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N0N-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.677 OF 2006
STATE OF U.P. … APPELLANT
VERSUS
RAJESHWAR & ORS. … RESPONDENTS
J U D GM E N T
Aftab Alam,J.
1. This appeal by special leave, at the instance of the State of Uttar Pradesh
is directed against the judgment and order dated December 21, 2001 passed by
the Allahabad High Court in a batch of criminal appeals. By the impugned
judgment the High Court allowed all the appeals (that had come to it from a
common judgment and order passed by the trial court) and acquitted all the 14
accused (respondents in the present appeal) all of whom were found guilty of
rioting and arson and committing murder of three people by the trial court and 8
of whom were awarded the death penalty while the remaining 6 were given the
punishment of life imprisonment.
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2. The case of the prosecution is based on the oral statement made by one
Brij Pal Singh (PW.1) at Kayamganj police station before the Inspector Incharge of that police station. Brij Pal Singh stated that he was a resident of
Mauza Ballu Baheta, police station Kayamganj and there was old enmity and
litigations between the Harijans and the Brahmins living in his village. On
account of the enmity, the accused, namely, Rajeshwar (accused no.1), Ramveer
(accused no.2), Rajveer (accused no.3), Patiram @ Patanga (accused no.4),
Rajesh @ Tillu (accused no.5), Omveer (accused no.6), Ved Ram (accused
no.7), Ram Sevak (accused no.8), Ram Sanehi (accused no.9), Ram Baran
(accused no.10), Dayashankar (accused no.11), Radhey (accused no.12), Ram
Prakash (accused no.13) and Ramua Jatav (accused no.14) along with four-five
unknown accused (whom he could identify by face), armed with country made
guns, rifles and kattas, came and surrounded their mohalla. The accused
threatened that anybody trying to run away would not be spared. They then set
fire to the informant’s Chhappar and Baithak and the houses of Rambir
Garadia, Nek Ram, Awadhesh Nai and also the house of Gangadeen. When the
informant and the other victims of the assault tried to run away to save their
lives, the accused caught the informant’s son Manju @ Manoj and Ram
Chandra Nai and assaulted them by lathis. They shot Manju near the house of
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Awadhesh Nai and threw him in the house that had been set ablaze by them.
The informant’s brother Amar Singh ran towards Sadhu’s hut to save his life.
But he was shot and killed there. The accused caught and took Ram Chander
Nai towards south in the direction of the house of the sweeper and shot and
killed him there. As a result of the indiscriminate firing made by the accused,
one Bhura of the informant’s village got pellet injuries. The entire village was
shocked. They beat up children and ladies. Huge loss was caused due to the
burning of the houses. Besides the informant’s house, the accused also burnt
the houses of their neighbours, the Nais, and the Telees because they used to sit
with the informant and his people. The informant was somehow able to save his
life and came to the police station to report the offences committed by the
accused. He further said that the occurrence was seen by Jagbir son of Amar
Singh (PW.3), Ashok son of the deceased Ram Chander (PW.2), Smt. Mahadevi
wife of the deceased Ram Chander (not examined), and a number of others who,
though named in the FIR, were not examined as prosecution witnesses. He
concluded by saying that after committing the offences, the accused had fled
away towards Ganga’s Katri.
3. The statement of Brij Pal Singh was reduced to writing and was
incorporated in the formal FIR on the basis of which the police took up
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investigation. On completion of investigation, the police submitted charge-sheet
against all the accused named in the FIR besides three other persons, namely,
Kunwar Pal, Rajender and Ram Lal.
4. The respondents- accused did not deny the occurrence but took the plea
that they had no connection with it. According to the accused, it was a case of
dacoity taking place in the dark hours of the night by unknown culprits and they
were falsely implicated in the case on account of previous enmity.
5. All the accused named in the charge-sheet were put on trial. The 14
accused named in the FIR were charged under sections 148, 302/149, 307/149
and 436/149. The other three accused who were not named in the FIR were
charged for the same substantive offences read with section 120B of the Penal
Code. At the conclusion of the trial, the trial court found and held that the
prosecution was not able to establish charges against the three accused who
were not named in the FIR. It, accordingly, acquitted them. But the rest of the
14 accused (the respondents in this appeal) were held guilty of the offences of
which they were charged and were convicted under sections 148, 302/149,
307/149 and 435/149. Having been found guilty of rioting, arson and
commission of murder, Rajeshwar, Ramveer, Rajveer, Omveer, Ram Sewak,
Daya Shankar, Ram Prakash @ Lojhadi and Radhey were sentenced to death.
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The other six accused were given the punishment of life imprisonment. All the
accused were fined a sum of Rs.10,000/- each with the default sentence of two
years imprisonment.
6. On appeal by the accused, as noted above, the High Court by judgment
and order dated December 21, 2001 set aside the judgment of the trial court and
acquitted all the accused.
