1

A.F.R.

Reserved

Case :- CRIMINAL APPEAL No. - 931 of 1999

Appellant :- Ganesh And Others

Respondent :- State of U.P.

Counsel for Appellant :- D.N.Wali,Apul Misra,D.R.

Chaudhary,Dharmendra Singh,Dilip Kumar,Ishwar Chandra

Tyagi,M D Mishra,Noor

Mohammad,P.N.Misra,R.B.Sharma,Rajiv Gupta,Rajrshi

Gupta,S.P.S. Raghav,S.S. Giri,Syed Shahnawaz Shah

Counsel for Respondent :- A.G.A.

with

Case :- CRIMINAL APPEAL No. - 1655 of 2007

Appellant :- Rohtash

Respondent :- State of U.P.

Counsel for Appellant :- R.K.Sharma,Abhishek

Mayank,Ajay K. Singh,Akhilesh Kumar Mishra,Devendra

Singh,Dharmendra Singh,Dr.Abeda Syeed (A.C),Manish

Kumar Pandey,Noor Mohammad,Santosh Kumar Tripathi,V

K Upadhyay

Counsel for Respondent :- A.G.A

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Subhash Chandra Sharma,J.

(Delivered by Hon'ble Subhash Chandra Sharma,J.)

1.These criminal appeals emanate from the judgment

and order dated 21.04.1999 passed by the learned Vth

Additional Sessions Judge, Meerut in Sessions Trial No.

647 of 1997 (State Vs. Ganesh and others), S.T. No. 863

of 1997 (State Vs. Sriram), S.T. No. 1042 of 1997 (State

Vs. Charan Singh), S.T. No. 1559 of 1997 (State Vs. Raju

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and others), arising out of Crime No. 08 of 1997, under

Sections 147, 148, 149, 302, 307 IPC, Police Station

Hashtinapur, District Meerut, whereby the appellants-

Sriram, Ganesh, Rajveer s/o Harbans, Rajveer s/o

Naththu, Shekhar, Pramod, Vijendra @ Banti and Rohtash ,

each have been convicted and sentenced under Section

148 IPC for three years rigorous imprisonment with fine of

Rs. 1000/-, in default of payment of fine they have to

undergo additional imprisonment for a period of six

months; under Section 307/149 IPC for seven years

rigorous imprisonment with fine of Rs. 5000/-, in default

of payment of fine they have to undergo additional

imprisonment for a period of two years and Section

302/149 IPC for life imprisonment with fine of

Rs.10,000/-, in default of payment of fine they have to

undergo additional imprisonment for a period of three

years. All the punishments are to run concurrently.

Accused Charan Singh, Raju and Pintu were acquitted of

the charges.

2.During pendency of the appeal, appellant Ganesh had

died, therefore, appeal on his behalf stood abated.

3.The prosecution case, in brief, is that on 17.1.1997 at

about 3.10 a.m., an F.I.R. was lodged at the Police Station

Hashtinapur, District Meerut by the informant Ved Prakash

r/s Village Rustampur Bhikund, P.S. Hashtinapur, District

Meerut by filing a written report stating therein that on

16/17.1.1997, in the mid night he along with his uncle

Rohtash, Mauli, Narendra, Sanjay, Baleshwar residents of

Bhikund were sleeping in their house. He and his uncle

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Rohtash were sleeping in the varandan where lantern was

lit up. At about 12 o’clock in the mid night, near about one

dozen people in the police attire equipped with weapons

came to their house and woke up his uncle, asked him to

get the door opened. The informant was told by his uncle

Rohtash that that was the gang of dacoit Sriram resident

of Kishunpur. He and his uncle Rohtash identified Sriram,

Ganesh, Rajveer Jatav, Banti Jatav, Pramod, Shekhar,

Rajveer s/o Natthu but remaining six persons could not be

identified. As soon as the door was opened, Sriram and

Ganesh along with their other companions started firing on

the sons of Rohtash, who were sleeping inside. Due to fear

the informant hid himself in a nearby hut. When the

assailants came out, the informant heard that Sriram was

abusing to ‘Gurjars’ and saying that he took revenge of

‘Ikwara Kand’. The accused person thereafter went to the

baithaka of Kartar Singh and made fire while abusing the

‘Gurgars’ and then went away towards the forest. The

informant then went to his Dukriya (room) where he saw

in the torch light that Rohtash and his son Baleshwar were

lying injured and Narendra, Mauli and Sanjay sons of

Rohtash were lying dead. In the meantime, Dhan Singh

came there and told him that the gang of dacoit Sriram

had murdered his cousin Kartar Singh and Babu as also

his son Subhash. The informant went to the police station

with his injured uncle Rohtash, brother Baleshwar and

Dhan Singh on the same day at about 3.10 a.m. and filed

the written report, on the basis of which the case was

registered as Crime No. 08 of 1997 under Sections 147,

148, 149, 302/307 IPC. The detail of the case was entered

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into the G.D. as report No. 6 dated 17.01.1997.

4.The investigation of the case was handed over to the

Station House Officer R.P. Gupta.

5.Investigating Officer along with S.I. Brij Mohan Singh

Rana went to the place of occurrence where on the

direction of the investigating officer, S.I. Brij Mohan Singh

Rana conducted the inquest of the deceased persons and

inquest reports were prepared by him along with other

relevant papers required for the purpose of post-mortem.

Dead bodies were sealed and handed over to constables

Ravindra Singh and Jagpal who took them to the Mortuary.

Injured Narendra was sent to the Medical College where

he was declared dead and his inquest was conducted by

S.I. A.K. Sharma and inquest report along with relevant

papers was prepared, the dead body was sealed and sent

to mortuary.

6.The post-mortems of the dead bodies of six deceased

persons were conducted on 18.1.1997 by Dr. Ashok Kumar

Yadav. The antemortem injuries found on the person of

deceased Mauli are as under:

I. Gun shot wound entry 2 cm x 1 cm x muscle deep

on front of left and upper arm, upper part

connecting to wound of Exit 2 cm x 1 cm on the

inner side of arm.

