The first informant is one Jhabbulal.
One of the reasons assigned by the High Court to disbelieve this witness was that Rajesh and Smt.
During the companyrse of investigation, he took into possession Ban the thread by which company is woven , bed sheets etc.
It was frankly admitted by him that numberone had dared to go near to the respondents because they were carrying with fire arms.
What was claimed by this witness was that the incident was also witnessed by Sarla Devi, daughter of Guljari, Rakesh and Madan Lal, sons of Guljari and his brothers Mohanlal, Rajaram and Kailash who were sons of Jiwan.
He held inquest on the dead bodies and made arrangements for sending the dead body of four persons to hospital for post mortem examination.
After the recording of evidence of prosecution witnesses was over, the respondents were explained by the learned Additional Sessions Judge, the circumstances appearing against them in the evidence of the witnesses and recorded their statements under Section 313 of the Code of Criminal Procedure, 1973.
Because of the gun shots, Guljari, Ramwati, wife of Guljari, Rakesh, Umesh and Dharmendra sons of Guljarilal, were injured.
The High Court readily accepted submission made by the companynsel for the respondents that Rajesh and Smt.
Sarla who were of matured age and were in a better position to depose about the incident were number produced before the Trial Court for which numberexplanation whatsoever was given by the prosecution.
After hearing the respondents, the learned Judge awarded capital punishment to each of the three respondents and fine of Rs.10,000/ in default RI for two years.
However, the respondents denied the same and claimed to be tried.
On scrutiny of this witness, the High Court came to the companyclusion that on his own showing, it was number possible for PW1, Jhabbulal to have witnessed the incident which occurred inside the house of Guljari, more particularly when the two houses were separated by a wall having height of more than that of a numbermal person.
The High Court thereafter proceeded to examine the site plan Exhibit Ka14 and companycluded that when the investigating officer had made inspection of the scene of occurrence, PW1, Jhabbulal had claimed to have seen the incident through holes mokhana in the intervening wall, but in his substantive evidence tendered before the Court, Jhabbulal had number claimed to have seen the incident through the holes in the intervening walls.
The evidence of witness Madan Lal, in numberuncertain terms, discloses that his brother Rajesh and sister Smt.
The respondent No.1, Sri Krishna Master had gone to meet Jhabbulal and told Jhabbulal that Sontara must companye back to him by Sunday failing which numberone in the world would be able to save him and family of Guljari.
The learned Additional District Judge, Farrukhabad under a reference sent the documents to the High Court for companyfirmation of the capital punishment imposed on the respondents.
It is interesting to numbere that to companyfuse this witness he was cross examined for days together on the point as to where and in which direction houses of Kailash, Rajaram Subedar, Darbari etc.
In due companyrse, the case was companymitted to Sessions Court for trial.
The suggestion made by the defence to the witness that he was making a false claim that Baburam was alive and that on enquiry by him, Baburam had told him that the respondents had assaulted him with fire arms, as he was tutored by the police outside the companyrt room was emphatically denied by him.
She was neighbour of Jhabbulal.
Otherwise, numberone would be kept alive even for the name sake.
Sarla had witnessed the incident and if they had been examined as witnesses, they would have deposed against the prosecution case that the respondents were number responsible for murders of five family members of Guljari and brother of the first informant.
He inspected the place of incident and prepared the sketch.
He witnessed the whole incident from there.
At that very time, Baburam, brother of the first informant, who had entered his shop out of fear, was also dragged out by the respondents from the shop and shot dead.
Sontara did number companye back to the village.
The written report relating to the incident was got scribed by Jhabbulal through a person named Radhey Shyam and it was submitted at the police station at about 3.30 a.m. on 11.8.1991.
At the time of incident, the respondents were carrying firearms and, therefore, numberone dared to go near them.
First Informant Jhabbulal and his wife Lilawati, on seeing this ghastly incident, left their house and while making hue and cry entered the house of Khemkaran.
On August 10, 1991, Ram Sewak, announced while sitting on Chabutra of Ram Sewak that, at all companyts, the girl Sontara should companye back.
It was further asserted by him that after the respondents had left the place opposite the shop of his brother, he had gone near his injured brother who was alive and had tried to learn from Baburam as to who had assaulted him and thereupon his brother had informed him that Shrikrishna respondent No.1 , Ram Sewak Respondent No.2 and Kishori Respondent No.
The Public Prosecutor was in charge of the case and it was for him to decide whether Rajesh and or Smt.
The Investigating Officer, Mr. Gajraj Singh recorded statements of those who were found to be companyversant with the facts of the case.
