Krishna Murari alias Murli and Others vs State of U.P.

Naseemuddin, J.—Krishna Murari alias Murli aged 50 years, son of Ram Jagat, 2. Raghava Ram Varma aged 65 years, son of Nanku Varma, 3. Kashi Ram Varma, aged 19 years, son of Teedi Varma and 4. Ram Milan Varma, aged 55 years, son of Ram Avadh Varma residents of Barauli hamlet of Kalyanpur Chhitona, P.S. Tarun, district Faizabad, were convicted of the charges of offences punishable u/s 302 read with Sections 149 and 148, I.P.C. and each of them was sentenced to be hanged separately till they are dead and rigorous imprisonment for a term of one year each respectively and 1. Ram Kripal Varma and 2. Ram Tilak Varma residents of village Ball in Kripalpur, P.S. Tarun district, Faizabad, were acquitted of the charge of offence punishable u/s 120B, I.P.C. by Sri A. H. Khan, Xth Additional Sessions Judge, Faizabad on 21.12.1999 in Sessions Trial No. 85 of 1995. The learned Sessions Judge has submitted the proceedings to this Court for confirmation of death sentences. The four aforementioned Appellants have preferred appeals against the judgment and order of conviction and sentence separately from Jail (Cr. Appeal Nos. 25 to 28 of 2000), as well as through their counsel which is Cr. Appeal No. 14 of 2000. The informant complainant Rama Kant Varma has filed Cr. Rev. No. 14 of 2000 against the judgment and order of acquittal of Ram Kripal Varma and Ram Tilak Varma aged 35 and 42 respectively. The above-mentioned reference, appeals and revision were heard together and are being decided by this one common judgment and order as these are against the same judgment and order.

An F.I.R. was lodged at 6.30 a.m. on 11.11.1994 at police station Tarun by P.W. 1 Rama Kant with the allegation that his cousin Girish Varma was sleeping in the room of the tube-well along with him, his grand father Sukhai and his uncle Ram Naresh were sleeping under the chhappars near the tube-well, his brother Uma Kant Varma (P.W. 2) was sleeping inside the "saria" for looking after the cattle. That Sukhai and Ram Naresh raised alarm of "bachao" (help), at which Rama Kant along with Girish came out of the tube-well room after opening its door, and saw that Krishna Murari and Kashi Ram by means of gandasa and Raghava Ram and Ram Milan by means of banka, and 2-3 others, who had muffled/covered their faces by means of cloth, were causing injuries to Sukhai and Ram Naresh. Ram Dev, another uncle of the informant, was sleeping south of the tube-well under the chhappar. That Rama Kant and Uma Kant and Girish tried to rescue the victims but the assailants attacked Girish and Ram Dev also by means of these weapons. Rama Kant and Uma Kant escaped and ran into the field of sugarcane and also raised alarm. It was night time 2.30 a.m. on 11.11.1994 (in between the night of 10th and 11th November, 1994). Due to cries and alarm raised by them, Ram Tej, father of informant and several villagers came with lathies and torches. The assailants ran away towards south. It was further alleged that the four Appellants were seen and identified by Rama Kant (P.W. 1), Uma Kant (P.W. 2), Ram Tej and villagers in the torches light and in the electricity light. It was also alleged that litigation in respect of land had been going on in between the victims and Appellant Krishna Murari. The cattle of Krishna Murari were sent to the house of Ram Kripal ten days prior to the occurrence and he had also sent his family out of the village to his wife''s house in another village. Rama Kant further alleged that in the morning, Daljeet Singh (P.W. 3) r/o village Jaising Mau and Hari Om (P.W. 4) r/o village Teekri told him that on 10.11.1994 at 9 p.m. Appellants were seen by them taking non-vegetarian food along with Ram Tilak and Ram Kripal at the shop of Ram Kripal. Rama Kant, therefore, alleged his suspicion against Ram Kripal and Ram Tilak as the persons who were instrumental in the commission of this crime conspiring with the Appellants. All the four victims had died on the spot. Leaving them there as such on the spot, he lodged the written report (Ext. Ka-1) at the P.S., where its check report (Ex. Ka-16) and G.D. entry (Ex. Ka-17) was prepared by Ram Harsh Yadava, (P.W. 12), head constable and thus a Case Crime No. 156 of 1994 was registered. Investigation was given to the Station Officer of the P.S. P.W. 10 Sudhakar Pandey, who at the time of registering of the case, was busy in his duty at Ayodhya in "chaudah kosi parikarima", and who on receiving information of this case reached P.S. Tarun, and obtained copy of the F.I.R. and other relevant papers from the P.S. and reached the spot of occurrence in village Barauli at about 9 a.m. and found there other police personnel including Riaz Khan of P.S. Haiderganj and Sibte Haider S.S.I. (P.W. 13) of P.S. Tarun. He got the inquest reports of the dead Sukhai and Ram Naresh prepared through Riaz Khan S.I. (Riaz Khan died before the evidence) and the inquest reports and connected papers Ext. Ka-25 to Ext. Ka-36 were proved by Ram Narain Pandey (P.W. 14) ; and also got the inquest reports in respect of deceased Ram Dev and Girish prepared through P.W. 13 Sibte Haider S.I. (Ex. Ka-17, 18 and Ka-20 to Ka-24) under his supervision and direction. He sent the dead bodies for post-mortem examination to Faizabad through constables at about 12.15 p.m. on that very day viz. 11.11.1994.

