Rakesh Tiwari, J.@mdashHeard counsel for the appellants, Sri K.N. Bajpai, learned A.G.A. and perused the record.
These criminal appeals arise out of judgment and order dated 12.5.2004 passed by the Special Judge (SC & ST Act), Basti in Special Sessions Trial No. 249 of 1999, State Vs. Bhagwan Das and six others, connected with S.S.T. No. 88 of 2000, State Vs. Rakesh & two others, and S.S.T. No. 337 of 2000, State Vs. Rajaram, by which in sessions trial No. 249/1999, each appellants Bhagwan Das, Gyan Das, Parmatma, Vishwa Nath & Girish Chandra have been convicted and sentenced to life imprisonment and fine of Rs. 10000/ under section 302 IPC, R.I. for ten years and fine of Rs. 5000/ under section 307 IPC, R.I. for two years and fine of Rs. 1000/ under section 148 IPC, imprisonment for life and fine of Rs. 5000/ under section 3(2) (5) of S.C.S.T. Act and R.I. for six months under section 7, Criminal Law Amendment Act. Appellant Ram Nath has been convicted and sentenced to life imprisonment and fine of Rs. 10000/ under section 302 IPC, R.I. for ten years and fine of Rs. 5000/ under section 307 IPC, R.I. for two years and fine of Rs. 1000/ under section 147 IPC, imprisonment for life and fine of Rs. 5000/ under section 3(2) (5) of S.C.S.T. Act and R.I. for six months under section 7, Criminal Law Amendment Act. Appellant Raju has been convicted and sentenced to life imprisonment and fine of Rs. 10000/ under section 302 IPC, R.I. for ten years and fine of Rs. 5000/ under section 307 IPC, R.I. for two years and fine of Rs. 1000/ under section 148 IPC and R.I. for six months under section 7, Criminal Law Amendment Act.
2. In sessions trial No. 337/2000, appellant Raja Ram has been convicted and sentenced to life imprisonment and fine of Rs. 10000/ under section 302 IPC, R.I. for ten years and fine of Rs. 5000/ under section 307 IPC, R.I. for two years and fine of Rs. 1000/ under section 148 IPC, imprisonment for life and fine of Rs. 5000/ under section 3(2) (5) of S.C.S.T. Act and R.I. for six months under section 7, Criminal Law Amendment Act.
In sessions trial No. 88 of 2000, accused Rakesh Yadav, Ganesh alias Mental and Ibrahim, have not been found guilty for the offences under section 148,307/149, 302/149, 5 of Explosive Substances Act, 7 of Criminal Law Amendment Act and 3(2)(5) of S.C.S.T. Act and as such acquitted thereunder.
Appellants Bhagwan Das, Gyan Das, Parmatma and Raja Ram have also not been found guilty for the offence under section 5 of the Explosive Substances Act and acquitted thereunder in session''s trial no. 249/99 and 88/2000. All the sentences were ordered to run concurrently. In case of default in payment of the fine, the appellants were ordered to undergo additional six months'' R.I.
As all these five appeals have the same genesis and arise out of the same judgment, therefore, they are being heard and decided together.
3. The grounds of challenge are that the conviction of the appellants is against the weight of evidence on record, is against law and the sentence awarded to them is too severe. It is also submitted that the trial court has not properly evaluated the evidence on record and has omitted to look into the material evidence in the case.
According to the prosecution, in the night intervening 10/1161999, at about 11.30 P.M., appellants Bhagwan Das son of Ram Nath, Gyan Das son of Ram Nath, Raju son of Moti, Vishwa Nath son of Paltu and Girish Chandra son of Ram Bilas ( all residents of the same village) alongwith 4 5 persons who could not be seen by the first informant Ram Bahal (Harijan), armed with bombs, country made pistols, lathis and knives, suddenly came to his house. Exhorting that entire family of Triveni be killed and if the villagers come to their rescue, they be also killed, started hurling bombs & indiscriminate firing at the family members of the first informant. The terrified villagers hid themselves inside their houses and did not dare to come out. The assailants were recognised by the first informant Ram Bahal and his family members in the light of electric bulb at their door. They saw appellants Bhagwan Das & Gyan Das hurling bombs, appellants Raju & Vishwa Nath firing from country made pistols, appellant Girish Chandra using the knife in his hand with intent to kill and the remaining accused were exhorting and helping them in killing of the family members of the first informant.
