JUDGMENT
K.D. Shahi, J.
1. In Sessions Trial No. 76-A of 1978 seven persons, namely Babu Singh, Kuber Singh, Guman Singh, Shatrughan Singh, Ram Asrey, Jai Karan Singh and Maiyadin faced the trial under Sections 148, 302/149, 307/149 and 380, IPC out of whom Babu Singh, Kuber Singh, Guman Singh and Shatrughan Singh were convicted under Sections 323, 302/149 and 380, IPC and sentenced respectively for six months’ R.I. imprisonment for life and one year’s R.3. These accused persons were acquitted of the charges under Sections 148, 307 and 149, IPC. Accused Ram Asrey, Jai Karan and Maiyadin were acquitted of all the charges.
2. The State preferred Appeal No. 1308 of 1979 against the acquittal of Ram Asrey, Jai Karan and Maiyadin of all the charges and also against the acquittal of Babu Singh, Kuber Singh, Guman Singh and Shatrughan Singh of the charges under Sections 148, 307 and 149, IPC.
3. Babu Singh, Kuber Singh, Guman Singh and Shatrughan Singh preferred Appeal No. 177 of 1979 against their conviction under Sections 323, 302/149 and 380,1PC.
4. Since both these appeals arise out of the same judgment and common questions of law and facts are involved, both the appeals are taken together for decision.
5. Out of four convicted accused persons, Babu Singh, Guman Singh and Shatrughan Singh died and their appeal No. 177 of 1979 and the State Appeal No. 1308 of 1979 against them stood abated. Orders of abatement dated 5-8-1997 and 6-1-1998 have already been passed on the order sheet. In Appeal No. 177 of 1979, only Kuber Singh is surviving and he has been taken into custody for non appearance in Court and he is still in custody. All other surviving accused persons are on bail.
6. The original F.I.R. was lodged against nine persons including Sheo Narain and Arjun Singh, who were admittedly in jail on the alleged date of occurrence. Therefore, they were not even charge -sheeted nor they had faced any trial.
7. The facts of the case in brief are that Sheo Dutt (P.W. 1) lodged the F.I.R. at police station Atarra on 30-4-1976 at 8.15 a.m. that he along with his elder brother Balbhadra Prasad was sitting at the Chabutra of Krishna Dutt and was getting himself shaved. Purushottam and Krishna Dull were also sitting on the Chabutra. Ram Krishna was sitting near the clinic of the brother of the informant, and on the Chabutra of the clinic Kallu, Samerjeet and Rajumar were sitting. In the meantime, all of them heard the noise of a fire. Krishna Dutt cried. The complainant and his brother rushed out of the house and saw that accused Babu Singh and Ram Asrey were pressing the grandfather of the informant. Balbhadra Prasad was lying on the Chabutra in an injured condition. The accused persons, namely, Kuber Sing!), Sheo Narain, Guman Singh, Jai Karan and Maiyadin went to the clinic. All were armed with gun and lathi and they killed Ram Kishun. Raj Kumar tried to run away but he was also injured by fire. He was kept in the clinic. Sheo Narain Singh had taken the belt of cartridges and double barrel gun of Balbhadra Prasad and made two-three fires and went towards north. In the F.I.R. it was mentioned that Kuber Singh was armed with rifle. Sheo Narain Singh was armed with single barrel gun and double barrel gun of Balbhadra Prasad. Jai Karan Singh was armed with single barrel gun. Bahnoi of Sheo Narain Singh namely Shatrughan Singh was armed with double barrel gun. Arjun Singh, Guman Singh, Babu Singh and Ram Asrey were armed with lathis. They threatened every body to kill. Balbhadra Prasad and Ram Kishun died on the spot. Raj Kumar was injured. The original F.I.R. is Ext. Ka-8.
8. We need not go into the postmortem report, injuries and other details because the factum of death of the deceased is admitted. After performing other formalities, the police submitted the charge sheet only against seven persons. They did not submit any charge sheet against Sheo Narain Singh and Arjun Singh.
9. After committal of the case, the learned Sessions Judge charged all the seven accused persons as narrated in the above paragraphs. The accused persons pleaded not guilty and claimed false implication.
10. The prosecution examined Sheo Dutt (P.W. 1). He is an eye witness. He has supported the prosecution case. He stated that after eight or ten days, he could know that Sheo Narain Singh and Arjun Singh were in jail. He was mistaken in recognising them because two persons were of the personality of the above said two persons. He had not seen the faces of Sheo Narain Singh and Arjun Singh. He has seen only their back. He further admitted in the cross examination that he bad narrated to the investigating officer that Sheo Narain Singh was armed with, a gun and it was he who had taken the double barrel gun and the belt of cartridges of Balbhadra Prasad. He further stated that he did not remember whether he had narrated to the investigating officer of police station, Atarra that Sheo Narain Singh made two-three fires or not. He further admitted that in his statement under Section 161, Cr.P.C. he had named Sheo Narain Singh and Arjun Singh by mistake.
11. PW 2, Kallu is said to be an eye witness and in the examination in chief, he changed the prosecution case that one unknown person entered the clinic of Balbhadra Prasad and lifted his double barrel gun and the belt of cartridges. In the cross-examination, he stated that he had seen the faces of all the nine accused persons.
