# Rama Kant Dixit v. State of U.P

- **Citation:** (2023) 5 ILRA 894
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-08
- **Case number:** Criminal Appeal No. 1268 of 2007
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-kant-dixit-v-state-of-u-p-50415
- **Pages:** 65

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,1860-Sections
147,
148,
302/149
&
307/149
-Challenge
toConviction-The
prosecution
on
the
commencement of trial has set out to
prove
the
incident
of
shoot-out
in
question as per which it was the accusedappellants who indiscriminately fired on
the jeep in which the deceased, three
prosecution witnesses and one else were
travelling and led to the brutal murder of
six
passengers
travelling
thereinAccording to the prosecution the incident
is seen by three prosecution witnesses of
fact i.e. P.W.-1, P.W.-2 and P.W.-3 who
are said to have jumped out of the
running jeep alongwith another from the
back door and have further witnessed the
occurrence-The
evidence
on
record
reveals that these witnesses of fact are
highly interested witnesses and their
credibility and reliability as well as their
presence at the place of occurrence
becomes doubtful on account of the facts
and also their criminal antecedents-their
5 All. Rama Kant Dixit Vs. State of U.P.
895
presence at the time and place of
occurrence being seriously doubtful, the
medical evidence not corroborating the
ocular
version,
the
long
pre-existing
enmity in between the accused-appellants
and the first informant PW-1-it seems
doubtful that the four passengers of the
jeep (including the three witnesses of
fact, namely, P.W.-1, P.W.-2 and P.W.-3)
could jump out of a running jeep and
escape unhurt when ten armed men are
indiscriminately firing at the jeep and hide
themselves at a distance of 40 to 50 paces
in a pigeon pea field (arahar) and
witnessed the occurrence from there-it is
unnatural that having spotted these four
passengers,
the
assailants
would
allow them to leave and would not
walk a few paces further to eliminate
them, particularly when P.W.-1 was
their prime suspect on account of
their pre-existing enmity-therefore,
the testimonies of the prosecution
witnesses of fact are not trustworthy
and reliable, particularly as they are
highly interested witnesses and their
very
presence
at
the
place
of
occurrence is doubtful and hence
their testimonies are not worthy of
trust-the very presence of the three
prosecution witnesses of fact at the
time and place of occurrence being
not
fully
established-
the
ocular
version of the occurrence not being
corroborated
by
the
medical
evidence-
Hence,
the
findings
returned
by
the
trial
court
for
recording
the
guilt
of
accusedappellants are not only illegal but
also perverse. (Para 1 to 191)

B. The sum and substance is that the
evidence of a related or interested witness
should be meticulously and carefully
examined. In a case where the related and
interested witness may have some enmity
with the assailant, the bar would need to
be raised and the evidence of the witness
would have to be examined by applying a
standard of discerning scrutiny. (Para
113)

The appeal is allowed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,967 of 221,973. This is a partial read: ask again with offset=39967 for what follows._

894 INDIAN LAW REPORTS ALLAHABAD SERIES
them. The statement of PW-4 has also been
recorded after several days and there are
material contradictions in his version,
which remains unexplained. We are not
inclined to give much weightage to the
testimony of PW-4 nor can it constitute any
material
to
implicate
the
accused
appellants.

59. The court below has erred in
accepting the prosecution case without
subjecting the evidence on record to a
careful scrutiny as there are anomalies
found in the testimonies of witnesses and
the evidence regarding recovery of firearms
has also not been carefully examined. The
judgment of the court below on material
aspects is, therefore, found wanting. Since
the available evidence on record has not
been subjected to a careful scrutiny by the
court below, therefore, the finding of guilt
returned in the judgment cannot be
sustained and is liable to be reversed.

60.

For
the
discussions
and
deliberations held above, we find that the
accused appellants are clearly entitled to
benefit of doubt as the prosecution has not
been able to prove their guilt beyond
reasonable doubt.

61. Consequently, the present appeals
succeed and are allowed. The impugned
judgment
and
order
dated
dated
20.01.2017,
passed
by
the
learned
Additional Sessions Judge Court No. 01,
Bijnor is hereby set aside. The appellants,
who are reported to be in jail for more than
ten years, shall be released, forthwith and
set free, if they are not wanted in any other
case, subject to compliance of Section 437A Cr.P.C.
----------
(2023) 5 ILRA 894
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.05.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 1268 of 2007
with
Crl. Appeals No. 1321 of 2007, 1386 of 2007,
1623 of 2007, 1757 of 2007 & 2213 of 2007

Rama Kant Dixit ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Krishna Ji Khare, Sri Arun Kumar, Sri
Arvendra Singh, Sri Lav Srivastava, Sri Rajeev
Nayan Singh, Sri Rajiv Lochan Shukla, Sri V.P.
Srivastava(Sr. Advocate)

