Jagmohan and Others vs State of U.P.

U.S. Tripathi, J.—The above Appellants preferred this appeal against judgment and order dated 8.10.1980 passed by Sri Khem Karan, the then learned IVth Additional Sessions Judge, Jalaun at Orai in Sessions Trial No. 32 of 1980 convicting Appellants No. 1 to 6 Jag Mohan, Krishna Dutt, Mangal Singh, Munna, Kanhai and Bhoje under Sections 148 and 302 read with Section 149, I.P.C. and Appellants No. 7 and 8 Ram Kumar and Kashi Ram under Sections 147 and 302 read with Section 149, I.P.C. and sentencing them to imprisonment for life u/s 302, I.P.C. read with Section 149, two years R.I. u/s 148 and 1-1/2 years R.I. u/s 147, I.P.C. All the sentences were ordered to run concurrently.

The prosecution story, briefly stated, was as under:

All the Appellants and the three deceased Manohar (35), Anant Ram (22) and Chandra Bhan (11) as well as Raghunath (P.W. 1) and Ganga Prasad (P.W. 3) were residents of village Atariya, P.S. Aata, district Jalaun. Jag Mohan Appellant was son of Ram Kumar Appellant. The other Appellants were of different castes. Jag Mohan and Ram Kumar were Brahmins, Krishna Dutt Marwari, Mangal Singh Kurmi, Munna Mohammadan, Kanhai, Bhoje and Kashi Ram Chamars. Raghunath (P.W. 1) was nephew of Manohar deceased. Ganga Prasad (P.W. 3) was real brother of Manohar deceased and cousin brother of Anant Ram deceased and Chandra Bhan deceased was son of Anant Ram deceased.

About a week before the occurrence of the case, Mangal Singh Appellant had teased Smt. Shakuntala, wife of younger brother of Manohar deceased. A panchayt was convened in this connection. In the said panchayat, all the Appellants had sided Mangal Singh Appellant. The Punchas had imposed a fine of Rs. 700 on Mangal Singh Appellant, but he did not pay the above penalty and threatened Manohar and others to see.

Manohar had his sasural at village Garehi. The wife of Manohar was the only daughter of her father. Her father was aged person and had given his agricultural land to Manohar. Manohar and his brothers used to cultivate the agricultural land of his father-in-law.

On the afternoon of 22.3.1979, Manohar, Anant Ram and Chandra Bhan deceased were going to village Garehi in a bullock cart to harvest the crop at village Garehi. Bullock cart was being driven by Raghunath (P.W. 1) and the three deceased were sitting inside it. After about one hour of the departure of deceased persons from their village, Ganga Prasad (P.W. 3) also followed them. At about 2.30 p.m. when the bullock cart driven by Raghunath (P.W. 1) and carrying the three deceased, reached near culvert of metalled road at village Haidalpur, all the Appellants, who were laying ambush besides the culvert, emerged out and came on the road. Kashi Ram, who was having lathi, stopped the bullock cart and Ram Kumar Appellant who was also having lathi exhorted that the Chamars be killed. On his exhortation, Appellant Jagmohan, Krishna Dutt, Mangal Singh and Kanhai fired on the deceased with their guns and Munna and Bhoje Appellants fired with their country-made pistols on the deceased. All the three deceased sustained fire-arm injuries and died. Raghunath (P.W. 1) jumped down of the bullock cart and ran towards east. In the way, Dhuram, Har Charan, Bhagat and Ganga Prasad (P.W. 3) met him, who raised alarm. The Appellants drove away bullock cart towards kachcha rasta and went away towards jungle making fire in the air.

