Kalika Yadav and Others vs State of U.P.

Poonam Srivastav, J.—The present appeal has been filed against the judgment and order dated 12.1.2001, passed by the District and Sessions Judge, Jaunpur convicting the four Appellants u/s 302, I.P.C. read with Section 302/149, I.P.C. and sentencing them for life imprisonment and fine of Rs. 3,000. In default of payment of fine further imprisonment of 4 months R.I. u/s 148, I.P.C. 3 years R.I., 10 years R.I. and fine of Rs. 2,000 u/s 307/149, I.P.C. In default of payment of fine within 30 days from the date of judgment 2 months R.I. and 7 years R.I. and fine of Rs. 2,000 u/s 380, I.P.C. In default of payment of fine a further imprisonment of 30 days from the date of judgment. All the sentences are directed to run concurrently. The charge u/s 452, I.P.C. in alternative u/s 396, I.P.C. has been dropped.

The Appellants were allowed bail by this Court on 28.2.2001 but the Apex Court cancelled the order granting bail and directed the Division Bench to consider grant of bail after giving opportunity of hearing to the counsel for the first informant vide order dated 25.1.2006. The Appellant Kalika Yadav, son of Ram Ajor Yadav and Paras Nath Yadav, son of Kalika Yadav surrendered pursuant to the order of Hon''ble Supreme Court and are in jail since 5.9.2006. The Appellants Indra Prakash and Keshav Prasad alias Keshar sons of Ram Ajor did not surrender. We are informed that steps have been taken for procuring their attendance, their properties have been seized but till date whereabouts of these two Appellants are not known.

An application was moved on behalf of the accused Kalika Yadav and Paras Nath Yadav for separating their appeal since it is not being heard on account of the reason that two other accused are absconding. A Division Bench of this Court allowed the application and separated the appeal of Kalika Yadav and Paras Nath Yadav vide order dated 16.3.2009. We proceed to hear this appeal on behalf of the two Appellants Kalika Yadav and Paras Nath Yadav only who are in jail since considerable length of time.

The prosecution story as unfolded in the F.I.R. briefly is that on 13.12.1990 at about 6.30 p.m. Deep Narayan alias Ballar Singh, grandfather of informant, Ram Murti Singh, uncle of the informant were sitting inside the maraha situated in the house of Deep Narayan of village Sidhai, District Jaunpur. It was winter time. A bon fire was burning outside since it was a winter evening. The electric bulbs lighted outside and inside the house of the informant, Madhuri Singh (Bua of informant), Smt. Vimla Devi, Smt. Vidya Singh, younger brother of the informant Manish Kumar Singh (P.W. 2), younger sister Aruna Singh and Rajendra Kumari Singh were present in the verandah. One Hemant Kumar Banerji resident of Jaunpur was also sitting in verandah infront of the house and Bhupesh Kumar Singh (informant) was giving fodder to the cattles. At the relevant time 12-13 miscreants including the four accused Kalika Yadav, Indra Prakash, Keshav Prasad alias Keshar and Paras Nath Yadav all armed with kattas and tamanchas came at the maraha. It is further submitted that unidentified assailants were also armed with hand grenade and bombs and one of them was armed with gun. The motive propounded by the prosecution is that certain altercation had taken place a few days before the incident between Manish Kumar Singh P.W. 2 and son of Kalika in St. Thomas Inter College where they were students. Thus, on arrival of the Appellants alognwith other miscreants Kalika Yadav inquired about Manish Kumar Singh, Deep Narayan expressed his ignorance on which Kalika Yadav exhorted that the inmates of the house be ready for the consequences for the beating given to Hari Nath son of Kalika, the entire family will be destroyed. Deep Narayan stood up when he realized that Paras Nath and Kalika fired at him with their tamanchas. One of the miscreants threw a bomb resulting in serious injuries to Deep Narayan, who fell down. Ram Murti Singh came out of the Maraha and he was also fired at by accused Indra Prakash and Keshav Prasad alias Keshar. Hearing the noise, the ladies sitting in verandah also came out when the miscreants started throwing hand grenade causing injuries to the ladies of the family. Manish Kumar Singh also came out and received fire arm injury. One Hemant Kumar Banerji, a close family friend also attempted to intervene and save the family members but he was also seriously injured. The miscreants entered the house and took away one licensed D.B.B.L. gun, one S.B.B.L. gun and 32 bore licensed Mouzer pistol alongwith cartridges. On hearing the shrieks and shouts, a number of villagers came and tried to catch hold of the miscreants including Rajesh Kumar Singh alias Bindu Singh who was sitting on his roof, raised alarm, finally the miscreants ran away alongwith looted fire arms and one V.C.R. towards south.

The F.I.R. was registered on the same day at 20.30 hours at Police Station Kotwali Shahganj, District Jaunpur situated three kilometres south from the place of occurrence under Sections 147, 148, 149, 307, 452, 395 and 397, I.P.C. The case was registered at Case Crime No. 469 of 1990 which is Exhibit Ka-1.

In the instant case, three persons have died namely Deep Narayan alias Ballar Singh, Ram Murti Singh alias Nanhe and one Hemant Kumar Banerji who succumbed to the injuries on 19.12.1990 caused in the incident. Five persons received injuries in the family of deceased Deep Narayan, Km. Aruna Singh, Smt. Rajendra Kumari Singh, Manish Kumar Singh, Smt. Madhuri Singh and one Saleem who was a nearby resident but Saleem was not present in the house when the occurrence took place in the house of first informant. According to the prosecution itself, he received injuries at the hands of some dacoits. All the injured including Deep Narayan, Ram Murti Singh and Hemant Kumar Banerji were brought to the Shahganj Hospital and the injuries were examined on the same day by Dr. Vinod Kumar Mishra, P.W. 6. The injured and the deceased were brought to the Shahganj Hospital by one Rajesh, in a Gipsy. Ram Murti Singh was declared dead and condition of Deep Narayan was precarious and he was referred to District Hospital, Jaunpur. Hemant Kumar Banerji was taken to King George Medical College, Lucknow. The injuries of the injured were examined in between 7.45 p.m. to 9.00 p.m. Injuries of Deep Narayan was examined at 7.30 p.m. The injury report is Exhibit Ka-7. He died shortly after his injuries were examined. Injuries of Km. Aruna was examined at 7.45 p.m., Exhibit Ka-8. Smt. Rajendra Kumari Singh alias Baby was examined at 8.00 p.m., Ex. Ka-9. Hemant Kumar Banerji was examined at 8.15 p.m. Manish Kumar was examined at 8.30 p.m., Ex. Ka-11 and Smt. Madhuri Singh was examined at 9.00 p.m., Ex. Ka-12. The Medical Officer sent information at the Police Station on 13.12.1990 at 9.30 p.m. informing that he examined eight injured persons up till 9.30 p.m. and another letter at 22.30 was also sent informing that Deep Narayan Singh alias Ballar Singh also died in Shahganj Hospital, Jaunpur. The two letters are Exs. Ka-13 and Ka-14. Both the letters were entered in G.D. No. 42.

