Santosh And Others vs State Of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 7543 of 2006
AFR
Reserved
Santosh and others
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Amit Kumar Gaur, Lav Srivastava
Counsel for Respondent(s) : G.P.Dixit, Govt. Advocate, Nikhil
Pratap Singh, Ramesh Kumar, Sanjay
Kumar, Sharad Chand Rai, Tripurari
Pal
Along with :
Criminal Appeal No. 7713 of 2006:
Sukhvir and another
1.
Versus
State of U.P.
Criminal Appeal No. 7712 of 2006:
Satyavir and others
2.
Versus
State of U.P.
Court No. - 47
HON'BLE J.J. MUNIR, J.
HON'BLE SANJIV KUMAR, J.
( Delivered by Hon’ble Sanjiv Kumar J.)
1. All the above three Criminal Appeals have been filed under
Section 374 (2) Cr.P.C. against the judgment and order dated 29.11.2006
passed by Sri Shyam Sundar, Additional Sessions Judge, Court No. 6,

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Mainpuri, in Session Trial No. 128 of 2002 (State Vs. Santosh and
Others). As all the above three Criminal Appeals have been filed against
the common judgment and order dated 29.11.2006, and therefore, all of
them are being decided by a common judgment.
2. The Criminal Appeal No. 7543 of 2006 has been filed by
appellants, to wit, Santosh son of Charan Singh, Kamlesh son of Sua
Ram, Ram Naresh son of Sonelal and Ram Pal son of Kanaujiya Lal;
Criminal Appeal No. 7712 of 2006 has been filed by appellants- Satyvir
Singh, Shiv Vir Singh and Ram Avtar all sons of Sonelal and Criminal
Appeal No. 7713 of 2006 has been filed by the appellants- Sukhvir son
of Charan Singh and Arvind Singh son of Ram Naresh, all residents of
Village- Nagla Bandh, Police Station- Kisni, District- Mainpuri, against
the judgment and order dated 29.11.2006 passed by the Additional
Sessions Judge, Court No. 6 Mainpuri, in Sessions Trial No. 128 of
2002, as aforesaid.
3. By the impugned judgment and order, all the appellants, to wit,
Santosh, Kamlesh, Ram Naresh, Ram Pal, Satyavir Singh, Shiv Vir
Singh, Ram Avtar, Sukhvir, Arvind Singh have been found guilty and
convicted and sentenced to undergo imprisonment for a term of one
year’s for offence punishable under Section 147 Indian Penal Code (in
short’ IPC’); one year’s imprisonment for offence punishable under
Section 148 IPC; appellants Kamlesh and Ram Naresh were further
convicted and sentenced to undergo rigorous imprisonment for a term of
five years and a fine of Rs. 2,000/- for offence punishable under Section
307 IPC and in default of payment of fine they were directed to undergo
further imprisonment of four months; all the appellants were also
convicted and sentenced to undergo imprisonment of life for offence
punishable under Section 302 IPC and a fine of Rs. 5,000/- each and in
default of payment of fine they were further directed to undergo
imprisonment for a term of four months and lastly, all the appellants
were convicted and sentenced to undergo imprisonment for a term of
three years under Section 452 IPC and to pay a fine of Rs. 2,000/- and
in default of payment of fine they were further directed to undergo

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imprisonment for a term of four months, and it was directed that all the
sentences shall run concurrently.
4. Brief facts of the prosecution case are that the informant Om
Prakash son of Sri Sarman Singh Yadav, Resident of Village- Nagla
Bandh, H/o Mudausi, Police Station- Kisni, District- Mainpuri, filed a
written information ( tehrir ) dated 19.08.2001 before Incharge Police
Outpost -Mogaon, Police Station- Kisni, District Mainpuri, stating
therein that he is serving in the Army and had come to his village on
leave. There was enmity over abadi land between Om Prakash and
Santosh, Sukhvir Yadav and Kamlesh natives of his village. About one
month ago he had come on leave to his house, then the reputed persons
of the area had got the matter of disputed land settled in a panchayat,
but the accused kept grudge against him and his family. His brother-in-
law ( saala ) Mohar Singh son of late Pahelwan Singh Yadav, his nephew
Sunil @ Baba son of Sobran Singh, both residents of village Nagla
Sukhi, Police Station- Kurra had came to meet him because today he
was going back to attend his duties after availing leave. Today, i.e.
19.08.2001 in the morning he and his younger brother Ganga Singh had
gone to their field and his father was sitting to the North of his house,
cleaning garlic and his wife was brooming in verandah. Her brother-in-
law’s ( saala ) son Sunil @ Baba had also gone to the field and his elder
son Dharmendra alongwith his maternal uncle ( mama ) Mohar Singh had
gone to see electric wires towards the transformer and his younger
children Satendra and Jitendra were studying over the roof of the house.
At about 07:30 a.m. the informant and his younger brother Ganga Singh
returned home from the field and were talking to his father then
Santosh, Sukhvir both sons of late Charan Singh, Kamlesh son of late
Sua Ram, Naresh, Satyavir, Shivir and Ramadhar all sons of Sonelal
Yadav. Arvind son of Ram Naresh and Shyam Pal son of Kanauji Lal
resident of Village- Awazpur, Police Station- Kisni, armed with illegal
weapons entered in his courtyard from the side of tubewell hurling
abusive languages. As soon as he and his brother Ganga Ram looked
towards the courtyard and objected then Santosh and Sukhvir shot at his

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CRLA No. - 7543 of 2006
wife Savitri Devi with intention to kill, she cried and his both sons
sitting over the roof of the house also cried, then Kamlesh and Ram
Naresh shot at their sons with intention to kill. All the accused rushed
towards him, his brother Ganga Singh and his father. He himself and his
brother took shelter behind the heap of straw ( bhoose ka coop ). Then,
Kamlesh and Ram Naresh shot multiple fires at his father and upon the
hue and cry of the informant and his brother, they ran towards tubewell.
There his brother-in-laws’ nephew (Sunil @ Baba) was coming from the
field. Satyavir and Shivvir, shot at him and thereafter all the accused ran
towards the southern road of the village. Upon hearing the noise of fire
his son Dharmendra and brother-in-law, Mohar Singh and Santosh were
coming, when they were surrounded by the accused near Lala Ram’s
field where Ramadhar, Arvind, Shyam Pal shot at his son Dharmendra
with intention to kill. He himself, Mohar Singh and Santosh somehow
managed to save their lives after hiding themselves and all the accused
after shooting ran towards Paharpur. His father, son Dharmendra and
brother-in-law’s son Sunil @ Baba had died at the spot and their dead
bodies are lying there. The informant, his brother Ganga Singh and
brother-in-law Mohar Singh have somehow managed to bring his
injured wife Savitri Devi, injured son Jitendra to the police station. Due
to the indiscriminate firing by the appellants there is terror in and
around the village and due to the fear of the appellants, none of the
villager is ready to come with him.
5. Upon this information chik FIR under Case Crime No. 248 of
2001, Sections 147, 148, 149, 452, 307 and 302 IPC, was registered at
Police Outpost- Kushmura, Police Station- Kisni, District- Mainpuri on
19.08.2001 at 10.00 a.m. and the investigation commenced. The
Investigation Officer reached at the place of occurrence and collected
blood-stained and plain earth from the places of occurrence where the
dead bodies were lying and prepared their fard baramadagi marked as
Ext. Ka-28 to Ext. Ka- 32. He also collected empty cartridges from the
places of occurrence and prepared its fard baramadagi which he proved
as Ext. Ka- 33 to Ext. Ka- 36. The informant’s wife Savitri Devi

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CRLA No. - 7543 of 2006
succumbed to her injuries and the inquest of all the four deceased were
prepared alongwith related papers. The dead bodies were sent for
postmortem and the postmortem was conducted. The Investigating
Officer recorded statements of informant, injured and other witnesses.
The injured Jitendra was medically examined. The I.O. in the course of
investigation arrested accused and recovered country made pistol at the
pointing out of accused Sukhvir and prepared its fard baramadagi and
separate case under Section 25 of Arms Act was lodged against him,
which was separately investigated. The Investigation Officer sent the
cartridges, recovered from the places of occurrences and recovered
pistol, for forensic examination. The Investigating Officer after
completion of investigation submitted charge-sheet before the Chief
Judicial Magistrate, Mainpuri.
6. The concerned court took cognizance of the offence and
summoned the accused, they appeared before the court and they were
furnished copies of relevant prosecution papers under Section 207
Cr.P.C. and thereafter, the case was committed for trial to the Court of
Sessions on 18.04.2002.
7. The accused appeared before the Sessions Court and charge under
Sections- 147, 148, 302 read with 149, 307 read with 149 and 452 IPC
was framed against them to which they pleaded not guilty and claimed
to be trite.
8. The prosecution has examined nine witnesses to prove its case , to
wit, P.W. 1 informant- Om Prakash; P.W. 2 injured Jitendra Singh; P.W.
3 Dr. U.C. Chaturvedi, (the doctor who examined injured Jitendra Singh
and prepared its injury report); P.W. 4 Ganga Singh; P.W. 5 Dr. R.D.
Yadav, (who conducted postmortem of all the four deceased); P.W. 6 S.I.
Asht Muni, (who prepared inquest of deceased Dharmendra Singh,
Sunil @ Baba and Sarman Singh along with related papers); P.W. 7 S.I.
Anuj Kumar Tyagi; P.W. 8 Constable Clerk Ram Kumar Singh, who
scribed chik FIR and G.D. No. 12; P.W. 9 S.I. Satya Pal Singh (who
prepared inquest of deceased Savitri Devi alongwith related papers).

