BHANWAR SINGH, J. ( 1 ) THIS appeal is directed against the judgment of conviction and sentence dated 15-12-1999, passed by the Session Judge, Ghazipur. By virtue of the said judgment, the six accused-appellants were convicted under S. 302/149 I. P. C. and sentenced to death. They were further held guilty under S. 307/149 IPC and sentenced to five years rigorous imprisonment. Also they were held guilty under S. 148 I. P. C. and sentenced to one year rigorous imprisonment. All the sentences were to run concurrently. Learned sessions Judge has also referred the verdict of conviction and sentence as disclosed above for confirmation under S. 306 (1) of the Code of Criminal procedure. ( 2 ) THE facts giving rise to this appeal may, in brief, be recapitulated as follows : sri Ram Chandra son of Bramhdev Singh Kushwaha, resident of village Deokali, P. S. Gahmar, district Ghazipur submitted a report to the Station Officer of Gahmar Police Station reciting therein that one Suresh, resident of village Bhadura was the leader of a gang of dacoits and he had in his gang several other members, namely Saudagar Harijan of village Tiwai, Jagdish Bhar of village Jatpura, Suresh Harijan of village Itwa (all the villages are located in the State of Bihar), Uma Shankar, Onkar Nath Yadav, Ramadhar and Mukteshwar Bhar, all residents of village Deokali. Thus, there were two sets of members one belonging to village Deokali and the other hailing from other different villages. The appellants belong to the former set. All these gangsters used to frequently meet in village Deokali. At 5. 00 P. M. on 27-8-1988, the leader of the gang, Sri Suresh Bhar along with the other members of his gang, namely Suresh Harijan, Saudagar Harijan and Jagdish Bhar, all armed with deadly fire arms were sitting in front of the hut of Ramadhar situated at the outskirt of the village. Some 4-5 miscreants of the same gang were chatting at the tubewell of Sri Onkar Nath. At about 6. 00 P. M. , Constable Babban Singh of Police Station Gahmar arrived in the village and apprehended Saudagar Harijan suspecting him to be involved in unlawful activities. He brought him inside the village and while sitting on the wooden logs lying in the GHER (a compound with some accommodation used by male folk in villages) of one Rajnet, started interrogating him. He brought him inside the village and while sitting on the wooden logs lying in the GHER (a compound with some accommodation used by male folk in villages) of one Rajnet, started interrogating him. At the time of his interrogation, many villagers, namely Rajnet, Balistar, Parmeshwar, Sudarshan, Saddique, Ram Dayal, Sheo Narain, Pyareylal and many more gathered there. Shri Sudarshan disclosed to the constable that Saudagar Harijan was a miscreant and he was a member of Suresh Bhars gang. The police Constable tied Saudagar Harijan with a string and taking the help of the villagers set out for police station holding the miscreant in his custody. In the meantime, Munnilal, a villager of Deokali passed on, to Suresh, the gang leader the information about Saudagar being arrested by the police Constable. As soon as the constable came out of the village, he and other villagers were accosted by Suresh Bhars gang comprising Suresh Bhar himself, Suresh Harijan and several other miscreants, namely, Mukteshwar, Onkar and Ramadhar. They threatened the constable and other villagemen on his side with dire consequences and fired some shots from their fire-arms in the air. The villagers ran helter skelter for their life. Some of the villagers entered the GHER (to be referred hereinafter as compound or AHATA) of Rajnet. They were chased by the miscrcants, who in the meantime, started indiscriminate firing. In this incident of indiscriminate firing by the gangsters, the villagers, Om Prakash, Nand Kumar, Sheo Munni, Ishwar Dayal, Udai Narain, Badruddin, Lal Bahadur and Tej Bahadur died then and there and several others sustained serious gun shot injuries. The injured included Manji, Mahendra, Hawaldar Rai, Smt. Indraseni, Smt, Ghurfekni and Pramod Kumar. This massacre of 8 villagers was witnessed by villagers, namely, Rajnet (the owner of the compound), Balister, Permeshwar Singh, Sudarshan Giri, Saddique, Ram Dayal, Sheo Narain, Pyarelal besides the Constable Babban Singh. Rajnet returned the fire and in the meantime, many more villagers were attracted towards the site of occurrence and they also challenged the miscreants who then took to their heels and succeeded in making their escape good. The informant Ramchandra who lost his only son got the report prepared by Ram Jee Singh and submitted to the police, whereupon a case was registered at the police station Gahmar. The Station Officer J. P. Singh took up the investigation for himself and immediately proceeded towards the place of occurrence. The informant Ramchandra who lost his only son got the report prepared by Ram Jee Singh and submitted to the police, whereupon a case was registered at the police station Gahmar. The Station Officer J. P. Singh took up the investigation for himself and immediately proceeded towards the place of occurrence. The investigating officer examined the dead bodies, got their inquest reports prepared by S. I. S. S. Misra and then sent the dead bodies for autopsy. He collected some incriminating articles from the place of occurrence and prepared their memos. Also, he sketched the site plan and examined eye witnesses. After completing all the formalities of the investigation, the Station Officer submitted charge-sheet against as many as 11 offenders namely, Ramadhar, Munnilal, Mukteshwar, Madan, Uma shankar, Onkar Nath, Kag Narain, Heera Lal, Gulab, Jagdish Yadav and Jagdish Bhar. ( 3 ) THE main accused Suresh Bhar, Suresh Harijan and Saudagar could not be apprehended and therefore were charge-sheeted as absconders. ( 4 ) THE trial Court framed charge against the accused on trial under S. 120-B I. P. C. for having entered into a conspiracy to secure release of Saudagar, miscreant from the lawful custody of the police constable and killing, during that operation as many as 8 villagers and causing injuries to six other persons. ( 5 ) THE five accused, namely, Ramadhar, Madan, Onkar Nath, Mukteshwar and Jagdish Bhar were charged under Ss. 302 and 307 I. P. C. Except Jagdish Yadav, all other 10 accused on trial were charged under S. 302 read with S. 149 and u/s. 307 read with S. 149 as also under S. 148 I. P. C. ( 6 ) IT is noteworthy that the trial against the three accused, namely Heera Lal, Gulab and Jagdish Bhar was separated as they absconded during the course of trial. Thereafter, the trial proceeded against the remaining 8 accused. ( 7 ) IN support of its case, the prosecution examined 14 witnesses. Of these, four were the eye-witnesses and the remaining witnesses were formal who had proved documentary evidence on record. ( 8 ) A brief account of the testimony of each witness will help in explicit understanding. ( 9 ) P. W. 1 Manji Singh was an injured witness. Of these, four were the eye-witnesses and the remaining witnesses were formal who had proved documentary evidence on record. ( 8 ) A brief account of the testimony of each witness will help in explicit understanding. ( 9 ) P. W. 1 Manji Singh was an injured witness. He testified in terms of the prosecution story and stated that he had seen all the accused on trial along with others, firing shots from their respective fire-arms and causing death of eight villagers in the Ahata of his grandfather Rajnet. According to him, all the assailants were members of a gang led by Suresh Bhar. They had opened indiscriminate firing with a view to get Saudagar, a member of their gang, released from the clutches of Constable Babban. As asserted by him further, he and five more other persons of the village had sustained gun shot injuries in the said incident. ( 10 ) P. W. 2 Parmeshwar Singh was an eye witness. He supported the prosecution case by stating that the accused on trial were members of Suresh Bhars gang and they all, with Suresh Bhar and Suresh Harijan, had arrived at the village on receipt of an information that their associate Saudagar Harijan had been arrested by Babban Singh, constable. All the gangsters had intercepted the police Constable in the village close to the compound of Rajnets outer house. Initially, they fired a few shots in the air to scare away the villagers but soon after they chased some persons into the Ahata of Rajnet and killed as many as 8 of them and caused injuries to several others. ( 11 ) P. W. 3 Ram Jee singh was the scribe of the written report which he had drawn on the dictation of Ram Chandra whose son Lal Bahadur was killed in the said occurrence. He proved his written report Ex. Ka-1. It was also stated by him that the informant Ram Chandra lost the equilibrium of his mind two or four days after the occurrence and ever since he had been under a severe mental shock. Eventually, Ram Chandra was termed to be a mental case and it was for this reason that the prosecution preferred not to examine him. Ka-1. It was also stated by him that the informant Ram Chandra lost the equilibrium of his mind two or four days after the occurrence and ever since he had been under a severe mental shock. Eventually, Ram Chandra was termed to be a mental case and it was for this reason that the prosecution preferred not to examine him. ( 12 ) P. W. 4 Rajnet in whose outer house the bizarre occurrence had taken place had also given an ocular account of the incident, before the trial Court. He stated that he was present at the enclosure of his outer house at the time of the shots being indiscriminately fired by miscreants. He, however, ran for his life out of his enclosure and taking shelter behind the "shiva Temple" saw the entire occurrence in which eight persons lost their lives and six persons sustained injuries. ( 13 ) P. W. 5 Dr. Kamta Prasad conducted autopsy of the deceased Nand Kumar, Badruddin, Ishwar dayal, Udai Narain and Sheo Muni and proved their respective post-mortem reports, Ex. Ka-2 to Ex. Ka-6. P. W. 6 Dr. Kapil Dev Upadhyay examined the injured persons, namely, Pramod, Mahendra Singh, Indrasani, Dhurfukni, Manji Singh and Jag Narain. Dr. Upadhayay proved their respective injury reports Ex. Ka-7 to Ex. Ka-12. ( 14 ) P. W. 7 Dr. A. K. Goswami conducted post-mortem of Lal Bahadur Singh, Tej Bahadur and Raj Govind Giri and proved their respective reports Ex. Ka-13 to Ex. Ka-15. ( 15 ) P. W. 8 Constable Jaglal, who was posted at Gahmar police station, had accompanied S. I. S. S. Misra and S. I. R. R. Tandon and after the two inspectors had prepared the inquest reports, he carried the dead bodies of Sheo Muni and Ishwar Dayal Singh in the selaed covers to the district headquarters and identified them before the Doctor who had performed post-mortem. Constable Jaglal stated further that along with him were Constables Mauji Lal, Ram Lal Gupta, Virender Singh, Virender Pandey and Ishtyaq and they had carried the dead bodies of Om Prakash, Nand Kumar, Badruddin, Udai Narain, Lal Bahadur and Tej Bahadur. ( 16 ) P. W. 9 H. C. Jagannath Maurya was posted as Head Moharrir, on the date of occurrence, at Police station Gahmar. On that day, he received at 9. ( 16 ) P. W. 9 H. C. Jagannath Maurya was posted as Head Moharrir, on the date of occurrence, at Police station Gahmar. On that day, he received at 9. 