II- Gun shot wound of entry 2 cm x 2 cm x chest

cavity on the front and outer side of left side chest. 2

cm. Medial to axillary fold connecting to wound of

exit 2.1 cm x 1. 5 cm on back of right side chest lower

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part.

7. The antemortem injuries found on the person of the

deceased Sanjay are as under:

I. Gun shot wound of entry 2 cm x 1.5 cm x brain

cavity deep on left side head. 2 cm above the left ear

blackening and tattooing present.

II. Gun shot wound exit 2.5 cm x 2 cm on the front

right side neck 4 cm above the right clavicle bone

medial and margin averted connecting to injury no.

1.

III- Gun shot wound of entry 2 cm x 1 cm x chest

cavity deep on right side front and upper of chest 2

cm below the mid line joint of right clavicle

connecting to wound of exit 3 cm x 3 cm on the

outer aspect of right side chest 5 cm. Below axillary

joint.

IV- Gun shot wound of entry 2 cm x 1.8 cm x

abdomen cavity deep on back of right side abdomen

lower part. 4 cm above iliac spine connecting to

wound of exit. 4 cm x 4 cm on frontal abdominal

upper part small and large intestine coming out.

V- Gun shot wound of entry 1.5 cm x 1 cm x muscle

deep on the outer and back aspect left forearm lower

part connecting to wound of exit. 2 cm x 2 cm on

the inner aspect of left forearm.

8.The antemortem injuries found on the person of the

deceased Babu are as under:

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I. Gun shot wound entry 5 cm x 2 cm x brain cavity

deep on front of nose. Blackening and tattooing

present.

II.One metallic bullet recovered from brain cavity.

9. The antemortem injuries found on the person of the

deceased Kartar Singh are as under:

I. Gun shot wound entry 8 cm x 8 cm x bone deep

on the right side face underneath fracture of maxilla

mandible bone.

II. Gun shot wound entry 3 cm x 1 cm x chest cavity

deep on left site front of chest 5 cm above left nipple.

III. Gun shot wound 2 cm x 0.5 cm x muscle deep on

the frontal right shoulder two metallic of pieces

recovered from underneath muscle and chest.

10.The antemortem injuries found on the person of the

deceased Narendra are as under:

I. Incised wound 10 cm x 5 cm x brain cavity deep on

the right side head underneath bone cut brain matter.

II. Gun shot wound of entry 2 cm x 1 cm x muscle

deep outer part of right shoulder.

III. Gun shot wound of exit 3 cm x 2 cm on back of

right shoulder connecting to injury no. 1 margin

everted.

11.The antemortem injuries found on the person of the

deceased Subhash are as under:

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I. Gun shot wound entry 2 cm x 1.5 cm x chest cavity

deep on frontal right side chest. 4 cm away from right

nipple at 3 o’clock position, one metallic bullet

recovered from the chest.

12. S.I. B.N. Rana collected pieces of board, plain and

blood stained soil, empty cartridges from the place of

occurrence. After inspection of the place of occurrence,

prepared the site plan and recorded statements of the

witnesses conversant to the facts of the case. He arrested

all the accused persons and submitted the charge sheets

against Ganesh, Rajveer s/o Harbansh, Rajveer s/o Nathu,

Shekhar, Pramod, Brijesh, Banti and Rohtash to the court

concerned. Later on, the investigation was handed over to

S.I. Rajendra Prasad Yadav who conducted the

identification parade of accused Charan Singh, Raju and

Pintu and collected evidence, filed the charge sheets

against Sriram, Charan Singh, Raju and Pintoo in the court

concerned.

13.Learned Chief Judicial Magistrate took cognizance of

the offence and provided copies of the prosecution papers

in compliance of Section 207 Cr.P.C. to the accused

persons and committed the case to the Court of sessions

for trial.

14.The trial court after taking into consideration the

material on record, framed the charges under Sections

148, 302/149 and 307/149 IPC against all the

accused/appellants.

15.Charges were read-over and explained to the

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accused/appellants who pleaded not guilty, denied the

charges and demanded trial. Consequently, the case was

fixed for prosecution evidence.

16.In support of its case, the prosecution examined

P.W.1 Ved Prakash who is the first informant; P.W.2

Rohtash; P.W. 3 Baleshwar, P.W.4 Dhan Singh, P.W. 5 H.C.

Buddh Raj Singh who prepared the check report; P.W. 6

Dr. Ashok Kumar Yadav who conducted the autopsy and

prepared the postmortem reports; P.W. 7 S.I. Brijmohan

Rana who conducted inquest of the deceased persons and

prepared inquest reports and other relevant papers; P.W. 8

constable Ravindar Singh who brought the dead bodies to

the mortuary for post-mortem; P.W. 9 Mitthan Lal Jain

who conducted identification parade; P.W. 10 Inspector

R.P. Gupta who investigated the case and submitted

charge sheet; P.W. 11 Adesh Dhankar who operated the

injured Baleshwar and P.W. 12 Rajesh Prasad Yadav who

conducted the investigation of the case after inspector R.P.

Gupta and submitted the charge sheets.

17.On conclusion of the prosecution evidence,

statements of the appellants were recorded under Section

313 Cr.P.C. wherein they had denied all the allegations

made against them.

18.The defence opportunity was given to the accused

persons but no evidence was adduced.

19.The learned trial court passed the order dated

21.4.1999 convicting and sentencing the appellants as

aforesaid, hence this appeal.

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20.Heard Sri Dharmendra Singh and Sri Akhilesh Kumar

Mishra, learned Advocates for the appellants, Sri

Dharmendra Singh, learned Amicus Curiae appearing on

behalf of appellant Sri Ram and learned A.G.A. for the

State and perused the record.