4. In the aforesaid incident, Teerath son of Magaroo, Triveni son of Magaroo, Sarvjeet son of Triveni and Ram Yagya son of Paltu, died on the spot whereas Anil Kumar son of Triveni, Amarnath son of Ram Bahal, Sunil Kumar son of Sarvjeet, Ashwani Kumar son of Ram Bahal, Santosh Kumar son of Ravindra Kumar, Km. Geeta daughter of Bisarat, Smt. Ramrati wife of Phool Chand, Gyan Das son of Ram Surat and Awadesh Kumar son of Ram Bahal, received injuries, who were sent to hospital. The incident is said to be witnessed by the first informant Ram Bahal, Ramesh son of Triveni, Gyan Das son of Ram Surat, Ram Shanker son of Ram Dularey, Setu son of Ram Bharos besides many other villagers.
5. Motive assigned in the F.I.R. was that the accused had forcibly taken possession over the land of the first informant and even though in the measurement of land by the revenue authorities at his instance, the land was found belonging to him, yet the accused did not hand over its possession of the land to the first informant but filed a suit in this regard which was pending; that because of this enmity, the first informant, Sarvjeet and Ramesh Chandra had been falsely implicated by accused Ram Nath in the murder of his son Suresh Chaudhary, who in fact was a loafer and had been killed for his bad conduct in February 1999; that they had been released on bail about two and half months back and that because of the enmity, the accused in this occurrence, killed four persons on the spot and caused grievous hurts to nine other persons of the family.
6. It is averred that immediately after the occurrence, the first informant Ram Bahaltook injured Anil Kumar, Aswani and Sunil to the police station Dudhara, Basti and gave a written report of the incident on 11.6.1999 at about 2.10 A.M., on the basis of which F.I.R. at case crime No. 92 of 1999, under section 147,148,149,307,302 IPC, section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, section 7 of Criminal Law Amendment Act and section 5 of Explosive Substances Act, was registered against accused Bhagwan Das, Gyan Das, Raju, Vishwa Nath, Girish Chand and 45 unknown persons. Injured Anil Kumar, Aswani and Sunil were sent by the police to primary health centre Semiriyawa, district Basti for medical examination and the remaining injured witnesses who were in the hospital, were also directed to be medically examined.
Dr. N.K. Srivastava conducted the post mortem on the four deceased persons on 11.1.1999. According to post mortem reports the deceased received following injuries :
1. Ram Yagya (deceased) aged about 20 years:
3 Teerath (deceased) aged about 70 years:
4 Tribeni (deceased) aged about 58 years:
The Medical examination of injured persons shows their injuries as follows :
1. Aswani Kumar aged about 12 years :
2. Sunil Kumar aged about 8 years :
3. Kumari Geeta aged about 16 years :
5. Amar Nath aged about 12 years :
6. Gyandas aged about 16 years :
7. Santosh Kumar aged about 10 years :
8. Awdhesh Kumar aged about 8 years :
9. Anil Kumar aged about 22 years :
7. Information regarding the occurrence was given to Circle Officer, Mehdawal, who took up the investigation in the matter and on whose instruction, Sri S.K. Ram, S.H.O., P.S. Dudhara alongwith S.I. Shamsher Bahadur Singh, S.I. K.S. Yadav & other police personnel, rushed to the spot where Circle Officer also reached. On the instruction of the investigating officer/circle officer, inquest reports of deceased Triveni Prasad, Ram Yagya and Sarvjeet were prepared by S.I. Shamsher Bahadur Singh and that of deceased Tirath was prepared by S.I. K.S. Yadav separately between 5 A.M. to 7.20 A.M.. Dead bodies of the four deceased were sent to mortuary, Basti for post mortem. Post mortem examination on the bodies of four deceased was conducted by Dr. N.K. Srivastava between 3.45 P.M. to 5.15 P.M. on 11.6.1999 and their post mortem reports were separately prepared. Injuries of all the injured except Anil Kumar were examined on 11.6.1999 by Dr. Rajesh Kumar Sinha whereas injuries of injured Anil Kumar were examined by Dr. Vinod Sachan and their injuries reports were separately prepared. Injuries received by the deceased as well as the injured have been given in detail in their respective reports which have been exhibited in the court below.
