as seven crimi-
nal appeals as
949
detailed in the table given below:
S1. No. Criminal Appeal No. The Accused concerned.
1. 517/78 A. 10 and A. 16
2. 518/78 A.38
3. 519/78 A. 1, A.2 & A.27
4. 520/78 A.3, A.7, A.8, A.9, A. 15,
A.23 & A.33.
5. 521/78 A. 37
6. 522/78 A.34 & A.36
7. 523/78 A. 4-6. A. 11 - 14, A. 17-22,
A.24-26, A.28-32, A.35
A.39 & A.41
After the grant of special leave, S.D. Dubey, Respondent
No. 25 in Criminal Appeal No. 523/78 (Accused No. 40 in the
Annexure ’A’ to this judgment) filed a petition for rectifi-
cation in Miscellaneous Petition No. 210/79 praying to
recall the leave granted and the nonbailable warrant issued
against him on the ground that the High Court did not grant
leave to the State for preferring an appeal against his
order of acquittal. This Court by order dated 23.1.1979
deleted the name of S.D. Dubey from the array of the re-
spondents in Criminal Appeal No. 523/78 and revoked the
special leave granted so far as he was concerned and also
discharged the unbailable warrant issued against him. The
result is that there is no appeal against A. 40.
It seems that the complainant in all these appeals has
filed Criminal Miscellaneous Petition Nos. 3621-3627 of 1989
for impleading him as a party. Natarajan, J. (as he then
was) by an order dated 14.9.1989 passed an order, "The
counsel for the complainant may be heard at the time of
heating of the appeal." Mr. Prithvi Raj, Sr. Advocate as-
sisted by Mr. Dalveer Bhandari and another appeared on
behalf of the appellant/state. Mr. R.L. Kohli, Sr. Advocate
assisted by Mr. H.K. Puri and another appeared on behalf of
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the respondents. Mr. Yogeshwar Prasad, Sr. Advocate assisted
by two advocates appeared on behalf of the complainant. Mr.
Prithvi Raj after taking us very meticulously through the
judgment of the Trial Court as well as of the High Court and
the evidence of some of the witnesses presented a very
950
comprehensive and detailed analysis of the case with the
circumstances, surrounding it and made the following submis-
sions:
1. The High Court has erroneously set aside the convictions
recorded by the Trial Court without adverting to the intrin-
sic’ value of the evidence of the eye witnesses who speaks
about the motive as well the actual occurrence in question,
which took place in the broad day light of 14.1. 1974.
2. There is abundant and overwhelming evidence both oral and
documentary conclusively establishing the long standing and
deep rooted animosity for the accused persons to brutally
attack the prosecution party.
3. The High Court is not justified in rejecting the testimo-
ny of the ocular witnesses especially of PWs 3 and 24, who
were injured and whose presence at the scene of occurrence
cannot be doubted, merely on the ground that they were all
partisan witnesses.
4. The nature of the injuries sustained by the deceased
persons as well by PWs 3 and 24 unmistakenly corroborate the
evidence of the eye witnesses that all the victims have been
indiscriminately and ruthlessly attacked with deadly weapons
such as fire-arms, spears, pharsas, lathes etc.
5. Both the Trial Court and the High Court without appreci-
ating the evidence adduced as against the acquired persons
concerned in Criminal Appeal No. 523/78 has wrongly recorded
the order of acquittal which is liable to be set aside.
Before entering into a detailed discussion of the oral
and documentary evidence, we may point out certain incontro-
vertible facts. The time of occurrence, the place of occur-
rence and the manner of attack are all not in dispute. It
seems that the learned Trial Judge himself had made a local
inspection and visited the place of occurrence on 11.4.76
and he was satisfied with the evidence regarding the topog-
raphy of the scene.