Ganga Prasad (P.W. 3) got prepared report (Ext. Ka-1) of the occurrence from Dhuram and came to police station, Aata at 6.30 p.m. where he lodged the report. The Chick, F.I.R. (Ext. Ka-2) was prepared by Head Constable Sunder Singh (P.W. 2), who made an endorsement of the same at G.D. report (Ext. Ka-3) and registered a case at Crime No. 52 of 1979 under Sections 147, 148, 149 and 302, I.P.C. against all the Appellants. At the time of registration of the case no Sub-Inspector was present at the police station and therefore, the Head Constable sent the papers of the case to Sub-Inspector Vijay Bahadur Lal (P.W. 6), who was busy in investigation of another case u/s 307, I.P.C. at village Madrekhi. Sri Vijay Bahadur Lal (P.W. 6) got papers at about 8 p.m. He immediately proceeded to the place of occurrence, but due to night and paucity of light, no action could be taken. In the next morning, Sri Vijay Bahadur Lal (P.W. 6) conducted inquest of the dead bodies of the deceased and prepared inquest reports (Ext. Ka-15 to Ext. Ka-17) and other relevant papers. He sealed the dead bodies and sent the same for post-mortem. Thereafter, he interrogated Ganga Prasad (P.W. 3), inspected place of occurrence and prepared site plan (Ext. Ka-21). In the meantime, Sri Gajraj Singh (P.W. 5) the then Station Officer, P.S. Aata came to the spot and took over investigation of the case. He took into possession the blood stained and simple earth from the place of occurrence and from the place where bullock cart was found and prepared recovery memo (Ext. Ka-10). He also took into possession the blood stained clothes of deceased and prepared recovery memo (Ext. Ka-11). He also took into possession blood stained rope of bullock cart and prepared recovery memo (Ext. Ka-12). The bullock cart and two bullock were given in the supurdagi of Devi Din, vide supurdaginama (Ext. Ka-15). On 24.3.1979, he interrogated Raghu Nath (P.W. 1) and other witnesses of occurrence including Smt. Shakuntala and witnesses of inquest and recovery memo.

Autopsy on the dead bodies of deceased were conducted on 24.3.1979 by Dr. Mahendra Kumar Goyal (P.W. 4), who found gun shot injuries on the persons of deceased and cause of death due to shock and haemorrhage as a result of ante-mortem injuries. He prepared post-mortem reports (Exts. Ka-6, Ka-7 and Ka-8).

The Appellants surrendered in the Court and were interrogated by the I.O. On completion of investigation, the I.O. submitted charge-sheet.

The Appellant Nos. 1 to 6, Jag Mohan, Krishna Dutt, Mangal Singh, Munna, Kanhai and Bhoje were charged with and tried for the offences punishable under Sections 148 and 302, I.P.C. read with Section 149, while Appellants No. 7 and 8 Ram Kumar and Kashi Ram were charged with and tried for the offences punishable under Sections 147 and 302 read with Section 149, I.P.C. The Appellants pleaded not guilty and contended that they were falsely implicated due to enmity.

The prosecution in support of its case examined Raghunath (P.W. 1), Head Constable Sunder Singh (P.W. 2), Ganga Prasad (P.W. 3), Dr. Mahendra Kumar Goel (P.W. 4), Sub-Inspector Gajraj Singh (P.W. 5) and Vijay Bahadur Lal, I.O. (P.W. 6). Raghunath (P.W. 1) and Ganga Prasad were witnesses of fact and remaining were formal witnesses. Appellants produced Rafi Muhammad (D.W. 1) in their defence.

The learned Additional Sessions Judge on considering the evidence of the prosecution held that prosecution had successfully established the guilt of the Appellant Nos. 1 to 6 Jag Mohan, Krishna Dutt, Mangal Singh, Munna, Kanhai and Bhoje for the offences punishable under Sections 148 and 302 read with Section 149 and the guilt of Appellant Nos. 7 and 8 Ram Kumar and Kashi Ram for the offences punishable under Sections 147 and 302, I.P.C. read with Section 149, I.P.C. With these findings, he convicted and sentenced the Appellants as mentioned above.

During pendency of the appeal, Appellants Jag Mohan, Krishna Dutt and Ram Kumar died. The appeal preferred by them was abated, vide order dated 14.10.1999 of this Court.

We have heard Sri P. M. Gupta, learned Counsel for the Appellants and learned A.G.A. for the State of U.P. and have gone through the evidence on record.