P.W. 10 Sudhakar Pandey I.O. took down the statements of Rama Kant Varma (P.W. 1), Manik Lal Varma (P.W. 7) and Munna Lal (P.W. 8). He inspected the place of occurrence at the pointing out of the witnesses of fact and prepared the map of the site (Ex. Ka-6). He found the dead body of Sukhai on a cot and found kathri and chadar and razai thereon stained with the blood of the deceased and found bloodstains on the wall and prepared its recovery memo (Ex. Ka-7) and sealed these articles with the material taken from the wall as well. Similarly, the dead body of Ram Naresh was on a cot with angochha, kathri, chader, another coloured chadar and one bush-shirt stained with his blood, with stains of blood on the wall and the memo (Ex. Ka-8) thereof was also prepared and articles with material of blood on walls were sealed separately. In the same manner, dead body of Ramdev was found on the cot with kathri, chadar, banyan, gamchha stained with blood and blood was found on the ground near the cot. These articles were sealed and blood-stained and simple earth was taken and sealed separately and memo (Ex. Ka-9) was prepared by him. The bedding consisting of kathri, razai and 2 chadars and tehmad of Girish deceased were found on the cot which were also stained with blood. The dead body of Girish was found in a pit (gaddha) where his blood had also fallen down. Bloodstained and simple earth was taken into possession and was sealed separately by the I.O. and memo of this and other articles was prepared (Ex. Ka-10). Then statements of Manik Ram, etc. were taken down (vide Ex. Ka-11 to Ka-14 hostile witnesses). He arrested Kashiram, Raghava Ram and Ram Tilak the same day. He was transferred from Tarun P.S. on 13.11.1994. The investigation then was conducted by his successor P.W. 11 Ashutosh Sharma, who arrested Ram Milan and recorded the statements of remaining witnesses and then submitted charge-sheet (Ex. Ka-15) against the six named persons.

Post-mortem on the dead bodies was conducted by Dr. O. P. Khattri (P.W. 9).

The trial court framed charges u/s 302/149/148, I.P.C. against the four Appellants and u/s 120B, I.P.C. only against the two acquitted persons. All the six persons alleged false implication due to enmity and pleaded not guilty. In defence D.W. 1 Head Constable Nahar Singh of the C.B. C.I.D. Dog Squad Headquarter, Lucknow, was examined.

To prove that case, the prosecution examined P.W. 1 Rama Kant and P.W. 2 Uma Kant, the two brothers and P.W. 3 Daljeet Singh, P.W. 4 Hari Om, P.W. 5, Amar Jeet Singh, P.W. 6 Mithai Lal, P.W. 7, Manik Ram Varma and P.W. 8 Munna Lal on the factum of occurrence and the circumstances. P.W. 9 Dr. O. P. Khattri was examined to prove the post-mortem examination of the four injured. P.W. 10 Sudhakar Pandey and P.W. 11 Ashutosh Sharma are the Investigating Officers. P.W. 12 Ram Harsh Yadava, Head Moharrir proved F.I.R. and G.D. only. P.W. 12 Sibte Haider and P.W. 14 Ram Narain Pandey proved the inquest reports of the four persons.

The learned trial court believed the case of the prosecution and disbelieved the defence and convicted and sentenced the Appellants as above. Feeling aggrieved the present appeals have been filed. Since the two were acquitted, hence the informant has filed the revision petition. Proceedings were submitted by the trial court u/s 366, Cr. P.C. for confirmation of death sentences.

Learned Counsel for all the parties were heard and the record of the trial court was perused. P.W. 1 Rama Kant stated on oath that he was sleeping along with his cousin brother Girish Chandra Varma inside the tube-well room at the night of occurrence and that the door of the room had been shut. That Ram Naresh, father of Girish Chandra, Sukhai the grand-father, were sleeping under the chhappar on separate cots west of the tube-well. That Ram Dev another uncle was sleeping under the chhappar south of the tube-well. That his brother Uma Kant P.W. 2 was sleeping west of the sariya on the rasta which is adjacent to the chhappar where Ram Naresh, Sukhai were sleeping. That cries of Sukhai and Ram Naresh awoke P.W. 1 and Girish and they opened the door. That they found that Krishna Murari alias Murli and Kashi Ram Appellants armed with gandasa, and Raghava Ram and Ram Milan armed with banka were causing hurt to Ram Naresh and Sukhai by these weapons. That besides these, 2-3 other persons who had covered their faces by means of cloth were causing hurt to them by means of banka and gandasa both. That Girish and Rama Kant raised alarm and ran to the help of the victims whereupon all the Appellants started causing hurt to Girish. That thereafter the Appellants caused hurt to Ram Dev by means of gandasa and banka. That he ran inside the northern sugarcane field whereas his brother ran into the field which is adjacent to the sariya and is towards north. That electricity bulb was on, on the neem tree south-west of the tube-well and there was another neem tree on which also electricity bulb was hanging and was burning. That he saw the occurrence in the light of electricity bulb and identified the four Appellants. That on noise Ram Tej, Manik Ram, P.W. 7, Munna Lal P.W. 8, Lallan Prasad Tewari, Babu Lal Harijan and several villagers came armed with lathies and with torches. That all the miscreants ran away towards south. That the four injured persons died on the spot due to injuries. That Krishna Murari Appellant was having a civil litigation of land with Ram Tej and others since 1990. That he did not go to lodge the F.I.R. immediately due to fear. That in the morning he went to P.S. Tarun on a bicycle along with P.W. 7 Manik Ram, P.W. 8 Munna Lal Varma and one another person. That while they were on their way to P.S. then Daljeet Singh P.W. 3 of village Jaisingh Mau and Hari Om Singh P.W. 4 of village Tikri told him that last evening at about 9 p.m. on the shop of Ram Kripal Varma in Lal Ganj Bazar he had seen Ram Tilak Varma along with Krishna Murari and 2-3 other persons taking non-vegetarian food. That on their information P.W. 1 was convinced that the conspiracy was hatched by Ram Tilak, Ram Kripal and Krishna Murari etc. to commit murders. That he reached the P.S. at about 6.30 a.m. and handed over written report Ext. Ka-1. That Amar Jeet Singh and Mithai Lal came to his residence after 5-6 days of the occurrence and told him that in the night of occurrence they had also heard alarm and noise and were standing by the side of their house then they had seen Ram Tilak and Ram Kripal armed with gandasa and banka stained with blood and coming from the side of the village. That they saw them in the torch light and challenged them but the witnesses hide. That these Mithai Lal (P.W. 6) and Amar Jeet Singh (P.W. 5) are residents of village Balli Kripal Pur and Amar Jeet is also his distant relation. That again he went to P.S. Tarun and told these facts to the I.O. but the I.O. told him that he had already taken the statements of P.W. 5 and P.W. 6.