15 P. M. a report from the informant Ram Chandra son of Bramh Dev Kushwaha, resident of village Deokali and on the basis of the said written report (Ex. Ka-1) he had prepared Chik Report, Ex Ka-16. He made an entry about the said first Information Report in the General Diary at Report No. 35. He proved extract of the General Diary Report as Ex. Ka-17. ( 17 ) P. W. 10 S. I. Jagdish Prasad Singh, who was Station Officer of Gahmar Police Station at the time of the First Information Report being lodged and a case registered thereupon, testified before the trial Court that soon after the case was registered, he had examined the informant Sri Ram Chandra and then proceded to the place of occurrence. Before he reached there, all the injured persons had been taken by their family members for their medical examination and treatment. He asked the other two Inspectors present at the site, namely R. N. Tandon and S. S. Misra to prepare the inquest reports of the deceased persons. He inspected the place of occurrence and prepared site plan Ex. Ka-19. He collected ordinary and blood-soaked earth from the places where the eight dead bodies were lying and prepared recovery memos Ex. Ka-20 to Ex. Ka-27. Separate samples of earth were kept in boxes and sealed which were proved as material Exs. Ka-1 to 16. He then recovered nine used and two live cartridges and prepared their recovery memo Ex. Ka-28. They were packed and sealed in separate bundles and proved before the trial Court as recovered from the site of occurrence. On the other day, he had recorded the statements of the six injured persons and thereafter on an information of an informer arrested the accused Ramadhar Bhar, Madan Bhar and Munni Lal Bhar. They were interrogated by him and then sent to jail. He then recorded the statements of the witnesses Rajnet, Baleshwar, Sudarshan Girian Parmeshwar. On the other day, he had recorded the statements of the six injured persons and thereafter on an information of an informer arrested the accused Ramadhar Bhar, Madan Bhar and Munni Lal Bhar. They were interrogated by him and then sent to jail. He then recorded the statements of the witnesses Rajnet, Baleshwar, Sudarshan Girian Parmeshwar. ( 18 ) DURING the course of the statements of the witnesses being recorded, the investigating officer, on having received instructions from the senior police officers who had arrived in the village, inspected the site of occurrence again and recovered nine more used and mis-fired cartridges. He prepared recovery memos Ex. Ka-28. On 31-8-1988, the Station Officer Jagdish Prasad Singh examined other witnesses, namely Siddique, Ram Dayal and Babban Singh. In the course of investigation, he arrested other accused person, namely Jagdish Yadav and made an endeavour to apprehend Bihari accused namely, Jagdish Bhar, Suresh Harijan, Saudagar Harijan and Suresh Bhar but he could not lay his hands upon them in spite of his having obtained their non-bailable warrants and warrant of attachment of their properties. However, the remaining accused of village Deokali, namely, Onkar, Mukteshwar Bhar and Uma Shanker were arrested and interrorgated by him on 6-9-1988. Following his transfer from Gahmar Police station, he had handed over the investigation to his successor Sri Chandra Pal Singh. ( 19 ) P. W. 11, S. I. M. M. Beg was a formal witness. He had obtained the non-bailable warrant of the accused Suresh who was the leader of the gang but he could not succeed to secure his arrest. Even the special force constituted for the purpose could not yield any result. ( 20 ) P. W. 12 Constable Babban Singh was an important witness. He asserted before the trial Court that when he was negotiating his entry in Deokali village on the date of occurrence, he came across a person of suspicious character. He, therefore, apprehended him and took him to the enclosure of Rajnet where he disclosed his name as Saudagar and in the meantime, Sudarshan Giri, a villageman of the aforesaid village conveyed to him that Saudagar was a member of the gang of Suresh Dacoit. Numerous villagers gathered there. He then with the help of the villagers started for the police station holding Saudagar in his custody. Numerous villagers gathered there. He then with the help of the villagers started for the police station holding Saudagar in his custody. He barely walked a few steps from the AHATA of Rajnet that Suresh and many other members of his gang including eight residents of village Deokali entered the village and started indiscriminate firing. He stated further that every one ran to save his life and in this bid, Saudagar got freed from his custody. Many villagers had taken shelter in the enclosure of Rajnet but the miscreants chased them and killed eight of them and caused injuries to six persons. According to Babban, he remembered the names of only three villagers who had partici pated in the commission of the crime and he disclosed their names as Mukteshwar, Onkar Nath and Ramadhar. However, he could not recollect the names of other three villagers but identified them as Kang Narain, Madan and Munni Lal before the trial Court, although, they were not put up in test identification parade. ( 21 ) P. W. 13, Dr. Shyam Narain Singh examined constable Babban Singh and prepared his injury report Ex. Ka. 43. ( 22 ) P. W. 14 S. I. Sri Chandrapal Singh who had taken the investigation of this case on 6-9-1988 arrested some accused persons, collected inquest reports and post-mortem reports, examined the remaining witnesses and submitted charge-sheet Ex. Ka-44 against the accused who were on trial and also those who were named in the First Information Report but could not be arrested. ( 23 ) ALL the accused persons on trial denied the incriminating allegations levelled against them by the prosecution and stated that they were prosecuted on account of enmity and village Partibandi. The accused Onkar Nath Singh disclosed in his statement under Section 313, Cr. P. C. that his wife Prabhawati was granted lease of a piece of Gram Sabha land. Rajnet and Kalika, Pradhan opposed the patta executed in favour of Prabhawati. Kalika, Pradhan also filed a case against the Lekhpal Nageshwar under Sec. 218, I. P. C. and Rajnet appeared as a witness in that case of Kalika against Nageshwar. After his trial, Nageshwar was acquitted. Rajnet and Kalika, Pradhan opposed the patta executed in favour of Prabhawati. Kalika, Pradhan also filed a case against the Lekhpal Nageshwar under Sec. 218, I. P. C. and Rajnet appeared as a witness in that case of Kalika against Nageshwar. After his trial, Nageshwar was acquitted. He added further that one ( 24 ) SADDIQUE who was a close friend of Rajnet had filed a case of marpit against his father Jagdish and uncle but their trial ended in acquittal on the date of occurrence. In another case, against him and his father as also his uncle Umashankar filed by Bhaggan alias Bhagwan, the village Pradhan Kalikas father Ram Bachan and Rajnets Patidar appeared as witnesses. Onkar stated further that his father had lodged a First Information Report against the informant Ramchandra, Ram Jee, the scribe of the First Information Report and many other villagers. On the basis of this report, Ram Chandra and others were lodged in jail and they had to remain there for about 12-14 days. It was with this long drawn enmity that he, his father Jagdish and his uncle Uma Shanker have falsely been implicated in this case by Kalika Pradhan and Rajnet. ( 25 ) D. W. 1 Indrasani sustained injuries in the occurrence and lost her grandson. She corroborated the prosecution case to the extent that Constable Babban Singh had apprehended a miscreant a little before the occurrence and when he was preparing to carry him to the police station with the help of other villagers, many other gangsters came from the jungle side and opened fire. The villagers ran for their shelter and protection. At that time, as added by D. W. 1, she was at the main gate of the Rajnets compound and while running, she sustained a fire arm injury in her left arm. The micreants had killed eight villagers including her grand son Om Prakash. All the miscreants were said to be armed with deadly weapons. Indrasani, however, disclosed that the accused on trial, namely, Onkar Nath Mukteshwar, Kag Narain, Munni Lal, Madan, Ramadhar and Uma Shankar were not amongst the killers. ( 26 ) D. W. 2 Hawaldhar alias Jag Narain also suffered injuries in the occurrence. All the miscreants were said to be armed with deadly weapons. Indrasani, however, disclosed that the accused on trial, namely, Onkar Nath Mukteshwar, Kag Narain, Munni Lal, Madan, Ramadhar and Uma Shankar were not amongst the killers. ( 26 ) D. W. 2 Hawaldhar alias Jag Narain also suffered injuries in the occurrence. As stated by him, he lay with his chest on the ground giving an impression to the killers that he had also