So far as the motive is concerned, we have clearly
stated in the narrative portion of the judgment that the
prosecution party and the accused party were on war path on
account of a series of incidents over a considerable length
of time. The evidence--both oral and docu-
951
mentary--demonstrably establish that each one was out for
the blood of another. The very fact that 13 persons have
been done away with by an inhuman, archaic and drastic mode
of execution indicates that the culprits whoever they might
have been should have been fomenting their hatred and pre-
planned to perpetuate this heinous crime on that particular
day. According to the prosecution, the perpetrators of the
crime were numbering between 80 to 90. When the victims and
the witnesses started running away apprehending imminent
danger to their lives, they were chased by the perpetrators
of the crime and attacked ruthlessly by deadly weapons
including fire-arms. The prosecution case is that except the
father of PW-1, Prabhu Nath who was armed with a gun others
were armless. PW-1 speaks about the entire motive for the
occurrence. On a careful analysis of the evidence, we have
no reservation in holding that there was bitter animosity
between the prosecution and accused parties and as such
there was sufficient motive on the part of the accused party
to attack the prosecution party. But at the same time, one
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should not lose sight of the fact that the prosecution party
which was also entertaining the same amount of animosity
against the accused party had sufficient motive to implicate
all the leading persons of the accused party with the of-
fence in question. As repeatedly said, motive is a double
edged weapon and that it could be made use of by either
party to wield that weapon of motive against each other.
Therefore, the key question for consideration is whether the
prosecution has convincingly and satisfactorily established
guilt of all or any of the accused beyond all reasonable
doubt by letting in reliable and cogent evidence.
Regarding the conspiracy that is said to have been
hatched on 12.1.74 among A. 1, A.2 and A.27 with three
others--A.28, A.29 and A.34 we have to scrutinise the evi-
dence of PWs 5, 8, 15 and DW 5. The Trial Court in its
judgment has found A. 1, A.2 and A.27 guilty under Sections
302 read with 109 and read with 120(B) and sentenced them
for life, though has not placed much reliance on the evi-
dence of PWs 8 and 15. In this connection, we may state that
DW-5, ,the Assistant Station Master was examined only to
discredit the testimony of PW-8.
PW-5 was the Railway Magistrate during the relevant
period. PW-29 was a Travelling Ticket Inspector and PW-39
was a constable. According to them, A. 1, A.2 and A.27 were
caught as ticketless travellers by S.D. Dubey (A.40) and
produced before PW-29, who in turn handed over them to PW-
39. These three accused were detained at the waiting room of
Bhatini Railway Station on the night of 12.1.1974 and pro-
duced before PW-5 on 13.1.1974 who convicted and
952
sentenced them to imprisonment till 18.1.1974. These three
accused themselves admit their conviction and imprisonment.
But would this piece of evidence coupled with the animosity
that existed between the two groups be sufficient to con-
clude that the three accused have conspired to commit this
offence9 No doubt, this impelling circumstance creates a
strong suspicion against A. 1, A.2 and A.27 as to whether
they had voluntarily got themselves arrested by creating a
circumstance presumably due to some pre-arrangement so that
this circumstance might serve as a plea of alibi. It is well
said that suspicion, however strong it may be, it cannot
take the place of legal proof. Therefore, from this circum-
stance the Court cannot be justified in drawing an inference
that these three accused had hatched a conspiracy to commit
this offence. There is absolutely no evidence that these
,three accused had any conversation among themselves to
commit this offence or they pre-planned to involve them-
selves in the offence of ticketless travelling so that they
might escape their involvement with the offence. One more
circumstance, relied upon by the prosecution in attempting
to prove the conspiracy, is the deposit of the gun by A.2 on
12.1. 1974 with PW 28, an arms dealer of Gorakhpur. But the
prosecution miserably fails in this attempt also because it
is in evidence that the gun licence of A.2 had already been
suspended. Evidently A.2 had thought it appropriate to
deposit his gun with an arms dealer for the sake of safety.
Therefore, that conduct of A.2 in depositing the gun could
not be taken as a circumstance proving the conspiracy to any
extent. The High Court has rightly rejected the case of the
prosecution on this aspect and dismissed the case of con-
spiracy and consequently set aside the conviction of these
three accused under Section 302 read with Sections 109 and
120(B), IPC.