P.W. 2 Uma Kant Varma, the brother of P.W. 1 also stated that he was sleeping on the cot in the rasta near his sariya by the side of sugarcane field and that his chhappar is also adjacent to his sariya and that he was sleeping on the way in between the sariya and chhappar and this rasta is running north-south and leads to the northern chak-road. That east of the sariya there is his osara having two rooms on which chaff and grains are kept. That in the osara Ram Naresh, Sukhai were sleeping on the cots. That there is tube-well east of osara and in between, a rasta runs which also leads to the chak-road. That on that night Rama Kant and Girish Chandra Varma were sleeping inside the tube-well. That south of the tube-well in his chhappar Ram Dev Varma was sleeping. That west of the tube-well in the neem tree bulb was hanging and was lit from the electricity of the tube-well. That south of the chhappar where Ram Dev was sleeping there is chhappar and east of that chhappar there is a neem tree whereupon also electricity bulb was hanging which was also connected with the tube-well. That on noise he woke up and found the Appellants Krishna Murari and Kashi Ram with gandasa and Raghava Ram and Ram Milan with banka causing hurt to Sukhai and Ram Naresh and that there were 2-3 other persons also who had covered their faces and were also causing hurt to Ram Naresh and Sukhai. That Rama Kant and Girish came out of the room and the miscreants ran towards Rama Kant and Girish and started causing hurt to Girish. That Rama Kant and P.W. 2 both ran towards north in the sugarcane field. That on alarm and noise his father Tej Ram, Manik Ram, Munna Lal, Lallan Prasad Tewari, Babu Lal and other persons came with lathies and torches whereupon the accused ran towards south. He also stated about the litigation about some land going on in between Krishna Murari and victims party since 1990. He further stated that the occurrence was seen in the light of electricity bulb only. That his brother went to lodge the F.I.R. at about 5 a.m. in the morning. That it had revealed in the morning after the occurrence that Krishna Murari had shifted his cattle to Ram Kripal''s house.

P.W. 3 Daljeet Singh stated that he never met Rama Kant in the morning of occurrence and he had gone to his house only the next day where there were 40 or 50 persons. He further stated that he had told nothing about Ram Kripal, etc. That he did not make any statement before the I.O.

P.W. 4 Hari Om Singh also stated on oath that 4 persons had told him about the mis-happening in the morning at about 5 a.m. That Daljeet Singh Master had also told about the hearing about this occurrence. That Rama Kant and 2-3 other persons had met him and told about the occurrence. That Daljeet Singh Master had informed that a day before Krishna Murari etc. were sitting at the shop of Ram Kripal and were talking. That he did not see Ram Kripal, Krishna Murari and Ram Tilak on the shop of Ram Kripal. He denied to have told Rama Kant any thing about Ram Kripal and Krishna Murari. He denied to have made any statement before the I.O.

P.W. 5 Amar Jeet stated that he did not meet any person at about 3 a.m. on that morning and that he came to know about this incident only in the morning.

P.W. 6 Mithai Lal stated on oath that he did not hear any noise at the time of occurrence from the place of occurrence.

P.W. 7 also stated on oath that he did not hear any noise at the time of occurrence and did not go at the tube-well and did not see any one running.

P.W. 8 Munna Lal also stated that he did not hear any noise and did not see any one running.

It was argued on behalf of the Appellants that the trial court wrongly believed the two witnesses of the factum of occurrence, who are real brothers, and who initially tried to conceal their enmity with three of the Appellants. That there was no motive or immediate motive to commit the murder of four persons in such a brutal and pre-planned manner. That the occurrence took place at about 2.30 a.m. (in the night) according to prosecution case ; and it appears that none had witnessed the same and none other was present to witness the occurrence. And that the Appellants and two others were implicated either to conceal the real persons and save them or to avenge for reasons of minor enmity. In this connection it was argued that the story of the prosecution is not supported or corroborated from the medical evidence and further the circumstances show that the F.I.R. was ante-timed. Before dealing with the arguments, it would be better if the injuries suffered by the deceased persons are looked into. According to P.W. 9 Dr. O. P. Khattri the deceased persons had the following ante-mortem injuries on the respective bodies:

Ram Dev: Aged 65 years:

(1) Abraded contusion 4 cm. ? 1 cm. on the right side forehead 6 cm. away from the eye-brow.

(2) Abraded contusion 4 cm. ? 5 cm. on the right side forehead 1 to 1-1/2 cm. below injury No. 1.

(3) Incised wound 7 cm. ? 3 cm. bone deep on the right side of face at the root of the nose upto right ear. Clear cut margins.

(4) Incised wound 14 cm. ? 4 cm. ? bone deep on right side face 1-1/2 cm. away from injury No. 3 on left side of face. Bone cut. Parallel to injury No. 3 from left to right. Clear cut margins bone cut.

(5) Incised wound 6 cm. ? 1 cm. ? bone deep on right side of face 1 cm. below injury No. 4.

(6) Incised wound 7 cm. ? 2 cm. ? bone deep on right side of face 1 cm. below injury No. 5. Jaw fractured.

(7) Incised wound 7 cm. ? 1.5 cm. ? muscle deep on the upper left side neck 4 cm. below the jaw. Spindle shaped, clear cut margins.

(8) Incised wound 7 cm. ? 1.5 cm. ? muscle deep on right side neck parallel to injury No. 7 and 1.5 below injury No. 7.

(9) Stab wound 2 cm. ? 1 cm. ? lungs deep on right side clavicle clear cut margins. Bone fractured. Going downwards.

(10) Incised wound 7 cm. ? 1 cm. ? bone deep on the right shoulder. Humerus bone fractured.

(11) Incised wound 10 cm. ? 1 cm. ? deep on left fore-arm. Bone clear cut underneath.

(12) Incised wound 1.5 cm. ? 1 cm. ? bone deep on the left fore-arm 1 cm. above injury No. 11.

(13) Incised wound 1.5 cm. ? 1 cm. ? muscle deep above 1 cm. from injury No. 12.

(14) Incised wound 4 cm. ? 1 cm. ? bone deep left hand. 1 cm. above injury No. 13 on right fore-arm. Bone underneath clear cut.

