# Ganesh & Ors v. State of U.P

- **Citation:** (2022) 10 ILRA 166
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Criminal Appeal No. 931 of 1999
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganesh-ors-v-state-of-u-p-47701
- **Pages:** 17

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 147,148, 149,
302
&
307-Challenge
to-Convictionmurder-no delay in FIR, time taken by the
witnesses to lodge the FIR is justifiable as
the incident took place in midnight and
the distance of police station was 7 km.
from the place of occurrence- death of the
deceased persons were caused as a result
of ante-mortem fire arm injuries as stated
by PWs 1 to 4-The eye-witness account
finds support with the medical evidenceSite plan and FSL report proves the place
of occurrence- Witnesses had no enmity
to implicate falsely to the appellant-the
method, time and manner as deposed by
the ocular witness PW1 to PW4 proves
their presence on the spot-As a result,
Witnesses testimony is wholly reliable
and trustworthy-Thus, trial court rightly
appreciated the evidence.(Para 1 to 65)

B. It is well settled that the evidence of
interested or inimical witnesses is to be
scrutinized with care but cannot be
rejected merely on the ground of being a
partisan evidence. if on a perusal of the
evidence the Court is satisfied that the
evidence is creditworthy there is no bar in
the Court relying on the said evidence.
(Para 54)
The appeals are dismissed. (E-6)

List of Cases cited:
10 All. Ganesh & Ors. Vs. State of U.P.
167

## Text

_Characters 0–39,907 of 57,552. This is a partial read: ask again with offset=39907 for what follows._

166 INDIAN LAW REPORTS ALLAHABAD SERIES
not consider or lay down the law on the
subject. It is only the ratio of a judgment
which is binding and not its operative
portion.

12. Now we proceed to consider the
other relief prayed for regarding the viscera
analysis
report.
We
find
from
the
postmortem report that though the cause of
death mentioned therein is due to asphyxia
as a result of ante mortem drowning
however to rule out poisoning viscera for
chemical examination has been preserved.
Therefore as for as this relief is concerned
the Investigating Officer shall consider this
aspect of the matter as per law.

13. We accordingly reject the relief
no.1 and dispose of the petition as far as
relief no.2 is concerned with the aforesaid
observations.

14. The petition is disposed of.

15. No orders as to the costs.
----------
(2022) 10 ILRA 166
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 931 of 1999
With
Criminal Appeal No. 1655 of 2007

Ganesh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri D.N.Wali, Sri Apul Misra, Sri D.R.
Chaudhary, Sri Dharmendra Singh, Sri Dilip
Kumar, Sri Ishwar Chandra Tyagi, Sri M D
Mishra, Sri Noor Mohammad, Sri P.N.Misra,
Sri R.B.Sharma, Sri Rajiv Gupta, Sri Rajrshi
Gupta, Sri S.P.S. Raghav, Sri S.S. Giri, Sri
Syed Shahnawaz Shah, Sri Manish Kumar
Tripathi,
Sri
Ram
Babu
Sharma,
Sri
Devendra Singh, Sri Anil Raghav, Sri R.C.
Pandey, Sri Santosh Kumar Singh

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 147,148, 149,
302
&
307-Challenge
to-Convictionmurder-no delay in FIR, time taken by the
witnesses to lodge the FIR is justifiable as
the incident took place in midnight and
the distance of police station was 7 km.
from the place of occurrence- death of the
deceased persons were caused as a result
of ante-mortem fire arm injuries as stated
by PWs 1 to 4-The eye-witness account
finds support with the medical evidenceSite plan and FSL report proves the place
of occurrence- Witnesses had no enmity
to implicate falsely to the appellant-the
method, time and manner as deposed by
the ocular witness PW1 to PW4 proves
their presence on the spot-As a result,
Witnesses testimony is wholly reliable
and trustworthy-Thus, trial court rightly
appreciated the evidence.(Para 1 to 65)

B. It is well settled that the evidence of
interested or inimical witnesses is to be
scrutinized with care but cannot be
rejected merely on the ground of being a
partisan evidence. if on a perusal of the
evidence the Court is satisfied that the
evidence is creditworthy there is no bar in
the Court relying on the said evidence.
(Para 54)
The appeals are dismissed. (E-6)

List of Cases cited:
10 All. Ganesh & Ors. Vs. State of U.P.
167
1. St. of H.P. Vs Jeet Singh (1999) 38 ACC 550
SC

2. Rameshwar & ors. Vs St. (2003) 46 ACC 581

3. St. of Har. Vs Sher Singh & ors. (1981) Cr.
Ruling 317 SC

4. Brahm Swaroop & anr. Vs St. of U.P. (2011) 6
SCC 288

5. Dalip & ors. Vs St. of Punj.(1953) AIR SC 364

6. Masalti Vs St. of U.P.(1965) AIR SC 202

7. St. of U.P. Vs Naresh & ors.. (2011) 4 SCC
324

8. Bhajan Singh Vs St. of Har. (2011) 7 SCC 421

9. Abdul Sayeed Vs St. of M.P.(2010) 10 SCC
259

10. Kailas & ors. Vs St. of Mah. (2011) 1 SCC
793

11. Durbal Vs St. of U.P. (2011) 2 SCC 676

(Delivered by Hon'ble Subash Chandra
Sharma, J.)

