1. The appellants Kamlesh Singh, Suresh Singh and Sukhlal Singh have been convicted for having committed offence under section 302 IPC read with section 34 IPC vide judgment and order dated 15.9.2006 passed by Additional Sessions Judge / Special Judge (E.C. Act), Allahabad in Sessions Trial No.729 of 2002 and vide order dated 18.9.2006, each of them has been sentenced to imprisonment for life and to pay a fine of Rs.5000/- and in case of default, to further undergo simple imprisonment for three months. However, they were acquitted for the offence under section 120-B IPC.
2. Another co-accused Kapil Deo Singh was, however, acquitted by the trial court for the offence under section 302 IPC and against the order of acquittal, criminal revision no.5840 of 2006 has been filed on behalf of one Rajendra Singh. Appellant Kamlesh Singh has also challenged his detention in jail by means of habeas corpus writ petition no.11028 of 2007 with a further prayer to quash the entire proceedings of the Sessions Trial.
3. The incident took place in two parts. On 15.12.1995 at about 6:30 a.m., Vikram was murdered by Kapil Deo Singh, Daya Singh and one unknown person on K. P. College Grounds, Allahabad. On the same day, the second part of incident took place at 16/115 Nai Basti, Sohbatiyabagh, P.S. George Town, Allahabad wherein Bhagat Singh and Smt. Prabha Singh were murdered. A consolidated FIR of both the incidents was lodged by first informant Nigam Singh (since dead) at P.S. George Town on 15.12.1995 at 8:10 a.m.
4. According to the FIR, on 15.12.1995, Vikram Singh-son of first informant Nigam Singh had gone to K.P. College Ground, Allahabad along with Dharmendra Singh (P.W.3) and Monu Singh for physical exercise. At about 7:00 a.m., the complainant's wife Prabha Singh (deceased) and daughter Km. Pratibha (P.W.4) were sweeping the roof of the house and the first informant was also standing on the roof. Bhagat Singh, brother-in-law (sala) of the complainant was taking a stroll within the boundary of the house. Boundary gate was open. Accused Suresh Singh and Sukhpal Singh came there on one scooter and on another scooter, appellant Kamlesh Singh and an unknown person came in front of the house and parked their scooters. Suresh Singh and Sukhpal Singh were armed with country made pistols and Kamlesh Singh was armed with a gun. They entered the boundary wall. Suresh and Sukhpal opened fire on Bhagat Singh causing gunshot injuries. Prabha Singh and Pratibha Singh raised alarm from the first floor. Kamlesh Singh fired towards Smt. Prabha Singh from outside the boundary wall from his gun causing injuries on the face of Smt. Prabha Singh, who fell down on the roof. Thereafter, Kamlesh Singh told his companions to go towards K.P. Ground. When the complainant was to take his wife to the hospital, Dharmendra Singh (P.W.-3) and Monu Singh came home from K.P. Ground and disclosed that at 6:30 a.m. on the same day, at K.P. Ground, when Vikram was to come home after doing exercise, Kapil Deo Singh and Daya Singh armed with country made pistols accompanied by an unknown person came there on a scooter and Kapil Deo Singh shot Vikram dead by firing twice from his country made pistol. Daya Singh also fired at Vikram.
5. On the basis of written report submitted by Nigam Singh, case crime no.621 of 1995 under section 302/34 IPC was registered at P.S. George Town, Allahabad and an entry was made in the General Diary of the Police Station at serial no.17 at 8:10 a.m. On the instructions of the Station Officer Incharge of P.S. George Town, S.I. Ganeshi Lal Verma (P.W.6) was deputed to hold inquest on the three dead bodies. He held inquest on the dead body of Vikram Singh at K.P. Ground, Allahabad, on the dead body of deceased Bhagat Singh at his residence at Sohbatiyabagh and held the inquest on the dead body of Smt. Prabha Singh at the hospital. He also prepared inquest memos and other papers relating to the inquest, sealed the dead bodies which were sent along with the relevant papers for postmortem examination.
6. P.W.7. Ranveer Singh, Station Officer Incharge, P.S. George Town commenced the investigation. He reached K.P. College Ground at 8:40 a.m. He recorded the statement of the first informant, got the inquest performed on the dead body of Vikram Singh through P.W.6 under his direction, inspected the spot and prepared site plan Ex.Ka-31. Near the dead body, one live cartridge of 12 bore was found, which was seized and sealed and recovery memo Ex.Ka-1 was prepared. He also interrogated Dharmendra Singh (P.W.-3) and Rajendra Singh (P.W.-1) and thereafter, he reached the house of the deceased. Besides holding the inquest on the dead body of Bhagat Singh, he prepared site plan Ex.Ka.-32. Two spent cartridges of 12 bore were found at the place of occurrence, which were seized. Blood stained earth and plain earth were also taken in possession and recovery memos Ex.Ka-2 to Ex.Ka-5 were prepared. On 19.12.1995, he interrogated Monu Singh. Since both the places of incident were separate, the incident which took place at Sohbatiyabagh residence was treated as crime no.621-B and the incident which took place at K.P. College Ground was treated as crime no.621. On 29.12.1995, he became injured and subsequently the investigation was handed over to P.W.8 Vishambhar Nath Dubey on 1.1.1996. Accused Kapil Deo Singh, Daya Singh and Sukhlal Singh surrendered in Court on 4.1.1996 and accused Suresh Singh surrendered on 14.1.1996. He also investigated the alibi of accused Kamlesh Singh and found certain discrepancies in the same. After completing the investigation, he submitted charge sheets Ex.Ka-33 and 34 against the appellants. He also proved an application Ex.Ka-35 moved by P.W.4 Km. Pratibha Singh before S.S.P., Allahabad.
7. Dr. M.P. Verma (P.W.5) of T.B. Sapru Hospital, Allahabad conducted autopsy on the dead body of Vikram Singh on 15.12.1995 at 4:00 p.m. The age of the deceased was 18 years. The following ante mortem injuries were found on his dead body :
(i)Firearm wound of entry 2" x 2" x cavity deep on right side chest just below right nipple. Margins inverted.
(ii)Firearm wound of entry 2" x 2" x cavity deep on front of left side of abdomen on lower part. Margins inverted.
(iii)Firearm wound of entry 1" x 1" x cavity deep on front and left side of abdomen 4" above the A.M.I. No. (ii). Margins inverted.
(iv)Firearm wound of entry 1" x 1" x cavity deep on right side chest. Margins inverted.
8. Lungs, pericardium, heart, large vessels and peritoneum were found lacerated. Intestines were lacerated at places and were empty. Probable time since death was about half day. 6 pieces of wads and 20 small pellets were recovered from the dead body. Postmortem report is Ex.Ka-8.
9. On the same day, autopsy on the dead body of Bhagat Singh was performed by Dr. M.P. Verma (P.W.5) at 4:30 p.m. The age of the victim was about 22 years. The following ante mortem injuries were found on the dead body :
(i) Firearm wound of entry 2" x 2" x cavity deep on front of abdomen and chest, situated just below xyphoid. Margins inverted.
(ii) Firearm wound of entry 1" x 1" x bony deep on back of right side chest, close to outer margin of scapula. Margins inverted.
(iii) Firearm wound of entry 1½ " x 1½ " x bony deep on inner surface of right wrist joint through and through leading firearm wound of exit 2" x 2" x bone deep. Margin everted with fractured underlying bones.
10. On internal examination, lungs, pericardium, heart and peritoneum were found lacerated. Stomach was ruptured and empty. Small intestine was also lacerated. Both the intestines were empty. Two pieces of wad and 30 small pellets were recovered from the dead body. Postmortem report of Bhagat Singh, deceased, is Ex.Ka-9.
11. P.W.5, Dr. M.P. Verma performed autopsy on the dead body of Smt. Prabha Singh on the same day at 4:50 p.m. Her age was about 40 years. Following ante mortem injury was found on the dead body :
(I) Multiple firearm wound of entry present on forehead and face in an area of 5" x 4" each measuring 1/4" x 1/4". Few are muscle deep and few are cranial cavity deep. Margins inverted.
12. On internal examination, frontal bone was found fractured. Membranes and brain matter were found lacerated. Stomach and intestines were empty. 15 small pellets were recovered from the body. Postmortem report is Ex.Ka-10.
13. All the three postmortem examinations were conducted by Dr. M.P. Verma in presence of Dr. A.K. Gupta, who concurred with the postmortem reports prepared by Dr. M.P. Verma.
14. During trial, learned Sessions Judge framed charge under section 302 IPC against Kapil Dev Singh and charge under section 302 IPC read with section 34 IPC and 120-B IPC against accused appellants Kamlesh Singh, Sukhlal Singh and Suresh Singh. The accused denied the charge and claimed to be tried.