died but in spite of his so pretending, the miscreants fired a shot at his buttocks causing gun shot wounds. He had a miraculous escape as the barrel of the gun, from which the shot was fired, collided with a trough. Narrating the ocular account, he asserted that the dacoits had killed as many as eight villagers including a child, a namely Udai Narain and in the shooting spree, six persons including himself sustained injuries. He however, added further that none of the accused on trial was amongst the miscreants. ( 27 ) D. W. 3 Sadarshan Giri is the real uncle of the deceased Om Prakash D. W. 1 Indrasani who sustained gun shot injuries was his mother. According to his evidence, he saw a miscreant being interrogated by the Constable Babban in the Ahata of Rajnet. The miscreant conveyed to the Constable that he was a resident of Bihar. The Constable asked the villagers to help him carry the miscreant to the police station and when the Constable accompanied with the miscreant and other villagers reached at a distance of 50-55 paces from the baithaka of Rajnet, some 10-12 dacoits came from the northern side and fired shots in the air. All including the Constable ran helter skelter to save their lives. Pramod was the first victim of the firing and Manji sustained gun shot injuries but he was picked up by him (Sudarshan Giri) and carried away towards the temple. He supported the defence version that none of the villagers nor the accused on trial were amongst the assailants. ( 28 ) D. W. 4, Sheo Narain also corroborated the defence version that the arrest of a miscreant by Babban Constable sparked a row, in consequence whereof, the miscreants associates 10-12 in number came from the northern side of village and fired numerous shots. The dacoits chased some of the villagers and killed eight of them inside Ranjets Ahata. ( 28 ) D. W. 4, Sheo Narain also corroborated the defence version that the arrest of a miscreant by Babban Constable sparked a row, in consequence whereof, the miscreants associates 10-12 in number came from the northern side of village and fired numerous shots. The dacoits chased some of the villagers and killed eight of them inside Ranjets Ahata. He added further that six villagers had suffered gun shot injuries. However, he testified that none of the accused on trial was amongst the killers. ( 29 ) D. W. 5 Vijay Kumar Rai was posted as Deputy Jailer in District Jail Ghazipur. With reference to the entries made in the jail register of 1969, he proved that Ram Bachan and Bhaggan, villagers of Deokali were lodged in jail in case crime No. 39 of 1969. ( 30 ) D. W. 5 Vindhyachal Kushwaha is the witness of inquest report, Exs. K-45 to 52. He proved his signatures Ex. Kha-20 to Ex. Kha-29 on the inquest reports. According to him, he and several other villagers were sitting at the time of occurrence in the baithaka of Basgit which was located at a distance of 60-70 yards from Rajnets Ahata. On being attracted by the hue and cry raised by the villagers, he came to Rajnets compound and saw several dead bodies lying here and there. He with the help of other villagers collected the dead bodies in the courtyard and when the police came, he signed the inquest reports. ( 31 ) IN addition to the evidence of above mentioned six defence witnesses, the accused Onkar Nath Singh Yadav also submitted his written statement in accordance with the provisions of Section 233 (2), Cr. P. C. asserting therein that his father, namely Jagdish Yadav lodged a report with the police against Kalika, Pradhan and his brother Ambika, Ram Jee P. W. 3, P. W. 2 Permehwars father Jag Bahadur and Basgit, a Patidar of Rajnet under Sections 147, 148, 149, 452, 323, 380 and 426, I. P. C. and all the above named accused persons were in jail in connection with that case for about 12-14 days. He clarified further that there was a mistake in the statement of Madan accused according to which, Jag Mohan was said to be one of the deceased while, in fact, none with that name was killed; instead it was Udai Narain son of Chandra Bhooshan who was shot dead by the miscreants. Udai Narain was the cousin of the accused Madan and Munni Lal was on trial. Further, it was stated by him that Om Prakash son of Rajgovind instead of Raj Govind Giri was shot dead. The accused Onkar Nath Singh moved an application to the District Magistrate on the other day of the occurrence and recited therein that his father had wrongly been apprehended by the police. Three days after the occurrence, he was implicated in this case. ( 32 ) THE trial Court on having scrutinised the prosecution and the defence evidence on record arrived at a conclusion that the prosecution had succeeded in establishing the guilt of the six accused appellants, namely Uma Shanker, Onkar Nath, Mukteshwar, Munni Lal, Madan and Ramadhar under Sections 302/149, 307/149 and 148, I. P. C. On the basis of its findings, the trial Court recorded a verdict of conviction and sentenced the six appellants to death under Section 302/149. All these convicts were sentenced to rigorous imprisonment for five years under Section 307/149, I. P. C. and further each one of them was also sentenced to one years rigorous imprisonment under Section 148, I. P. C. ( 33 ) THE trial Court also submitted the entire record of this case for confirmation of the death sentence as required under Section 366 (1) of the Code of Criminal Procedure. ( 34 ) WE have heard Sri A. D. Giri and Ravindra Singh, learned Counsel for the accused and Sri K. C. Saxena, learned additional Government Advocate and perused the record. ( 35 ) WE now proceed to examine the evidence on record with a view to find out as to whether the judgment of conviction and sentence of the learned trial Court is sustainable or not. ( 36 ) IT is significant to note that in this bizarre incident of massacre, eight persons of village Deokali, namely Nand Kumar, Badruddin, Ishwar Dayal Kuswaha, Om Prakash Giri, Lal Bahadur Singh and Tej Bahadur lost their lives. ( 36 ) IT is significant to note that in this bizarre incident of massacre, eight persons of village Deokali, namely Nand Kumar, Badruddin, Ishwar Dayal Kuswaha, Om Prakash Giri, Lal Bahadur Singh and Tej Bahadur lost their lives. The post-mortem reports appear to indicate that all the deceased villagers died on having suffered gun shot injuries. Udai Narain was a child aged 8 years. Two others, namely Tej Bahadur and Lal Bahadur Singh were of 15 and 16 years of age respectively. All others were about 28 years of age. Six persons were said to have suffered injuries. Their names are; Mahendra, Indrasani D. W. 1, Hawaldar D. W. 2, Manji Singh P. W. 1, Pramod Kumr and Smt. Dhurfekni. ( 37 ) IT is noteworthy that out of six injured persons, only Manji Singh son of Kashi Nath appeared in support of the prosecution story. Two injured, namely Hawaldar and Indrasani did not support the prosecution case; instead they lent assurance to the defence version that the accused on trial were not amongst the assailants. Sudarshan Giri, who was also one of the eye-witnesses, as recited in the First Information Report, contradicted the prosecution story of the accused on trial being involved in the killing of the villagers. Indrasani is the mother of Sudarshan Giri. Her grandson Om Prakash was killed by the miscreants. Question arises as to why she and her son Sudarshan Giri would screen the real culprits. If the accused appellants were amongst the gangsters and they exhorted their leader Suresh and others to give a sour taste to the villagers as they were instrumental in getting their associates Saudagar apprehended, they would have certainly supported the prosecution story of their involvement in the massacre. On the similar analogy, it can be observed that D. W. 2 Hawaldar who, when lying chest-side down was fired a shot at as a result of which he sustained serious gun shot injuries would not have supported the cause of the appellants. Therefore, while analysing the prosecution evidence, the evidence of these eye-witnesses who were examined on behalf of the accused have to be kept in mind. ( 38 ) AT the outset, it may be mentioned that Ram Chandra who had lodged the report was not examined by the prosecution on the pretext of his having lost mental equilibrium following his sons death. ( 38 ) AT the outset, it may be mentioned that Ram Chandra who had lodged the report was not examined by the prosecution on the pretext of his having lost mental equilibrium following his sons death. The First Information Report appears to indicate that Tej Bahadur who was the informants son was killed in the occurrence. According to P. W. 1 Manji Singh, soon after this occurrence, Ram Chandra had lost balance of his mind and his condition kept on deteriorating day by day and it was for this reason that he was not examined before the trial Court. P. W. Ram Jee Singh who was the scribe of the report has also given a similar explanation but there appears hardly to be any substance in this cause of Ram Chandras non-examination. The incident had taken place on 28-8-1988 and it is established from record that Ram Chandra kept on coming to the trial Court up to 18-11-1989. According to the statement of P. W. 2 Permeshwar, as recorded on 24-4- 1991, Rajnet was present in the Court on the date of his cross-examination. The State Government counsel conducting the trial in the trial Court moved an application on 23-3-1989 that the trial Judge might make a local inspection of the site of occurrence and the said application was signed by Ram Chandra. Yet another application was moved by Ram Chandra on 18-11-1989 praying for rejection of the application of Jagdish Yadava accused for exemption of his personal appearance. Even on 19-2-1990, an application (40-kha) was moved by Ram Chandra. In the year 1991, the accused persons filed an application (84-kha) on 8-4-1991 to defer the cross-examination of the prosecution witnesses until the informant Shri Ram Chandra was examined as, according to the defence version, the First Information Report was a fictitious document manufactured in the name of Shri Ram Chandra. Whereas moving of