12. PW 3, Samerjeet is a witness of enmity and motive only.
13. PW 5, Krishan Dutt is said to be an eye witness. He was sitting at his Chabutra. He did not support the prosecution story and he had turned hostile. According to him, he was inside the house. He came out and saw two persons dead. He did not see any of the assailants. He did not support the prosecution story. The other witnesses are formal witnesses.
14. After the close of the prosecution evidence, the statements of the accused persons under Section 313, Cr.P.C. were recorded. They denied the entire prosecution story and claimed false implication.
15. After hearing counsel for the parties, the learned Sessions Judge convicted Babu Singh, Kuber Singh, Guman Singh and Shatrughan Singh under Sections 323, 302/149 and 380, I.P.C. and sentenced them to six months’ R.I., imprisonment for life and one year’s R.I. respectively. Against this order the present appeal has been filed by the convicts. In the rest of the offences all the accused persons were acquitted against which the State has preferred an appeal as discussed above.
16. We have heard the learned counsel for the parties and gone through the record. The learned Sessions Judge has already disbelieved the prosecution case against Ram Asrey and Jai Karan. They are said to be armed with lathi. They did not cause any injury to any person. The learned Sessions Judge also disbelieved the case of the prosecution under Sections 148, 307/149 against the four accused persons, namely, Babu Singh, Kuber Singh, Guman Singh and Shatrughan Singh. The main witness in this case was Raj Kumar. He is said to have been injured. His injuries are also there as shown in Ex. Ka~7. He has got three lacerated wounds, one contusion and one lacerated wound, but he has not at all been examined. He was the best witness to unfold the prosecution story. His presence cannot be doubted on the spot. His non-examination will show that if examined, he would not have supported the prosecution story. The other witness Purshottam is also said to be present on the spot. He has also not been examined. The presumption would be that had he been examined, he would have also not supported the prosecution story. PW 5, Krishna Dutt, as sated had turned hostile and did not support the prosecution story.
17. Again to emphasise that needless to go into minute details of the case. The only fact to be seen is whether Sheo Dutt, Samerjeet and Kallu, the alleged eye witnesses, are believable or not.
17.1 In this case, all the nine accused persons are named in the F.I.R. They are of the same village except the Bahnoi of Sheo Narain Singh, who is the resident of Madhya Pradesh. They were fully identified and known to the informant and the witnesses. It is not said that there were unknown assailants. In the statement under Section 161, Cr.P.C. the informant named all the nine accused persons. By that time, the investigating officer must have been aware that two of the accused persons were in jail. Therefore, in the statements of the other eye witnesses, two unknown persons were introduced. This is not the case of the F.I.R. that there were two unknown persons.
18. It was argued that the evidence was inconsistent with the case set up in the F.I.R. This is why Raj Kumar and Purshottam were withheld and were not examined. According to the case of the F.I.R. and the statement of the informant under Section 161, Cr.P.C. Sheo Narain Singh was armed with a single barrel gun. He had come to the clinic of Balbhadra Prasad along with others. It was Sheo Narain Singh who had lifted the double barrel gun of Balbhadra Prasad and the belt of cartridges. He made two three fires and went towards north. Arjun Singh is also said to be there armed with lathi, but this is admitted fact that these two persons were in jail on that particular date. This is why the entire prosecution story was changed. This is the main assertion and the main prosecution case that Sheo Narain Singh had taken the double barrel gun and the belt of cartridges of Balbhadra Prasad, made two three fires and went towards north. He was rather the main accused but the fact remains that he was not there on that particular day. The occurrence is of 8.15 a.m. in the month of April. Raj Kumar was injured witness. It cannot be said that no body could have identified any of the assailants. Had Sheo Narain Singh and Arjun Singh not been in jail on the relevant date and time, nobody could have any mouth to say that the prosecution case is false. To their good luck Sheo Narain Singh and Arjun Singh were admittedly in jail custody on that particular date and time, no reliance can be placed on the statements of the witnesses.
19. In the ruling reported in 1997 (35) ACC 355 : AIR 1997 SC 3247 Sahib Singh v. State of Haryana, it has been observed at page 3248 (of AIR) :–
The prosecution in this case presents before us a story of hallucination where a dead person is seen by the eye witnesses to have come armed with a gun, fired the gun at one of the witnesses who was injured and then was seen running away with other people including the appellant towards another village never to be found again. The appellant was seen in the company of that dead person, shoulder to shoulder, armed with a gun and triggering it to keep pace with the activities of his companion the dead.
20. In the case of Sahib Singh v. State of Haryana AIR 1997 SC 3247 (supra), besides others a dead person was also named to have fired and seen in the company of other accused persons. The Hon’ble Supreme Court threw away the case of the prosecution not only against the dead person Kala Singh but against other accused persons as well. At page 360 of the ruling it was held.
Since Kala Singh had already been killed by the police on Oct. 31, 1991, there was no occasion that he would be present at the spot on 18-11-1991 when the incident, giving rise to this case, took place. All the three eye witnesses, examined in this case, testify to the presence of a dead person at the spot. All of them therefore, speak a lie when they saw appellant to be present at the spot in the company of Kala Singh, they again speak a lie as the appellant could not be in the company of Kala Singh.