Raghunath (P.W. 1) stated that Manohar deceased was his uncle and had got land in village Garehi in his sasural. On the date of occurrence, i.e., 22.3.1979 Manohar, Anant Ram and Chandra Bhan deceased were making preparation for going to village Garehi. Appellant Kashi Ram met him and asked as to where he was going and who were going with him. He told that Manohar, Anant Ram and Chandra Bhan would go to village Garehi in bullock cart. He again told him the route through which they would go. Kashi Ram thereafter went towards house of Mangal Singh. On the same day at about mid day he along with the three deceased proceeded to village Garehi in bullock cart. He was driving the bullock cart and was sitting in front of it. The deceased Manohar, Anant Ram and Chandra Bhan were sitting on the back side of bullock cart. When the bullock cart reached on the culvert of gola Appellants Ram Kumar, Jagmohan, Krishna Dutt, Munna, Kanhai, Mangal Singh, Kashi Ram and Bhoje emerged out from the said culvert. Ram Kumar and Kashi Ram were having lathis, Munna and Bhoje were having country made pistols, Jag Mohan and Krishna Dutt were having guns, Mangal Singh was having double barrel gun and Kanhai was having gun. Ram Kumar exhorted that Chamars be killed. Kashi Ram stopped bullock cart by catching hold rope of nostrils of bullocks. Jagmohan, Mangal Singh, Krishna Dutt, Bhoje and Munna fired on Manohar, Anant Ram and Chandra Bhan, who sustained injuries and died. He jumped down of the bullock cart and ran towards east. Dhuram, Harpal and Bhagat Singh met in the way, they raised alarm. Ganga Prasad (P.W. 3), who was coming from western side, also raised alarm. The Appellants drove away the bullock cart towards kachcha rasta. It was mid day when the occurrence took place. In the same breath, he stated that time of occurrence was 2.30 p.m. At about 8 days before the occurrence, Mangal Singh had teased his brother''s wife, who belonged to village Misripur. A panchayat was convened on it. All the Appellants were present on the panchayat and they sided Mangal Singh. The punchas imposed penalty on Mangal Singh, but he did not accept the verdict of punchas and threatening Chamars left the panchayat. In his cross-examination he stated that I.O. had interrogated him after three days of the occurrence. He had told before the I.O. that prior to proceeding to village Garehi, Kashi Ram met him and inquired as to where he was going and with whom. He could not explain as to why this fact was omitted by the I.O. The place of occurrence was at a distance of 1-1/2 kosh (about three miles) from his village. About one hour is taken to reach the bullock cart on the culvert of occurrence. They had taken food in the morning. Tube-well was situate towards south east of culvert at a distance of about 50-60 paces. He had not seen any operator at the tube-well. The punchas had imposed penalty of Rs. 700 on Mangal Singh. On the exhortation of Ram Kumar, the deceased did not try to run away. He had also not asked the deceased to run away. They tried to hide inside bullock cart. No pellet hit the bullocks. There was no sign of firing on any part of bullock cart. He had not seen any cartridge or wad pieces on the bullock cart and on the place of occurrence. All the six Appellants fired simultaneously from north. None had fired on him. When all the six Appellants were firing, he was sitting on the bullock cart.

Sunder Singh Head Constable (P.W. 2) stated that a written report of the occurrence was lodged on 22.3.1979 at 18.30 hours at P.S. Aata by Ganga Prasad (P.W. 3) and on the basis of written report, he prepared chick report (Ext. Ka-2) and made an endorsement of the same at G.D. report (Ext. Ka-3). No Sub-Inspector was present at the police station and therefore, he sent the papers through Constable Ajab Bahadur to Sub-Inspector Vijay Bahadur Lal (P.W. 6) who was busy in investigation of another case at village Mamrekhi.

Ganga Prasad (P.W. 3) stated that Manohar deceased was his brother, Anant Ram deceased his cousin brother and Chandra Bhan deceased was his nephew. On the date of occurrence they were going to village Garehi in a bullock cart for harvesting crops. Bullock cart was being driving by Raghunath. They proceeded from village Ataria at about mid day. After an hour of their departure from the village he also proceeded for Aata through same route. When the bullock cart reached at Gola culvert he was in between said culvert and Kachchi water channel of tube-well. On reaching of bullock cart at pulia, Appellants Jag Mohan, Krishna Dutt, Kanhai, Mangal Singh, Ram Kumar, Kashi Ram, Bhoje and Munna were standing. Raghunath raised alarm. Ram Kumar exhorted the other Appellants to kill the Chamars. On his exhortation he heard sound of six fires. Appellants were standing towards north of Gola culvert. Raghunath, Dhuram, Harcharan and Bhagat Singh raised alarm. The Appellants ran away towards jungle. The Appellants were keeping empty cartridges in their pocket. While leaving the spot, the Appellants drove away the bullock cart towards kachcha rasta. The Appellants Jagmohan, Kanhai, Krishna Dutt and Mangal were having guns, Bhoje and Munna were having country made pistols and Ram Kumar and Kashi Ram were having lathis. At the time of firing Manohar, Anant Ram and Chandra Bhan deceased were sitting on bullock cart and Raghunath (P.W. 1) was crying. He had proceeded from his house on a cycle, but it got punctured in the way. He reached at the place of bullock cart after running away of the Appellants. He got prepared report (Ext. Ka-1) from Dhuram and lodged the same at P.S. Aata. Prior to three days of occurrence Mangal Singh had teased his brother''s wife of Misripur while she was returning after attending call of nature. On next day, he went to the house of Mangal Singh, to complain about it. Mangal Singh became annoyed and abused him. Manohar and Anant Ram had also abused Mangal Singh. Then a panchayat was convened at the temple and punchas had imposed penalty of Rs. 700 on Mangal Singh. Mangal Singh and other Appellants did not accept the verdict of punchas and left panchayat extending threats to him and deceased.