1. These criminal appeals emanate
from the judgment and order dated
21.04.1999 passed by the learned Vth
Additional Sessions Judge, Meerut in
Sessions Trial No. 647 of 1997 (State Vs.
Ganesh and others), S.T. No. 863 of 1997
(State Vs. Sriram), S.T. No. 1042 of 1997
(State Vs. Charan Singh), S.T. No. 1559 of
1997 (State Vs. Raju and others), arising
out of Crime No. 08 of 1997, under
Sections 147, 148, 149, 302, 307 IPC,
Police Station Hashtinapur, District Meerut,
whereby the appellants-Sriram, Ganesh,
Rajveer s/o Harbans, Rajveer s/o Naththu,
Shekhar, Pramod, Vijendra @ Banti and
Rohtash, each have been convicted and
sentenced under Section 148 IPC for three
years rigorous imprisonment with fine of
Rs. 1000/-, in default of payment of fine
they
have
to
undergo
additional
imprisonment for a period of six months;
under Section 307/149 IPC for seven years
rigorous imprisonment with fine of Rs.
5000/-, in default of payment of fine they
have to undergo additional imprisonment
for a period of two years and Section
302/149 IPC for life imprisonment with
fine of Rs.10,000/-, in default of payment
of fine they have to undergo additional
imprisonment for a period of three years.
All
the
punishments
are
to
run
concurrently. Accused Charan Singh, Raju
and Pintu were acquitted of the charges.

2. During pendency of the appeal,
appellant Ganesh had died, therefore,
appeal on his behalf stood abated.

3. The prosecution case, in brief, is
that on 17.1.1997 at about 3.10 a.m., an
F.I.R. was lodged at the Police Station
Hashtinapur,
District
Meerut
by
the
informant
Ved
Prakash
r/s
Village
Rustampur Bhikund, P.S. Hashtinapur,
District Meerut by filing a written report
stating therein that on 16/17.1.1997, in the
mid night he along with his uncle Rohtash,
Mauli,
Narendra,
Sanjay,
Baleshwar
residents of Bhikund were sleeping in their
house. He and his uncle Rohtash were
sleeping in the varandan where lantern was
lit up. At about 12 o'clock in the mid night,
near about one dozen people in the police
attire equipped with weapons came to their
house and woke up his uncle, asked him to
get the door opened. The informant was
told by his uncle Rohtash that that was the
gang
of
dacoit
Sriram
resident
of
Kishunpur. He and his uncle Rohtash
identified Sriram, Ganesh, Rajveer Jatav,
Banti Jatav, Pramod, Shekhar, Rajveer s/o
Natthu but remaining six persons could not
be identified. As soon as the door was
168 INDIAN LAW REPORTS ALLAHABAD SERIES
opened, Sriram and Ganesh along with
their other companions started firing on the
sons of Rohtash, who were sleeping inside.
Due to fear the informant hid himself in a
nearby hut. When the assailants came out,
the informant heard that Sriram was
abusing to ''Gurjars' and saying that he took
revenge of ''Ikwara Kand'. The accused
person thereafter went to the baithaka of
Kartar Singh and made fire while abusing
the ''Gurgars' and then went away towards
the forest. The informant then went to his
Dukriya (room) where he saw in the torch
light that Rohtash and his son Baleshwar
were lying injured and Narendra, Mauli and
Sanjay sons of Rohtash were lying dead. In
the meantime, Dhan Singh came there and
told him that the gang of dacoit Sriram had
murdered his cousin Kartar Singh and Babu
as also his son Subhash. The informant
went to the police station with his injured
uncle Rohtash, brother Baleshwar and
Dhan Singh on the same day at about 3.10
a.m. and filed the written report, on the
basis of which the case was registered as
Crime No. 08 of 1997 under Sections 147,
148, 149, 302/307 IPC. The detail of the
case was entered into the G.D. as report
No. 6 dated 17.01.1997.

4. The investigation of the case was
handed over to the Station House Officer
R.P. Gupta.

5. Investigating Officer along with S.I.
Brij Mohan Singh Rana went to the place of
occurrence where on the direction of the
investigating officer, S.I. Brij Mohan Singh
Rana conducted the inquest of the deceased
persons and inquest reports were prepared by
him along with other relevant papers required
for the purpose of post-mortem. Dead bodies
were sealed and handed over to constables
Ravindra Singh and Jagpal who took them to
the Mortuary. Injured Narendra was sent to
the Medical College where he was declared
dead and his inquest was conducted by S.I.
A.K. Sharma and inquest report along with
relevant papers was prepared, the dead body
was sealed and sent to mortuary.