21.Learned counsel for the appellants submits that

learned trial court had not made proper appreciation of

evidence on record but passed the judgment and order

against the established principles of law. There was no

motive with the accused persons, to commit murder of the

deceased persons. The incident took place in the mid of

the night when identification of accused persons was not

possible. There was no source of light. All the prosecution

witnesses could not identify the accused but they have

deposed on the basis of hearsay. There are contradictions

in the statements of Prosecution Witnesses. No any public

witness was present to see the incident except the

relatives of the deceased whose testimony cannot be said

to be reliable they being interested witnesses. Though

Prosecution Witnesses had stated that accused persons

had committed murder of deceased persons but no

specific role had been assigned to any of the accused. In

this way, the conviction as recorded by the learned trial

court is not sustainable and it is to be set aside.

22.Learned A.G.A., in rebuttal, urged that though there

was no personal enmity or motive with the accused

against the deceased persons but there was communal

rivalry between two gangs and that was the reason for the

murder. At the time of incident, there was light of lantern

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and lamp at the place of occurrence wherein accused

persons were identified by the Witnesses, who had also

sustained injuries in the same occurence. Accused persons

were well identified by the Witnesses and the

contradictions in the statements of witnesses are minor

which do not affect their credibility. The Prosecution

Witnesses are though relatives but they are natural

witnesses and injured in the same occurence which fact

prove their presence on the spot. In this way, the learned

trial court has convicted the accused persons on the basis

of the evidence on record and the decision cannot be said

to be illegal but these appeals lack merit and are liable to

be dismissed.

23. From the submissions made by the learned counsels

for parties, the following questions emerge for

consideration by this Court- (i) as to whether there was

motive to commit murder of the deceased persons, (ii)

source of light in which accused were identified, (iii)

contradictions in the testimony of witnesses affecting the

very root of the prosecution case and (iv) Prosecution

Witnesses being relatives and interested are reliable.

24.Before we deal with the contentions of the learned

counsel for the appellants, it would be convenient to take

note of the evidence adduced by the prosecution.

25.P.W. 1 Ved Prakash who is informant, deposed that on

the date of the incident, i.e. 16/17.1.1997 in the night, he

was sleeping with his uncle Rohtash Singh in the Varandah

where lantern was lit inside Dukdiya (a room) Mauli,

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Sanjay, Narendra, Baleshwar, Vijendra were sleeping. At

about 12 o’clock, Sriram and his companions came there

and woke up his uncle Rohtash and told him to get the

door opened. His uncle then told the informant that

accused were the members of Sriram gang and he knew

them. They were 12-13 in number, out of which Sriram

had rifle and others were equipped with countrymade

pistols and rifles. Seeing them, the informant hid under

the hut on the eastern side of the place. In the meantime,

he heard the sound of firing and accused persons were

abusing that they had taken the revenge of ‘Ikwara Kand’.

Accused persons were carrying torches and went away.

Thereafter, the informant came inside where members of

his family were lying dead and lamp was lit. He saw in the

light of the torch that Mauli, Sanjay and Narendra were

lying dead and his uncle Rohtash, brother Baleshwar both

were injured. Vijendra his cousin, ran away from the gate

on the eastern side and accused persons went away

towards the side of the river Ganga while abusing.

Thereafter, Dhan Singh came there and told that Sriram

Gang had killed his cousins Kartar Singh, Babu and his son

Subhash and the incident took place in the room

(baithaka) of Kartar Singh. Dhan Singh also disclosed the

names of accused persons namely, Sriram, Rajveer,

Ganesh, Banti, Rajveer s/o Natthu, Shekhar, Pramod. He

along with Dhan Singh, injured Rohtash and Baleshwar

went to the police station by tractor where he gave the

written report. P.W.1 proved the written report in his

handwriting and signature as Ext. Ka-1. P.W.1 further

stated that police went to his village with him and seeing

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that Narendra was breathing, took him to the hospital.

Police prepared the memos relating to torch, lantern &

lamp and handed over to him after taking his signature on

the memo which he proved as Exhibit- 1, 2 & 3.

This witness was cross-examined by the defence at

length wherein he asserted the facts stated before.

Nothing adverse to the prosecution could come out in his

cross-examination.

26.P.W. 2 Rohtash, an injured witness, deposed that

there was dispute between Sriram Harijan and Karodi

Gurjar wherein several people were murdered from both

sides. On 5.1.1997, Karodi committed murder of six

Harijans in the forest of Ikwara. On 16/17.1.1997, in the

night at about 12 o’clock, He and his nephew Ved Prakash

were sleeping in the Varandah. In the meantime, Sriram,

Ganesh, Rajveer, Banti, Pramod, Shekhar, Rajveer s/o

Natthu Alipur Morna Wala and 4-5 other persons to whom

he knew came there. Sriram had rifle and other six

persons had pistols. Lantern was lit where he was sleeping

up in the light of which he had identified aforesaid seven

persons. Sriram woke up him and asked to get the door of

dukdiya opened at which he made a call to his sons. Those

who were sleeping inside were named as, Mauli, Vijendra,

Baleshwar, Narendra and Sanjay when the door was

opened all the accused persons took P.W.2 also inside

where they started firing causing injuries to Sanjay, Mauli

and Narendra. He thought that all the three persons dead

but Narendra did not die and Baleshwar also sustained fire

arm injuries. Vijendra ran away and did not sustain any

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injury. P.W.2 himself also sustained fire arm injury on his

hand which was caused from the distance of 2½ -3 feet.

Thereafter, accused persons came out abusing Gurjar

community. Sriram said that he took revenge of Ikwara

Kand and the accused then went to the house of Kartar

where they made fires causing injuries to Kartar, Babu and

Subhash who had died on the spot from where Dhan Singh

escaped and came to him and told about the incident.

Later on the assailants went towards the Jungal. The

report regarding the incident was lodged by his nephew

Ved Prakash (P.W.1) then P.W.2 was brought by the police

to Meerut for medical examination. Narendra whom he

knew to be dead was also brought to Meerut by Dhan

Singh for treatment where he had died as a result of fire

arm injury in the Medical College, Meerut.