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CRLA No. - 7543 of 2006
9. The prosecution has produced following documentary evidence to
prove its case, namely, ballistic expert report Paper No.13a/2; written
application ( tehrir ) Ext. Ka-1; injury report of injury Jitendra Ext. Ka-2;
Postmortem report of deceased Smt. Savitri Devi Ext. Ka-3;
Postmortem report of deceased Dharmendra Singh Ext. Ka-4;
Postmortem report of deceased Sunil @ Baba Ext. Ka-5; Postmortem
report of deceased Sarman Singh Ext. Ka-6; inquest report of deceased
Dharmendra Singh Ext. Ka-7; a copy of chik FIR Ext. Ka-8; a copy of
G.D. Ext. Ka-9; the letter to CMO Ext. Ka-10; Challan nash Ext. Ka-11;
Photo nash Ext. Ka-12, the letter to R.I. Ext. Ka-13, inquest of deceased
Sunil @ Baba Ext. Ka-14 and related papers for conducting postmortem
such as copy of chik FIR, copy of GD, the letter to CMO, sample seal,
challan nash, photo nash as Ext. Ka-15 to Ext. Ka-20, respectively;
inquest of deceased Sarman Singh Ext. Ka-21, along with related
documents; copy of chik FIR, copy of GD, the letter to CMO as Ext.
Ka-22 to Ext. Ka-27 respectively; fard baramadagi of taking into
possession plain concrete and blood-stained concrete from the roof of
the house of the informant Ext. 19-28; blood stained earth from the
place where Savitri Devi was shot Ext. Ka-29; blood-stained earth from
the place where the dead body of deceased Sarman Singh was found
Ext. Ka-30; fard baramadagi of taking sample of blood-stained earth
from near the dead body of Sunil @ Baba Ext. Ka-31; fard baramadagi
of taking sample of blood-stained earth near the dead body of
Dharmendra Singh as well as plain earth Ext. Ka-32; three empty
cartridges 315 bore from near the body of Dharmendra as Ext. Ka-33;
two empty cartridges 315 bore and one empty cartridge 12 bore
recovered from near the place of dead body of Sunil @ Baba as Ext. Ka-
34; fard baramadagi of three empty cartridges 315 bore from near the
dead body of Sarman Singh as Ext. Ka-35; fard baramadagi of two
cartridges 315 bore and one empty cartridge from the house of
informant as Ext. Ka-36; fard baramadagi of empty cartridges 12 bore
and empty cartridges 315 bore as material as Ext. 1 to 7; site plan of the
place of occurrence as Ext. Ka-37; the charge-sheet as Ext. Ka-38; the

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chik FIR as Ext. Ka-39, a copy of G.D. as Ext. Ka-40; inquest of
deceased Savitri Devi and related papers necessary for postmortem of
deceased Savitri Devi as Ext. Ka-41 to Ext. Ka-45, respectively;
Postmortem report of Savitri Devi prepared by Dr. U.C. Chaturvedi as
Ext. Ka-46.
10. P.W. 1- Om Prakash is the informant and also eye witness of the
incident. He has stated that the incident occurred on 19.08.2001 at about
07.00 a.m. His father was cleaning garlic in front of northern door of his
house, his wife was sweeping the verandah, his brother-in-law’s son
Sunil @ Baba had gone for nature’s call in field. His elder son
Dharmendra alongwith his maternal uncle ( mama ) had gone to see
electric wires near transformer; his two sons, Satendra and Jitendra were
studying over the roof of the house. His younger brother Ganga Singh
and he himself were talking to his father, after returning from field.
Then Santosh, Ram Naresh, Ramadhar, Satyavir, Dharmpal, Kamlesh,
Shivvir, Arvind and Shyampal came there. Santosh and Sukhvir were
having tamancha 315 bore, Shivvir and Ram Naresh were having
tamancha 12 bore and rest of the accused were having tamancha 315
bore. They entered in his courtyard from towards the tubewell hurling
abuses, as soon as he and his brother Ganga Singh saw and objected
them, Santosh and Sukhvir fired at his wife Savitri Devi with intention
to kill as a result she got injured and cried and his both children stepped
down from the roof and also cried and while her children were peeping
from the roof then Kamlesh and Ram Naresh fired at them with
intention to kill. Upon hue and cry of the informant and his brother
Ganga Singh all the accused pounced upon them and his father. The
informant and his brother Ganga Singh hid themselves behind the heap
of straw ( bhoose ka coop ) and saw that Ram Naresh and Kamlesh shot
at his father killing his father. He and his brother raised alarm to save
themselves, then the accused ran towards tubewell. There Sunil @ Baba
was returning home, the appellants Satyavir and Shivvir fired at him
with intention to kill, as a result he died on the spot. The appellants ran
towards the southern road of the village, and the informant saw Sunil @

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CRLA No. - 7543 of 2006
Baba being killed from the north-western edge of his house and chased
the accused, because his son had gone in that direction from where his
son Dharmendra and his maternal uncle ( mama ) Mohar Singh and
Santosh were returning home. They were surrounded near Lalaram’s
field and appellants Shyam Pal, Ramadhar and Arvind fired at his son as
a result he died at the spot. Mohar Singh and Santosh saved their lives
by hiding themselves. All the accused ran towards Paharpur thereafter.
As a result of these firings his father Sarman Singh, Dharmendra Singh
and his brother Sunil @ Baba have died at the spot and his wife Savitri
Devi and son Jitendra were injured. The informant was serving in Army
and had come to his home on leave. There was enmity between him and
accused Santosh, Sukhvir and Kamlesh over an abadi land. One month
prior to this incident, they had entered into compromise due to
intervention of some reputed persons but the accused were not satisfied
with this compromise and they were keeping enmity against them. His
brother-in-law Mohar Singh and nephew Sunil @ Baba had come to
meet him because his leave was over and he had to join the next day.
The accused Shyam Pal is resident of Awazpur and he is relative of
accused Santosh and Sukhvir. The informant, his brother Ganga Singh
and Mohar Singh brought his wife Savitri Devi and injured son Jitendra
to the police Outpost- Kushmara, District- Mainpuri with a written
application. The witness has proved application ( tehrir ) as Ext. Ka-1
and has stated that he brought his injured wife soon to Maharaj
Tejsingh, Hospital Mainpuri, but she died on way in between Bhogaon
and Mainpuri. He admitted his son Jitendra in the Hospital and kept his
wife’s dead body in front of the Hospital’s gate. The condition of
Jitendra was serious so he was referred to Agra. This witness has been
cross-examined to a considerable length and time by different advocates
of all the appellants and his cross-examination continued for more than
one and a half years. It is submitted on behalf of the appellants that
there are material contradictions in his statement which will be
discussed in later part of this judgment.

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CRLA No. - 7543 of 2006
11. P.W. 2 Jitendra is the injured witness and son of the informant, he
has also supported the prosecution case and has stated that on
19.08.2001 at about 07:30 a.m. he was reading over the roof along with
his brother Santosh. His mother was sweeping in the courtyard, his
grand-father Sarman Singh was cleaning garlic in front of the door of
his house. His father Om Prakash and uncle Ganga Singh had returned
from the field and were talking to his grand-father. About one day prior
to this incident his maternal uncle ( mama ) Mohar Singh and his nephew
Sunil @ Baba had come to his house. During the time of this incident
his father was on ten days leave and on the next day of this incident, he
had to go to join his duties. His maternal uncle and Sunil @ Baba had
come to meet his father. His maternal uncle Mohar Singh and brother
Dharmendra Singh had gone to see the electric wires of the transformer
and his maternal uncle’s son Sunil @ Baba had gone towards the field,
then all the nine accused carrying tamanchas came. Accused Shyam Pal
resides in village Awazpur and the rest are residents of his own village.
All the accused came abusing from western side of his house and
entered inside the courtyard. His father and uncle objected to them, then
accused Santosh and Sukhvir fired at his mother with intention to kill
causing her serious injuries. Upon hearing the sound of fire and the cry
of his mother, he and his brother Satendra raised alarm and peeped from
the roof and saw, then Ram Naresh and Kamlesh fired at him with
intention to kill as a result he himself sustained grievous injuries.
Thereafter accused rushed towards his father and uncle, who hid
themselves behind the heap of straw and saved themselves. Ram Naresh
and Kamlesh fired at his grand-father, as a result he died at the spot. His
father and uncle raised alarm to call villagers then the appellants ran
towards western side, there his maternal uncle’s son Sunil @ Baba was
coming then appellants Satyavir and Shivvir fired at Sunil @ Baba with
intention to kill and he died on the spot. Then the appellants ran towards
southern side shooting fire, from that direction his brother Dharmendra
and maternal uncle Mohar Singh were coming. Appellant Ramadhar,
Arvind and Shyam Pal fired at him with intention to kill as a result he

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CRLA No. - 7543 of 2006
died on the spot. Dharmendra was shot near Lalaram’s field and his
maternal uncle Mohar Singh and Santosh saved themselves after hiding
themselves behind the bushes. Thereafter, all the accused shot 30-35
rounds of fire to create terror and panic. The villagers were frightened
and did not chase them. His mother was alive and was taken to police
outpost- Kushmara alongwith him. There, he and his mother kept sitting
inside the jeep and his father lodged the report at the police outpost-
Kushmara. Thereafter, the Inspector came near his jeep and inquired
about the incident from him and his mother. The condition of his mother
was serious, thereafter, she was brought to Mainpuri but she scummed
to injuries before reaching the railway crossing between Boghaon and
Mainpuri. His father brought them to hospital. His condition was serious
so he was referred to S.N. Medical College, Agra. There his X-Ray was
conducted, given treatment and was operated. He remained admitted for
about one month in the hospital. There was a land dispute regarding
abadi land between his father and the appellants and a civil case is
pending in the court. Due to the above, the appellants had committed the
murder. This witness was also cross-examined at length for a
considerable period. It is submitted on behalf of the appellants that there
are material contradictions in his statement which will be discussed in
later part of this judgment.
12. P.W. 3- Dr. U.C. Chaturvedi, is the formal witness, who has
medically examined injured Jitendra Kumar, aged about 12 years, on
19.08.2021 at about 11:10 a.m. at District Hospital, Mainpuri. He found
following injuries on Jitendra Kumar:-
1. Lacerated wound of 1cm X 0.5 cm X muscle deep over
right side of abdomen 10 cm away from umbilicus. Fresh
clotted blood present. No burning or tattooing or blackening
seen. This injury was kept under observation and X-ray
advised,
2. Fire-Arm wound of entry,size 0.3 cm. X 0.3cm, X skin deep
over front of left arm 15 cm. below the tip of right shoulder.