Post mortem on the body of the deceased Deep Narayan was conducted by P.W. 5, Dr. M. J. Sharma Ex. Ka-5. Post mortem of Ram Murti Singh alias Nanhu Singh is Ex. Ka-6. Post mortem on the body of Hemant Kumar Banerji was conducted by P.W. 4, S. N. Mehrotra at Lucknow and is Ex. Ka-3.

The prosecution examined only two witnesses of fact, Bhupesh Kumar P.W. 1 and Manish Kumar P.W. 2. The remaining witnesses are formal witnesses namely Indrajeet Singh P.W. 3 who proved panchayatnama of deceased Hemant Kumar alias Hemant Ranjan Banerji which is Ex. Ka-2. P.W. 4 Dr. Shailendra Nath Mehtrotra was examined as P.W. 4 who performed post mortem on the body of Hemant Kumar Banerji. The following ante-mortem injuries were reported by him:

Fire arm scabbed wound multiple in number present over forehead and scalp left eye ball lacerated and liuqified Route entry left eye ;

Fire arm injury scaltered scabbed wound in an area of 6 cm. ? 6 cm. muscle deep on left shoulder and upper part of upper arm 3 cm. below back of left shoulder ; and 3. Fire arm scabbed wound multiple present in an area of 4 cm. ? 2 cm. above left wrist joint. Skin deep. On opening seven pellets recd. from injury No. 1 and two pellets recd. From injury No. 2.

Dr. M. J. Sharma, District Hospital, Jaunpur was examined as P.W. 5 who had performed post mortem on the body of the deceased Deep Narayan Singh alias Ballar Singh and also Ram Murti Singh alias Nanhu Singh who had proved the two post mortem reports. Ante-mortem injuries of the two deceased are as follows:

ANTE MORTEM INJURIES OF DECEASED DEEP NARAIN ALIAS BALLAR SINGH:

(1) Gun shot wound 2 cm. ? 1 cm. ? cavity deep over (lt) side chest, 5 cm. below inner 1/3 of (lt) clavicle, 3 cm. internal to (lt) nipple, blackening, tattooing + charring present in 2 cms. area of the wound. No exit wound noted. Direction of wound is inward + downwards, Hard object palpable in the wound on cut 2 pieces of wedding material found ;

(2) Multiple pellets wound (Gun shot wound) in area of 7 cm. ? 11 cm. over (lt) side, front of chest wall + (lt) upper part of (lt) forearm (corresponding) circular in shape each measuring 0.2 ? 0.2 cm. size, few wounds are superficial, few are muscle deep and few are cavity deep. Direction of wound is upper and inwards. No corresponding exit wound (Paper Torn) found ;

(3) Multiple pellets wounds (Gun shot) in area 30 cm. ? 24 cm...... (P.T.) 3 cm. below (P.T.) middle of (lt) clavicle, circular in shape measuring 0.2 cm. ? 0.2 cm. no mark of exit noted, Direction of wound is upward and inwards ; and (4) Blast injury on front of left upper and forearm starting from 2 cm. below axilla in front of (Rt.) side chest overlapping injury No. (3) at whole of arm was burnt at places epidermis is peeled off and blister (+) (P.T.) blackening present which was not washed c wet cloth.

ANTE MORTEM INJURIES OF DECEASED RAM MURAT SINGH:

(1) Multiple pellets wound (Gun shot) in an area of 29 cm. ? 32 cm. on front of below and lower part of chest each measuring 0.2 cm. ? 0.2 cm. circular in shape. All the wound of entry, no wound of exit noted, few of the wound are superficial and pellets are not entered, few are muscle deep and few are cavity deep. Direction is inwards and upwards, semi-clotted blood coming out of deep wounds. Cloth on corresponding (S.I.C.) are pierced by pellets.

NOTE.-Other injury front of (Rt.) arm and forearm described by S.O. In photo nash are not present on body in vide enclosure No. (6) of Police papers.

According to the doctor, cause of death was excessive haemorrhage and shock as a result of ante-mortem gun shot injuries to vital organs.

Dr. Vinod Kumar Mishra was examined as P.W. 6 to prove the injuries of all the injured alleged to have received in the incident. The injuries of all the injured are as follows:

Examined Mr. Ballar Singh urf Deep Narain Singh S/o (Late) Sri Raja Ram Singh R/o Vill. Sidhain Kala P. S. Shahganj Jaunpur, B/B. His Gipsy Driver on 13.12.1990 at 7.35 p.m. (Mr. Rajesh) aged approx 76 years.

Marks of Identification: One raised black mole over Rt. arm placed 13 cm. down to lateral of Rt. clavicle.

INJURY:

(1) Entire front of chest is charred and multiple small pellet injury present. Multiple oozing points are present of varying size from 1/2-1 cm. and depth upto muscle and bone ;

(2) There is burn + abrasions (multiple) over front of Rt. arm and forearm of size 10 ? 15 cm. and 10 ? 10 cm. respectively ;

(3) Multiple pellet injury charring placed over front of abdomen above navel of varying size measuring 0.5 ? 1.0 cm. and depth upto muscle layer ; and (4) Abrasion 2 cm. ? 1 cm. over mid and lat. Aspect of lt. thumb.

OPINION:

Inj. Nos. (1), (2) and (3) are caused by bomb explosion or firearm injury from near distance Inj. No. (1) is suspected of having internal injury of chest and clinical preumo-thorax which need X-ray for confirmation.

DURATION: Fresh and Grievous in nature.

Treatment given:

(1) Inj. Tetvat 1 amp. ? 1/M ? stat.

(2) Inj. Dilona 1 amp. ? 1/M stat.

(3) Cefamezion (S.I.C.) 1/V stat.

(4) I/V infusion (fast) Haemaceel III (.) stat.

(5) Inj. Coramin 1 amp. I/V.

(6) Inj. Dexona 1 amp. ? 1/V.

(7) Inj. Mephertion 2 cc. ? 1/V stat.

G.C.: Very poor pt. Unable to talk.

B. P.: Not recordable.

Carotid pulsation thready & rapid.

Pt. dysphose 1 cyanosed & shacked.

Attested L.T.I. of examined person.

Sd. Illegible 13.12.90 Police informed and grievous condition of pt. Requires urgent transportation and reference to District Hospital, Jaunpur.

Examined Km. Aruna Singh aged approx 18 years D/o Sri Tej Bahadur Singh R/o Vill, Sidhain Kala Shahganj, Jaunpur. B/B Her Gipsy Driver Mr. Rajesh on 13.12.90 at 7.45 p.m.

M.I.: Scar mark oval shaped of size 1 cm. ? 1.5 cm. over lt. tebial ant. border 10 cm. from ankle crease.

INJURY:

(1) One lacerated wound of size 2 cm. ? 1.5 cm. ? 1.5 cm. over Rt. cheek with massive oedema ;

(2) Multiple pellet injury over forehead of varying size from 1/2 cm. ? 1 cm. and muscle deep ; and (3) Bleeding nose from both nostrils.