This witness was also subjected to lengthy cross-

examination by the learned counsel for defence wherein

he had asserted the facts stated before and no

contradicting fact could be brought in his cross

examination may affect the credibility of this witness.

27.P.W.3 Baleshwar deposed that prior to the alleged

incident, gangs of Sriram and Khaleel of Bastaura were

active. There was struggle between both the gangs and

they committed murders of people from both sides. In the

meantime, gang of Karodi became active and there were

strained relations between Sriram and Karodi who had

committed murders of six Harijans by cutting their throats

on 5.1.1997. Sriram was shocked and on 16/17.1.1997,

he along with his companions Ganesh, Rajveer, Pramod,

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Shekhar, Bhagwandas, bastaura ka Banti, Rohtas and

Rajveer s/o Natthu came to their house. Four other

persons who were with them were not known tohim. At

that time, he,P.W.3. his elder brother Mauli, younger

brother Narendra, youngest brother Sanjay were sleeping

inside the room and Vijendra was also with them. His

father Rohtash and cousin Ved Prakash were sleeping in

the Varandah outside the room. At about 12 o’clock in the

night, his father called him to open the door at which he

opened the latch. As soon as he opened the latch, Sriram

and his companions came inside the room and started

firing. Vijendra ran away from the spot. Mauli, Sanjay and

Narendra were shot, out of which Sanjay, Mauli had died

on the spot but Narendra was breathing. He (P.W.3.)

himself sustained fire-arm injuries and fell down and while

lying down he identified all the accused persons, who were

wearing police dress. He (P.W.3) saw the accused persons

in the light of lamp lit in the room, they were known to

him from before as they used to visit in the village, from

before. The houses of Harijans. He and his father

sustained injuries in the incident, thereafter, gang of

Sriram and his companion went to the house of Kartar

which was situated at a distance of 15-20 steps from his

house. P.W.3 classified that sounds of firing came from

the house of Kartar Singh and on the basis of which he

stated that Sriram and others went there. Kartar, Babu

and Subhash s/o Dhan Singh were murdered but Dhan

Singh escaped and came there and narrated the incident

to his father. Thereafter he (P.W.3) was brought to

Hashtinapur in unconscious state. He was brought to P.L.

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Sharma Hospital in a jeep of police from Hashtinapur and

then Lokpriya Hospital where he was treated. He sustained

fire arm injury on his temple, right shoulder and left thigh.

Prior to this incident, Sriram used to meet the people

belonging to Gurjar caste but since Karodi committed

murder of Harijans, he became opposed to ‘Gurjar’ caste.

This witness was also subjected to lengthy cross-

examination but nothing adverse could be brought out.

This witness categorically asserted the involvement of the

appellants in the incident.

28.P.W. 4 Dhan Singh deposed that he lived in

Hashtinapur. He was ordinary resident of Bhikund where

his agricultural land was situated. On 16.1.1997 he, along

with his son Subhash went to Bhikund for managing his

agriculture field. Being late in the evening, he and his son

stayed in the village at the Chaupal of his cousins Kartar

Singh and Babu. He and Babu were lying asleep in

Varandah and his son Subhash was sleeping inside the

room behind the window. In the night at about 12.15

p.m., he woke up with the sounds of firing from the side

of Rohtash, and heard the noise that we took revenge of

Ikwara Kand and killed Gurjars. As he heard the noise, he

hid himself in the room for buffalo and in the meantime,

accused persons came near the cot of Kartar and Babu.

There was lantern placed on the window in the light of

which he had identified the accused persons as Rajveer,

Ganesh, Rohtash, Sriram, Banti, Shekhar, Pramod and

Rajveer. There were 4-5 other persons whom he could

identify with face but they were not known to him from

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before. P.W.4 also identified the aforesaid named eight

accused persons in the Court. P.W.4 stated that the

accused persons made fires at Kartar, Babu, then at

Subhash. All the three persons had died on the spot. He

saw the accused persons while making fires at the

deceased. The place where he was hiding the cots of

Kartar and Babu were visible and also the place where

Subhash was lying asleep as window into the door was

fitted. Karodi Gurjar had committed Ikwara Kand prior to

the present occurrence wherein Harijans (chamar) were

killed and on account of which, the accused persons had

attacked on them being ‘Gurjars’. The accused went

towards the Jungle on the side of the river Ganga while

abusing Gurjars. When the accused were going back, he

threw light with his torch on which they cried that

someone had been left and thereafter they fled away. He

went to the house of Rohtash where he met the injured

Rohtash who was weeping and saying that his three sons

were killed and also he and his son Baleshwar were

injured. P.W.4 stated that he told Ved Prakash that the

accused persons had also killed his son Subhash, cousins

Kartar and Babu. Thereafter taking the injured Rohtash

and Baleshwar in a tractor-Buggi they went to the police

station Hashtinapur. On the way, he got off the tractor and

went to inform his father and wife. His house was located

at Ramleela Ground Hashtinapur. Information was given

by Rohtash (P.W.2) at the police station and the report was

given by Ved Prakash (P.W.2). After giving information in

his house, P.W.3 again went back to the village Bhikund at

about 4.30 o’clock. He further deposed that he went to the

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Jail, Meerut for identifying the accused persons in the

identification parade and identified the accused namely

Charan Singh and Raju. He saw them at the place of the

occurrence and from then till the time of identification, he

never saw those two accused persons. P.W.4 also identified

accused Charan Singh in the court.

This witness was also subjected to lengthy cross-

examination wherein he categorically reiterated the facts

stated before.

29.P.W.5 H.C. Bachchhraj Singh deposed that he was

posted as the head constable at the police station on

16.1.1997 and lodged the F.I.R. as Crime No. 08 of 1997

under Sections 147, 148, 149, 302, 307 IPC on the basis

of the written report. He proved the check F.I.R. in his

hand-writing and signature as Ext. Ka-3 and G.D. entry as

Ext. Ka-4.