6. The post-mortems of the dead bodies
of six deceased persons were conducted on
18.1.1997 by Dr. Ashok Kumar Yadav. The
antemortem injuries found on the person of
deceased Mauli are as under:

I. Gun shot wound entry 2 cm x 1
cm x muscle deep on front of left and upper
arm, upper part connecting to wound of Exit
2 cm x 1 cm on the inner side of arm.

II- Gun shot wound of entry 2 cm x
2 cm x chest cavity on the front and outer
side of left side chest. 2 cm. Medial to
axillary fold connecting to wound of exit 2.1
cm x 1. 5 cm on back of right side chest
lower part.

7. The antemortem injuries found on
the person of the deceased Sanjay are as
under:

I. Gun shot wound of entry 2 cm x
1.5 cm x brain cavity deep on left side head. 2
cm above the left ear blackening and
tattooing present.

II. Gun shot wound exit 2.5 cm x
2 cm on the front right side neck 4 cm
above the right clavicle bone medial and
margin averted connecting to injury no. 1.

III- Gun shot wound of entry 2
cm x 1 cm x chest cavity deep on right side
front and upper of chest 2 cm below the
mid line joint of right clavicle connecting
to wound of exit 3 cm x 3 cm on the outer
aspect of right side chest 5 cm. Below
axillary joint.

IV- Gun shot wound of entry 2
cm x 1.8 cm x abdomen cavity deep on
back of right side abdomen lower part. 4
10 All. Ganesh & Ors. Vs. State of U.P.
169
cm above iliac spine connecting to wound
of exit. 4 cm x 4 cm on frontal abdominal
upper part small and large intestine coming
out.

V- Gun shot wound of entry 1.5
cm x 1 cm x muscle deep on the outer and
back aspect left forearm lower part
connecting to wound of exit. 2 cm x 2 cm
on the inner aspect of left forearm.

8. The antemortem injuries found on
the person of the deceased Babu are as
under:

I. Gun shot wound entry 5 cm x 2
cm x brain cavity deep on front of nose.
Blackening and tattooing present.

II. One metallic bullet recovered
from brain cavity.

9. The antemortem injuries found on
the person of the deceased Kartar Singh are
as under:

I. Gun shot wound entry 8 cm x 8
cm x bone deep on the right side face
underneath fracture of maxilla mandible
bone.

II. Gun shot wound entry 3 cm x
1 cm x chest cavity deep on left site front
of chest 5 cm above left nipple.

III. Gun shot wound 2 cm x 0.5
cm x muscle deep on the frontal right
shoulder two metallic of pieces recovered
from underneath muscle and chest.

10. The antemortem injuries found on
the person of the deceased Narendra are as
under:

I. Incised wound 10 cm x 5 cm x
brain cavity deep on the right side head
underneath bone cut brain matter.

II. Gun shot wound of entry 2 cm
x 1 cm x muscle deep outer part of right
shoulder.

III. Gun shot wound of exit 3 cm
x 2 cm on back of right shoulder
connecting to injury no. 1 margin everted.

11. The antemortem injuries found on
the person of the deceased Subhash are as
under:

I. Gun shot wound entry 2 cm x 1.5
cm x chest cavity deep on frontal right side
chest. 4 cm away from right nipple at 3
o'clock
position,
one
metallic
bullet
recovered from the chest.

12. S.I. B.N. Rana collected pieces of
board, plain and blood stained soil, empty
cartridges from the place of occurrence.
After inspection of the place of occurrence,
prepared the site plan and recorded
statements of the witnesses conversant to
the facts of the case. He arrested all the
accused persons and submitted the charge
sheets
against
Ganesh,
Rajveer
s/o
Harbansh, Rajveer s/o Nathu, Shekhar,
Pramod, Brijesh, Banti and Rohtash to the
court concerned. Later on, the investigation
was handed over to S.I. Rajendra Prasad
Yadav who conducted the identification
parade of accused Charan Singh, Raju and
Pintu and collected evidence, filed the
charge sheets against Sriram, Charan
Singh, Raju and Pintoo in the court
concerned.

13. Learned Chief Judicial Magistrate
took cognizance of the offence and
provided copies of the prosecution papers
in compliance of Section 207 Cr.P.C. to the
accused persons and committed the case to
the Court of sessions for trial.
170 INDIAN LAW REPORTS ALLAHABAD SERIES

14. The trial court after taking into
consideration the material on record,
framed the charges under Sections 148,
302/149 and 307/149 IPC against all the
accused/appellants.

15. Charges were read-over and
explained to the accused/appellants who
pleaded not guilty, denied the charges and
demanded trial. Consequently, the case was
fixed for prosecution evidence.