The Hon’ble Supreme Court discarded the entire prosecution story against all the accused persons.
21. In another ruling reported in 1993 UP Cri R 468 : AIR 1993 SC 319 Dharm Singh v. State of Punjab, five persons were tried by the Sessions Judge,, Rapanagar for offences punishable under Sections 148, 302/149, 307, 232, 324, 325, IPC and Section 27 of the Indian Arms Act for causing the death of Kaka Singh. The trial Court acquitted all the five accused persons. The State preferred an appeal against the said acquittal. The High Court set aside the acquittal and convicted each of them under Section 302/149, IPC. Accused Dharam Singh was said to have given Barchha blows on the left abdominal region of the deceased. He had set up a plea of alibi. It was established by the evidence of D.Ws. 1, 2 and 4. It was held that (his very false implication of Dharam Singh by the witnesses renders their evidence tainted and merits no acceptance.
21A. In the ruling reported in 1990 CAR 257 (SC): AIR 1990 SC 1709 State of U.P. v. Moti Ram thirteen persons had been massacred in a gruesome and horrendous manner and the culprits burnt the victims by covering with sugar cane leaves and sprinkling with diesel oil. Forty one accused persons were prosecuted. Two of the eye witnesses were injured. The Sessions Court convicted and sentenced only 16 accused persons and acquitted the remaining twenty five accused persons. The occurrence had taken place at 10.00 a.m. out of all the accused persons, three accused persons were confined to Gorakhpur jail on the alleged day of occurrence. All the convicted accused persons filed criminal appeals in the High Court and the State preferred appeals under Section 378, Cr.P.C. against acquittal of the remaining twenty-five accused persons. The High Court allowed all the criminal appeals filed by the convicted accused except the appeal preferred by Rambali. The appeals preferred by the State were dismissed. The State on being dissatisfied with the impugned judgment of the High Court preferred as many as seven criminal appeals. The Hon’ble Supreme Court dismissed all the appeals holding as under at page 1719 (of AIR) :-
No doubt, it is true that this heinous offence is diabolical in conception and executed in gruesome and ghastly manner. It is shocking that 13 persons have been done away with in a broad day light in the course of the same transaction. Nonetheless the Court when satisfied that the evidence adduced by the prosecution is not only unworthy of credence but also manifestly and inextricably mixed up with falsehood cannot be carried away merely on the fact of multiplicity of victims and on the basis, of speculations and suppositions in the confused stream of facts. In our considered view the High Court has appraised the evidence in the proper perspective and arrived at collect conclusion which is neither perverse nor unreasonable.
In the above case, the conviction of Rambali alone was upheld and that too not on the basis of evdence adduced by the prosecution but primarily, on the ground that Rambali had admitted his presence on the spot and to have taken part in the crime.
22. Coming to the facts of the present case, it is true that two persons have been killed, but since Sheo Narain Singh and Arjun Singh have been falsely implicated, the evidence of the prosecution loses its credit and becomes unworthy of acceptance. Again to emphasise that looking to the bio-data of the case, the occurrence being of broad day light, two murders, presence of the eye witnesses allegedly one injured witness and believable eye witnesses, nobody on earth would have saved accused Sheo Narain Singh and Arjun Singh had they not been in Jail custody on the relevant date and time. likewise, the other accused persons, even if they were not a party to the crime, then also nobody can have any ground to save the remaining accused persons in the teeth of the evidence available on the record. The facet of the case shows that it is doubtful who were the actual participants in the crime and who were innocent and when grain cannot be separated from the chaff, the cardinal principle of law will .still hold good in India that one innocent person should not be convicted even if nine persons have to be acquitted. Innocent persons like She Narain Singh and Arjun Singh have been falsely implicated in this case. There may be other innocent person as well. The evidence of the witnesses is. not decipherable against any of the accused persons.
23. In view of the above discussions, the entire evidence of the eye witnesses is to he ignored. They are wholly unbelievable witnesses and on the basis of the evidence available on the record, none could have been convicted. The learned Sessions Judge also found the case of the prosecution false not only against Sheo Narain Singh and Arjun Singh but also against Ram Asrey, Jai Karan and Maiyadin and they have been acquitted of all the charges. The learned Sessions Judge also found the case of the prosecution false to extent against the convicted accused and acquitted them also of some of the charges.
24. We have got nothing to differ from the findings of the learned Sessions Judge in respect of acquittal. As regards convictions of Babu Singh, Guman Singh and Shatrughan we have already said that their appeal and the State appeal against them have abated. Only the appeal of acquittal of the charges. Government Appeal No. 1308 of 1979 is hereby dismissed. Appeal No. 177 of 1979 in respect of Babu Singh, Guman and Shatrughan stands abated, and it is allowed in respect of Kuber Singh. His conviction and sentences are set aside. He is acquitted of the charges under Sections 323, 302, 149 and 380, I.P.C. He is in custody of jail. He shall be released forthwith if he is not required in connection with any other case.