these applications would thwart the prosecution allegation regarding Ram Chandras poor mental state, as hollow, a perusal of the written report would also show that Ram Chandra had not recited anywhere that his son had died. No doubt, it is true that in the list of the deceased persons, Ram Chandras name is recorded as father of the deceased Tej Bahadur but it appears to be astonishing as to why he did not refer to his personal relationship with his son. No doubt, it is true that in the list of the deceased persons, Ram Chandras name is recorded as father of the deceased Tej Bahadur but it appears to be astonishing as to why he did not refer to his personal relationship with his son. In normal circumstance, had the report been lodged by him, he would have indicated at least at one or two places that his son was present in Rajnets compound and he was killed by the miscreants but surprisingly, he has not made that personal reference to his son Tej Bahadur. This points to the conclusion that Ram Chanda had not dictated the report. Learned Additional Government Advocate argued that the informant readly suffered from intermittent unsoundness of mind and paper No. 146-kha on miscellaneous file of the trial Court refers to an endorsement dated 15-2-1994 of the City Magistrate that Ram Chandra be sent to Mental H ospital. In spite of such an endorsement, the fact remains that Ram Chandra participated in the trial Court proceedings not only by being present in the Court but also by opposing some of the moves made on behalf of the accused. Keeping all, these aspects of the matter in view, an irresistible conclusion has to be drawn that Ram Chandra might have dropped the proposal of testifying himself before, the trial Court as from inner side of his heart, he was not inclined to depose against the accused on trial. As has been contended by the learned Counsel for the appellants, he had withdrawn from the trial as he was not prepared to support the prosecution case about the appellants implication in this occurrence. This goes a long way to cast a suspicion on the genuineness of the prosecution story so far as the appellants involvement is concerned and this suspicion gets full assurance from a very important omission regarding the names of two accused appellants, namely Uma Shanker and Munni Lal finding no place in the First Information Report. Had Ram Chandra been examined he would have been asked as to why he did not disclose the names of these two accused along with others who participated in the killing spree. From other witnesses also, no plausible explanation has come forward to indicate as to what might have prevented the informant from dictating the names of Uma Shanker and Munni Lal as the culprits. From other witnesses also, no plausible explanation has come forward to indicate as to what might have prevented the informant from dictating the names of Uma Shanker and Munni Lal as the culprits. The fact about their names having not appeared in the First Information Report may not rule out the possibility of other villagers having been roped in for reasons of enmity and village partibandi. The observation of the learned sessions Judge that the accused would have examined Ram Chandra as a defence witness in case of his being hale and hearty, is fallacious as it was not the obligation of the accused appellants to examine the informant in their defence, nor they were expected to have requested the Court, as recited in the judgment in appeal, to have moved the trial Court for examination of the information as Courts witness. ( 39 ) THE evidence of four eye-witnesses, namely Manji Singh, Permeshwar, Rajnet and Babban seems to be full of infirmities, inconsistencies with disturbing features all around. P. W. 12 Babban is the most important witness from the prosecution point of view as it was he who had apprehended Saudagar, a member of Suresh Bhars gang and his effort to carry the said offender to the police station is said to have sparked off the controversy as it attracted other members of his gang who came from outside the village and indiscriminately fired at the villagers. According to ocular account given out by Babban, he came to village Deokali with a view to execute summons upon Kapil Dev who was raising a wall unauthorisedly on the land of Gram Sabha. This averment, however, remains uncorroborated by his supposed departure entry in the General Diary of the police station Gahmer. Admittedly, no entry about his visit to village Deokali was recorded before he left for the village. However, this omission may not point to the conclusion that he was not present in the village. His presence before the occurrence was admitted even by some of the defence witnesses but his evidence that the accused on trial formed part of the gang led by Suresh does not seem to inspire confidence. It is important to note that Babban has not stated at all that any one of the accused fired a single shot that might result into either death of some villager or injury to some injured person. It is important to note that Babban has not stated at all that any one of the accused fired a single shot that might result into either death of some villager or injury to some injured person. A very careful reading of his statement would reveal that when he was carrying Saudagar towards the police station, he saw the members of Sureshs gang coming from outside the village and the members of the gang were firing shots in the air. What is further significant to refer is that Babban stated that there were six villagers with the gang of Suresh. In other words, he did not pointedly state that any one of the accused appellants fired any shot before the villagers ran helter skelter. He added further that the members of Sureshs gang entered the compound of Rajnet but in the meantime, he himself escaped towards the temple. According to him, Saudagar mixed with the members of his gang soon after he secured his release amidst the reports of gun fire by miscreants. Still, Suresh, the leader of the gang thought to teach a lesson to the villagers as they dared apprehend a member of his gang. Babban derived his knowledge about the identity of Suresh and other gang members on the pointing out of villagers as he had no personal knowledge about anyone. He testified in his examination-in-chief that he knew the names of Mukteshwar, Onkar Nath and Ramadhar but did not know the names of three remaining villagers. In this context, it is noteworthy that he was required to identify other miscreants and he identified two miscreants but they were not on retrial in the trial Court at the time of his being examined. However, he recognised the remaining three accused on trial, namely, Kag Narain, Madan and Munnilal by face but he could not disclose their names. As indicated earlier, he has not attributed any role even that of firing to any one of the two sets of accused - first, comprising of Mukeshwar, Onkar Nath, Ramadhar and the second, consisting of Kag Narain, Madan and Munnilal. The name of Munnilal did not figure in the First Information Report and the name of Uma Shankar was neither disclosed by this witness as one of the miscreants nor he was able to identify him. The name of Munnilal did not figure in the First Information Report and the name of Uma Shankar was neither disclosed by this witness as one of the miscreants nor he was able to identify him. Obviously thus, the evidence of Babban is not free from doubt because he has falsely implicated Munnilal as one of the miscreants and he has not rightly supported the prosecution case that Uma Shankar was also one amongst the gangsters. ( 40 ) ANOTHER significant point which strikes to the reason is that although Babban would have been the main target of the miscreants, yet he did not suffer any fire-arm injury nor the gangsters endeavoured to catch hold of him. Very conveniently, he escaped towards the temple and whatever the minor injuries abrasions etc. , he suffered were sustained by him at the time when there was a scuffle between him and Saudagar at the time of his being carried away towards the police station. If somebody had a grudge against Babban constable, certainly he would have been Saudagar as not only he was apprehended by him but also publicly humiliated on being cross-examined about his antecedents and also by being tied with a string so as to carry him to the police station. Still Saudagar did not harm the constable and the reason for this merciful act of the miscreants remains shrouded in the mystery. The investigating officer incidentally has not recorded in his statement under Section 161, Cr. P. C. that Babban sustained some minor injuries in the scuffle with Saudagar miscreant. He was medically examined after his statement was recorded by the investigating officer. No reason has been disclosed as to why he was not medically examined on the other day of the occurrence. He would have been the best witness to lodge the report as according to him, he had seen the entire occurrence but no reason has been explained as to why the report was not prepared on his dictation. If he stayed back in the village to guard the dead bodies, he would have been the best witness of the inquest reports but he did not sign any Panchayatnama of the deceased persons. It also does not seem to be believable that Babban preferred to guard the dead bodies as against his expected obligation of lodging the First Information Report. It also does not seem to be believable that Babban preferred to guard the dead bodies as against his expected obligation of lodging the First Information Report. P. W. 1 Manji Singh clearly stated that Babban was not visible at the site of occurrence up to late in the night. The fact that he escaped towards Shiva temple soon after hearing the reports of gun fire by the miscreants appears to indicate that he did not see the occurrence taking place inside the Ahata of Rajnet where eight persons were eliminated. P. W. 1 Manji Singh, who was the grandson of Rajnet, has disclosed that northern wall of his ahata was 8 ft. high and the roof of rooms on western side was of 10 