We shall now deal with the evidence relating to the
actual occurrence. The prosecution examined PWs 1, 3, 6, 11,
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12, 20 and 24 as eye witnesses to the occurrence. Of the
above witnesses, PW-20, who is the son of one of the de-
ceased has resiled from his earlier statement and as such he
was treated as a hostile witness. As has been repeatedly
stated in the earlier part of the judgment, PWs 3 and 24
were injured during the occurrence. We shall examine the
evidence of these eyewitnesses one by one subjecting their
testimony to strict scrutiny.
PW-I is none other than the son of deceased Prabhu Nath
Tiwari, who is said to have been armed with a gun and fired
at Rambali (A.36). He claims to have been present at the
spot of occurrence from beginning to end and to have wit-
nessed the entire occurrence and also identified all these
accused persons as active participants along with
953
some others. It is his evidence that he along with the other
witnesses ran towards south and took shelter in the nearby
field where from he witnessed the occurrence. After all the
miscreants had left the scene he was the person who went to
the police station with a written complaint (Ex. Ka-1) and
set the law in motion. In Ex. Ka-1, PW-1 has implicated
accused Nos. 1, 2 and 27 along with others assigning specif-
ic overtact to accused Nos. 1 and 2 stating that they were
armed with a pistol and a gun respectively and fired at the
prosecution party though has not attributed any specific
overtact to A.27 against whom PW- 1 was not entertaining so
much of animosity as in the case of A. 1 and A.2. Besides
attributing the above overtacts, he has averred in the
earliest document Ex. Ka-1, that accused Nos. 1 and 2 ex-
horted and incited his associates to bounce upon the prose-
cution party and to attack. On a very close examination of
the testimony of PW-1, we are disinclined to place any
reliance much less safe reliance on his testimony for more
than one reason.
Firstly, PW-1 who is the son of deceased Prabhu Nath
Tiwan and grand-son of the deceased Tirjugi and nephew of
deceased Damodar is not only much interested in the prosecu-
tion case, but is anemically disposed towards accused party.
The sugar cane crops which was the subject matter for this
occurrence was owned by his grand-father Tirjugi and his
family members. Secondly, the absence of any injury on his
person creates a grave doubt about his presence in the scene
of occurrence. Thirdly, PW-1 has not only given an exagger-
ated version in Ex. Ka-1 but also deliberately and falsely
implicated A. 1, A.2 and A.27 as having actively participat-
ed and shot at the deceased. Fourthly, his explanation now
offered by him that he gave the names of these three accused
persons since he overheard during the occurrence the Other
accused shouting "Paras Avo, Sharda Avo, Jangi Babu Avo"
which explanation is summarily rejected both by the Trial as
well the High Court. Fifthly, in Ex. Ka-1, PW-I has not
given the names of the fathers of any one of the accused
persons. Sixthly, even assuming, but not conceding that PW-I
was present at the scene of occurrence, he when fleeing
towards south for his life on seeing the accused party with
the strength of nearly 80-90 persons armed with deadly
weapons could not have witnessed any part of the occurrence
especially when all the accused were moving towards north.
Seventhly, it would not have been possible for PW-1 to
prepare Ka-1 on his own, but this document should have been
brought into existence on account of some deliberations and
consultations with some of the people belonging to his
faction. Eighthly, there is no guarantee to believe even a
part of his evidence when he goes to the extent of making
954
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deliberate false implication of accused persons who are
proved to have been in prison at the time of occurrence.
Ninthly, the entry in the General Diary dated 17.1.1974
marked as Ex. C-1 reveals that the investigating officer
recorded the statement of the witnesses only on 15.1. 1974.
It may be recalled that the first investigating officer,
PW-43 was suspended on 16.1.1974.