30.P.W. 6 Dr. Ashok Kumar Yadav who conducted the

postmortem of dead bodies of the deceased persons

deposed that on 18.1.1997, he was posted at Pyare Lal

Sharma hospital, Meerut where he conducted the

postmortem of deceased Mauli, Sanjay, Babu, Subhash,

Kartar Singh, Narendra and prepared postmortem reports

describing the injuries on their persons in his hand-writing

and signature and proved them as Ext. Ka-5 to 10.

31.P.W. 7 Brij Mohan Rana deposed that, on 17.1.1997,

he was posted at the police station Hashtinapur as S.I.

and on that day, Crime No. 08 of 1997 under Sections

147, 148, 149, 302, 307 IPC was registered. The

18

investigation of which was handed over to Station Officer

R.P. Gupta with whom he also went to the place of

occurrence and conducted inquest of the deceased persons

on the direction of the Investigating Officer and also

prepared the inquest reports and other relevant papers for

postmortem in his hand-writing and signature which he

proved as Ext. Ka-11 to 35. P.W.7 further deposed that the

inquest of the deceased Narendra was conducted by S.I.

A.K. Sharma who prepared the inquest report with

relevant papers for postmortem, which he also proved as

Ext. Ka-35 to 40 recognising the hand-writing of S.I. A.K.

Singh. P.W.7 proved the recovery memos relating to the

samples of cushion, blood stained and plain soil, empty

cartridges, blood stained quilt, bedsheet taken from the

place of occurrence as Ext. Ka-41-51 and also proved the

sealed bundles of articles taken into possession from the

place of occurrence as Material Ext. 1 to 28.

32.P.W. 8 Constable Ravindra Singh deposed that he was

posted as constable at P.S. Hashtinapur on 17.1.1997 and

he along with constable Jagpal was handed over the

sealed dead bodies of the deceased persons to carry them

for postmortem. He took the sealed dead bodies with

papers for postmortem. After postmortem, he handed over

the bodies to the members of their family.

33.P.W. 9 Mitthan Lal Jain, Special Executive Magistrate

deposed that on 2.6.1997 he conducted the identification

parade of accused Charan Singh in the District Jail, Meerut

and prepared identification memo in his hand-writing and

signature as Ext. Ka-52. He further deposed that on

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12.3.1997 he conducted the identification parade relating

to the accused Pintu and Raju and prepared the

identification memo in his hand-writing and signature

which he proved as Ext. ka-53.

34.P.W.10 Inspector R.P. Gupta who investigated the

case deposed that, on 17.1.1997, he was posted as the

Station Officer at Police Station Hashtinapur. On that day,

Crime No. 08 of 1997 under Sections 147, 148, 149, 302,

307 IPC was registered on the basis of the written report

given rendered by the informant Ved Prakash and the

investigation was handed over to him. During

investigation, he visited the place of occurrence, after

copying the report and F.I.R. in the case diary he recorded

the statements of the informant and eye witness Dhan

Singh, instructed S.I. V.M. Rana to conduct the inquest of

the deceased persons. He also inspected the spot and

prepared the site plan in his hand-writing and signature

which he proved as Ext. Ka-54. P.W.10 further deposed

that he also prepared the memo relating to lantern and

torch in his hand-writing and signature which he proved as

Ext. Ka-55. He made arrests of the accused persons and

recorded statements of other witnesses relating to the

incident and after concluding the investigation, submitted

the charge sheet in his hand-writing and signature against

accused Sriram, Ganesh, Rajveer s/o Harbans, Rajveer s/o

Natthu, Shekhar, Pramod, Vijendra @ Banti and Rohtash

which he proved as Ext. Ka-56. He also proved the test

reports obtained from F.S.L. Agra as Ext. Ka-57 to 63.

35.P.W. 11 Dr. Adesh Dhankar deposed that he was

20

posted as the Plastic Surgeon in Lokpriya Hospital on

17.1.1997. He conducted operation of injured Baleshwar

and recovered a bullet from below his eye regarding which

he had prepared the report in his hand-writing and

signature and proved as Ext. Ka-64.

36.P.W. 12 S.I. Rajendra Prasad Yadav deposed that, on

17.1.1997, he was posted at P.S. Hashtinapur and Crime

No. 8 of 1997 under Sections 147, 148, 149, 302, 307 IPC

was investigated by Station Officer R.P. Gupta after whose

transfer the investigation was handed over to him. He

made arrests of the accused Sriram, Charan Singh and

Raju and submitted charge sheets against them in his

hand-writing and signature which he proved as Ext. Ka-65

to 67.

37.Now, we are required to consider the testimony of

witnesses of fact as to whether they are reliable and

trustworthy. P.Ws. 1 to 4 are witnesses of fact. P.W.1 Ved

Prakash, P.W. 2 Rohtash and P.W.3 Baleshwar were lying

asleep in one place, which was the house of Rohtash. All

these witnesses were present on the spot at the time of

the incident and saw the accused-appellants in the light of

lantern and lamp which was lit up. There in the varandah

and also the room where deceased Mauli, Sanjay and

Narendra were sleeping with P.W. 3 Baleshwar, who also

sustained gunshot injuries on his person. P.W.2 Rohtash

also sustained injuries in the same occurence. P.W. 1

stated that the names of the accused appellants were

disclosed to him by P.W.2 Rohtash who had identified

them. P.W.3 Baleshwar also identified the accused-

21

appellants on his own. P.W.4 Dhan Singh was lying asleep

in the house of his cousins Kartar Singh and Babu where

his deceased son Subhash were also asleep. The accused-

appellants who by making fires had killed three persons in

the house of the deceased were identified by P.W.4 Dhan

Singh in the light of lantern. The cause of murders was

revenge of Ikwara Kand wherein six Harijans were done to

death by cutting their throats by the gang of Karodi

Gurjars who was opponent to Sri Ram gang, by causing

six murders of Gurjars were killed in the present incident.