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CRLA No. - 7543 of 2006
fresh clotted blood clot present. X-ray was advised and this
injury was kept under observation.
3. Injury no, 3 (which is shown to be injury no. 2 in the
medical report), is fire-arm wound of entry, size 0.3 cm. X 0.3
cm, over right side of upper part of chest 1.5 cm. below the
mid 1/3 of right collar bone, soft blood clot present. This injury
was kept under observation and X-ray was advised.
4. (This injury shown to be injury no. 3 in the medical report),
is fire-arm wound of entry, size 0.3 cm. X 0.3 cm. X muscle
deep over back of right hand, between base of III and IV
fingers. This injury was kept under observation and X-ray was
advised.
5. (This injury shown to be injury no. 4 in the medical report),
is fire-arm wound of entry, size 0.4 cm. X 0.4 cm, over outer
part and front side of leg 3.5 cm below the knee. Soft clotted
blood present. This injury was kept under observation and X-
ray was advised.
6. (This injury shown to be injury no.5 in the medical report),
is fire-arm wound of entry, size 0.4 cm X 0.4 cm. X over inner
side of right leg 9 cm, below the ankle. Soft blood clot present.
This injury was kept under observation and X-Ray was
advised.
13. P.W. 4 Ganga Singh, is also an eye witness of the incident, he has
also stated the same version of the incident as was stated by P.W. 1- Om
Prakash and P.W. 2 Jitendra Singh, and has stated that all the accused
were armed with deadly weapons i.e. tamanchas, came at his brother’s
(Om Prakash) house and shot fire at his bhabhi Savitri Devi, his father,
Sarman Singh, causing their death. They also shot at Jitendra and
Satendra who were sitting at the roof of the house causing injuries to
Jitendra. The accused also shot at Sunil @ Baba who was coming from
field to the western side of the house. The appellants ran towards
tubewell where they shot at Dharmendra near Lalaram’s field causing
his death. He has stated that his brother Om Prakash and Mohar Singh

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CRLA No. - 7543 of 2006
brought the injured Savitri Devi and Jitendra to police outpost
Kushmara and Om Prakash lodged the FIR and from there they took
both the injured to Mainpuri, but Savitri Devi died on the way due to the
injuries and Jitendra was admitted in District Hospital Mainpuri, where
his condition was found serious, so he was referred to S.N. Medical
College, Agra.
14. P.W. 5- Dr. R.D. Yadav, has conducted autopsy of deceased
Savitri Devi on 20.08.2001 at about 11:05 a.m. in District Hospital,
Mainpuri. He found following ante mortem injuries over the body:
1. wound measuring 6 cm. X 4 cm, on anterior aspect left for
arm; skin, muscles are missing, wound was exposed, just
above the wrist joint. Abrasion and burning present on the
margins of the wound.
2. firearm wound of entry present on the lateral 1/3 of
clavicles measuring 3.5 cm. X 3 cm. Abrasion and tattooing
present around the injuries and also the margins are everted.
3. firearm wound of exit measuring 0.5 cm x 1 cm, on the
middle of left scapular region. Margins are everted. Muscles
are coming out from the wound.
4. firearm wound of exit measuring 2 cm. x 5 cm on the left
scapular region; 2 cm, above the injury no.3. Margins are
everted and muscles and tissues coming out from the wound.
5. Left clavicle fractured at its lateral 1/3rd and part missing.
6. Left I,II,III ribs were fractured.
7. Left scapula fractured at 2 places at wounds of exit.
He has also conducted postmortem of deceased Dharmendra Singh and
found following ante - mortem injuries:-
1. fire arm wound of entry 4.2 cm X 2.5.cm, on the left part of
nose, upper lip and left ramous of mandible. Tattooing and
burning present on the margins of wound and also on the
tongue.

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CRLA No. - 7543 of 2006
2. Maxilla fractured and missing alongwith upper four
incisor, teeth hard palate and nasal bones are fractured. Part
of hard palate missing.
3. firearm wound of exit 12 cm. X 4.5 cm, on the left Parietal
region. Durameter and brain material coming out.
4. fire arm wound of exit 5 cm X 3 cm, on the left posterior-
supirio part of right parietal region. Right parietal and
occipital bones are fractured. Dura and brain material
coming out.
5. firearm wound of exit measuring 3cm X 3 cm on the top of
head. Both occipital and parietal bones are fractured. Dura
and brain material coming out.
6. firearm wound of entry measuring 0,4 cm, X 0.4 cm
(diagram of the wound in the injury around which tattooing
and abrasion are mentioned) on the left hypochondriac
region. Margins inverted and burning present.
7. firearm wound of entry 0.5 cm X 0.5 cm, on the right
lateral border of abdomen just above illiac crushed. Margins
inverted.
He has also conducted postmortem of deceased Sunil @ Baba and found
following ante - mortem injuries:
1. fire arm wound of entry measuring 1 cm x 1 cm on the right
temporal region (diagram of injury made in which around the
wound tattooing and abrasions were shown lacerated.
2. fire arm wound of entry 4 cm X 3 cm, on the root of nose,
forehead between both eye brow and between bony socket of left
ball. The nasals bones, parietal bones and bones of both bony
socket of eye balls fractured.
3. wound exit measuring 2.5 cm x 1 cm extending from the left
eye brow alongwith the left parietal region to the posterior-
superior part of the right parietal region. Membranes and brain
material missing.

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CRLA No. - 7543 of 2006
4. Both frontal, both pallets and occipital, right temporal bone
fractured in pieces.
5. fire arm wound of entry measuring 1,5 cm x 1 cm, on the chest
medial to the anterior field of axilla of right side. Margins are
inverted and tattooing present on the margins.
6. Multiple firearm wounds of entry, measuring 0.3 cm. X 0.3
cm, distributed in an area of 20 cm x 14 cm, on the back right
region; right lateral border of abdomen just above the right
illiac crushed. Margins are everted, .
He has also conducted postmortem of deceased Sarman Singh and found
following ante - mortem injuries:-
1. Cruciform wound of entry measuring 3.4 cm. X 2.1 cm, on
the left temporal region (some part of P.M. torn) margins are
inverted; tattooing Present around the margins of wound, just
in front of root of the left ear.
2. Left temporal muscle (P.M. torn) eye socket and right
Parietal bone were fractured.
3. fire arm wound of exit, measuring 8.5 cm X 7 cm, on the
right temporal region extending from outer angle of right eye to
the root of right ear and below up to right angle of mandible
including lower part of right ear. Membrance and brain
material coming out.
4. Right temporal, right maxilla, right mandible, bony socket of
right ball fractured.
5. fire arm wound of entry 9 cm X 4 cm, on the left hypo-
humdrum present. Margins are inverted and tattooing present.
6. wound of exit measuring 15 cm X 7 cm, on the back ravel
region present. Abdominal Viscera are coming out.
7. Left 10,11,12 ribs are fractured at its posterior part.
15. The defence did not cross-examine the above witness despite
being given an opportunity.

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CRLA No. - 7543 of 2006
16. P.W. 6 Asht Muni, is the formal witness, who being posted as
Head Constable at Police Station- Kisni on 19.08.2001, prepared inquest
of deceased Dharmendra Singh, Sunil @ Baba and Sarman Singh along
with related papers, at the direction of Station House Incharge A.K.
Tyagi and also proved his signature over the fard baramadagi of taking
into the possession the sample of plain concrete and blood-stained
concrete from roof of house of the informant and plain-earth and blood-
stained earth from places where Savitri Devi was shot and where dead
body of deceased Sarman Singh, Sunil @ Baba and Dharmendra Singh
was found. He has also proved the recovery memo of empty cartridges
found at the place of occurrence, despite being given opportunity this
witness is also not been examined by the defence.
17. P.W. 7- S.I. Anuj Kumar Tyagi has investigated the case and has
stated that injured Savitri Devi met him at Police Outpost- Kushmura
and recorded her statement there. The other injured Jitendra was also
there and his statement was also recorded, their condition was serious so
after preparing chitti majrubi , they were sent to Hospital. Thereafter, he
reached at the place of occurrence(s) and the dead body of deceased
Dharmendra was found to the south of village where at his direction
inquest was prepared by Asht Muni. Three empty cartridges 315 bore
were found from near the place where the dead body was found and its
fard baramadagi was prepared. Thereafter, the inquest of deceased
Sunil @ Baba and Sarman Singh were prepared at his direction and fard
baramadagi of empty cartridges, plain earth and blood-stained earth
found near the dead bodies, was prepared. Sample of plain earth and
blood-stained earth was taken from the courtyard of the house alongwith
two empty cartridges 315 bore and one empty cartridge 12 bore. Its fard
baramadagi was also prepared. The sample of concrete and blood-
stained concrete was taken from the roof of the informant’s house and
its fard baramadagi was prepared. The three dead bodies were sent to
District Hospital, Mainpuri for post-mortem . The same day, Om Prakash
met and told him that Savitri Devi had died before reaching the
Hospital. He recorded statement of informant Om Prakash and at his

16
CRLA No. - 7543 of 2006
pointing out prepared site-plan of the place(s) of occurrence. He
arrested accused and recorded their statements. Appellant Sukhvir was
arrested carrying a tamancha 315 bore alongwith two live cartridges
regarding which a separate Case No. 259 of 2001 was registered. He
recorded statements of witnesses and filed charge-sheet (Ext. Ka-13) in
the Magistrate’s Court. The defence did not cross-examine this witness.
18. P.W. 8- Constable Ram Kumar Singh is the formal witness who
has proved the chik FIR and copy of G.D. as Ext. Ka-39 and Ext. Ka-40,
respectively, scribed on the basis of ( tehrir ) given by the informant Om
Prakash.
19. In his cross-examination, he has said that the entry of SO Anuj
Kumar Tyagi is not mentioned in G.D. No. 12 dated 19.08.2001. He
does not remember whether on 19.08.2001, the I.O. had reached at
Police Outpost- Kushmura. According to G.D. No. 12, the presence of
I.O. at Police Outpost- Kushmura on 19.08.2001, is not there. It is
correct that both the injured were brought to the Police Outpost-
Kushmura. A special report of the crime was sent through constable
Krishna Swaroop by G.D. No. 17 dated 19.08.2001 at 11.30 a.m. to
headquarter. His return is not mentioned in G.D dated 19.08.2001. The
injured were soon sent to hospital after the FIR was lodged. The injured
kept sitting in jeep so there was no blood dropped at the Police Outpost.
20. P.W. 9- S.I. Satyapal Singh, is the person who prepared inquest of
deceased Savitri Devi at District Hospital, Mainpuri on 19.08.2001 at
02.:10 p.m. alongwith its related papers which the eye-witness has
proved as Ext. Ka- 41 to 45.
21. In his cross-examination, he has said that as per the memo from
the doctor, Savitri Devi had died during treatment in the hospital. In
memo Ext. Ka-46, it is written that the deceased was brought by her
husband in dead condition in hospital. He had heard about the murder of
Savitri Devi in Kotwali but did not try to note the crime number and
section of the crime. It is true that the crime number is not mentioned in