ft. height. Further, he has categorically disclosed during his cross-examination (conducted on behalf of Madan and Munnilal) that some one standing on the Chabutara of temple or behind the temple, would not be able to see anything inside Ahata of Rajnet. ( 41 ) P. W. 4 Rajnet stated that after seeing the miscreants, he and Babban ran towards his house situated in west of the occurrence place to take out his licensed gun and he and Babban both fired a few shots to scare away the miscreants. It is implied in this averment that Rajnet and Babban both escaped towards the formers house which was at a distance of 200 paces and by the time they fired the miscreants would have left after the shooting spree. In view of these infirmities, we can reasonably observe that the evidence of P. W. 12 Babban falls too short of establishing the participation of the accused appellants in the massacre of Deokali villagers and consequent thereto, it may be held that he failed to establish beyond doubt the guilt of the accused. ( 42 ) P. W. 2 Parmeshwar Singh had seen the miscreants Suresh Bhar, Suresh Pasi, Jagdish Bhar, Saudagar sitting at the tubewell of Onkar and Munna. A few other members of Sureshs Gang were chatting at Ramadhars hut. He saw the miscreants sitting at two places and when he arrived at the village, he saw Babban holding custody of a thief. On his being asked, the villagers Manji and others conveyed to him that Saudagar was a dacoit and so landed in the custody of the constable. He saw the miscreants sitting at two places and when he arrived at the village, he saw Babban holding custody of a thief. On his being asked, the villagers Manji and others conveyed to him that Saudagar was a dacoit and so landed in the custody of the constable. A question arises that when this witness saw Saudagar sitting at the tubewell of Onkar, how then Saudagar managed to take over him and reached in the village before his own arrival and also by then went into the catch hold of the Constable. It is not the prosecution case that there were two miscreants by the name of Saudagar. The witness has not been able to explain this anomalous situation. Therefore, it can reasonably be held that his statement about his having seen Saudagar at the tubewell of Onkar was nothing but a concocted version. ( 43 ) PARMESHWAR is stated to have seen all the accused on trial along with the leader of the gang Suresh Bhar and other members of the gang, namely Suresh Pasi, Jagdish firing shots in the air. On hearing the reports of gun fire, he ran and rushed towards the Shiva temple as shown in the site plan and took shelter behind it. The dacoits in the meantime entered Rajnets ahata and killed eight villagers and caused injury to some others. It has been held above on the basis of the depositions made by P. W. 1 Manji Singh that the walls of Rajnets ahata being 8 to 10 feet of height, its inside view would not be visible to a person standing either on the Chabutara of Shiva temple or behind it. From the evidence of P. W. 2 Parmeshwar, it can well be derived that he was not in a position to see as to who entered the ahata of Rajnet and also as to who, precisely were the miscreants indulging in shooting ? He admitted that Suresh was not introduced to him by any one. His statement that he came to learn about him some 2-3 months prior to the occurrence does not seem to be reliable as admittedly, Suresh and others did not commit any offence earlier in the village. The witness was also not known to Suresh Bhars father. He admitted that Suresh was not introduced to him by any one. His statement that he came to learn about him some 2-3 months prior to the occurrence does not seem to be reliable as admittedly, Suresh and others did not commit any offence earlier in the village. The witness was also not known to Suresh Bhars father. He also was not acquainted with Suresh and his father and also had no knowlede about his antecedents or even his address. Also it was admitted to him that he was not aware as to in what occupation or profession the two Sureshs were engaged. Similarly, he knew nothing about Saudagar. In view of these admissions of the witness, his evidence that he saw the aforesaid miscreants sitting at Onkars tubewell fails to inspire confidence in its veracity. This finding is further strengthened from the omission he committed while making a statement to the investigating officer. He had disclosed to the investigating officer that he came to Rajnets ahata after having a look at his agricultural field. Further, he stated before the trial Court that he saw Suresh Bhar, Suresh Pasi, Jagdish Bhar, Saudagar and Uma Shanker at the tubewell of Onkar but contrary to this, he conveyed to the investigating officer that these miscreants were sitting and chatting at Ramadhars hut. Surprisingly, he also fails to disclose the number of the agricultural plot which he had inspected immediately prior to the occurrence. The ignorance about his own plot falsifies his statement on the point. ( 44 ) PARMESHWARs claim that he heard Babban putting some queries is not worth credible for the simple reason that he failed to disclose the details of the conversation between the two. In normal circumstances, he was expected to have heard as to what transpired between the Constable and Saudagar but lack of his knowledge is an indicator of the conclusion that he was not present at the site of occurrence. ( 45 ) HE seems to be inimical towards the accused. He admitted that the name of his father was Jang Bahadur but cunningly avoided replying to a query as to whether his father was lodged in jail in a case of dacoity alleged to have been committed in the house of the accused Jagdish. ( 45 ) HE seems to be inimical towards the accused. He admitted that the name of his father was Jang Bahadur but cunningly avoided replying to a query as to whether his father was lodged in jail in a case of dacoity alleged to have been committed in the house of the accused Jagdish. However, the statement of Sri Vijay Kumar Rai, Deputy Jailor of District Jail Ghazipur clearly proves that Permeshwars father Jang Bahadur along with Ram Jee and others was in jail for about 12 days. Uma Shanker is the real brother of Jagdish. Considering the fact of enmity and the infirmities and inconsistencies as referred to above, we hold that the evidence of P. W. 2 Permeshwar as against the accused appellants is not worth the name credit. ( 46 ) P. W. 4 Rajnet was also termed to be an eye-witness of the occurrence. It is noteworthy that he as the owner of the compound (Ahata) where the occurrence had taken place. According to the depositions of this witness, the accused Suresh had constituted a gang of dacoits. In that gang, some members hailed from his own village and a few others belonged to other villages. Whereas Suresh Pasi, Jagdish, Saudagar and Suresh Bhar were from other villages, the accused appellants Onkar Nath, Uma Shanker, Mukteshwar, Madan, Munni Lal and Ramadhar belonged to his own village Deokali. He testified in the trial Court that all the accused appellants along with four others entered his compound and fired shots from their respective weapons causing heavy casualties. As added by him further, eight persons died on the spot and six sustained injuries. His own wife Dhurfekni and grandson Manji (P. W. 1) were amongst the injured persons. He has not given any explanation as to why the names of Uma Shankaer and Munni Lal were not recited in the First Information Report. Also he has not disclosed any plausible reason as to why he himself did not lodge the report as the occurrence had taken place in his compound and particularly when two of his family members suffered serious injuries. His statement whereby he included the names of Uma Shanker and Munni Lal in the list of assailants appears to be based on enmity. His statement whereby he included the names of Uma Shanker and Munni Lal in the list of assailants appears to be based on enmity. Although he cannot be said to be accountable to the omission subsisting in the First Information Report lodged by another villager, namely Ram Chandra, yet he being the owner of the Ahata was expected to be in know of the facts and circumstances as to how and why the two names, namely Uma Shanker and Munni Lal did not figure in the First Information Report. According to his evidence, Munni Lal was the one who had informed Suresh Bhar, the leader of the gang and others that Saudagar had been arrested by the police and he was being taken to the police station. Obviously thus, the name of Munni Lal in case of there being any genuineness about his involvement in the indiscriminate firing should have been mentioned in the First Information Report. Otherwise also, it is established from his own evidence that he could have barely identified the assailants inside his Ahata. He asserted during his cross-examination that soon after he heard the reports of gun fire by the miscreants, he ran for his life and took shelter behind the Shiva Temple. According to the prosecution story, the miscreants fired volley of shots in the area when they were at a distance of 30-40 paces from the main gate of Rajnets compound. So if this witness took shelter behind the temple soon after hearing reports of the first gun fire, certainly he would not have been in a position to see as to who were the members of the dacoits and also who were the miscreants having entered in his compound and indulged in the indiscriminate firing. His own grandson, namely Manji, P. W. 1 disclosed that the view of Ahata was not visible from the Chabutara of Shiva Temple. Therefore, Rajnets statement that he saw the miscreants firing shots from their fire arms inside his Ahata and causing death of eight innocent persons is not worth acceptable. ( 47 ) EVEN his statement that he saw the occurrence from the side of temple is falsified by his own important statement given to the investigating officer that soon after he heard the reports of gun fire, he ran and rushed towards his house and brought out his licensed gun and fired shots. ( 47 ) EVEN his statement that he saw the occurrence from