P.W.1 and P.W.3 heard the appellants uttering the words at

the time of occurrence that they took the revenge of

Ikwara Kand.

38. Learned counsel for appellants argued that there are

contradictions in the statements of the prosecution

witnesses which make them unreliable. In this regard, it is

to note that P.Ws. 1 to 4 have been subjected to lengthy

cross-examination which was done in several parts and

after a year from the incident wherein six persons were

murdered. In such a situation, it cannot be expected from

the witnesses that they would remember each and every

event without any slip particularly where the witnesses are

villagers and unaware to the tricks of wise counsels and

their style of putting questions before them. In spite of

this, all the witnesses had answered the questions as they

remembered. Though there are some minor variations

relating to some facts but those variations are not of such

nature that can be said to make their testimony

unbelievable. There appears to be no exaggeration in the

22

statements of four witnesses they had narrated the

incident in a natural way as it had happened. There is no

contradiction or variation regarding identification of the

accused persons involved in the incident. The

contradictions and variations in the testimony of witnesses

are natural and of cosmetic nature which cannot affect

the very root of the case and, therefore, negligible. It is

well settled in law that minor discrepancies are not to be

given undue emphasis and the evidence is to be

considered from the point of view of trustworthiness. It is

only the serious contradictions and omissions which

materially affect the case of the prosecution but not every

contradiction or omission, to be given undue importance.

39.The learned counsel for the appellants also drew the

attention of the Court towards the absence of personal

motive to commit the murder. He urged that the

prosecution had failed to prove motive on the part of the

appellants to commit the crime.

40.In this regard, it is fairly well settled that while

motive does not have major role to play in cases based on

eye witness account of the incident, it assumes

significance in cases that rest on circumstantial evidence.

There is no such principle or rule of law that where the

prosecution fails to prove motive for commission of the

crime, it must necessarily result in acquittal of the

accused. Where 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 crime has not been

23

proved.

41.In State of Himachal Pradesh Vs. Jeet Singh

1999 (38) ACC 550 SC, it was held that no doubt it is a

sound principle to remember that every criminal act was

done with a motive but it's corollary is not that no offence

was committed if the prosecution failed to prove the

precise motive of the accused to commit it as it is almost

an impossibility for the prosecution to unravel full

dimension of the mental deposition of an offender towards

the person whom he offended.

42.This Court has also made such observations in the

case of Rameshwar and others vs. State 2003 (46)

ACC 581 that when there is direct evidence, the motive

was not important. Likewise in the case of State of

Haryana vs. Sher Singh and others 1981 Cr. Ruling

317 SC it has been held that the prosecution is not bound

to prove the motive, more so, when crime is proved by

direct evidence.

43. In the case at hand, it has been stated by the

prosecution witnesses that there was rivalry between Sri

Ram Gang and Karori Gurjar Gang. Karori Gurjar

committed murder of six harijans by cutting their throats

in Ikwara jungle which shocked Sri Ram and he also

promised to take revenge. In pursuance thereto he

committed six murders of six Gurjars in the present

incident. The witnesses ( P.W.1 and P.W.3) categorically

stated that they heard the cries that the appellants took

revenge of Ikwara Kand. In this way, there was communal

24

rivalry which became the main cause of the commission

of this massacre though there was no individual grudge

with the deceased persons. Where there is communal

rivalry, no one thinks about individual interest of others

but to show their power or feeling of revenge, they

commit such incident based on the particular community

or caste. The present incidents was also committed by the

accused persons with the view to take revenge for their

community.

44.It has also been argued that the incident took place

in the mid night and all the accused persons were

equipped with firearms, therefore, it was not possible for

the witnesses to identify them. In this regard, PW.1 and

PW.2 have categorically stated that they were sleeping in

the veranda where lantern was lit and PW.3 was sleeping

in the room (Dukaria) where lamp was lit. In the light of

lantern and lamp, the witnesses had identified the accused

persons. PW.2 Rohtash was woken up by the accused

persons and told to get the door opened. He called his

sons who opened the door of the room from inside, where

PW.3 Baleshwar was also sleeping with his other brothers.

Since there was light of lantern and lamp and there was

conversation between PW.2 with the assailants, therefore,

PW.2 had sufficient opportunity for identifying the accused

persons. It cannot be said that on account of darkness, he

could not identify them. Likewise, PW.3 Baleshwar who

was also inside the room where his other three brothers

were shot dead and he himself was injuried, had all the

opportunity to identify the accused persons. It has also

25

been stated by the witnesses that the accused persons

used to come to their village, so they were known to

them. Sri Ram used to come in the house of Gurjars in the

village but got annoyed with the incident wherein Karori

Gurjar Gang committed murder of six Harijans in the

jungle of Ekwara by cutting their throats. PW.4 Dhan Singh

was also sleeping in the verandah of house of Kartar

Singh. When he saw the accused persons coming towards

his house and heard their utterance that they had taken

revenge of Ekwara Kand, he hid himself in the room where

buffalos were kept and saw the accused persons in the

light of lantern placed at the open window. Even during

the cross-examination of these witnesses nothing could be

brought on record so as to make the identification of

accused persons doubtful. In this way, there is no any

doubt in the identification of accused persons by the

Prosecution Witnesses.

45. Regarding the accused/appellant Rohtash, it has been

argued by the learned counsel the appellant that PWs.1 &

2 had not named him as an accused, except P.W.3,

therefore, his involvement cannot be said to be proved. It

is true that the name of Rohtash was not mentioned in

F.I.R. which was lodged by P.W.1 Ved Prakash. P.W.2 also

did not name him. P.W.3 Baleshwar, however, had named

him to be a member of the gang. PW.3 is an injured

witness and he was within the room where his three

brothers were murdered. His account about the incident

cannot be brushed away. Likewise PW.4 Dhan Singh also

stated about his involvement of appellant Rohtash in the

26

incident. In this way, according to eye-witness account of

injured witness PW.3 and PW.4, the involvement of

accused/appellant Rohtash is also proved. There is nothing

on record to show that his involvement is doubtful.