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CRLA No. - 7543 of 2006
the inquest and other related papers. He had completed inquest on
19.08.2001 at 03.30 p.m.
22. After closure of prosecution evidence, the statement of appellants
under Section 313 Cr.P.C. were taken in which they denied the
prosecution case and have stated that false case has been lodged against
them, due to enmity and partybandi . Witnesses have deposed against
them due to enmity. Except for appellant Shyam Pal rest of the
appellants have stated that Ganga Singh had earlier falsely implicated
the absconded accused Rajveer in many cases and he has committed
these murders alongwith his companions. Due to fear, the informant
instead of lodging the FIR against Rajveer, has lodged false case against
them. Accused Shyam Pal has stated that he is resident of the same
village and has been falsely implicated in this case due to partybandi .
He has no concern with other co-accused and does not even know them.
23. The defence has filed chik FIR of Case Crime No. 34 of 2006
under Sections- 147, 148, 149, 307, 302 IPC as Ext. Kha-1. The defence
also summoned the ballistic expert to controvert the prosecution case,
but at the time of examination-in-chief, D.W. 1 Shri Ram Asrey Pandey,
requested for pellets recovered from near the dead body of deceased
Dharmendra Singh to give a concrete opinion, but the prosecution failed
to produce them as they were not available in Malkhana of Police
Station or in Sadar Malkhana of the district. Thereupon, the defence
endorsed on record that now it will not produce ballistic expert as
defence witness. The defence has not examined any other witness in
support of their contention.
24. After hearing argument of learned Counsel for the parties and
perusal of record, the learned Trial Court observed that the prosecution
has proved its case beyond reasonable doubt. The FIR was lodged
promptly and there is no delay in lodging the FIR. The FIR was not
ante-timed. The statements of witnesses were consistent and reliable.
There were no contradictions between the ocular and medical evidence
and accordingly, the learned Trial Court found the appellants guilty of

18
CRLA No. - 7543 of 2006
the offence and convicted and sentenced them to the term as indicated
above.
25. Heard the rival submissions of learned Counsel for the parties and
learned A.G.A for the State and perused the record.
26 . It is submitted on behalf of the appellants that prosecution has
failed to prove its case beyond reasonable doubt. The first argument, on
technical point, is raised on behalf of the appellants that as per the
prosecution, four persons were murdered in the incident and for charge
framed against the appellants for the offence punishable under Section
302 read with 149 IPC. name of one of the deceased Sunil @ Baba is
not mentioned in it, thus, the charge was defective, which cost prejudice
to the appellants and thus, this omission or error has occasioned failure
of justice. So on this ground, the impugned judgment and order is not
sustainable, and in its support the appellants have relied upon case in
Criminal Appeal No. 122 of 2021 (Kali Charan and Others Vs. State
of U.P.) decided on 14.12.2022, of Supreme Court, which will be
discussed in later part of this judgment. It is also submitted that there
was no motive on the part of the appellants to commit the said crime,
the prosecution has failed to prove motives and thus, the prosecution has
not been able to prove its case beyond reasonable doubt. It is also
submitted that the presence of P.W. 1 Om Prakash, P.W. 2 Jitendra Singh
and P.W. 4 Ganga Singh at the place of occurrence(s) is highly doubtful
and particularly those of P.W. 1 Om Prakash and P.W. 4 Ganga Singh,
because if they were also present at the place of occurrence then there
was no reason why the appellants would have spared them unhurt. It is
further submitted that as per prosecution the alleged incident occurred at
three different places and it is highly unlikely and also there is no
evidence that P.W. 1, Om Prakash, P.W. 2 Jitendra Singh and P.W. 4
Ganga Singh were present at all these three places, therefore, their
testimony with regard to the entire incident(s) is not believable. It is also
submitted that the statement of P.W. 4 Ganga Singh under Section 161
Cr.P.C. was recorded at belated stage by the Investigating Officer, which
raises doubt over his testimony. It is also submitted that the ocular

19
CRLA No. - 7543 of 2006
testimony is not supported by medical evidence and there are major
contradictions in it which raises serious doubt over the prosecution case.
It is further submitted that the prosecution has failed to examine
material witnesses of fact namely Mohar Singh and Santosh Singh,
whom the prosecution says that they witnessed the murder of
Dharmendra Singh @ Ballu. Therefore, non-production of these
witnesses raises serious doubt over the prosecution case. It is also
submitted that witness Ganga Singh, had lodged several reports against
Gangster Rajvir and Kalua was on visiting terms with the informant,
due to this he would have committed the aforesaid murders and the
appellants have been falsely implicated in this case. It is also submitted
that it is highly unlikely that each of the murder would be committed by
the other members or other persons of the group rather than by the
persons who allegedly shot the earlier deceased. The appellants have
relied upon case law (State of U.P. and Another Vs. Jaggo @ Jagdish
and Others) 1971 (2) Supreme Court cases 42, (Shahid Khan and
Others Vs. State of Rajasthan) 2016 (4) SCC 1996, which shall be
discussed in later part of this judgment.
27. On the other hand, learned A.G.A and learned Counsel for the
informant submitted that the prosecution case is proved beyond
reasonable doubt, the FIR was prompt and contains the original and true
version of the incident. It was registered in a state of panic, shock and
urgency. All the nine appellants are named in the FIR and their names,
roles and weapons are mentioned in it. It is further submitted that minor
contradictions are natural, and happen if the witness is cross-examined
at length. The core prosecution story remains consistent in all essential
particulars, therefore, minor contradictions have no bearing over the
testimony of witnesses of fact. It is next submitted that the three
material eye-witnesses namely informant Om Prakash, Ganga Singh and
injured Jitendra Singh have supported the prosecution story, and, their
presence at the spot is natural and well explained. So far as the, eye
witness Mohar Singh is concerned, he has died therefore, he could not
be examined before the court. There was motive for the appellants to

20
CRLA No. - 7543 of 2006
commit this gruesome murder, because there was a land dispute
between the informant and the appellants and due to this the appellants
had developed enmity against the informants. The medical evidence
fully corroborates the ocular testimony of the three eye-witnesses. The
weapon recovered at the instance of appellant Sukhvir matches the
cartridges, bullet recovered from the spot in the ballistic examination
report which corroborates the prosecution case. It is also submitted that
all the nine accused were armed with deadly weapons and all of them
have actively participated in the crime, therefore, the crime was
committed, in furtherance of common intention, as such, every member
of the unlawful assembly is liable for the acts committed by the other. It
is also submitted that before 2005, witness Ganga Singh had no criminal
history and had no motive to falsely implicate the appellants. It is also
submitted that the alleged incident occurred in the day light and the
witnesses had seen the occurrence and there was no reason why they
would implicate the innocent and spare the real culprits. The manner in
which the murders were committed show that the appellants were in
state of intense rage, it was a massacre, indiscriminate killings of
children and elderly persons and woman which shows that the
appellants had deep rooted motive and pre-meditation.
28. Prosecution has drawn the attention of the Court on different case
laws such as 2005 (5) SCC 554 (State of Madhya Paradesh Vs.
Saleem @ Chamaru and Another); (2011) 1 SCC (Criminal) 381
(State of U.P. Vs. Krishna Master and Others); AIR 2016 SC
(Criminal) 1461 Bhagwan Jagannath Markad and Others Vs. State
of Maharashtra; Criminal Appeal No. 1423 of 2007 Abdul Sayeed
Vs. State of Madhya Pradesh, Supreme Court decided on
14.09.2010; Criminal Appeal No. 297 of 1992 Leela Ram(D) through
Duli Chand VS. State of Haryana and Another, Supreme Court
decided on 06.10.1999, which shall be discussed in later part of this
judgment. So far as Saleem @ chamaru (supra) is concerned that case
law relates to imposing adequate sentence and as in this case

21
CRLA No. - 7543 of 2006
prosecution has not challenged the adequacy of sentence imposed, so
this ruling has no application in this case.
29. The first submission on behalf of the appellants is that charge
against them was defective and in charge No. 3 dated 27.08.2002 the
name of deceased Sunil @ Baba is missing which is framed for offence
punishable under Section 302 read with 149 IPC. In view of the above
omission of the name of deceased Sunil @ Baba, the appellants have
been misled and it has resulted in failure of justice and this error and
omission has caused prejudice to the appellants. Learned counsel for the
appellants has relied upon a judgment of the Hon’ble Supreme Court in
Criminal Appeal No.122 of 2021 (Kali Charan and Others Vs. State
of U.P.) dated 14.12.2022 , in which the it was held that the object of the
provisions in Chapter XVII in Cr.P.C., regarding framing of charge is
obviously to make the accused aware of the accusations against him on
the basis of which prosecution is seeking to convict him. The object of
the provisions regarding framing of charge is that, accused should be in
a position to effectively defend himself and the accused can properly
defend himself provided he should be clearly informed about the nature
of the allegations against him before the actual trial starts. The relevant
part of the judgment is extracted here in below:-
“19. Section 215 lays down when errors in the particulars
required to be stated in the charge can be treated as material. It
lays down that the error cannot be said to be material unless
the accused was misled by such error or omission and that such
error or omission has caused a failure of justice. Section 464
deals with effect of error or omission made while framing
charges on the finding and sentence of the competent Court.
The Section provides that the finding and sentence of the Court
cannot be invalid merely on the ground of error in framing
charge or omission in framing charge. The finding and sentence
will be invalid only if in the opinion of the Court of appeal, the
error or omission has occasioned a failure of justice.
20. When the Court of appeal is called upon to decide whether
any failure of justice has been occasioned due to omission to
frame a charge or error in the charge, the Court is duty bound
to examine the entire record of the trial including all exhibited

22
CRLA No. - 7543 of 2006
documents, depositions and the statements of the accused
recorded under Section 313.”
30. In the above said case the Hon’ble Supreme Court observed that no
questions were asked under Section 313 Cr.P.C. in statement of accused
about post-mortem of the body of Harpal Singh, it was not put to the
witness that cause of death of Harpal Singh was due to hemorrhage and
shock as a result of injuries caused by sharp weapons. In view of the
above it was held that if the accused is not explained the important
circumstances appearing against him in the evidence, of which his
conviction is sought to be based, the accused will not be in a position to
explain the said circumstances brought on record against him and he
will not be able to properly defend himself.
31. Section 215 and 464 of the Code of Criminal Procedure,1973,
deal with such matters. Section 215 reads that ‘no error in stating either
the offence or the particulars required to be stated in the charge, and no
omission to state the offence or those particulars, shall be regarded at
any stage of the case as material, unless the accused was in fact misled
by such error or omission, and it has occasioned a failure of justice’.
32. Section 464 reads that ‘no finding sentence or order by a Court of
competent jurisdiction shall be deemed invalid merely on the ground
that no charge was framed or on the ground of any error, omission or
irregularity in the charge including any misjoinder of charge, unless, in
the opinion of the Court of appeal, confirmation or revision, a failure of
justice has in fact been occasioned thereby’.
33. A combined reading of the above provisions shows that the object
of these sections is to prevent failure of justice and the irregularity in
framing of the charge, is not fatal unless there is prejudice caused to the
accused. The mere omission to frame the charge or a mere defect in the
charge is no ground for setting aside a conviction. In Kahan Singh Vs.
State of Haryana (1971) 3 SCC 216 , it has been laid down that
procedural laws are designed to subserve the ends of justice and not to
frustrate them by mere technicalities. The object of the charge is to give