Counsel for the Respondent:
G.A., Sri J.S. Sengar

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,1860-Sections
147,
148,
302/149
&
307/149
-Challenge
toConviction-The
prosecution
on
the
commencement of trial has set out to
prove
the
incident
of
shoot-out
in
question as per which it was the accusedappellants who indiscriminately fired on
the jeep in which the deceased, three
prosecution witnesses and one else were
travelling and led to the brutal murder of
six
passengers
travelling
thereinAccording to the prosecution the incident
is seen by three prosecution witnesses of
fact i.e. P.W.-1, P.W.-2 and P.W.-3 who
are said to have jumped out of the
running jeep alongwith another from the
back door and have further witnessed the
occurrence-The
evidence
on
record
reveals that these witnesses of fact are
highly interested witnesses and their
credibility and reliability as well as their
presence at the place of occurrence
becomes doubtful on account of the facts
and also their criminal antecedents-their
5 All. Rama Kant Dixit Vs. State of U.P.
895
presence at the time and place of
occurrence being seriously doubtful, the
medical evidence not corroborating the
ocular
version,
the
long
pre-existing
enmity in between the accused-appellants
and the first informant PW-1-it seems
doubtful that the four passengers of the
jeep (including the three witnesses of
fact, namely, P.W.-1, P.W.-2 and P.W.-3)
could jump out of a running jeep and
escape unhurt when ten armed men are
indiscriminately firing at the jeep and hide
themselves at a distance of 40 to 50 paces
in a pigeon pea field (arahar) and
witnessed the occurrence from there-it is
unnatural that having spotted these four
passengers,
the
assailants
would
allow them to leave and would not
walk a few paces further to eliminate
them, particularly when P.W.-1 was
their prime suspect on account of
their pre-existing enmity-therefore,
the testimonies of the prosecution
witnesses of fact are not trustworthy
and reliable, particularly as they are
highly interested witnesses and their
very
presence
at
the
place
of
occurrence is doubtful and hence
their testimonies are not worthy of
trust-the very presence of the three
prosecution witnesses of fact at the
time and place of occurrence being
not
fully
established-
the
ocular
version of the occurrence not being
corroborated
by
the
medical
evidence-
Hence,
the
findings
returned
by
the
trial
court
for
recording
the
guilt
of
accusedappellants are not only illegal but
also perverse. (Para 1 to 191)

B. The sum and substance is that the
evidence of a related or interested witness
should be meticulously and carefully
examined. In a case where the related and
interested witness may have some enmity
with the assailant, the bar would need to
be raised and the evidence of the witness
would have to be examined by applying a
standard of discerning scrutiny. (Para
113)

The appeal is allowed. (E-6)
List of Cases cited:

1. Md. Jabbar Ali & ors, Vs St. of Assam (2022)
SCC OnLine SC 1440

2. Murli & anr. Vs St. of Raj. (2009) 9 SCC 417

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This bunch of criminal appeals is
by the accused-appellants assailing a
common judgment and order dated 1st
February, 2007 passed by the Sessions
Judge, Mainpuri in Sessions Trial No. 97 of
2005 (State Vs. Jagannath and 5 Others)
and Sessions Trial No. 104 of 2005 (State
Vs. Hariom), arising out of Case Crime No.
286 of 1996, under Sections 147, 148,
302/149, 307/149 I.P.C., Police StationBhogaon, District-Mainpuri, whereby all
the accused-appellants have been convicted
and sentenced to two years rigorous
imprisonment each under Section 148
I.P.C.; seven years rigorous imprisonment
each under Section 307/149 I.P.C. with fine
of Rs. 30,000/- each and in default thereof,
to further undergo one year additional
simple imprisonment; life imprisonment
each under Section 302/149 I.P.C. with fine
of Rs. 70,000/- and in default thereof, to
further undergo one year additional simple
imprisonment each. All the sentences are to
run concurrently.

2. As these appeals arise out of the
same judgment and order. As such they
were clubbed together and are now being
decided by this common judgment.

3. We have heard Mr. V.P. Srivastava, the
learned Senior Counsel assisted by Mr.
Rajiv Lochan Shukla, Mr. Rajeev Nayan
Singh and Mr. Arun Sharma, learned
counsel appearing for the accused-appellant
Rama Kant Dixit, Mr. Brijesh Sahai,
896 INDIAN LAW REPORTS ALLAHABAD SERIES
learned Senior Advocate assisted by Mr.
Bhavya Sahai, Mr. Sarvesh Kumar Dubey,
Mr. Waquar Ahmad and Abhay Singh
Yadav, learned counsels appearing for the
accused-appellants Vipin Dixit, Chandra
Kant and Hari Om, Mr. Rajiv Lochan
Shukla and Mr. Sarvesh Kumar Dubey,
learned counsel appearing for the accusedappellant Devendra and Mr. Arun Kumar
Shukla, learned counsel appearing for the
accused-appellant Kaushlendra and Mr.
Arunendra Singh and Mr. Amit Sinha,
learned A.G.As. for the State.

INCIDENT

4. On 6th September, 1996 an
incident occurred at around 04:30 p.m. on
Mainpuri-Bhogaon road near Raja ka Bagh
at a distance of nearly 3 kilometres from
Bhogaon Police Station, where six persons
travelling in a Commander Jeep from
Mainpuri to Bewer were shot dead in broad
day light in a brutal shoot-out. Those killed
in the incident were Hem Singh, Gajendra
Singh alias Tillu, Ram Kishan Singh,
Naresh Dixit, Ashok Parihar and Mahesh
Yadav.

PROSECUTION CASE

5. The first informant Surendra Singh
(P.W.-1) submitted a written report on 6th
September, 1996 at Police Station-Kotwali,
District Mainpuri on the basis of which a
first information report (Exhibit-ka/8) came
to be registered as case crime no. Nill of
1996 at 17.35 p.m. No case crime number
was assigned to this FIR, since the offence
was committed within the territorial limits
of Police Station-Bhogaon. Constable Udai
Ram of Police Station-Kotwali brought the
FIR and the written report submitted by the
first informant to Police Station-Bhogaon
on the basis of which case crime no. 286 of
1997 was allotted to the FIR and its
contents were recorded in the General
Diary
maintained
at
Police
StationBhogaon.