8. The Circle officer visited the spot, prepared site plan and recovered remains of the bombs, pieces of Sutali, three empty cartridges, plain and blood stained soil from the spot and prepared recovery memos. The investigating Officer sent remains of the bombs, empty cartridges and blood stained clothes of the deceased for examination to Vidhi Vigyan Prayogshala.
9. After completing necessary formalities, the investigating officer submitted charge sheet against the accused appellants under section 147,148,149,307,302 IPC, section 5 of Explosive Substances Act, section 7 of Criminal Law Amendment Act and section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
All the three sessions trial were clubbed together vide order dated 3.7.2000 and were heard together by the court below.
10. The prosecution in order to prove its case, examined P.W.1 Ram Bahal, who is the first informant and eye witness of the incident, P.W. 2 Anil Kumar another eye witness who is injured & son of deceased Triveni Prasad, P.W. 3 Ramesh Chandra, an eye witness & son of deceased Triveni Prasad, P.W.4 H.C. Virendra Singh, who prepared chik report & G.D. and wrote letter for medical examination of the injured persons, P.W.5 Constable Vijay Kumar Yadav, who took the dead bodies to the mortuary, P.W.6 Km. Geeta, who is an injured and eye witness, P.W.7 is Dr. N.K. Srivastava, who conducted post mortem and prepared post mortem reports of the four deceased, P.W.8 Dr. Rajesh Kumar Sinha,had examined injuries of all the injured persons except Anil Kumar and had prepared their injury reports, P.W.9 Dr. Vinod Sachan, who examined injuries of injured Anil Kumar and prepared his injuries report, P.W. 10 SI Shamsher Bahadur Singh, who prepared inquest on the dead bodies of deceased Triveni, Ram Yagya & Sarvjeet and sent these bodies for post mortem and prepared recovery memos of empty cartridges, plain & blood stained soil and remains of bombs at the instruction of the investigating officer, P.W. 11 Constable Ram Mani Misra, who sent the aforesaid materials for examination to Vidhi Vigyan Prayogshala, P.W. 12 Anil Kumar Chauhan, Record Assistant, Surgery Department, K.G. Medical College, Lucknow who produced record regarding treatment of injured Anil Kumar, P.W.13 Kuldeep Narain, Circle Officer, Mehdawal, who is the investigating officer of the case, P.W. 14 Dr. Vijay Shanker Singh, who proved the documents regarding treatment of injured Anil Kumar, P.W. 15 Ram Iqbal, the then S.H.O., P.S. Dudhara, who arrested accused Ram Nath and others on the instruction of the I.O. And had taken proceedings against them under section 82/83, Cr.P.C.
Apart from above, the prosecution through its witnesses, proved the F.I.R. Ex. 1, chik report Ex. Ka2, G.D. Ex. Ka3, Chitthi Majrubi in respect of injured Gyan Das, Santosh Kumar, Awadesh Kumar, Smt. Ramrati Devi, Amar Nath, Anil Kumar Ex. Ka4 to Ex. Ka9. Post mortem reports of the deceased persons alongwith its annexures Ex. Ka10 to Ex. Ka35, injury reports & reference slips etc. of injured Ashwani Kumar, Sunil Kumar, Km. Geeta, Smt. Ramrati, Amarnath, Gyan Das, Santosh Kumar, Awadesh Kumar & Anil Kumar Ex. Ka36 to Ex. Ka46, Panchayatnama of deceased Ram Yagya, Sarvjeet, Teerath Ex. Ka48 to Ex. Ka50, recovery memos of Sutali, ripit, three empty cartridges, plain & blood stained soil as Ex. Ka51 to Ex. Ka53, memo of arrest of accused Ram Nath and Girish Chandra Ex. Ka53A., site plan Ex. Ka56, charge sheet Ex. Ka 57 & 58, Report regarding remains of bombs and report of Vidhi Vigyan Prayogshala regarding blood stained clothes & soil recovered from the place of incident, empty cartridges, pellets Ex. Ka79 & Ex. Ka80, besides other documents.