OPINION:

All injury are fresh and caused by bomb blast or firearm injury. Injury are grievous in nature.

N.B.:- Injury Nos. (1) and (2) kept under observation. X-ray examin for further evaluation.

Tt. given: (1) 1/V infusion of Haemaceel.

(2) Inj. Dexona (3) Inj. Tetvat (4) Inj. Cefamezion (5) Inj. Mephertion 2 cc ? 1/V stat.

Refd. To District Hospital J.N. for further treatment.

Attested R.T.I. of examined girl.

Sd. Illegible 13.12.90.

Examined Smt. Rajendra Singh urf Baby aged approx 24 yrs. W/o Sailesh Kumar Singh R/o Vill. and P.S. Sidhain Kala Shahganj Jaunpur on 13.12.90 at 8.15 p.m.

M.I.: One healed scar 1/2 cm. ? 1/4 cm. over forehead 4 cm. above from root of nose.

INJURY:

(1) Multiple pellet injury, in area of 8 cm. ? 8 cm. over lt. side of chest upto lt. costal margin of varying sizes of 0.5-1.0 cm. ? muscle deep ;

(2) A lacerated wound in area of 5 cm. ? 4 cm. over lat. Aspect of Rt. palm & wrist joint. Depth of wound: Bone deep.

OPINION:

All injury are fresh and caused by bomb explosion or firearm injury. Injury Nos. (1) and (2) require X-ray examination for further evaluation and confirmation. Injuries are grievous in nature.

Tt. given:- (1) Inj. Tetvat (2) Inj. Dilona.

(3) Inj. Cefamezion (4) I/V Haemaceel.

(5) C. and D. of wound.

Refd. to District Hospital for X-ray exam. and further management, Police informed.

Sd. Illegible Attested R.T.I. of examined person. Sd. Illegible.

13.12.90 Examined Mr. Hemant Ranjan Banerji S/o N. M. Kanchan Banerji aged (approx) 22 yrs. R/o Staff Nurse Mahila Hospital, Jaunpur (Distt.) B/B Gipsy Driver Mr. Rajesh on 13.12.90 at 8.15 p.m.

M/I: One black pin head size til over root of neck 1 cm. over mid end of Lt. Clavicle.

INJURY:

(1) Multiple lacerated wounds with depressed area over forehead and lt. side of face/average size of lacerations are .3 cm. ? .5 cm. ? muscle bone deep.

(2) Bleeding from nostrils and mouth seen.

(3) Massive oedema involving whole of lt. eye and surrounding area.

OPINION:

Injuries are fresh and grievous in nature caused by firearm (pellets) or bomb explosion/depression of injury No. (1) could be because of impact against hard object.

Injury Nos. (1) and (3) requires X-ray exam and eye specialist opinion for further evaluation and confirmation.

Tt. given: (1) Inj. Tetvat (2) Dilona Inject.

(3) Inj. Cefamezion (4) I/V Haemaceel.

(5) C. and D.

Refd. to District Hospital for X-ray examin and opinion of Eye surgeon and E.N.T. surgeon for further evaluation and management.

Attested L.T.I. of examined.

Sd. Illegible 13.12.90 Examined Sri Maneesh Kumar Singh aged (approx) 16 yrs. S/o Sri Tej Bahadur Singh R/o Sidain Kala Shahganj Jaunpur B/B His Gipsy Driver on 13.12.90 at 8.30 p.m.

M.I.: One black mole 1/10 ? 1/10 cm. on (Rt.) side of upper lip 1/2 cm. below the ala of nose (Rt. side).

INJURY:

(1) One lacerated wound 1 cm. ? 1/2 cm. over ant. aspect of (lt) forearm placed 3 cm. above to lt. wrist joint crease. Depth of wound is muscle deep ;

(2) One bullet injury over Rt. hip of region (A) wound of entry: 1 1/2 cm. ? 1 1/2 cm. over post aspect of Rt. iliac crest (B) wound of exit 1 1/2 cm. ? 2 1/2 cm. over Rt. Iliac fossa/Bleeding present. Injury No. 2 (A) is associated c charring of skin of margin of wound.

OPINION: Inj. No. (1) is simple and caused by hard blunt object. Injury No. (2) is caused by bullet injury and grievous in nature. Inj. No. (2) requires X-ray exam and opinion of surgeon to assess abdominal injury and internal bleeding and hence case is referred to District Hospital, Jaunpur.

Duration: Fresh.

Tt. given:-

(1) Inj. Tetvat

(2) Inj. Cefamezion.

(3) Inj. Dilona (4) I/V Haemaceel II.

(5) Inj. (S.I.C.) ? 1/V stat.

(6) Inj. Mephertion.

Attested L.T.I. of examined person.

Sd. Illegible 13.12.1990 Examined Smt. Madhuri Singh W/o Sri Ugrasen Singh aged (approx 40 yrs.) Vill. Sidhain Kala Shahganj, Jaunpur. B/B Gipsy Driver on 13.12.90 at 9.00 p.m.

M.I.: One black mole 1/10 ? 1/10 cm. over Rt. side of forehead 2 cm. above from mid and upper margin of eyebrow.

INJURY:

(1) One lacerated and crushed wound of entire Rt. thumb with multiple exposed pieces of phalyngs.

OPINION: Fresh. Caused by impact against hard and blunt object. Injury is grievous in nature. This injury require X-ray exam. and management by Surgeon and Hence referred to Distt. Hospital, J.N.P.

Sd. Illegible. Sd. Illegible.

13.12.90 Tt. given:

(1) Inj. Tetvat.

(2) Inj. Dilona 1 amp.

(3) Inj. Cefamezion 1 vial.

(4) Inj. Fortan + Inj. Calipec.

(5) C. and D. of part.

(6) Police informed Attested.

Sd. Illegible. 20.12.90.

Cons. Shatrusudan Tiwari was examined as P.W. 7 to prove the panchayatnama of the two deceased Deep Narayan alias Ballar Singh and Ram Murti Singh alias Nanhu Singh, C.P. 1467 Daya Shanker was examined as P.W. 8 to prove the chik and F.I.R. and G.D. No. 37. P.W. 9 Court Moharrir Ram Awadhesh Rai was examined to prove the G.D. No. 21 time 17.45 dated 26.11.1990 regarding the information about altercation between the students of St. Thomas Inter College and P.W. 10 Ran Vijay Singh Investigating Officer, Ram Prasad Tiwari Inspector C.B.C.I.D., Lucknow was examined as P.W. 11.

The defence examined one Deepak Kumar as D.W. 1 to prove the invitation card and the fact that there was wedding in the family of the Appellants to substantiate that they were not present in the village on the date of occurrence.

