Uttar Pradesh Vs. Moti Ram & Anr  INSC
172 (2 May 1990)
S.R. (J) Pandian, S.R. (J) Reddy, K. Jayachandra (J)
1990 AIR 1709 1990 SCR (2) 939 1990 SCC (4) 389 JT 1990 (2) 358 1990 SCALE
of India--Article 136--Appeal by special
leave by State against acquittal by High Court--Held evi- dence ambulatory and
vacillating--Suffering from insurmount- able infirmities and
probabilities-Suspicion however strong--Not sufficient to take place of legal
proof and warrant finding of guilt against accused.
appeal has been preferred by the State against an order of acquittal recorded
by the High Court in respect of the accused respondent. According to the
prosecution there were two rival factions in village Deotaha (U.P.), one led by
the accused-respondents and the other by the deceased victims. There existed
bitter enimity between the two fac- tions, one faction was out to take the
blood of another and due to this deep-rooted animosity Accused 1, 2 and 27
hatched a conspiracy with some other associates to murder Prabhu Nath and his
men on 14.1. 1974. on which date they were scheduled to cut the standing sugar
cane in Plot Nos. 736 and 737. It is alleged by the prosecution that in pursu- ance
of this conspiracy, Accused 3 deposited his licensed gun with the arms dealer
on 12.1.1974 with a view to screen himself from any prospective accusation and
Accused 1, 2 and 27 in order to set up a plea of alibi connived with Accused
40, Travelling Ticket Examiner in the Railways, traveled without ticket, got
themselves checked and sentenced to imprisonment by the railway magistrate on
13.1.1974 and were incarcerated in the Gorakhpur jail till 18.1.1974. According
to the prosecution on 14.1.1974, when the deceased 13 per- sons and others went
for cutting the sugar cane crops raised by one of the deceased.
about 1 p.m. by which time the cut crop was
being loaded in the tractor trolley brought by the deceased persons, Accused
persons with their men 80 to 90 in number attacked them with spears, lathes and
pharsas and started firing indiscriminately. The deceased persons and others
ran with a view to save their lives; some hid themselves behind the tractor and
trolley, and others ran towards north and south directions. As a result of the
attack PWs 3 and 24 received injuries and 13 persons suc- cumbed to their
injuries instantaneously. It is alleged by the prosecution that during the
course of the occurrence, the deceased Prabhu 940 Nath who had a gun rued at
the accused party in self-defence and injured Accused 36, Rambali. Thereafter
Accused 10 and 16 covered the dead bodies with sugar cane leaves and sprin- kled
diesel oil by taking it from the tractor and set fire to the bodies. Thereafter
the accused left the scene of occurrence; accused 32 carried away the gun of
the deceased Prabhu Nath. P.W. 1 thereupon lodged the F.I.R. and the police
took up the investigation. After completing the investigation, P.W. 38 laid the
chargesheet in 4 batches which gave rise to 4 different sessions trials which
were disposed of by a common judgment by the Sessions Judge. All the accused
pleaded not guilty and denied their complicity with the offence. Accused 36, Rambali
admitted his presence and stated that the sugar-cane belonged to one Phunni and
not to Tirjugi and his men and while Phunni and his men were cutting the crops,
the deceased Prabhu Nath and other de- ceased persons attempted to forcibly
take away the crops and during the course of such attempt, Phunni and his men
at- tacked the deceased party and that he was shot by the de- ceased Prabhu Nath
when he entreated that the sugar cane should not be taken away. Accused 1, 2
and 27 denied the charge of conspiracy contending that they were in prison on
the date of occurrence consequent upon their conviction by the railway
learned Sessions Judge acquitted 25 accused persons out of the total of 41
accused, viz., 4-6, 11-14, 17-22, 24-26, 28-32, 35 and 39-41 finding them not
guilty of any of the charges and convicted the remaining 16 accused for various
offences and passed sentences of the prisonment in respect of each accused.
be mentioned that Accused Nos. 10 and 16 were convicted under Section 302 read
with Section 149 I.P.C. and each of them was sentenced to death, besides their convic-
tion under Section 307 I.P.C.
the convicted accused filed Criminal appeals in the High Court. The reference
made by the Trial Court for con- firmation of the sentence of death imposed on
A-I0 and A-16 was heard as Referred Case No. 31 of 1976. The State pre- ferred
appeal under Section 378 Cr.P.C. against the acquit- tal of all the 24
acquitted persons. In the case of A-40, the High Court did not grant leave as
required under Section 378(3), Cr.P.C. The High Court disposed of all the
appeals inclusive of the State Appeal and the Referred Case by the common
judgment whereby all the criminal appeals preferred by the convicted accused
except the appeal preferred by Rambali (A-36) was allowed and their sentences
were set aside. The State Appeal was dismissed and the referred case in view of
the acquittal of the accused was rejected. Hence this 941 appeal by the State.
The contention of the State is that the acquittal of the accused is not proper
and unwarranted on the basis of the evidence led in the case.
the appeals, this Court,
When viewed from any angle, the reasons assigned by the High Court for
disbelieving the testimony of all the ocular witnesses are not unreasonable.
The evidence is ambulatory and vasulating besides suffering from insurmount-
able infirmities and improbabilities. The totality of the evidence is unworthy
of the credence when examined by the standard of yardsticks of credibility.