23
CRLA No. - 7543 of 2006
the appellants notice of the matter he is charged with . If the necessary
information is conveyed to him and ends of justice is caused to him
because of the charges, the appellants succeeds merely showing that the
charges framed were defective nor could conviction recorded on charges
under wrong provisions be reversed, if the accused were informed of the
details of the offences committed, and thus no prejudice was caused to
him. In Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615, it
was held that unless there is a failure of justice and thereby the cause of
the accused has been prejudiced, no interference is required if the
conviction can be upheld on the evidence led against the accused. The
Court should not interfere unless it is established that the accused was in
any way prejudiced due to the errors and omissions in framing the
charges against him.
34. The other section relevant for our purpose is Section 465 of the
Cr.P.C., which lays down that no finding, sentence or order passed by a
Court of competent jurisdiction shall be reversed or altered by a Court
of appeal, confirmation of revision on account of any error, omission or
irregularity in the proceedings, unless in the opinion of that Court, a
failure of justice has in fact been occasioned. It further provides, inter
alia , in determining whether any error, omission or irregularity in any
proceeding under this Code, has occasioned a failure of justice, the
Court shall have regard to the fact whether the objection could and
should have been raised at an earlier stage in the proceedings. In
judging the question of prejudice as of guilt, the Court must look to the
substance of the matter and not to technicalities, and its main concern
should be to see whether the accused had a fair trial, whether he knew
what he was being tried for, whether the main facts sought to be
established against him were explained to him, fairly and clearly and
whether he was given a full and fair chance to defend himself.
35. In view of the above legal position, if we look into the present
case then the prosecution case is that all the nine appellants came to the
house of the informant, armed with deadly weapons, and in the incident
committed murder of Dharmendra Singh, Sarman Singh, Savitri Devi

24
CRLA No. - 7543 of 2006
and Sunil @ Baba. The charge was framed by the trial court on
27.08.2022 and with regard to offence punishable under Section 302
read with 149 IPC, inadvertently, omitted the name of deceased Sunil @
Baba as one of the deceased. Charge No.3 as framed by the learned trial
court is reproduced here in below:-
“ Thirdly , that on the aforesaid date time and place you
with common object intentionally committed murder of
Dharmendra Singh, Sarman Singh and Savitri Devi and
thereby you committed an offence punishable u/s 302 read
with section 149 I.P.C. and within the cognizance of
this Court.”
It shows the names of three deceased as mentioned in it, except Sunil @
Baba. The evidence led on behalf of the prosecution is with regard to all
the four deceased.
36. More importantly, the witnesses of fact have given details of
murder of deceased Sunil @ Baba also, committed by the appellants and
on this point they were cross-examined at length by the defence and
after closure of prosecution evidence, statements of accused were
recorded under Section 313 Cr.P.C. As per prosecution case Sunil @
Baba was shot by appellants Satyavir and Shivvir, and it would be
proper to quote Question No. 9, asked from the accused, in their
statement recorded under Section 313 Cr.P.C., which reads as follows …
" 9-
प्रश्न नं  अभि यो
जनं सा क्ष्यो है कि उक्त किनं  सामयो व
स्था नं पर आप सात्योवर व भिववर नं व !  सा ले 
( ) ,
लेड़  सा$नंले उर्फ& बा बा ( गो
ले प्रहै र र हैत्यो र !
?
जिजसा साम्बान्ध म. आप 
क्यो हैनं है
- "
उत्तर गोलेत है ।
37. The above question reads that as per prosecution evidence
appellants Satyvir and Shivvir had shot dead Sunil @ Baba, the son of
informant's brother-in-law, to which they answered ' ' (it is
गोलेत है 
incorrect) . Thereafter, the appellants were given opportunity to lead
evidence in their defence, In view of the above, the appellants knew
from the beginning that they are charged for murder of deceased Sunil

25
CRLA No. - 7543 of 2006
@ Baba also, therefore, the error/ omission in charge with regard to the
name of Sunil @ Baba in charge no. 3, has not misled the appellants
which would have occasioned the failure of justice and no prejudice has
been caused to the appellants due to such omission of name in the
charge. In view of the above discussion, we are of the considered
opinion that such omission in the charge has no adverse bearing over the
prosecution case.
38. As we know, in a criminal case the burden of proof lies upon the
prosecution to prove its case beyond reasonable doubt. In the present
case, the incident occurred on 29.08.2001 at 07:30 a.m. The FIR was
lodged the same date at 10:00 a.m., i.e., after two and a half hours of the
incident. The incident occurred in Village- Nagla Bandh, Hamlet of
Village Mudausi under Police Outpost Kushmura, Police Station- Kisni
District- Mainpuri. As per chik FIR the distane from the place of
occurrence to the Police Outpost- Kushmura is 8 kilometers. The FIR
was lodged by informant Om Prakash, who has said that after the
incident, he took his injured wife Savitri Devi and injured son Jitendra
to the Police Outpost- Kushmura in Jeep, it took 30-45 minutes to
arrange the jeep and about one and half hour to reach at the Police
Outpost- Kushmura. He wrote down the written application ( tehrir ) at
round about Kushmura and submitted it at the reporting Police Outpost-
Kushmura. It has come in evidence informant's brother Ganga Singh
and Mohar Singh accompanied him to the Police Outpost along with the
injured.
39. P.W. 8 Constable Ram Kumar Singh, is the scribe of the chik FIR.
The inquest of all the deceased was prepared the same day. Therefore,
the FIR was lodged promptly and it has not been specifically challenged
by the defence.
40. So far as the place of occurrence is concerned, according to the
prosecution the incident took place at three different places, the first
incident occurred at the house of the informant where his wife Savitri
Devi was shot causing her serious injuries and informant's father

26
CRLA No. - 7543 of 2006
Sarman Singh was shot dead. The second incident occurred near the
tubewell in village Nagla Bandh where Sunil @ Baba was shot dead. As
per prosecution Sarman Singh was shot dead at the door of the house
and Savitri Devi was shot and injured in Verandah. Informant's son
Jitendra was also shot and injured while he was at roof of the house.
Deceased Sunil @ Baba was returning home from the side of
transformer when he was shot and Dharmendra Singh was shot near
Lala Ram's field. The Investigating Officer reached at the place of
occurrences and found dead bodies of Sarman Singh, Dharmendra
Singh, Sunil @ Baba at the places alleged by the prosecution. He also
collected blood-stained earth and empty cartridges from near the dead
bodies. He prepared site-plan at the instance of informant in which he
has shown all the relevant things. The defence has not put any
suggestion or gave any other alternative place of occurrence. Thus, in
fact the defence has not challenged the place of occurrence. P.W. 1 Om
Prakash, P.W. 2 Jitendra and P.W. 4 Ganga Singh, the three eye
witnesses of the incident have stated on oath that the incident occurred
at these three places. In view of the above, the place of occurrence is
fully established.
41. The perusal of post-mortem reports of all the four deceased and
injury report of injured Jitendra shows that all of them sustained
indiscriminate gunshot wounds resulting to injuries over their body. The
cause of death of all the four deceased was hemorrhage and shock as a
result of gun shot injuries which means that all of them were shot dead.
The prosecution case is that it were the appellants who committed such
offence in furtherance of their common object. To prove its case, the
prosecution has examined P.W.1 Om Prakash, P.W. 2 Jitendra and P.W. 4
Ganga Singh as eye-witness of the incident. P.W. 1 Om Prakash is the
informant and his father Sarman Singh, wife Savitri Devi and son
Dharmendra Singh were murdered in this incident. His brother-in-laws
son Sunil @ Baba was also killed. A perusal of his statement shows that
he was cross-examined for about one and half years by different sets of
advocates from the side of accused. There is a very lengthy cross-

27
CRLA No. - 7543 of 2006
examination and if we look into the entire testimony then it shows that
the witness is consistent, reliable and trustworthy, with regard to the
prosecution case. He has deposed that all the nine appellants came to his
house armed with country-made pistol by giving a detail who carried
which firearm and has said that it were appellants Santosh and Sukhvir
who shot at his wife Savitri Devi; appellants Kamlesh and Ram Naresh
shot at his son Jitendra and other son Satendra; appellants Ram Naresh
and Kamlesh also shot at his father Sarman Singh, appellants Sayavir
Singh and Shivivr Singh shot at his brother-in-laws son Sunil @ Baba
and appellant Ram Pal, Ramadhar and Arvind shot at his son
Dharmendra Singh. He has also said that appellant Ram Naresh,
Ramadhar, Satyavir and Shivivr are real brothers and are sons of
Kamlesh's maternal uncle (mama). Appellant Arvind is Ram Nareshs'
son and appellant Shyam Pal resides in Azadpur and he is acquainted
with Santoh and Sukhvir.
42. P.W. 2 Jitendra, is the injured witness, he has also supported the
prosecution case. He has also been cross-examined at length but no
material contradiction has come in his statement. P.W. 4 Ganga Singh is
the younger brother of the informant, he has also supported the
prosecution case and has described the manner in which the incident
took place and in what manner the appellants took participation in the
crime. If we take into account their entire deposition then it comes out
that they are consistent, reliable and trustworthy. It is submitted on
behalf of appellants that there are major contradictions in their
statements therefore their testimony is not reliable. We do not agree with
this submission. If a witness is cross-examined for days and months
then some contradictions are bound to happen in their statement and if
that contradiction does not shake the root of the prosecution case then
such minor contradictions would have no bearing over the prosecution
case.
42. In the case Krishna Master and Others (Supra) , the
Supreme Court observed that the material witness was cross-
examined for days together on the point as to where and in