Right clavicle, 4 ribs (3 to 7) on right side chest were found fractured. Lung was found cut. Semi-digested food was present in the stomach. Faecal matter was found present in intestines. Cause of death was due to shock and haemorrhage due to ante-mortem injuries.

Ram Naresh: Aged 55 years:

(1) Incised wound 8 cm. ? 1 cm. ? bone deep on left side head 5 cm. from ear. Spindle shaped. Clean cut margins.

(2) Incised wound 14 cm. ? 2.5 cm. ? bone deep on left side head 1 cm. above the eyebrow. Spindle shaped.

(3) Incised wound 1 cm. ? 2 cm. on left side of head 2 cm. below injury No. 2.

(4) Incised wound 8 cm. ? 1 cm. ? bone deep on left side face 2 cm. above the middle of jaw. Vertically.

(5) Incised wound 17 cm. ? 2.5 cm. ? muscle deep left side neck in the middle. Blood vessel and trachea cut.

(6) Incised wound 16 cm. ? 4 cm. ? muscle deep left side neck 2.5 cm. below injury No. 5.

(7) Incised wound 6 cm. ? 2 cm. ? bone deep lower fore-arm (right). Bone underneath cut.

(8) Incised wound 4 cm. ? 1.5 cm. ? muscle deep on right hand 2 cm. below injury No. 7.

(9) Incised wound 4 cm. ? 1 cm. ? bone deep left fore-arm 4 cm. above the joint of wrist.

(10) Incised wound 5 cm. ? 4 cm. ? bone deep left wrist.

(11) Incised wound 5 cm. ? 1.5 cm. ? bone deep left hand.

(12) Incised wound 4 cm. ? 1 cm. left hand 1.5 cm. below injury No. 11.

(13) Incised wound 3 cm. ? 1.5 cm. ? bone deep left hand 2 cm. below injury No. 11.

Left clavical was found fractured. Right side ribs (3 to 6th) fractured.

Both bones of right hand were found fractured. Semi-digested food was present in the stomach. Faecal matter was also found in intestines. The cause of death was shock and haemorrhage as a result of ante-mortem injuries.

Sukhai: Aged 80 years:

(1) Incised wound 23 cm. ? 7 cm. ? bone deep on right side of neck starting from the upper lip to the back of neck A-1 bones--cervical vertera cut.

(2) Incised wound 6 cm. ? 3 cm. ? bone deep right fore-head 3 cm. above the right eye-brow.

(3) Incised wound 8 cm. ? 3 cm. ? muscle deep in right side face. Extending from the middle of nose upto right ear below 4 cm. Margins clear cut. Spindle shape.

(4) Incised wound 4 cm. ? 1 cm. ? bone deep on right fore-head. Rt. Clavicle, right side 2nd to 7th ribs fractured. Membrances of lungs torn. Right lung cut 7 cm. ? 4 cm.

Semi-digested food and faecal matter was found in stomach and intestines.

Cause of death due to shock and haemorrhage due to ante-mortem injuries was opined by the doctor.

Girish: Aged 18 years:

(1) Incised wound 14 cm. ? 8 cm. ? muscle deep on back of head 7 cm. above the 7th cervical bone. Brain matter was coming out.

(2) Incised wound 10 cm. ? 1.5 cm. ? bone deep on left side of head 7 cm. above the left ear. Spindle shape.

(3) Incised wound 5 cm. ? 2 cm. ? bone deep lower part of left fore-arm. There was cut of bone 2 cm. above the ulna bone.

(4) Incised wound 2 cm. ? 1 cm. muscle deep front of left hand.

(5) Incised wound 3 cm. ? 1 cm. ? muscle deep front of left hand.

(6) 3 Incised wounds 10 cm. ? 7 cm. on right shoulder. The biggest wound being 6 cm.1 cm. and smallest 2 cm. ? 1 cm. ? skin deep.

(7) Incised wound 2.5 cm. ? 2 cm. muscle deep on right upper arm 3 cm. below injury No. 6.

(8) Incised wound 2.5 cm. ? 2 cm. ? bone deep right upper arm 4 cm. above the elbow.

(9) Incised wound 4 cm. ? 0.1 cm. ? muscle deep on right fore-arm 6 cm. away from the elbow.

(10) Incised wound 4 cm. ? 1.5 cm. ? muscle deep on right fore-arm on inferior side 4 cm. above the elbow.

(11) Several incised wounds in an area of 10 cm. ? 6 cm. exterior of right hand skin deep. Smallest 2 cm. ? 1 cm. ? skin.

(12) Incised wound 7 cm. ? 4 cm. ? muscle deep on right palm.

(13) Incised wound 4 cm. ? 2 cm. ? bone deep on right palm.

(14) Incised wound 4 cm. ? 2 cm. ? bone deep on right palm upto index finger.

(15) Incised wound 7 cm. ? 3 cm. ? bone deep on left knee exterior side.

Occipital bone back side fractured upto 3 inches. Brain matter was coming out. Semi-digested food and faecal matter was found present. Shock and haemorrhage as a result of ante-mortem injuries was the cause of death.

Four persons were murdered during the night in between the 10th and 11th day of November, 1994 and according to prosecution, these murders took place at about 2.30 a.m., the victims are stated to have taken their dinner after about 9 p.m. and before 11 p.m. on 10th. The presence of semi-digested food confirms the fact that the happenings could have taken place at 2.30 a.m. also or at any time during night. A perusal of the injuries also shows that the death must have occurred immediately after the causing of the injuries and the injuries were sufficient in the ordinary course of nature to cause death instantaneously. Cots and beddings were found in respect of all the four dead on the spot, and the beddings and the things kept on the cots were all stained with blood of the victims. Blood-stains were also found on the walls near the cots of Sukhai and Ram Naresh, blood was found on the ground near the cot of Ram Dev and blood was found in the pit where the dead body of Girish was lying. There was stains of blood on the chadar etc. on all four cots. The place of occurrence is surrounded on all the sides by fields, including the fields having standing crops. The village abadi is far away from there. There are chhappars and tube-well under the khaprail on the spot. Three of the injured deceased were sleeping under the chhappars and one under the khaprail of tube-well. Besides, the two witnesses are alleged to be sleeping under the: (1) khaprail-room of tube-well, and (2) inside (or outside) the saria, where cattle were being looked after. Defence alleges that it was only on the morning when these killings were discovered when Ram Tej, father of Rama Kant came to the spot ; and that none had the occasion to witness the occurrence and P. Ws. 1 and 2 were not at all present there. The occurrence took place some time during the night and at the alleged place. Whether it was 2.30 a.m. or earlier or later makes not much difference. The presence of blood on walls, ground and bedding shows that the murders took place at the alleged place. It is to be seen whether the Appellants were proved to be responsible for these murders.