[956G] There is a deliberate false implication of the Accused 1, 2 and 27 to
whom overtacts are attributed in Ex. Ka-1. In fact, the High Court has gone in
great depth into the facts and circumstances of the case and rightly concluded
that the prosecution has miserably failed in establishing the guilt of the
accused except A-36. [956H: 957A] Suspicion by itself however strong it may be
is not sufficient to take the place of legal proof and warrant a finding of
guilt of these three accused. [957C] The entire evidence is nothing but a coloured
version with concocted story and exaggerated account mixed with falsehood and
that the prosecution has miserably failed to make out the charges against all
or any of the accused beyond all reasonable doubt except Rambali (A-36) who
him- self admitted his presence at the scene. [957H; 958A] No doubt it is true
that this heinous offence is diabol- ical in conception and executed in
gruesome and ghastly manner. It is shocking that 13 persons have been done away
with in a broad day light in the course of the same transac- tion. Nonetheless
the Court when satisfied that the evidence adduced by the prosecution is not
only unworthy of credence, but also manifestly and inextricably mixed up with
falsehood cannot be carried away merely on the fact of multiplicity of victims
and on the bias of speculations and suppositions in the confused stream of
facts. The High Court has apprised the evidence in the proper perspective and
arrived at a correct conclusion which is neither perverse nor unreasona- ble. [958D-E]
Balaka Singh & Ors. v. State of Punjab,  4 SCC 511, referred to.
APPELLATE JURISDICTION: Criminal Appeal Nos. 5 17-523 of 1978.
the Judgment and Order dated 17.2.1977 of the Allahabad High Court in Crl. A.
Nos. 1143, Referred No. 31 of 1976 connected with Crl. A. Nos. 1132, 1133,
1156, 1158 of 1976 & Govt. Appeal No. 2129 of 1976.
Raj, Dalveer Bhandari and Prashant Choudhary for the Appellant.
H.K. Pun and C.P. Lal (NP) for the Respondents.
Prasad, Ms. Rachna Gupta and P.K. Bajaj for the Complainant.
Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. It is a very
tragic and pathetic case--tragic in the sense that 13 persons have been massa- cred
in a gruesome and horrendous manner and pathetic in the sense that the culprits
burnt the victims of this barbaric act by covering with sugarcane leaves and
sprinkling with diesel oil. At the same time, we are deeply distressed and
pained to note that three of the accused persons i.e. A-1, A-2 and A-27, who
were in prison on the date of occurrence are falsely implicated as having taken
part in the occur- rence and the main witness, Nitya Nand (PW-1) has made a
deliberate and suborn perjury by naming these three accused persons even in the
earliest complaint (Ex. Ka-1) with an oblique motive of obtaining conviction of
these accused also.
at the threshold, we would like to point out that as the appellant has not
furnished the correct list of the array of the accused with reference to each
of the four sessions trials in a chronological manner, we with great difficulty
have culled out the names of the accused persons and the sessions trial case
numbers from the body of the judgment of the Trial Court and appended a list of
the names of the accused as Annexure 'A' to this judgment so that we may not
experience any difficulty in understanding and appreciating the prosecution
were 41 accused in total who took their trial in sessions trial case Nos.
A-119, A-160, A-265/74 and A-27/75 as indicated by us 943 tO the foot-note to
Annexure 'A'. The Trial Court convicted 16 accused under various provisions of
the Indian Penal Code and the Arms Act and acquitted the remaining 25 accused.
In this judgment, we are referring to the accused persons in the order, as arrayed
in Annexure 'A'.
13 persons ranging between 22-25 years of age were done away with in the
occurrence. Two other per- sons, namely, Jama (PW-3) and Balai (PW-24) escaped
with injuries. Of the deceased persons, one by name Kedar be- longed to a
village called Baluahi, whereas the rest of the deceased persons belonged to a
village called Deotaha, to which village the injured persons belong. The
deceased persons are either the members of the family or associates of the
complainant, Nitya Nand (PW- 1) whose father was one among the 13 deceased
persons. Of the accused, some are inter-related and the rest are associates.
scene of occurrence lies within the limits of Nebua Naurangia Police Station in
the District of Deoria in the state of U 'PAt a distance of 10 miles to the
west of this police station, there is a village known as Bali. A few furlongs
to south of Bali, the village Deotaha is situated.
agricultural area of the village Bali extends up to some distance to the west
of village Deotaha. About six furlongs to the west of village Deotaha, there
are two contiguous plots bearing Nos. 736 and 737 without any dividing line.
occurrence in question took place in the very same plots.
were two rival factions in the village Deotaha--in that the deceased persons,
their relations and associates formed one faction and the accused formed the
was deep rooted enmity and simmering feelings between the two groups due to the
a keenly contested Pradhanship election of the vil- lage-Deotaha, the first
accused became successful.
of the deceased Prabhu Nath filed a suit as against A-27 (Jangi) for recovery
of a sum of Rs.20,000 and the suit was decreed on A-27's admission. At the time
of the occur- rence, the execution proceeding in pursuance of the decree was
pending. In that suit, Kedar one of the deceased was a witness supporting the
cause of Prabhu Nath.
15.5. 1973, the first accused and some others attacked one 944 Rajeshwar Tiwari
during the course of which one Saheb be- longing to the accused party was
murdered. The members of both the groups were arrested and sent to jail in
connection with that occurrence.