28
CRLA No. - 7543 of 2006
which direction houses of Kailash, Rajaram Subedar, Darbari,
etc. were situated.
It was held that “such an attempt by the defence lawyer can
hardly be approved. On re-appreciation of evidence of
Jhabbulal, this Court finds that he has not made major
improvements in his testimony before the Court and the so-
called discrepancies which are blown out of proportion by the
High Court are minor in nature and do not relate to the
substratum of the prosecution story.”
43. With regard to evidence of a child witness it was further held
that “This Court fails to understand as to on what principle and
on which experience in real life, the High Court made a
sweeping observation that it is inconceivable that a child of
Madan Lal's understanding would be able to recapitulate facts
in his memory witnessed by him long ago. There is no principle
of law known to this Court that it is inconceivable that a child of
tender age would not be able to recapitulate facts in his memory
witnessed by him long ago. This witness has claimed on oath
before the Court that he had seen five members of his family
being ruthlessly killed by the respondents by firing gunshots.
When a child of tender age witnesses gruesome murder of his
father, mother, brothers, etc. he is not likely to forget the incident
for his whole life and would certainly recapitulate facts in his
memory when asked about the same at any point of time,
notwithstanding the gap of about ten years between the incident
and recording of his evidence. This Court is of the firm opinion
that it would be doing injustice to a child witness possessing a
sharp memory to say that it is inconceivable for him to
recapitulate facts in his memory witnessed by him long ago. A
child of tender age is always receptive to abnormal events which
take place in his life and would never forget those events for the
rest of his life. The child would be able to recapitulate correctly
and exactly when asked about the same in future.”
43 . In the case Bhagwan Jagannath Markad and Others (Supra) , the
Supreme Court has held that:-
“While appreciating the evidence of a witness, the court has to
assess whether read as a whole, it is truthful. In doing so, the
court has to keep in mind the deficiencies, drawbacks and
infirmities to find out whether such discrepancies shake the
truthfulness. Some discrepancies not touching the core of the case
are not enough to reject the evidence as a whole. No true witness
can escape from giving some discrepant details. Only when
discrepancies are so incompatible as to affect the credibility of

29
CRLA No. - 7543 of 2006
the version of a witness, the court may reject the evidence. It is
not every discrepancy which affects the creditworthiness and the
trustworthiness of a witness. There may at times be exaggeration
or embellishment not affecting the credibility. The court has to
sift the chaff from the grain and find out the truth. A statement
may be partly rejected or partly accepted. Want of independent
witnesses or unusual behaviour of witnesses of a crime is not
enough to reject evidence. A witness being a close relative is not
enough to reject his testimony if it is otherwise credible. A
relation may not conceal the actual culprit. The evidence may be
closely scrutinised to assess whether an innocent person is falsely
implicated. Mechanical rejection of evidence even of a
“partisan” or “interested” witness may lead to failure of
justice.” It was also held that “As already observed, the
discrepancies of trivial nature could not be the basis of rejecting
the evidence of injured eyewitnesses nor non-examination of
some of the witnesses be a ground to reject the prosecution case
when injured eyewitnesses were examined.”
44 . “ In Bhag Singh & Ors. v. State of Punjab (1997) 7 SCC 712,
while dealing with a similar contention, the Supreme Court observed:
"It is a general handicap attached to all eyewitnesses, if they fail
to speak with precision their evidence would be assailed as
vague and evasive, on the contrary if they speak to all the events
very well and correctly their evidence becomes vulnerable to be
attacked as tutored. Both approaches are dogmatic and fraught
with lack of pragmatism. The testimony of a witness should be
viewed from broad angles. It should not be weighed in golden
scales, but with cogent standards. In a particular case an
eyewitness may be able to narrate the incident with all details
without mistake if the occurrence had made an imprint on the
canvas of his mind in the sequence in which it occurred. He may
be a person whose capacity for absorption and retention of
events is stronger than another person. It should be remembered
that what he witnessed was not something that happens usually
but a very exceptional one so far as he is concerned. If he
reproduces it in the same sequence as it registered in his mind
the testimony cannot be dubbed as artificial on that score
alone."
46. In the instant case P.W.2 Jitendra is injured witness and his
presence at the place of occurrence can not be doubted. With
regard to testimony of injured witness, in the case of Abdul
Sayeed (Supra) , the Supreme Court has held that:-

30
CRLA No. - 7543 of 2006
“26. The question of the weight to be attached to the evidence of
a witness that was himself injured in the course of the occurrence
has been extensively discussed by this Court. Where a witness to
the occurrence has himself been injured in the incident, the
testimony of such a witness is generally considered to be very
reliable, as he is a witness that comes with a built-in guarantee of
his presence at the scene of the crime and is unlikely to spare his
actual assailant(s) in order to falsely implicate someone.
"Convincing evidence is required to discredit an injured witness.
………………………………..
28. The law on the point can be summarised to the effect that the
testimony of the injured witness is accorded a special status in
law. This is as a consequence of the fact that the injury to the
witness is an in-built guarantee of his presence at the scene of the
crime and because the witness will not want to let his actual
assailant go unpunished merely to falsely implicate a third party
for the commission of the offence. Thus, the deposition of the
injured witness should be relied upon unless there are strong
grounds for rejection of his evidence on the basis of major
contradictions and discrepancies therein.”
45. The appellants have submitted that the presence of P.W. 1, Om
Prakash and P.W 4 Ganga Singh at the place of occurrence is highly
doubtful and had they been present there the appellants would also have
attacked and killed them but they have not sustained any injuries.
Further, it has also argued that if such an incident is occurred in their
presence then should have reacted and attacked the appellants, the first
informant was a soldier in army having rifle and he should have used
the rifle to protect his family. Secondly, P.W. 4 Ganga Singh who should
also have reacted in the same manner, thus, their presence at the spot is
doubtful. We do not agree with this submission, once an offence like
this takes place then each person who witnesses the incident reacts in
his own way.
46. In Rana Pratap v/s State of Haryana AIR 1983 SC 680, (1983) 3
SCC 327 at page 330, the Supreme Court observed:
“Every person who witnesses a murder reacts in his own way.
Some are stunned, become speechless and stand rooted to the
spot. Some become hysteric and start wailing. Some start
shouting for help. Others run away to keep themselves as far
removed from the spot as possible. The others rush to the rescue

31
CRLA No. - 7543 of 2006
of the victim, even going to the extent of counter attacking the
assailants. Every one reacts in his own special way. There is no
such rule of natural reaction. To discard the evidence of a witness
on the ground that he did not react in any particular manner is to
appreciate evidence in a wholly unrealistic and unimaginative
way.”
47. It has come in evidence that it was cold-blooded murder, the nine
appellants were armed with firearms, the incident took place suddenly
giving no chance to the informant to collect his rifle from the house and
fire in self defence, beside this in such a horrible incident, the first
reaction of the first informant and Ganga Singh would have been to save
themselves and they have stated that they hid themselves behind a heap
of straw ( bhoose ka coop ), thus, by not reacting in the manner as alleged
by the appellants is not a ground to reject testimony of both these
witnesses.
48. It is further submitted on behalf of the appellants that there are
major contradictions, in the testimony of P.W. 1 and P.W. 4 as well as
P.W. 2 Jitendra, which raises doubt over their statements. The appellants
have drawn attention of this Court to the following statements of P.W. 1,
P.W.2 and P.W.4 :-
P.W.1 Om Prakash :-
"
प चा योत म. पचा4 नं म र म नं सा ज$ड़! है$ई जगोहै म$झे
.
कि ले ई था।……… प
चा योत म. योहै  तयो है$आ था कि
,
जगोहै  बाले 8सार! जगोहै  ! ज यो म र म  नं  उत्तर
8सार! सा इड म. जगोहै कियो ज नं तयो है$आ था ।…………
प चा योत  बा  घटनं है
नं त विवव कित जमनं पर
"
म$ल्जम नं नं ब्ज रनं  प्रयो सा नंहै! कियो ।
P.W.4 Ganga Singh :-
"
प चा योत ओम प्र  ( मAज8गो म. है$ई। पचा योत है
नं
 बा  अभियो$क्तगोण नं विवव कित जमनं 
ब्ज रनं
"
 प्रयो सा नंहै! कियो ।
P.W.1-Om Prakash :-

32
CRLA No. - 7543 of 2006
"
यो ले
गो ट्यो8बाव ले ( तरर्फ गो ले गोलेAज  त है$ए म र
आ गोनं म. घ$सा आयो जसा है! मEनं व म र  ई गोगो भिसाहै नं
..
 खा व ट
 ……
म र व म र गो गो भिसाहै  भिचाल्ले नं पर सा म$जिल्जम नं म र
, ...
विपत ज व म र  ई पर झेपट ।………
म$जिल्जम नं र्फ योर र रहै था म$झे पर व म र  ई पर
.
हैव ई हैमले कियो था ।……………
जबा म र ऊपर झेपट था तबा म$जिल्जम नं नं म$झे  खा भिलेयो
था ।
जबा अभि यो$क्तगोण अर आ रहै था तबा मEनं उन्है. ट

"
था ।
P.W.2- Jitendra :-
"
रव ज पर म र विपत ज व गोगो भिसाहै नं म$जिल्जम नं4 
ट
 था ट
नं पर म$जिल्जम नं नं म र विपत पर र्फ योर नंहै!
, "
कि यो था म र! म H  ऊपर र्फ योर कियो था ।
P.W.4- Ganga Singh:-
"
मEनं व म र  ई ओम प्र  नं जबा म$जिल्जम नं हैम र
घर म. घ$सा रहै था मE त  उनं
ट
 था । जबा मEनं ट

..
तबा उनं ले
गो4 नं हैम 
नं4 पर र्फ योर नंहै! कियो था ।……

मEनं व म र  ई नं म$जिल्जम नं 
ट
 था तथा लेले र
..
था एव पछा कियो था ।………
"
ओम प्र   है! म$जिल्जम नं4  म$ख्यो लेक्ष्यो था ।
49. If we look into the entire testimonies of P.W. 1 Om Prakash, P.W.
2 Jitendra and P.W. 4 Ganga Singh then the above quoted statements did
not come within the category of major contradictions to shake the
prosecution case. When the witness is cross-examined at length for so
many months and even years (as is the case with P.W.1), then such
contradictions are normal to happen.

