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N0N-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.677 OF 2006

STATE OF U.P. … APPELLANT

VERSUS

RAJESHWAR & ORS. … RESPONDENTS

J U D GM E N T

Aftab Alam,J.

1. This appeal by special leave, at the instance of the State of Uttar Pradesh  

is directed against the judgment and order dated December 21, 2001 passed by  

the Allahabad High Court  in  a  batch  of  criminal  appeals.  By the impugned  

judgment the High Court allowed all the appeals (that had come to it from a  

common judgment and order passed by the trial court) and acquitted all the 14  

accused (respondents in the present appeal) all of whom were found guilty of  

rioting and arson and committing murder of three people by the trial court and 8  

of whom were awarded the death penalty while the remaining 6 were given the  

punishment of life imprisonment.  

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2. The case of the prosecution is based on the oral statement made by one  

Brij  Pal  Singh (PW.1)  at  Kayamganj  police  station  before  the  Inspector  In-

charge of that police station. Brij  Pal Singh stated that he was a resident of  

Mauza Ballu Baheta, police station Kayamganj and there was old enmity and  

litigations  between  the  Harijans  and  the  Brahmins  living  in  his  village.  On  

account of the enmity, the accused, namely, Rajeshwar (accused no.1), Ramveer  

(accused  no.2),  Rajveer  (accused  no.3),  Patiram  @ Patanga  (accused  no.4),  

Rajesh  @ Tillu  (accused  no.5),  Omveer  (accused  no.6),  Ved  Ram (accused  

no.7),  Ram Sevak  (accused  no.8),  Ram  Sanehi  (accused  no.9),  Ram Baran  

(accused no.10), Dayashankar (accused no.11), Radhey (accused no.12), Ram  

Prakash (accused no.13) and Ramua Jatav (accused no.14) along with four-five  

unknown accused (whom he could identify by face), armed with country made  

guns,  rifles  and  kattas, came  and  surrounded  their  mohalla.  The  accused  

threatened that anybody trying to run away would not be spared. They then set  

fire  to  the  informant’s  Chhappar and  Baithak and  the  houses  of  Rambir  

Garadia, Nek Ram, Awadhesh Nai and also the house of Gangadeen. When the  

informant and the other victims of the assault tried to run away to save their   

lives,  the  accused  caught  the  informant’s  son  Manju  @  Manoj  and  Ram  

Chandra Nai and assaulted them by lathis. They shot Manju near the house of  

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Awadhesh Nai and threw him in the house that had been set ablaze by them.  

The informant’s brother Amar Singh ran towards Sadhu’s hut to save his life.   

But he was shot and killed there. The accused caught and took Ram Chander  

Nai towards south in the direction of the house of the sweeper and shot and  

killed him there.  As a result of the indiscriminate firing made by the accused,  

one Bhura of the informant’s village got pellet injuries. The entire village was  

shocked.  They beat up children and ladies. Huge loss was caused due to the  

burning of the houses.  Besides the informant’s house, the accused also burnt  

the houses of their neighbours, the Nais, and the Telees because they used to sit  

with the informant and his people. The informant was somehow able to save his  

life  and came to  the  police  station  to  report  the  offences  committed  by the  

accused.  He further said that the occurrence was seen by Jagbir son of Amar  

Singh (PW.3), Ashok son of the deceased Ram Chander (PW.2), Smt. Mahadevi  

wife of the deceased Ram Chander (not examined), and a number of others who,  

though named in the FIR, were not examined as prosecution witnesses.   He  

concluded by saying that after committing the offences, the accused had fled  

away towards Ganga’s Katri.  

3. The  statement  of  Brij  Pal  Singh  was  reduced  to  writing  and  was  

incorporated  in  the  formal  FIR  on  the  basis  of  which  the  police  took  up  

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investigation. On completion of investigation, the police submitted charge-sheet  

against all the accused named in the FIR besides three other persons, namely,  

Kunwar Pal, Rajender and Ram Lal.

4. The respondents- accused did not deny the occurrence but took the plea  

that they had no connection with it. According to the accused, it was a case of  

dacoity taking place in the dark hours of the night by unknown culprits and they  

were falsely implicated in the case on account of previous enmity.

5. All  the accused named in the charge-sheet  were put  on trial.   The 14  

accused named in the FIR were charged under sections 148, 302/149, 307/149  

and 436/149.  The other three accused who were not named in the FIR were  

charged for the same substantive offences read with section 120B of the Penal  

Code.  At  the  conclusion of the  trial,  the  trial  court  found and held that  the  

prosecution was not able  to establish charges against  the three accused who  

were not named in the FIR.  It, accordingly, acquitted them.  But the rest of the  

14 accused (the respondents in this appeal) were held guilty of the offences of  

which  they  were  charged  and  were  convicted  under  sections  148,  302/149,  

307/149  and  435/149.   Having  been  found  guilty  of  rioting,  arson  and  

commission of murder,  Rajeshwar,  Ramveer,  Rajveer,  Omveer,  Ram Sewak,  

Daya Shankar, Ram Prakash @ Lojhadi and Radhey were sentenced to death.  

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The other six accused were given the punishment of life imprisonment. All the  

accused were fined a sum of Rs.10,000/- each with the default sentence of two  

years imprisonment.  

6. On appeal by the accused, as noted above, the High Court by judgment  

and order dated December 21, 2001 set aside the judgment of the trial court and  

acquitted all the accused.