After their release in the above case, they started damaging each other's
crops. This led to the initiation of a security proceeding under Section 107 of
the Code of Crimi- nal Procedure. In that the party of the first accused was
September 1973, another security proceeding was initi- ated under Section 107
of the Code of Criminal Procedure, wherein A-1, A-27 and 54 others belonging to
A-1's party were bound over.
the above consecutive incidents, these two rival factions were nursing and
nurturing their ill feelings which was gaming momentum day by day, ultimately
culminating into the occurrence in question. We shall now give a brief note of
the prosecution case.
account of the deep-rooted animosity between the parties, the first two accused
and Accused No. 27 hatched a conspiracy with some of their associates to murder
Prabhu Nath and his men on 14.1.1974 when they were expected to be engaged for
cutting the standing sugar cane in plot Nos. 736,and 737. With an intention of
screening himself from any prospective accusation the third accused deposited
his licensed gun on 12.1.1974 with an arms dealer (PW-28) at Gorakhpur. On the same day, namely, on
12.1.1974 at about noon accused Nos. 1, 2 and 27 in order to create evidence of
their alibi entered into an agreement with one S.D. Dubey, who was at that time
working in the Railways as Travelling Ticket Examiner (T.T.E.) and who is shown
as Accused No. 40 in Annexure 'A' to do an illegal act, to wit, to have the
deceased persons murdered by their associates on 14.1. 1974.
pursuance of this conspiracy these three accused (1, 2 and 27) traveled without
tickets by 2 Dn. Mail Train running between Khora Bhar and Gauri Bazar which
stations lie on Gorakhpur-Bhatni line. As these three accused who traveled as ticketless
passengers did not pay the charges due from them to the TTE (Accused No. 40),
they as pre-planned, were apprehended and produced before the Railway
Magistrate on 13.1.1974 who convicted them and sentenced them to imprison- ment
till 18.1.1974. Thus these 3 accused were incarcerated in the Gorakhpur jail
The occurrence in question took place in the afternoon of 14.1. 1974. On the
day of occurrence at about 10.00 A.M.
the 13 deceased persons accompanied by two injured persons PWs 3 and 24 and few
others went to plot Nos. 736 and 737 for cutting the sugar cane crops raised by
one of the deceased--namely Trijugi and his family members. The deceased
persons had also taken a tractor with the trolley attached to it for removing
the sugar canes. By about 1.00 P.M. the entire cane crops had been cut. Some
bundles of the sugar canes already cut had been loaded on the trolley. At this
point of time, about 80-90 persons inclusive of these accused persons armed
with lethal weapons such as fire-arms, spears, lathes and pharsas surrounded
the spot from 3 direc- tions, namely, north, east and west and after nearing
the field started firing shots indiscriminately and also at- tacked the
prosecution party with pharsas, spears and lathes. All those persons who were
cutting the sugar cane crops got panicky and started running helter-skelter.
These unfortunate 13 deceased persons ran towards north evidently to save their
lives by taking positions behind the trolley and the tractor which were parked
just north of the place of occurrence. PWs 3 and 24 and some others ran towards
so running PWs 3 and 24 received injuries. But the other witnesses, namely, Nitya
Nand (PW. 1), Om Prakash (PW. 6), Smt. Mala (PW. 11) and Smt. Chandgudi (PW.
12) escaped unhurt. They all hid themselves in the fields of Hakim and Paras
which lie to the south of the place of occurrence and witnessed the entire orgy
of violence therefrom. The cul- prits chased these 13 deceased persons like
hunters chasing the fleeing beasts and ruthlessly and indiscriminately attacked
them. All the 13 persons instantaneously succumbed to their injuries. The dead
bodies were found lying scat- tered around the tractor and trolley providing a
the course of the occurrence, it is said that one of the deceased Prabhu Nath
who had a gun fired at the accused party in self-defence and injured Rambali
(Accused No. 36).
Nos. 10 and 16 covered the dead bodies with sugar cane leaves and sprinkled
diesel oil taken out from the tractor and set fire to. After committing this
heinous crime, all the culprits left the scene of occurrence. While leaving the
scene, Accused No. 32 carried away the gun of the deceased Prabhu Nath. The
entire occurrence was over within an hour.
the accused persons had left the scene, PW-1 went to the police station which
is at a distance of 10 miles from the scene and presented a written complaint
(Ex. Ka. 1) which was registered at about 2.45 P.M. The 'chik report' (The
First Information Report) is Ex. Ka. 51 the copy of which is Ex. Ka. 52. The
Station House Officer 946 (PW-43) took up investigation and proceeded to the
scene accompanied by his head constable and other constables, after giving
instruction to PW-17 to proceed to the scene by arranging some vehicles. PW-43
reached the scene of occur- rence at 4.00 P.M. and examined PWs 3, 24 and others and sent the injured witnesses for
medical examination. Then PW-43 held inquest over the dead bodies and
thereafter sent the dead bodies for post-mortem examination. After despatch- ing
the dead bodies PW-43 inspected the scene of occurrence and found marks of
pellets on all sides of the trolley and ash of burnt leaves lying around the
trolley. The wheels of the trolley were also found burnt. Two live cartridges
and several used and fired cartridges of 12 bore gun together with the pellets
and some burnt clothes were found by the investigating officer on the spot.
Patches of blood were found at different places. PW-4, the Medical Officer
exam- ined the injured witnesses and found on their person punc- tured wounds
besides abrasions. PW-3 had two gun shot wounds. The Doctor had noted the
injuries. in Exhibits Ka-5 and Ka-6. The Medical Officers, namely PWs 2, 9, 10
and 46 conducted necroscopy on the dead bodies and noted various kinds of
injuries such as incised wounds, lacerated in- juries, contusions and gun shot
wounds etc. There was super- ficial burn on the dead bodies indicating that the
dead bodies were set fire to. PW-43 searched for the accused mentioned in the
F.I.R., but none was available. Then he took proceedings under Sections 87 and
88 of the Code of Criminal Procedure (old). He arrested Accused No. 39 on
16.1.1974 and seized his licensed gun. Accused Nos. 3 and 16 were arrested in
the house of Accused No. 38. A rifle (Ex. 11) and a gun (Ex. 12) were seized by
PW-43 from the house of Accused No. 38. On 16.1.1974, the sub Inspector, PW-43
was suspended. Thereafter the investigation was taken up by the Circle
Inspector of Police on 17.1. 1974. Subsequently, on 21.1. 1974 the investigation
was entrusted to the C.I.D.