11. The accused appellants in their statements recorded under section 313, Cr.P.C. denied their participation in the incident and stated that they have been falsely implicated due to enmity.
Appellant Rajaram in his statement also submitted that he suffers from heart diseases and was admitted in J.J. Group Hospital, Bombay and P.G. Hospital, Lucknow. He had gone to J.J. Group Hospital, Bombay for medical check up on 1.6.1999 and had been advised rest. He had again gone to the Hospital on 10.6.1999 and after taking medicines prescribed had come back home. As his condition did not improve, he again went to the same hospital on 12.6.1999 and was admitted there on 19.6.1999 from where he was discharged on 29.6.999. He further stated that the doctor had strictly advised him not to move around.
12. Accused Rajaram also produced Hari Ram as D.W.5 to prove the plea of alibi. D.W.5 Hari Ram in his statement before the court below stated that he is related to Rajaram and he was with accused Rajaram in Bombay on 29.5.1999; that Rajaram was swatted profusely on 30.6.1999 and complained of pain in his chest; that he had taken him to J.J. Group Hospital Bombay where he was diagnosed by the doctor junior to Dr. K. Shahi, who prescribe some medicines and called him again after seven days; that he had taken Rajaram on 10.6.99 when he was called again after two days and on 12.6.1999 after investigation, Rajaram was called after seven days and on improvement of his condition, he i.e. Hari Ram had gone to Basti on 14.6.1999.
13. Similarly accused Vishwanath produced D.W.1 Ashok Kumar Pandey, senior clerk, Govt. Balika Inter College, Basti, D.W.2 Asharfi Lal, retired senior assistant in the office of DIOS, Basti and D.W.3 Indrajeet Sahu, stenographer in the office of Joint Director of Education, Kanpur, who stated that Vishwanath is a member of their organisation and Vishwanath had participated in a State Level Conference on 8.6.1999, 9.6.1999 & 10.6.1999 held at B.N.S.D. Inter College, Kanpur and was with them till conclusion of the conference on 10.6.1999 between 4 to 4.30 P.M. and thereafter all members had returned to their respective places. Apart from this, accused Vishwanath produced a certificate of U.P. Education Ministerial Association as Ex. Kha1 which was proved by D.W.3 Indrajeet Sahu.
Accused Parmatma Chaudhary in support of his case produced D.W.4 Constable Suresh Shitla Prasad Dubey, P.S. Vikrauli, Bombay, who had registered N.C.R. No. 950/99, dated 11.6.1999 at 18.30 hours. It was stated by this defence witness that aforesaid NCR contains the signatures of Parmatma Prasad Chaudhary but admitted that the said NCR was not written before him and it was in the handwriting of Inspector Kaley, who is at present undergoing S.P.G. Training at Pune. The aforesaid NCR was proved as Ex. Ka3 by Suresh Shitla Prasad Dubey.
Formal proof was dispensed with in respect of the letter written by Medical Superintendent produced by Medical record Officer, Sir J.J. Group Hospital, Bombay and the slip of said hospital which were marked as Ex. Kha5 & 6.