In his cross-examination, he stated that he had told before the I.O. about teasing of his brother''s wife by Mangal Singh, convening of panchayat and imposition of penalty by punchas. He could not offer any explanation for omission of above facts. The place where occurrence took place was Gola culvert. Tube-well is situate towards south east of said culvert at a distance of 200 paces. There were water channels emanating from the tube-well and there was also a culvert over the channel. The tube-well culvert was a distance of 200 paces from the culvert of occurrence. There was trail of blood from the place of occurrence upto place where bullock cart stopped. He told before the I.O. the place of occurrence as Haidalpur tube-well culvert because it was near tube-well. He had left cycle in the field of Pishiya. There was no other enmity with the Appellants.

Dr. Mahendra Kumar (P.W. 4) stated that he conducted autopsy on the dead bodies of deceased between 12 noon and 1.10 p.m. on 24.3.1979, the details of which were as below:

Autopsy of Anant Ram deceased.

The deceased had average built body. Both eyes were closed, mouth partly open. Rigor mortis passed off in all the limbs. Putrefaction started. Time since death was about 2 days.

He found following ante-mortem injuries on the person of deceased:

(1) Gunshot wound of entry over medial end of right clavicle, size 2" ? 1-1/4". Blackening of edge present. Wound is directed towards downwards and towards left.

(2) Gunshot wound of entry over front aspect of chest wall, 3" away from left nipple at 3 O''clock position. Size 2" ? 1-1/4". Blackening present. Wound is directed towards downwards.

(3) Fire-arm wound over front aspect of left wrist region. Size 2" ? 1/4" ? skin deep. Charring of tissues present at base of wound.

(4) Gunshot wound of exit over left scapular region over left border of scapula lower part, size 2.5" ? 1-1/2". Edges everted. One cork of shot lodged in muscle plain removed. Wound was directed upwards right side communicating with injury No. 1.

(5) Gunshot wound of exit over back aspect of chest left side. 5" below injury No. 4. Size 2.5" ? 1-1/2". Edges everted. Injury was directed towards downward communicating with injury No. 2.

(6) Abrasion over tendoachilles of right side 1/5" ? 1".

On internal examination the doctor found that medial end of right clavicle was fractured over underlying injury Nos. 1 and 2. 2nd and 3rd ribs were fractured underlying injury No. 4. Left pleura was perforated underlying injury No. 4. Left lung was torn into pieces (upper part) and left pleural cavity was full of dark fluid blood. Stomach was empty. Small intestine empty. Large intestine was full of faecal matters.

Cause of death was due to shock and haemorrhage as a result of ante-mortem injuries.

He conducted autopsy on the dead body of Chandra Bhan (11) at 12.35 p.m. and found following facts:

An average built body of boy. Both eyes and mouth were closed. Rigor mortis passed off in left limbs and passing off in lower limbs. Putrefaction present.

He found following ante-mortem injuries on the person of the deceased:

(1) Gunshot wound of entry over frontal aspect of right chest, just below right nipple. Blackening present. Size 1-1/4" ? 1-1/4". Direction towards left and backward.

(2) Gunshot wound of exit over back aspect of chest, left side by side of medial of left scapula. Size 1.5" ? 1.5".

(3) Gunshot wound of entry on front aspect of right fore-arm middle part. Size 1" ? 1". blackening of edges present.

(4) Gunshot wound of exit with everted edges over back aspect of right fore arm middle part. Size 3" ? 2". It was communicating with injury No. 3.

(5) Gunshot wound of entry over postero lateral aspect of right leg middle part. Size 3/4" ? 3/4". Blackening present.