16. In support of its case, the prosecution
examined P.W.1 Ved Prakash who is the first
informant; P.W.2 Rohtash; P.W. 3 Baleshwar,
P.W.4 Dhan Singh, P.W. 5 H.C. Buddh Raj
Singh who prepared the check report; P.W. 6
Dr. Ashok Kumar Yadav who conducted the
autopsy and prepared the postmortem reports;
P.W. 7 S.I. Brijmohan Rana who conducted
inquest of the deceased persons and prepared
inquest reports and other relevant papers; P.W. 8
constable Ravindar Singh who brought the dead
bodies to the mortuary for post-mortem; P.W. 9
Mitthan Lal Jain who conducted identification
parade; P.W. 10 Inspector R.P. Gupta who
investigated the case and submitted charge
sheet; P.W. 11 Adesh Dhankar who operated the
injured Baleshwar and P.W. 12 Rajesh Prasad
Yadav who conducted the investigation of the
case after inspector R.P. Gupta and submitted
the charge sheets.

17. On conclusion of the prosecution
evidence, statements of the appellants were
recorded under Section 313 Cr.P.C. wherein
they had denied all the allegations made
against them.

18. The defence opportunity was
given to the accused persons but no
evidence was adduced.

19. The learned trial court passed the
order dated 21.4.1999 convicting and
sentencing the appellants as aforesaid,
hence this appeal.

20. Heard Sri Dharmendra Singh and
Sri Akhilesh Kumar Mishra, learned
Advocates
for
the
appellants,
Sri
Dharmendra Singh, learned Amicus Curiae
appearing on behalf of appellant Sri Ram
and learned A.G.A. for the State and
perused the record.

21. Learned counsel for the appellants
submits that learned trial court had not
made proper appreciation of evidence on
record but passed the judgment and order
against the established principles of law.
There was no motive with the accused
persons, to commit murder of the deceased
persons. The incident took place in the mid
of the night when identification of accused
persons was not possible. There was no
source of light. All the prosecution
witnesses could not identify the accused
but they have deposed on the basis of
hearsay. There are contradictions in the
statements of Prosecution Witnesses. No
any public witness was present to see the
incident except the relatives of the
deceased whose testimony cannot be said
to be reliable they being interested
witnesses. Though Prosecution Witnesses
had stated that accused persons had
committed murder of deceased persons but
no specific role had been assigned to any of
the accused. In this way, the conviction as
recorded by the learned trial court is not
sustainable and it is to be set aside.

22. Learned A.G.A., in rebuttal, urged
that though there was no personal enmity or
motive with the accused against the
deceased persons but there was communal
rivalry between two gangs and that was the
reason for the murder. At the time of
incident, there was light of lantern and
10 All. Ganesh & Ors. Vs. State of U.P.
171
lamp at the place of occurrence wherein
accused persons were identified by the
Witnesses, who had also sustained injuries
in the same occurence. Accused persons
were well identified by the Witnesses and
the contradictions in the statements of
witnesses are minor which do not affect
their credibility. The Prosecution Witnesses
are though relatives but they are natural
witnesses
and
injured
in
the
same
occurence which fact prove their presence
on the spot. In this way, the learned trial
court has convicted the accused persons on
the basis of the evidence on record and the
decision cannot be said to be illegal but
these appeals lack merit and are liable to be
dismissed.

23. From the submissions made by
the learned counsels for parties, the
following
questions
emerge
for
consideration by this Court- (i) as to
whether there was motive to commit
murder of the deceased persons, (ii) source
of light in which accused were identified,
(iii) contradictions in the testimony of
witnesses affecting the very root of the
prosecution case and (iv) Prosecution
Witnesses being relatives and interested are
reliable.

24. Before we deal with the
contentions of the learned counsel for the
appellants, it would be convenient to take
note of the evidence adduced by the
prosecution.

25. P.W. 1 Ved Prakash who is
informant, deposed that on the date of the
incident, i.e. 16/17.1.1997 in the night, he
was sleeping with his uncle Rohtash Singh in
the Varandah where lantern was lit inside
Dukdiya (a room) Mauli, Sanjay, Narendra,
Baleshwar, Vijendra were sleeping. At about
12 o'clock, Sriram and his companions came
there and woke up his uncle Rohtash and told
him to get the door opened. His uncle then
told the informant that accused were the
members of Sriram gang and he knew them.
They were 12-13 in number, out of which
Sriram had rifle and others were equipped
with countrymade pistols and rifles. Seeing
them, the informant hid under the hut on the
eastern side of the place. In the meantime, he
heard the sound of firing and accused persons
were abusing that they had taken the revenge
of ''Ikwara Kand'. Accused persons were
carrying torches and went away. Thereafter,
the informant came inside where members of
his family were lying dead and lamp was lit.
He saw in the light of the torch that Mauli,
Sanjay and Narendra were lying dead and his
uncle Rohtash, brother Baleshwar both were
injured. Vijendra his cousin, ran away from
the gate on the eastern side and accused
persons went away towards the side of the
river Ganga while abusing. Thereafter, Dhan
Singh came there and told that Sriram Gang
had killed his cousins Kartar Singh, Babu and
his son Subhash and the incident took place
in the room (baithaka) of Kartar Singh. Dhan
Singh also disclosed the names of accused
persons namely, Sriram, Rajveer, Ganesh,
Banti, Rajveer s/o Natthu, Shekhar, Pramod.
He along with Dhan Singh, injured Rohtash
and Baleshwar went to the police station by
tractor where he gave the written report.
P.W.1 proved the written report in his
handwriting and signature as Ext. Ka-1.
P.W.1 further stated that police went to his
village with him and seeing that Narendra
was breathing, took him to the hospital.
Police prepared the memos relating to torch,
lantern & lamp and handed over to him after
taking his signature on the memo which he
proved as Exhibit- 1, 2 & 3.