Subsequent to the death of two injured namely Deep Narayan and Ram Murti Singh, the case was converted under Sections 148, 302, 149, 307, 452, 380 and alternatively 396, I.P.C. After completing the investigation, charge sheet (Ex. Ka-44) was submitted and charge was framed on 3.7.1998 for the aforesaid offences. It is also relevant to point out that further investigation was carried out by the C.B.C.I.D. After taking permission u/s 173(8), Cr. P.C. This became necessary for the reason that the Appellant claimed that investigation was not fair and actual facts were suppressed. The accused challenged the manner of occurrence and also participation by the named accused (The four Appellants in the instant case). There was a dacoity in the village on the same day and the same time, i.e., on 13.12.1990 at 6.30 p.m. Houses of Ram Chandra and Abdul Gani was also looted by dacoits and report was given by them which is paper No. 10/3 and Paper No. 10/4 by the aforesaid two persons namely Ram Chandra and Abdul Gani. The police did not register those reports on separate crime number but it was made a part of the present Crime No. 469 of 2001. Subsequently 32 bore Mouzer pistol stolen in the present case was recovered from one Raju Bhar in another incident and one D.B.B.L. gun from one of the dacoits, that too in a separate incident. It is also necessary to note that two unknown accused namely Budhi Ram and Ram Dulare were arrested and put up for identification. Three witnesses namely Ram Chandra Tiwari, Jeet Narain son of Shanker Singh and Gorakhnath had come forward to identify these two persons on 4.7.1991. None of them were able to identify the two accused Budhi Ram and Ram Dulare, consequently they were exonerated.

A number of arguments have been advanced by Sri Dileep Kumar pointing out the discrepancies and a number of flaws in the prosecution case. In support of his argument that the Appellants had not participated in the offence, he pointed out the discrepancies and flaws in the evidence of P.W. 1 and P.W. 2 recorded during the trial. Besides, the learned Counsel, while analysilng the prosecution version vis-a-vis the evidence brought on record in support of its case advanced a number of weaknesses.

The first argument is that the independent as well as injured witnesses have been deliberately withheld. It is only two interested witnesses who have come forward to depose in support of the prosecution case. Learned Counsel submits that the motive propounded by the prosecution is a flimsy one and no prudent person can imagine it to be root cause for such a ghastly crime and all the family members (Appellants) will participate to wreak vengeance for a quarrel between children who were students of a college. It is also submitted that if the origin and genesis of the motive suggested by the prosecution was the incident that occurred a few days before in the college then it is based only on hear-say evidence. No one from the college has come forward to support the incident. Learned Counsel has tried to draw our attention that there was strained relationship between two families prior to both the incidents. In fact dacoity was committed in the village and no one was able to identify the accused. The names of the accused was involved in the incident only because there was bad blood between the two families on a number of accounts, good enough to falsely implicate the Appellants but no immediate reason which could result in such a flair of temper for committing the offence.

Sri Dileep Kumar has laid emphasis on the fact that the deceased and the injured were taken to Shahganj Hospital in Gipsy driven by Rajesh who happens to be cousin of the first informant but there was a litigation regarding some landed property between those two as well. The other aspect brought to our notice is that according to P.W. 1 Bhupesh Kumar, who was the grandson of the deceased got down at the Petrol Pump while taking the injured to the hospital only to write out the F.I.R. and Rajesh was left alone to take the injured and the deceased to the hospital. Rajesh has not been examined and the conduct of P.W. 1 is a definite pointer to the fact that he was not present at the time of occurrence and that is why Rajesh had taken the injured and the deceased alone to the hospital. P.W. 1 came at a later time. Learned Counsel has also tried to draw our attention that since the motive attributed for commission of offence is the incident that took place in St. Thomas College where P.W. 1 Bhupesh Kumar was also a participant in the marpeet, therefore, he would not have been spared by the accused specially when Kalika had specifically stated when he arrived at the time and place of occurrence and enquired about Manish, they have come to avenge the incident that took place in the college. Learned Counsel further submits that it is very surprising that the Investigating Officer on receiving prompt information has chosen not to go to the hospital where all the injured and the deceased were kept as the same was at a distance of 100 yards only, but on the contrary reaches at the scene of occurrence. There is nothing on record to substantiate that the injured were referred to Medical College, Lucknow since there is no supplementary injury report. However, it is specifically admitted in the statement of witnesses that all the injured remained at Shahganj till 15th night and they left for further treatment to Lucknow in the morning of 16th December, 1990.

The prosecution has also withheld three witnesses namely Ram Chandra Tiwari and Abdul Gani, in whose houses dacoity was committed and information was given to the police and also Saleem was not produced who received injuries at the hands of the dacoits. It is also brought to our notice that the two accused who have not surrendered subsequent to the cancellation of their bail application, had claimed identification. Those two accused had specifically moved application for identification. Learned Counsel submits that since these two accused reside outside Shahganj, they have business at Mathura, Gujarat as well as outside country, they are hardly present at Shahganj. They were present in the village only because there was a wedding in the family on 13.12.1990, all the family members had assembled and, therefore, the two accused were absolutely certain that none of the injured witnesses or P.W. 1 who claims to be an eye-witness knew them. This request was objected by the prosecution and the application u/s 54A, Cr. P.C., was finally rejected on 7.1.1991.

It is submitted by Sri Dileep Kumar advocate that the prosecution has relied upon testimony of two witnesses, out of which one is an injured witness. These two witnesses are the family members and since the independent witnesses have been withheld, implicit reliance cannot be placed on their evidence and on close scrutiny the two witnesses do not inspire confidence. So far to establish motive, no clinching evidence has been produced and only motive put forward by the prosecution is the incident that took place in the college on 23.11.1990 and its repercussion on 24.11.1990 and 26.11.1990 which led to expulsion of Manish Kumar from the college. No other immediate motive has even remotely been suggested for commission of the offence. The students namely Rajesh Chauhan, Ashutosh Singh and Manish Kumar had an altercation for the reason that the football was thrown towards girl students of the college. This happened ten days prior to the incident where none of the accused were present. In the circumstances, at least these students should have been examined alongwith the Principal or someone from the staff to support the motive. Besides, learned Counsel has also pointed out a number of circumstances which spell out old standing enmity for false implication of the accused. Learned Counsel has also placed two post mortem reports in support of the argument that the injuries caused to the deceased are in fact bomb injuries which is alleged to be caused by unknown assailants. So far the Appellants Kalika Yadav and Paras Nath Yadav who have been attributed to cause fire arm injury at the deceased Deep Narayan, it is not trustworthy as their testimony contradicts the injury reports as well as the eye-witness account by P.W. 2. The conduct of the Investigating Officer has also been criticised at every stage and on its basis, the submission is that the F.I.R. is ante-timed. The Investigating Officer after taking over investigation did not go to the hospital which was only at a distance of 100 yards where the injured and body of the deceased were kept but on the contrary chose to visit the scene of occurrence. Besides, the injured witnesses were very much present in the village but they were not examined u/s 161, Cr. P.C. Manish Kumar P.W. 2 has not at all been examined though they remained till 15th night at Jaunpur according to the prosecution. They left for further treatment for Lucknow only on 16th morning. Besides, nothing has been brought on record to substantiate any further treatment at Lcuknow. No supplementary medical report is on record. The defence had moved an application for summoning the case diary of C.B.C.I.D. who had examined P.W. 2 Manish Kumar Singh u/s 161, Cr. P.C. and he was the star witness of the prosecution, but for the reasons best known this application was also rejected and the case diary of the C.B.C.I.D. was not brought on record. However, Parcha No. 30 of the case diary of C.B.C.I.D. was filed alongwith an application which is numbered as 220 Kha only to support the argument of the defence that the injured received injuries and three persons succumbed to the said injury in a case of dacoity as the conclusion of the C.B.C.I.D. was that it was a case of dacoity only. It is emphatically submitted that this has considerably prejudiced the Appellants'' case. The additional factor brought to our notice is that 32 bore pistol Mouzer was recovered from one Raju Bhar who made the confessional statement that this arm was taken by him in a dacoity committed at the house of the first informant. The second weapon alleged to have been stolen by the accused was also recovered from the dacoits and recovery memos were prepared in Case Crime No. 469 of 2001.