PW-38, an Inspector of that branch took up further investigation. During the
investigation he came to know that Rambali (Accused No. 36) was admitted to Gorakhpur
Hospital, but slipped away from the hospital. on 18.1.1974. PW-38 collected
evidence about the arrest of Accused Nos. 1, 2 and 27 by the T.T.E. while the
latter found these three accused travelling without tickets on 12.1.1974. He
sent the two cartridges recovered from the place of occurrence to the ballistic
expert, who opined that the same should have been fired by rifle (Ex. 11). Some
of the accused surrendered before the court on different dates. After
completing the investigation, PW-38 laid the chargesheet in 4 batches which
gave rise to 4 different sessions trials which were disposed of by the learned
Sessions Judge by this impugned common judgment.
All the accused pleaded not guilty and denied their complicity with the offence
in question. Rambali (Accused No. 36) admitted his presence and stated that the
sugar cane crops belonged to one Phunni and not to Tirjugi and his relations
and that while Phunni and his men were cutting the sugar cane crops, the
deceased Prabhu Nath and the other deceased persons attempted to forcibly
taking away the crops and during the course of such attempt, Phunni and his men
attacked the deceased party and that he was shot by the deceased Prabhu Nath
when he entreated that the sugar cane crops of Phunni should not be taken away.
Accused nos. 1, 2 and 27 denied the charge of conspiracy and stated that they
were in prison on the date of occurrence consequent upon their conviction
recorded by the Railway Magistrate for their ticketless travelling.
prosecution in all examined 53 witnesses and filed number of documents. The
accused examined DWs 1-7. Of the witnesses examined by the prosecution, PWs 1,
3, 6, 11, 12, 20 and 24 are ocular witnesses. It may be mentioned here that
PW-20 has been treated as hostile as he has not sup- ported the prosecution
case. Of these witnesses, PWs 3 and 24 were injured witnesses. One Ganga Prasad
Pande mentioned as an eye witness in the F.I.R. was examined as a court witness
(C.W. 1) and he did not support the prosecution version. The learned Trial
Judge believing the plea of accused Nagendra alias Tara (A.4) on the basis of
the evi- dence of DW. 1 (Dr. Krishna Swarup) found this accused as having not
participated in the occurrence. However, he spurned the plea of defence put
forth by rest of the ac- cused.
learned Sessions Judge for the discussions made in his judgment acquitted 25
accused persons out of the total of 41 accused, namely, 4-6, 11-14, 17-22,
24-26, 28-32, 35, 39-41 finding them not guilty of any of the charges and
convicted the rest of the 16 accused under various charges and sentenced them
Nos. 1, 2 and 27 were sentenced to life impris- onment under Section 302 read
with Sections 109 and 120 (B) IPC and Accused Nos. 3, 7, 8, 15, 23, 33, 34, 36
and 37 were convicted under Section 302 read with Section 149 IPC and sentenced
to imprisonment for life and in addition to that, these 9 accused were
convicted under Section 307 read with Section 149 IPC and each of them was
sentenced to undergo rigorous imprisonment for a period of 4 years. Accused No.
9 was convicted under Section 302 (simpliciter) and sentenced to life
imprisonment and convicted under Section 307 (sim- pliciter) and sentenced to 5
years rigorous imprisonment. In addition to that, A. 9 was con- 948 victed
under Section 27 of the Arms Act and sentenced to rigorous imprisonment for a
period of two years and also under Section 147 for a period of one year.
Nos. 10 and 16 were convicted under Section 302 read with Section 149 IPC and
each of them was sentenced to the extreme penalty of law, namely, death. These
two accused A. 10 and A. 16 were also convicted under Section 307 read with
Section 149 IPC and each of them was sentenced to rigorous imprisonment for a
period of 5 years.
Nos. 3, 7, 8, 10, 15, 16, 23, 33, 34, 36 and 37 were convicted under Section
148 IPC and each of them was sentenced to undergo rigorous imprisonment for a
period of one and half years. Apart from this, all the convicted accused
persons except Accused Nos. 1, 2, 27 and 38 were convicted under Section 201
read with Section 149 IPC and each of them was sentenced to rigorous
imprisonment for a period of 4 years. Added to that, all these accused except- ing
the above four were convicted under Sections 435 and 427, IPC and sentenced
each one of the accused to undergo rigorous imprisonment for one year under
each of these two charges. Accused No. 37 was also convicted under Section 27
of the Arms Act and sentenced to undergo rigorous imprison- ment for a period
of two years.
the convicted accused filed Criminal Appeal Nos. 1132, 1133, 1143, 1156, 1157
and 1158 of 1976. The reference made by the Trial Court for confirmation of the
sentence of death imposed on A. 10 and A. 16 was heard as a Referred case No.
31 of 1976. The State preferred an appeal under Section 378 of Cr.P.C. against
the acquittal of all the 24 acquitted persons. It may be mentioned at this
juncture that the High Court did not grant leave as required under Section
378(3) of the Code of Criminal Procedure to entertain an appeal against the
acquittal of S.D. Dubey (A. 40). The High Court disposed of these appeals
inclusive of the State appeal and the Referred case by the common impugned
judgment dated 17.2.1977, allowing all the criminal appeals preferred by all
the convicted accused except the appeal preferred by Rambali (A. 36) and
setting aside the convictions and the sentences of those whose appeals were
allowed. The State appeal was dismissed. The referred case was rejected conse- quent
upon the acquittal of A. 10 and A. 16.