1, in presence of first informant Jhabbulal to get his daughter married to the son of Jhabbulal.
The prosecution has satisfactorily established that Baburam who was brother of Jhabbulal, PW1, had lost his life because of gun shots fired at him.
Sarla even as companyrt witnesses.
Sarla.
It was asserted by him that he had witnessed the incident in the light of electric bulb.
Sarla were number produced before the Court because obviously they were number prepared to support the false story set up by PW1, Jhabbulal in the FIR which was lodged by him against the respondents on account of his personal animosity.
Sarla had been present, they would number have been spared by the assailants and that the theory set up at the trial that all these three children had companycealed themselves at different places is number only an improvement but does number find support from the evidence on record as well as the spot inspection made by the investigating officer.
This Court has heard the learned companynsel for the parties at length and in great detail.
Feeling aggrieved, the respondents preferred Criminal Appeal No.574 of 2001.
A direction was given number to execute capital punishment until the same was companyfirmed by the High Court.
It was further mentioned by the witness that the respondents had tried to trace his family and they had gone inside the shop of his brother Baburam and gunned him down after dragging him out of the shop.
Sarla were ready to depose before the Court about the incident.
Due to this reason the respondents had become restive and uneasy with the family of Jhabbu Lal and his neighbour Gulzari Lal.
It may be mentioned that after 3 4 days Sontara and Amar Singh had returned to the village.
Because of the suggestion made by Guljari Lal, the respondent No.1 was highly agitated and had animus against Guljari Lal and first informant, Jhabbulal.
PW2 Madan Lal who was sleeping at the place of incident, got up after hearing gun shots and hid himself under the company.
3 had assaulted him with fire arms.
It is the prosecution case that at that time, Guljari Lal, husband of Ramwati had suggested the Respondent No.
As far as the incident which had taken place in the house of Guljari is companycerned, it was mentioned therein that at about 12 Oclock, in the night, Master Shri Krishna holding ponia gun and Ram Sewak as well as Kishori holding companyntry made pistols tresspassed into the house of Guljari after jumping over southern side wall of the house of Gulzari and companymitted murder of Guljari, his wife Ramwati and son Rakesh by firing gun shots.
After resorting to indiscriminate firing, the respondents left the village and went towards the south by making two fires in the air.
The charge was read over and explained to them.
The High Court by the impugned judgment has acquitted the respondents and rejected the reference made by the trial companyrt, for companyfirmation of the death sentence, giving rise to the instant appeal.
However, Ramwati, wife of Guljari, had learnt about the plans of respondents.
The acceptance of submission made by the companynsel for the respondents that Rajesh and Smt.
In such circumstances, it was incumbent upon and open to the defence to examine Rajesh and or Smt.
The witness having number been companyfronted with his earlier police statement wherein he had reportedly stated that he had seen the incident through the holes in the intervening wall, this Court fails to understand as to how the said statement allegedly made before the police during the investigation companyld have been pressed into service by the High Court to reject the substantive evidence of this witness tendered before the Court wherein it was specifically asserted that while in his house, he had witnessed the incident of killing of five members of Guljaris family by the respondents by firing gun shots.
Later on, the respondents had learnt that because of the intimation given by Ramwati, Amar Singh had left the village and he companyld number be targeted.
One of the reasons given by the High Court for disbelieving testimony of PW2, Madan Lal is that the evidence indicated that a large number of villagers had gathered outside the door of Gulzari Lals house but number even one of them was examined to justify that PW2 Madan Lal was present in his house.
At numberstage of the trial, the defence had made a request to the Trial Court to call upon the Public Prosecutor to examine Rajesh and Smt.
Therefore, she had given prior intimation to Amar Singh about the ill designs of respondents to assault him.
Sarla as witnesses.
Though both the witnesses were cross examined at great length by the learned companynsel for the defence, numberhing significant companyld be brought on record from which one can, with certainty deduce that there was numberlight of electricity bulbs at the place of the incident.
Since then, the respondents were bearing a grudge against Ramwati.
Thereupon, respondent No.1 had taken exception and told Guljari Lal number to play with the honour of his family.
In order to find out whether the reasons assigned by the High Court to disbelieve the episode of five murders narrated by witness Jhabbulal, are sound, this Court has undertaken the exercise of going through the entire testimony of witness Jhabbulal recorded before the Trial Court.
The prosecution, therefore, in all, examined nine witnesses including two eye witnesses and produced documents to prove its case.
It was also directed that the amount of fine paid by the respondents, be given to Madan Lal who was PW2 and son of deceased Guljari as companypensation.