To support the argument that the F.I.R. is ante-timed, learned Counsel has placed the statement of P.W. 8 in addition to the discrepancies pointed out in the statement of the Investigating Officer that no special report was sent as required under law. The admission of P.W. 8 that since a number of police officials had reached the place of occurrence, they had already arrived at the scene of occurrence, therefore, the special report loses its significance. This admission coupled with the other documents such as inquest as well as the fact that the accused were arrested only on 15.12.1990 in the morning, though neither they had absconded nor they have tried to evade arrest. They were present in their houses but the Investigating Officer did not make any effort to arrest them is another circumstance which proves that the Appellants were roped in the present incident at a very late stage after consultation and deliberation falsely.

Sri H. N. Singh advocate appearing for the first informant and learned A.G.A. for the State have emphatically controverted and disputed the arguments advanced on behalf of the Appellants. So far the challenge of the learned Counsel regarding motive is concerned, Sri H. N. Singh submits that the motive has been disclosed at the very first instance in the F.I.R. Learned Counsel has also disputed the grounds argued on behalf of the Appellants for their false implication. Learned Counsel submits that in the report relating to murder of Baba Rama Kant, Paper 43Ka is sufficient to prove that Deep Narayan alias Ballar Singh was not an accused in Ramakant''s murder case which took place sometimes in the year 1981-82. The next ground for false implication that there was a long standing enmity on account of election of Pradhan between Kalika Yadav on one hand and the deceased on the other. It is submitted that Kalika Yadav was never Pradhan therefore, he was not a voter prior to the constitutional amendment in the Panchayat Raj Act. There was no occasion for direct confrontation as the deceased Deep Narayan alias Ballar belongs to Sodhi Shahganj Block whereas the accused are from Khuthan Block. No concrete evidence has been brought on record to establish the enmity pointed out on behalf of the Appellants for their false implication. So far the contradictions in the statements of P.W. 1 and P.W. 2 are concerned, learned Counsel for the first informant submits that P.W. 2 was only 14 1/2 years of age and P.W. 1 was 16 years at the time of occurrence.

Learned Counsel has also argued that so far identification is concerned, it was claimed by those two accused whose appeals are not being argued at present and they are still at large and therefore, any argument for not allowing the application for identification is of no consequence since it relates to only the two Appellants namely Kalika Yadav and Paras Nath Yadav. Panchayatnama of Ram Murti Singh and Deep Narayan has been placed to show that the panchayatnama bears the case crime number and also the time of occurrence and time of lodging of the F.I.R. The panchayatnama of Ram Murti Singh started at 7.00 a.m. on 14.12.1990 and the name of the accused Kalika and others is clearly shown. Similarly the panchayatnama of Deep Narayan commenced at 8.45 a.m. and the details of the accused, crime number etc. is clearly given, as such the argument that the F.I.R. is ante-timed and the names of the Appellants have been added subsequently, is without any basis. The previous enmity between the two families suggested by the defence for their false implication has also been disputed with great emphasis.

Learned Counsel for the first informant has placed a number of decisions to support the argument of the prosecution. He has cited Ram Achal Vs. State of U.P., This is a decision to contradict the argument of Sri Dileep Kumar that P.W. 2 was not examined u/s 161, Cr. P.C., by the Investigating Officer. The Division Bench of this Court held that the Section 231, Cr. P.C. do not confine production of those witnesses by the prosecution whose statements have been recorded u/s 161, Cr. P.C. The submission is that Section 231, Cr. P.C., speaks that ''all such evidence''. This clearly signify that the prosecution has a right of production of witnesses during the trial which may or may not have been mentioned in the charge sheet or in the calendar or whose statements were recorded u/s 161, Cr. P.C. The next decision relied upon by Krishna Mochi and Others Vs. State of Bihar, . This decision is in support of the argument that the Apex Court has depreciated the tendency of the Courts to acquit easily by galloping fast and taking unrealistic approach specially in the present days when crime is looming large in the society. Similar view was expressed in the case State of U.P. Vs. Anil Singh, The next decision relied upon by the counsel is Chacko alias Aniyan Kunju and Ors. v. State of Kerala XLVIII 2004 ACC 450: 2004 (2) ACR 1791 (SC), which is on the question of conviction based on the testimony of a solitary witness. Sri H. N. Singh has cited another decision of the Apex Court, State of Andhra Pradesh v. S. Rayappa and Ors. LIV 2006 ACC 828: 2006 (1) ACR 1009 (SC),to substantiate his argument that why the evidence of close relative should not necessarily be discarded. The Apex Court was of the view that there is no reason as to why close relative will implicate falsely someone else and screen the real assailant and let them escape unpunished. The only requirement is that the testimony of a close relative should be examined cautiously. For a ready reference, paragraph 7 of the said judgment is quoted below:

On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The High Court has brushed aside the testimony of P.W. 1 and P.W. 2 on the sole ground that they are interested witnesses being relatives of the deceased.

The next decision cited by learned Counsel is also on similar point. Namdeo v. State of Maharashtra LVIII 2007 ACC 414: 2007 (2) ACR 1522 (SC). Similar view was expressed by the Apex Court in the case of Komal and Ors. v. State of U. P. 2002 SCC 600: 2002 (3) ACR 2756 (SC).

To controvert the argument of Sri Dileep Kumar raised on the reliability of the inquest report and investigation, two cases have been cited. Radha Mohan Singh alias Lal Saheb and Ors. v. State of U. P. LIV 2006 ACC 862: 2006 (1) ACR 825 (SC) . The Apex Court had ruled that any discrepancy, overwriting, omission etc. not to be entertained unless attention is drawn to the said fact during the trial court. Similarly in the case of Amar Singh Vs. Balwinder Singh and Others, This case relates to the delay in sending the special report. In the said case, the Apex Court had declined to take notice of the delay in sending the special report for the reason that it was properly explained to the satisfaction of the Court and therefore, this delay alone could not be fatal to the prosecution. On the question of identification, learned Counsel for the first informant has relied upon a decision, in the case of Pammi alias Brijendra Singh v. Government of M. P. 1998 SCC 673. The Apex Court did not consider that mere failure of the Investigating Officer to conduct test identification parade is not sufficient for acquittal. In the said case, the witnesses were not seen the Appellant for the first time. So far the argument raised on the question of manner of assault, learned Counsel has cited Pandurang Kalu Patil and Anr. v. State of Maharashtra 2002 SCC 371: 2002 (1) ACR 624 (SC). Paragrpah 13 of the said judgment is quoted below:

Mr. S. R. Chitnis, learned senior counsel for the Appellants contended that the version of the eye-witnesses is inconsistent with the injuries noted by the doctors. According to the version of the eye-witnesses the deceased was running forward while the assailants shot him from behind but the firearm injuries sustained by the deceased could well have been shot face-to-face. This aspect is not enough to doubt the correctness of the testimony of the eye-witnesses, for, it is quite possible that as per the reflex action the running deceased would have turned back either to see whether he had gone out of the range of peril or to know the nearness of it. The mere fact that P.W. 2, the eye-witness said that the deceased was running forward and the assailants shot them from behind cannot rule out the possibility of such twirling of the deceased when the guns were fired.