33
CRLA No. - 7543 of 2006
50. When an incident like this happens in quick succession within
minutes, the assailant(s), the victim(s) and the witness(es) are not
expected to keep stand still but they keep moving, either to attack or
protect themselves, as the case may be, so the observation of such an
incident by one person may vary from the other. It has come in evidence
that informant Om Prakash serving in Army, had come on leave to his
house. His brother Ganga Singh was also there. His injured son Jitendra
was reading at the roof of the house so their presence at the place of
occurrence is quite natural and normal. No one can see into the mind of
the criminal, if the appellants did not fire at the informant or Ganga
Singh as they hid behind the heap of straw or for some other reason then
mainly on this ground it cannot be said that these witnesses were not
present at the spot.
51. In Bharwanda Bhoginbhai Hirjibhai v State of Gujarat (1983) 3
SCR 280 at page 280 : (AIR 1983 SC 753 at page 756 ) the Supreme court
has held:
“ Discrepancies which do not go to the root of the matter and
shake the basic version of the witnesses therefore cannot be
annexed with undue importance. More so when the all
important “ probabilities - factor” echoes in favour of the
version narrated by the witnesses.”
52. Therefore, these discrepancies in the statements of witnesses are
minor which do not go to the root of the case and would have no
adverse bearing over the prosecution case.
53. It is also submitted on behalf of the appellants that P.W. 2 Jitendra
was on the roof so he had no occasion to see what was happening in the
courtyard and thus, he could not have witnesses the murder of Smt.
Savitri Devi and Sarman Singh. It is also submitted that Dharmendra
was shot when he was coming from the side of Lala Ram’s field and
after Jitendra sustained injuries he stepped down from roof and sat in
the courtyard till he was taken to the Police Outpost from the courtyard.
Therefore, P.W. 2 Jitendra has no occasion to see the murder of
Dharmendra also.

34
CRLA No. - 7543 of 2006
54. We do not agree with this submission as it has come in evidence
that when Savitri Devi was being shot the P.W. 2 Jitendra, who was
sitting on the roof, peeped from the roof with his brother Satendra and
upon that Kamlesh and Ram Naresh shot at them from the courtyard due
to which Jitendra sustained injuries, therefore, it proves that Jitendra
saw his mother Savitri Devi and grand-father Sarman Singh being shot
by the appellants. So far as the murder of Dharmendra is concerned, it
has come in the statement of P.W. 2 Jitendra that he saw it from the roof
and on being asked P.W. 2 Jitendra has said that Dharmendra was shot at
a distance of 200-225 steps from the roof where he was sitting. He has
also said that in between both these places there are no trees but there
are some small bushes. In view of the above, P.W.2 Jitendra Singh had
occasion to witness the murder of Dharmendra Singh also from his roof.
It has come in his statement that after he sustained firearm injuries, he
stepped down from the roof in 20-25 minutes, therefore, the submission
of the appellants has no force that soon after Jitendra sustained injury,
he stepped down from the roof. If P.W. remained at the roof during the
entire incident then he had occasion to witness the murder of
Dharmendra Singh which was caused near Lala Ram’s field. P.W. 2
Jitendra is the injured witness so his presence at the spot cannot be
doubted and being an injured witness, his testimony assumes greater
significance.
55. It is further submitted on behalf of appellants that according to
P.W. 1 Om Prakash and P.W. 4 Ganga Singh, when the appellants shot at
Savitri Devi and Sarman Singh, they hid themselves behind the
“ Ladoria ” i.e. heap of straw ( bhoose ka coop ), so they had no chance to
witness murders of Sunil @ Baba and Dharmendra, which had taken
place at other places. It is further submitted that the I.O. has not shown
Ladoria, i.e. heap of straw ( bhoose ka coop ) in the site plan, it is
material omission on his part raising suspicion over the prosecution
case. We do not agree with this submission because the I.O. has shown
“ Ladoria ” i.e. heap of straw ( bhoose ka coop ) by two circles to the
north of the open spot of the informant’s house, in his site plan Ext. Ka-

35
CRLA No. - 7543 of 2006
37, and in index at Serial No. 8 has mentioned that from this place the
informant and Ganga Singh witnessed the incident after hiding
themselves behind ( bhoose ka coop ), therefore, this submission on
behalf of appellants has no force that the I.O. has not shown the heap of
straw ( bhoose ka coop ) from where the witnessed have seen the
incident. P.W. 1 Om Prakash, P.W. 4 Ganga Singh have said that they
hid themselves behind heap of straw ( bhoose ka coop ) and it has come
in their statement that after remaining their for a few minutes they
followed the appellants. It has also come in statement of P.W. 1 Om
Prakash that from behind the heap of straw ( bhoose ka coop ) the place
was visible, where Dharmendra was shot. The I.O. has marked it as ‘X’,
the place where Dharmendra was shot and in between heap of straw and
the above place there is open land and raasta , so the witnesses could
have seen this incident from behind the heap of straw. It has come in
evidence of P.W. 1 Om Prakash, that when the appellants, after shooting
Savitri Devi and Sarman Singh, fled from the house of the informant,
they also followed the appellants and saw appellants Satyavir and Shiv
Vir fire at Sunil @ Baba. The place where Sunil @ Baba was found was
shown by the Investigating Officer in the site-plan as letter 'B'.
Therefore, P.W. 1 Om Prakash was in a position to witness this incident
also after following the appellants.
56. It has been submitted on behalf of appellants that the prosecution
has not examined Mohar Singh and Santosh who were allegedly
accompanying Dharmendra while he was near Lala Ram's field and thus
by withholding these relevant winesses, adverse inference would be
drawn against the prosecution. The appellants have relied upon case law
Jaggo @ Jagdish and Others (supra), wherein the Supreme Court has
held that “it is true that all the witnesses of the prosecution need not be
called but it is important to notice that the witness whose evidence is
essential to the "unfolding of the narrative" should be called whether
the effect of his testimony is for or against the case for the prosecution.
Failure to examine such a witness might affect a fair trial. Presentation
of an application to the effect that a witness had been won over was not

36
CRLA No. - 7543 of 2006
conclusive to the question that the witness has been won over. In such a
case the witness could have been produced for cross-examination by the
accused which would have elicited the correct facts.”
57. The learned counsel for the appellants have also relied upon case
law State of U.P. and Another Vs. Cheeku @ Jagdish and others 1971
(2) SCC 42 , wherein it has been held that it is the duty of the
prosecution to examine necessary witnesses and material contradiction
between the eye witness account and medical evidence would render the
prosecution unreliable.
58. We do not agree with this submission and the above case laws do
not apply in the present case. It has been brought to the notice of this
Court, by the prosecution, that one of the witness Mohar Singh had died
before his statement could be recorded in the trial court. Further, in a
criminal case, it is not the quantity but the quality of evidence, which
matters. The prosecution has examined other eye-witnesses who have
supported the prosecution case and their testimony is consistent and
reliable, therefore, non examination of other eye witnesses would have
no adverse effect over the prosecution case.
59. It has earlier come in the discussion that P.W. 1 Om Prakash, P.W.
2 Jitendra and P.W. 4 Ganga Singh are reliable witnesses and their
testimony with regard to the incident is consistent and trustworthy,
therefore, non examination of other witnesses of fact would have no
adverse effect over the prosecution case. It has been further submitted
on behalf of appellants that the statement of P.W. 4 Ganga Singh was
recorded by the I.O. under Section 161 Cr.P.C. after a gap of three
months and no explanation of delay is shown by the prosecution thus,
he is a planted witness whose testimony before the court cannot be
relied upon.
60. The defence has not asked from the I.O. the reason of delay in
recording the statement of Ganga Singh, under Section 161 Cr.P.C. In
absence of any such question put to the IO, it cannot be assumed that his
statement was recorded belatedly without any sufficient explanation

37
CRLA No. - 7543 of 2006
because if the I.O. had been asked about this delay, he could have
explained the delay and only then the court could have examined
whether the delay was sufficient or not. By not putting such question to
the I.O. and merely arguing over this would have no adverse effect over
the prosecution case. Beside this, it has been stated in the FIR that P.W.
4 Ganga Singh was present there alongwith informant when this
incident occurred so the name of Ganga Singh was there from the
beginning as eye-witness of this case. Therefore, it is not that his name
has subsequently been added as witness to this case, therefore, on this
ground the submission on behalf of appellants have no force.
61. It is also submitted on behalf of appellants that the investigation is
defective and the first Investigating Officer was not present at the Police
Outpost- Kushmura of Police Station- Kisni on the date when FIR was
lodged, in view of statement given by P.W. 8 Constable Ram Kumar
Singh that according to G.D dated 19.08.2001, there is no entry that the
Investigating Officer was present at the Police Outpost. In view of the
above, the statement of the I.O. that he recorded the statements of
injured Jitendra and Savitri Devi at Police Outpost- Kushmura is false
raising suspicion over the prosecution case and that false evidence has
been prepared to implicate the appellants in this case. We do not agree
with this submission, as it has come in evidence that the first informant
Om Prakash reached at Police Outpost- Kushmura alongwith injured
Jitendra and Savitri Devi who remained sitting inside the Jeep and the
concerned police Inspector inquired from both the above injured, about
the incident, while they were seated inside the Jeep. In view of the
above, if the Investigating Officer inquired from the injured outside the
premises of the Police Outpost Kushmura then if his presence in the
G.D. of Police Outpost- Kushmura is not entered then it has no adverse
bearing over the prosecution case.
62. It is also submitted on behalf of the appellants that there are
contradictions that injured Savitri Devi died on way to the hospital or
after reaching at the hospital, which raises suspicion over the
prosecution case. We do not agree with this submission also, all the

38
CRLA No. - 7543 of 2006
witnesses of fact have stated that Savitri Devi died on the way to the
hospital, they are not experts who can give a certain opinion when a
person dies. Therefore, if there is any such discrepancy then it would
have no adverse effect over the prosecution case.
63. It is further submitted on behalf of appellants that there is
contradiction in ocular and medical evidence and according to the site
plan, deceased Savitri Devi sustained injuries from a distance of about
10 steps which comes out to 15 feet, whereas as per her post-mortem
report there is scorching and blackening over the firearm wounds of
entry. It is not possible that blackening and scorching would occur from
a fire shot from a distance of 15 feet, therefore, these are major
contradictions raising doubt over the prosecution case. We do not agree
with this submission. The site plan prepared by the IO bears two kinds
of evidence, the first kind of evidence is that which he observes and
finds at the place and the second kind of evidence is hearsay, which is
told to him by the informant and other witnesses at the time of
inspecting the place of occurrence. Showing distance of Savitri Devi
being shot from a place is hearsay account in site plan.
64. The defence should have inquired about it from the witnesses of
fact. The witnesses of fact have supported the prosecution case, in such
a brutal murder when everybody was there to save his life, it was not
usual on their part to keep into account every minute details of the
incident and then mathematically narrate that in the court. Therefore, in
our view, there are no major contradictions in ocular and medical
evidence. Witnesses have said that the deceased and injured were shot
and injury reports and post-mortem reports confirm that they sustained
firearm gunshot injuries. Further, during the investigation a firearm was
recovered from appellant Sukhvir and was sent to Forensic Science
Laboratory alongwith the cartridges found at the place of occurrence for
expert opinion. As per ballistic expert the cartridges found at the place
of occurrence matched with the firearm recovered at the pointing of
appellant Sukhvir. It also substantiates the prosecution case regarding
the involvement of the appellants in the commission of this offence.