6. The written report of first
informant/P.W.-1 has been proved by him
in which it is alleged that he, his son
Gajendra Singh alias Tillu, driver Hem
Singh Yadav, Mahesh Singh Yadav, Ashok
Parihar,
Naresh
Dixit,
Ex-Pradhan
Devendra Singh, Santosh Gupta and his
younger brother Santosh were going to
Bewar from Mainpuri by his jeep. While on
their way ahead of railway crossing, a
Gypsy and Maruti Van overtook his Jeep at
around 4.30 pm and positioned them in
front of the jeep. Accused Ramanand,
Hariom, Hukam Chand, Anand, Jagannath,
Devendra, Vipin, Kaushlendrapal Singh,
Raj Bhushan, Billu, all residents of Bewer
armed with rifles and guns, got down from
these two vehicles and exhorted to finish
them all and thereby take revenge. The
informant along with Santosh Gupta,
Santosh Singh and Devendra Singh ran out
of their jeep and from the nearby field saw
that all the above named accused persons
fired indiscriminately with their rifles and
guns, in which except the four who ran out
of the jeep all other passengers of the jeep
were killed on account of firearm injuries.
Previous enmity was stated as the cause
behind the occurrence. The informant is
said to have come walking by concealing
himself all the way to lodge the report.

INVESTIGATION

7 . It transpires that someone informed
about the firing/shootout at Rooi Tiraha to
Police Station-Bhogaon at 04:50 p.m. The
Station House Officer, Police StationBhogaon noted such fact vide Entry-26 in
G.D. maintained at Police Station Bhogaon
5 All. Rama Kant Dixit Vs. State of U.P.
897
and left for the place of occurrence along
with
other
Police
personnel
and
commenced investigation at 04:50 p.m. The
Station House Officer found that Jeep No.
84A-0340 had hit a Eucalyptus tree and its
bumper was stuck in the tree. A dead body
was lying on the steering wheel while
another dead body was partly on bonnet of
Jeep. Another dead body was on the seat
behind the driver. Two bodies were on the
ground on left and right side of the Jeep.
Another dead body was at a distance about
15 paces from the Jeep towards north west.
Information was transmitted on wireless to
the higher authorities about the incident.

8. Constable Sumit Narain along with
the copy of check FIR, G.D. entry etc. of
Police Station-Bhogaon came on the spot
along
with
first
informant/P.W.-1.
Statement of first informant/P.W.1 under
Section 161 Cr.P.C. was recorded on the
spot and on the date of incident.

9.

After
completing
necessary
formalities, the inquest proceedings of the
bodies of all the six deceased were
undertaken on 6th September, 1996. As per
the
inquest
reports/panchayatnama
(Exhibit-ka/13, 21, 29, 36, 44 and 54),
proceedings of inquest in respect of
deceased Hem Singh commenced at 18:20
p.m. and concluded at 19:20 p.m.; 19:30
p.m. to 20:30 p.m. in respect of the
deceased Gajendra @ Tillu; 20: 35 p.m. to
21:40 p.m. in respect of deceased Ram
Kishan; 21.50 p.m. to 23:00 p.m. in respect
of deceased Naresh Dixit; 23:10 p.m. to
00:15 a.m. on 7th September, 1996 in
respect of deceased Ashok Parihar; 00:25
a.m. to 01:30 a.m. on 7th September, 1996
in respect of deceased Mahesh. The Inquest
witnesses have opined that the death of all
the six deceased appear to have been
caused due to firearm injuries. However,
for ascertaining the exact cause of death,
post-mortem be got conducted. Prima facie
in the opinion of witnesses of inquest
(panch witnesses) the death of the deceased
was characterized as homicidal. Thereafter
the bodies of the deceased were sealed and
dispatched for post-mortem.

10. The post-mortem of the bodies of
the deceased, namely, Hem Singh, Gajendra
Singh alias Tillu, Ram Kishan Singh, Naresh
Dixit, Ashok Parihar and Mahesh Yadav
were conducted on 7th September, 1996 by a
team of doctors headed by Dr. R.P.S.
Chauhan (P.W.-4).

The post-mortem of body of deceased
Ashok Parihar was conducted at 10.15 a.m.
on 7th September, 1996. In the opinion of
team of doctors which conducted the autopsy
of aforesaid deceased, the cause of death is
shock and hemorrhage as a result of
following ante-mortem injuries:

"1. Lacerated wound 18 cm x 9 cm x
lower part of buccal cavity (lower jaw which
is missing) over lower part of the face and
neck. Margins are blackened and tongue is
blackened. Trachea upper part ruptured.

2. Firearm wound of entry 3 cm × 2.5
cm x thigh on medial side of right leg 15 cm
below the knee joint. Margins are inverted.
Both the bones of leg are fractured.

3.Firearm wound of exit 5 cm X 3.5 cm
on back right leg 13 cm above ankle.

4. The firearm wound of entry 3 cm x 2.5
cm x bone deep a medial side of left leg 13
cm above left knee joint. Margins are
inverted. Both bones of the leg are fractured.
(five pieces of metallic are found in the bone)
."