(6) Gunshot wound of exit over front aspect of right leg middle part. Size 1" ? 1" ? communicating with injury No. 5.

On internal examination the doctor found fracture of 5th and 6th ribs posterior part left side underlying injury No. 2. Right lung was lacerated, ribs underlying injury No. 1. Right pleural cavity full of fluid blood. Hilum lung of right side torn off. Left pleural cavity was also having fluid blood. Both walls of heart were lacerated. Vessels of lung at left side and ribs of hilum torn off. Shaft of radius bone underlying injury No. 3 was fractured. Stomach was empty and large intestines full of faecal matters.

Death was due to shock and haemorrhage from above ante-mortem injuries.

He conducted autopsy on the dead body of Manohar deceased at 1.10 p.m. The deceased had average built body of his age. Both eye were protruding. Tongue also protruding out between lips. Rigor mortis passed off in upper both limbs and passing off in lower limb. Putrefaction present.

Following ante-mortem injuries were found on the person of the deceased:

(1) Abrasion over lower border of left mandible horizontal. Size 3" ? 2".

(2) Gunshot wound of entry over back aspect of left chest just by side of lateral border of left scapula middle part. Size 2" ? 1-3/4". Wound was directed outward and lower right side.

On internal examination six shots recovered from the muscle plain of right side of chest front aspect middle part 4th and 5th ribs on left side posterior part fractured underlying injury No. 2. Right lung lacerated posteromedially with tear of hilum of right side. Heart was punctured, hilum antero posterity. Pulmonary vessels of hilum of right lung torn off. Stomach empty. Large intestine full of faecal matter.

Cause of death was due to shock and haemorrhage resulting from ante-mortem injuries.

Gajraj Singh (P.W. 5) was the second Investigating Officer. He stated that he took investigation on 23.3.1979, reached the place of occurrence, took into possession blood stained tarcoal and simple tarcoal from the spot and blood stained and simple earth from the place where bullock cart was found. He also took into possession blood stained clothes of the deceased, blood stained rope of bullock cart and gave bullocks and bullock cart in the supurdagi of Devi Deen. Thereafter, on 24.3.1979, he interrogated Raghunath (P.W. 1) and other witnesses and on completion of investigation submitted charge-sheet.

Sri Vijay Bahadur Lal, S.I. (P.W. 6) was the first Investigating Officer. He stated that he received the papers of the case on 22.3.1979 at 8 p.m. at village Madrekhi and proceeded to the spot where he reached at 2.30 a.m. Due to night nothing could be done. In the next morning he conducted inquest of the dead bodies of the deceased, interrogated Ganga Ram (P.W. 3), inspected the place of occurrence and prepared site plan. Thereafter Gajraj Singh, S.O. came to spot and took up further investigation.

We have given the above gist of evidence adduced by the prosecution.

The death of the three deceased Manohar, Anant Ram and Chandra Pal and cause of their death is not disputed by the Appellants. According to prosecution, the above three deceased sustained gunshot injuries and died on the spot. The evidence of Doctor Mahendra Kumar Goel (P.W. 4), referred to above, shows that the above three deceased has sustained gunshot injuries and died on account of above ante-mortem injuries. The Appellants have not challenged above medical evidence of Doctor Mahendra Kumar Goel. As such, the death and cause of death of the three deceased, namely, Manohar, Anant Ram and Chandra Bhan had been established by the prosecution.

The motive alleged by the prosecution in the F.I.R. was that a week before the occurrence of this case, Mangal Singh Appellant had teased Smt. Shakuntla, wife of younger brother of Manohar deceased. The deceased and his other brothers had complained about it to Mangal Singh Appellant and altercation had taken place in this regard. The other Appellants had taken side of Mangal Singh and had also threatened that they would see them within a short time.