State on being dissatisfied with the impugned judg- ment of he High Court, has
preferred as many as seven crimi- nal appeals as 949 detailed in the table
No. Criminal Appeal No. The Accused concerned.
517/78 A. 10 and A. 16
519/78 A. 1, A.2 & A.27
520/78 A.3, A.7, A.8, A.9, A. 15, A.23 & A.33.
521/78 A. 37
522/78 A.34 & A.36
523/78 A. 4-6. A. 11 - 14, A. 17-22, A.24-26, A.28-32, A.35 A.39 & A.41
After the grant of special leave, S.D. Dubey, Respondent No. 25 in Criminal
Appeal No. 523/78 (Accused No. 40 in the Annexure 'A' to this judgment) filed a
petition for rectifi- cation in Miscellaneous Petition No. 210/79 praying to
recall the leave granted and the nonbailable warrant issued against him on the
ground that the High Court did not grant leave to the State for preferring an
appeal against his order of acquittal. This Court by order dated 23.1.1979
deleted the name of S.D. Dubey from the array of the re- spondents in Criminal
Appeal No. 523/78 and revoked the special leave granted so far as he was
concerned and also discharged the unbailable warrant issued against him. The
result is that there is no appeal against A. 40.
seems that the complainant in all these appeals has filed Criminal
Miscellaneous Petition Nos. 3621-3627 of 1989 for impleading him as a party. Natarajan,
J. (as he then was) by an order dated 14.9.1989 passed an order, "The
counsel for the complainant may be heard at the time of heating of the
appeal." Mr. Prithvi Raj, Sr. Advocate as- sisted by Mr. Dalveer Bhandari
and another appeared on behalf of the appellant/state. Mr. R.L. Kohli, Sr.
Advocate assisted by Mr. H.K. Puri and another appeared on behalf of the
respondents. Mr. Yogeshwar Prasad, Sr. Advocate assisted by two advocates appeared
on behalf of the complainant. Mr. Prithvi Raj after taking us very meticulously
through the judgment of the Trial Court as well as of the High Court and the
evidence of some of the witnesses presented a very 950 comprehensive and
detailed analysis of the case with the circumstances, surrounding it and made
the following submis- sions:
High Court has erroneously set aside the convictions recorded by the Trial
Court without adverting to the intrin- sic' value of the evidence of the eye
witnesses who speaks about the motive as well the actual occurrence in
question, which took place in the broad day light of 14.1. 1974.
There is abundant and overwhelming evidence both oral and documentary
conclusively establishing the long standing and deep rooted animosity for the
accused persons to brutally attack the prosecution party.
High Court is not justified in rejecting the testimo- ny of the ocular
witnesses especially of PWs 3 and 24, who were injured and whose presence at
the scene of occurrence cannot be doubted, merely on the ground that they were
all partisan witnesses.
nature of the injuries sustained by the deceased persons as well by PWs 3 and
24 unmistakenly corroborate the evidence of the eye witnesses that all the
victims have been indiscriminately and ruthlessly attacked with deadly weapons
such as fire-arms, spears, pharsas, lathes etc.
Both the Trial Court and the High Court without appreci- ating the evidence
adduced as against the acquired persons concerned in Criminal Appeal No. 523/78
has wrongly recorded the order of acquittal which is liable to be set aside.
entering into a detailed discussion of the oral and documentary evidence, we
may point out certain incontro- vertible facts. The time of occurrence, the
place of occur- rence and the manner of attack are all not in dispute. It seems
that the learned Trial Judge himself had made a local inspection and visited
the place of occurrence on 11.4.76 and he was satisfied with the evidence
regarding the topog- raphy of the scene.
as the motive is concerned, we have clearly stated in the narrative portion of
the judgment that the prosecution party and the accused party were on war path
on account of a series of incidents over a considerable length of time. The
evidence--both oral and docu- 951 mentary--demonstrably establish that each one
was out for the blood of another. The very fact that 13 persons have been done
away with by an inhuman, archaic and drastic mode of execution indicates that
the culprits whoever they might have been should have been fomenting their
hatred and pre- planned to perpetuate this heinous crime on that particular
day. According to the prosecution, the perpetrators of the crime were numbering
between 80 to 90. When the victims and the witnesses started running away
apprehending imminent danger to their lives, they were chased by the
perpetrators of the crime and attacked ruthlessly by deadly weapons including
fire-arms. The prosecution case is that except the father of PW-1, Prabhu Nath
who was armed with a gun others were armless. PW-1 speaks about the entire
motive for the occurrence. On a careful analysis of the evidence, we have no
reservation in holding that there was bitter animosity between the prosecution
and accused parties and as such there was sufficient motive on the part of the
accused party to attack the prosecution party. But at the same time, one should
not lose sight of the fact that the prosecution party which was also
entertaining the same amount of animosity against the accused party had
sufficient motive to implicate all the leading persons of the accused party
with the of- fence in question. As repeatedly said, motive is a double edged
weapon and that it could be made use of by either party to wield that weapon of
motive against each other.
the key question for consideration is whether the prosecution has convincingly
and satisfactorily established guilt of all or any of the accused beyond all
reasonable doubt by letting in reliable and cogent evidence.