The autopsy of the body of deceased
Ramkishan Singh was held at 12:05 p.m on
7th September, 1996. As per the team of
898 INDIAN LAW REPORTS ALLAHABAD SERIES
doctors which conducted the post-mortem
the cause of death was opined as shock and
hemorrhage as a result of following antemortem injuries:

"1. Lacerated wound 6 cm x 5 cm x
through and through injury no.2 on right
side of face 4 cm away from right ear.
Margins are blackened and inverted.
2. Lacerated wound (bone of exit) 18 cm x
18 cm on left side of deaf, forehead and
head. Brain matter is coming out.

3. Firearm wound of entry 0.5 cm 0.5
cm x through and through injury no.4 on
medial aspect of right thigh

4. Firearm wound of exit 2 cm x 1.5
cm on anterior aspect of right thigh 3 cm
above from injury no.3

5. Traumatic swelling 18 cm x 10 cm
on middle of left thigh, bone fractured.

6. Traumatic swelling 10 cm x 6 cm on
left leg lower side. Both bones are
fractured."

The autopsy of the body of deceased
Naresh Dixit was conducted at 02:00 p.m on
7th September, 1996. As per the opinion of
the autopsy team the cause of death was
concluded to be shock and hemorrhage as a
result of following ante-mortem injuries:

"1. Firearm wound of entry 1.5 cm x 1
cm x through and through injury no.2 left
side of forehead 2 cm above eye brow.
Margins are inverted and blackened.

2. Firearm wound of exit 4 cm x 2.5 cm.
above right eyebrow and forehead. Right eye
bulging.

3. Lacerated wound 7 cm x 1 cm x bone
deep on left side of forehead and just above
eye brow. Margins are blackened.

4. Lacerated wound 8 cm x 2 cm x
muscle deep on left side of chest. Upper part
1 cm below clavicle. Margins are blackened
and wound gutter like. "

The autopsy of the body of deceased
Hem Singh was conducted at 11 a.m. on
7th September, 1996. As per the opinion of
the autopsy team the cause of death of
deceased was delineated as shock and
hemorrhage as a result of following antemortem injuries:

"1. Lacerated wound 6 cm x 2 cm x
scalp deep on front of forehead and right
side of head. 4 cm above root of nose.

2. Firearm wound of entry 3 cm x 1.5
cm x cavity deep on back of right side of
chest 7 cm below inferior angle of scapula.
Surrounded by two small wound of size 0.3
cm x 03 cm x skin deep in area 12 cm x 8
cm. No blackening found.

3. Firearm wound of entry 3 cm x 3.5
cm x through and through injury no.4 on
back of abdomen right side. No blackening
found.

4. Firearm wound of exit 4 cm x 3 cm
on right side of back of abdomen in axillary
line 8 cm above iliac crest."

On the same day at 1:15 p.m. the
autopsy of the body of the deceased
Gajendra alias Tillu was conducted. As per
the post-mortem report the cause of death
of aforesaid deceased is shock and
hemorrhage as a result of following antemortem injuries:

"1. Firearm wound of entry over left
side of jaw and neck 2 cm away from mid
line of chin. Size 5 cm x 3 cm x through and
through injury no.2. Margins are blackened
and inverted.

2. Firearm wound of exit 18 cm x 6 cm
on right side of head and forehead just
near right ear. Brain matter coming out of
wound. Bone of skull are fractured.

3. Traumatic swelling 10 cm x 8 cm on
right upper arm 6 cm above elbow joint.
Bone of upper arm fractured.
5 All. Rama Kant Dixit Vs. State of U.P.
899

4. Firearm wound entry 3 cm x 2.5 cm
x cavity deep on right side of abdomen 6
cm away from umbilicus at 7 o'clock
potion.
Margins
are
inverted
and
blackened.

5. Firearm wound entry 1.5 cm x 1.5
cm x through and through injury no.6 on
back of left right 5 cm above knee joint.
Margins are inverted and blackened.

6. Firearm wound of exit 18 cm x 7 cm
on medial aspect of left thigh 7 cm above
knee joint.

7. Lacerated wound 3 cm x 1 cm x
skull bone deep on forehead 5 cm above of
root of nose."

At 12:35 p.m. the autopsy of the body
of deceased Mahesh was performed. The
cause of death has been opined by the
autopsy team as shock and hemorrhage as a
result of following ante-mortem injuries:

"1. Lacerated firearm wound 18 cm x
5 cm x brain deep on left side of forehead
and head. Margins are blackened. Bone of
left side skull are fractured. Brain matter
coming out of bone.

2. Firearm wound entry 3 cm x 2.5 cm
x through and through injury no.3 on right
side of chest. 5 cm below clavicle. Margin
blackened and inverted.

3. Firearm wound of exit 5 cm x 3.5
cm on right side of nipple. Margins
inverted.

4. Firearm lacerated wound 5 cm x 3
cm x bone deep on base of right thumb of
right hand. Bones are fractured.

5. Firearm lacerated wound over front
of right knee joint 12 cm x 8 cm. Bones are
fractured. Margins blackened.

6. Firearm lacerated wound 11 cm x 4
cm x bone deep over left scapula of back.

7. Traumatic swelling 10 m x 8 cm on
left upper arm. 6 cm above elbow joint.
Bone fractured."

11. On 7th September, 1996 itself the
Police collected four portions of blood
soaked rexine from the Jeep vide Exhibitka/63. Blood soaked earth and plain earth
were also collected by the Police from near
the dead body of the deceased Naresh Dixit
vide Exhibit-ka/64. Blood soaked earth and
plain earth were also collected by the
Police from near the dead body of the
deceased Mahesh Fauzi vide Exhibit-ka/65.
Blood soaked earth and plain earth were
also collected by the Police from near the
dead body of the deceased Ashok Parihar
vide Exhibit-ka/66. The shoes and slippers
of the deceased found in the Jeep along
with tiffin and spectacles were recovered
vide Exhibit-ka/67. The Jeep bearing
Registration No. U.P.84 A-0340 was also
recovered vide Exhibit-ka/68.