7. It is noted above that occurrence and the manner in which the three
persons on the prosecution side were killed are not in dispute. Hence, the only
question that requires consideration by the Court is in regard to the
identification of the respondents as the accused.
8. Before proceeding further, it would be useful to take note of certain
special features of this case. Old and bitter enmity between the two sides is
admitted by the prosecution. As a matter of fact, that is said to be the cause
behind the attack on the members of the prosecution party. From the depositions
of the prosecution witnesses it also comes to light that there have been a number
of killings on both sides.
9. The other relevant fact to be taken note of is that Rajeshwar (accused 1),
Ramveer (accused 2), Rajbir (accused 3), Patiram @ Patanga (accused 4),
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Rajesh @ Tillo (accused 5) are all full brothers. Omveer (accused 6) and
Vedram (accused 7) are full brothers. Ramsevak (accused 8) and Ram Sanehi
(accused 9) are full brothers. Ram Baran (accused 10) and Dayashankar
(accused 11) are full brothers. Ram Prakash @ Lojhadi (accused 12) and
Radhey (accused 17) are full brothers. Further, of the 3 acquitted accused,
Kunwar Pal and Rajendra were full brothers. Thus, there appears to be a
propensity to implicate the members of the same family.
10. Thirdly, though all the accused are named in the FIR and also in the
depositions of the prosecution witnesses, the witnesses appear to be careful not
to attribute any specific role or any specific weapon to any of the accused and
all the fourteen accused are mentioned in an ominous way.
11. These are the facts and circumstances that seem to have weighed with the
High Court in appreciating the prosecution evidence and taking the view that the
prosecution witnesses do not appear natural and do not inspire confidence.
12. The prosecution examined five eye witnesses in support of its case. Brij
Pal Singh (PW.1) is the Informant. He is the father of Manju @ Manoj and
brother of Amar Singh, two of the three persons killed in the occurrence. In the
examination-in-chief he fully supported the prosecution case and named all the
fourteen respondents as the accused. The High Court, however, points out that
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he did not assign any role or attribute any weapon to any of the fourteen
accused. In cross-examination he stated that he saw his son, Manju, being
caught by the accused and being taken towards west. He was taken near the
house of Awadhesh Nai where he was assaulted with a lathi as a result of which
he fell down and then he was shot. He followed his son as he was caught by the
accused and was being taken towards the house of Awadhesh Nai and he saw
him being shot from a distance of about 2-3 steps.
13. The High Court points out that though claiming to be a witness of his son
being shot from such close distance, he evaded the question as to who were the
actual accused who had caught him, assaulted him with lathi or shot at him.
Further, in his statement before the police he had said that as the accused set fire
to his chappar he fled away in a certain direction. From the site plan prepared
by the Investigating Officer it appeared that from the direction in which PW.1
had ran away it wouldn’t be possible to see the spot where Manju was allegedly
shot. PW.1, of course, denied having made any such statement before the
Investigating Officer, but the I.O. confirmed that he had said so in his statement
under section 161 of the Code of Criminal Procedure.
14. Ashok Kumar (PW.2) is the son of Ram Chander, the third person killed
in the occurrence. The High Court has pointed out a number of anomalies in his
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deposition before the court. Further, with reference to his statement made under
section 161 of the Code of Criminal Procedure there appears to be a clear
attempt on his part to improve the prosecution case and to try to implicate more
and more persons as accused.
15. Jagbir (PW.3) is the nephew of Brij Pal Singh (PW.1) and son of the
deceased Amar Singh. In his examination-in-chief he supported the prosecution
case and named all the accused without assigning to any one of them any
specific role. The High Court has pointed out that his statements made in the
cross- examination are equally riddled with inconsistencies and also show an
effort to improve the prosecution case from stage to stage.
16. Awadhesh (PW.4) was not named as a witness in the FIR. He also
appears to support the prosecution case but on a closer scrutiny of his
deposition, the High Court has pointed out a number of discrepancies.
17. Bhurey (PW.5) is one of the injured witnesses. He has named the
respondents as the accused but at the same time he said that some of the
miscreants were covering their faces. He was unable to disclose how and at
whose hands he himself received the injuries.
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18. The High Court has examined the prosecution witnesses in considerable
detail and has observed that in the background of the long and very hostile
enmity between the two sides and the witnesses being highly interested, it
would not be safe to rest the respondents’ conviction on their evidences.
19. On going through the judgments of the trial court and the High Court and
the depositions of the prosecution witnesses, we are unable to hold that the view
taken by the High Court is unreasonable or implausible. We are satisfied that in
the overall facts and circumstances of the case, no interference is warranted with
the judgment of the High Court in exercise of the powers under Article 136 of
the Constitution of India. The appeal is, accordingly, dismissed.
…………………………...J.
(Aftab Alam)
…………………………...J.
(R.M. Lodha)
New Delhi,
April 16, 2013.
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