However, the above motive was developed in the evidence of the Raghunath (P.W. 1) and Ganga Prasad (P.W. 3) that a panchayat was also convened in which all the Appellants including Mangal Singh were present. The deceased and his brothers were also present. The punchas imposed a penalty of Rs. 700 on Mangal Singh which was not accepted by him and he and other Appellants left the panchayat threatening the deceased that they would see them within a short time. The factum of convening panchayat and imposing penalty on Mangal Singh by the punchas did not find place in the F.I.R. or in the statement of the above witnesses u/s 161, Cr. P.C. However, the above witnesses stated that they had told that fact to the Investigating Officer. The Investigating Officer Sri Gajraj Singh stated that Raghunath (P.W. 1) had told before him about the convening of panchayat and imposition of penalty of Rs. 700 by punchas on Mangal Singh, but he had not mentioned this fact in the statement of witnesses u/s 161, Cr. P.C. We are not prepared to believe that the Investigating Officer will remember a fact after a year or so which he had not incorporated in the statement of the witnesses and in case the fact was actually told before him, he ought to have mentioned in the statement itself. It appears that this fact was not told by the witnesses before the Investigating Officer and the Investigating Officer in order to make his statement in consonance with the evidence of Raghunath (P.W. 1) stated like that. In this way there was clear omission of the factum of panchayat and imposition of penalty in the F.I.R. and during the investigation and, therefore, the above fact is a subsequent development and is not worthy of acceptance.

Assuming that Mangal Singh Appellant had teased a lady of the family of the deceased and the deceased and their other brothers had complained about it to him in which altercation had taken place, Mangal Singh alone or his associates or family members would have grievance against the deceased and his family members. There is nothing on record to show as to why other Appellants who were of different community joined with Mangal Singh in committing the murder of as many as three persons only for above incident. The prosecution has not led any evidence to prove community of interest of other Appellants with Mangal Singh. Assuming that there was any motive for Mangal Singh, there was no motive for the other Appellants to commit the murder of the deceased.

The occurrence, according to prosecution, took place at about 2.30 p.m. The place of occurrence from the house of deceased was at a distance of 1-1/2 kos (about 3 miles) as stated by Raghunath (P.W. 1). Raghunath (P.W. 1) further stated that it takes about an hour to reach at the pulia of occurrence by a bullock cart. But in the instant case, it took about 2.30 hours. Raghunath (P.W. 1) further stated that he and deceased had taken their meal in the morning before starting from the village. But the medical evidence shows that stomach of all the deceased were empty and large intestines were full with faecal matters. The above condition of stomach and large intestine of the deceased creates doubt in the time of occurrence alleged by the prosecution.

In the F.I.R. place of occurrence is mentioned on the pulia (culvert) in front of tube-well of Haidalpur. In their evidence, Raghunath (P.W. 1) and Ganga Prasad (P.W. 3) stated that occurrence took place at pakka gola culvert, i.e., culvert of metalled road. Ganga Prasad (P.W. 3) stated in his cross-examination that culvert on which occurrence took place is called "gola wali pulia". Tube-well was situated towards south and east of the said pulia at a distance of 200 paces. There were water channels emanating from the said tube-well and there was also a culvert on said water channel which was called tube-well pulia. Tube-well pulia was situated at a distance of 200 paces from the pulia of occurrence. Thus, it is clear that there were two culverts one of metalled road and the other on the kachcha rasta over water channel which linked with the metalled road. It is also in the evidence of the prosecution witnesses that after the occurrence, the bullock cart on which the dead bodies of the deceased were lying was driven away towards kachcha rasta leading towards culvert of tube-well. Admittedly, bullock cart was found on the kachcha rasta near the tube-well culvert and, therefore, in the F.I.R., the place of occurrence was purposely shown on culvert of tube-well. During evidence, the prosecution had shifted the place of occurrence and both the ocular witnesses claimed that occurrence took place on "gola wali pulia" which was at the distance of 200 paces from the tube-well pulia. Further Ganga Prasad (P.W. 3) stated that he had told before the Investigating Officer that the occurrence took place on the pulia of tube-well of village Haidalpur. However, Ganga Prasad (P.W. 3) offered an explanation that gola wali pulia is the same which is called pulia of tube-well of village Haidalpur. But his above explanation is not believable as two distinct pulias were existing as admitted by the witnesses and also shown in site plan by the Investigating Officer.

Gajraj Singh (P.W. 5), the Investigating Officer stated that he took blood stained tarcoal and simple tarcoal from the place of occurrence which means that the occurrence had taken place on the pulia of metalled road where blood was found. But this statement of the Investigating Officer is also a subsequent development as in the recovery memo (Ext. Ka-9), he had mentioned that he took blood stained and simple earth from the place of occurrence as well as blood stained and simple earth from the place where bullock cart was found. He admitted that he had not mentioned word "damar" (tarcoal) in the recovery memo. In case the Investigating Officer had taken into possession blood stained tarcoal from culvert of metalled road, he must have mentioned this fact in the recovery memo. The recovery memo shows that no "damar" (tarcoal) was taken into possession from the spot. As such, no blood was found on the place of occurrence stated by the prosecution witnesses in their evidence.