the side of temple is falsified by his own important statement given to the investigating officer that soon after he heard the reports of gun fire, he ran and rushed towards his house and brought out his licensed gun and fired shots. It is significant to mention that the house of Rajnet is situated at a distance of 200 paces towards west of his Ahata. In terms of calculations, it would have taken at least 2 to 4 minutes for him to reach his house through zigzag lanes and bring his gun and therefore, it can well be derived that by the time he came close to the temple, the miscreants would have escaped by fleeing off the occurrence place. Question arises as to why he did not disclose to the investigating officer that he had taken shelter in the premises of Shiva Temple and saw the occurrence from there. It appears that with a view to bridge up the inconsistency of his having gone to his house as stated by him before the trial Court and his taking shelter in the Shiva Temple as disclosed to the investigating officer, he had changed his version that after taking his gun, he went to Shiva Temple and saw the occurrence from there. He also contradicted his own statement made to the investigating officer regarding his own statement made to the investigating officer regarding Babban having joined him at his house by asserting before the Court that he did not know as to how Babban reacted to the firing and in which direction, he had run to save his life. He was rightly suggested by the learned Counsel for the accused before the trial Court that he developed the theory of taking shelter in the premises of Shiva Temple on being advised that if he would stick to his version of having gone to his house soon after the firing, his averment of his having seen the firing inside his Ahata would be unbelievable. In view of these infirmities and inconsistencies, the evidence of this witness fails to repose a confidence in its veracity. ( 48 ) APART from the above, the evidence of this witness seems to be thoroughly incredible. In view of these infirmities and inconsistencies, the evidence of this witness fails to repose a confidence in its veracity. ( 48 ) APART from the above, the evidence of this witness seems to be thoroughly incredible. During the course of his cross-examination, it was suggested to him that he was inimical to Onkar accused and his other family members. Jagdish appellant is the father of Onkar and Mukteshwar is his uncle. Prior to the occurrence of this incident, a piece of land was allotted in the name of Onkars wife Prabhawati by the then village Pradhan, namely Ram Nageena Singh. This was resented to by Rajnet and when Kalika Singh was elected as Pradhan of the village in the general election of village Panchayat, a case was filed against Nageshwar Rai, Lekhpal under Section 218, I. P. C. The allegation against Nageshwar Rai was that he had wrongly entered the name of Smt. Prabhawati in the village records on the basis of a forged patta in her name. It is important to note that Rajnet appeared as a witness against the Lekhpal but when he was asked during his cross-examination that he had animosity against Onkar and his family members and with this background he appeared as a witness against Nageshwar Rai, Lekhpal, he expressed his ignorance as to whether any Patta was executed in the name of Onkars wife Prabhawati and also about the prosecution of Nageshwar Lekhpal. Nageshwar Rai was discharged by the trial Court and the revision preferred against the order of discharge was also dismissed. A perusal of the judgment in revision, Ex. Kha-17 would reveal that Nageshwar Rai, Lekhpal of village Deokali was prosecuted on the complaint of village Pradhan, Kalika Singh and Rajnet appeared as P. W. 2 in that case and he stated that Nageshwar Rai had fabricated records of Bhumi Prabandhak Samiti. A copy of his statement was also filed on record which is Ex. Kha-16. A perusal of this statement clearly stipulates that Rajnet termed the entire proceedings of allotment of land in the name of Smt. Prabhawati to be as forged and fictitious. Question arises why Rajnet expressed ignorance about Lekhpal being prosecuted and why he endeavoured to conceal the facts about his having assailed the allotment in the name of Smt. Prabhawati. Kha-16. A perusal of this statement clearly stipulates that Rajnet termed the entire proceedings of allotment of land in the name of Smt. Prabhawati to be as forged and fictitious. Question arises why Rajnet expressed ignorance about Lekhpal being prosecuted and why he endeavoured to conceal the facts about his having assailed the allotment in the name of Smt. Prabhawati. The suppression of the fact of his being a witness in the afoesaid proceedings certainly raises a suspicion on the genuineness of his evidence as concealment on his part would, besides being guilty of perjury, would categorise him a witness unworthy of credit. ( 49 ) RAJNET kept on telling lie one after another in the trial Court. A dacoity was committed in the house of Onkar. His father, namely Jagdish lodged a First Information Report against some villagers including Ram Chandra, the informant of this case as also Raj Jee, P. W. 2. All the accused of that case including Ram Chandra and Raj Jee had to be in jail for about 14 days. P. W. 2 Raj Jee admitted this fact but Rajnet expressed his ignorance. Deokali is a small village and he was expected to be in know of the occurrence of dacoity and prosecution of certain villagers but he expessed total ignorance with a view to avoid embarrassment, he was likely to come across on account of his alignment with Raj Jee and Ram Chandra. ( 50 ) IT has been discussed above that he was in league with Kalika, Pradhan on account of his village politics. Saddique filed a case of simple marpeet against Onkar and some of his family members and he himself had gone to the Court to hear the judgment in that case on the date of occurrence. Onkar and others were acquitted as is evident from the judgment on record but Rajnet again expressed lack of knowledge about any such case. He was very closely associated with Saddique and as admitted by him, when he was coming back to his village with Saddique on the date of occurrence, the fare of the bus in which he was travelling was paid by Saddique. It apparently shows that he had very good friendship with Saddique and he would always support his cause. He was very closely associated with Saddique and as admitted by him, when he was coming back to his village with Saddique on the date of occurrence, the fare of the bus in which he was travelling was paid by Saddique. It apparently shows that he had very good friendship with Saddique and he would always support his cause. Thus, it may be held that his affinity with Saddique might have promoted to implicate Onkar and others after they were aquitted on the date of occurrence in the case launched by Saddique. Similarly he evaded answer to a question that he got a proceeding initiated regarding cancellation of Patta in favour of Ramadhar accused, executed by Ram Nagina, Pradhan. . ( 51 ) RAJNETs version that the accused on trial were members of a gang of dacoits led by Suresh of Bihar has no basis. On being asked regarding details about the accused and Suresh Bhar being members of gang of dacoits, he was unable to disclose as to whether he had seen any one of them committing the offence of dacoity. He admitted that he had not initiated any proceeding of dacoity against the accused appellants nor he had seen them committing such offence. Also, he conceded that he never appeared as a witness in a case of dacoity against the appellants. Then, question arises as to what was the basis on which he had stated before the Court that the appellants were dacoits. He admitted that Munni Lal, accused whose name did not find place in the First Information Report was the cousin of Udai Narain, deceased. Another accused Madan was also related to Udai Narain. Why Madan and Munni Lal would have killed their own kith and kin and that too a child of seven years is beyond imagination. The crux of the matter is that in view of Rajnet being a liar the fact of his having taken shelter behind Shiva Temple from where he could not have viewed the incident of firing inside his Ahata coupled with the fact of his enmity with the accused persons, we come to the conclusion that the evidence of this witness is tainted with mala fides and totally unworthy of credit. ( 52 ) OF the four eye-witnesses, one was Manji Singh, P. W. 1 who is none else than the grandson of P. W. 4 Rajnet. ( 52 ) OF the four eye-witnesses, one was Manji Singh, P. W. 1 who is none else than the grandson of P. W. 4 Rajnet. The bias and prejudice from which Rajnet suffered would also guide and govern Manji Singh as he was a member of the same family. It was for that very reason that he had wrongly implicated Munni Lal and Uma Shanker whose names, as repeatedly recited above, were neither disclosed in the First Information Report nor any specific role was attributed to them. He admitted that Jageshwar son of Basjit was his uncle and Ex. Kha-11 on record clearly indicates that Jageswars father Basjit was a witness against Jagdish, Onkar and Mukteshwar accused in case No. 281 of 1988. It shows his family feud with the accused Jagdish and others. At the time of occurrence, he was a young lad of 13-14 years and quite likely to be swayed by the intriguing directions of his grandfather. He did not know his date of birth nor even the year in which he was born and it shows his poor intellect which is also an attributing factor for him to be driven under the dictates of his grandfather. Though he stated that he had seen all the miscreants sitting at the tubewells of Onkar and at the hut of Ramadhar, yet he was not able to disclose as to how he knew the gang of the leader, namely Suresh Bhar. Admittedly, he was not introduced to Suresh Bhar nor he could give out details of his personality regarding age etc. He also failed to give out details about his being acquainted with Jagdish and Suresh Pasi. As stated by him, after he finished his school on the date of occurrence, he arrived at his house at 4 Oclock and came to his Baithaka, i. e. the site of occurrence at 4. 