12. The Police on 7th September,
1996 also recovered following empties
from the spot vide Exhibit-ka/69:

"1. 6 empty cartridges of 12 bore of
red colour cardboard, "Astram Magnum"
was mentioned in English on three empty
cartridges, whereas on the other three,
"Shaktiman" was mentioned.

2. 3 empty cartridges of 12 bore of red
colour cardboard, "Indian Ordinance
Factory"
was
mentioned
on
each
cartridges.

3. 5 empty cartridges of 12 bore of red
plastic, "Clay ground prix" was mentioned
on each cartridges.

4. 5 empty cartridges of 12 bore of
brass metal out of which on base of one
cartridge, " 8 M.M./315" was mentioned,
whereas on two, "8 M.M.K.F. 92" was
mentioned.

5. 4 empty cartridges of 12 bore of
brass metal which seem to be semiautomatic, "P.K.B.30" was mentioned on
base of each cartridge.
900 INDIAN LAW REPORTS ALLAHABAD SERIES

6. 2 empty cartridges of 12 bore of
brass metal, "43 E.C." was mentioned on
the base of each cartridge.

7. 1 live cartridge of brass metal on
which base "P.K.B.30" was mentioned.

8. 1 live bullet of brass metal in which
colour was filled."

13. A Maruti car bearing Registration
No. M.P. 14/D-2312 was found on 9th
September, 1996 at about 12:00 in the
afternoon in an open plot at new Baghwan
Colony which was having blood stains on
the
back
of
its
seat
cover.
Upon
examination certain empties were also
found therein. Accordingly, a recovery
memo of same was prepared which is
Exhibit- ka/10. The details of the same are
as under:-

"(i) one missed live cartridge, 30 PKB
was written on its base,

(ii) one empty cartridge, 8 MM KF 92
was written on its base,

(both the cartridges were found below
the driving seat of the car)

(iii) two empty cartridges, PKB 30 and
67 respectively were written on them

(both the cartridges were found below
the seat adjacent to the driving seat."

14. The recovered items, noticed
above, were sent to Forensic Science
Laboratory,
Agra
for
their
scientific
examination. A report of the Joint Director
of Forensic Science Laboratory, Agra dated
16th December, 1996 is on record as per
which blood stains have been found on all
the recovered items sent for forensic
examination.

"(1)
On
the
recovered
items
mentioned
at
serial
nos.4
(rexine
seat/cover), 5 (small piece of rexine
seat/cover, 8 (a pair of brown slippers), 13
(a painted black belt), 14 (shirt), 15 (sando
vest), 18 (gray pant/trouser), 19 (navy blue
shirt),
20
(underwear),
26
(brown
underwear), 28 (paijama), 29 (Kurta/shirt),
30 (vest), 31 (underwear), 32 (paijama), 33
(Kurta/shirt),
34
(vest),
36
(cotton
towel/aungauchha), 37 (Janeoo), 40 (shirt)
41 (west), 42 (underwear), 44 (a pair of
shocks), 46 (black door), 47 (Kalava) and
49 (a piece of green cloth), human bloods
were found.
(2) On the recovered items mentioned at
serial nos. 1, (earth), 2 (earth etc.), 3 (earth
etc.) (which have been kept in a tin can), 6
(a pair of while slippers), 7 (a pair of
slippers), 9 (tiffin), 10 ( plastic shoe), 11
(spectacles), 12 (a frame of spectacles), 16
(yellow
underwear),
17
(black
handkerchief), 21 (brown handkerchief), 22
( a pair of brown shoe), 23 (belt), 24
(shirt),
25
(brown
underwear),
35
(underwear), 38 (a plastic slipper of left
leg), 39 (pant/trouser), 43 (handkerchief),
45 (a Tabeez of red cloth) and 48 (a pair of
shoe), blood stains were found to be
disintegrated.

(3) No definite result could be
ascertained from the forensic examination
of the blood stains found on the recovered
items mentioned at serial no. 4 (rexine seat
of jeep), 5, (small piece of rexine seat), and
49 (piece of green cloth).
(4). Blood stains on the recovered items
mentioned at serial nos. 8 (a pair of brown
slippers), 13 (a painted black belt), 14
(shirt), 15 (sando vest), 18 (brown
pant/trouser), 19 (navy blue shirt), 20
(underwear), 26 (brown underwear), 28
(paijama), 29 (Kurta), 30 (vest), 31
(underwear), 32 (paijama), 33 (Kurta), 34
(vest), 36 (Aungauchha/cloth towel), 37
(Janeoo),
40
(shirt),
41
(vest),
42
(underwear), 44 (a pair of shocks), 46
(black door) and 47 (Kalava), were found
unsuitable for classification."
5 All. Rama Kant Dixit Vs. State of U.P.
901

15. After completion of statutory
investigation under Chapter XII Cr.P.C., a
charge-sheet came to be submitted on 23rd
May, 1998 against all the named accused.
The Magistrate took cognizance on the
charge-sheet and committed the case to the
Court of Sessions, where it got registered
as Sessions Trial No. 197 of 2005 (State
Vs. Jagannath & Others).