In the first information report (Ex. Ka-1), it was alleged that a litigation in respect of land''s batwara was pending in between the victims and one of the Appellants, namely Krishna Murari. The details of litigation and its nature is not on record. There was no allegation of enmity with the other Appellants, who are also not related to Krishna Murari. In the statements on oath also, it was stated that there was no enmity with the other Appellants and with the two acquitted persons. However, during cross-examination it was admitted by both Rama Kant and Uma Kant P. Ws. 1 and 2 that there occurred some quarrel in between Ram Milan, Appellant, and these P. Ws. with respect to the taking of water to the fields. It is further admitted that motor of Raghava Ram, Appellant, had been stolen in that theft case, both Raghava Ram and Kashi Ram had complained against Uma Kant P.W. 2. It was also admitted that in that inquiry, police had come to the residence of Uma Kant and had left after inquiry without doing anything against Uma Kant. These four Appellants. Ram Tilak and Ram Kripal are not related closely or distantly to each other. The four Appellants are residents of the village of occurrence, where the victims also reside. It is a small village and some of the houses of the parties are adjacent to each other. It was argued that there was no reason for these persons to have united to commit the murders of four persons in a pre-planned manner. Two or three other assailants had covered their face with cloth and had concealed their identity, whereas these four named in the F.I.R. had open faces according to prosecution witnesses. It was argued that if the next door neighbours had planned the murders to be committed during night in the lonely place then not only 3 but all the 7 must have taken precaution to conceal their identity. It was further argued that if it had been known at 2.30 a.m. that the known villagers have committed the offence, then there would have been severe reaction by the neighbours against the neighbours, but nothing happened and no body took any action against any one. The argument carries force ; when 3 miscreants had covered their faces, then there was no reason for the other four, who were next door neighbours not to have covered their faces and not to have concealed their identify. The houses of the four Appellants were also not searched by the police at all immediately. In this connection, reference was made to the fact proved by D.W. 1 Nahar Singh, Head Constable, C.B., C.I.D., Dog Squad, Lucknow, who stated on oath at about 11 a.m. on 11.11.1994, a demand was made from Faizabad for Dog Squad, and that he reached Faizabad at 3 p.m. and reached the village of occurrence about 4 p.m. that very day. That he utilized the dog and the technique to find out the culprits through dogs. The dog was given the smell from the spot, but the dog simply went upto the tube-well and took a round there and returned back without success. The efforts to trace out the culprits through the agency of dog thus failed. He proved the relevant entries and report in this respect Ex. Kha-1 and 2. This D.W. 1 further stated that in cases where the accused are named in the F.I.R., then there is no necessity to bring in the dogs to trace the culprits. He stated that Dog Squad is requisitioned only when the culprits have to be traced. This fact also shows that murderers were not known and were not seen by any one at the time of occurrence that night and no F.I.R. was lodged upto that time.

No witness was named in the F.I.R. to have come to the spot on cries and noise and alarm at the time of occurrence, except the father of P. Ws. 1 and 2. And he too is alleged to be sleeping at another tube-well 400 metres away. It was alleged in the F.I.R. that many villagers had come over there, but none was named therein. P.W. 7 Manik Ram who was alleged to have reached the spot at the time of occurrence on cries stated that his house is only 500 metres away from the place of occurrence and that he did not go to the scene of occurrence at 2.30 a.m. and did not hear any alarm or noise at that hour. And that it was only at about 5 or 5.30 a.m. that he came to know that some unknown persons had committed the murders some time during night. In the same manner another villager P.W. 8 Munna Lal stated on oath that he did not hear any noise or cries or alarm during that night, and that he came to know in the village only in the morning that some unknown persons had committed the murders during the time of night. He stated that nobody was naming any person there in the village responsible for the occurrence.

In the F.I.R., it was alleged that the villagers and Tej Ram had come on the spot at the time of occurrence along with torches and lathies and had identified and had seen the Appellants. Ram Tej is the father of P. Ws. 1 and 2 but even he was not produced in the witness-box to prove the factum as such. P.W. 1 Rama Kant in his statement, disclosed the names of those villagers, who had come on the spot, as Manik Ram (P.W. 7), Munna Lal (P.W. 8), Lallan Prasad Tewari and Babu Lal Harijan, besides other unnamed villagers. Out of them P. Ws. 7 and 8 aforementioned were examined who were declared hostile and they did not support the prosecution case. Other named in the evidence were not produced in the witness-box. No other villager was produced, who could have stated that there was a noise or hue or cry at 2.30 a.m. or any occurrence took place at that hour.

It would be relevant to mention here that P.W. 1 Rama Kant further alleged that Daljit Singh of village Jaisingh Mau (P.W. 3) and Hari Om Singh (P.W. 4) of village Teekri had met him on the way while he was going to lodge the F.I.R. in the morning and while P. Ws. 7 and 8 aforementioned were with him ; that these P. Ws. 3 and 4 had told him that last evening at about 9 p.m. they had seen Ram Kripal and Ram Tilak in Lal Bazar shop taking non-vegetarian food along with Krishna Murari and 2-3 others. These witnesses refused to have either met P.W. 1 there or to have told him this thing and these P. Ws. were declared hostile. Both P. Ws. 1 and 8 Manik Ram and Munna Lal were not even with P.W. 1 and had not gone to the P.S. as alleged by P.W. 1. P.W. 1 stated that these persons continued to stay outside the police station. In the same manner P.W. 1 Rama Kant stated on oath that after 5-6 days of the occurrence Amar Jeet (P.W. 5) and Mithai Lal (P.W. 6) had come to his residence and had told him in presence of others that on the night of occurrence, they had also heard hue and cry from village Barauli and had come out and were standing outside their house when they had seen two persons coming from the side of village Barauli, and that in the torch light they had seen that Ram Tilak and Ram Kripal armed with gandasa and banka, stained with blood were coming running. That they had hidden themselves out of fear of these persons. But P.W. 5 Amarjeet stated on oath that he had reached the house of the victim in the morning of occurrence itself and upto that time no body had come to know as to who had been responsible for the occurrence. He denied to have told anything to P.W. 1 Rama Kant about Ram Tilak or Ram Kripal because he had not seen any such thing. In the same fashion Mithai Lal (P.W. 6) belied the story given by P.W. 1.