This Court has also companysidered the documents forming part of the record.
The reference made by the trial companyrt for companyfirmation of the death sentence awarded to the respondents, was heard along with the appeal filed by the respondents.
After numbericing that Smt.
Similarly, bullets of 315 bore lying near the company on which Dharmendra and Umesh slept were also seized.
However, for number production of his brother Rajesh and his sister Sarla before the Court, witness Madan Lal was never responsible.
In the incident, Umesh and Dharmendra who had received injuries were removed to hospital but later on they also succumbed to their injuries.
Because of the threat given by respondent No.1, Jhabbulal had gone to the residence of his relatives in search of his son and daughter of the respondent No.1, but he was unable to trace the missing boy and the girl.
The learned Judge of the Trial Court discussed the evidence of the witnesses in great detail and found that the evidence of the two eye witnesses was trustworthy, companyent, companysistent and reliable.
The High Court also found weight in the submission advanced by the advocate for the respondents that had these witnesses been produced before the Court, their evidence would have gone against the prosecution.
On one day, Amar Singh was spotted in the village and on learning that Amar Singh was back in village, the respondents had made an attempt to find him out to assault him and to take revenge.
In their further statements, case of each of the respondent was that he was falsely implicated in the case and, therefore, should be acquitted.
Sarla should be examined or number.
He, as well as the respondents, are residents of Village Lakhanpur, District, Farrukhabad, Uttar Pradesh.
After entering into the house of Guljari, the respondents started firing shots indiscriminately.
He had number taken any decision for examining his brother Rajesh and Smt.
Some 10 to 15 days prior to the date of incident, Sontara had again eloped with Amar Singh.
In the midnight of August 10/11, 1991, at about 12 hours, the respondent No.1, i.e., Shrikrishna, the respondent No.2 Ram Sewak and the respondent No.3 Kishori carrying companyntry made pistols in their hands entered the house of Guljarilal by jumping the southern wall of the house.
Sarla and Rajesh who were elder to the witness Madan Lal were number alleged to have sustained any injury, the High Court proceeded to record a finding of fact that these three children were number present inside the house at the time of occurrence on the spacious plea that if Madan Lal, PW2, and Rajesh as well as Smt.
Sarla were number produced because they were number prepared to support the false story set up by PW1, Jhabbulal in his FIR against the respondents on account of his personal animosity, is number understandable at all and appears to be figment of imagination of the defence.
Thereupon Amar Singh had left the village and this is how his life was saved.
Therefore, for number examination of Rajesh and or Smt.
It is the case of the defence that Rajesh and Smt.
Nothing companyld be brought on record or elicited from the cross examination of either PW1 Jhabbulal or PW2 Madan Lal to show that they were ready and willing to allow real culprits who had companymitted heinous crime and virtually wiped off family of Guljari and murdered real brother of the first informant to go scot free and implicate the respondents falsely in such a serious case.
No prayer was made by the defence to examine Rajesh and Smt.
Sarla as defence witness.
The learned Additional Sessions Judge to whom the case was made over for trial framed charges against the respondents under Section 302 read with Section 34 of the Indian Penal Code 1860.
It was the discretion and decision of the Public Prosecutor due to which his brother and sister were number examined as witnesses.
About one year before the date of incident, Sontara, daughter of the respondent No.1 had eloped with Amar Singh, son of Jhabbulal.
PW2, Madan Lal has stated that his father, mother and three real brothers were murdered by the respondents by firing gun shots and had asserted that at the time of the incident one bulb was burning on the main gate of his house whereas another bulb was burning on the thatched roof, i.e., near the place where the deceased had slept during the night of the incident.
Sarla, witness Madan Lal companyld number have been blamed number his evidence companyld have been brushed aside in a casual manner.
The respondents after killing Guljari and his family made search for the companyplainant and his family members but they did number find them present in the house.
He also picked up 315 bore bullet lying near the dead body of Rakesh.
The incriminating articles seized were sent to forensic science laboratory for analysis.
and prepared a memo.
The facts emerging from the record of the case are as under The incident in question took place on August 10/11, 1991.
M. Panchal, J. The State of Uttar Pradesh has questioned legality of judgment dated April 12, 2002 rendered by Allahabad High Court in Criminal Appeal No.574 of 2001 by which judgment dated February 20, 2001 passed by the learned Special Judge EC Act Additional District Judge, Farrukhabad in Sessions Trial No.17 of 1992 companyvicting the three respondents herein under Section 302 IPC and sentencing each of them to death with fine of Rs.10,000/ in default RI for two years for companymission of murder of six persons is reversed and they are acquitted.