Admittedly as many as six shots were fired by the Appellants having gun and country-made pistols. But no empty cartridge or pellet were found on the spot. Raghunath (P.W. 1) and Ganga Prasad (P.W. 3) purposely offered an explanation about it that the Appellants firing gun shots were keeping empty cartridges in their pockets. This explanation is not convincing and it appears that the witnesses were aware of the facts that occurrence had not taken place on the place stated by them and, therefore, they were ready with this explanation.

It is admitted case of the prosecution that six shots were fired on the bullock cart on which the deceased were sitting. If these shots were fired, the bullocks would have been frightened and either they had got themselves freed from the cart or the cart would have fallen in the process of running of bullock and it would have not been found in same condition near culvert of tube-well.

The above material discrepancies and subsequent developments in prosecution story indicates that occurrence had not taken place as alleged by the prosecution and the above place of occurrence has been shifted from the place of occurrence mentioned in the F.I.R.

The prosecution has relied on ocular testimony of Raghunath (P.W. 1) and Ganga Prasad (P.W. 3). The learned Counsel for the Appellants vehemently challenged the presence of above witnesses on the spot. We have to consider whether the above two witnesses were present on the spot and had seen the occurrence.

Raghunath (P.W. 1) stated that he was proceeding to village Garehi along with the deceased on the same bullock cart and he was driving the bullock cart. That he was also present on the bullock cart when the occurrence took place. He further stated that he was sitting in front of the cart and the deceased were sitting on back side of the cart. As many as six persons fired on the deceased who were sitting in the bullock cart. The deceased sustained gun shot injuries, but surprisingly enough Raghunath (P.W. 1) did not receive even a single pellet injury or scratch while he was on the same bullock cart on which the deceased were sitting. He also stated that no injury was caused to bullocks. However, he offered an explanation for absence of injury on his person that he jumped down of the bullock cart and ran away, but he further stated in his cross-examination that none of the Appellants fired on him, and when the Appellants were firing shots, he was sitting on the bullock cart. His above admission rules out the theory of the jumping down from the bullock cart and running away. Moreover, the witness was closely related with three deceased. The Appellants were allegedly annoyed with the family of the deceased and if they had planned to finish the life of all the three deceased, they were not expected to spare Raghunath (P.W. 1), who was also of the same family, to become witness against them. In this way, the explanation offered by Raghunath (P.W. 1) about the absence of injury on his person is not convincing and believable.

Raghunath (P.W. 1) stated that he was interrogated by the Investigating Officer after three days of the occurrence. Sri Gajraj Singh, Investigating Officer (P.W. 5) also stated that he interrogated Raghunath (P.W. 1) on 24.3.1979. The witness claimed to be present on the spot when the first Investigating Officer Vijay Bahadur Lal ((P.W. 6) interrogated informant Ganga Prasad (P.W. 3) on 23.3.1979 after inquest proceeding. If Raghunath (P.W. 1) was actually present on the spot, he would have been interrogated by the Investigating Officer on 23.3.1979. No doubt there in no inordinate delay in interrogation of Raghunath (P.W. 1), but the manner in which he claims to have seen the occurrence indicates that if he was actually an eye-witness, he should have been interrogated by the Investigating Officer on the next morning when Ganga Prasad (P.W. 3) was interrogated. The above aspect of the case also creates doubt about the presence of Raghunath (P.W. 1) on the spot.

The witness has also materially contradicted the place and manner of occurrence and could not satisfactorily explain absence of injuries on his person. In these circumstances, his presence on the spot appears highly doubtful therefore, he is not reliable witness.