It is surprising that though Ex. Ka-1 does not contain
the names of the fathers of any one of the accused Ex. Ka-51
(First Information Report) prepared on the basis of Ex. Ka-1
contains the names of the fathers of all the accused per-
sons. The only explanation given by the head constable Ram
Hausila Pandey is that he incorporated the fathers’ names on
an enquiry from others is totally unacceptable. Some doubt
is created about the veracity of Ex. Ka-1 on the basis of
certain corrections made thereon. Though the Trial Court was
inclined to rely upon the evidence of PW-1 despite the
patent infirmities, the High Court has rejected his evidence
in toto for just reasons.
PW-6 is the son of Rajeshwar Tiwari, who was one of the
counter petitioners on the side of the prosecution party in
the security proceedings. This Rajeshwar Tiwari is the real
brother of Tirjugi, the deceased. PW-6 was interrogated for
the first time by the investigating officer only on
17.1.1974. The High Court has observed that this witness was
thrust into service only at a later stage to serve as an
ocular witness. The accused in their defence has attempted
to show on the basis of the evidence of CW. 1 that PWs 1 and
6 were residing far away from the scene of the occurence and
that they were not present at the scene. But as CW. 1 has
not supported the prosecution version, much weight was not
attached to this evidence. However, the conduct of PW-6 in
not going to the police station and not being available for
examination till 17.1.1974 leads to an inference that he
would have been made as an eye-witness to the occurrence at
a belated stage. This witness too as PW-1 ran towards south
and did not sustain any injury. Hence we are in total agree-
ment with the High Court that PW-6 is pressed into service
to serve as an eye-witness. PW-11 has admitted that her
parents used to take loans from Prabhu Nath Tiwari and that
she was residing in the house of Rajeshwar Tiwari as his
servant. The evidence of PW-11 is contradictory to that of
PWs 3 and 24, in that PW-11 has deposed that PWs 3 and 24
were found going towards east on the road which is not the
prosecution case. Though this contradiction seems to be very
trivial, in the context of the case it assumes some signifi-
cance in examining the presence of the witnesses at the
scene. PW- 12 is the mother of deceased Ram Vilas. She has
admitted that her
955
husband’s sister had taken loan from Rajeshwar Tiwari in
lieu of which her husband had given 12 bighas of land to
Rajeshwar Tiwari. According to these two witnesses (PWs 11
and 12), the accused persons after firing certain shots did
not use their gun, but attacked the victims only with
spears, pharsas and lathis. The High Court has given cogent
and
convincing reasons to discard the testimony of these two
witnesses also.
Now we are left with the testimony of the injured
witnesses PWs 3 and 24 on whose evidence Mr. Prithvi Raj,
learned counsel appearing for the State placed much reli-
ance.
PW-4, the Medical Officer has testified to the fact
that he examined PW-3 at 9.15 A.M. on 15.1.1974 and noted
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a punctured wound on the left scapula, an incised wound on
the left buttock, two gun shot wounds one on the left
knee--another on outer side and middle of the left shoulder
and an abrasion on the left thigh. According to the Medical
Officer, the injuries were of a day-old. He issued the
Wound Certificate Ex. Ka-5. The same Medical Officer exam-
ined PW-24 at about 9.30 A.M. on 15.1.1974 and found on his
person two abrasions, one contusion, a swealing and three
gun shot wounds--one on the right scapula region, the other
below iliac crest and the third one near the fight elbow.
Ex. Ka-6 is the Wound Certificate.
The very fact that these two witnesses have sustained
certain gun shot wounds probabilities the presence of these
two witnesses at or about the time of occurrence at the
scene. Therefore, their evidence might command acceptance
provided their evidence inspires confidence in the minds of
the Court and that the said evidence is free from any in-
firmity.