The concerned Sessions Judge charged
the
accused-appellants
of
having
committed offences under Sections 147,
148, 302/149 and 307/149 I.P.C. on 19th
July, 2005. The accused-appellants denied
the charges so framed and pleaded
innocence. Resultantly, the trial procedure
commenced.

THE TRIAL

16. The prosecution in order to
establish its case has adduced following
documentary evidence:

"i).
Written
report
dated
6th
September, 1996 submitted by Surendra
Singh/informant-P.W.-1 has been marked
as Exhibit-Ka/1;

ii). The first information report dated
6th September, 1996 at Police Station
Bhogaon has been marked as Exhibit-
Ka/34;

(iii) The first information report dated
6th September, 1996 at Police Station
Kotwali Mainpuri has been marked as
Exhibit-Ka/8

iv.
The
inquest
reports
(Panchayatnamas) of all the six deceased
dated 6th September, 1996 have been
marked as as Exhibits-ka/113, 21, 29, 36,
44 and 54;

v). Recovery memo of blood stained
and plain rexine of seat of jeep dated 7th
September, 1996 has been marked as
Exhibit-ka/63;

vi). Recovery memos of blood stained
and plain earths dated 7th September, 1996
have been marked as Exhibits-ka/64,65 &
66;

vii). Recovery memo of shoes, slippers,
tiffin & spectacles dated 7th September,
1996 has been marked as Exhibit-ka/67;

viii). Recovery memo of jeep dated 7th
September, 1996 has been marked as
Exhibit-ka/68;

ix Recovery memo of empty cartridge
and bullets dated 7th September, 1996 has
been marked as Exhibit-ka/69;

x). Site plans with index dated 7th
September, 1996 and 15th September, 1996
have been marked as Exhibits-ka/62 & 70;

xi). Post-mortem reports of all the six
deceased dated 7th September, 1996 have
been marked as Exhibits-ka/2, 3, 4, 5, 6 &
7; and

xii). Recovery memo of Maruti Car &
Empty Cartridge dated 9th September,
1996 has been marked as Exhibit-ka/10 ."

17. In addition to above, the
prosecution has adduced three witnesses of
fact, namely, Surendra Singh (P.W.-1/first
informant), who happens to be the father of
the deceased Gajendra Singh, Devendra
Singh (P.W.-2), who happens to be the
brother of the deceased Gajendra Singh and
son of P.W.-1 and Santosh Gupta, who
happens to be an associate of the
informant/P.W.1. Apart from the above,
Dr.
R.P.S.
Chauhan
(P.W.-4)
who
conducted the autopsy of the bodies of all
the deceased was also produced and he
proved the post-mortem reports dated 7th
September, 1996 (Exhibits-ka/2, 3, 4, 5, 6
& 7), Babulal Gautam, Head Constable
(P.W.-5) who had prepared the check first
information report dated 6th September,
1996 (Exhibit-ka/8) at Police Station
Kotwali Mainpuri and also proved the
same. Mubin Ahmad (P.W.-6), the then
902 INDIAN LAW REPORTS ALLAHABAD SERIES
Station House Officer, Kotwali Mainpuri,
who had prepared the recovery memo
(Exhibit-ka/10) of Maruti Car, seat cover of
the car, one live cartridge and three empties
were also produced and he proved the
same. The then Head Moharir Mangal
Singh (P.W.-7) who had prepared the check
first
information
report
dated
6th
September, 1996 at Police Station-Bhogaon
was also produced. The then Station House
Officer of Police Station Bhogaon, DistrictMainpuri, namely, Rampal Singh (P.W.-8)
who had conducted the investigation in the
case was also produced. Sub-Inspector
Jaichandra
Singh
(P.W.-9)
who
has
recovered the Gypsy on 10th September,
1996 from Mughal Road, in front of Raju
Hotel was also produced.

After the prosecution evidence was
over all the incriminating material which
emerged during the course of trial was put
to the accused-appellants for recording
their statements under Section 313 Cr.P.C.
for having their version of occurrence in
which they have denied the questions put to
them.

18. Defence also adduced six
witnesses in support of its case. D.W.-1 is
Ramesh Chandra Sharma, Senior Assistant,
Commercial Tax Officer at Shikohabad,
District Firozabad. Head Constable-179
Surya Pal Singh is D.W.-2. Rajesh Kumar
Singh (D.W.-3), Officer In-charge of Police
Station Hari Parwat, District Agra, who
from July, 1997 to July, 1999 was Inspector
in the Crime Branch, Crime Investigation
Department (for short "C.B.C.I.D."). S.C.
Pal (D.W.-4), who was posted as Inspector
in C.B.C.I.D. Agra from 30th November,
1996 to 28th January, 1998. D.W.-5 is
Kamlesh
Kumar,
Revenue
Inspector,
District
Panchayat
Mainpuri,
District
Mainpuri. D.W.-6 is Mahak Singh, who
was posted as Inspector, C.B.C.I.D., Agra
from 18th February, 2000 to 14th March,
2000.