15. Prosecution examined as many as eight witnesses to prove its case. P.W.1 Rajendra Singh is the scribe of the FIR. He stated that he penned the FIR on the dictation of Nigam Singh and the same was signed by Nigam Singh and by him also, but the report available on the record was not the same report, but has been replaced and is a forged report, which is Ex.Ka.-1. On the basis of report lodged by Nigam Singh, the case was registered and a copy of the chick report (F.I.R.) was given to the complainant and the same was produced by P.W.1 in Court, which is Ex.Ka.-2. P.W.2 Head Constable 43 Arvind Kumar Yadav had recorded the original chick report (Ex.Ka.-6) in accordance with the written report submitted by the complainant. He also proved copy of G.D. (Ex.Ka.-7) whereby the case was registered. P.W.3 Dharmendra Singh is the eyewitness of the incident, which took place in K.P. College Ground. P.W.4 Pratibha Singh is the sole eyewitness of the incident, which occurred at Sohbatiyabagh residence of Bhagat Singh. The complainant Nigam Singh died before he could be examined during trial. P.W.5 Dr. M.P. Verma performed autopsies on the dead bodies of three deceased persons. P.W.6 S.I. Ganeshi Lal Verma had held inquest on all the three dead bodies under directions of the Station Officer Incharge. P.W.7 S.I. Ranveer Singh is the first investigating officer and P.W. 8 Vishambhar Nath is the second investigating officer.
16. The appellants as well as the acquitted co-accused Kapil Dev Singh were examined by the trial court under section 313 Cr.P.C. It was admitted by them that appellants Suresh Singh and Kamlesh Singh are real brothers. Daya Singh and Kapil Dev Singh are also real brothers and appellant Sukhlal is the uncle of Kapil Dev Singh, but they claimed that all of them lived separately. Kamlesh Singh, Suresh Singh and Sukhlal denied all the allegations regarding murder of Bhagat Singh and Prabha Singh and expressed their ignorance about the incident, which took place in K.P. College ground. Kapil Dev Singh denied the allegations regarding murder of Vikram Singh at K.P. College ground and expressed ignorance about the incident which took place at Sohbatiya Bagh residence.
17. Appellant-Suresh Singh claimed that the complainant Nigam Singh was a history sheeter and a large number of criminal cases were pending against him. Nigam Singh had usurped the property of his father-in-law Jai Narain Singh. Jai Narain Singh had two sons Prem Singh and Bhagat Singh. Nigam Singh got Bhagat Singh murdered and thereafter Prem Singh was also murdered. He further claimed that since 14.12.1995, he was admitted in Sumeeta Medical Centre, Lucknow and was operated upon on account of hydrocele and was unable to move. He further stated that P.W. 4 Pratibha Singh used to live in the village and at the time of incident, she was in the village and she was not an eyewitness.
18. Appellant-Sukhlal Singh claimed that one Shikari Singh was murdered in 1994 and the FIR of the said incident was lodged by him against the first informant Nigam Singh, deceased Vikram Singh and one Ajay Singh. He is an eyewitness in the said case and on this account, he has been falsely implicated.
19. Appellant Kamlesh Singh claimed that Jai Narain Singh (father-in-law of first informant Nigam Singh) and Ram Narain Singh (D.W.-1) were real bothers. Jai Narain Singh had extensive properties and was also running a College. Nigam Singh, in collusion with Bhagat Singh, got Prem Singh turned out of the house and, therefore, Prem Singh, in conspiracy with 3 - 4 persons, murdered Bhagat Singh. Subsequently, Nigam Singh, to grab the property of the College, got Prem Singh murdered. Earlier, a report in respect of offence under section 394 I.P.C. was registered against Som Dev, Chandra Dev and Kapil Dev. Thereafter, one Shikari Singh was murdered in respect of which, Ajay Singh, Nigam Singh and Vikram Singh (deceased) were facing trial and Kapil Dev Singh was the first informant. Kamlesh Singh further claimed that one day prior to the incident, he got admitted his brother Suresh Singh (appellant) at Sumeeta Mecial Centre, Lucknow where he was operated upon for hydrocele. He further claimed that he had a house at Lucknow. On the date of incident, he had a quarrel with a police constable. He was arrested by police and was taken before the Magistrate and sent to jail. At the time of incident, he was in jail.
20. The acquitted accused Kapil Dev Singh (opposite party in the revision) claimed that Dharmendra Singh (P.W.3) was not present on spot. The place of incident was changed and he was falsely implicated. He had appeared in the Mains Examination for the I.A.S. (Indian Administrate Service) and was appearing in Mains Examination for P.C.S. (Provincial Civil Services).
21. On behalf of the accused persons, as many as eight witnesses were examined in their defense.
22. Ram Narain Singh (D.W.1) is the younger brother of Jai Narain Singh - father-in-law of the first informant Nigam Singh. He stated that Nigam Singh and Pratibha Singh (P.W.4) were not present at the time of incident. He used to live in the same house at Sohbatiya Bagh where incident took place. He had seen the incident. The accused persons were not amongst the assailants. He called Pratibha Singh from the village. He filed a photograph of the house situated at Sohbatiya Bagh and claimed that from the roof of the house, nobody could see the persons standing below due to trees.
23. Lolarak Mishra (D.W.2) is a junior clerk in the Office of Registrar, Firms, Society and Chits, Allahapur, Allahabad. He brought documents relating to Baghambari Shiksha Parishad, Sohbatiya Bagh, Allahabad. He filed copies of letters dated 11.4.2002 and 19.4.2002 written by Ram Narain Singh, letter dated 22.12.1995 written by Nigam Singh and letter dated 13.11.1995 written by Prem Singh. He also stated in cross-examination that Bhagat Singh applied for renewal of the Society on 11.10.1995, which was allowed. He also admitted that Basic Shiksha Adhikari, Allahabad recognized Bhagat Singh as the Manager and permitted him to distribute salary of the staff.
24. Sri Shiv Das (D.W.3), Deputy Jailer, District Jail, Lucknow was examined to depose on the basis of Jail entry register that on 15.12.1995, a prisoner named Kamlesh Singh was admitted in the Jail at 17:48 hours. He proved photostat copy of the register (Ex.Kha-9). The name of the prisoner was Kamlesh Singh son of Jagpat Singh resident of 23/1, Azad Nagar, Allahapur, P.S. George Town, Allahabad. He was detained on the orders of Additional Civil Judge (J.D.-II), Lucknow. He identified the appellant Kamlesh Singh to be the person who was detained in jail. He, however, admitted that on 15.12.1995, he was not in service and he had given testimony on the basis of official records.
25. B.P. Mishra (D.W.4) was working in Sumeeta Medical Centre, Janki Puram, Lucknow as Manager. According to this witness, appellants Suresh Singh son of Jagpat Singh was admitted in the hospital on 14.12.1995 and was operated upon for hydrocele and was discharged on 20.12.1995. He filed the copies of page-1 and page-42 of Indoor Register, 1995, which is Ex.-Kha-II. He further stated that Suresh Singh was under treatment of Dr. Pankaj Kumar, who operated upon him.
26. Dharamraj Yadav (D.W.5) was posted on 15.12.1995 in C.C.R., Allahabad. He stated that on 15.12.1995 at 9:15 a.m., information was given by P.S. George Town that on two scooters, the assailants came at K.P. College Ground at 6:25 a.m. and committed murder of Vikram Singh, his maternal uncle Bhagat Singh and Smt. Prabha Singh. Vikram was murdered at K.P. College grounds and other two persons were murdered at Sohbatiya Bagh.
27. Awadhesh Kumar Yadav (D.W.6) is the Pharmacist posted at Central Jail, Naini Hospital, Allahabad. He deposed about illness of appellant Suresh Singh from 17.1.1996 to 16.5.1996 and stated that Hydrocele operation wound of Suresh Singh got infected.
28. Shree Ramjeet (D.W.7) was Deputy Jailer, District Jail, Lucknow on 15.5.1995. He also proved admission of appellant Kamlesh Singh in jail on 15.12.1995 who was released on 12.1.1996.
29. The last defense witness is Head Constable Krishan Pal Singh (D.W.8), who was posted as a Constable on 15.12.1995 at P.S. Madiawa, Distt. Lucknow. He stated that on 15.12.1995 at 8:30 a.m., case crime no.261 of 1995 under section 3/25 Arms Act was registered at the police station against appellant Kamlesh Singh and Kamlesh Singh was taken from the police station to the Court at 10:50 a.m. The case was registered at the instance of S.O. Sarnath Singh and Kamlesh Singh was brought to the police station by Constable Chandrashekhar Singh along with the case property.
30. Learned Additional Sessions Judge, after considering the material available on record, convicted and sentenced the appellants Kamlesh Singh, Suresh Singh and Sukh Lal Singh as above. The fourth accused Kapil Dev Singh was, however, acquitted.
31. We have heard Sri Sushil Kumar, senior advocate assisted by Sri Aditya Kumar, Sri P.N. Misra, senior advocate assisted by Sri Apul Misra, Sri G.S. Chaturvedi, senior advocate assisted by Sri Samit Gopal and Sri Pankaj Kumar Upadhyay, learned counsel for the appellants, Sri K.N. Bajpai, Additional Government Advocate on behalf of State of U.P., Sri Dilip Kumar, learned counsel for the revisionist as well as the complainant in Appeals. We have also heard Sri S.P. Singh, learned counsel for the respondent- Kapil Dev Singh in criminal revision. None of the counsel addressed the Court in Habeas Corpus Petition filed on behalf of the petitioner - Kamlesh Singh. We have also perused the records very carefully.
32. It has been submitted on behalf of the appellants that at the time of incident, appellant Kamlesh Singh was in police custody in a case under Arms Act and he could not have been present at the time of incident. Similarly, appellant Suresh Singh had under gone surgery for hydrocele in Sumeeta Medical Centre, Lucknow and was hospitalized from 14.12.1995 to 20.12.1995 and, therefore, he also could not have been present at the time of incident and sufficient evidence has been led to prove their alibi and the entire prosecution case is liable to be thrown away on this very ground.
33. Next submission is that according to the prosecution case, a criminal conspiracy was hatched and in pursuance of such criminal conspiracy, Bhagat Singh and Prabha Singh were murdered at their Sohbatiya Bagh residence, whereas Vikram Singh was murdered at K.P. College grounds. The contention is that learned trial court has not found the appellants guilty of the offence of criminal conspiracy and, therefore, the entire prosecution case is falsified. In other words, it was contended that if the prosecution case regarding criminal conspiracy has been disbelieved, the rest of the prosecution case should also be disbelieved. It was contended that acquittal of co-accused Kapil Dev Singh has not been challenged by the State by filing an appeal. It was further submitted that there was complete non-compliance of section 157 Cr.P.C., as the FIR was not promptly sent to the Magistrate concerned. The signatures of the Magistrate are not on the chick report nor any date is known when the FIR was received in the office of the Magistrate.
34. Learned counsel for the appellants assailed the testimony of P.W.4 Pratibha Singh on the ground that she used to live in village and was not present in Sohbatiya Bagh residence and could not have seen the incident. After the incident, P.W.4 Pratibha Singh and the first informant Nigam Singh were called from the village and thereafter FIR was lodged. It was contended that at the time of incident, Pratibha Singh was a minor girl of 15 years of age and she was a tutored witness. She was examined during trial after 8 years in 2003. Her presence, at the time of incident, is highly doubtful. The deceased Prabha Singh, at the time of incident, was on roof of the house and from the roof of the house, the person standing outside the boundary of the house could not be seen and, therefore, statement of P.W.3 regarding identification of the accused cannot be accepted. It was contended that Kamlesh Singh is alleged to have fired from outside the boundary from a distance of about 18 feet and there should have been a sufficient dispersal of the pellets, but injuries were found on the head and face of Prabha Singh only and no pellet hit Pratibha Singh (P.W.4) and the first informant Nigam Singh, which belies their presence on the spot.
35. Per contra, Sri K.N. Bajpai, learned Additional Government Advocate submitted that from the very beginning, attempts were made at the behest of accused persons to sabotage the investigation as well as trial. Though the name of Kamlesh Singh was specifically mentioned in the FIR, but in the statement of Pratibha Singh (P.W.4) recorded under section 161 Cr.P.C., the investigating officer Ranveer Singh (P.W.7) deliberately mentioned that someone looking like Kamlesh Singh fired a shot towards Smt. Prabha Singh. Sri Bajpai pointed out that S.I. Ranveer Singh admitted in cross-examination that earlier Nigam Singh had made a murderous assault on him by firing a shot and he had lodged a case under section 307 IPC against first informant Nigam Singh. He contends that if the incident of previous assault is true, S.I. Ranveer Singh must have a grudge against Nigam Singh and, therefore, he was deliberately distorting the statements of prosecution witnesses. He further submits that at some point of time, the original written report submitted by the first informant Nigam Singh was replaced by a forged written report wherein, instead of direct role of Kamlesh Singh, it was mentioned that someone looking like Kamlesh Singh fired at Prabha Singh. The copy of the chick report given to the first informant by police at the time of lodging of the FIR was filed in the trial court by Rajendra Singh (P.W.1), which is Exh.-2. The complaint was made to the court concerned and an inquiry is still pending. Regarding distortion of statement of Pratibha Singh recorded under section 161 Cr.P.C., an application was sent by Pratibha Singh to S.S.P., Allahabad on 22.3.1996, which is Ex.Ka-35.
36. Sri Bajpai further submitted that Nigam Singh, Prabha Singh and Pratibha Singh lived in the Sohbatiya Bagh residence, which was owned by father-in-law of Nigam Singh and, therefore, presence of Pratibha Singh at the time of incident is quite natural and her testimony cannot be brushed aside simply on the ground that probably she might have been called from the village. P.W.4 is a most natural witness. If any false implication was to be done, most likely, Prem Singh would also have been implicated and this fact by itself is sufficient to indicate the truthfulness of the version given in the FIR. Nigam Singh and P.W.4 Pratibha Singh were the only eyewitnesses of the incident at Sohbatiya Bagh residence. Nigam Singh died during trial and could not be examined. It was further submitted that when a shot was fired from a distance of about 18 feet, it was not necessary that the pellets would have hit Pratibha Singh or Nigam Singh also. The injuries were found on the face of deceased Prabha Singh and not on lower part of the body, which shows that the direction of the shot was upwards and, therefore, there is no inconsistency between the eyewitness account and the medical evidence.
37. Rebutting the arguments raised on behalf of the appellants that Nigam Singh and Pratibha Singh were not present on spot and were called from the village, learned A.G.A. invited the attention of the Court towards the statement of P.W.1 Rajendra Singh, the scribe of the FIR, who stated that at 7:15 a.m., he went to the house of Jai Narain Singh after hearing that there had been a murder and he found that Nigam Singh was there and was making preparations for taking his wife to the hospital. The contention is that the presence of Nigam Singh at 7:15 a.m. at Sohbatiya Bagh residence is established from the statement of P.W.1 and he has not been cross-examined on this point.
38. Learned A.G.A. frankly admitted that State has not filed any appeal against acquittal of co-accused Kapil Dev Singh and has also not challenged the acquittal of the appellants for the offence under section 120-B IPC, but stated that a criminal revision has been filed in this respect on behalf of the complainant.
39. Sri Bajpai has also assailed the alleged alibi set up on behalf of the appellants Kamlesh Singh and Suresh Singh and submitted that plea of alibi has not been established beyond reasonable doubt and are concocted and have been found to be false by the investigating officer as well as the Trial court.
40. Sri V.P. Srivastava, learned Senior Advocate and Sri Dilip Kumar, Advocate appearing for the complainant adopted the submissions advanced by Sri K.N. Bajpai.
41. Before we proceed to examine the contentions of the counsel for the parties in the appeal and in the criminal revision petition, we want to point out that for challenging acquittal of Kapil Dev Singh, the criminal revision has been filed. Acquittal of Kapil Dev Singh is based solely on the ground that P.W.-3 Dharmendra Singh was not a reliable witness as may appear from the findings recorded by the learned trial judge from paragraph 21 onwards of the judgment. The learned trial judge has considered various circumstances for holding that P.W.-3 was not inspiring his confidence. We shall revert to those reasons for discarding evidence of P.W.-3 to find out as to whether those reasons are perverse or probable inferences. It was one of the questions agitated vigorously by the counsel for the appellant and the learned A.G.A. as also the petitioner in the revision petition. Besides, while arguing on the merits of the present appeal Sri Sushil Kumar, the learned Senior Counsel appearing on behalf of the appellants was equally acerbic in his criticism of the evidence of P.W.-4, the solitary witness, who had been relied upon by the learned trial judge for convicting the appellants. In that connection, the submission of the learned A.G.A. was that the investigation was not only inept but was purposely dishonest and, as such, some of the interpolations which were made by the police in addition to replacing the original written report, were such a circumstances which must not have been overlooked in appreciating the evidence.
42. Submission of the learned A.G.A. was that the police was completely hostile and had not only the one agenda of replacing the written report which was written by P.W.-1, but also making certain distorted statements in it, which fact was established from the very record and indicated the clear acts of dishonesty and forgery of the Investigating officer, especially, PW-7,S.I. Ranvir Singh. We, as such, were urged not only to consider the evidence of P.W.-4, Pratibha Singh keeping in our mind the above aspects of the police investigation and action, but also to reappraise the evidence including that of P.W.-3, Dharmendra Singh in order to considering the findings of the court below that the witness, P.W.-3 was not reliable. We think it utterly necessary to consider the submissions of the learned Government Advocate on the above aspect of the case which also touches upon the competence of P.Ws. 3 and 4 as witnesses to the two parts of the occurrence.
43. The first contention was that written report was changed in its entirety by the police on account of being hostile to the informant as also on account of the influence which was applied by the brother of appellant Kamlesh Singh who was a Sub- Inspector of police which fact was stated by P.W.-4. On being shown the written report, P.W.-1 stated in his evidence as appears from page 29 of the paper books that it was not the report which had been written by him as the writing and signature of the same was not his. He stated that it was a forged and fabricated report which was never written by him. He stated further that the report which was scribed by him and which was filed by the informant Nigam Singh on 15.12.1995 on the basis of which Case Crime No. 621 of 1995 was registered by the George Town Police Station at 8.10 p.m. on that day, copy thereof was given to the informant and he had brought the same to the court with him while coming to depose in trial. P.W.-1 produced that copy, which as per law has to be given to the informant and stated that this was the copy of the report which was written by him and the court had marked it as prosecution Ext. Ka-2. This evidence of P.W.-1 gets support from a witness who, we cannot disbelieve. P.W.-2, Head Constable Arvind Yadav, posted in George Town Police Station on 15.12.1995, was shown the copy of the alleged replaced copy of the written report and the F.I.R. and he was very categorical to state that they had never been prepared by him nor bore his signature. However, when P.W.-2 was shown the copy of the written report given by police to the informant, he readily stated that it was in his hand and bore his signature. We do not find any challenge to P.W.-2 on this evidence. The other circumstance which was pointed out, and which we find from the prosecution evidence, is that Pratibha Singh (P.W.-4) stated in her evidence during her cross-examination that she had never stated to the police that a person looking like appellant Kamlesh Singh had fired the shot, rather she had specifically named him with others. This evidence appears at page 47 of the paper book and she stated further on being cross-examined on that particular fact that Shiv Singh was the brother of appellant Kamlesh Singh, who was a Sub-Inspector of police and he had brought the Investigating Oficer in his collusion.
44. We find that P.W.-8 S. I. Vishambhar Nath Dube, who had taken over investigation form S.I. Ranveer Singh (P.W.-7) stated in his evidence at page 76 that P.W.-4 Pratibha Singh had filed an application before the Senior Superintendent of Police, Allahabad which was copied by him in the case diary and thereafter, he again recorded the statement of Pratibha Singh. We find that the prosecution had brought on record that particular application filed by P.W.-4 and that has been marked exhibit Ka-35, the copy of which is available at page 24 of the paper book. It has been stated in paragraph-4 of that particular application Ext. Ka-35 that while the application for bail on behalf of accused-appellants Kamlesh Singh and Suresh Singh was being heard by the Court, it was revealed by the case diary that statement of P.W.-4 had been distorted by describing appellant Kamlesh Singh as a person looking like him. The witness had stated that she had seen Kamlesh Singh and had identified Kamlesh Singh. It has come in the evidence as already noted by us that the brother of Kamlesh Singh was a Sub-Inspector of Police and he was said to have influenced the police in distorting the facts. Another aspect was also brought into our notice by making reference to the evidence of the prosecution, like, S. I. Ranveer Singh, P.W.-7. It was pointed out that P.W.-7 was hostile to the prosecution as may appear from his own evidence and as such he had distorted facts to help out the accused persons on account of ire and ill-will PW-7 was entertaining against the informant, Nigam Singh.
45.Our attention was drawn to the evidence of P.W.-7 at page 69 of the paper book, when he stated that Nigam Singh, the informant of the case, had fired at him and he had registered a case under Section 307 I.P.C. against him. This fact had been admitted by him and it was contended that the personal enmity of P.W.-7 coupled with the influence which was exerted upon him by the brother of appellant Kamlesh Singh, was enough to destroy the prosecution case by distorting the facts.
46.We want to point out that these facts appear undisputed that brother of Kamlesh Singh was a Sub-Inspector of Police as stated by P.W.-4 in her evidence to which we have already referred to and that evidence appears having been brought on record during the cross-examination of P.W.-4 as may appear from page 47 of the paper book.
47. The distortion was meaningful and there is no challenge to it that PW-1 had written the report and the same was signed by Nigam Singh and that was filed at the Police Station and further, Ext. Ka-2, the copy produced by PW-1 as the one supplied by the police u/s.154 Cr.P.C. to the informant was not genuine or not the copy of the real report. This fact gets support from Head Constable, P.W.-2. Finding the distortion made in her statement by the police, P.W.-4 had filed the application (Ext. Ka-35) and, as we have already noted, P.W.-8 had been asked to enquire into the matter and he had again recorded the statement of P.W.-4 and in that statement PW-4 had clearly named Kamlesh Singh. PW-7 S.I. Ranvir Singh stated that he was divested of investigation due to being hospitalized for the treatment of injuries he had earned in an accident, but PW-8, S.I. Dubey stated that P.W.-7 was transferred from police station. We do not find the two evidence compatible and doubt the veracity of PW-7.
48. In addition to the above, some facts which relate to the pleas of alibi of appellants and the evidence collected during verification of the plea - which we propose to discuss at the appropriate stage - go to suggest sufficiently that the accused person were highly influential persons and had deeply influenced the investigation so much so that not only the record like the F.I.R. of the case was changed but also the records of jail were created in support of the plea of alibi. Evidence indicated that investigation was dishonest or was carried out with a purpose of helping out the accused, we, as such, have to treat the prosecution witnesses trustworthy and their evidence could not be discarded merely because they were interested in the prosecution.
49. As per the police, appellant Kamlesh Singh was not present and as per his defence, he had not fired the shot and further that P.W.-4 was making statement that someone looking like him had fired the shot. The police claimed that P.W.-4 made this statement to them but what we find from the record is that it was a rank distortion of fact and fabrication of evidence by the Investigating Officer, P.W.-7 to help out the accused persons as regards their participation. This, we hold on the very basis of the prosecution document, like, Ext. Ka. 3, which is the seizure memo, dated 15.12.1995 prepared by P.W.-7 S.I. Ranveer Singh in respect of seizure of a single empty of 12-bore-cartridge found at the place of occurrence. While describing the place from where the seizure of the above empty was made, P.W.-7 was recording in the seizure memo that it was found at a place from where accused Kamlesh Singh had fired at the deceased Prabha Singh. PW-4 stated at page 49 of the paper book that she had shown the place to the Investigating Officer from where the shots had been fired and that very fact sufficiently points out the place where accused persons had stood up to fire the shots.
50. In our opinion, it was rightly contended by the learned A.G.A. that if the name of accused Kamlesh Singh had not been appropriately recorded in the written report and stated by P.W.-4 how was it that he was described very clearly in the prosecution document to be standing at that particular place. We are more than convinced that the police was fully determined to spoil the prosecution case and to help out the accused persons in getting away from the charges. It is in the above background that we have to examine the competence both of P.Ws. 3 and 4.
51. The fate of the appeals depends on the testimony of sole eyewitness Pratibha Singh (P.W.4), who stated that accused Kamlesh Singh and Suresh Singh are real brothers. Kapil Dev Singh and Daya Singh are also real brothers. Sukh Lal Singh is the uncle of Kapil Dev Singh and Daya Singh and they all belong to one family. She further stated that she knew the accused persons from before as she and the accused persons belonged to the same village. She further stated that since about 2½ months prior to the incident, she was living in the house of her Nana (maternal grandfather) Late Jai Narain Singh.
52. On 15.12.1995 at about 5:00 a.m., her uncle Dharmendra Singh and Monu Singh came there and took her brother Vikram Singh to K.P. College for exercise. Thereafter she and her mother Prabha Devi engaged themselves in household chores. At 7:00 a.m., she and her mother were sweeping the upper floor of the house. Her father Nigam Singh (informant) was standing on the barja (projection of the first floor) and her maternal uncle Bhagat Singh (deceased) was taking a stroll on the ground floor within the boundary. She heard the sound of a scooter and saw that Suresh Singh and Sukhlal Singh came on a scooter. Kamlesh Singh and one unknown person came on another scooter. Scooters were parked in front of the boundary wall and all of them entered the boundary wall. Suresh Singh and Sukh Lal Singh were armed with country made pistols and Kamlesh Singh was armed with a gun. The unknown person was empty handed. Suresh Singh, first, shot at Bhagat Singh and thereafter Sukh Lal Singh also shot at Bhagat Singh. After seeing this, she and her mother raised alarm and her father retraced his steps backwards. Kamlesh Singh shot the mother of P.W.4 after coming out of the boundary wall. Nigam Singh also started raising alarm. Kamlesh Singh told his companions that now Nigam Singh would not be found and asked his companions to go to K.P. College. Subsequently, Dharmendra Singh and Monu Singh came from K.P. College Ground and informed Nigam Singh about the incident, which took place at K.P. College Grounds. Thereafter, Nigam Singh took Prabha Singh to hospital. Subsequently, P.W.4 came to know that her mother died.
53. In cross-examination, Pratibha Singh (P.W.4) stated that she knew Kamlesh Singh since childhood, as they belonged to the same village. She denied the suggestion that the person, who shot her mother, was some other person looking like Kamlesh Singh. She denied having given any such statement to the investigating officer and stated that brother of Kamlesh Singh named Shiv Singh was a Daroga in Police and at his instance, the investigating officer had wrongly written her statement in the case diary. She further stated that the boundary wall was about 4 feet in height. She saw two shots fired at her mama (Bhagat Singh). The accused persons were at a distance of 1 - 2 paces from Bhagat Singh. On the date of incident, Prem Singh was at the village. Her Nani, mother of Bhagat Singh and wife of Jai Narain Singh, was with her (P.W.4) on the date of incident. Ram Narain Singh (D.W.1) did not reside in the said house. Ram Narain Singh came there subsequently after hearing about the incident. Her father also owned a house in Sohbatiya Bagh, which is at a distance of 1 to 1½ kms. Prem Singh died in 2001. She could not say whether Prem Singh was murdered. The deceased Bhagat Singh was the manager of a school. She denied the suggestion that there was a dispute between Prem Singh and Bhagat Singh regarding management of the school. Her father had gone to jail once or twice. She denied the suggestion given to her by the accused persons that at the time of incident, she was at her village Makanpur and was subsequently called to the place of incident. She also denied that there was fog at the time of incident. But, on appraisal of her evidence what we find is that except the solitary suggestion that a man looking like appellant Kamlesh Singh had fired at her mother when the witness and her mother deceased Prabha Singh came to the rampart of the house to see persons who had come at the gate of the premises, there was nothing to be highlighted by the defence. We have already discussed, while considering the argument of police dishonesty to distort the facts, that there was ample evidence to indicate that the written report was changed only with a purpose of helping out the accused and the identity of Kamlesh Singh was distorted so as to ensuring his acquittal. We have already pointed out as to how the police had manipulated that particular statement and how from its own documentary evidence, it was clear that Kamlesh Singh was named in the F.I.R. without there being any doubt about his identity as Ext. Ka-3, the seizure memo in respect of seizure of an empty cartridge, was itself recording a particular place from where Kamlesh Singh had fired at Prabha Singh. There was no contradiction in the whole evidence of P.W.-4. A witness is wholly reliable only when he or she had withstood the test of cross-examination and no fact had been brought through the cross-examination of the witness which may make it unsafe to place reliance upon her evidence. Pratibha Singh, P.W.-4 appears to us such a competent witness.
54. However, Sri Sushil Kumar, the learned Senior Counsel assailed her testimony on three grounds; firstly, it was contended that at the time of the incident, the deceased Pratibha Singh and the informant Nigam Singh were not residing in the house at Sohabatiya Bagh rather they were living at their village and when the occurrence had taken place they were called from the village and the F.I.R. was lodged showing P.W.-4, Pratibha Singh as an eye witness. Even this contention does not exclude the presence of the deceased Prabha Singh, the wife of informant Nigam Singh and mother of P.W.-4, Pratibha Singh at the place of occurrence and in the house as the incident undeniably had occurred there at Sohabatiya Bagh. It may appear from the evidence of P.W.-7 at page 65 of the paper book that after he had taken up the investigation of the case, he came to the place of occurrence and held inquest upon the dead body of Bhagat Singh @ Nathu Singh and the report in that respect was prepared by S.I. Ganesi Lal Verma. He, thereafter, recorded the statement of eye witness Kumari Pratibha Singh D/o Nigam Singh and then inspected the place of occurrence. Thus, it is clear that on the day of occurrence P.W.-4 Pratibha Singh was unmarried. It has not come in the evidence of PWs. as to what was the age of P.W.-4, Km. Pratibha Singh on the day of occurrence, but on the day of her examination in court on 23.05.2003, the court had recorded her name as Smt. Pratibha Singh, wife of Arun Kumar Singh, aged about 23 years. Thus, in between the day of occurrence and the day of her examination, P.W.-4 had got married and the court had recorded her age as 23 years. The date of occurrence was 15.12.1995 and calculating the period in between 15.12.1995 and 23.05.2003, we have about eight years of time and on deducting about eight year period, the age of P.W.4-Pratibha Singh would come to about 15 years which could be her age on the day of occurrence. We have already noted that she was unmarried on the day of occurrence.
55. The very defence evidence of D.W.-1, Ram Narayan Singh indicates that he was the uncle of the two deceased Prabha Singh and Bhagat Singh who were sister and brother between them. D.W.-1, Ram Narayan Singh had admitted that he was the full brother of the father of the two deceased Prabha Singh and Bhagat Singh. He had himself admitted in his evidence at page 106 of the paper book that on the day of occurrence his niece Prabha Singh (deceased) and nephew Bhagat Singh were residing in the house where the occurrence had taken place. However, the defence was suggesting that P.W.4 Pratibha Singh and her father Nigam Singh were residing at village Makanpur which was at a distance of about 25 kilometers from Allahabad as appears from the evidence of P.W.-3 in paragraph 17 at page 36 of the paper book. But, as may appear from the very evidence of witnesses, specially, the defence witness, D.W.-1, the mother of P.W.-4 was residing at the house in Allahabad. There is no evidence on record that any one was also in the family of informant Nigam Singh and his wife deceased Prabha Singh, who was residing at the village. This is common experience and only probability which arises from it that an unmarried girl of around 15 years could never be left alone at the rural house of the man and that too away from her mother. The ordinary inference which we draw from our experience of ordinary human conduct and behaviour is that the father may live away from his wife and daughter, but the daughter who was unmarried and was around 15 years of age, could never be left alone and separate from the mother.
56. In the above circumstances, we do not have any hesitation in accepting that P.W.-4 Pratibha Singh was very much present in the house and there is no reason for us to disbelieve the story told by her that on that fateful day at around 6.30 p.m. she and her mother were sweeping the upper floor of the house, just when the incident had occurred in the manner stated by her.
57. The second ground of attack, that Pratibha Singh was a child witness and was a tutored witness, has no legs to stand. At the time of incident, she was 15 years of age as noted by us. She was examined during trial in the year 2003 when she was 23 years of age. A girl of rural background aged 15 years is known to be quite matured and prudent in day to day affairs and may not appear lesser in maturity. She was not a child when the incident took place nor she was so when giving her statement in Court. There is no reason for Pratibha Singh to spare the real culprits and to falsely implicate the appellants. Therefore, the contention that P.W.4 is a tutored witness deserves to be rejected. Moreover, no such suggestion was put to P.W.4 during cross-examination that she was a tutored witness.
58. The third ground raised by Sri Sushil Kumar is that Kamlesh Singh fired from a distance of about 18 feet towards Smt. Prabha Singh and there must have been broad dispersal of pellets, but no injury was caused to Nigam Singh or P.W.4 Pratibha Singh and, therefore, the incident did not take place in the manner as alleged by Pratibha Singh. We do not find any merit in this argument. The postmortem examination report reveals that injuries on the person of Prabha Singh were on face and head and not on any lower part of the body, which clearly indicated that direction of the shot was upwards. In these circumstances, it is not necessary that the pellets should have hit Nigam Singh and Pratibha Singh also and testimony of P.W.4 cannot be disbelieved on this ground.
59. Before we proceed to consider the reasons assigned by the learned trial court for disbelieving the evidence of P.W.-3, Dharmendra Singh, we want to take up one important submission of Sri Sushil Kumar, the learned counsel appearing for the appellant. It was contended that the F.I.R. was belatedly dispatched and, as such, was belatedly received by the Magistrate and it, thus, also reinforced the view that indeed no one had identified the accused persons and after consultation and due deliberation, their names were inserted in the report. We have already discussed the submission of the learned Government Advocate on replacing the F.I.R. and we have held that there were sufficient reasons to accept that the F.I.R. was not only replaced but some distortions were also made while recording the statement of P.W.-4, Pratibha Singh during investigation. There was no particular reason assigned by Sri Shushil Kumar which may appear from evidence adduced in the case in support of his contention. We have consulted the F.I.R. and we do not find that it could be said with certainty that it had reached the nearest Magistrate belatedly and not within reasonable time.
60. For considering as to whether the report was belatedly made with the purpose of implicating innocent persons or for any other reason like the informant and the witnesses not being aware of the real participants in commission of offence, it not only has to be seen as to when the nearest Magistrate had received the F.I.R., but the question has also to be considered in context of other evidence, like, the copy of the F.I.R. which is required to be sent with the inquest report to the mortuary was also belatedly sent or never sent. Besides, the other question which is required to be examined is as to whether the inquest was prepared in time and whether the copy of the inquest had also been sent to the mortuary in time and whether the details in respect of the dead body and inquest was mentioned in the inquest report.
61. We have perused the copy of the F.I.R. which is available in the bunch of Exhibits and we find that Ext. Ka.-7, the copy of the written report was duly received by the doctor alongwith inquest report on 15.12.1995 as the two documents are tagged together. Inquest report of the three dead bodies had been marked as Exts. Ka.-11, Ka.-12 and Ka.-13 and it indicates that those three reports were also received by the Chief Medical Officer (C.M.O.) on 15.12.1995. Besides the letters addressed to the Chief Medical Officer, Allahabad requesting him to facilitate holding of postmortem examination, which had been marked Exts. Ka.-14, Ka.-15 and Ka.-16 for the prosecution, were also duly received on 15.12.1995, that's, the date of occurrence and in the accompanying dead body challan, general diary entries number with date and time were duly mentioned. The form of inquest report, original of which is available to us does not indicate that the names of accused persons or any further detail was to be incorporated in it. It is merely to be mentioned as to when the report about the incident, was received in the police station and when the inquest was held with the place where it was held and we find that in the three inquest reports, Exts. Ka.-11, Ka.-12 and Ka.-13, these details have been duly incorporated with specific time and there is no reason to infer that the documents had been ante-dated. If the copy of the F.I.R. was duly sent and received by the Chief Medical Officer with three inquest reports, if also the dead body challan and other connected documents were also dispatched and received with immediacy then there was no reason for us to infer that the report was belatedly dispatched to the Magistrate because the prosecution was at all not aware of the real identities of the accused persons, who had committed the offence and as such the F.I.R. had been lodged after consultation and deliberation.
62. In fact, while Sri Kumar was addressing us we had very pointedly put across to him as to whether the foundation, by cross-examining the police witnesses, had been laid for arguing on the belated dispatch and receipt of the copy of the F.I.R. so as to raising an inference of ante-dating it with a solitary purpose of fabricating the story to implicate innocent persons. Sri Kumar was only pointing out to us the evidence of P.W.2 at page 31 of the paper book who was answering as to when the F.I.R. had reached the police station. We could not exactly find out from the evidence either of P.W.-7 or P.W.-8, the two Investigating Officers that any question was put to them regarding the dispatch and receipt of the F.I.R. to the nearest Magistrate. We do not find from the evidence that P.W.-2 who was the head constable posted in George Town Police Station had the responsibility of dispatching the copy of the report to the nearest Magistrate. In our opinion, the responsibility of dispatching the copy of the report definitely lies either upon the Officer Incharge of the police station or on the Investigating Officer. But in absence of any evidence and in absence of any attempt made by the defence to put any question to them, we are of the opinion that the argument was not available to the learned Senior Counsel as the basic foundation was not laid for addressing that argument. Besides, we have already discussed about the receipt of other documents, like, inquest report, dead body challan and the copy of the F.I.R. with letter addressed to the Chief Medical Officer promptly on the same day, that's, 15.12.1995 by the Chief Medical Officer and in that view, we find no merit in the contention.
63. Sri Kumar and the learned counsel appearing for the opposite party in the revision petition were both arguing that the evidence of P.W.-3,Dharmendra Singh was rightly rejected, while asking us to reject the evidence of P.W.-4, Pratibha Kumari. We have already answered the argument in respect of P.W.-4 in earlier part of the judgment. We now proceed to consider it as regards evidence of P.W.-3.
64. The learned A.G.A was submitting that the evidence of P.W.-3 was worth believing as it appears concluded from the evidence of P.W.-4 and his own evidence that he had taken the deceased Vikram Singh to K. P. College Ground for exercises as they used to do it daily. This evidence had come both from P.Ws. 4 and 3. P.W.-4 had stated in paragraph-3 that at about 5.00 A.M., P.W.-3, Dharmendra Singh, who was the step brother of her father Nigam Singh, had come and took Vikram Singh, the deceased brother of P.W.4 along to K.P. College Ground for doing exercises as they used daily to do. The same evidence had come from P.W.-3 in paragraph 1 also. P.W.-3 had stated that when they were about to leave after concluding their exercises, the occurrence had occurred when appellant Kapil Deo Singh had fired a shot in the chest of deceased Vikram Singh. When he had fallen down, Daya Singh fired a shot from his country made gun into the belly of deceased Vikram Singh and while leaving, Kapil Dev Singh again fired the second shot upon Vikram Singh stating that he should not be left alive. P.W.-3 stated that after the occurrence had taken place and the accused persons had left, there was a great commotion there and he rushed to Sohbatia Bagh-residence of the informant and found Bhagat Singh lying dead inside the boundary wall and Nigam Singh was standing by the side of the dead body. He, then, narrated to Nigam Singh about the incident which had occurred at K. P. College Ground. Thereafter, Nigam Singh stated to him that when his wife (deceased Prabha) and daughter (P.W.-4) were sweeping and he was standing at the upper floor and deceased Bhagat Singh was taking a stroll inside the boundary, Suresh Singh and Sukh Lal Singh came on one scooter and appellant Kamlesh Singh and one unknown came by the other scooter and after having parked their scooters, came inside and Suresh Singh fired shot into the chest of Bhagat Singh. Sukh Lal Singh also fired at Bhagat Singh. Seeing the occurrence, Nigam Singh withdrew himself back at the roof top and his wife and daughter P.W.-4 started raising cries when Kamlesh Singh fired a shot at Prabha Singh as a result of which she was also killed.
65. P.W.-3 Stated in paragraph-11 that he went on the first floor to find Prabha Singh lying on the floor and P.W.-3 alongwith Rajendra Singh accompanied the informant up to the hospital from where P.W.-3 went back again to K. P. College Ground.
66. The learned trial Judge has discarded the evidence of P.W.-3 on the ground that in his cross-examination, P.W.-3 had stated that no blood had fallen on the ground out of the wounds caused to Dharmendra Singh, though P.W.-6, Sub Inspector, Ganeshi Lal Verma stated that he had found the wounds on the dead body of Dharmendra Singh bleeding. The learned court below recorded that non-finding of blood on earth might be raising an inference that the deceased had been killed at some other place, in some other manner.
67. We find that the reason assigned by the learned trial judge for disbelieving the evidence of P.W.-3 on the above score was completely unreasonable and perverse due to being against the weight of evidence available on record. The learned trial judge ought to have considered that it was 5.30 AM. on the 15th of December, 1995, which should have been undisputedly a very cold morning. There was no challenge to the fact that the deceased and P.W.-3 had gone to K.P. College Ground for doing exercises and when they had gone out, one has simply to assume that the deceased must have put on sufficient cloths to keep himself warm. The inquest report of Vikram Singh records as to what were the cloths on the dead body. A blue pant, a blue short, white shoes, shocks, leather belt as also a jacket with baggy sweater under which were a coloured shirt and a sando baniyan. There were marks of gun shots, which were caused on account of entry of the wounds. The above description of cloths appears twice mentioned in the inquest report of Vikram Singh. Thus, most of the blood must have been withheld by the cloths on account of being absorbed by them. The wounds of entry were there, we have already noted it.
68. The learned trial Judge was recording that the doctor was pointing out that there ought to have been charring and tattooing caused by the shots which were fired at Vikram Singh, but those marks were not present around the wounds of deceased Vikram Singh and the learned trial judge noted that it probably indicated that P.W.-3 had not seen the occurrence.
69. We again note our dismay at the lopsided approach towards appreciation of evidence adopted by the learned trial Judge which has been recorded at page 150 of the paper book as he was missing the very fact that the deceased Vikram Singh was quite heavily dressed and any shot which could have been fired from a close range could never have caused charring or blackening as the cloths had surely obstructed the unburnt gun power to penetrate them and then to penetrate the skin.
70. The other reasoning, which was given by the learned trial judge was as to whether the deceased had fallen by his back or by his belly was not stated by P.W.-3. In our opinion, the learned trial Judge was being hyper technical and was indulging in hair splitting of evidence. When the offence was being committed by three persons and Vikram Singh was being shot at, he had fallen definitely on the ground and the witnesses could not be faulted for not remembering as to what was the position in which he had fallen.
71. Similarly, if the witness was not attempting to pick up the deceased, his evidence could not be fit to be rejected on that score. The learned trial judge was being too technical in appreciating the evidence and was at the same time losing sight of the ordinary human behavior that when persons are faced with such dire situation, they simply lose their composer and behave in manner which may not be expected from a normal person. It is human nature that different persons react in different manner by being faced with such situations. Rejecting the evidence of P.W.-3 on these reasons was completely unreasonable. The other score on which the evidence of P.W.-3, was rejected, was that he was not able to tell the names of persons, who had assembled there. The learned trial judge forgot that the witness was the witness to the facts relating to the incident and he had never to be a witness as to who had appeared there after the incident had occurred, especially when his mental condition would not have been so composed and consistent as to remember and retain for reproducing the same facts after 3-4 years of the incident.
72. There may be persons who could not tell us as to what things they had done in a couple of days earlier and how many persons by their names they had met. It is too technical a view to take in appreciating the evidence and these ought not have been the reasons for discarding the evidence of P.W.-3. Dharmendra Singh (P.W.-3) was withstanding the cross-examination on relevant facts and the facts which may not be relevant, could never be taken into consideration so as to discarding his testimony. More over he was promptly rushing to the house of the deceased and was finding two deaths having been caused there too on account of Prabha Singh and Bhagat Singh being killed. The story of Prabha Singh and Bhagat Singh being killed was stated to him by Nigam Singh as may appear from the evidence of P.W.-3 who was standing there and who alongwith P.W.-3 took the dead body to the hospital. The learned A.G.A. submitted that the narration by Nigam Singh to P.W.3 about the incident and the relaying back of the description as to how Vikram Singh was killed at K.P. College Ground by the accused persons immediately after the incident were admissible under Section 6 of the Evidence Act. It was submitted that there was no inordinate delay or unreasonable gap in time in both the persons stating to each other about the incidents that they had witnessed. The contemporaneous statements of P.W.-3 as to what was heard by him or seen by him first after the incident or whatever he was told by the informant made it admissible under Section 6 of the Evidence Act. The learned State Counsel was referring to us the decision of the Supreme Court in Sukhar Vs. State of U.P. reported in AIR 1999 SC 3883 in support of the contention.
73. The Supreme Court in the case of Sukhar (Supra) was considering elaborately the scope of Section-6 of Evidence Act. In that case the Apex Court was considering the reliability and admissibility of the evidence of a witness who claimed hearing about the details of the incident from one of the injured as may appear from paragraph-5 of the report (at page-3884). The Apex Court had, firstly, extracted the evidence of P.W.-2 of that case and then proceeded to decide its admissibility under Section 6 of Evidence Act. The whole discussion starts from Para 6 and ends at para 10. For the sake of appropriateness, we extract those paragraphs of Sukhar (Supra) which are as follows:
"6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmores Evidence Act reads thus:
'Under the present Exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e., as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.'
7. Sarkar on Evidence (Fifteenth Edition) summarises the law relating to applicability of Section 6 of the Evidence Act thus:
"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.
2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.
3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot andc. the declarations of all concerned in the common object are admissible.
4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated."
8. This Court in Gentela Vijayavardhan Rao and Another V. State of A.P. 1996 (6) SCC 241: (1996 AIR SCW 3535: AIR 1996 SC 2791: 1996 Cri LJ 4151) considering the law embodied in Section 6 of the Evidence Act held thus (Para 15 of AIR SCW, AIR and Cri LJ):
"The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae."
9. In another recent judgment of this Court in Rattan Singh V. State of H.P. 1997 (4) SCC 161: (1997 AIR SCW 547: AIR 1997 SC 768: 1997 Cri LJ 833), this Court examined the applicability of Section 6 of the Evidence Act to the statement of the deceased and held thus (Para 16, of AIR SCW, AIR and Cri LJ):
"....... The aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder, Illustration 'A' to Section 6 makes it clear. It reads thus:
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(emphasis supplied)
Here the act of the assailant intruding into the courtyard during dead of the night, victims identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act."
10. Applying the ratio of the aforesaid two cases to the evidence of PW 2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew has fired at him, would become admissible under Section 6 of the Evidence Act. We are, therefore, unable to accept the first submission of Ms Goswami, learned counsel appearing for the appellant."
74. As may appear from the judgment of Supreme Court in Sukhar (supra), the statements of P.W.-3 appears admissible in as much as whatever he had seen at K.P.College Ground or whatever had happened to deceased Vikram Singh there was narrated by him to the informant and again he had stated that he was also told by Nigam Singh as to how Prabha Singh and Bhagat Sindh had been killed and by whom. It appears that the statements made and received by P.W.-3 were very proximate and contemporaneous in time to the occurrence and nothing had happened in between so as to adulterating those statements.
75. In view of the above, the evidence of P.W.-3, in our opinion, was credit worthy. Besides, we find he was a competent and trustworthy witness. The reasons assigned by the learned trial Court for disbelieving P.W.-3 were definitely perverse.
76. In addition to what we have noted in respect to the admissibility of evidence of P.W.-3 under Section 6 of the Evidence Act, we want to point out that the very section makes the place of occurrence also relevant and admissible as per the evidence of the witness. Illustration (a) to Section 6, which has been extracted by the Supreme Court in the case of Sukhar (supra) only speaks of " whatever was said or done" and as such that illustration may not be denoting the full import of Section 6 and the principles of res gestae. If one considers illustration (b) to Section 6, then one may find that places, properties or other things may also be part of the same transaction. This could be the reason that some of the jurists and illustrated authors have, while defending the provision, pointed out that the place of occurrence and its description is also admissible under Section 6 of the Evidence Act as parts of the transaction which ultimately are the parts of the facts of the case which are relevant for deciding the issue as to whether an accused had indeed committed a particular offence and if yes, then where. The present enunciation rendered by us gets support from a Judgment of Patna High Court reported in 2008 (1) BLJR 839, Vivekanand Mishra Vs. State of Bihar, when that Court was expressing their views on the scope and ambit of Section 6 and the relevancy of facts which may be forming part of the same transaction.
Paragraph 13 of the judgment in Vivekanand Mishra (supra), we quote for ready reference:
"13. Section 6 of the Evidence Act, as noted above, speaks of relevancy of facts forming part of same transaction. The language of the Section may not make the proposition very clear. The Section states that acts which, though not in issue, are so connected with the facts in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. However, illustrations appended to the Section, which are necessarily part of the main provision, i.e., the body part of the Section, make the principle of res gestae very clear. Out of four illustrations that at (a) is highly instructive as regards the present discussion. It reads: -- "A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
The above illustration indicates that both the acts as are done and the words which are spoken are relevant. This is plainly clear from words "whatever was said or done". But that illustration (a) does not elucidate the full import of Section 6 and the principle of res gestae. If one considers illustration (b) then one could find that places, properties, or other things may also be parts of the same transaction. This could be the reason that some of the jurists and celebrated authors have, while defending the provision, pointed out that the place of occurrence and its description is also admissible under Section 6 of the Evidence Act as parts of the transaction, which ultimately are the parts of the facts of the case which are relevant for deciding the issue of an accused of a particular offence, committing or not committing the same."
77. Thus, the finding recorded by the learned trial judge for discarding the evidence of P.W.-3, Dharmendra Singh that the murder of Vikram Singh might have taken place at some different place, could also be judged in the light of the evidence of Dharmendra Singh, P.W.-3. We have already noted that there was no challenge to the fact that Dharmendra Singh and Vikram Singh (deceased) had gone together to K.P.College ground for doing exercises. Dharmendra Singh stated that Vikram Singh was killed at that particular ground and the relevant documents, like, the inquest report and evidence of the Investigating Officers, P.Ws. 7 and 8, sufficiently indicated that K.P. College Ground was the place of occurrence where Vikram Singh had been killed.
78. Thus, what we find from the above discussion is that the witnesses, P.Ws. 3 and 4 were both reliable as regards the murder of Vikram Singh at K.P. College Ground, and Prabha Singh and Bhagat Singh at Sohbatiyabagh, residence of the informant. There is no reason appearing from the records for us to doubt the presence of the two witnesses at two different places and we have also no reason to doubt their competence as trustworthy witnesses. They appear telling the truth to the Court and from their evidence the charges were proved to the hilt.
79. Another submission, though faint, raised by Sri Sushil Kumar was that the situation of the place of occurrence at Sohbatiyabagh, should have made it not possible for P.W.-4 Pratibha Singh to see the assailants of her mother and Bhagat Singh.
80. It is true that the informant had not been examined and it is also true that we can not use the F.I.R. as a piece of evidence to seek corroboration from it to any part of the prosecution story, nonetheless, the document does not lose its importance as regards its value. It could be considered as to what was the prosecution case initially put-forth and what were the circumstances appearing from it which attended upon the commission of offence or were relevant to it. There was a clear statement made in it that Nigam Singh peeped down the rampart of the house to find the accused persons standing there outside the boundary wall. Shots where fired targeting him but it hit the deceased Prabha Singh. If the assailants or the accused persons were seeing their targets, that's, persons who were standing on the first floor of the house, how could it be doubted that persons standing there could not have seen persons standing below. We do not find any merit in the contention.
81. This brings us to consider the defence pleas of alibi of accused persons.
82. Appellant Suresh Singh claims that he was admitted at Sumeeta Medical Centre, Janki Puram, Lucknow on 14.12.1995 and was operated upon for hydrocele and was discharged on 20.12.1995 and, therefore, he could not have been present at the time of incident, which took place on 15.12.1995. Two witnesses B.P. Mishra (D.W.4) and Awadhesh Kumar Yadav (D.W.6) have been examined to prove the said plea. At the very outset, it may be noted that the Doctor, who treated the appellant Suresh Singh and performed surgery on him, has not been examined in defense. B.P. Mishra (D.W.4) was then working as a Manager in the hospital. He stated that Suresh Singh was admitted in the hospital on 14.12.1995 and was discharged on 20.12.1995. To support this fact, he brought the indoor register of the hospital for the year 1995 and stated that at page 42, the entry regarding admission of Suresh Singh had been made. He also filed copies of the 1st page and page 42, which are Ex.Kha-11. In cross-examination, he admitted that first entry in this register was of 22.12.1995. On page 42, only the name of the patient had been written. His father's name and address had not been written. Page 42 had been written by a person named Dharmendra Singh. He further admitted that he had no evidence to show that this register actually belonged to Sumeeta Medical Centre. Date of discharge had not been mentioned in the register.