This witness was cross-examined
by the defence at length wherein he
asserted the facts stated before. Nothing
172 INDIAN LAW REPORTS ALLAHABAD SERIES
adverse to the prosecution could come out
in his cross-examination.

26. P.W. 2 Rohtash, an injured
witness, deposed that there was dispute
between Sriram Harijan and Karodi Gurjar
wherein several people were murdered
from both sides. On 5.1.1997, Karodi
committed murder of six Harijans in the
forest of Ikwara. On 16/17.1.1997, in the
night at about 12 o'clock, He and his
nephew Ved Prakash were sleeping in the
Varandah.
In
the
meantime,
Sriram,
Ganesh, Rajveer, Banti, Pramod, Shekhar,
Rajveer s/o Natthu Alipur Morna Wala and
4-5 other persons to whom he knew came
there. Sriram had rifle and other six persons
had pistols. Lantern was lit where he was
sleeping up in the light of which he had
identified aforesaid seven persons. Sriram
woke up him and asked to get the door of
dukdiya opened at which he made a call to
his sons. Those who were sleeping inside
were
named
as,
Mauli,
Vijendra,
Baleshwar, Narendra and Sanjay when the
door was opened all the accused persons
took P.W.2 also inside where they started
firing causing injuries to Sanjay, Mauli and
Narendra. He thought that all the three
persons dead but Narendra did not die and
Baleshwar also sustained fire arm injuries.
Vijendra ran away and did not sustain any
injury. P.W.2 himself also sustained fire
arm injury on his hand which was caused
from the distance of 21⁄2 -3 feet. Thereafter,
accused persons came out abusing Gurjar
community. Sriram said that he took
revenge of Ikwara Kand and the accused
then went to the house of Kartar where they
made fires causing injuries to Kartar, Babu
and Subhash who had died on the spot from
where Dhan Singh escaped and came to
him and told about the incident. Later on
the assailants went towards the Jungal. The
report regarding the incident was lodged by
his nephew Ved Prakash (P.W.1) then P.W.2
was brought by the police to Meerut for
medical examination. Narendra whom he
knew to be dead was also brought to
Meerut by Dhan Singh for treatment where
he had died as a result of fire arm injury in
the Medical College, Meerut.

This witness was also subjected
to lengthy cross-examination by the learned
counsel for defence wherein he had
asserted the facts stated before and no
contradicting fact could be brought in his
cross examination may affect the credibility
of this witness.

27. P.W.3 Baleshwar deposed that
prior to the alleged incident, gangs of
Sriram and Khaleel of Bastaura were
active. There was struggle between both the
gangs and they committed murders of
people from both sides. In the meantime,
gang of Karodi became active and there
were strained relations between Sriram and
Karodi who had committed murders of six
Harijans by cutting their throats on
5.1.1997. Sriram was shocked and on
16/17.1.1997,
he
along
with
his
companions Ganesh, Rajveer, Pramod,
Shekhar, Bhagwandas, bastaura ka Banti,
Rohtas and Rajveer s/o Natthu came to
their house. Four other persons who were
with them were not known tohim. At that
time, he,P.W.3. his elder brother Mauli,
younger
brother
Narendra,
youngest
brother Sanjay were sleeping inside the
room and Vijendra was also with them. His
father Rohtash and cousin Ved Prakash
were sleeping in the Varandah outside the
room. At about 12 o'clock in the night, his
father called him to open the door at which
he opened the latch. As soon as he opened
the latch, Sriram and his companions came
inside the room and started firing. Vijendra
ran away from the spot. Mauli, Sanjay and
10 All. Ganesh & Ors. Vs. State of U.P.
173
Narendra were shot, out of which Sanjay,
Mauli had died on the spot but Narendra
was
breathing.
He
(P.W.3.)
himself
sustained fire-arm injuries and fell down
and while lying down he identified all the
accused persons, who were wearing police
dress. He (P.W.3) saw the accused persons
in the light of lamp lit in the room, they
were known to him from before as they
used to visit in the village, from before. The
houses of Harijans. He and his father
sustained injuries in the incident, thereafter,
gang of Sriram and his companion went to
the house of Kartar which was situated at a
distance of 15-20 steps from his house.
P.W.3 classified that sounds of firing came
from the house of Kartar Singh and on the
basis of which he stated that Sriram and
others went there. Kartar, Babu and
Subhash s/o Dhan Singh were murdered
but Dhan Singh escaped and came there
and narrated the incident to his father.
Thereafter he (P.W.3) was brought to
Hashtinapur in unconscious state. He was
brought to P.L. Sharma Hospital in a jeep
of police from Hashtinapur and then
Lokpriya Hospital where he was treated.
He sustained fire arm injury on his temple,
right shoulder and left thigh. Prior to this
incident, Sriram used to meet the people
belonging to Gurjar caste but since Karodi
committed murder of Harijans, he became
opposed to ''Gurjar' caste.

This witness was also subjected
to lengthy cross-examination but nothing
adverse could be brought out. This witness
categorically asserted the involvement of
the appellants in the incident.

28. P.W. 4 Dhan Singh deposed that
he lived in Hashtinapur. He was ordinary
resident of Bhikund where his agricultural
land was situated. On 16.1.1997 he, along
with his son Subhash went to Bhikund for
managing his agriculture field. Being late
in the evening, he and his son stayed in the
village at the Chaupal of his cousins Kartar
Singh and Babu. He and Babu were lying
asleep in Varandah and his son Subhash
was sleeping inside the room behind the
window. In the night at about 12.15 p.m.,
he woke up with the sounds of firing from
the side of Rohtash, and heard the noise
that we took revenge of Ikwara Kand and
killed Gurjars. As he heard the noise, he hid
himself in the room for buffalo and in the
meantime, accused persons came near the
cot of Kartar and Babu. There was lantern
placed on the window in the light of which
he had identified the accused persons as
Rajveer, Ganesh, Rohtash, Sriram, Banti,
Shekhar, Pramod and Rajveer. There were
4-5 other persons whom he could identify
with face but they were not known to him
from before. P.W.4 also identified the
aforesaid named eight accused persons in
the Court. P.W.4 stated that the accused
persons made fires at Kartar, Babu, then at
Subhash. All the three persons had died on
the spot. He saw the accused persons while
making fires at the deceased. The place
where he was hiding the cots of Kartar and
Babu were visible and also the place where
Subhash was lying asleep as window into
the door was fitted. Karodi Gurjar had
committed Ikwara Kand prior to the
present
occurrence
wherein
Harijans
(chamar) were killed and on account of
which, the accused persons had attacked on
them being ''Gurjars'. The accused went
towards the Jungle on the side of the river
Ganga while abusing Gurjars. When the
accused were going back, he threw light
with his torch on which they cried that
someone had been left and thereafter they
fled away. He went to the house of Rohtash
where he met the injured Rohtash who was
weeping and saying that his three sons were
killed and also he and his son Baleshwar
174 INDIAN LAW REPORTS ALLAHABAD SERIES
were injured. P.W.4 stated that he told Ved
Prakash that the accused persons had also
killed his son Subhash, cousins Kartar and
Babu. Thereafter taking the injured Rohtash
and Baleshwar in a tractor-Buggi they went
to the police station Hashtinapur. On the
way, he got off the tractor and went to
inform his father and wife. His house was
located at Ramleela Ground Hashtinapur.
Information was given by Rohtash (P.W.2)
at the police station and the report was
given by Ved Prakash (P.W.2). After giving
information in his house, P.W.3 again went
back to the village Bhikund at about 4.30
o'clock. He further deposed that he went to
the Jail, Meerut for identifying the accused
persons in the identification parade and
identified the accused namely Charan
Singh and Raju. He saw them at the place
of the occurrence and from then till the
time of identification, he never saw those
two accused persons. P.W.4 also identified
accused Charan Singh in the court.

This witness was also subjected
to lengthy cross-examination wherein he
categorically reiterated the facts stated
before.

29. P.W.5 H.C. Bachchhraj Singh
deposed that he was posted as the head
constable at the police station on 16.1.1997
and lodged the F.I.R. as Crime No. 08 of
1997 under Sections 147, 148, 149, 302,
307 IPC on the basis of the written report.
He proved the check F.I.R. in his handwriting and signature as Ext. Ka-3 and
G.D. entry as Ext. Ka-4.

30. P.W. 6 Dr. Ashok Kumar Yadav who
conducted the postmortem of dead bodies of
the deceased persons deposed that on
18.1.1997, he was posted at Pyare Lal Sharma
hospital, Meerut where he conducted the
postmortem of deceased Mauli, Sanjay, Babu,
Subhash, Kartar Singh, Narendra and prepared
postmortem reports describing the injuries on
their persons in his hand-writing and signature
and proved them as Ext. Ka-5 to 10.

31. P.W. 7 Brij Mohan Rana deposed
that, on 17.1.1997, he was posted at the police
station Hashtinapur as S.I. and on that day,
Crime No. 08 of 1997 under Sections 147,
148, 149, 302, 307 IPC was registered. The
investigation of which was handed over to
Station Officer R.P. Gupta with whom he also
went to the place of occurrence and conducted
inquest of the deceased persons on the
direction of the Investigating Officer and also
prepared the inquest reports and other relevant
papers for postmortem in his hand-writing and
signature which he proved as Ext. Ka-11 to 35.
P.W.7 further deposed that the inquest of the
deceased Narendra was conducted by S.I. A.K.
Sharma who prepared the inquest report with
relevant papers for postmortem, which he also
proved as Ext. Ka-35 to 40 recognising the
hand-writing of S.I. A.K. Singh. P.W.7 proved
the recovery memos relating to the samples of
cushion, blood stained and plain soil, empty
cartridges, blood stained quilt, bedsheet taken
from the place of occurrence as Ext. Ka-41-51
and also proved the sealed bundles of articles
taken into possession from the place of
occurrence as Material Ext. 1 to 28.

32. P.W. 8 Constable Ravindra Singh
deposed that he was posted as constable at P.S.
Hashtinapur on 17.1.1997 and he along with
constable Jagpal was handed over the sealed
dead bodies of the deceased persons to carry
them for postmortem. He took the sealed dead
bodies with papers for postmortem. After
postmortem, he handed over the bodies to the
members of their family.

33. P.W. 9 Mitthan Lal Jain, Special
Executive Magistrate deposed that on
2.6.1997 he conducted the identification
parade of accused Charan Singh in the
10 All. Ganesh & Ors. Vs. State of U.P.
175
District
Jail,
Meerut
and
prepared
identification memo in his hand-writing
and signature as Ext. Ka-52. He further
deposed that on 12.3.1997 he conducted the
identification parade relating to the accused
Pintu
and
Raju
and
prepared
the
identification memo in his hand-writing
and signature which he proved as Ext. ka53.

34. P.W.10 Inspector R.P. Gupta who
investigated the case deposed that, on
17.1.1997, he was posted as the Station
Officer at Police Station Hashtinapur. On that
day, Crime No. 08 of 1997 under Sections
147, 148, 149, 302, 307 IPC was registered
on the basis of the written report given
rendered by the informant Ved Prakash and
the investigation was handed over to him.
During investigation, he visited the place of
occurrence, after copying the report and
F.I.R. in the case diary he recorded the
statements of the informant and eye witness
Dhan Singh, instructed S.I. V.M. Rana to
conduct the inquest of the deceased persons.
He also inspected the spot and prepared the
site plan in his hand-writing and signature
which he proved as Ext. Ka-54. P.W.10
further deposed that he also prepared the
memo relating to lantern and torch in his
hand-writing and signature which he proved
as Ext. Ka-55. He made arrests of the accused
persons and recorded statements of other
witnesses relating to the incident and after
concluding the investigation, submitted the
charge sheet in his hand-writing and signature
against accused Sriram, Ganesh, Rajveer s/o
Harbans, Rajveer s/o Natthu, Shekhar,
Pramod, Vijendra @ Banti and Rohtash
which he proved as Ext. Ka-56. He also
proved the test reports obtained from F.S.L.
Agra as Ext. Ka-57 to 63.

35. P.W. 11 Dr. Adesh Dhankar
deposed that he was posted as the Plastic
Surgeon
in
Lokpriya
Hospital
on
17.1.1997. He conducted operation of
injured Baleshwar and recovered a bullet
from below his eye regarding which he had
prepared the report in his hand-writing and
signature and proved as Ext. Ka-64.

36. P.W. 12 S.I. Rajendra Prasad
Yadav deposed that, on 17.1.1997, he was
posted at P.S. Hashtinapur and Crime No. 8
of 1997 under Sections 147, 148, 149, 302,
307 IPC was investigated by Station
Officer R.P. Gupta after whose transfer the
investigation was handed over to him. He
made arrests of the accused Sriram, Charan
Singh and Raju and submitted charge
sheets against them in his hand-writing and
signature which he proved as Ext. Ka-65 to
67.

37. Now, we are required to consider
the testimony of witnesses of fact as to
whether they are reliable and trustworthy.
P.Ws. 1 to 4 are witnesses of fact. P.W.1
Ved Prakash, P.W. 2 Rohtash and P.W.3
Baleshwar were lying asleep in one place,
which was the house of Rohtash. All these
witnesses were present on the spot at the
time of the incident and saw the accusedappellants in the light of lantern and lamp
which was lit up. There in the varandah
and also the room where deceased Mauli,
Sanjay and Narendra were sleeping with
P.W. 3 Baleshwar, who also sustained
gunshot injuries on his person. P.W.2
Rohtash also sustained injuries in the same
occurence. P.W. 1 stated that the names of
the accused appellants were disclosed to
him by P.W.2 Rohtash who had identified
them. P.W.3 Baleshwar also identified the
accused-appellants on his own. P.W.4 Dhan
Singh was lying asleep in the house of his
cousins Kartar Singh and Babu where his
deceased son Subhash were also asleep.
The accused-appellants who by making
176 INDIAN LAW REPORTS ALLAHABAD SERIES
fires had killed three persons in the house
of the deceased were identified by P.W.4
Dhan Singh in the light of lantern. The
cause of murders was revenge of Ikwara
Kand wherein six Harijans were done to
death by cutting their throats by the gang of
Karodi Gurjars who was opponent to Sri
Ram gang, by causing six murders of
Gurjars were killed in the present incident.
P.W.1 and P.W.3 heard the appellants
uttering the words at the time of occurrence
that they took the revenge of Ikwara Kand.