FINDINGS AND CONCLUSION
OF THE TRIAL COURT

19. Court below on the basis of the
evidence on record came to the conclusion
that the prosecution has succeeded in
establishing
that
the
shootout
was
committed by the accused-appellants on
account of previous enmity, they resorted
to indiscriminate firing resulting in the
death of six persons. Court below has come
to the said conclusion on the basis of oral
evidence to the effect that the incident was
witnessed
by
the
three
prosecution
witnesses of fact, namely, P.W.-1, P.W.-2
and P.W.-3 and their testimonies are
natural and reliable. The ocular version of
the
occurrence
as
disclosed
in
the
statements of aforesaid witnesses stands
corroborated by the medical evidence as
well as the forensic evidence. It has, thus,
been held by court below that the
prosecution has succeeded in establishing
the guilt of the accused-appellants beyond
doubt. On the plea of delay in the lodging
of the FIR, trial court has recorded the
finding that the charge against the accusedappellants under Section-147 I.P.C. does
not require conviction as the accusedappellants were equipped with deadly
firearms and they have committed 6
murders being members of an unlawful
assembly, as such the accused-appellants
are liable to be convicted under Sections
148, 307/149, 302/149 I.P.C. Accordingly,
the trial court vide impugned judgment and
order has convicted the accused-appellants
and sentenced them to life imprisonment
with fine.

APPELLANTS' CONTENTIONS
5 All. Rama Kant Dixit Vs. State of U.P.
903

20. The broad spectrum of the
arguments advanced on behalf of the
accused-appellants can be summed up on
following three counts:-

(i) the accused-appellants have been
falsely implicated on account of previous
enmity between the parties. Specific
instances of enmity have been highlighted
vis-a-vis the accused-appellants and the
informant/ P.W.-1;

(ii) the prosecution witnesses were
actually not present at the place of
occurrence nor have they seen the incident
and their depositions are neither credible
nor reliable. Arguments at length have been
advanced highlighting the evidence on
record to doubt their presence at the place
of
occurrence
as
well
as
inherent
improbability in their versions/ stands;
(iii) On behalf of the accused-appellants it
has also been strenuously urged that the
incident of shoot-out was carried out by
Subhash Gang and evidence in that regard
was also collected during the course of
investigation. However, the investigation
was not taken to its logical end. The same
was deliberately left un-concluded on
account of the influence of the informant's
side to falsely implicate the accusedappellants due to previous enmity.

The individual submissions of the
learned counsels for the accused-appellants
shall be referred to, in detail, in the later
part of this judgment.

21. Having examined the broad
contentions urged in these appeals and
upon perusal of record, the question that
primarily arises for determination in these
appeals is:- as to whether the conclusion of
guilt of the accused-appellants, arrived at
by the trial court, as also the sentence
awarded to them is legal and sustainable in
law. Vice versa the same does not suffer
from any infirmity and perversity.

22. Before considering the merits of the
submissions raised by the learned counsel
for accused-appellants and the learned
A.G.A., qua the impugned judgment and
order of conviction and sentence passed by
the court below, it is desirable to refer to
the statements of the prosecution witnesses
in detail in view of the question which
arises for determination in the present
appeals as formulated in paragraph no.21 of
this judgment.

BRIEF
STATEMENTS
OF
PROSECUTION WITNESSES

P.W.-1/First Informant (Surendra
Singh son of Babu Singh)

23. This witness has stated that he
was coming back to Bewer in his
commander jeep after seeing his ailing
maternal
aunt
(Mausi)
and
was
accompanied by his sons Devendra Singh
and Gajendra Singh, his younger brother
Santosh Singh, Santosh Gupta, Ashok
resident of Bankati, Mahesh Fauji resident
of Pakaria and Ramkishan, driver Hem
Singh and two others, namely, Naresh Dixit
and Ex-Pradhan of Humayunpur, namely,
Kishan Pal Singh. At around 4.30 p.m., a
Maruti car and a van overtook his vehicle
from
behind.
Ramanand,
Jagannath,
Hariom and Anand all four persons were in
the
car
and
in
the
second
Gypsy
Chandrakant alias Billu son of Vishwanath
Singh, Devendra, Vipin, Kaushalendra and
Rajbhushan, total six persons were sitting
with guns and riffles in their hands. All
these persons got out of the vehicles and
shouted to finish all the passengers in the
said vehicle with intention to take revenge.
904 INDIAN LAW REPORTS ALLAHABAD SERIES
Seeing
them,
first
informant/P.W.1,
Santosh Singh, Devendra Singh (P.W.-2)
and
Santosh
Gupta
(P.W.3)
jumped
towards the west and fled into pigeon pea
(Arhar) field. All the accused persons
started firing from their respective firearms
due to which his son Gagendra, Ashok
Parihar, Mahesh Yadav, Naresh Dixit,
Ramkishan and Hem Singh driver died on
the spot. Driver Hem Singh drifted on
being hit by gun shot and the vehicle came
to a halt after colliding with an eucalyptus
tree. Leaving behind the three others, who
were with him, on the spot, the first
informant came to Police Station-Kotwali
and met Satendra Singh, Ramesh Singh and
Dinesh Singh at the petrol pump in front of
Kotwali, to whom he narrated the entire
incident. He then scribed the written report
of the incident, signed it and submitted it at
the Police Station. On seeing paper No.
5A/2, this witness has proved the same on
which Exhibit Ka-1 was marked. This
witness has further stated that an old
enmity is going on between the accused
and his family. In the murder of his
younger brother Shivraj Singh, various
persons from the side of accused, namely,
Chhote, father of Chhote, named accused
Jagannath, accused Hariom and his brother
and accused Anand were implicated and
the case is pending. Accused Ramanand
has died whereas accused Rajbhushan
Singh and Anand are absconding.