Ganga Prasad (P.W. 3), brother of deceased Manohar and Anant Ram and uncle of deceased Chandra Bhan, is also complainant and informant of the case. He claimed that he was also walking behind the bullock cart carrying the deceased and observed the occurrence from a distance of about 100-125 paces. In the F.I.R. lodged by the witness, he mentioned that he was walking behind the bullock cart at a distance of about 100 paces and he also raised alarm. In the F.I.R., it was not mentioned whether he was coming behind the bullock cart on foot or on a cycle. Since it is mentioned in the F.I.R. that he was walking behind the bullock cart, it means that he was coming behind the bullock cart on foot. But in his evidence, he stated that after one hour of the departure of the deceased and Raghunath (P.W. 1), he proceeded for Atta. He further stated in the examination-in-chief itself that he had proceeded on a cycle from his house. But in order to make his statement in consonance with the F.I.R. version and the statement of Raghunath (P.W. 1) which was recorded one day earlier, he stated that his cycle got punctured in the way. Further he admitted that the fact that his cycle got punctured was not mentioned in the F.I.R. nor it was told before the Investigating Officer as he was not asked about it. He further stated that he had left his cycle in the field of Pisaya. Where that field was situated has not been clarified. He further stated that while he was coming behind bullock cart on foot, he was taking his punctured cycle. The fact that the witness proceeded from his house after one hour of the departure of the deceased and Raghunath (P.W. 1) on a cycle, his cycle got punctured and he was proceeding on foot with punctured cycle behind the bullock cart were subsequently developed. These facts were neither mentioned in F.I.R. nor in the statement of the witness u/s 161, Cr. P.C. It cannot be said that these developments do not materially affect the prosecution case. It appears that since the witness had sustained no injury and in case he had proceeded along with the deceased on a cycle, he would have travelled much more distance up to the time by which bullock cart reached the place of occurrence and in case he was proceeding on foot, he could not have reached the place of occurrence when the occurrence took place as on his own showing, he proceeded after an hour of departure of deceased and if he actually proceeded on foot along with the deceased, he ought to have been seated on the bullock cart, therefore, all these developments had been made by the witness to make his statement in consonance with the F.I.R. version and the statement of Raghunath (P.W. 1).

In the F.I.R., the witness had mentioned that he was coming behind bullock cart but in his evidence, he clarified that at the time of occurrence, he was on kachcha rasta at a distance of 100 paces from the place of occurrence. There was a kachcha rasta towards south west of the metalled road and according to the witness at the time of occurrence he was on said kachcha rasta. This shows that he was not behind the bullock cart at the time of occurrence which was on the metalled road. This again shows that the witness was not sure where he was at the time of occurrence as he was shifting his version at every stage.

Ganga Prasad (P.W. 3) has further stated in his examination-in-chief that Raghunath (P.W. 1) who was driving the bullock cart jumped down of the bullock cart and ran away raising alarm. But in his cross-examination, he stated that on exhortation of the Appellant Ram Kumar, none amongst four (the 3 deceased and Raghunath) ran away from the bullock cart. This again shows that the witness was changing his evidence which suited him.

The witness further stated that during inquest proceeding he become unconsciousness and came to village Atariya (home village) and regained consciousness after two days. That he was interrogated by the Investigating Officer after two days. But according to statement of Vijai Bahadur Lal (P.W. 6) he interrogated Ganga Prasad (P.W. 3) on 23.3.1979, i.e., the next morning of the occurrence after inquest proceeding.

As mentioned above the witness has also shifted the place of occurrence and gave contradictory version regarding manner of occurrence.

From the above facts and circumstances and material discrepancies as well as subsequent development in the statement of Ganga Prasad (P.W. 3), the presence of the witness on the spot appears highly doubtful and he was not in a position to observe the occurrence.

As per F.I.R. version and evidence of ocular witnesses Dhuram, Harpal and Bhagat, who had also seen the occurrence and had raised alarm. But none of these were examined and prosecution felt contended by examining only two family members of the deceased.

In these circumstances, evidence of both the witnesses of fact, namely, Raghunath (P.W. 1) and Ganga Prasad (P.W. 3) could not be safely relied upon and the learned Sessions Judge erred in placing reliance on their testimony.

We also find that investigation of the case was also not proper. The Investigating Officer appears to have tradded the path shown by the witnesses and did not try to ascertain the place and manner of occurrence and the actual culprits.

In view of our above discussions and observations, we find that the evidence adduced by the prosecution was not sufficient to prove that guilt of the Appellants beyond all reasonable doubts and, therefore, the conviction and sentence of the Appellants cannot be sustained.

Accordingly, we allow the appeal preferred by the Appellants Mangal Singh, Munna, Kanhai, Bhoje and Kashi Ram as the appeal preferred by Appellants Jagmohan, Krishna Dutta and Ram Kumar had already stood abated. The conviction and sentence of above Appellants is hereby set aside. They are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender.