Ram Das and Others vs State of U.P.

B.K. Sharma, J.—Capital Case (Crl. Appeal) No. 480 of 1996 has been preferred by the accusedappellants Ram Das Krishna Pal and Narendra Pal alias Bhurey against the judgment and order dated 1431996 by Sri Surendra Kumar, the then IXth Additional Sessions Judge, Pilibhit in S.T. No. 116 of 1992, Slate v. Ram Das and others, and connected S.T No. 115 of 1992, whereby he convicted them of the offence under Section 302, I.P.C. and sentenced each one of them to death and also to pay a fine of Rs. 2,000/each and in default of payment of fine to further R.I. for 6 months each and also directed that the fine amount when realised, be given to Mathura Prasad informant as compensation. The learned Sessions Judge made reference under Section 366, Cr. P.C. for confirmation of sentence of death awarded by him in this Sessions Trial to the above accused persons. The Capital case (Crl. Appeal) and the Reference have been heard together and are being disposed of by this judgment and order.

The learned Sessions Judge had charged Ram Das, Krishna Pal, Vijai Singh

and Narendra Pal alias Bhurey with the offence under Sections 302 and 302/34, I.P.C. for the murder of Smt. Shyam Kunwar, Rameshwar Dayal and Natthu Lal and also for the offence under Section 307/34, I.P.C. for firing at Naresh Kumar and Anokhey Lal. Vijai Singh accused was also tried at the trial for the offence under Section 25 of the Arms Act for having been found in possession of the country made ''Tamancha'' with two live cartridges without licence. The following pedigree will help to appreciate the facts of this case:

(Accused)

All the deceased and accused persons were resident of village Narainpur, PS. Barkhera, District Piiibhit.

It is a triple murder case. Apart from Smt. Shyam Kunwar wife of Rameshwar Dayal and Rameshwar Dayal himself, one Natthu Lal who was stranger to the pedigree aforementioned also was murdered in this case. The house of Rameshwar Dayal was North faced. To the West of the house of Ramesnwar Dayal deceased, there was the house of Ram Das accusedappellant and to the East of the house of deceased was a Baithak and Chhapper of Ram Das accused appellant. To the East of this was a Rasta running from North to South (in short Eastern Rasta). Adjoining this Rasta there was a Nala (water channel). To the east of this Rasta was the house of Manohar Lai. To the south of the house of Ram Das accused, Rameshwar Dayal deceased and the Baithak of Ram Das accused appellant there was a Rasta running from West to East (in short southern Rasta). In the east it joined the eastern Rasta situated to the East oi Baithak and Chapper of Ram Das accusedappellant. There was a other Rasta situated to the North of the house of Ram Das accusedappellant which came from West to East (in short WestEast Rasta) and it joined the Rasta which started from the northern door of the house of Rameshwar Dayal deceased and went towards NorthEast (in short Western Rasta) and joined the aforesaid Eastern Rasta and then went further towards North. There was village Abadi to the North of the house of Ram Das (across the WestEast Rasta) and towards West of the Western Rasta, consisting of the houses of Angney Lai, Mool Chand and also Kuchcha house property of Ram Das accusedappellant. To the East of the junction of the Western Rasta and the Eastern Rasta, there was a large Talab. Mathura Prasad, the informant in this Case, is resident of village Jyorah Kalyanpur, P.S. Barkhera. Ram Swaroop aforesaid was bachelor and Rameshwar Dayal deceased and Smt. Shyam Kunwar deceased were issueless. Informant Mathura Prasad was examined as P. W. 1 at the trial. He was brother of Syam Kunwar deceased who was wife of Rameshwar Dayal deceased. Rameshwar Dayal deceased owned 25 bigha of agricultural land and grove.

The occurrence related to 2741992. The prosecution story was that one day prior to it i.e. on 2641992 at about 8.00 p.m. Ram Das, Narendra Pal alias Bhurey and Krishna Pal accusedappellants and Vijai Singh accused came to the house of Rameshwar Dayal deceased and told him that he had become very weak and was also issueless and urged him to transfer his land in their name and made an undertaking to maintain him, that Rameshwar Dayal deceased declined to do so, whereupon, these persons went back annoyed threatening that they will teach him a lesson for not getting the land mutated in their names. The prosecution story further was that on the date of occurrence at about 6.15 a.m., informant Mathura Prasad was sitting at a cot at the house of Rameshwar Dayal, deceased and Smt. Shyam Kunwar deceased was also present at the house, that at that time, Krishna Pal, Ram Das and Narendra Pal, accusedappellants and Vijai Singh accused entered the house. That out of them Ram Das and Krishna Pal accused appellants were carrying Banka and Narendra Pal accused appellant and Vijai Singh accused were carrying Tamanchas, that all the 4 culprits hurled abuses and asked as to where Rameshwar Dayal deceased was and when Smt. Shyam Kunwar deceased told them that he (Rameshwar Dayal deceased) had gone to ease himself, Krishna Pal accusedappellant picked up the licenced single barrel gun of Rameshwar Dayal deceased lying on the cot, that Smt. Shyam Kunwar deceased tried to snatch the gun in the course of which, she reached at the door of the house, that at that time Krishna Pal accusedappellant fired at her (Smt. Shyam Kunwar) with that gun from a close distance which fire struck in her abdomen and Ram Das accusedappellant attacked at her with Banka due to which she fell down and died, that on the alarm raised by her and on hearing the sound of the fire, Natthu Lal deceased, Naresh Kumar P. W. 2 and Anokhey Lal P. W. 3 and others came, that in the meantime, Rameshwar Dayal deceased was coming from the side of the Talab after easing himself, that as soon as Rameshwar Dayal deceased came on this Rasta between the house of Ram Das and the Talab, all the 3 accusedappellants and the 4th accused Vijai Singh surrounded Rameshwar Dayal deceased and attacked him with Banka, Gun and Tamancha, that the gun was used for assaulting from the side of the Butt, that Narendra Pal accusedappellant fired at Rameshwar Dayal deceased but the fire did not strike him, that due to the injuries Rameshwar Dayal deceased fell down at the spot and died, that Krishnapal accusedappellant had broken the gun of Rameshwar Dayal deceased and thrown it into his house (Rameshwar Dayal deceased''s) that on the challenge being given by the witnesses, Narendra Pal accusedappellant fired towards them which strack Natthu Lal deceased who consequently fell to the ground, that Ram Das accusedappellant then assaulted Natthu Lal deceased, with Banka using it like a blunt weapon, that Natthu Lal deceased also died at the spot that accusedappellant Narendra Pal fired one more shot towards the witnesses but it did not strike any one of them that after committing the triple murder, the accusedappellants and Vijai Singh accused gave threat that if any person of the village came forward, he also will be shot dead and that whoever will go to lodge the report, will also meet the same fate and that the person who will go to give evidence against them will also be dealt with in the same manner. After departure of the accused appellants and the accused Vijai Singh, informant Mathura Piasad went to the police station and lodged a written F.I.R. there at 8.00 a.m. at P.S. Berkhera District Pilibhit on whose basis a check report was prepared and the case was registered against all the 4 accused nominated therein.

The dead body of Smt. Shyam Kunwar deceased was found just towards the North of the door of Rameshwar Dayal deceased. The dead body of Rameshwar Dayal deceased was found on the junction of the western Rasta coming from the door of Rameshwar Dayal deceased''s house and the eastern rasta, situated between the Talab of Gram Sabha towards East and the Kachcha house of Ram Das accusedappellant on the West. The dead body of Natthu Lal deceased was found on the Eastern Rasta in its Southern portion lying between the North East corner of the Chhapper of the Baithak of Ram Das accusedappellant and the North West corner of the house of Manohar Lal situated to the East of this Rasta.

The inquest proceedings were taken by S.I. Jasbir Singh who was S.O. of the police station Berkhera at that time. He also took into custody the licensed S.B.B.L. Gun of Rameshwar Dayal deceased from his house. During the investigation Ram Das, and Krishna Pal accusedappellants were arrested on 251992 from near the railway crossing between Jyohra Kalyanpur and Imaliya and Ram Das having offered to take out weapon by which the murder of all the 3 deceased had been committed from the Jhund bordering Dhankan Lai''s field where it has been kept concealed, whereupon, police party accompanied with Ram Das accusedappellant went to that place where Ram Das accusedappellant took out a Banka from the Jhund standing near the field of Dhakan Lal at about 7.50 a.m. which was sealed and recovery memo was prepared about it.

During investigation, Vijai Singh accused was arrested by the police party from village Patrasiya on the Rasta going to Dadiya Lachchipur on 351992 from near Pulliya alongwith 12 bore country made Tamancha and one live cartridge for which he had no licence. The necessary formalities were done. The Banka was found by the Forensic Laboratory to be stained with human blood.

The post mortem on the deadbody of Smt. Shyam Kunwar was performed by doctor A.K. Sharma, Senior Radiologist, District Hospital, Pilibhit on 2841992 at 2.00 p.m. His observations were as follows:

�Probable Age: 48 years.

Probable time since death. About one and half day. Average built. Rigor mortis absent both upper and lower limbs, decomposition started greenish discoloration present on both iliac fossa. Abdomen distended, eyes and mouth half open.

Antemortem Injuries.

(1) One gun shot wound of entry, 1 cm x 1.5 cm x abdominal cavity deep 10 cm from umbilicus at 7.00 O''clock position, Blackening present, margin Inverted direction backward and upwards.

(2) One gun shot wound of entry 1 cm x 1.5 cm over the middle of upper lip blackening present margins. Lacerated and inverted communicating with the wounds of entry (a) 1 cm x 5 cm on the right side of forehead just above the middle of right eye brow brain matter coming out (b) Exit 1 cm x 4 cm on the right side of forehead outside injury No. b. (c) Exit 2 cm x 5 cm on the left side of forehead over the inner end of left eye brow. Maxilla, nasal bone and perietal bone fractured.

(3) Lacerated wound 8 cm x 1 cm x bone deep on the top of head both perietal bones fractured.

Kha Internal Examination

(1) Scalp, SkullAs noted, both parietal bones, fractured, nasal and maxillary bones are fractured.

(2) MembranesLacerated.

(3) BrainLacerated.

(4) BaseFractured.

3 (Abdomen)

(2) PeritoneumLacerated.

(3) CavityAbout one litre blood fluid present in the periteneal cavity.

(6) Stomach and its contents Empty.

(7) Small Intestines and its contents Gases present Lacerated.

(8) Large Intestines and its contents Lacerated, faecal matter and gases present.

(9) Gall bladderLacerated 600 gms G B Full NAD

(10) Urinary bladder Half full with urineNAD

Cause of death: Shock and haemorrhage due to antemortem injuries.�

(11) Pellets removed from the river and peritoneal cavity and one Tikli piece and sealed in a match box.�

Post mortem on the deadbody of Natthu Lai deceased was performed by the same doctor on 2841992 at 3.30 p.m. The following observations were made by the doctor:

�Probable Age 45 years.

Probab''e time since death : About one and half day.

External Examination.

Average built rigor mortis absent both upper and lower limbs, Decomposition started, Abdomen distended, greenish, discolouration present over iliac fossa eyes and mouth half open.

Antemortem Injuries.

(1) Incised wound 1.5 cm x 1 cm x bone deep 2 cm behind the left ear left mastoid fractured, Haematoma present.

(2) Lacerated wound 5 cm x 1 cm x bone deep on the head. 10 cm above the left ear.

(3) Lacerated wound 7 cm x 1 cm x bone deep 1 cm behind injury No. 2. Left Perietal bone fractured.

(4) One gun shot wound of entry 2 cm x 2 cm x abdominal cavity deep on the right side of abdomen 13 cm from umbilicus at 8 O''clock position. Blackening present, margin lacerated and inverted a loops of Intestine coming out.

KhaInternal Examination.

(1) Scalp, Skull

As noted left mastoid and perie''al bones. Fractured. �

(2) BrainHaematoma present.

(Ja) Large vessels : Right, reval artery, rental vaine Lacerated.

3 Abdomen

(1) WallsLacerated.

(2) Peritoneum Lacerated.

(3) Cavity About one litre blood fluid present in the periteneal cavity.

(6) Stomach and its contents Empty NAD.

(7) Small Intestines and its contents : Lacerated. Gases present, Lacerated.

(8) Large Intestine and its contents Lacerated, Faecal matter and gases present.

(9) Gall bladder : 900 gm NAD GR Full NAD.

(12) Kidneys: Right kidneys lacerated left kidney NAD Rt. bothkideys 180 gms.

(13) Urinary bladder 1/2 full with urine NAD

Cause of death: Shock and haemorrhage due toantemortem injuries.�

Post mortem on the dead body of deceased Rameshwar Dayal was performed by the same doctor on 2841997 at 2.30 p.m. and the observations of the doctor are as follows:

�Probable Age: 55 years.

Probable time since death : About one and half day.

Ka External Examination.

�Average built, rigor mortis absent both upper and lower limbs, Decomposition started. Abdomen distended, greenish, discoloration present over eHac Fossa, eyes and mouth half open.

Antemortem Injuries.

(1) Incised wound 16cmx3cmxboneand muscle deep on the right side of neck horizontally 2 cm below the right ear.

(2) Lacerated wound 2 cm x 1 cm x bone deep 1 cm behind the right ear.

(3) Incised wound 3 cm. long Pinna of right ear out.

(4) I.W. 5 cm x 1 cm x bone deep on the head 10 cm above the right eye brow. Right perietal fractured.

(5) Abrasion 4 cm x 2 cm on the left side of forehead 5 cm above the left eye brow.

(6) I. W 3 cm x 1 cm x bone deep on the head 10 cm behind the right ear, occipital bone fractured.

(7) Contusion 6 cm;: 2 cm on the back of Right hip.

(6) Bones and Joints. As noted.

(7) Generation: NAD

(8) Additional remarks: Nil.

Head and Neck

(1) Scalp, skull; As noted.

(2) Membranes : Congested, Haemotoma present.

(3) Brain : Hamatoma present under injury 4 and 6.

(5) Vertebrae C2vertebra fractured.

(Ja) Largt Vessels : Right carotid arteny andJugularveincut.

Abdomen

(7) Small Intestine and its contents: Gases present NAD.

(8) Large Intestine and its contents: Faecal matter and gases present. NAD.

(13) Urinary Bladder Full with urine. NAD.

Cause of Death : Shock and Haemorrhage, due to antemortem injuries.�

At the trial, the ocular testimony was given by Mathura Prasad informant P.W. 1, Naresh Kumar P.W. 2 and Anokhey Lal P.W. 3. All the 4 accused in the case denied the prosecution case and claimed that the occurrence had taken place in the darkness of night and that they were falsely implicated in the case. Vijai Singh accused gave the evidence of alibi. Shiv Prasad Mishra, a teacher of the Government Inter College Lakhanpur appeared as D,W. 1. He claimed that he was centre incharge in Chhatrapati Shivaji Uchchater Madhyamik Vidyalaya, Jogither on 2741992, that in those days the examinations of the U.P. Board were going on, that on 2741992 in the afternoon he had given a relieving certificate to Vijai Singh accused, that at 6.30 a.m. envelops of Board papers were opened in the presence of all the invigilators and that Vijai Singh accused was also present at that time being one of the invigilators on duty on the centre.

At the trial, the learned Sessions Judge accepted the prosecution story about triple murder. He also held that the murder was committed for the motive of grabbing the property of Rameshwar Dayal, deceased. He, however, gave benefit of doubt to Vijai Singh accused in view of the evidence of alibi furnished at the trial. He also came to the conclusion that the charge under Section 307/341.P.C. was not made out against any of the accusedappellants. He discarded the evidence of recovery of the illicit pistal from Vijai Singh accused. He consequently, convicted the accusedappellants Ram Das, Krishna Pal and Narendra Pal alias Bhurey of the offence under Section 302, I.P.C. and sentenced them as aforesaid. He however, acquitted them of the offence under Section 307/34, I.P.C. and acquitted Vijay Singh accused of all the offences for which he was tried. He made a reference to this Court under Section 366, Cr. PC. for confirmation of sentence of death awarded by him.

Feeling aggrieved by their conviction and sentence as aforesaid, Ram Das, Krishna Pal and Narendra Pal alias Bhurey accused have preferred the present appeal. The State has not preferred any appeal against the acquittal of Vijay Singh accused at the trial so that his acquittal has become final between the parties.

It is established in this case beyond every shadow of doubt that Smt. Shyam Kunwar, Rameshwar Dayal and Natthu were murdered. It is also not disputed by the defence. In respect of Smt. Shyam Kunwar and Rameshwar Dayal accused, there is no controversy that they were murdered at the place where their respective dead bodies were found by the investigating officer at the spot. In the case of Natthu Lal accusedappellant, Anokhey Lal P.W. 3 had claimed that Natthu Lal deceased had limped forward to some distance before dying. However, there were no corresponding marks recorded and the other witnesses also did not claim that this deceased had traversed some distance after receiving fire arm injuries. Apparently, all the 3 deceased had died at the respective places where they had received their respective injuries. It is also not in controversy that the death of all the three deceased took place in the same transaction. We have already noted that while Rameshwar Dayal deceased and Smt. Shyam Kunwar deceased were husband and wife, Natthu deceased was a total stranger to the family. He also did not have his house in the immediate vicinity of the house of Rameshwar Dayal and Smt. Shyam Kunwar deceased or the accused persons of this case. It is also apparent that in the transaction, the assailants were at least three (3) in number because there were injuries caused by fire arm, sharp edged weapon and blunt weapon.

13, It is also apparent that the fire arm injuries of Smt. Shyam Kunwar deceased and Natthu Lal deceased were caused from short distance. There was blackening present on the fire arm wounds of entry.

Now the ocular testimony in this case has been given by Mathura Prasad informant P. W. 1 who was the real brother of Smt. Shyam Kunwar deceased. Anokhey Lal P.W. 3 is the real brother of Natthu Lal deceased. Mathura Prasad P.W. 1 has testified that he had come as a guest to the house of Rameshwar Dayal deceased and Smt. Shyam Kunwar deceased and that at 8 p.m. all the 4 accused Ram Das, Narendra alias Bhurey, Viiai Singh and Krishna Pal came and called upon him to get all his land mutated in their name and undertook to maintain him but he declined, whereupon, all these 4 accused run away threatening to teach a lesson to him, that on the next morning (the date of occurrence) at 6.15 a.m., he was sitting at a cot in the house of Rameshwar Dayal deceased and Smt. Shyam Kunwar deceased was also present at the house, that all the 4 accused came there, Ram Das and Krishna Pal accusedappellants were armed with Banka, Narendra Pal and Vijay Singh accused were armed with Tamancha, that on Smt. Shyam Kunwar saying that Rameshwar Dayal deceased has gone to ease himself, Krishna Pal accusedappellant picked the licenced gun of Rameshwar Dayal deceased which was lying on the cot, that Smt. Shyam Kunwar tried to snatch the gun and in the grapling she reached upto the door of the house when Krishna Pal accused appellant fired at her with the said gun from a close quarter which struck in her abdomen, that Ram Das accusedappellant attacked at her with Banka, whereupon she fell down and died, that on the raising of alarm by him (the informant) Natthu Lal, Naresh Kumar, Anokhey Lal and others came there, that in the meantime, Rameshwar Dayal deceased who was coming from the side of Talab after easing himself came in between the house of Ram Charan and the Talab, that at that time all the 4 accused surrounded Rameshwar Dayal deceased and started assaulting him with their weapons, that in the attack, the gun was held by its barrel and assault was made with its butt and the fire made by Narendra Pal accused did not hit Rameshwar Dayal, that due to the assault Rameshwar Dayal deceased fell down at the spot and died, that Krishna Pal accused had broken and thrown the gun of Rameshwar Dayal in his house (i.e. in the house of Rameshwar Dayal deceased) that on the challenge being given by the witnesses Narendra Pal accused fired towards the witnesses which struck Natthu Lal deceased and Natthu Lal deceased fell down. Ram Das accused assaulted him with Banka using it as a blunt weapon. He also claimed that the assailants had offered threats to shoot down any one who came forward or who would give evidence against them.

Naresh Kumar P.W. 2 claimed that on the date of occurrence at about 6.15 a.m., he and Anokhey Lal P.W. 3 coming from Gali, that they were going to ease themselves, on hearing Shore and sound of fire arm shot, reached near the Baithak of Ram Das accusedappellant and that Natthu deceased also came from the South, that Krishna Pal accusedappellant was carrying a single barrel gun, Vijay Singh and Narendra alias Bhura were carrying Tamancka and Ram Das accusedappellant was carrying Banka, that Krishna Pal accusedappellant held the gun by its barrel and assaulted with the butt on the head of Rameshwar Dayal deceased, that on a challenge being given by them, Vijai Singh and Narendra Pal accusedappellant fired 3 shots towards them with Tamancha which fire struck Natthu deceased who fell down, whereupon, Ram Das accusedappellant attacked with Banka at Rameshwar Dayal deceased and Natthu deceased. He further testified that he and Anokhey Lal P.W. stood in Aar and started making Shore. He further claimed that the gun of Rameshwar Dayal deceased which was with Krishna Pal accusedappellant was broken by him by striking it at the ground and thrown in the house of Rameshwar Dayal deceased. He also claimed that all the accused persons run away offering threats. He further claimed that Smt. Shyam Kunwar had already been dead before his reaching at the scene of occurrence.

Anokhey Lal, the third eyewitness of the occurrence claimed that on that date at about 6.30 a.m., he was going from his house to ease himself, that when he reached before the Talab, he heard the sound of gun fire, whereupon, he started going towards the house of Vijai, Narendra and Ram Das accused persons and reached at the Khandhar of Mool Chand where Naresh P.W. was present, that from there he saw that Rameshwar Dayal deceased was being assaulted by Ram Das accusedappellant Vijay accused, Narendra Pal accusedappellant and Krishna Pal accusedappellant that Ram Das accusedappellant was carrying Banka, Krishna Pal accusedappellant was carrying gun Vijay Singh accused was carrying Lathi and Narendra Pal accusedappellant was carrying Tamancha, that they were assaulting Rameshwar Dayal deceased with their respective weapons, that the gun was being held by its barrel at the time of assault. He further testified that his brother Natthu Lal deceased was coming from South thereupon, he challenged the accused persons, that on it Narendra Pal alias Bhurey accused fired with Tamancha at Natthu Lal deceased which struck the deceased. He further claimed that Ram Das accused had assaulted Natthu Lal deceased with Banka. He also testified that before his reaching the spot, Smt. Shyam Kunwar had already died. He further testified that Krishna Pal accusedappellant was carrying the gun of Rameshwar Dayal deceased which he had broken and thrown inside his (Rameshwar Dayal''s) house. He also claimed that Krishna Pal accusedappellant had said that whoever will come forward will be done to death.

Before I proceed to discuss the testimony of the eyewitnesses, we may point out that in assessing the value of the evidence of the eye witnesses, there are two principal considerations; (1) Whether in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situation as would make it possible for them to witness the facts deposed to by them; (2) Whether there is anything inherently improbable or unreliable in their evidence.

In respect of both the considerations circumstances either elicited from these witnesses themselves, or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statement will have a bearing upon the value which a Court may attach to their evidence.

Out of the eyewitnesses, Mathura Prasad P.W. 1 is a relation of Rameshwar Dayal deceased and Smt. Shyam Kunwar deceased being brother of Smt. Shyam Kunwar, Smt. Shyam Kunwar deceased was wife of Rameshwar Dayal deceased. It is true that it is normally expected that related witnesses would not leave out the real culprits and rope in innocent persons and so their evidence cannot be brushed aside on the ground of their relationship and sometimes their testimony may rather be more valuable by reason of their relationship. However, in order to accept the testimony of related witnesses as being of value, it is necessary to be satisfied about their presence at the time and place of occurrence so as to enable them to see the occurrence and to identify the culprits. About the occurrence which took place at a house, the inmates of the house would be the most natural witnesses whose presence there cannot be generally doubted and the evidence of such a related witness would normally carry great weight. Now Mathura Prasad P.W. 1 though a relation of the two deceased Rameshwar Dayal and Smt. Shyam Kunwar was not an inhabitant of the house. He was resident of a different village Johra Kalyanpur, while the occurrence had taken place in village Narainpur where Rameshwar Dayal and Smt. Shyam Kunwar lived in their house. Being a relation, Mathura Prasad informant could have visited these two deceased. If he set up a particular ceremonial occasion or necessity for visiting the relation, it will be a matter of scrutiny and if on scrutiny, his claim was found to be acceptable, it could be acted upon. If, without any specific occasion or urgent necessity being set up, he made his claim of visiting the house the claim will have to be subjected to an even greater scrutiny before being accepted. In the present case, he has not set up any ceremonial occasion such as marriage, Mundan or other religious rites being performed at the house of the relations (Smt. Shyam Kunwar and Rameshwar Dayal deceased), nor has he set up any particular necessity of visiting them. It is no doubt, true that it is stated by this witness in his crossexamination available in para 10 at page 49 of the paper book that on 25th April, i.e. two days prior to the date of occurrence Rameshwar Dayal deceased had executed a Will in his favour (in favour of this witness) and in favour of brother of this witness i.e. (in favour of this witness and his brother). It is significant that in his examinationinchief, this witness nowhere made any mention of the execution of any Will by Rameshwar Dayal deceased in favour ofhimself and his brother, what to say of claiming that he was called by Rameshwar Dayal deceased to his house as he wanted to execute a Will in his favour and in favour of his brother. The defence suggestion to him in crossexamination was he got a fictitious Will executed. As matter of fact, Naresh Kumar P.W. 2 had stated in the crossexamination available at page 54 of the paper book that he had signed the Will which the deceased has executed in favour of Mathura Prasad, a school and a third person at Bishalpur Tehsil at the Takhta of Kaatib and categorically stated that at that time Mathura Prasad informant was not present. So the prosecution cannot claim that Mathura Prasad informant was visiting the house of Rameshwar Dayal deceased in connection with that Will. It is also to be noted that Mathura Prasad informant has nowhere stated in his testimony as to when he had come to the house of the deceased Rameshwar Dayd prior to the occurrence. He has also not stated any particular work for which he has visited his sister and her husband. He only said that he had come there as a guest. He no doubt gave evidence about the visit by Ram Das, Narendra alias Bhurey, Vijai Singh and Krishna Pal accused persons to the house of Rameshwar Dayal deceased at 8 p.m. on the evening prior to the date of occurrence for persuading Rameshwar Dayal deceased to get his land mutated in their name assuring that they would maintain him and claimed that Rameshwar Dayal deceased declined to do so, whereupon, they went away angry giving threats. While narrating this incident, he kept a careful silence about the1 Will having been executed by Rameshwar Dayal deceased a day earlier (i.e. 2 days before the murder) in his favour and infavour of certain other persons. He did not say that the accused persons mentioned about the Will aforesaid or that he (the informant) himself made a mention of the Will having been executed a day earlier even though he had certainly stakes in the matter. Nobody will believe his assertion in his cross examination available in para 10 of his evidence at page 49 of the paper book that he did not wish to take the land of his sister (Smt. Shyam Kunwar deceased) and sister''s husband (Rameshwar Dayal deceased). While the Will could have prompted the accused persons to approach Rameshwar Dayal deceased, it was equally probable for the informant to set up a motive for the accused persons to commit the murder of Rameshwar Dayal deceased.

We have noted the pedigree connecting Rameshwar Dayal deceased and Smt. Shyam Kunwar deceased with the accused persons. We have also noted that Rameshwar Dayal deceased and Smt. Shyam Kunwar deceased were issueless and so in the ordinary course, they would be the natural heirs of Rameshwar Dayal deceased, Ram Das accused appellant as a brother the remaining accused as his nephews. The Will said to have been executed by Rameshwar Dayal deceased two days prior to the date of occurrence, would have changed the course of devolution of the properties'' of Rameshwar Dayal deceased on his death, that being so, there is substance in the contention of the learned counsel for the accusedappellant that in view of the said Will, Mathura Prasad informant would be a rival claimant of the properties of Rameshwar Dayal deceased and that consequently, if the accused persons or any or them were the assailants and Mathura Prasad informant P.W. 1 was present at the time of the occurrence, these assailants would not have spared him while it is a stark fact in this case that Mathura Prasad informant did not receive any injuries whatsoever in the occurrence. It has also been argued by the learned defence counsel that if as per prosecution story, the assailants had even shot dead, a stranger to the family namely Natthu Lal deceased only because he was an eyewitness, they would not leave him (Mathura Prasad informant) untouched. He (the informant) claims that he had tried to save his real sister Smt. Shyam Kunwar deceased at the time of occurrence, but surprisingly enough, this did not result in any inj uries on his body. He claims to have climbed the roof of the house of Rameshwar Dayal deceased and kept on raising alarm from their but he has himself stated in paraOof this evidence that no fire was shot towards him when he was raising alarm from the roof. Mathura Prasad informant was essentially a chance witness. These circumstances tend to cast a shadow of doubt over his claim that he was present at the house of Rameshwar Dayal deceased at the time of occurrence.

The testimony of Mathura Prasad informant is that when the assailants came to the house of Rameshwar Dayal deceased at 6.15 a.m. on the date of occurrence and asked as to where Rameshwar Dayal deceased was, Smt. Shyam Kunwar replied that he has gone to ease himself. He has further testified after narrating the arrival of witnesses to the scene of occurrence on his alarm that Rameshwar Dayal deceased was coming from the side of Talab (pond) after easing himself. However, the post mortem in respect of Rameshwar Dayal deceased showed that his bladder was full with urine.

In the ordinary course, one who goes to ease himself passes urine at the time of easing and so the fact that the urinary bladder of Rameshwar Dayal deceased was full, tends to show that the story of his having gone to ease himself and his returning from Talab after easing himself was not true. Another circumstance leading to the same conclusion is that the I.O. did not find any Lota (water pot) anywhere near the body of Rameshwar Dayal deceased at the spot when he made the spot inspection on the date of occurrence. In the ordinary course, the villagers go to the jungle for easing themselves in the morning carrying water in Lota for use.

The medical evidence including the evidence of the Ballistic experts are the touch stone for testing the testimony of Mathura Prasad informant P.W. 1 in the present case. His claim in the F.I.R. and his categorical testimony at the trial is that Krishna Pal picked up the licenced gun of Rameshwar Dayal deceased and fired with it at Smt. Shyam Kunwar deceased from close range which strick in her abdomen and Ram Das accusedappellant assaulted her by Banka due to which she fell down there and died. There is absolutely no allegation that anyone else fired at Smt. Shyam Kunwar in the transaction. It is undisputed that the licenced gun of Rameshwar Dayal deceased was a single barrel gun so there was no occasion for any of the eyewitnesses to make a mistake about the number of fires made from it. If the gun was reloaded and then fired and then reloaded and again fired, the same could not escape notice of an eyewitness who claimed to be present in the immediate vicinity of the assailants of this victim. His testimony at the trial is categorical that only one shot was fired at Smt. Shyam Kunwar deceased and that fire struck in her abdomen. We have noted earlier the ante mortem injuries found on the body Of Smt. Shyam Kunwar deceased in the post mortem.

.The ante mortem injury No. 1 is a fire arm wound of entry in the abdomen with blackening present and its direction was backwards and upwards. Ante mortem injury No. 2 was a wound of entry over the middle of upper lip with blackening present and the post mortem report also recorded a wound of entry (a) on the right side of forehead just upon the middle of right eyebrow besides two exit wounds one on right side of forehead and another on left side of forehead recorded as 2(b) and 2(c) in it. There was fracture of Maxilla, Nasal bone and parietal bone. Besides the above injuries, the post mortem also recorded the presence of a lacerated wound 8 cm x 1 cm x bone deep on the top of head with both perietal bones fractured (antemorteminjuryNo.3).

The contention of the learned counsel for the accused appellant was that the ante mortem injuries recorded under item No. 2 could not have been caused by the same shot which caused ante mortem injuries recorded at No. 1 and this was enough to belie the prosecution story according to which only one gun shot was fired at Smt. Shyam Kunwar deceased.

To elucidate the matter and to assist the Court the ballistic expert of the Forensic Laboratory U.P. Government Lucknow was summoned and report of the Ballistic expert was also called for Sri O.R Mani Tripathi Ballistic Expert of the Laboratory filed his report before this Court and also entered in the witness box before this Court. The opinion of the expert was that the ante mortem injury described in the post mortem report at Sl. No. 3 as a lacerated wound was a fire arm injury whose exit points were the wounds shown in the post mortem report as 2(a), (b) and (c) and that there was no possibility of 2(a), (b) ad (c) being exit points of ante mortem injury No. 2 as their directions did not tally with each other. His further opinion was that all the 3 ante mortem injuries found on the body of Smt. Shyam Kunwar were caused as a result of 3 separate fires. He was specifically asked if all these injuries could be caused if the gun got fired in a scuffle between two persons and his categorical opinion was that the 3 injuries could not be caused by a single fire but could come only by at least 3 fires. In view of this conflict between the medical (and Ballistic) evidence on the one hand and the ocular testimony given by Mathura Prasad P.W. 1 on the other hand, the ocular tes timony of Mathura Prasad P.W. 1 about this murder become highly doubtful.

Another aspect which also follows from the evidence of the Ballistic expert is that all the ante mortem injuries of Smt. Shyam Kunwar having been found to be firearm injuries, the ocular evidence given by Mathura Prasad informant P.W. 1 at that trial that Ram Das accusedappellant assaulted her with Banka due to which she fell down and died, get belied. These circumstances further go to make the presence of Mathura Prasad informant P.W. 1 at the scene of occurrence highly doubtful.

Mathura Prasad informant testified that the accused persons surrounded Rameshwar Dayal deceased and started assaulting him with Banka, Gun and Tamancha. In the F.I.R. also he had claimed that they had assaulted Rameshwar Dayal deceased with Banka, Tamancha and Gun. The post mortem report did not reveal the presence of any fire arm injury whatsoever on the body of Rameshwar Dayal deceased. Perhaps to explain it, Mathura Prasad informant testified at the trial that the gun was not used in its normal way but it has held by its barrel and its Butt was used for making assault.

About Narendra Pal accusedappellant, the informant claimed at the trial that he did fire a shot but it did not strike Rameshwar Dayal deceased. So this is another explanation to explain the absence of fire arm injury on the body of Rameshwar Dayal. If Rameshwar Dayal deceased was being done to death in consequence of his refusal to get his agricultural land mutated in favour of the accusedappellants and the accused Vijay Singh, he would not have been spared fire arm shots in vital parts of his body and instead would not have been assaulted with the Butt of his gun. The deceased being close at hand, it does not also stand to reason that a fire will be made on him by Narendra Pal accusedappellant with a pistol and it would not hit his body at all.

Coming to the 3rd deceased Natthu Lal. Mathura Prasad informant testified that on the challenge being given by the witnesses present at the spot, Narendraoaccusedappellant fired towards witnesses'' which struck Natthu Lal deceased and when Natthu Lal deceased fell down, Ram Das assaulted Nathu Lai deceased with his Banka. The post mor tern report relating to Natthu Lal deceased showed one incised wound, 2 lacerated wounds and one fire arm wound of entry. The incised wound and the lacerated wounds were each bone deep. If the normal user of Banka was to be stated by Mathura Prasad informant against this deceased, it would explain the ante mortem injury No. 1 which was an incised wound behind left ear where a Heamotoma was present but it could not explain the two lacerated wounds each bone deep on the head under one of which there was found fracture of the left parietal bone. At the trial, he opted for an abnormal use of Banka by Ram Das accused by its blunt side. This abnormal use is difficult to understand. The person who is being shot dead will not be assaulted with the blunt side of Banka. It is obvious that the lacerated wounds on the body of Natthu Lal deceased would have been caused by some blunt weapon say a Lathi. Similarly, in the case of Rameshwar Dayal deceased the lacerated wounds and contusion found on his body would have been caused by use of blunt weapon such as a Lathi and not by an assault being made by the blunt side of Banka as claimed by Mathura Prasad P.W. 1.

Here it may be mentioned that in his crossexamination Mathura Prasad P.W. 1 stated in para0 available at Page 48 of the paper book, �Mujhey Yad Nahin Ki Maukey per Abhiyukt Per Lathi Thi Ya Nahin�. Though he hastened to add that in his first information report he wrote the same weapon as was possessed by a particular accused. This tended to show that he had not seen the occurrence.

In his crossexamination, Mathura Prasad informant admitted that he did not mention in his F.I.R. assault by the Butt of gun. He also admitted that he did not tell the I.O. of assault being made by the Butt of gun. He claimed that the I.O. had also not asked him about it but this is not a satisfactory reply because an abnormal user is not asked about. If an abnormal user has been made in respect of a weapon it is for the witness to spell it out. Asked about the use of Banka by Ram Das accused as Lathi i.e. as blunt weapon, he stated he did not remember whether he had mentioned about it in the F.I.R. or not but he admitted that he did not tell about it to the I.O.. He admitted that in his report he has not categorically stated about the fire by Narendra Pal accused on Rameshwar Dayal deceased and its not striking the deceased. He then admitted that he did not mention in the report that the fire did not strike Rameshwar Dayal deceased. He also admitted that he did not tell the I.O. about the fire by Narendra Pal accused not striking Rameshwar Dayal deceased. Thus, it will be seen that there is improvement in the prosecution story at the trial.

It will be useful to mention here that the Investigating Officer found as many as four empty 12 bore KF special cartridges lying at the scene of occurrence. These were marked as EC3 to EC6 by the forensic expert who was also sent the licensed S.B.B.L. gun of Rameshwar Dayal deceased and its broken belt and barrel found lying inside his house. These empty cartridges were marked as Ext. 2/1, Ext. 3/1, Ext. 4 and Ext. 5 at the trial. The forensic expert found fired test cartridges TCI to TC3 from the S.B.B.L. gun of Rameshwar Dayal deceased and on the basis of comparison the forens c expert gave the opinion that empty cartridges found from the spot, namely EC3, EC4, and EC5 were fired by the same licensed S.B.B.L. gun of Rameshwar Dayal deceased and about the 4th empty cartridge recovered from the spot, no definite opinion could be made due to want of individual characteristics necessary for the purpose. In the memo prepared by the Investigating Officer and in the evidence of the Investigating Officer it has not come as to which of these empty cartridges was found at each place at the scene of occurrence. A reference to the site plan prepared by the Investigating Officer will show that finding of empty cartridges had been shown in it at three places. One place was immediately near the deadbody of Smt. Shyam Kunwar deceased, another place was shown to be immediately near the dead body of Natthu Lal deceased and the 3rd place shown in the site plan was between the deadbody of Rameshwar Dayal deceased and the deadbody of Natthu Lal deceased, nearer to the deadbody of Natthu Lal deceased. It is clear that if the observation of the Investigating Officer as recorded in the siteplan prepared by him and formally proved by him is correct, than out of four empty cartridges at least one was found at each place and at one of the three places two empty cartrdiges were found. If we take empty cartridge EC6 to be the empty cartridge found immediately near the deadbody of Natthu Lal deceased, then the remaining three empty cartridges, EC3, EC4 and EC5, would have been found at the remaining two places. In that case, two empty cartridges out of the three (EC3EC5), were found near the dead body of Smt. Shyam Kunwar deceased and one was found at the other spot lying between the deadbodies of the remaining two deceased persons, or one of these three empty cartridges (EC35) was found near the deadbody of Smt. Shyam Kunwar deceased and two were found at the place in between the deadbodies of the remaining two deceased. It seems that the Investigating Officer distributed the places of finding of empty cartridges at the spot in accordance with the prosecution story during the investigation, according to which one shot was fired al Smt. Shyam Kunwar deceased and more than one shot were fired towards the witnesses including Natthu Lal deceased. In view of the report of the ballistic expert, it is clear that all three cartridges which were fired from the gun of Rameshwar Dayal deceased would have been fired at Smt. Shyam Kunwar deceased and in the ordinary course all the three empty cartridges resulting after these fires would have been found close to the deadbody of Smt. Shyam Kunwar deceased. It was unlikely that the 3rd empty cartridge would reach the place in between the deadbodies of the remaining two deceased substantially away from the deadbody of Smt. Shyam Kunwar deceased. It may be mentioned here that all these empty cartridges were KF special. Looking at the finding of these empty cartridges, EC3, EC4 and EC5 from the spot from another angle it will go to corroborate the opinion of the ballistic expert that all the ante mortem injuries found at the body of Smt. Shyam Kunwar deceased were caused by three separate shots fired from firearm. As noted earlier, the shots relating to injury Nos. 1 and 2 have been fired from a close range. One was fired which entered the abdomen, the other struck the upper lip. The 3rd struck the head of Smt. Shyam Kunwar deceased, which was ante mortem injury No. 3 (wrongly described as a lacerated wound at the top of head 8 cm x 1 cm in the postmortem report) and ante mortem injuries recorded as injuries No. 2(a), 2(b) and 2(c) in the postmortem report were all exit wounds relating to ante mortem injury No. 3. In view of the exit wounds 2(a), 2(b) and 2(o) ante mortem injury No. 3 must also have been shot from close range.

Before we proceed to discuss the other aspects of the prosecution case, it will be useful to note that while according to informant Mathura Prasad (PW1) the murders of Smt. Shyam Kunwar, Rameshwar Dayal and Natthu Lal deceased were committed one after the other in quick succession Naresh Kumar (PW 2) stated that the murders of Rameshwar Dayal and Natthu deceased were committed simultaneously. He has testified that Krishan Pal accusedappellant struck on the head of Rameshwar Dayal deceased with the butt of the gun and then three fires were made by the assailants towards the witnesses which struck Natthu Lal deceased and thereafter the 3rd and the last action the transaction was assault Ram Das accusedappellant by his Banka at Rameshwar Dayal and Natthu Lal deceased. In his crossexamination he testified that Natthu Lal deceased was assaulted by all the three accusedappellants. He stated that Narendra Pal alias Bhurey accusedappellant fired at Natthu Lal deceased and Krishan Pal accusedappellant struck him with the butt of the gun and Ram Das accusedappellant assaulted him with his Banka. Here it may be mentioned that Anokhey Lal (PW 3) testified that Narendra Pal alias Bhure accused appellant fired with his Tamancha at Natthu Lal deceased which struck him (Natthu Lal deceased) and Ram Das accusedappellant assaulted Natthu Lal deceased with his Banka and no other accused assaulted Natthu Lal deceased. In his examinationinchief it is not stated that Krishan Pal accusedappellant inflicted any injury on the body of Natthu Lal deceased by the butt of the gun. In his examinationinchief Naresh Kumar (P. W 2) has not specified as to whose fire struck Nathu Lal deceased as according to him, Vijai Singh accused and Narendra Pal accusedappellant fired three shots towards the witnesses. In his crossexamination he stated that Natthu Lal deceased was assaulted and injured by fire of Narendra Pal alias Bhure accusedappellant. He further stated that Narendra Pal alias Bhure accusedrappellant had fired only one shot. He admitted that he did not tell the Investigating Officer that the fire of Narendra Pal accusedappellant struck Natthu Lal deceased. He also admitted that he did not tell the Investigating Officer that Krishan Pal accusedappellant had struck Rameshwar Dayal deceased with the gun of Rameshwar Dayal deceased by its barrel. So, on all these points he made an improvement over the statement made by him before the Investigating Officer.

He testified in his examinationinchief about the fires having been made by Vijai Singh accused and Narendra Pal accusedappellant upon challenge being made by witnesses. In his cross examination he categorically said that Vijai Singh accused had fired two shots in his presence towards him and Anokhe Lal (PW 3). Here it may be mentioned that Mathura Prasad informant (PW 1) testified the assaults by all the four culprits including Vijai Singh accused. He did not specifically say that Vijai Singh accused had fired any shot. In his crossexamination also he did not specifically say that Vijai Singh accused had fired any shot at any particular person. Naresh Kumar (PW 2) categorically stated about the fire having been made by Vijai Singh accused towards him and Anokhe Lal. It may also be mentioned here that the learned Sessions Judge has accepted the alibi set up by Vijai Singh and acquitted him which acquittal has become final between the parties as it was never challenged by the prosecution by way of appeal before this Court.

Anokhey Lal (PW 3) in his evidence testified that Vijai Singh accused was carrying a Lathi and that he and other accused persons assaulted Rameshwar Dayal deceased with their respective weapons which amounted to saying that Vijai Singh accused also assaulted Rameshwar Dayal deceased with his Lathi. In his cross examination he has stated that he has wrongly stated about the presence of Lathi in the hands of Vijai Singh accused. We have already noted that the Sessions Judge has accepted the plea of alibi of Vijai Singh accused. So the testimony of these three witnesses about the presence and participation by this accused Vijai Singh gets belied and this is one more circumstances which goes to cast a shadow of doubt over the evidence given by them against the present accusedappellants.

About Naresh Kumar (P W 2) and Anokhe Lal (PW 3) also one important circumstance is to be kept in mind that they are not natural witnesses of the occurrence. None of them had any house in the immediate vicinity of the scene of occurrence. They were only chance witnesses and there are considerable discrepancies in their testimony inter se and also intrisic contradictions in the testimony of each of these two witnesses about their reaching the scene of occurrence and seeing the occurrence. Naresh Kumar (PW 2) has testified in his crossexamination that his house was situated towards the southwest from the house of deceased Rameshwar Dayal across three houses at a distance of about 50 to 60 yards. He claimed that he and Anokhe Lal were both going to ease themselves in the Gall situated to the south of houses of Rameshwar Dayal deceased and Ram Das accusedappellant. He further testified that on hearing ''Shor and sound of fire they reached near the Baithak of Ram Das accused appellant. He specifically stated that he was accompanied by Anokhe Lal and further that Natthu Lal deceased came from the south. In other words, Natthu Lal deceased came independent of both of them. It has nowhere come in the evidence as to where the house of Natthu Lal deceased was. The Investigating Officer has not shown the presence of his house in the immediate vicinity of scene of occurrence. The house of one Natthu Lal Nai has been shown in the site plan, but it has not to be confused with the house of Natthu Lal deceased who happens to be the real brother of Anokhe Lal PW. He has categorically stated in his crossexamination that he is Kahar by caste. The description given by Naresh Kumar (P W 2) in his examinationinchief will go to show that he had Anokhe Lal P.W. 3 both came in the eastern Gali at the spot in between the Baithak (and Chappar) of Ram Das and the house of Manohar Lai. This was precisely the place where the deadbody of Natthu Lal deceased was found by the Investigating Officer, to the east of the northeast corner of the Baithak and Chhappar of Ram Das accusedappellant. In his crossexamination he repeated that at the time of occurrence he and Anokhe Lal (PW 3) were together and Natthu Lal deceased came later on. However, in his cross examination he further stated that Natthu Lal deceased was standing at a distance of 5 to 6 paces towards west from them. This statement will take Natthu Lal deceased to a place, to north of Baithak and Chhappar of Ram Das accused appellant. This will again go to show that he and Anokhe Lal were both in the eastern Gali situated to the east of Baithak and Chopper of Ram Das accusedappellant. However, in his next breath he made a changed statement. He claimed that he and the other witnesses were standing in the Khandhar of Mool Chand, S/o Khem Karan. We have noted earlier the location of Khandhar of Mool Chand. It was situated to the west of the spot where the deadbody of Rameshwar Dayal deceased was found. This location was far away from the location as stated earlier by him about himself and Anokhe Lal (PW 3) (in the eastern gali). It does not stand to reason that he and the other witnesses will stand in the Khandhar of Mool Chand aforesaid if the accusedappellants were the assailants because they were no other than the own sons, brother and nephew of this Mool Chand.

Anokhe Lal (PW3) did not testify anywhere that he joined Naresh Kumar (PW 2 ) or was accompanying Naresh Kumar (PW 2) when the sound of fire was heard by him. He straightaway testified that before he reached near the Talab he heard the sound of fire. We have noted earlier the location of the Talab. It was situated to the east of the place where the deadbody of Rameshwar Dayal deceased was found by the Investigating Officer. He claimed that on hearing the sound of fire, he started going towards house of Ram Das accusedappellant, Narendra Pal accused appellant and Vijai Singh accused and reached at the Khandhar of Mool Chand and there he found Naresh Kumar (PW3) present. In other words, according to him, Naresh Kumar (PW 2) was already present at the Khandhar or Mool Chand and he and Naresh Kumar (PW 2) had never come at the spot together. In his crossexamination in paragraph 5 (page 57 of the paper book) he stated that from the place where he was standing the deadbody of Natthu Lal deceased was 15 to 20 paces away towards north. This statement does not at all articulate with his earlier statement that he was in the Khandhar of Mool Chand. The location of Khandhar of Mool Chand was towards north west from the place where the deadbody of Rameshwar Dayal deceased had been found by the Investigating Officer, the deadbody of Natthu Lal deceased was found at a distance of 26 paces towards south from the deadbody of Rameshwar Dayal deceased. The deadbody of Natthu Lal deceased was found to the east of the northeastern corner of the Baithak and Chhapper of Ram Das accusedappellant and to the west of the northwestern corner of the house of Manohar Lal. If this witness was standing 1520 paces towards south from the deadbody of Natthu Lal deceased it will mean that he was standing in the eastern Gali somewhere at its southern end where it joined the Gali running eastwest on the south of the house of Ram Das accusedappellant, the house of Rameshwar Dayal deceased and the Baithak and Chopper of Ram Das accusedappellant (referred to by us as the southern Gali). These discrepant statements only show that he was not present anywhere near the scene of occurrence when the triple murder took place.

We have noted earlier that Naresh Kumar (P W 2) claimed that his house was situated towards southwest from the house of Rameshwar Dayal deceased across three houses. Anokhe Lal (PW 3) on the other hand has stated that his house was situated at a distance of half to one furlong towards southwest from the house of Rameshwar Dayal deceased. According to his own statement, about 50 to 60 houses intervene between his house and the house of Rameshwar Dayal deceased. So the houses of these two witnesses were not in the immediate vicinity of each other so as to make it likely for both of them to go together in the morning to ease themselves. In any case, it could be only a chance meeting between these two persons and Anokhe Lal (PW 3) does not say about any such meeting in the way when going to ease himself.

It may be mentioned here that in the crossexamination of Naresh Kumar (PW 2) it has come that he did not tell the Investigating Officer about the presence of the informant and the raising of alarm by the informant at the time of occurrence. This is one more circumstance which goes to show either that he was not present at the spot at the time of occurrence or that Mathura Prasad informant was not present at the time of occurrence at the spot, or that none of the two were present at the spot at the time of occurrence.

Here it may be placed on record that Naresh Kumar (PW 2) on his own showing was interrogated on the second day of the date of occurrence. In his crossexamination he stated that he could not tell as to at what time the Investigating Officer visited the spot on the date of occurrence because on that date he did not go before the investigating Officer as he had gone to Dr. K.B. Singh to take medicines. He further stated that on the date of occurrence he had returned to village at 12 noon or 1 p.m. after taking medicines from village Tikari. He could not tell, whether the Investigating Officer was present in the village or not and whether the deadbody was present at the spot or not. He has not specified as to who was ill in respect of which he had to rush to the doctor on the date of occurrence. In the ordinary course, if he was the eyewitness of the occurrence he would like to be present in the village to tell the police when the police visited the spot. In any case, he could not be ignorant, whether the Investigating Officer was present in the village on the date of occurrence or not and whether the dead bodies were still lying at the spot or not. His delayed interrogation is one more circumstance which creates suspicion about his ocular testimony at the trial.

It may be mentioned here that the Investigating Officer testified that he interrogated these witnesses Naresh Kumar (PW 2) and Anokhe Lal (PW 3) on 28492 at 8 or 9 a.m. because on the date of occurrence i.e. 27492 these two witnesses could not be available. He further stated that he did not go to the houses of these two witnesses but the constable accompanying him was sent to call them. He further stated that the constable who was sent to call them had come back and informed that they were not present at their houses.

Anokhe Lal (PW 3) testified that the Investigating Officer had met him on the second day of the occurrence in the morning and had interrogated him. In his crossexamination he stated that he remained at the spot only for five minutes and after that he left the spot and on his own showing came to the spot on the second day and only when the Investigating Officer had called himto the spot. He further stated that from the time of his coming to his house five minutes after the occurrence he all along stayed at the house till Investigating Officer called him. He further stated that on the date of occurrence the Investigating Officer had visited at 9 a.m. but at that time the Investigating Officer did not ask anything from him because he did not go before the Investigating Officer. This conduct of the witness raises further doubt about his presence at the scene of occurrence. He was the real brother of Natthu Lal deceased and it is difficult to believe that if he was present at the spot at the time of occurrence, he would leave the deadbody of his real brother Natthu Lal deceased lying at the spot and would not stay thereafter the departure of the assailants and would keep away at home without bothering to see as to what was being done about the dead body of his brother Natthu Lal deceased. It seems that on the date of occurrence, he was not present in the village at all. If he was in the village he would have eventually gone to see the deadbody of the deceased Natthu Lal even if he had not seen the occurrence.

It may be mentioned here that the I. O. Jasbir Singh P.W. 12 did not show the houses of Naresh P.W. 2 and Anokhey Lal P.W. 3 in the site plan prepared by him and even when asked in crossexamination to give the distances of their respective houses from the scene of occurrence and the directions in which their houses were situated he pleaded his inability to do so. He has stated that he has not visited their houses but had sent a constable to their houses and so he could not be tell these distances. The I. O. was expected to show or record the appropriate distances of the houses of the witnesses who was not resident of the vicinity because the distance of their houses from the scene of occurrence will be a material fact to be brought on record to enable the court to assess the claim of such a witness whether he could have reached the scene of occurrence and in time so as to be able to see the occurrence and identify the culprits.

The over all picture which emerges on consideration of the prosecution evidence and the circumstances on record mentioned upon is that the presence of Mathura Prasad informant P.W. 1 and the eyewitnesses Naresh Kumar and Anokhey Lal P.W. 2 and 3 at the scene of occurrence at the time when the triple murders or any of them were/was committed, is highly doubtful and further that their ocular testimony was inconsistent inter se and also bristled with improbabilities. Top of all, there was inconsistency of the ocular evidence with the medical and ballistic evidence.

About the F.I.R., it has been said that the F.I.R. of this case was the result of consultation and deliberation and further that it was ante timed. It is claimed that uptill the time, the panchayatnama proceedings were taken, the F.I.R. had not been recorded, As noted earlier, the F.I.R. of this case purports to be lodged at 8 a.m. on the date of occurrence. It has come in the evidence of the I. O. Jasbir Singh P.W. 12 that on the date of occurrence, and entry was recorded in the G.D. at 4 a.m. about a cognisable offence and on that date, no report of any cognisable case was recorded after the registration of the present case at the police station. This meant that the F.I.R. of the present case could be prepared at any time on that date and recorded as lodged in the morning at 8 a.m. Here it may also be placed on record that in the challan lash in respect of Natthu Lal deceased and that the Challan lash in respect of Rameshwar Dayal deceased, was prepared by the I. O. Jasbir Singh P.W. 12 who was S.O. of the police station at the relevant time. Therefore, if the F.I.R. had already been lodged at the police station in the presence of S.O. and there upon the S.O. had proceeded to the scene of occurrence to investigate the case as claimed by him there was no occasion for him to record in the challan lash of these two deceased Natthu Lal and Rameshwar Dayal that the time of death was unknown. In the challan lash in respect of the third deceased Smt. Shyam Kunwar, the time of death was recorded as per the F.I.R. It means that it was only after the Panchayatnama proceedings in respect of Natthu Lal and Rameshwar Dayal were over that the F.I.R. of this case had been scribed, check report prepared on its basis and then the said entries in the Challan Lash in respect of Natthu Lal and Rameshwar Dayal about time of death as unknown was scored out and the time of death as per the F.I.R. was scribed therein. It has been pointed out by the learned counsel for the accusedappellants that Mathura Prasad informant on his own showing had studied upto class 8th and claimed that so any statement made by him about time of anything cannot be ignored simply as a rackless statement by a rustic. With this background, he has drawn our attention to the evidence given by this witness about the lodging of the F.I.R. He has stated that he had Nanhey had gone on bus from village Tikari to lodge the F.I.R. at the police station. He further stated that the writfen F.I.R. was scribed by him at Tikari at 8.15 a.m. and 56 minutes after scribing the same they got and boarded the bus. He has further stated that he had gone on foot . from Narainpur (the village of occurrence) to village Tikari which was one and half Km. away. He claimed that he had taken paper and pen from a shopkeeper at Tikari. However, he failed to give the name or even the nature of the business of the shop keeper or the name of the shop keepers whose shops were in the vicinity. His replies are evassive for with a purpose. There may be many shop keepers who would not open their shops till late in the day. It is said that the shops were not likely to open so early as to make paper and pen available at 8.15 a.m. Then it will take sometime to scribe the F.I.R. and then the bus will take at least some times in reaching the police station which was 6 Kms. away from the scene of occurrence. It has been argued and not without substance that even on the statement as given by this witness the F.I.R. could not have been lodged at 8.00 a.m. as shown in the check report. Apparently, the F.I.R. of this case has been ante timed. This itself is an infirmity.

Mathura Prasad, informant1 claims that one Nanhey accompanied him to the police station. He claims that he was afraid of going alone to the police station and so he took Nanhey with him. He further stated that Nanhey was resident of Narainpur where the occurrence took place and so at first sight it would appear that there was nothing strange about it. However, the informant when asked further in his crossexamination stated that he did not know the name of Nanhey''s father even upto the time of his testimony in Court and further that he had not seen the house of Nanhey and that he met Nanhe in Narainpur on the date of occurrence for the first time and he had no previous acquaintance with him. He categorically stated that he had no connection whatsoever with Nanhey before the date of occurrence. In the ordinary course, @ one would not take a perfect stranger with him to accompany him to the police station. So it will appear that he must be knowing Nanhey from before if Nanhey had really accompanied him to the police station. Another point to be noted is that the informant says that Nanhey did not come to the spot at the time of occurrence on alarm being raised. In other words, Nanhey was not an eye witness of the occurrence on his own showing. He further stated that nobody met him after the murder and before the meeting of Nanhey and further that he did not have talk with any villager other than Nanhey before lodging the F.I.R. at the police station, though, in the ordinary course, he would have had a talk with Naresh P.W. 2 and Anokhey Lal P.W. 3 if he was present at the occurrence and these two persons were also present at the time of occurrence. Asked further he stated that he did not know the parentage of Anokhey Lal and Naresh P.Ws. from before and did not know their parentage even uptill the time of his statement in the Court.

He further stated that he had no connection whatsoever with Naresh P.W., that before the occurrence he did not know Naresh P.W. nor could he recollect having seen Naresh Kumar P.W. at any time. He further stated that he also did not know Anokhey Lal P.W. from before the date of occurrence nor held ever seen Anokhey Lal P.W. before the date of occurrence. He further stated that before the date of his evidence in Court, he had met Anokhey Lal only on the date of occurrence. He further slated that Anokhey Lal had accompanied the deadbody. He has, however, not stated as to whose deadbody he has accompanied. Anokhey Lal P.W. (real brother of Natthu Lal deceased) nowhere stated in his testimony that he had accompanied the deadbody of this deceased or any other deceased or of all deceased from the spot to the mortuary. Infact, he had stated that he had met the I. O. on the second day after the date of occurrence and that 5 minutes after the occurrence he went to his house and remained there all alone till the I. O. called him on the next dayat 10 or 11 a.m. If he had accompanied the deadbodies from the scene of occurrence, he must have came to the scene of occurrence on the date of occurrence itself and he could not have done so without reaching at the spot and without meeting the I. O. who prepared the inquest report and sealed the bodies and sent them for post mortem. So, all the discrepancies cast further shadow of doubt over the testimony of the informant and of Anokhey Lal P.W.

49, In regard to Naresh P.W., it may be mentioned here that the testimony of the Mathura Prasad informant at the trial that he had no connection with this witness and that he did not even know that person a before the occurrence has been challenged by the learned counsel for the defence on the ground that Naresh P.W. on his own showing was a marginal witness of the will executed by Rameshwar Dayal deceased infavour of Mathura Prasad informant and certain others, on the plea that normally only a known person and a man of confidence alone is kept a mariginal witness of a Will because incourse of time, the beneficiary may need to examine the witness in the Court to prove the execution of the Will. Further more though, Naresh P.W. flatly denies the presence of Mathura Prasad informant at the time of the execution of the Will by Rameshwar Dayal deceased, the piesence of Mathura Prasad informant at the time of the execution of the said Will was most likely and Naresh P.W. must have been a man of his confidence so it appears that Mathura Prasad informant and Naresh P.W. have no scruples in telling lies and for this reason also, their testimony at the trial about the occurrence become open to doubt.

It may also be mentioned here that the statement of the informant that he did not meet anyone except Nanhey from the time of occurrence till the lodging of the F.I.R. at the police station and his statement that he had met Anokhey Lal P.W. on the date of Occurrence and his further statement that Anokhey Lal had accompanied the deadbody to the mortuary taken together tend to shad that he has met Anokhey Lal for the first time when the deadbodies were despatched from the scene of occurrence to the mortunary. The despatch of the dead bodies must obviously be subsequent to the lodging of the F.I.R. This will again go to show that if the informant was at the spot, Anokhey Lal P.W. was not at the spot at the time of occurrence or that none of the two was at the spot at the time of the occurrence.

Mathura Prasad informant has stated that he did not meet Naresh P.W. on the date of occurrence. In the ordinary course, if he was present at the spot and Naresh Kumar P.W. was also present at the spot at the time of occurrence, then in the normal course they would have met each other immediately after the occurrence and so thus statement of informant Will tend to shad show that either the informant was not at the spot or Naresh P.W. was not at the spot or both were not present at the spot at the time of occurrence.

Mathura Prasad informant has stated in his evidence available at page 49 of the paper book that he had recorded the parentage of Naresh and Anokhey P. Ws. in the F.I.R. after asking the same from Naiihey aforesaid. Not only this, he further stated, �MAINEN NANHEY SE PUCHHA THA KI MAUKEY PER KAUN KAUN PAHUNCHA THA TO USNEN ANOKHEY VA NARESH KA NAM BATAYA THA. �If the informant was himself present at the time of occurrence, he was in no need to ask from anybody as to who had reached the spot at the time of occurrence and had witnessed the occurrence as he would have himself seen them present. The fact that he made this statement itself shows that he was not present at the spot and that later on, he scribed the F.I.R. constituting himself as its maker and styling himself as an eyewitness of the occurrence and planted the names of Naresh and Anokhey Lal P.Ws. in the F.I.R. as eyewitnesses in consultation with Nanhey who on the prosecution story was not at all an eyewitness of the occurrence. The F.I.R. consequently becomes beraft of all value.

The fact that in the F.I.R. the phrases have been used, �ATANK PHAILAKER......HATYA KI HAI.....GAON MEN IN ABHIYUKT GAN KA ATANK VA BHAI BYAPT HO GAYA HAI AUR GAON WALON KA JIVAN AST BYAST HO GAYA HAI.� Is itself an indication that the F.I.R. was the result of consultation with the police. These phrases are usual to be found in reports of the police for detention of persons under the National Security Act. The informant whose real sister and brotherinlaw had been murdered would hardly be in a position to give more than the bare facts about the triple murder in his F.I.R. scribed by himself and would not be narrating the impact that followed the triple murder.

It has been argued by the learned defence counsel that if one witness names the presence of others at the spot and their presence at the spot gets belied or becomes doubtful this circumstance itself would reflect adversely on the testimony of the witness who names such a person to be present at the spot. But, in the present case as noticed above, the presence of all the 3 ocular witnesses at the spot get belied or at any rate has become highly doubtful.

It is also unlikely that Rameshwar Dayal deceased who as per prosecution case was returning from Talab after easing himself would not try to run away seeing the murder of his wife Smt. Shyam Kunwar taking place or on seeing her deadbody lying at the door of his house. It seems that an occurrence took place which may or may not have been a dacoity and in the course of the occurrence Smt. Shyam Kunwar deceased and Rameshwar Dayal deceased both ran out from their house and while Smt. Shyam Kunwar was murdered at the door of their house itself, Rameshwar Dayal deceased managed to run away for some distance but was overpowered, be laboured and done to death. Whether the licenced gun of Rameshwar Dayal deceased was found loaded and picked up by the assailants or his gun and cartridges were taken possession of by the assailants, it is obvious that Smt. Shyam Kunwar deceased has been done to death by the 3 fires made from the same and Natthu Lal deceased was shot dead either by the fourth fire from the same gun from a short range or a fire by a shot from independent fire arm from a sharp range.

Anokhey Lal (P.W. 3) testified that he had reached at the Khandhar of Mool Chandra where Naresh P.W. was also present and Natthu Lal deceased was coming from the South, that he (Anokhey Lal P.W.) challenged the accused persons, whereupon Narendra alias Bhurey accusedappellant fired with Tamancha towards Natthu Lal deceased which struck him. It was strange that while the challenge was made by Naresh P.W. 2 Anokhey Lal P.W. 3, fire was made towards Natthu Lal deceased who was not accompanying these witnesses but was at a different place.

We have made some reference above to the evidence on the question of motive. About the incident of the previous evening it may be mentioned that apart from the testimony of the informant there is no other evidence about it and considering the various infirmities in the testimony of the informant at the trial as aforesaid it is difficult to place reliance on his evidence about it.

It may that in view of the pedigree, the accusedappellants and also Vijai Singh accused (acquitted by the Sessions Judge) would be natural heirs to the estate of Rameshwar Dayal deceased on his death, alongwith Mool Chand, (father of Narendra Pal alias Bhurey accusedappellant and Ram Swaroop. But this alone would not clothe them with a motive to commit him murder unless there was a course of conduct showing their intention to eliminate him.

Naresh P.W. 2 did testify that the accused persons wanted to take the property of Rameshwar Dayal deceased but this bald assertion cannot be taken on its face value because he has not referred to any incident or ground which may have led him to draw this conclusion. He admitted that he did not tell the Investigating Officer about any enmity between the deceased persons and the accused persons. Anokhey Lal P.W. 3 was asked in his examinationinchief if the accused persons have any greed about the land of Rameshwar Dayal deceased, he did not give any straight reply not only said that there was rumour in the village that the accused persons will get the land of Rameshwar Dayal deceased. In his crossexamination available at page 58 of the paper book he has however stated that he never heard any quarrel between the accused persons and Rameshwar Dayal deceased.

It has been claimed by the learned counsel for defence that when the Will was executed by Rameshwar Dayal deceased in favour of Mathura Prasad informant and others two days before the date of occurrence, Mathura Prasad informant would come to have a motive to eliminate Rameshwar Dayal deceased because the Will could be superseded by Rameshwar Dayal deceased at any time by means of another Will or a transfer during his life time and that so long as the Will aforesaid existed the accusedappellants and Vijai Singh accused had no chance to succeed to the estate ,of Rameshwar Dayal deceased and so little could be obtained by the accused appellants and Vijai Singh accused by eliminating Rameshwar Dayal deceased and his wife Smt. Shyam Kunwar deceased. It was also claimed that in any case if the accused persons had a motive, Mathura Prasad informant too had an equal motive to commit the murder of Rameshwar Dayal deceased.

The accused party could have committed murder of Rameshwar Dayal deceased if he refused to transfer his land to the accused persons or any of them to undo the Will executed by him or on account of annoyance due to the Will but in that case the murder of Smt. Shyam Kunwar could serve no purpose. Rather an effort would have been made to eliminate the informant alongwith Rameshwar Dayal deceased if the accused persons were the assailants but as noted earlier he has not been touched. Furthermore, where two different sets of persons had motive or immediate motive to commit a murder it is no use speculating. Moreover motive cannot take the place of direct evidence of murder in this case which has been discarded. It could have lent credence to only that direct evidence which was otherwise creditworthy. In a case of circumstantial evidence motive is one circumstance but unless all the facts established go to constitute a chain around an accused from which there is no escape the prosecution cannot succeed. There is no such chain established here.

The accusedappellants had their house in the immediate vicinity of the house of Rameshwar Dayal deceased and they could not have failed to notice the occurrence which took place at the spot but they have not lodged an F.I.R. about the occurrence against Mathura Prasad informant or any other person about the triple murder, but their silence would not prove their guilt.

Natthu Lal deceased could have come to the spot where he was done to death on hearing the alarm or might be going there otherwise but that is all in the realm of mystery. The direct evidence about the occurrence led by the prosecution is not at all acceptable and has been rejected by this Court.

The prosecution has relied on the evidence of discovery of Banka at the pointing of Ram Das accusedappellant furnished by Desh Ram Singh constable (PW 7) and Bharat Singh S.I. (PW11). The evidence of Desh Rani Singh Constable (P W 7) was that on 25 92 the police party arrested Ram Das and Krishna Pal accused appellants at 5.30 a.m. on the way from village Jyoraha Kalyanpur to Imilia and Ram.Das accusedappellant offered to take out and give the weapon which was used in the murder of the three deceased from the Jhund (Jhadi) standing at the Mend of the field of Dhakan Lai in from of Pajaya of Mohan Lai, whereupon the police party took the accused Ram Das accusedappellant to Pajaya of Manohar Lai and Ram Das accusedappellant took out a blood stained Banka from the border of the field of Dhakan Lai at about 7.10 a.m. which was sealed at the spot and the recovery memo was made about it. He stated that the Investigating Officer made an effort to procure public witnesses for the recovery of the weapon used in the three murders but no person became ready out of fear of accusedpersons. In his crossexamination it came that the Banka was not recovered from any field and the same was recovered from the jungle of Narainpur''s limit, which was near the boundary of Narainpur. He could not say as to what was there in the four directions of the place of recovery of the weapon. It was elicited from him that the Investigating Officer had called 56 persons of public of village Narainpur and asked them to become witness. But he could not tell the name of any of those persons. He further stated that from the place of arrest in village Narainpur to the place of recovery 45 villages fall in the way but no public witness was taken from these intervening villages. It was further elicited from him that on the sealed bundle prepared at the spot about the Banka discovered as aforesaid the signatures of witnesses were not obtained and the crime number had also not been put at the spot.

Bharat Singh, S.I. (PW 11) also testified to the arrest and discovery aforesaid at the instance of Ram Das accusedappellant. He claimed that an effort was made to procure the witnesses but no public person got ready out of fear of the accused persons. It is evident that no genuine effort was made by the police party to take public witnesses with it from the way. It was the month of May and the time of discovery aforesaid is said to be 7 a.m. So, there could not be any difficulty in taking public witnesses from the way. Against the background of the evidence and the circumstances of this case it is difficult to place implicit reliance on the testimony of the said two witnesses about the discovery of the said Banka at the pointing of Ram Das accusedappellant.

The forensic expert of the Government of U.P. did report that the alleged discovered Banka was stained with human blood. However, the prosecution has not furnished the link evidence which may show that the weapon remained sealed from the time it was initially sealed till the time it was opened by the forensic expert. That being so, this Court cannot rely upon the report of the forensic expert in regard to the presence of human blood at the said Banka.

We have noted earlier that the evidence of discovery of this Banka at the instance and at the pointing out of Ram Das accusedappellant is doubtful. However, even if this Court were to accept for a moment this evidence of discovery, I am afraid it is not possible to draw from it a presumption against Ram Das accusedappellant that he committed the murder of any of the deceased with this Banka and concealed it at the place of discovery. In this regard it will be useful to refer to the case Traimbak v. State of Madhya Pradesh, AIR 1954 SC 39. That was a case of a dacoity and in that case the prosecution had led evidence that the ornaments belonging to the complaint were taken out by accused Trimbak from the field of one one Nande Anand and the High Court had taken the view that the accused having given no explanation regarding the knowledge of the place from which ornaments were taken out by him, it must be presumed that he must have kept the ornaments there and that he was in possession of the stolen ornaments The discovery was admittedly made from a place which was in the open and accessible by all and sundry and the Apex Court held as follows:

�When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles.�

The ratio of this authority was that if the discovery of an article was held to be from a place which was in open and accessible to all and sundry then all that can be inferred is that somehow the accused acquired knowledge of whereabouts of the articles discovered at his pointing out. In the present case the place of the alleged discovery was not the house or field of Ram Das accusedappellant but Jhunds (bushes) on the border of the field of an entirely unconcerned person Dhakan Lal. It was not the prosecution case that he had dug out the earth and taken out the Banka from inside. Furthermore the prosecution has failed to connect the Banka with any of the murders in this case.

So, the net result is that the conviction of the accused appellants cannot be sustained for a moment.

In respect of Krishna Pal accusedappellant it has been claimed that he was aged below 16 years at the time of the occurrence and certain case law was cited about the applicability of the Juvenile Justice Act to him as an alternative plea. However, it is not necessary to burden this judgment with those authorities since the prosecution case is collapsing under its weight.

It is unfortunate that in this case the triple murder is going unpunished and the case is ending in an acquittal. But there is nothing that can be done by this Court about it.

Consequently, the appeal is allowed and the Reference under Section 366, Cr. P.C. made by the Sessions Judge is rejected. The conviction and sentence of accusedappellants Ram Das, Krishna Pal and Narendra Pal alias Bhurey are set aside. They are acquitted of the offence under Section 302,1.P.C. Accused appellants Ram Das, Krishna Pal and Narendra Pal alias Bhurey are in jail custody. Let them be released forthwith unless required in connection with some other case.

Let a copy of this judgment be sent to the Sessions Judge concerned atonce for information and compliance. The compliance report shall be submitted by the learned Sessions Judge concerned to this Court within a month from today.