14. Case of the prosecution before the court below was that the accused persons in a daring act had attacked the first informant & his family members in their house by bombs, country made pistols, knife, lathi, as a result of which five persons had died on the spot and nine others were injured, all of whom were Harijans. They belong to the same family of deceased Triveni, a Harijan. The accused persons not only committed the aforesaid daring and ghastly act but had also illegally taken forcible possession over the land belonging to the first informant and his family; that the accused harboured grudge and enmity which is also apparent from the fact that accused Ramnath had falsely implicated the victims in the murder of his son in which the first informant, Sarvjeet and Ramesh Chandra were granted bail about two and half months back before the occurrence. It was also stated that in this case there are several injured eye witnesses who have given evidence against the appellants. There is no denial of factum of the occurrence and the fact that the appellants were the real assailants was fully proved from the evidence, facts and circumstances of the case. There being injured eye witnesses, the case is fully established against them.
15. The stand taken by the appellants before the court below was that document regarding murder case of Suresh Chaudhary, son of accused Ramnath which is on record admittedly prove enmity between the parties. Hypothesis was also advanced by the counsel for appellants that on the night of the occurrence, some dacoits had entered the house of the first informant and the dacoits had murdered four persons of his family and injured nine others and that the appellants have been falsely implicated in the case because of aforesaid admitted enmity; that there is material irregularity in the evidence of P.W.2 Anil Kumar, P.W.3 Ramesh Chandra and P.W.6 Km. Geeta, who are said to be injured eye witnesses and as such they cannot be relied upon. The first information report is anti time which makes the prosecution case doubtful and there being no independent witness, it is proved beyond doubt that the occurrence had not taken place in the manner as stated by the prosecution.
16. It also appears from perusal of the impugned judgment that case of the defence was that accused Rajaram, Parmatma and Vishwanath, who had taken plea of alibi and produced defence witnesses as stated above, were not present on the place of occurrence; that their case is also strengthened by the fact that names of these three accused do not find place in the first information report and lastly that there is no evidence against accused Ganesh, Ibrahim and Rakesh who are entitled to be acquitted for lack of evidence against them.
17. Contention of the counsel for appellants apart from the submissions made by the defence in the court below, is that the fact remains that prosecution story is wholly doubtful for the reason that neither there was electricity connection nor power meter in the house of the first informant where the occurrence had taken place; that the appellants had been falsely implicated as the informant and his family wanted to take revenge against the appellants for murder of Suresh Chaudhary son of accused Ramnath; that in fact the whole prosecution story is false; that the appellants had not committed the offences and that F.I.R. had been lodged implicating them in order to take revenge.
18. On the other hand, submission of the learned A.G.A. is that the prosecution has been able to prove the facts to the hilt and from the evidence on record, no other conclusion could be drawn except that the occurrence had taken place in the manner as stated by the prosecution and the same was committed by the appellants only. He further stated that merely because names of some of the accused were not there in the F.I.R., would not ipso facto brand the F.I.R. a false one. According to him, in the instant case it is to be remembered that four persons of the family of the first informant a Harijan, had died on the spot; that some of the injured who had not received very serious injuries, had gone straight to the hospital whereas those who were grievously hurt, were brought on cot to the police station for medico legal reference to the hospital and also for treatment to be given to other injured persons.
19. Learned A.G.A. next submitted that though there was some dispute between the parties regarding the land as well as false implication of the first informant in the murder case of Suresh Chaudhary son of accused Ramnath, but that would not be the reason for the first informant to lodge a F.I.R. in such a serious crime against any person wherein four members of his family had already died and nine others had received injuries. The first information report lodged by the first informant was prompt and from the evidence on record, it is submitted that it can be deduced from the statement of witness that there was electricity in the house of first informant who had taken electricity connection from the house of his brother. It is urged that it would not in any way be fatal to the prosecution case in the circumstances above even if sub meter was not installed in his home.