It was rightly argued that in view of various facts, including the facts narrated above, the evidence of the two interested persons should be looked into and scrutinized with great care and caution. There was no immediate motive to kill the 4 persons after planning the same, and there was no such motive. Sukhai (deceased) had three sons: (1) Ram Naresh (deceased), (2) Ram Dev (deceased) and Ram Tej (father of Rama Kant P.W. 1 and Uma Kant P.W. 2). Girish (deceased), is the son of Ram Naresh (deceased). Ram Dev has three married daughters, and one of whom is alleged and admitted to have married three times and had one child each from two husbands. She is alleged to be having connections with bad persons. Ram Dev has two young sons who are living in Bombay. It was suggested that this occurrence could have been master-minded by P. Ws. 1 and 2 themselves as the property left by Sukhai and his two deceased sons come to the occupation of Ram Tej, their father. It was also suggested that Srimati, the daughter of Ram Dev could also be responsible, as the persons known to her might have done the mischief in order to avenge Srimati shifting husband after husband. However, these are simply allegations and were obviously made by the defence to give an alternative for creating suspicion in the story. It becomes more important to deeply scrutinize the evidence of the only two eye-witnesses, who were alleged by the defence to be not present on the spot and even alleged to be not knowing the time and manner of occurrence and persons involved.

Learned Counsel for the Appellants firstly took the Court through the medical evidence in order to show that the prosecution version of P. Ws. 1 and 2 does not fit in the manner of occurrence. Ante-mortem injuries have been quoted above. These injuries show that the injuries were inflicted in such a manner and on such parts of the body only which were sufficient to cause death instanta-neously, and which offered no opportunity for the four victims to get up to offer resistance or raise alarm or move from the place of their receiving injuries. There was no injury on back or legs.P. Ws. 1 and 2 allegedly woke up at the cry of Sukhai and Ram Naresh. No body was found by the I.O. on the ground in respect of these two persons. The blood of these two was found only on the bedding and the walls. They were found dead on their respective cots. These persons, therefore, were not able to get up. If they had got up and had received injuries in any manner other than receiving injuries on the cot, then there would have certain blood on the ground and not on the bed and wall only and would have also received injuries on their backs and legs.

Sukhai 80 years old, suffered injuries on neck, forehead, face and again on forehead, and fractured and broke his clavicle and many ribs. His four injuries coupled with fractures show that he was over-powered in the bed on the cot by force and then was cut with heavy weapon on the vital parts head, face and neck. The physical force and pressure exercised on his body broke his ribs numbering six. Since he was 80 years of age, therefore, so much ribs were fractured. The injuries on neck and head and face were very severe and the manner of their infliction indicates that the same were caused in such a manner as not to give any opportunity of resistance or noise, what to say of giving opportunity of getting up and standing.

In the same manner, Ram Naresh received fatal injuries on neck, face and head by a heavy cutting weapon of offence, besides injuries on arm and wrist. He also got fractured his clavicle as well as right side ribs numbering 4, besides fractures in fore-arm and hands. He must have also been made immovable on the bed and cot and died instantaneously and had no occasion to stand up and cry for help or to receive injuries in standing position. No blood was found on the ground and the blood was found on his bed and the walls only. Had the prosecution produced the material, viz., chadar, razai and other articles, the same would have disclosed the extent of the blood soaked by these articles, which was the reason that the blood did not fall on the ground, and the injuries were inflicted only on the cot giving no opportunity to the victim to get up or to resist or raise alarm, except moving the hands which received injuries of a heavy cutting weapon. The force used in overpowering must have broken-fractured the ribs of a man of 55 years of age. So there was no reason for these two persons P. Ws. 1 and 2 to have awaken at the alarm of these two persons, Sukhai and Ram Naresh, who were done to death on the bed-cot by giving instant fatal blows on neck, head and face.

In the same manner, injuries of Ram Dev show that he received injuries of a heavy cutting weapon on the fore-head, face and neck and the blows were very heavy and must have resulted in his instant death. Blood was found on the ground also. He was also found lying on the cot. The blood must have fallen down from his injuries on the ground and must not have been soaken fully by the clothing. He also fractured and broke his 4 ribs on right side chest, besides other fractures. The fracture of the ribs could be the result of physical force exercised by the murderers. Arguments were advanced in respect of injury No. 9 of Ram Dev, which was of some pointed stabbing weapon, not being banka or gandasa. This weapon penetrated deep from upper to downwards and it is a stab wound 2 cm. ? 1 cm. only went upto the lungs. For this there was no satisfactory explanation because it could not be of banka or gandasa.

The case of eye-witnesses is that on noise of Sukhai and Ram Naresh, Rama Kant and Girish opened the door and came out of the room of tube-well ; and Uma Kant came from the other side, and all these wanted to save the victims. Allegedly Girish was also attacked outside the room when Rama Kant and Girish had already come out of the room. But the Investigating Officer found blood on the bed of Girish as well as on the wall of the room of tube-well, both. Blood was also found in the pit (gaddha) in which Girish was lying dead. It means that Girish had also been attacked inside the room. He was a young man of 18 years. If he had been attacked inside the room on noise of Sukhai and Ram Naresh, then the theory of his coming out of the room along with Rama Kant P.W. 1 and attempt to save others becomes false. Had Rama Kant been there in that room along with Girish, and if Girish had been attacked inside, then Rama Kant would not have been spared. Admittedly Rama Kant and Uma Kant were neither attacked nor assaulted nor were injured. This means that Rama Kant was not there at all. This means that Girish was attacked inside the room, but being a young man he managed not to be over-powered but, in any case, came out injured, and fell down injured in the pit, where also his blood was found. It may be repeated here that the prosecution did not at all produce that blood- stained articles before the Court and suppressed the same, and this non-production raises every presumption against the prosecution ; and it appears that if the same had been produced the same would have disclosed a different tale. P.W. 1 contradicts blood recovery inasmuch as he says that blood was found on the ground and all the 4 cots.