46.From PW-1 to 4, all are related to each other and also

to the deceased persons regarding which the argument

had been made that all these witnesses being relatives

and highly interested, are not reliable in the lack of

account of an independent witnesses in support of their

case. No doubt the prosecution witnesses from PW-1 to 3

relating to the fact as examined in the case are members

of the same family. P.W. 1 Ved Prakash is nephew of P.W. 2

Rohtash and P.W. 3 is son of P.W. 2 who is also father of

deceased Mauli, Sanjay and Narendra. Likewise, P.W.4

Dhan Singh is father of deceased Subhash. Thus, all of

them are related to the deceased persons but their

relationship itself is not a ground to reject the testimony of

the witnesses, rather a family member would be last

person to leave the real culprits and falsely implicate any

other innocent person.

47.In this case, the incident took place in the mid of

night in the houses of Rohtash and of deceased Kartar

Singh where Dhan Singh (P.W.4) and his son Subhash

were sleeping. At that time, presence of other persons of

the village was not be possible. Except the family

members, no one else could be the natural witnesses of

the incident.

48.In the case of Brahm Swaroop and another vs.

27

State of U.P. (2011) 6 SCC 288 the Apex Court in Para

No.21 has observed as under

“merely because the witnesses were related to the

deceased persons, their testimonies cannot be

discarded. Their relationship to one of the parties is

not a factor that affects the credibility of a witness,

more so, a relation would not conceal the real culprit

and make allegations against an innocent person. A

party has to lay down a factual foundation and prove

by leading impeccable evidence in respect of its false

implication. However, in such cases the Court has to

adopt a careful approach and analyse the evidence to

find out whether it is cogent and credible evidence.”

49.The Court also referred cases of Dalip and others

vs. State of Punjab A.I.R. (1953) SC 364; Masalti vs.

State of U.P. (A.I.R.) 1965 SC 202.

50.In Masalti vs. State of U.P. A.I.R. 1965 SC 202,

the Apex Court observed in Para No.14

“but it would, we think, be unreasonably to contend

that evidence given by witnesses should be discarded

only on the ground that it is evidence of partisan or

interested witnesses. The mechanical rejection of such

evidence on sole ground that it's partisan would

inveriably lead to failure of justice. No hard and fast

rule can be laid down as to how much evidence should

be appreciated. Judicial approach has to be cautious in

dealing with such evidence; but the plea that such

evidence should be rejected because it's partisan

cannot be accepted as correct.

51.It is common knowledge that village (mohalla) life is

faction ridden and involvement of one or the other in the

incidents is not unusual. One has also to be cautious about

the fact that wholly independent witnesses are seldom

available or are otherwise not inclined to comeforth. Lest

they may invite trouble for themselves for future.

Therefore, relationship of eye-witnesses inter se, cannot

28

be a ground to discard their testimony. There is no reason

to suppose the false implication of the appellants at the

instance of the eye-witnesses. It would also be illogical to

think that witnesses would screen the real culprits and

substitute the appellants for them.

52.This Court has also made such observations in Para

No.14 of Rameshwar and others vs. State 2003 (46)

ACC 581.

53.It is pertinent to note that PW-2 Rohtash and PW-3

Baleshwar are injured witnesses and their presence on the

place of occurrence cannot be disputed. It can also not be

said that they would conceal the names of real assailants

and implicate the false ones.

54.It is a settled law that testimony of injured witness is

considered to be very reliable and is accorded a special

status in law. The statement of an injured witness is

generally considered to be very reliable and it is unlikely

that he has spared the actual assailants in order to falsely

implicate someone else. The testimony of an injured

witness has its own relevancy and efficacy as he has

sustained injuries at the time and place of occurrence and

this lends support to his testimony that he was present at

the time of occurrence. There must be convincing evidence

on record to discredit the testimony of an injured witness.

55.In the case of State of U.P. v. Naresh & Ors.

(2011) 4 SCC 324, it was held that the evidence of an

injured witness cannot be doubted merely because there is

a background of previous dispute or enmity between the

29

parties because this could well be the motive of causing

assault by the accused on injured witnesses. The evidence

of an injured witness has to be appreciated keeping in

view that ordinarily a person, who has been assaulted by

someone would not allow him to go scot free and falsely

implicate persons other than those who actually assaulted

him. The evidence of an injured witness stand on different

pedestal as compared to any other witness cited by the

prosecution as eye witness, who claims to have seen the

incident. Where an injured witness clearly named the

persons and the assault made on him by those persons

which is broadly corroborated with what has been found in

the medical report, even though there may not be any

mathematical precision with regard to the manner of

assault, the evidence of an injured eye witness cannot be

lightly thrown because of certain minor contradictions and

omissions. It cannot be a case of some exaggeration or it

could even be some discrepancy in recollecting the whole

incident with exactitude and certainty but on certain minor

discrepancy disbelieving altogether the testimony of an

injured eye witness, would be against the settled principle

of appreciation of evidence.

56.In the case of Bhajan Singh Vs. State of Haryana

(2011) 7 SCC 421 it was observed that in Para No.21 :-

21. The evidence of the stamped witness must be

given due weightage as his presence on the place of

occurrence cannot be doubted. His statement is

generally considered to be very reliable and it is

unlikely that he has spared the actual assailant in

order to falsely implicate someone else. The

testimony of an injured witness has its own relevancy

and efficacy as he has sustained injuries at the time

30

and place of occurrence and this lends support to his

testimony that he was present at the time of

occurrence. Thus, the testimony of an injured witness

is accorded a special status in law. Such a witness

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". Thus, the evidence of

an injured witness should be relied upon unless there

are grounds for the rejection of his evidence on the

basis of major contradictions and discrepancies

therein. (Vide: Abdul Sayeed v. State of Madhya

Pradesh (2010) 10 SCC 259; Kailas & Ors. v. State of

Maharashtra (2011) 1 SCC 793; Durbal v. State of

Uttar Pradesh, (2011) 2 SCC 676; and State of U.P.

v. Naresh & Ors., (2011) 4 SCC.