This decision is only to discard the argument, wherein the learned Counsel for defence had pointed out the statement of P.W. 2 admitted that Paras Nath Yadav Appellant has fired from front. It is submitted that a witness cannot be accepted to narrate a videographic version of the manner of incident.

We have heard the respective counsels at length and examined the evidence on record. The specific case of the prosecution is that all the four Appellants on the date and time of occurrence alognwith a number of other accused had come to the house of the first informant to avenge the incident that took place in the college between the children of the two families. The first incident is said to have taken place on 23.11.1990. Manish Kumar P.W. 2 was student in St. Thomas College Kasba Shahganj. Another student Rajesh Chauhan had got issued a football in his name and they were playing football. Manish Singh and Ashutosh Singh gave a kick in such a manner that football was directed towards girl students of the college. This was objected by Rajesh Chauhan which led to certain altercation between Ashutosh, Manish and Rajesh Chauhan, who was also beaten by Ashutosh and Manish. On the same day, i.e., 23.11.1990, while Ashutosh was going home, he met Hari Nath son of Kalika Yadav also student of St. Thomas College, near the Khutahan turn. Some argument started between them and both extended threat to each other. On 24.11.1990, Manish and Ashutosh Singh slapped Hari Nath Yadav who went home and came back to the college with his friends but was again given a beating by Manish and Ashutosh. The principal of the college expelled Manish Singh on 26.11.1990. No doubt this motive has been mentioned in the F.I.R. but there is no supporting evidence to support this story. Besides, we fail to understand whether this flimsy reason could be a ground for committing the alleged offence in which three persons lost their lives and a number of persons including ladies received injury. We are unable to agree with the prosecution regarding question of motive for the reason that apparently the motive attributed in the F.I.R. by P.W. 1 is only hearsay, though Bhupesh claims to be present on 24.11.1990 when there was an altercation between Bhupesh, Ashutosh, Manish and Hari Nath. Again he claims in his statement that he was also present on 26.11.1990 and has admitted that 25-30 students were present in the college campus. The peon was also present though he has clearly stated that he does not remember his name, whereas on perusal of the cross-examination of P.W. 2 he admtis that he did not even speak to P.W. 1 about the incident that took place in the college on 23rd, 24th and 26th November, 1990. P.W. 2 further admits that he was not present in the incident that took place near the Khuthan turn and this had taken place after the college was closed. He came to know about the incident through Ashutosh. Once again he expresses his ignorance regarding any altercation that took place with Hari Nath on 24.11.1990. Admittedly, neither Bhupesh nor Hari Nath was present on 23.11.1990 in the college campus when there was clash between Rajesh Chauhan, Manish and Ashutosh. Manish admits that he did not tell Bhupesh about the incident then how could he have knowledge about the said incident as well as the incident that took place near Khuthan turn where Manish was also not present and came to know through Ashutosh. There is no evidence to support this motive as we have already observed in the earlier part of our judgment. Neither the peon nor any student as well as member of the staff of the college has come forward to support this incident. The prosecution has made an effort to produce documentary evidence which is Exb. Ka-43, photostatcopy of the inquiry report by one Rajaram dated 28.11.1990 which is only a secondary evidence. Rajaram Yadav has not come forward to prove the said inquiry report nor record keeper has been examined. Neither any attempt has been made to establish that the original is lost or not available and in the circumstances, in absence of any proof that primary evidence is completely erased or effaced and untraceable, we are unable to place any reliance on Exb. Ka-43. We have looked into the original Exb. Ka-43 which is photostatcopy and therefore, we are not inclined to read in evidence. Exb. Ka-43 is only a waste paper. The Investigating Officer admits in the Court that he did meet the principal of the college but no document was collected regarding any report or even the expulsion of Manish from the college on account of the alleged incident. Thus no effort whatsoever was made to corroborate the alleged MOTIVE, Ka-21 and Ka-22 are the two documents which are carbon copies of the G.D. No. 19 dated 26.11.1990 time 15.05. On perusal of the said G.D. shows ravanagi of Sri D. K. Sharma alongwith some other police constables to St. Thomas Inter College, Shahganj and also their vapasi in support of the contention that they were deputed in the college to maintain law and order. These documents have legally been proved where there is an endorsement that the original has been destroyed, so we are in agreement with the prosecution that these two documents could be read in evidence. On perusal of these documents, it only proves that these constables as well as S.I. Sri D. K. Sharma were deputed in the college to maintain law and order on that date and no untowards incident had taken place between the students during the time when they were on duty. The names of the accused-Appellants or any of the family members do not figure in any of these documents and therefore, we are unable to accept the motive propagated by the prosecution for commission of the offence. Once the prosecution chose to come forward with a definite motive for commission of the crime then it was their bounded duty to have established it by cogent evidence. A bald statement will not suffice the requirement of law. In view of what has been stated above, we are of a definite opinion that the prosecution has failed to establish any motive for commission of the crime.