24. In the cross examination first
informant/P.W.-1 has stated that the name
of the former Pradhan of Humayunpur was
not known to him at the time of incident, so
he indicated him as the Ex-Pradhan (Purva
Pradhan). Devendra Singh is not the former
pradhan but was his son. P.W. 1 in reply to
a question as to why he has not written the
name of his son Devendra Singh, only the
name of his other son Gajendra alias Tillu
has been written, has submitted that he has
written the names of both sons in the
written report. Name of Devendra Singh
has not been mentioned as his son but he is
his son. He has further stated that he
reached the place of crime for the first time
at 4.00 in the evening, later he said that he
had reached at 4.30. He was sitting on the
left side of the back seat in the jeep. He, his
son Devendra, Santosh Gupta and his
younger brother Santosh were sitting on the
back side of the jeep, whereas the Driver
Hem Singh, Gajendra Singh, Mahesh Fauji
were sitting on the front seat and Ashok
Parihar, Pradhan of Humayunpur i.e.
Kishanpal Singh and Naresh Dixit were
sitting on the middle seat of the vehicle.
Krishna Pal Singh's name has not been
mentioned in the written report but he has
been indicated as former Pradhan of
Humayunpur.

25. P.W.1 has further stated that in the
incident all the three persons sitting on the
front seat were killed. Two persons had
died in the vehicle itself while the third
died after falling near the foot of the
vehicle. All the three persons, who were
sitting on the middle seat also died of
whom one died inside the vehicle and two
outside the vehicle. Both the vehicles of the
accused were positioned in front of his
jeep. Surrounding the jeep from the front
the accused exhorted and started firing in
which four passengers sitting at the back
side of the jeep, including the informant
(P.W.-1), ran towards the west. They fled
to a distance of 50-55 paces into a pigeon
pea (Arhar) field, from where they saw the
incident. Accused also fired on those who
escaped but he cannot remember the
number of shots fired on them. He had
disclosed to the inspector that many shots
fired at all the four but none of them
actually hit them. By taking the cover of
5 All. Rama Kant Dixit Vs. State of U.P.
905
trees all four, including himself, fled to the
pigeon pea (Arhar) field. He could not
disclose whether the bullets hit the trees or
not.

26. P.W.-1 further stated that all the
accused fled towards Mainpuri from the
place of occurrence. P.W.-1 came towards
the railway crossing and from there he took
a tempo and came to Mainpuri. He has
further stated that the fact qua his coming
by the tempo to Mainpuri was not
mentioned in the written report and that it
was neither asked from him nor did he
disclose about the same. In the written
report, the fact that he came secretly has
been written but the fact that he came by
the tempo has not been written. He has
further stated that accused Kaushalendra
had filed a case against his brother Shivraj
Singh and Upadesh Singh for theft of spare
tire of vehicle (stepney) before this
incident.

27. This witness has further stated
that on the date of incident he along with 7
others left for Audanya Padaria after 1.30
p.m. from his house, where his maternal
aunt (Mausi) was living but he did not
know her name. However he has stated that
his maternal aunt must have been around
60 to 70 years of age. His maternal uncle
(Mausa) was not alive at that time. Mausa
had died about 15-20 years before the
incident. Maternal aunt's (mausi) original
place of residence was Badapur Pinjri,
which falls within the territorial limits of
Police Station, Jakra and he went directly
to Audanya Padaria and that he did not stop
in between. Audanya Padaria is about ten
and a half kilometres away from Bewer.
Those who accompanied him were from
different communities/caste. Ashok Parihar
is son of his maternal uncle, Santosh Gupta
was his friend, Mahesh Fauji was of his
close
acquaintance,
Ramkishan
was
Pradhan and because of the same he had
good relations with him. He has denied that
the aforesaid persons lived in his house.
His maternal aunt (Mausi) used to live at
his house. His maternal aunt was sick for
many days and was suffering from fever
and what other disease she was suffering
from was known to the doctor and that he
had not taken his aunt (mausi) anywhere
for treatment. He stayed at aunt's (mausi)
place for about one and a half hours and at
about 3:30 in the evening he left for Bewer.
Satendra Singh, Ramesh and Dinesh were
not his relatives but he knew them for the
last 2 to 4 years before the incident.

28. P.W. 1 has also disclosed that his
two brothers were Members of Legislative
Assembly (for short "MLAs") and Satendra
Singh, Ramesh and Dinesh were known to
him since then and they visited his place.
On coming back from his maternal aunt's
place, Ramkrishna @ Krishnapal Pradhan
and Naresh Dixit met him at Jail
intersection. There were total 8 persons in
the jeep and the other two met at the Jail
intersection. He has admitted in his
examination-in-chief that the nickname of
Ramkishan is Kishanpal has not been
disclosed by him. He has denied that Ram
Kishan and Kishanpal are two different
persons. He has also denied that two
persons had not met him at the Jail
intersection and that is why he has not
disclosed about them to the Police.

29. P.W.-1 has also stated that the
place of occurrence is at a distance of one
and a half kilometer from the railway
crossing towards Bhogaon. Both the
vehicles of the accused were at a distance
of 7 to 8 paces from the place of incident
towards the east. His jeep was at a distance
of 7 to 8 paces from both the vehicles.
906 INDIAN LAW REPORTS ALLAHABAD SERIES
There was maize field on the west of
pigeon pea (Arhar) field.