30 p. m. He contradicted his earlier statement that he met Babban Constable at 5. 30 p. m. at the time when he arrived at his Baithaka. Again, he changed timings and rectifying his earlier statement, he said that it was at 4. 45 that he came to his house finishing his school. He went to his pumping set at 5. 18 p. m. and then came to his Baithaka at 5. 20 p. m. and then continued to be there upto the end of occurrence. Again, he changed timings and rectifying his earlier statement, he said that it was at 4. 45 that he came to his house finishing his school. He went to his pumping set at 5. 18 p. m. and then came to his Baithaka at 5. 20 p. m. and then continued to be there upto the end of occurrence. He is an injured witness and he claims his presence at the site of occurrence right from the time of Saudagar being arrested and interrogated by Babban until eight persons were killed and six including himself injured. In normal circumstance, he was expected to have heard as to what conversation was exchanged between Saudagar in captivity, and Babban. The occurrence had taken place at 7. 00 p. m. and as stated by him, he came there at 5. 20 p. m. It is obvious and implied that he was there for about 1. 40 hours but the veracity of this statement is discredited on the face of his admission that he did not know the details of the conversation which had taken place between the captor and captive. His ignorance created a doubt about his being there for as long as a duration as disclosed by him and this finding further gets assurance from his contradictory statement that Babban had tied Saudagars arm with an Angochha (a thin towel normally of red colour used in countryside) while carrying him towards the police station. P. W. 12 Babban testified that he had used a string in order to keep Saudagar in his physical captivity and the string was arranged by some one in the Ahata of Rajnet itself. Not only this but Babban also rejected the averment that he had tied Saudagars arm with an Angochha. Further, it was disclosed by the Constable that he tied both the hands of Saudagar on his back with the string which was supplied to him. According to him, there was no source of light at the place where the miscreants had fire shots in the air. Since there was no light in the gali, he failed to disclose the names of the miscreants who fired in the Gali. He was also unable to disclose as to whether the shots were fired from rifle. country-made pistol or the gun. Also, he was unable to reveal about anyone having sustained any gun shot wound. Since there was no light in the gali, he failed to disclose the names of the miscreants who fired in the Gali. He was also unable to disclose as to whether the shots were fired from rifle. country-made pistol or the gun. Also, he was unable to reveal about anyone having sustained any gun shot wound. However, he stated that he got injured at the time of second firing incident which had taken place at his Ahata. According to him, the miscreants fired all shots from a distance of 8 to 10 paces outside the main gate of the compound and in all 16-17 rounds of bullets were fired at that time. The fact that the miscreants fired from outside the main gate of Ahata is in clear contradiction of the evidence of P. W. 2 Permeshwar, P. W. 4 Rajnet and P. W. 12 Babban. All these three witnesses stated that the miscreants entered the Ahata through the main gate and fired shots from their respective weapons. In this context, it is noteworthy that the incident of firing is not in doubt but the manner of firing and the ocular account which P. W. 1 Manji Singh had disclosed becomes full of suspicion. If the accused appellants on trial did not enter the main gate of Ahata, question arises how Manjit Singh identified them from a distance. Although, the appellants being the residents of the same village who were expected to have covered their faces in order to conceal their identity, yet even if it is held that they were desperate being in league with Suresh and other outside members of the gang, there seemed to be no motive for them to eliminate indiscriminately all those who were not connected by any stretch of reasoning with the incident of Saudagar being detailed by Constable Babban. As said above, Udai Narain was the first cousin of Madan and Munna Lal and there was no rhyme or reason why they would have shot him dead, particularly when Udai Narain, a boy of seven years of age was just wandering behind the miscreants. As said above, Udai Narain was the first cousin of Madan and Munna Lal and there was no rhyme or reason why they would have shot him dead, particularly when Udai Narain, a boy of seven years of age was just wandering behind the miscreants. It, therefore, appears that the incident of firing and killings took place inside Ahata of Rajnet but firing was made by the miscreants who did not belong to the village but who came from outside, escaped after rescueing Saudagar from the clutches of Constable Babban and could never be apprehended by the police. The accused appellants who were residents of village Deokali were the soft targets of false implication in this case on account of village partibandi and enmity. ( 53 ) P. W. 3 Ram Jee Singh was admittedly not an eye-witness of occurrence. We had written the First Infomation Report on being dictated by Ram Chandra. According to his evidence, he gathered the First Information from Rajnet, the owner of Baitaka and compound wherein the occurrence had taken place but the account of occurrence he collected from Rajnet was not written in the First Information Report. He asserted that Ram Chandra was suffering from mental disorder but his averment was not convincing as Ram Chandra continued to participate in the trial of the acccused and opposed several applications moved on behalf of the accused as has already been discussed above Ram Jee Singh admitted that he along with Ram Chandra was lodged in jail for about 12 days in a case of dacoity alleged to have been committed in the house of the accused-appellant Jagdish. Obviously thus, this witness was inimical to Jagdish and his family members, namely Uma Shankar, Onkar and others. He expressed his ignorance as to whether he was interrogated or not by the investigating officer during the course of investigation. The fact that the First Information Report on being written by this witness was promptly lodged seems to be doubtful as in the inquest reports Ex. Ka-45, Ka-46 , Ka-47, Ka-48, Ka-49, Ka-51 and Ka-52, the name of Sri Ram Chandra is not mentioned as the informant in the relevant column. Learned Additional Government Advocate submitted in this regard that the Sub-Inspector who prepared the inquest reports recited the name of Ram Chandra as the informant in the first inquest report, Ex. Ka-45, Ka-46 , Ka-47, Ka-48, Ka-49, Ka-51 and Ka-52, the name of Sri Ram Chandra is not mentioned as the informant in the relevant column. Learned Additional Government Advocate submitted in this regard that the Sub-Inspector who prepared the inquest reports recited the name of Ram Chandra as the informant in the first inquest report, Ex. Ka-50 of deceased Shiv Muni Raj Bhar and since all other inquest reports were prepared subsequently, he did not consider it necessary to give out the name of the informant in those inquest reports. However, the fact that the name of Ram Chandra and details of his address being in different ink from the details of the inquest report raises a strong suspicion on the veracity of its genuineness. A perusal of the inquest report, Ex. Ka-50 would reveal even at this stage, i. e. more than 13 years after its preparation that the subject-matter of panchayatnama on the second page is in different ink than the ink used in writing the name of Ram Chandra as also his address. S. I. S. S. Mishra who prepared the inquest reports including that of Shiv Muni having entries of the timings and the name of Ram Chandra in different ink than that of other entries was not examined nor any explanation has been offered for his non-examination. The difference of the ink is a clear pointer to the finding that the First Information Report was not written prior to the inquest reports being prepared. It was perhaps on account of this reason as well that no letter or memo for medical examination of the injured was issued to the injured persons or their caretakers. ( 54 ) S. I. Jagdish Prasad Singh, Station Officer of Gahmar police station visited Bhadora Government Hospital during the night between 29/30-8-1988 but he had not collected the report regarding medical examination or the injury reports of the injured persons. He also did not enquire nor examined any witness who might have brought the injured persons to the hospital. Also, he did not bother to ascertain as to who had carried away the injured persons to the district hospital and he admitted that the fact regarding transfer of injured persons from Bhadora Hospital to District Hospital was not recorded in his case diary. The investigating officer had not interrogated, in this regard, any doctor of Bhadora or District Hospital. Also, he did not bother to ascertain as to who had carried away the injured persons to the district hospital and he admitted that the fact regarding transfer of injured persons from Bhadora Hospital to District Hospital was not recorded in his case diary. The investigating officer had not interrogated, in this regard, any doctor of Bhadora or District Hospital. The omissions on the part of the investigation officer in respect of his having not examined either the injured on the night of occurrence or any doctor or the fact of his having failed to collect injury reports lead to a conclusion that the First Information Report was not promptly lodged. In other words, it was antitimed and the delay was utilised in bridging up the lacuna and framing the accused appellants. ( 55 ) IT was also surprising to note that the investigating officer thorougly inspected the site of occurrence on 29-8-1988 