A reading of the post-mortem examination report indicates that the four persons were done to death without any hindrance or interference and without any person resisting freely and without raising any alarm. Medical evidence belies the prosecution story narrated by P. Ws. 1 and 2. In the F.I.R., it was alleged that the other brother Uma Kant (P.W. 2) was sleeping inside the saria in order to look after the cattle. But this story was changed in evidence and no explanation was given in this respect. P.W. 1 Rama Kant stated that Uma Kant (P.W. 2) was sleeping in the "rasta" (way) adjacent to the chhappars, where Sukhai and Ram Naresh were sleeping and which is west of the tube-well. That he was sleeping outside the ''saria''. P.W. 2 Uma Kant himself says that he was sleeping not in the saria but in the way east of his osara (covered place) in the way. This improvement was made obviously to make P.W. 2 available for witnessing the occurrence, because he could not have seen it from inside the saria. But if this improvement was to be made, then it could have been made before the I.O. But before the I.O. also, the two brothers stated that Uma Kant was sleeping inside the saria. But this improvement besides being false shows further that Uma Kant was not present on the spot because if he had been lying on the cot in the rasta just west to the chhappar of the cots of the two victims, then he would not have been spared by the miscreants and would have been attacked, because the manner of occurrence is such that there must have been many persons responsible for committing the crime and they were very well armed ; and they would not have let Uma Kant run away without injury. A live cartridge was also found lying there on the spot near the cot of one of the victims, which was suppressed by P. Ws. 1 and 2 for obvious reasons. But this proved recovery shows that the miscreants were also armed with firearms as well but alleged eye-witnesses even deny this recovery of live cartridge from the spot.

Under these circumstances the conduct of the two brothers becomes material. These two persons are alleged to have run away for hiding in the sugarcane crop field. But strange, none of them got any scratch or abrasion of the sugarcane standing ripe in the field. One of them even went to the extent of saying that he had put on shoes. Both the brothers now allege that they ran towards north inside the crop field, whereas earlier their case was that Rama Kant had run towards north whereas Uma Kant had run towards west, and had hid separately. There was darkness and nothing was visible from there. Their place of hiding in the field was even not shown to the I.O. nor their cot or bedding was shown to the I.O. and no memo thereof was prepared. It was the month of November when some bedding is required on the cot. This also negatives the presence of P. Ws. 1 and 2 on the spot.

It was alleged in the F.I.R. that the miscreants were seen and identified by Rama Kant, Uma Kant, Ram Tej and "villagers" in the light of electricity and torches. P.W. 2 Uma Kant stated that the Appellants were identified in the light of electricity "bulb" only as there was available no other source of light at all. He says nothing about availability of any torch. Both the brothers do not say that the villagers or their father had reached the spot when the occurrence was taking place. They say that these people came after the miscreants had made good their escape. P.W. 1 Rama Kant says that he had a torch with him. He is unable to say as to why he did not show it to the I.O. or why its memo was not prepared or why the I.O. was not told about it. He gives a fatal blow to this aspect by saying that he was unable to say whether his brother Uma Kant had a torch with him or not. The possession or otherwise of a torch with these persons is a matter which is vital and fatal to show the presence of these persons. It is stated that it was dark in the field. It was not mentioned in the F.I.R. that any of these persons had any torch with them at the crucial time. The dispute of presence of electricity light would have been done away with if the torches had been with them. But P.W. 2 says that there was no other source of light there except the bulbs, but P.W. 1 says that he had a torch ; and was unable to say whether P.W. 2 had it or not. This shows that none of them was even present on the spot. The story about torch is quite false.

Investigating Officer stated on oath, after recollecting the spot position, that the bulbs were lying hanged on a pole of bamboo and not on the neem trees. But after perusal of case diary, he stated that the same were hanging on the neem tree. There was no mention in the F.I.R. that there were two bulbs or these were hanging on the two trees. Conspicuously, the entire story, at all places, is silent about the miscreants having any torch, etc. The bulbs are said to be hanging on the two trees distant from each other which were higher than the ''chhappars''. But the Investigating Officer did not prepare any memo of the presence of these bulbs. It was alleged on behalf of the defence that on that night, due to fair of ''chaudah koshi parikarima'', the lights and power were not available in the village for tube-well as well. The Investigating Officer did not make any effort to get this fact checked. The wire was attached with the tube-well, according to P.W. 2, as there was no domestic light. If it was so, then the wire and bamboo could have been taken into possession of by the police and sealed and memo could have been prepared thereof, in any case only memo of its presence could be prepared leaving the same to be at the same place giving the same in custody of the owner. This light at that place and time is highly doubtful, and P.W. 1 Rama Kant has obviously improved the existence of torch as he appears to be doubtful of the availability of power of electricity at that time. He stated that nothing was visible from the field of sugarcane due to darkness. The two brothers were allegedly hiding only at a distance of 5-6 paces away from the scene and if any light had been available, then they could have seen the scene from the field as well. They did not run away towards the abadi of the village. It was stated that nothing was visible from the field.

According to P.W. 2 Uma Kant and P.W. 1 Rama Kant, none of the male family members was sleeping in the house in the village and all the male members of the family were sleeping at the tube-well. Although there is nothing very much abnormal in it, but under the circumstances, this does not seem to be the truth. The presence of Rama Kant and Uma Kant on the spot is highly doubtful and rather false. P.W. 2 says that all the Appellants had open faces, whereas the other 3 persons had muffled their faces by cloth and had come to commit the crime taking advantage of night and without raising any alarm or noise. And that their houses are next to their house and some are within a radius of 100 metres. This all appears to be unbelievable in view of above and is thus false.