38. Learned counsel for appellants
argued that there are contradictions in the
statements of the prosecution witnesses
which make them unreliable. In this regard,
it is to note that P.Ws. 1 to 4 have been
subjected to lengthy cross-examination
which was done in several parts and after a
year from the incident wherein six persons
were murdered. In such a situation, it
cannot be expected from the witnesses that
they would remember each and every event
without any slip particularly where the
witnesses are villagers and unaware to the
tricks of wise counsels and their style of
putting questions before them. In spite of
this, all the witnesses had answered the
questions as they remembered. Though
there are some minor variations relating to
some facts but those variations are not of
such nature that can be said to make their
testimony unbelievable. There appears to
be no exaggeration in the statements of four
witnesses they had narrated the incident in
a natural way as it had happened. There is
no contradiction or variation regarding
identification of the accused persons
involved in the incident. The contradictions
and variations in the testimony of witnesses
are natural and of cosmetic nature which
cannot affect the very root of the case and,
therefore, negligible. It is well settled in
law that minor discrepancies are not to be
given undue emphasis and the evidence is
to be considered from the point of view of
trustworthiness. It is only the serious
contradictions
and
omissions
which
materially affect the case of the prosecution
but not every contradiction or omission, to
be given undue importance.

39. The learned counsel for the
appellants also drew the attention of the
Court towards the absence of personal
motive to commit the murder. He urged that
the prosecution had failed to prove motive
on the part of the appellants to commit the
crime.

40. In this regard, it is fairly well
settled that while motive does not have
major role to play in cases based on eye
witness account of the incident, it assumes
significance
in
cases
that
rest
on
circumstantial evidence. There is no such
principle or rule of law that where the
prosecution fails to prove motive for
commission
of
the
crime,
it
must
necessarily result in acquittal of the
accused. Where ocular evidence is found to
be trustworthy and reliable and finds
corroboration from the medical evidence, a
finding of guilt can safely be recorded even
if the motive for the commission of crime
has not been proved.

41. In State of Himachal Pradesh Vs.
Jeet Singh 1999 (38) ACC 550 SC, it was
held that no doubt it is a sound principle to
remember that every criminal act was done
with a motive but it's corollary is not that
no
offence
was
committed
if
the
prosecution failed to prove the precise
motive of the accused to commit it as it is
almost an impossibility for the prosecution
to unravel full dimension of the mental
deposition of an offender towards the
person whom he offended.
10 All. Ganesh & Ors. Vs. State of U.P.
177

42. This Court has also made such
observations in the case of Rameshwar and
others vs. State 2003 (46) ACC 581 that
when there is direct evidence, the motive
was not important. Likewise in the case of
State of Haryana vs. Sher Singh and
others 1981 Cr. Ruling 317 SC it has been
held that the prosecution is not bound to
prove the motive, more so, when crime is
proved by direct evidence.

43. In the case at hand, it has been
stated by the prosecution witnesses that
there was rivalry between Sri Ram Gang
and Karori Gurjar Gang. Karori Gurjar
committed murder of six harijans by
cutting their throats in Ikwara jungle which
shocked Sri Ram and he also promised to
take revenge. In pursuance thereto he
committed six murders of six Gurjars in the
present incident. The witnesses ( P.W.1 and
P.W.3) categorically stated that they heard
the cries that the appellants took revenge of
Ikwara Kand. In this way, there was
communal rivalry which became the main
cause of the commission of this massacre
though there was no individual grudge with
the deceased persons. Where there is
communal rivalry, no one thinks about
individual interest of others but to show
their power or feeling of revenge, they
commit such incident based on the
particular community or caste. The present
incidents was also committed by the
accused persons with the view to take
revenge for their community.

44. It has also been argued that the
incident took place in the mid night and all
the accused persons were equipped with
firearms, therefore, it was not possible for
the witnesses to identify them. In this
regard, PW.1 and PW.2 have categorically
stated that they were sleeping in the
veranda where lantern was lit and PW.3
was sleeping in the room (Dukaria) where
lamp was lit. In the light of lantern and
lamp, the witnesses had identified the
accused persons. PW.2 Rohtash was woken
up by the accused persons and told to get
the door opened. He called his sons who
opened the door of the room from inside,
where PW.3 Baleshwar was also sleeping
with his other brothers. Since there was
light of lantern and lamp and there was
conversation between PW.2 with the
assailants, therefore, PW.2 had sufficient
opportunity for identifying the accused
persons. It cannot be said that on account of
darkness, he could not identify them.
Likewise, PW.3 Baleshwar who was also
inside the room where his other three
brothers were shot dead and he himself was
injuried, had all the opportunity to identify
the accused persons. It has also been stated
by the witnesses that the accused persons
used to come to their village, so they were
known to them. Sri Ram used to come in
the house of Gurjars in the village but got
annoyed with the incident wherein Karori
Gurjar Gang committed murder of six
Harijans in the jungle of Ekwara by cutting
their throats. PW.4 Dhan Singh was also
sleeping in the verandah of house of Kartar
Singh.