itself and collected empty cartridges but when the other day, higher authorities reached at the site of occurrence, some more empty cartridges were recovered. In this context, learned counsel for the accused- appellants argued that the number of empty cartridges recovered initially did not correspond to the number of injured and deads and it was with a view to bridge up this gap that some more cartridges were shown to have been recovered after arrival of higher police officers at the site of occurrence. As admitted by this witness, only 10 empty and used cartridges were gathered by him on 29-8-1988 and again on 30-8-1988, 10 more used and missed cartridges were recovered by him at the instance of the higher police officers, namely S. P. , D. I. S. and I. G. The recovery of cartridges on two different dates clearly supports the submission made by the learned Counsel for the accused-appellants that the second recovery of cartridges was intelligently made by the investigating officer with a view to fit in the number of the injuries of the injured and dead persons. The investigating officer has not disclosed any reason as to why he was not able to recover the 10 additional used, missed and empty cartridges on the night of occurrence. The investigating officer has not disclosed any reason as to why he was not able to recover the 10 additional used, missed and empty cartridges on the night of occurrence. Further more, he has not shown the places from where the second lot of such cartridges was recovered in the site plan and also he did not consider it apporpriate to prepare a fresh site-plan with a view to indicate the sites of second recovery. ( 56 ) AS a matter of fact, it appears that Saudagar was an outsider in the village. He might be there in the village Deokali for any reason. In case of his being apprehended by the police Constable, outsiders, namely Suresh Bhar, Suresh Pasi and Jagdish Bhar would have been interested to get him released. These three persons might have been accompanied by other associates who did not hail from the village. The defence witnesses, Sudarshan Giri, Indrasani and Hawaldar have corroborated the above position when asserted that the accused on trial were not amongst the miscreants who entered the Ahata of Rajnet and left eight persons dead and six injured. On a comparison of the two sets of witnesses, it would come out that out of four eye-witnesses examined by the prosecution, two, namely Rajnet and Permeshwar did not suffer any injury nor any one of them had lost his kith and kin. The third eye-witness, Constable Babban suffered superficial injuries and, as has been discussed above, the credibility of his injuries would be deemed to have been lost for the simple reason of such injuries being not shown to the investigating officer. His so-called injuries were examined by the Doctor a day after he was interrogated by the investigating officer. No letter to the Chief Medical Officer was ever written by the police officer for examination of his injuries. Further, it would be to ones dismay that though he escaped unhurt in the indiscriminate firing by the miscreants and that too in two instalments, yet he suffered no injury and whatever superficial injuries he had, were sustained by him in the scuffle which eventually resulted in Saudagars arrest. No other prosecution witness has supported that Saudagar offered resistance at the time of his arrest so as to cause injuries to the police Constable. The cumulative effect of these infirmities would certainly have adverse bearing upon the credibility of the testimony. No other prosecution witness has supported that Saudagar offered resistance at the time of his arrest so as to cause injuries to the police Constable. The cumulative effect of these infirmities would certainly have adverse bearing upon the credibility of the testimony. The fourth witness, Manji Singhs injuries too were not serious. Conversely, the important defence witnesses, Indrasani, D. W. 1 and Hawaldar, D. W. 2 were seriously injured. Indrasani lost her grandson, Om Prakash. Sudarshan Giri was the real uncle of the said deceased. Smt. Indrasani, the mother of Sudarshan Giri suffered a gun shot wound in her skull and thus narrowly escaped death. Similarly, Jag Narain alias Hawaldar suffered gun shot injury on his right gluteal which would have been fatal to his life. Hawaldar disclosed that Sudarshan Giri picked up the injured Manji, PW1 outside Ahata and escaped towards temple. It is relevant to note that at the time of occurrence, P. W. 1, Manji Singh was a child of 13-14 years of age. Sudarshan Giri also corroborated that he had taken the injured Manji Singh towards temple. Sudarsan Giri was present at the police station at the time of the report being lodged and according to him, the report was reduced to writing inside the police station and it was brought to Ram Chandra for his signature and at that time, Ram Chandra was sitting on a Chabutara underneath a Neem tree. ( 57 ) IN view of all what has been discussed above, we come to the conclusion that the learned trial Court has not properly appreciated the evidence of the prosecution and defence witnesses nor it dealt with the infirmities and inconsistencies which have been referred to above. ( 58 ) IN the result, a verdict of acquittal has to be recorded. We would, however, add that it is a matter of grave concern and regret that the dreary crimes like the one in hand go unpunished. But old is the saving that not one innocent person should be convicted and hanged even though hundred real culprits go scot free and are acquitted for various reasons. The investigation of this case was faulty as is evident from the analysis held earlier. The senior police officers did not bother to monitor with seriousness the investigation of this case. But old is the saving that not one innocent person should be convicted and hanged even though hundred real culprits go scot free and are acquitted for various reasons. The investigation of this case was faulty as is evident from the analysis held earlier. The senior police officers did not bother to monitor with seriousness the investigation of this case. Except seeking warrants of arrest and attachment of the properties, no sincere efforts seem to have been made to apprehend the real culprits, namely Suresh Bhar, Suresh Harijan, Saudagar and Jagdish Bhar whose involvement was proved by the prosecution as well as defence witnesses. It being a serious incident, the senior police officers were expected to have appointed high ranking officer of police to conduct the investigation. P. W. 10 S. I. Jagdish Singh, the investigating officer was transferred amidst the investigation being conducted by him. The second investigating officer merely completed the formalities and submitted the charge sheet. Much more to round up the aforesaid four culprits was expected of the police but sincere exercises in this direction were definitely lacking. ( 59 ) TO sum up, we lay down as follows :1. The informant Shri Ram Chandra was not examined in the trial Court. The explanation of his being mentally sick was devoid of merit. A presumption can, therefore, be drawn that had he been examined, he would have stated against the prosecution story. 2. There was no enmity between the deceased and accused so as to give a cause to the latter to kill eight villagers. 3. The First Information Report was anti- timed. 4. There was no positive evidence to prove that the appellants were members of a gang of dacoits which was led by Suresh Bhat. 5. Also there was no link between the accused appellants and the four alleged notorious miscreants, namely Suresh Bhar, Suresh Pasi, Saudagar and Jagdish Bhar. 6. The accused Munni Lal and Uma Shanker were not named in the First Information Report. There was no explanation as to why their names were omitted. This does not rule out the possibility of other appellants being roped in on the ground of enmity and village partibandi. It was perhaps for the same reason that Jagdish Yadav and Kag Narain who were acquitted by the trial Court were falsely implicated. 7. There was no explanation as to why their names were omitted. This does not rule out the possibility of other appellants being roped in on the ground of enmity and village partibandi. It was perhaps for the same reason that Jagdish Yadav and Kag Narain who were acquitted by the trial Court were falsely implicated. 7. There was bitter enmity between Rajnet in whose compound the occurrence had taken place and the accused Jagdish, Uma Shankar and Onkar. Also there was enmity between Rajnet and Uma Shankar on the issue of a Patta being executed in favour of Uma Shankars wife. 8. The important witnesses like Dhurfekhi and other injured member of Rajnets family were not examined, perhaps with a view to suppress the ocular account which they would have described against the prosecution story. 9. The evidence of Rajnet, Manjit Singh, Babban and Permeshwar positively lacks credibility. 10. Two seriously injured defence witnessess and PW Sudarshan Giri have stated that the appellants were not amongst the miscreants who came to the rescue of Saudagar. Their evidence is worthy of credit. ( 60 ) IN view of the above discussions and conclusions arrived, we find it difficult to sustain the verdict of conviction and sentence in appeal. The prosecution failed to establish beyond doubt the involvement of the accused appellants in the massacre of eight villagers and also in causing injuries to six persons. Accordingly, the judgment in appeal is annulled and the accused are held not guilty of the offences under Sections 148, 302/149 and 307/149, I. P. C. The reference under Section 366 (1), Cr. P. C. made by the learned Sessions Judge regarding confirmation of the death sentence is hereby rejected and the punishment of death sentence awarded to the appellants is set aside. All the accused who are in jail shall be set at liberty forthwith unless they are required in some other case. ( 61 ) JUDGMENT delivered by me at Allahabad under sub-rule (2) of Rule 1 of Chapter VII of Allahabad High Court Rules. Appeal allowed. .