In view of all above, some other minor things become material. The Appellants were named in the F.I.R. and the same was alleged to have been lodged at 6.30 a.m., viz., after 4 hours of the occurrence, the police station being 6 km. from the place of occurrence. The informant accompanied Manikram, etc. on bicycle to P.S. But those persons deny to have gone to the police station. The G.D. mentions their arrival but P.W. 1 says that they stood outside when F.I.R. was lodged at P.S., the Investigating Officer was not present at the P.S. at that time and according to him, he came to P.S. from Ayodhya, where he was on duty, and obtained papers and went to the spot. But the G.D. of his departure and arrival on that day is not proved. He returned to the P.S. on 12.11.1994. P.W. 1 Rama Kant says that he was not given any paper by the police after he had lodged the F.I.R. at the P.S. and further says that Investigating Officer had obtained his signature on the spot on some paper. F.I.R. number and distance of P.S. from the place of occurrence, which find mention in the F.I.R., have not been mentioned in the four inquest reports prepared by the two police officers under the supervision and direction of the Investigating Officer. The dead bodies are alleged to have been despatched at 12.15 p.m. on 11.11.1994 for post-mortem admittedly. But the dead bodies reached the headquarters at 7.15 a.m. on 12.11.1994 for post-mortem. These were sent by tractor to Faizabad which is said to be about 31-40 kms. from the place of occurrence. As to where these dead bodies were kept has not been disclosed. If there was any sufficient explanation available with the prosecution in this respect, then the constables who had taken the bodies to the H.Q. could have been examined, but those persons were not examined in Court. The doctor also does not know whether the F.I.R. had accompanied the papers and the dead bodies.

According to D.W. 1, it was only at 11 a.m. that message was received from Faizabad for sending the Dog Squad from Lucknow and that he reached Faizabad at 3 p.m. P.W. 1 Rama Kant says that the dead bodies were sent from the spot by the Investigating Officer after 3 p.m. Six P. Ws. from P.W. 3 to P.W. 8 do not support the prosecution case at all and say that actually in the morning, no body knew as to who had committed the murders, and it was said that ''some persons'' had committed these murders in the night. From the facts, it appears that F.I.R. was not lodged at 6.30 a.m. but it was ante-timed easily because on that day, no cognizable or non-cognizable offence was registered. Even there is no G.D. on record of the arrival of the Investigating Officer to the P.S. taking the papers, and of departure for the spot on 11.11.1994. It was simply to delay the lodging of the F.I.R. and keep the options open and thereby the Check Register and G.D. open. G.D. arrival and departure of the Investigating Officer could not be written because the F.I.R. was not in existence. Though normally these things do not matter much and in normal cases, prosecution cannot be made to suffer due to faults and laches on the part of investigating agency, or other police officials, but in the facts and special circumstances of this case these become material. Normally there is delay in sending special reports or copy of F.I.R. to the higher police authorities or the Magistrate, but in the instant case, the report was signed by the C.O. only on 15.11.1994 although it is sent allegedly on 12.11.1994 and received in the office on 14.11.1994. These all facts prove that F.I.R. was not in existence at all on 11.11.1994, this ante-timing of the F.I.R. in the facts and circumstances of the case is fatal to the case of the prosecution. The doctor (P.W. 9) conducted post-mortem of the dead bodies on 12.11.1994 w.e.f. 11 a.m. and last was started at 3 p.m. If the dead bodies had been received earlier, then the post-mortem could have been conducted earlier in the morning, or could be conducted the same day. The doctor was also not categorical in his statement about the F.I.R. The time of death was approximate and it could not definitely be said that the occurrence took place at 2.30 a.m. these all affect the case of prosecution and indicate that F.I.R. was prepared some time later on and was ante-timed.

On a scrutiny of the evidence of the alleged eye-witnesses, it appears that none of the P. Ws. 1 and 2 was present on the spot, and hence did not see the occurrence. No body heard any cry or noise at the time of occurrence and it appears that it revealed in the morning only that 4 persons had been done to death during night at some time. After arrival of the police, efforts were made to find out the culprits and for that purpose, help of the Dog Squad was also taken. And when Dog Squad also failed, then the case was made out naming those with whom there was enmity, and that must have been done on suspicion. The F.I.R. was ante-timed.

The prosecution had badly failed to prove its case. The learned trial court discussed the evidence point-wise and lost sight of the overall gamut and circumstances of the case as discussed above. The trial court erred in holding the Appellants guilty. He should have acquitted these Appellants as well and should not have convicted and sentenced them. Appellants are not found guilty of the charges of offences of committing murders and riot, etc. punishable u/s 302/149/148, I.P.C. Appellants are not found guilty. They are entitled to acquittal and shall be acquitted accordingly. Their appeals shall be allowed and the reference for confirming the death sentence shall be rejected.

Rama Kant has also filed revision against the order of acquittal of Ram Kripal and Ram Tilak. There was actually no evidence against them for conspiring to commit the offence of murder. The charge against them is of conspiracy to commit murders. They were alleged to have conspired on the basis of presumption as they were allegedly taking non-vegetarian food in the bazar. That taking of food simply does not constitute conspiracy. Moreover, that fact was also not proved at all. The trial court had no option but to acquit these two persons as there was absolutely no evidence against them to commit conspiracy to commit murder. There was no enmity of P. Ws. 1 and 2 or victims with these persons admittedly. They have been rightly acquitted. The judgment and order in this respect do not require any interference, and the findings in this respect are based on the material on record. The revision shall be dismissed.

Capital Sentence No. 1 of 2000, reference u/s 366, Cr. P.C. for confirmation of sentence of death of Krishna Murari alias Murli, Raghava Ram Varma, Kashi Ram Varma and Ram Milan made by Xth Additional Sessions Judge in S.T. No. 85 of 1995 is rejected. Cr. Appeal Nos. 14, 25 to 28 of 2000 are allowed. Cr. Revision No. 14 of 2000 is dismissed. Appellants Krishna Murari alias Murli, Raghava Ram Varma, Kashi Ram and Ram Milan are acquitted of the charges of offences punishable u/s 302/149/148, I.P.C. Judgment and order of conviction and sentence under appeal are set aside. The Appellants are in jail and shall be released forthwith in this case.