20. After hearing counsel for the parties and from perusal of the record, it appears that F.I.R. was lodged by the first informant P.W.1 Ram Bahal immediately after the occurrence and the matter was investigated. From the documents on record, it is proved that there was no undue delay in lodging the F.I.R. which rules out the possibility of false implication of the accused in a thoughtful and premeditated manner. From the first information report, it is apparent that the first informant Ram Bahal has categorically stated therein that at the time of the occurrence, sufficient light was there emanating from electric bulb fixed at the entrance door of their house. Not only this, the other injured witnesses had also identified and recognized the assailants in the light of electric bulbs. The fact that there was source of light is also supported by the evidence of P.W.2 Anil Kumar who is son of deceased Triveni and is an injured witness in the case as well as from the evidence of P.W.6 Km. Geeta who is also an injured witness.
21. The investigating officer has also in his cross examination mentioned the fact that at the time of inspection, he had seen electric bulbs inside and outside the house though electricity meter had not been installed. Even from the cross examination of P.W.1 Ram Bahal it is clear that though electricity meter was not installed in his house, he was drawing electricity from the house of his brother with the permission of electricity department. Hence in the circumstances merely because electricity meter was not installed in the house of the first informant, it cannot be said that there was no source of light or insufficient source of light in the facts and circumstances of the case. The court below has rightly come to the conclusion that normally after providing electricity connection, the department installs meter after much delay.
22. As regards the question of lack of independent witness is concerned, the factum of occurrence cannot be denied in which four persons of a Harijan family died on the spot and there were nine injured also, some of whom have given eye witness account of the occurrence.
It appears from the record that the accused had exhorted to kill the whole family and were throwing bombs and firing indiscriminately which had terrorised the villagers. The accused and the first informant being inhabitants of the same village, it is natural that no independent witness could be found as the accused had chosen a time of night for committing their daring act. Merely because the witnesses are partisan or are related to each other, their evidence cannot be thrown out on this ground alone. In such circumstances, the court has to scrutinise the facts closely and take out shining truth out of it. Taking into consideration the facts and circumstances of the case, the evidence led by the prosecution, cannot be disbelieved and discarded on this ground.
So far as the plea of alibi taken by accused Rajaram, Vishwanath and Parmatma Prasad Chaudhary is concerned, it does not in any manner proves the case of the appellants that they could not be present on the place of occurrence in the night intervening 10/11.6.99. From the evidence of Hari Ram D.W.5 produced by the defence, it is apparent that accused Rajaram had not been at Bombay on 11.6.99.
23. As regards the plea of alibi of accused Vishwanath who is said to have been in a conference is concerned, what had been stated by the defence witnesses is that he had gone to attend the conference on 8.6.1999 which continued till 10.6.99 upto 4 4.30 P.M. and thereafter all had gone to their respective places.
24. Similarly, the evidence of defence witness Suresh Shitla Prasad Dubey produced by accused Parmatma Prasad Chaudhary, does not prove beyond doubt that the person who had signed the NCR as Parmatma was the same person who is accused in this case. The signatures of Parmatma Prasad on the N.C.R. and that of accused Parmatma Prasad in this case, had not tallied. Moreover, the NCR was written by Inspector Kaley before whom someone might have signed as Parmatma Prasad. Inspector Kaley who is writer of the NCR and before whom the NCR was signed, was not produced. Thus, from the above defence evidence, it cannot be said that the accused could not have been present at the time and place of the occurrence. We do not find any force in the contention of learned counsel for the appellants that the evidence of P.W.1 Ram Bahal is not a reliable one as he had named only five person in the F.I.R. and not the remaining accused. In this context, suffice it to say that the assailants were in a large number and different assailants had attacked different persons of the family of the first informant, and therefore it was not possible for one person to recognise all the assailants at a time and say as to who attacked whom. Four persons who had died on the spot, cannot say who had killed them. Some of the injured had gone straight to the hospital for first aid whereas grievously injured persons were taken to the Police station on cots. The condition of the injured at the police station explains the omission of the names of some of the accused in the F.I.R. Instead of damaging rather case of the prosecution is strengthened by it and makes it more natural. The eye witnesses had seen the occurrence when they were hiding themselves and received the injuries when they were assailed. It is not the case of prosecution that one person had seen the whole incident or it was only the first informant that he has seen whole incident. A person first tries to save himself and merely because in the first information report names of all accused were not mentioned or inability of the witnesses to give a picturous details in what conditions the dead had fallen on the ground or conditions of the injured witnesses, does not make the prosecution case a false one. Lack of such details of the grossest crime of this nature tend to give credibility to the statement of eye witnesses than to create doubt in the mind of the court.