We now proceed to examine that whether the death of three deceased and injuries received by injured was in fact a murder case as alleged by prosecution or it was a case of dacoity as propagated by defence. The chain of subsequent events also admitted by the Investigating Officer is a pointer towards one and only conclusion that it is not murder but a dacoity that took place in the village. The reasons we tend to agree with the submissions of the learned Counsel for the defence are, firstly, it is admitted that there was a dacoity in the village, in the same vicinity where the house of the first informant is situated, at the same time on the same date, the houses of two other villagers namely Abdul Gani and Ram Chandra Tiwari were looted. One Saleem from the family of Abdul Gani received injury who was examined at Shahganj hospital alongwith other injured witnesses and the deceased in the present case. Paper No. 10/3 and 10/4 are the two reports given to the police by Ram Chandra Tiwari and Abdul Gani. A site plan has been prepared by the Investigating Officer of the two looted houses which are Paper Nos. 8/2 and 8/3. This has been proved by the Investigating Officer and are Exb. Kha-1 and Kha-2. The most alarming factor which we are unable to ignore, is that the Investigating Officer has not given different crime number to the said reports but he has admitted that it was entered in Case Crime No. 469 of 2001, which is the instant case and he admits that it is part of the same transaction. Besides, out of three fire arm alleged to be looted by the Appellants in the incident, two of them were recovered from two dacoits, one Raju Bhar and the other dacoit and these recovery memos are also part of the same case diary relating to case Crime No. 469 of 2001. These dacoits had admitted before the Investigating Officer that they had looted these weapons in the incident that took place on 13.12.1990 at 6.30 p.m. at Shahganj in the house of the first informant. The arms were recovered from two dacoits and no connection whatsoever has been shown with the present Appellants, accordingly, we arrive at a irresistible conclusion that dacoity had taken place in the village at the same time and police investigated those incidents as part and parcel of the present incident in which the Appellants have been arrayed as an accused. Since Ram Chandra Tiwari, Abdul Gani and Mohd. Saleem are the victims of the incident who have given an eye-witness account in their reports, they are independent eye-witnesses of the incident but the prosecution has not examined them during the trial. Non-examination of these three witnesses further gives credence to the argument of Sri Dileep Kumar that the prosecution has not tried to establish that these witnesses were won over by the accused. The prosecution has not made any effort to summon them as Court witnesses as well as since there is no denial, we have no option but to believe that there was a dacoity in the village and since it arises out of the same transaction, therefore, the theory that the Appellants had come to murder the deceased, appears to be a far-fetched imagination of the first informant.

Learned Counsel has also invited our attention to the inquest report of the deceased Hemant Kumar Banerji. We have examined the original inquest report. No doubt, the two inquest reports of the deceased Deep Narayan Singh alias Ballar Singh and Ram Murti Singh which were conducted in the morning of 14.12.1990, the name of the accused is mentioned but the inquest report that was prepared only on 19.12.1990 at Lucknow shows that he died in an incident of dacoity that took place at Police Station, Shahganj, District Jaunpur. The original inquest where this fact has been mentioned was clearly circled by read pencil but it appears that no heed was given and no mention was made by the Sessions Judge.

We cannot lose sight of the fact that two other accused namely Budhi Ram and Ram Dulare were also arrested but they were exonerated since they were not identified by the witnesses. Three witnesses who had gone to identify them, were Ram Chandra Tiwari, Jeet Narayan and Gorakh Nath, Ram Chandra Tiwari was the victim in whose house dacoity had taken place.

We have also noticed that at one point of time when the investigation was in progress, an application was moved at the behest of the Appellants to transfer the investigation to C.B.C.I.D. Permission was allowed and C.B.C.I.D. had further investigated the matter after seeking permission u/s 173(8), Cr. P.C. The case diary of the C.B.C.I.D. was not brought on record despite an application supported by an affidavit was moved on 6.12.1990, which are Exb. 218Kha and 219Kha. We have perused the application. In fact Parcha No. 30 dated 30.8.1995 was also appended alongwith the said application which was numbered as 220Kha. The C.B.C.I.D. had specifically stated in the said Parcha No. 30 of its case diary that the instant occurrence is not a case of murder but it is a case of dacoity. One gang of Ramu dacoit belonging to District Azamgarh was involved in the case of dacoity and the accused whose names have come to light, are Sita Bhar, Ramu Bhar, Radhey Shyam, Lal Chandra, Shree Harijan, Ram Kishan, Kallu Bhar and Shakil Bhar alias Kariya Bhar who are in Azamgarh Jail. Sri Tej Bahadur Singh advocate, father of P.W. 1 and P.W. 2 had declined the request of the C.B.C.I.D. to let his family members identify the said accused, though they were eye witnesses. This refusal was because number of them were pardanashin lady. This application was objected by the prosecution. The objection dated 7.12.2000 to the aforesaid application moved on behalf of the Appellants was also exhibited and numbered as 224Kha. This appears to be the precise reason why the two other co-accused namely Indra Prakash and Keshav Prasad alias Keshar both sons of Ram Ajor, who are not before us, claimed identification as they did not reside in the village and they had business outside the district as well as in other States and also outside country. The application given u/s 54A claiming identification on behalf of these two accused was also objected by the prosecution on the ground that since they are named, there was no necessity for their identification. Admittedly, two other accused wished to get themselves identified by eye-witnesses at their own risk. In case they would have been identified, serious consequences would ensue but in spite of it, such a request was made which was declined on account of objections raised by the prosecution. On the basis of all these circumstances and evidence which has been discussed herein above, we come to a definite conclusion that a dacoity had taken place in the house of the first informant.

We cannot ignore a startling factor of this case that independent witnesses who were the family inmates and received injuries, who are eye-witnesses, were not produced in the Court. The Investigating Officer admits that some of the ladies were interrogated u/s 161, Cr. P.C. but P.W. 2 Manish was not interrogated by the Investigating Officer at any point of time. It was only C.B.C.I.D. which interrogated Manish. The Investigating Officer expresses his inability to interrogate him for the reason that he was admitted at K.G.M.C., Lucknow for further treatment. We are unable to believe this for the simple reason that there is no supplementary injury report whatsoever. Moreover if few of the injured ladies were interrogated, they could have very well come forward to give their evidence in support of the prosecution case. Rajesh who had taken the injured and the deceased to Shahganj hospital in a Gipsy, was also not produced in the Court, it therefore appears to be peculiar and out of normal conduct that the witness who was examined during the trial, was not interrogated by the Investigating Officer and injured witnesses who were interrogated during the investigation, were withheld and not examined in the Court. It is besides the question at the cost of repeatation that all the witnesses of motive have also not been examined, therefore, we find it difficult to accept the theory of murder as put forward by the prosecution.