PW-3 was a servant of Rajeshwar Tiwari. According to
the prosecution, these two witnesses were standing almost at
the centre of the eastern side of the scene field at which
point they received injuries and thereafter took shelter in
the field of one Hakim. PW-3 mentions the names of accused
Nos. 3, 5-11, 15, 16, 18, 22, 23, 25, 26, 28, 30, 33-37
and 41, the total number of which is 23 of whom 11 have been
acquitted by the Trial Court itself. PW-24 had named six
accused persons of whom Jhullar (A. 17) is said to have
assaulted him. A. 17 is acquitted by the Trial Court. It
shows that the Trial Court had not placed complete reliance
on the testimony of these two witnesses. According to him,
he and PW-24 were examined by the Sub-Inspector, PW-43 and
sent for medical examination. But it is surprising to note
that both these
956
witnesses were medically examined after a delay of 21 hours
on 15.1. 1974 at about 9.30 A.M. No explanation is forthcom-
ing as to why there was such a delay of medical examination
of these two witnesses who are said to have been sent to the
hospital immediately after examination by PW-43. The entry
Ex. C. 1 in the General Diary of 17.1.1974 evidently made
after suspension of PW-43 shows that the statements of
witnesses were recorded on 15.1.1974. This entry is diamet-
rically in opposition to the evidence of not only of these
two witnesses but also of PW-43 who is said to have examined
the witnesses at the spot on the evening of 14.1.1974 it-
self.
PW-24 has admitted that he was suffering from total
blindness in his right eye and poor sight in his left eye
and he was suffering from eye blindness since 4-5 years. He
admitted that he could not see as to who assaulted whom.
Later on he stated that he had not seen any accused by their
face and even the accused named by him were recognised only
by their voice. It is found in the judgment of the High
Court that PW-24 was cross-examined by the public prosecutor
himself which circumstance indicates that PW-24 has not
supported the prosecution version. It is the evidence of the
investigating officer that he did not find any blood at the
place where these two witnesses were allegedly lying. It is
under these circumstances the High Court was disinclined to
place any reliance on the evidence of these two witnesses
who are indisputably partisan witnesses. It is pointed out
by the High Court that the entry in Ex. C- 1 giving the
details of the investigation carried on by PW-43 on
14.1.1974 does not indicate that the investigating officer
contacted and interrogated these two witnesses on 14.1.1974
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itself. The only inference that would follow is that these
two witnesses even admitting that they had received injuries
at the scene field as pointed out by the High Court--rightly
too in our view--might have run away to the village and were
contacted by the police only on the next day. So on safe
reliance can be placed on the testimony of these two wit-
nesses.
When viewed from any angle, we are of the firm view that
the reasons assigned by the High Court for disbelieving the
testimony of all the ocular witnesses are unreasonable. The
evidence is ambulatory and vasulating besides suffering from
insurmountable infirmities and improbabilities. The totality
of the evidence is unworthy of any credence when examined by
the standard of yardsticks of credibility.
As we have repeatedly pointed out earlier, there is a
deliberate false implication of the accused Nos. 1, 2 and 27
to whom overtacts are
957
attributed in Ex. Ka- 1. In fact, the High Court has gone in
great depth into the facts and circumstances of the case and
rightly concluded that the prosecution has miserably failed
in establishing the guilt of the accused except A.36. In
spite of best efforts and great deal of pondering over the
matter, we are unable to disagree with the conclusion ar-
rived at by the High Court in rejecting the testimony of
these witnesses whose evidence lacks the guarantee to in-
spire the confidence especially when the major portion of
the evidence is manifestly false and patently incredible. No
doubt, the circumstances attending the case, namely, the
conduct of A. 1, A.2 and A.27 voluntarily getting themselves
arrested by A.40 creates suspicion against them. But that
suspicion by itself howsoever strong it may be is not suffi-
cient to take the place of legal proof and warrant a finding
of guilt of these three accused.
It is pertinent to note that even the charge flamed by
the Trial Court reads as if all the accused inclusive of A.