25. The evidence given by P.W.1 Ram Bahal and Ramesh P.W.3 son of deceased Triveni, who had seen the assailants coming on motor cycle and hide themselves under a TAKHT when accused had killed Tirath, is natural. These witnesses have given a very vivid picture how the assailants had attacked on the family members. The evidence adduced by the prosecution is completely supported by the medical evidence and nothing has come out inspite of lengthy cross examination which could create any doubt much less a reasonable doubt in the mind of the court to take a contrary view. Reading of the evidence adduced by the prosecution shows that the prosecution in this case has been able to prove its case thoroughly. Small irregularities or immaterial contradictions as pointed out by the counsel for the appellants which have been dealt with by the court below as well as by this Court, do not prove fatal to the prosecution case.
26. Witnesses of the prosecution, in our opinion, are reliable and believable. The appellants have failed to make any dent in the well knitted fabric of the prosecution case which has withstood onslaught on their lengthy cross examination. Any small contradiction is but natural after a long period of time. P.W.1, 2 and 3 have withstood onslaught of cross examination. P.W.2 was a very seriously injured witness who had received seven incised wounds on his throat and chest and had been under treatment in Medical College, Lucknow for about 10 11 days and he had identified some of the assailants. We find that there was sufficient light on the spot enabling the witnesses to recognize the assailants. The fact that cartridges and bombs etc. have been used at the spot of occurrence is also proved by Ex. Ka9 of Vidhi Vigyan Prayogshala which has examined remains of the explosives and has found human blood on the clothes as well as blood stained soil collected from the spot.
P.W.2 has denied the suggestion of the defence that on fateful night of 10/11/6/99 any dacoity had taken place at their house. P.W.3 Ramesh had also supported the case that they were attacked by the appellants. P.W.6 Km. Geeta had also stated that it was not a case of dacoity and nothing was looted from their house and the occurrence was committed by the appellants. It is clear from the report that signature of Pramatma Prasad on the NCR were in Hindi and had been signed by one taxi driver and were not of Parmatma Prasad accused in this case. The NCR was written before Inspector Kaley and not written and signed before Suresh Shitla Prasad Dubey. Inspector Kaley was not produced as a defence witness. The court below has rightly come to the conclusion that from viewing through naked eyes, the signatures on the NCR are different from the signatures of accused Parmatma Prasad. Similarly, Ashok Kumar Pandey, D.W.1 has also not been able to prove the presence of accused Vishwanath in the conference on all three days continuously with them and the conference ended at 4 4.30 P.M. and thereafter all persons had left for their respective places. The register brought by Indrajeet Sahu, D.W.3 has not been found reliable as entries therein are doubtful. D.W.5 Hariram also could not tell the name of junior doctor and from the record produced before the court, it is evident that surname of the patient is not written therein in the O.P.D. Slip and there is no entry of Rajaram in out door patient register on 1.6.1999 and 10.6.1999. Moreover the OPD day of Dr. Shahi is on Friday and not on other days whereas on 1.6.1999, it was Tuesday and 10.6.1999 was a Thursday and 12.6.1999 was a Saturday. The plea of alibi set up by accused Parmatma Prasad, Vishwanath and Rajaram, have rightly been rejected by the court below by assigning cogent reasons. Accused Ganesh, Ibrahim and Rakesh also appear to have rightly been acquitted by the court below.
27. There appears to be no infirmity or illegality in the impugned judgment. We concur with the findings recorded by the court below and the reasons given by it for holding the accused appellants guilty. The conviction and sentence recorded by the court below is upheld. The appeals are accordingly dismissed.
Let a copy of this judgment be certified to the C.J.M. concerned immediately for compliance.