57.Therefore, in the light of law reproduced as above

and applying the same to the facts of the present case, it

can be categorically stated that the testimony of the

injured witnesses in the present case is absolutely clear

and cogent and free from any kind of discrepancies,

embellishments and concoctions. Thus, no ground is made

out for brushing aside the testimony of the injured

witnesses. There are no grounds for rejection of the

evidence of PW-2 and PW-3 as discussed above unless and

until there are no major contradictions and discrepancies

in the testimony of injured witnesses,there arises no

reason for either doubting their presence at the spot of

incident or for that matter questioning the injuries suffered

by them. Moreover, in the case at hand, the testimony of

PW-2 and PW-3 is not only firm, cogent and convincing but

is also in consonance with the medical evidence on record.

58.Injuries on the person of deceased Mauli, Sanjay,

Naredra, Kartar, Babu and Subhash were caused by fire

31

arms as stated by P.Ws. 1 to 4. Ext. Ka-5 to 10 are the

postmortem reports wherein gun shot injuries were found

on the persons of the deceased and P.W. 6 Dr. Ashok

Kumar Yadav had proved the injuries and stated that

except deceased Narendra, all the deceased persons had

died due to fire arm injuries and the death of Narendra

was caused as a result of injuries caused with sharp edged

weapon like farsa. He also stated that the death of all the

deceased persons was possible in the mid night at about

12 o’clock on 16/17.1.1997. It is noteworthy that in

postmortem of the deceased Narendra, an incised wound

was found on his head and one entry and exit wound was

also found on the upper part of the right shoulder which

was caused by fire arm. During his cross-examination,

nothing has been stated by the witness (P.W.6) as to infer

that the injuries as aforesaid were not caused by fire arms

and at about the aforesaid time. In this way, the injuries

on the body of the deceased persons are proved to have

been caused by fire arms in the night at about 12 o’clock

on 16/17.1.1997 and it also corroborate the manner of

causing injuries resulting into death as stated by P.Ws. 1

to 4. In this way, the eye witness account finds support

with the medical evidence available on record.

59. The incident is said to have taken place in the house

of Rohtash and Kartar. In the site plan Ext. Ka-54, the

place of occurrence has been shown to be the house of

Rohtash and Kartar. Blood was also found there. The

investigating Officer S.I. R.P. Gupta had proved the site

plans and no question relating to the place of occurrence

32

was put to him during his cross-examination. Blood

stained and plain soil were collected from those places by

the Investigating Officer regarding which the reports were

obtained from F.S.L. which are on record as Ext. Ka-57 to

63, and thus indicate that the samples as positive.

60.P.Ws. 1 to 4 also stated about the place of

occurrence being the house of Rohtash and Kartar, thus

the place of occurrence stood proved and no dispute in

this regard could be raised by the learned counsel for the

appellants.

61.There is no delay in lodging the F.I.R., occurrence

took place at about 12 o’clock in the night of 16/17.1.1997

and the F.I.R. was lodged at 3.10 am on 17.1.1997 after

three hours and ten minutes of the incident. The distance

between the place of occurrence and the police station

was 7 km. The time gap of three hours in lodging the

F.I.R. cannot be treated to be a delay. In such a situation,

where six persons were gunned down and others were

injured and the incident took place in the mid night the

time taken by the witnesses to reach at the police station

and lodge F.I.R is justifiable. The F.I.R. was thus, prompt

which does not leave room for any doubt or deliberations.

62.There is not even an iota of evidence on record which

could suggest that PW-1 to PW-4 had any other grudge

against the appellants in any case to implicate them

falsely.

63.To sum up, we do not find any major contradiction

either in the evidence of the P.Ws. 1 to 4 or conflict in the

33

medical and ocular evidence of P.Ws. 1 to 4 which would

tilt the balance in favour of the appellants. The minor

improvements, embellishments etc, apart from being for

yield of human faculties are insignificant and ought to be

ignored since the evidence of the witnesses otherwise

overwhelmingly corroborate each other in the material

particulars. The testimony of P.Ws. 1 to 4 gets support

with the medical as well as other evidence on record. The

method, time and manner of causing death, the weapon

used, the place of occurrence and promptness in lodging

the F.I.R., all these factors corroborate the occular

testimony of the prosecution witnesses. The presence of

witnesses on the spot cannot be said to be doubtful, as a

result of the evidence of P.Ws. 1 to 4 Ved Prakash,

Rohtash, Baleshwar and Dhan Singh being wholly reliable

and trustworthy.

64. Having regard to the evidence on record, we are of the

opinion that the trial court has correctly analyzed the

material on record in the factual as well as legal

perspectives to arrive at its conclusion. The judgment and

order of conviction and sentence passed by the learned

Sessions Judge, Meerut stands intact and is hereby

affirmed. The appeals filed by the appellants being devoid

of merit are liable to be dismissed.

65.These appeals are hereby dismissed.

66.The appellants are in jail, they will serve out the

remaining period of sentence.

67.Copy of this judgment alongwith the original record

34

be transmitted to the Court concerned for necessary

compliance. A compliance report be sent to this Court

within one month. The office is directed to keep the

compliance report on record.

68.Sri Dharmendra Singh, learned Amicus Curiae

rendered valuable assistance to the Court. The Court

quantifies Rs.15,000/- to be paid to Sri Dharmendra

Singh, Advocate towards fee for the able assistance

provided by him in hearing of this Criminal Appeal. The

said payment shall be made to Sri Dharmendra Singh

Advocate by the Registry of the Court within the shortest

possible time.

Order Date :- 30

th

September, 2022

A. Singh

(Subhash Chandra Sharma,J.) (Sunita Agarwal,J.)