7. It  is  noted  above  that  occurrence  and  the  manner  in  which  the  three  

persons on the prosecution side were killed are not in dispute. Hence, the only  

question  that  requires  consideration  by  the  Court  is  in  regard  to  the  

identification of the respondents as the accused.

8. Before  proceeding  further,  it  would  be  useful  to  take  note  of  certain  

special  features of this case.  Old and bitter  enmity between the two sides is  

admitted by the prosecution. As a matter of fact, that is said to be the cause   

behind the attack on the members of the prosecution party. From the depositions  

of the prosecution witnesses it also comes to light that there have been a number  

of killings on both sides.

9. The other relevant fact to be taken note of is that Rajeshwar (accused 1),  

Ramveer  (accused  2),  Rajbir  (accused  3),  Patiram  @  Patanga  (accused  4),  

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Rajesh  @  Tillo  (accused  5)  are  all  full  brothers.  Omveer  (accused  6)  and  

Vedram (accused 7) are full brothers. Ramsevak (accused 8) and Ram Sanehi  

(accused  9)  are  full  brothers.  Ram  Baran  (accused  10)  and  Dayashankar  

(accused  11)  are  full  brothers.  Ram  Prakash  @  Lojhadi  (accused  12)  and  

Radhey  (accused  17)  are  full  brothers.  Further,  of  the  3  acquitted  accused,  

Kunwar  Pal  and  Rajendra  were  full  brothers.  Thus,  there  appears  to  be  a  

propensity to implicate the members of the same family.

10. Thirdly,  though all  the  accused are  named in the FIR and also  in  the  

depositions of the prosecution witnesses, the witnesses appear to be careful not  

to attribute any specific role or any specific weapon to any of the accused and  

all the fourteen accused are mentioned in an ominous way.

11. These are the facts and circumstances that seem to have weighed with the  

High Court in appreciating the prosecution evidence and taking the view that the  

prosecution witnesses do not appear natural and do not inspire confidence.

12. The prosecution examined five eye witnesses in support of its case. Brij  

Pal Singh (PW.1) is the Informant. He is the father of Manju @ Manoj and  

brother of Amar Singh, two of the three persons killed in the occurrence. In the  

examination-in-chief he fully supported the prosecution case and named all the  

fourteen respondents as the accused. The High Court, however, points out that  

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he  did  not  assign  any  role  or  attribute  any  weapon  to  any  of  the  fourteen  

accused.  In  cross-examination  he  stated  that  he  saw  his  son,  Manju,  being  

caught by the accused and being taken towards west. He was taken near the  

house of Awadhesh Nai where he was assaulted with a lathi as a result of which  

he fell down and then he was shot. He followed his son as he was caught by the  

accused and was being taken towards the house of Awadhesh Nai and he saw  

him being shot from a distance of about 2-3 steps.

13. The High Court points out that though claiming to be a witness of his son  

being shot from such close distance, he evaded the question as to who were the  

actual accused who had caught him, assaulted him with lathi or shot at him.  

Further, in his statement before the police he had said that as the accused set fire  

to his chappar he fled away in a certain direction. From the site plan prepared  

by the Investigating Officer it appeared that from the direction in which PW.1  

had ran away it wouldn’t be possible to see the spot where Manju was allegedly  

shot.  PW.1,  of  course,  denied  having  made  any  such  statement  before  the  

Investigating Officer, but the I.O. confirmed that he had said so in his statement   

under section 161 of the Code of Criminal Procedure.

14. Ashok Kumar (PW.2) is the son of Ram Chander, the third person killed  

in the occurrence. The High Court has pointed out a number of anomalies in his  

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deposition before the court. Further, with reference to his statement made under  

section  161 of  the  Code of  Criminal  Procedure  there  appears  to  be  a  clear  

attempt on his part to improve the prosecution case and to try to implicate more  

and more persons as accused.

15. Jagbir  (PW.3) is the nephew of Brij  Pal  Singh (PW.1) and son of the  

deceased Amar Singh. In his examination-in-chief he supported the prosecution  

case  and  named all  the  accused  without  assigning  to  any  one  of  them any  

specific role. The High Court has pointed out that his statements made in the  

cross- examination are equally riddled with inconsistencies and also show an  

effort to improve the prosecution case from stage to stage.

16. Awadhesh  (PW.4)  was  not  named  as  a  witness  in  the  FIR.  He  also  

appears  to  support  the  prosecution  case  but  on  a  closer  scrutiny  of  his  

deposition, the High Court has pointed out a number of discrepancies.

17. Bhurey  (PW.5)  is  one  of  the  injured  witnesses.  He  has  named  the  

respondents  as  the  accused  but  at  the  same  time  he  said  that  some  of  the   

miscreants were covering their  faces.  He was unable to disclose how and at  

whose hands he himself received the injuries.

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18. The High Court has examined the prosecution witnesses in considerable  

detail  and has observed that  in the background of the long and very hostile  

enmity  between  the  two  sides  and  the  witnesses  being  highly  interested,  it  

would not be safe to rest the respondents’ conviction on their evidences.

19. On going through the judgments of the trial court and the High Court and  

the depositions of the prosecution witnesses, we are unable to hold that the view  

taken by the High Court is unreasonable or implausible. We are satisfied that in  

the overall facts and circumstances of the case, no interference is warranted with  

the judgment of the High Court in exercise of the powers under Article 136 of  

the Constitution of India. The appeal is, accordingly, dismissed.

…………………………...J. (Aftab Alam)

…………………………...J. (R.M. Lodha)

New Delhi, April 16, 2013.  

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