the conspiracy that is said to have been hatched on 12.1.74 among A. 1, A.2 and
A.27 with three others--A.28, A.29 and A.34 we have to scrutinise the evi- dence
of PWs 5, 8, 15 and DW 5. The Trial Court in its judgment has found A. 1, A.2
and A.27 guilty under Sections 302 read with 109 and read with 120(B) and
sentenced them for life, though has not placed much reliance on the evi- dence
of PWs 8 and 15. In this connection, we may state that DW-5, ,the Assistant
Station Master was examined only to discredit the testimony of PW-8.
was the Railway Magistrate during the relevant period. PW-29 was a Travelling
Ticket Inspector and PW-39 was a constable. According to them, A. 1, A.2 and
A.27 were caught as ticketless travellers by S.D. Dubey (A.40) and produced
before PW-29, who in turn handed over them to PW- 39. These three accused were
detained at the waiting room of Bhatini Railway Station on the night of
12.1.1974 and pro- duced before PW-5 on 13.1.1974 who convicted and 952
sentenced them to imprisonment till 18.1.1974. These three accused themselves
admit their conviction and imprisonment.
would this piece of evidence coupled with the animosity that existed between
the two groups be sufficient to con- clude that the three accused have
conspired to commit this offence9 No doubt, this impelling circumstance creates
a strong suspicion against A. 1, A.2 and A.27 as to whether they had
voluntarily got themselves arrested by creating a circumstance presumably due
to some pre-arrangement so that this circumstance might serve as a plea of
alibi. It is well said that suspicion, however strong it may be, it cannot take
the place of legal proof. Therefore, from this circum- stance the Court cannot
be justified in drawing an inference that these three accused had hatched a
conspiracy to commit this offence. There is absolutely no evidence that these
,three accused had any conversation among themselves to commit this offence or
they pre-planned to involve them- selves in the offence of ticketless travelling
so that they might escape their involvement with the offence. One more
circumstance, relied upon by the prosecution in attempting to prove the
conspiracy, is the deposit of the gun by A.2 on 12.1. 1974 with PW 28, an arms
dealer of Gorakhpur. But the prosecution miserably
fails in this attempt also because it is in evidence that the gun licence of
A.2 had already been suspended. Evidently A.2 had thought it appropriate to
deposit his gun with an arms dealer for the sake of safety.
that conduct of A.2 in depositing the gun could not be taken as a circumstance
proving the conspiracy to any extent. The High Court has rightly rejected the
case of the prosecution on this aspect and dismissed the case of con- spiracy
and consequently set aside the conviction of these three accused under Section
302 read with Sections 109 and 120(B), IPC.
shall now deal with the evidence relating to the actual occurrence. The
prosecution examined PWs 1, 3, 6, 11, 12, 20 and 24 as eye witnesses to the
occurrence. Of the above witnesses, PW-20, who is the son of one of the de- ceased
has resiled from his earlier statement and as such he was treated as a hostile
witness. As has been repeatedly stated in the earlier part of the judgment, PWs
3 and 24 were injured during the occurrence. We shall examine the evidence of
these eyewitnesses one by one subjecting their testimony to strict scrutiny.
is none other than the son of deceased Prabhu Nath Tiwari, who is said to have
been armed with a gun and fired at Rambali (A.36). He claims to have been
present at the spot of occurrence from beginning to end and to have wit- nessed
the entire occurrence and also identified all these accused persons as active
participants along with 953 some others. It is his evidence that he along with
the other witnesses ran towards south and took shelter in the nearby field
where from he witnessed the occurrence. After all the miscreants had left the
scene he was the person who went to the police station with a written complaint
(Ex. Ka-1) and set the law in motion. In Ex. Ka-1, PW-1 has implicated accused
Nos. 1, 2 and 27 along with others assigning specif- ic overtact to accused
Nos. 1 and 2 stating that they were armed with a pistol and a gun respectively
and fired at the prosecution party though has not attributed any specific overtact
to A.27 against whom PW- 1 was not entertaining so much of animosity as in the
case of A. 1 and A.2. Besides attributing the above overtacts, he has averred
in the earliest document Ex. Ka-1, that accused Nos. 1 and 2 ex- horted and
incited his associates to bounce upon the prose- cution party and to attack. On
a very close examination of the testimony of PW-1, we are disinclined to place
any reliance much less safe reliance on his testimony for more than one reason.
PW-1 who is the son of deceased Prabhu Nath Tiwan and grand-son of the deceased
Tirjugi and nephew of deceased Damodar is not only much interested in the prosecu-
tion case, but is anemically disposed towards accused party.
cane crops which was the subject matter for this occurrence was owned by his
grand-father Tirjugi and his family members. Secondly, the absence of any
injury on his person creates a grave doubt about his presence in the scene of
occurrence. Thirdly, PW-1 has not only given an exagger- ated version in Ex.
Ka-1 but also deliberately and falsely implicated A. 1, A.2 and A.27 as having
actively participat- ed and shot at the deceased. Fourthly, his explanation now
offered by him that he gave the names of these three accused persons since he
overheard during the occurrence the Other accused shouting "Paras Avo, Sharda
Avo, Jangi Babu Avo" which explanation is summarily rejected both by the
Trial as well the High Court. Fifthly, in Ex. Ka-1, PW-I has not given the
names of the fathers of any one of the accused persons. Sixthly, even assuming,
but not conceding that PW-I was present at the scene of occurrence, he when
fleeing towards south for his life on seeing the accused party with the
strength of nearly 80-90 persons armed with deadly weapons could not have
witnessed any part of the occurrence especially when all the accused were
moving towards north.