1, A.2 and A.27 formed themselves into an unlawful assembly
on 14.1.1974 in the village Bali in prosecution of the
common object of committing murder of 13 deceased persons
and disposing of the dead bodies. In such a situation, can
it be said that there is justification for convicting the
rest of the accused barring accused Nos. 1, 2 and 27 for the
specific acts attributed to them by the witnesses whose
evidence is tainted with patent falsehood. The observation
of the High Court reading "All this indicates that Nitya
Nand (PW-1) had not seen the occurrence, that the first
information report was not lodged when it purports to have
been lodged, and, that it came into existence later on and
was ante-timed" cannot be said to be perverse. Similarly yet
another observation reading "Once it is established that
some of the accused persons named by these witnesses had not
participated in the occurrence and have been falsely impli-
cated by them, it will not be safe to place reliance upon
their testimony regarding the complicity of the other ac-
cused nominated by them without corroboration in material
particulars by other reliable evidence, direct or substan-
tial" also does not call for interference.
We went through the available records placed before us
and examined them scrupulously and meticulously with all
seriousness and onerous responsibility cast upon us in
getting at the truth, but we regret to say that the entire
evidence is nothing but a coloured version with concocted
story and exaggerated account mixed with falsehood and that
the prosecution has miserably failed to make out the charges
against all or any of the accused beyond all reasonable
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doubt except
958
Rambali (A.36) who himself admitted his presence at the
scene. In this connection, we would like to cite a decision
of this Court in Balaka Singh & Ors. v. State of Punjab,
[1975] 4 SCC 511 wherein the following observation is made.
" ..... the Court must make an attempt to separate grain
from the chaff, the truth from the falsehood, yet this could
only be possible when the truth is separable from the false-
hood. Where the grain cannot be separated from the chaff
because the grain and chaff are so inextricably mixed up
that in the process of separation the Court would have to
reconstruct an absolutely new case for the prosecution by
divorcing the essential details presented by the prosecution
completely from the context and the background against which
they are made, then this principle will not apply."
No doubt, it is true that this heinous offence is dia-
bolical in conception and executed in gruesome-and ghastly
manner. It is shocking that 13 persons have been done away
with in a broad day light in the course of the same transac-
tion. Nonetheless the Court when satisfied that the evidence
adduced by the prosecution is not only unworthy of credence,
but also manifestly and inextricably mixed up with falsehood
cannot be carried away merely on the fact of multiplicity of
victims and on the basis of speculations and suppositions in
the confused stream of facts. In our considered view, the
High Court has apprised the evidence in the proper perspec-
tive and arrived at a correct conclusion which is neither
perverse nor unreasonable.
For all the reasons stated above, we see no reason to
interfere with the findings of the High Court and dislodge
the same. In the result the judgment of the High Court is
confirmed and all the appeals preferred by the State are
dismissed.
Y. Lal Appeals
dismissed.
959
Annexure ’A’
LIST OF THE ACCUSED PERSONS
1. Parasnath Tiwari
2. Sharda Prasad
3. Hausila Tiwari
4. Nagendra alias Tara
5. Bishwanath
6. Mahendra Tiwari
7. Anirudha Tiwari
8. Shukhal
9. Pramhans
10. Prahlad
11. Sudama
12. Jumarati
13. Shahid
14. Birjhan
15. Suryaman Koiri
16. Moti Ram
17. Jhullar
18. Suryabali
19. Kumar Kewat
20. Shanker
21. Ram Asrey
22. Jamuna Pasi
23. Harilal
24. Banwari
25. Bindsari
26. Lachman
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960
27. Jangi
28. Jhinnu
29. Samsher
30. Jetan
31. Bramhdoo
32. Jagdish Tiwari
33. Durga Pandey
34. Jagat Narain Misra
35. Sunder
36. Rambali
37. Babu Singh alias Bandhoo Singh
38. Parasnath Pandey
39. Ram Naresh Pandey
40. S.D. Dubey
41. Kailash
Note:
1. Accused Nos. 1 to 33 were tried in Sessions Trial No. A-
119/74.
2. Accused Nos. 34-36 were tried in Sessions Trial No. A-
160/74.
3. Accused Nos. 37-40 were tried in Sessions Trial No. A-
265/74.
4. Accused No. 41 was tried in Sessions Trial No. A-27/75.
961