In view of all these factors narrated above, it leaves us with a very big question as to why the Appellants would be implicated falsely in the crime when the motive suggested by the prosecution has been discarded by us. The suggestion given on behalf of the accused for their possibility of false implication is a long standing grudge against the family. P.W. 1 admits in cross-examination that his mother died as a consequence of burn injuries. His father used to live with a Nurse and the children addressed the Nurse as ''Mummy''. There was a panchayat held in the village on account of strained relations of the father with his wife and association. This resulted in suicide of mother of P.W. 1 which followed holding of panchayat. Kaliya Yadav, accused in the present case had supported the family of the wife during panchayat. The next reason brought to our notice is that the deceased Deep Narayan Singh alias Ballar was Block Pramukh for some times and there was great antagonism between the Thakurs on one hand and Yadavas on the other. Kalika Yadav always opposed the candidature of the deceased Deep Narayan Singh and since both the families were well to do families of the village, therefore, they were quite effective in their own way. The third ground for bad blood between two families propounded by the defence is that sometimes in July, 1981, murder of one Baba Ramakant Das had taken place near the Cold Storage of Kalika Yadav. Deep Narayan Singh alias Ballar Singh was an accused of conspiracy in the said case. The F.I.R. of Session Trial No. 161 of 1998, State v. Ratan and Ors., Police Station Shahganj, Jaunpur was exhibited as Kha-9. The murder trial was already pending at the time of occurrence and charge sheet was already filed. The denial by the counsel appearing on behalf of the first informant, thus stands falsified. We have read the said F.I.R. Exb. Kha-9. We are therefore, of the opinion that the suggestion made on behalf of defence is not baseless and is sufficient enough reason for false implication of the Appellants. Lastly the conduct of the Investigating Officer, P.W. 10 Ran Vijay Singh cannot be said to be above board. The conduct of the Investigating Officer, which is evident from the perusal of his statement, also do not inspire confidence that it was a fair investigation. He admits that after receiving information about the murder, instead of going to the hospital, he straight away went to the house of the deceased, deputed two constables and went out in search of the accused to arrest them. The F.I.R. is said to have been lodged at 8.30 p.m. on 13.12.1990 but the accused have been arrested from their house only in the morning of 15th December, 1990. It is nobody''s case that there was any attempt on the part of the accused to evade arrest or to conceal themselves. On the contrary, it has come in the evidence that there was wedding in the family of the Appellants and this was the reason that all the family members had assembled in their ancestral house. The Investigating Officer did not perform the inquest on the same night despite the fact that he had received information through a ward boy about the death of two persons. P.W. 10 Investigating Officer thought it proper to prepare the site plan in the mid night, i.e., intervening night between 13th and 14th December, 1990, which was winter night and panchayatnama was performed next morning. Special report has also not been sent which is a mandatory requirement. P.W. 2 was not interrogated at all, though his condition was neither serious nor any document to substantiate that he was not in a condition to give his statement to the Investigating Officer has been brought on record. He has never made any attempt to go to Lucknow hospital to obtain medical reports of the injured as well as deceased Hemant Kumar Banerji. He has admitted in his cross-examination that the first person who was interrogated, was Ram Chandra Tiwari and the next one was Abdul Gani Khan. Both these witnesses have signed their statements u/s 161, Cr. P.C. but in the next breath he denied the signature. The Investigating Officer also admits that in the report given by Ram Chandra Tiwari and Abdul Gani Khan, there is clear statement that the miscreants looted the house of Thakur Ballar Singh and while returning they looted the house of Ram Chandra Tiwari and thereafter the house of Abdul Gani Khan. The Investigating Officer also admits to have seen the houses and explored the fact that household articles were all scattered here and there and also that he had prepared a site plan of their houses where dacoity was committed. In the beginning of his statement, the Investigating Officer has stated that after deputing two constables in the house of the deceased, he went in search of the accused but subsequently in his cross-examination, he admits that he had not gone to Baddopur to arrest the Appellants. No ''dabish'' was given by him either on 13th night, entire day of 14th or 14th night. It was only at 6.00 a.m. on 15.12.1990 the accused were arrested. The accused were also not arrested for 36 hours.

The argument of Sri Dileep Kumar regarding the F.I.R. being ante-timed thus find support from all the circumstances and since the Appellants who are admittedly available at the distance of 1/2 kilometre, were not arrested till 15.12.1990. The excuse given by the Investigating Officer for not doing panchayatnama on the same night is that he had gone out in search of the accused. The Investigating Officer has neither tried to explain these anomalies and circumstances nor has given any adequate reply regarding special report which the law require in its wisdom that the report of such a crime has to be sent forthwith to the higher authorities. The circumstances enumerated in our judgment is good enough reason to arrive at a conclusion that the occurrence as alleged by the prosecution does not lend any credence and not sufficient to record a judgment of conviction.

Learned Counsel has relied on a decision of the Apex Court in the case of Jagdish Murav v. State of U.P. and Ors. (2007) 2 SCC 234: 2006 (3) ACR 2726 (SC). In this case, the Apex Court had granted benefit of doubt where the circumstances was very much similar to that of the instant case. The investigation was conducted in slipshod manner. No attempt made to apprehend the culprits immediately. F.I.R. was ante-timed but general diary, wherein the F.I.R. is required to be taken down, not produced in the Court. Similarly in the instant case, the Investigating Officer has tried to prove the chik by means of secondary evidence without fulfilling the requirement of Section 63 of Evidence Act. In the case of Jagdish Murav (supra) the Apex Court had depreciated non-explanation given by the Investigating Officer why independent witnesses whose statements had allegedly been recorded during the investigation, were withheld. The statement of injured was taken after very long time although according to medical report, he was not unconscious. Similarly in the instant case, the injuries of P.W. 2 Manish were not serious enough that he could not be interrogated, inspite of it, the Investigating Officer had not recorded his statement during the investigation. The Apex Court has ruled that not sending the copy of the F.I.R. to the Circle Officer after four days and Court of Magistrate after 8 days of the incident to be fatal. In the instant case, the Investigating Officer has not been able to state whether the special report was ever sent to the higher authorities.

Learned Counsel appearing on behalf of the prosecution has tried to justify this lapse by submitting that since it was a case where three people were done to death and the entire administration had already arrived in the village, therefore, there was no necessity to send the special report. This again is a half-hearted explanation and we have already disbelieved the prosecution theory of murder and have come to a conclusion that it was a dacoity committed in the village therefore, we hold that neither the argument of the learned Counsel appearing on behalf of the first informant nor the explanation given by the Investigating Officer is satisfactory. The Apex Court had ruled in the case of Jagdish Murav (supra), that with a view to determine whether the F.I.R. was lodged at the time it is alleged to have been recorded, the Courts generally look for certain external checks. One of the checks is the receipt of the copy of the F.I.R., called a ''special report'' in a murder case, by the local Magistrate. If this report is received by the Magistrate late, it can give rise to an inference that the F.I.R. was not in existence as it is alleged to have been recorded, unless, the prosecution can offer adequate explanation for the delay in dispatching or receipt of the copy of the F.I.R. by the local Magistrate. In the instant case, the Investigating Officer is completely silent and unable to show when the special report was sent.

On the basis of a detailed discussion in the foregoing paragraphs, the allegations by the prosecution against the Appellants cannot be accepted. The prosecution miserably failed to prove its case. The futile attempt by the prosecution to propagate a motive for committing the crime as well as the evidence produced by way of two eye-witnesses P.W. 1 and P.W. 2, withholding of independent witnesses including eye-witnesses. We are satisfied that no such occurrence took place. In fact a dacoity had taken place in the village. There are ample evidence and proof glaring on the face of the prosecution case which leads to one and only conclusion that the Appellants have been falsely roped in on account of old rivalry. No doubt, the evidence of P.W. 1 and P.W. 2 could not be discarded merely because they are family members and interested witnesses but in presence of series of circumstances which points towards the commission of dacoity, consequent recovery of arms alleged to have been looted from the house of the deceased from dacoits as well as neighbours of the first informant confirmed that the dacoits had also looted their houses and the Investigating Officer coming to a conclusion that all these incidents are part and parcel of the same transaction, leaves us with no other option but to eventually agree with the submissions of the learned Counsel for the Appellants that it is a case of dacoity and the Appellants have been falsely implicated.

Thus, we hold that the judgment and order dated 12.1.2001, passed by the District and Sessions Judge, Jaunpur cannot be upheld and thus set at naught. The Appellants are acquitted. The Appellants are in jail. They shall be released forthwith. The appeal is accordingly allowed.