it would not have been possible for PW-1 to prepare Ka-1 on his own, but this
document should have been brought into existence on account of some
deliberations and consultations with some of the people belonging to his
faction. Eighthly, there is no guarantee to believe even a part of his evidence
when he goes to the extent of making 954 deliberate false implication of
accused persons who are proved to have been in prison at the time of
the entry in the General Diary dated 17.1.1974 marked as Ex. C-1 reveals that
the investigating officer recorded the statement of the witnesses only on 15.1.
be recalled that the first investigating officer, PW-43 was suspended on
surprising that though Ex. Ka-1 does not contain the names of the fathers of
any one of the accused Ex. Ka-51 (First Information Report) prepared on the
basis of Ex. Ka-1 contains the names of the fathers of all the accused per-
sons. The only explanation given by the head constable Ram Hausila Pandey is
that he incorporated the fathers' names on an enquiry from others is totally
unacceptable. Some doubt is created about the veracity of Ex. Ka-1 on the basis
of certain corrections made thereon. Though the Trial Court was inclined to
rely upon the evidence of PW-1 despite the patent infirmities, the High Court
has rejected his evidence in toto for just reasons.
is the son of Rajeshwar Tiwari, who was one of the counter petitioners on the
side of the prosecution party in the security proceedings. This Rajeshwar Tiwari
is the real brother of Tirjugi, the deceased. PW-6 was interrogated for the
first time by the investigating officer only on 17.1.1974. The High Court has
observed that this witness was thrust into service only at a later stage to
serve as an ocular witness. The accused in their defence has attempted to show
on the basis of the evidence of CW. 1 that PWs 1 and 6 were residing far away
from the scene of the occurence and that they were not present at the scene.
But as CW. 1 has not supported the prosecution version, much weight was not
attached to this evidence. However, the conduct of PW-6 in not going to the
police station and not being available for examination till 17.1.1974 leads to
an inference that he would have been made as an eye-witness to the occurrence
at a belated stage. This witness too as PW-1 ran towards south and did not
sustain any injury. Hence we are in total agree- ment with the High Court that
PW-6 is pressed into service to serve as an eye-witness. PW-11 has admitted
that her parents used to take loans from Prabhu Nath Tiwari and that she was
residing in the house of Rajeshwar Tiwari as his servant. The evidence of PW-11
is contradictory to that of PWs 3 and 24, in that PW-11 has deposed that PWs 3
and 24 were found going towards east on the road which is not the prosecution
case. Though this contradiction seems to be very trivial, in the context of the
case it assumes some signifi- cance in examining the presence of the witnesses
at the scene. PW- 12 is the mother of deceased Ram Vilas. She has admitted that
her 955 husband's sister had taken loan from Rajeshwar Tiwari in lieu of which
her husband had given 12 bighas of land to Rajeshwar Tiwari. According to these
two witnesses (PWs 11 and 12), the accused persons after firing certain shots
did not use their gun, but attacked the victims only with spears, pharsas and lathis.
The High Court has given cogent and convincing reasons to discard the testimony
of these two witnesses also.
are left with the testimony of the injured witnesses PWs 3 and 24 on whose
evidence Mr. Prithvi Raj, learned counsel appearing for the State placed much reli-
the Medical Officer has testified to the fact that he examined PW-3 at 9.15 A.M. on 15.1.1974 and noted a punctured wound on the left
scapula, an incised wound on the left buttock, two gun shot wounds one on the
left knee--another on outer side and middle of the left shoulder and an
abrasion on the left thigh. According to the Medical Officer, the injuries were
of a day-old. He issued the Wound Certificate Ex. Ka-5. The same Medical
Officer exam- ined PW-24 at about 9.30 A.M. on 15.1.1974 and found on his
person two abrasions, one contusion, a swealing and three gun shot wounds--one
on the right scapula region, the other below iliac crest and the third one near
the fight elbow.
Ka-6 is the Wound Certificate.
very fact that these two witnesses have sustained certain gun shot wounds
probabilities the presence of these two witnesses at or about the time of
occurrence at the scene. Therefore, their evidence might command acceptance
provided their evidence inspires confidence in the minds of the Court and that
the said evidence is free from any in- firmity.
was a servant of Rajeshwar Tiwari. According to the prosecution, these two
witnesses were standing almost at the centre of the eastern side of the scene
field at which point they received injuries and thereafter took shelter in the
field of one Hakim. PW-3 mentions the names of accused Nos. 3, 5-11, 15, 16,
18, 22, 23, 25, 26, 28, 30, 33-37 and 41, the total number of which is 23 of
whom 11 have been acquitted by the Trial Court itself. PW-24 had named six
accused persons of whom Jhullar (A. 17) is said to have assaulted him. A. 17 is
acquitted by the Trial Court. It shows that the Trial Court had not placed
complete reliance on the testimony of these two witnesses. According to him, he
and PW-24 were examined by the Sub-Inspector, PW-43 and sent for medical
examination. But it is surprising to note that both these 956 witnesses were
medically examined after a delay of 21 hours on 15.1. 1974 at about 9.30 A.M. No explanation is forthcom- ing as to why there was
such a delay of medical examination of these two witnesses who are said to have
been sent to the hospital immediately after examination by PW-43. The entry Ex.