39
CRLA No. - 7543 of 2006
65. It is submitted on behalf of appellants that according to P.W. 1
Om Prakash appellant Shyam Pal did not fire at any of the deceased or
injured, therefore, his role in the commission of the offence is doubtful.
We do not agree with this submission, as it has come in evidence that all
the appellants including Shyam Pal reached at the house of the
informant and thereafter the incident occurred. All the appellants
remained together carrying firearms including appellant Shyam Pal and
after committing the murder all of them fled from the spot which shows
that they had formed unlawful assembly to commit a criminal act armed
with firearms, which are deadly weapons and in furtherance of the
common object, the above offence was committed by the members of
that unlawful assembly, therefore, being member of the unlawful
assembly, appellant Shyam Pal would also be liable for the offence
committed by the other member of the unlawful assembly.
66 . It is also submitted that the motive assigned to the appellants to
commit this offence is not proved. As per prosecution there was a
dispute with regard to a land between Om Prakash and Santosh
regarding which a panchayat was also convened and it was resolved in
the panchayat that some land would be given to the informant Om
Prakash and the other part would be given to appellant Santosh. It has
come in the statement of P.W. 1 Om Prakash and P.W. 4 Ganga Singh
that after this panchayat no overt act was committed by the appellants,
so there was no reason for them to commit such offence. The learned
counsel for the appellants has drawn the attention of this Court over the
statement of P.W. 1 Om Prakash:-
"
प चा योत म. पचा4 नं म र म नं सा ज$ड़! है$ई जगोहै म$झे किलेव !
था ।
प चा योत म. योहै  तयो है$आ था कि जगोहै  बाले 8सार! जगोहै
,
 ! ज यो म र म  नं  उत्तर 8सार! सा इड म. जगोहै कियो ज नं
.
।……………
तयो है$आ था
प चा योत  बा  घटनं है
नं त विवव कित जमनं पर म$ल्जम नं
"
नं ब्ज रनं  प्रयो सा नंहै! कियो ।

40
CRLA No. - 7543 of 2006
And the statement of P.W. 4 Ganga Singh :-
"
प चा योत ओम प्र  ( मAज8गो म. है$ई। पचा योत है
नं  बा 
अभि यो$क्तगोण नं विवव कित जमनं 
ब्ज रनं  प्रयो सा नंहै!
"
कि यो ।
67. On the basis of above statements, learned counsel for the
appellants wants to show that there was no reason for the appellants to
commit such murder due to the above dispute. We do not agree with this
submission also. It is settled law that in a case based on direct evidence
motive to commit the crime looses its significance, so a direct motive is
not at all relevant. Beside that, it is established from evidence that there
was a land dispute between the first informant and the appellants. It is
also not in dispute that panchayat was held with regard to said land and
a civil suit was pending before the court. Motive is a state of mind of a
person which cannot be seen from inside .
68. In the case of Thaman Kumar vs. State of Union Territory of
Chandigarh, reported in (2003) 6 SCC 380: (AIR 2003 SC 3975), the
Supreme Court has observed as under:-
"There is no such principle or rule of law that where the
prosecution fails to prove the motive for commission of the
crime, it must necessary result in acquittal of the accused.
Where the ocular evidence is found to be trustworthy and
reliable and finds corroboration from the medical evidence, a
finding of guilt can safely be recorded even if the motive for
the commission of the crime has not been proved ."
69. The observation of Supreme Court in the case of Nathuni Yadav
and others v. State of Bihar and another, 1997 (34) ACC 576 are also
worth mentioning:-
"Motive for doing a criminal act is generally a difficult
area for prosecution. One cannot normally see into the mind
of another. Motive is the emotion which impells a man to do a
particular act. Such impelling cause need not necessarily be
proportionally grave to do grave crimes. Many a murders
have been committed without any known or prominent motive.
It is quite possible that the aforesaid impelling factor would
remain undiscoverable. Lord Chief Justice Chambell struck a

41
CRLA No. - 7543 of 2006
note of caution in 'Reg v. Palmer' thus: "but if there be any
motive which can be assigned I am bound to tell you that the
adequacy of that motive is of little importance. We know, from
experience of Criminal Courts that atrocious crimes of this
sort have been committed from very slight motives; not merely
from malice and revenge, but to gain a small pecuniary
advantage, and to drive off for a time pressing difficulties."
70. In the case of State of H.P. Vs. Jeet Singh, (1999) 4 SCC
370 : (AIR 1999 SC 1293) , the Supreme Court has made the
following observations:-
"No doubt it is a sound principle to remember that
every criminal act was done with a motive but its corollary is
not that no criminal offence would have been committed if the
prosecution has failed to prove the precise motive of the
accused to commit it. When the prosecution succeeded in
showing the possibility of some ire for the accused towards the
victim, the inability to further put on record the manner in
which such ire would have swelled up in the mind of the
offender to such a degree as to impel him to commit the
offence cannot be construed as a fatal weakness of the
prosecution. It is almost an impossibility for the prosecution to
unravel the full dimension of the mental disposition of an
offendoffender towards the person whom he offended."
71. Regarding the motive for commission of a crime, the Supreme
Court has observed as under in the case of Suresh Chandra Bahri v.
State of Bihar, AIR 1994 SC 2420 (in para 21 of the report at page
2429):-
"Sometimes motive plays an important role and
becomes a compelling force to commit a crime and therefore
motive behind the crime is a relevant factor for which
evidence may be adduced. A motive is something which
prompts a person to form an opinion or intention to do certain
illegal act or even a legal act but with illegal means with a
view to achieve that intention. In a case where there is clear
proof of motive for the commission of the crime it affords
added support to the finding of the Court that the accused was
guilty for the offence charged with. But it has to be
remembered that the absence of proof of motive does not
render the evidence bearing on the guilt of the accused
nonetheless untrustworthy or unreliable because most often it
is only the perpetrator of the crime alone who knows as to

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what circumstances prompted him to a certain course of
action leading to the commission of the crime."
72. Therefore, even if, for the sake of argument it is admitted that the
prosecution has failed to prove motive for the appellants to commit the
said crime, it would not have any adverse effect over the prosecution
case. It is also submitted on behalf of the appellants that there are two
groups one headed by Kalua @ Rajbeer and the other was headed by
Rajvir. P.W. 1 informant, Om Prakash had admitted that Kalua has a
licensed revolver and he sometimes comes with him, which means that
Om Prakash and Kalua were acquainted with Ganga Singh. It is
submitted that all the appellants in their statements under Section 313
Cr.P.C. have said that P.W. 4 Ganga Singh had lodged several reports
against the gang of other Rajvir. Since Kalua and Rajvir were on
visiting terms with the complainant and his family so Ganga Singh and
other Rajvir were annoyed with the appellants and it is that Rajvir Singh
which had committed such murders and the appellants have been falsely
implicated in this case.
73. We do not agree with this submission as well, there is no such
evidence led by the defence to show that there are two different
Rajbeers’. Consequently, if P.W. 4 Ganga Singh had lodged some
criminal cases against the other Rajbeer, prior to the said incident, then
the other Rajbeer would have developed grudge against the Ganga
Singh and not at the first informant and his family members. If this was
the case then he would not have spared Ganga Singh during the said
incident and most importantly if Ganga Singh had lodged several
reports against Rajbeer prior to the said incident then he would have
been the last person to be spared by Rajbeer. Therefore, the defence
version has no force that the other Rajbeer and his gang were involved
in this incident and appellants have been falsely implicated in this case.
If Ganga Singh had courage to lodge other criminal reports against the
said Rajbeer prior to the alleged incident then he would have certainly
named that Rajbeer if the incident was caused by him and his gang. A

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family member would be the last person who will spare the real culprit
and implicate an innocent person, if he knows the assailants.
74. In view of the above discussion, we come to the conclusion that
the prosecution has been able to prove its case beyond reasonable doubt.
It was gruesome murder in which informant Om Prakash's wife Savitri
Devi, son and father were murdered. His brother-in-laws son was also
murdered. His son Jitendra was also seriously injured and there was an
attempt to life on his person. The testimony of P.W. 1 Om Prakash, P.W.
2 Jitendra, P.W. 4 Ganga Singh is consistent and reliable with regard to
entire case of the prosecution. The ocular testimony is supported by
medical evidence. FIR was lodged promptly and all the appellants were
named from the very beginning. The argument on behalf of appellants
with regard to their false implication has no force. The motive is also
proved and even if it is argued that the prosecution has failed to prove
motive then it is a case of direct evidence in which motive does not have
much consequence.
75. In view of the above, the learned trial court has rightly
appreciated the evidence on record and has rightly reached at the
conclusion of the guilt of the appellants. The appellants have been
rightly convicted and sentenced for the offence, therefore, appeal has no
force and is liable to the dismissed.
76. Thus, all the appellants are guilty of the offence punishable under
Sections- 302, 307, 452 read with 34 IPC. The Trial Court has
appreciated the evidence on record properly and rightly reached at the
conclusion of guilt of all the appellants.
77. Thus, the present three appeals Nos. 7543 of 2006, 7713 of 2006
and 7712 of 2006 lacks merit and are, accordingly, dismissed . All
appellants Santosh, Sukhvir, Kamlesh, Ram Naresh, Satyavir, Shiv
Vir, Ramadhar, Arvind and Shyam Pal , are on bail. Their personal
bonds and bail bonds are cancelled and sureties are discharged. They are
directed to surrender before the learned Trial Court to undergo the

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remaining part of their sentence, failing which, the Trial Court is
directed to adopt coercive measures for securing their presence.
78. Let a copy of this order be forwarded to the Trial Court concerned
alongwith the lower court record for information and necessary
compliance.
(Sanjiv Kumar,J.) (J.J. Munir,J.)
May 11, 2026
AdityaG
Digitally signed by :-
ADITYA GAUTAM
High Court of Judicature at Allahabad