C. 1 in the General Diary of 17.1.1974 evidently made after suspension of PW-43
shows that the statements of witnesses were recorded on 15.1.1974. This entry
is diamet- rically in opposition to the evidence of not only of these two
witnesses but also of PW-43 who is said to have examined the witnesses at the
spot on the evening of 14.1.1974 it- self.
has admitted that he was suffering from total blindness in his right eye and
poor sight in his left eye and he was suffering from eye blindness since 4-5
years. He admitted that he could not see as to who assaulted whom.
on he stated that he had not seen any accused by their face and even the
accused named by him were recognised only by their voice. It is found in the
judgment of the High Court that PW-24 was cross-examined by the public
prosecutor himself which circumstance indicates that PW-24 has not supported
the prosecution version. It is the evidence of the investigating officer that
he did not find any blood at the place where these two witnesses were allegedly
lying. It is under these circumstances the High Court was disinclined to place
any reliance on the evidence of these two witnesses who are indisputably
partisan witnesses. It is pointed out by the High Court that the entry in Ex.
C- 1 giving the details of the investigation carried on by PW-43 on 14.1.1974
does not indicate that the investigating officer contacted and interrogated
these two witnesses on 14.1.1974 itself. The only inference that would follow
is that these two witnesses even admitting that they had received injuries at
the scene field as pointed out by the High Court--rightly too in our
view--might have run away to the village and were contacted by the police only
on the next day. So on safe reliance can be placed on the testimony of these
two wit- nesses.
viewed from any angle, we are of the firm view that the reasons assigned by the
High Court for disbelieving the testimony of all the ocular witnesses are
unreasonable. The evidence is ambulatory and vasulating besides suffering from
insurmountable infirmities and improbabilities. The totality of the evidence is
unworthy of any credence when examined by the standard of yardsticks of
have repeatedly pointed out earlier, there is a deliberate false implication of
the accused Nos. 1, 2 and 27 to whom overtacts are 957 attributed in Ex. Ka- 1.
In fact, the High Court has gone in great depth into the facts and
circumstances of the case and rightly concluded that the prosecution has
miserably failed in establishing the guilt of the accused except A.36. In spite
of best efforts and great deal of pondering over the matter, we are unable to
disagree with the conclusion ar- rived at by the High Court in rejecting the
testimony of these witnesses whose evidence lacks the guarantee to in- spire the
confidence especially when the major portion of the evidence is manifestly
false and patently incredible. No doubt, the circumstances attending the case,
namely, the conduct of A. 1, A.2 and A.27 voluntarily getting themselves
arrested by A.40 creates suspicion against them. But that suspicion by itself
howsoever strong it may be is not suffi- cient to take the place of legal proof
and warrant a finding of guilt of these three accused.
pertinent to note that even the charge flamed by the Trial Court reads as if
all the accused inclusive of A. 1, A.2 and A.27 formed themselves into an
unlawful assembly on 14.1.1974 in the village Bali in prosecution of the common
object of committing murder of 13 deceased persons and disposing of the dead
bodies. In such a situation, can it be said that there is justification for
convicting the rest of the accused barring accused Nos. 1, 2 and 27 for the
specific acts attributed to them by the witnesses whose evidence is tainted
with patent falsehood. The observation of the High Court reading "All this
indicates that Nitya Nand (PW-1) had not seen the occurrence, that the first
information report was not lodged when it purports to have been lodged, and,
that it came into existence later on and was ante-timed" cannot be said to
be perverse. Similarly yet another observation reading "Once it is
established that some of the accused persons named by these witnesses had not
participated in the occurrence and have been falsely impli- cated by them, it
will not be safe to place reliance upon their testimony regarding the
complicity of the other ac- cused nominated by them without corroboration in
material particulars by other reliable evidence, direct or substan- tial"
also does not call for interference.
went through the available records placed before us and examined them
scrupulously and meticulously with all seriousness and onerous responsibility
cast upon us in getting at the truth, but we regret to say that the entire
evidence is nothing but a coloured version with concocted story and exaggerated
account mixed with falsehood and that the prosecution has miserably failed to
make out the charges against all or any of the accused beyond all reasonable
doubt except 958 Rambali (A.36) who himself admitted his presence at the scene.
In this connection, we would like to cite a decision of this Court in Balaka
Singh & Ors. v. State of Punjab, 
4 SCC 511 wherein the following observation is made.
..... the Court must make an attempt to separate grain from the chaff, the
truth from the falsehood, yet this could only be possible when the truth is
separable from the false- hood. Where the grain cannot be separated from the
chaff because the grain and chaff are so inextricably mixed up that in the
process of separation the Court would have to reconstruct an absolutely new
case for the prosecution by divorcing the essential details presented by the
prosecution completely from the context and the background against which they
are made, then this principle will not apply." No doubt, it is true that
this heinous offence is dia- bolical in conception and executed in gruesome-and
ghastly manner. It is shocking that 13 persons have been done away with in a
broad day light in the course of the same transac- tion. Nonetheless the Court
when satisfied that the evidence adduced by the prosecution is not only
unworthy of credence, but also manifestly and inextricably mixed up with
falsehood cannot be carried away merely on the fact of multiplicity of victims
and on the basis of speculations and suppositions in the confused stream of
facts. In our considered view, the High Court has apprised the evidence in the
proper perspec- tive and arrived at a correct conclusion which is neither
perverse nor unreasonable.
all the reasons stated above, we see no reason to interfere with the findings
of the High Court and dislodge the same. In the result the judgment of the High
Court is confirmed and all the appeals preferred by the State are dismissed.
Annexure 'A' LIST OF THE ACCUSED PERSONS
Singh alias Bandhoo Singh
Ram Naresh Pandey
Accused Nos. 1 to 33 were tried in Sessions Trial No. A- 119/74.
Accused Nos. 34-36 were tried in Sessions Trial No. A- 160/74.
Accused Nos. 37-40 were tried in Sessions Trial No. A- 265/74.
Accused No. 41 was tried in Sessions Trial No. A-27/75.