83. When the indoor register started from 22.12.1995, how can there be a valid entry dated 14.12.1995 in this register, is beyond imagination. The said entry can hardly be believed. The other witness Awadhesh Kumar Yadav, on the basis of jail hospital records, stated that from 17.1.1996 to 16.5.1996, Suresh Singh, while detained in jail, was suffering from infected wounds, which related to hydrocele surgery. His testimony does not prove that Suresh Singh was operated upon on the date of incident or that he was in the hospital on the date of incident. Suresh Singh might have got himself operated subsequently and the evidence of this witness does not help Suresh Singh in any manner.
84. Considering the testimony of D.W.4 and D.W.6 and specially the fact that the first entry in the indoor register related to 22.12.1995, we come to the conclusion that alibi of appellant Suresh Singh is not proved and is rather highly suspicious and has to be rejected.
85. As regards plea of alibi of appellant Kamlesh Singh, reliance has been placed on the statements of D.W.3, D.W.7 and D.W.8. The plea raised on behalf of appellant Kamlesh Singh is that in the morning of 15.12.1995, he was arrested by the police of P.S. Madiawa, District Lucknow and case crime no.261 of 1995 under section 3/25 Arms Act was registered against him at 8:30 a.m. Subsequently, he was produced in the Court of the Magistrate concerned and was sent to jail and, therefore, he could not have been present at Allahabad in the morning of 15.12.1995. It was contended that in the case under Section 3/25 Arms Act, the appellant was prosecuted and convicted by the trial court and the appeal is pending before this Court. In this regard, D.W.3 Shiv Das, Deputy Jailer, District Jail, Lucknow stated that Kamlesh Singh was admitted in jail on 15.12.1995 at 17:48 hours. The same fact was proved by Shree Ramjeet (D.W.7). Kamlesh Singh was released from Lucknow jail on 12.1.1996.
86. On a consideration of evidence of D.W.-3, Shiv Das, Deputy Jailer, District Prisoner, Lucknow, what we obtain is that on the basis of the custody warrant issued by the Court and an under trial prisoner (UTP) was entered into the jail on 15.12.1995 and that prisoner was named Kamlesh Singh, that's, the appellant before us and he was brought by constable Ram Kewat Gupta at 17.48 hours from police station Madiawa, District Lucknow. The entries in respect of the prisoner was at Sls. No. 26 to 30 and it further appeared from the evidence of D.W.-3 Shiv Das that after being entered inside the jail the finger prints of the prisoner were taken in the relevant register. D.W.-3 Shiv Das stated that the entries dated 15.12.1995 in respect to the above were very much available in the relevant registers and he produced the photocopies while deposing on the basis of the original records and those records have been marked as defence Ext. 10. D.W.-3 also identified Kamlesh Singh, who was present in Court by looking at him. But, what we find is that he was not posted on 15.12.1995 in District Jail, Lucknow and in fact he had not even joined the jail services by that date. These facts are available in the cross-examination evidence of D.W.-3 at page 110 of the paper book. D.W.-3 admitted that he was posted in District Jail, Lucknow on 08.05.1995. Thus, the identification of the prisoner by merely looking at him, in our opinion, could not be an acceptable evidence. In our opinion, when the finger prints of the prisoner had already been taken, it would have been appropriate for the defence to produce the more convincing and scientific evidence of identification. In fact, the evidence of D.W.-3 in cross-examination dated 23.03.2006 which is available at pages 110 and 111 of the paper book convinces us that the present appellant Kamlesh Singh might not be the UTP who was admitted on 15.12.1995 in jail in as much as the caste pointed out by that UTP was Thakur, that's, Rajpoot or Kshatriya as we call them. But, what we find was that caste of Kamlesh was not known to the witness. During the course of argument, it was pointed out that appellant Kamlesh Singh did not belong to caste Thakur and the witness D.W.-3 stated that there was no enquiry as to the fact that the person, whose caste was Thakur and who had been admitted into jail on 15.12.1995, was indeed the appellant or was someone else.
87. The above evidence of D.W.-3 regarding the identification of appellant Kamlesh Singh gets clarified that it was not appellant Kamlesh Singh, when we had considered the evidence of another defence witness D.W.-7, who was also posted on the same day as Deputy Jailer in the said jail. D.W.-7, was the Incharge of UTP and he had stated that entries in respect of UTP Kamlesh Singh in column no. 3 of the register regarding his name and parentage were written by him. D.W.-7, further stated that he was admitted into the jail at the orders of Second Additional Civil Judge (Junior Division) on the basis of custody warrant issued by that Court and that the said accused remained in custody from 15.12.1995 to 12.01.1996 and was released on the later date on account of being admitted to bail. He had been remanded in Case Crime No. 261 of 1995 under Section 3/25 Arms Act and both at the time of entry and at the time of his releases, his thumb impressions were taken. During the course of cross-examination, D.W.-7 stated that the caste of accused was written as Thakur and he was an Advocate by profession. We may point out that none of the accused persons, least to talk of appellant Kamlesh Singh son of Jagpat Singh, was an Advocate. Besides appellant-Kamlesh Singh during his examination U/S 313 Cr.P.C. stated that his profession was "Business" which appears in the corresponding statement of the appellant at page 97 of the paper book. We have verified its correctness from the original record of 313-Cr.P.C.-statement of appellant-Kamlesh Singh, available on the lower court record at page 93 of File-A and we find it as it is in the paper book. Thus, from the evidence of D.W.-7 at page 122 of the paper book Kamlesh Singh, who was admitted on 15.12.1995 and released on 12.01.1996 from District Jail, Lucknow was not appellant Kamlesh Singh, who was tried by the trial court.
88. We have, while examining in the earlier part of the judgment, the argument regarding the replacement of the written report had noted in paragraph 48 that the accused persons were highly influential persons and had deeply influenced the investigation so much so that not only the records, like, the F.I.R. of the case was changed but also the records of jail were created in support of the plea of alibi. This is the reason upon which we were making those observations in paragraph 48 of the present judgment. Unfortunately, the above facts in spite of being recorded by a judge could not convince the learned trial judge to direct initiation of appropriate action against D.W.-7 or the police officers, who had forged and fabricated the records like the F.I.R. of Case Crime No. 261/1995 of Madiawa PS, Lucknow and the jail registers in an attempt to ensuring that the real culprits were acquitted.
89. In addition to our above findings regarding the defence being not only bogus but the evidence in support thereof were also forged and fabricated requiring a deeper inquiry into that aspect of the case, what we want further to emphasize is that falsity of defence not being a circumstance always against the accused, but in such type of cases as presently in our hand where the court has arrived at a definite conclusion regarding the falsity of the plea which was buttressed by forged and fabricated documents of the nature, like, public records to be maintained in the ordinary course of nature by different organizations of governance, the court must use it as an additional circumstance to reinforce its inference on guilt of the accused. In our considered view, the fabrication of the records of public nature were made only to buy, out and out, an alibi by the accused persons so as to negating or to scuttling out an appropriate and meritorious prosecution of theirs for committing triple murders. We are inclined to raise that inference as further reinforcing our views on proof of charges, to the hilt.
90. Regarding the morning incident, the police personnel, who arrested appellant Kamlesh Singh, have not been examined in defense. The last defense witness is Head Constable Krishan Pal Singh (D.W.8), who stated that on 15.12.1995 at 8:30 a.m., crime no.261 of 1995 under section 3/25 Arms Act was registered at P.S. Madiawa, District Lucknow against Kamlesh Singh and Kamlesh Singh was taken from the police station to the Court at 10:50 a.m. The case was registered at the instance of S.O. Sarnath Singh and Kamlesh Singh was brought to the police station by Constable Chandrashekhar Singh along with the case property, that's, the seized arms. Appellant Kamlesh Singh is alleged to have been arrested by Constable Chandrashekhar Singh. The investigating officer Vishambhar Nath Dubey (P.W.8) investigated the plea of alibi of Kamlesh Singh. He obtained copies of the documents, G.D. Entries, etc. relating to that case. He stated that according to G.D. No.48, at 23 hours of 14.12.1995, Constable 1187 Shekhar Singh and S.I. Prem Singh Raikwar proceeded from the police station Madiawa, District Lucknow in connection with a warranty Basant Lal. Constable Shekar Singh did not return to the police station till 6:50 a.m. on 15.12.1995. Again on 15.12.1995 at 6:50 a.m., his departure was mentioned in G.D. No.14 along with Constable Ram Samujh Kashyap and Constable Rama Nand for law and order duty in the University. Sri Bajpai, the learned A.G.A., has rightly pointed out that the entries made in the general diary of the police station Madiawa are entirely forged entries. When Constable Shekhar Singh departed from the police station on 14.12.1995 at 11:00 p.m. and he did not return to the police station ever at anytime, how could he proceed again on 15.12.1995 at 6:50 a.m. and, therefore, the arrest made by police constable is entirely fictitious and was simply shown to provide an alibi to appellant Kamlesh Singh. Sri Bajpai contended that it was entirely possible for Kamlesh Singh to participate in the crime and thereafter to proceed to Lucknow and with the connivance of the police officials, he was produced in Court with forged papers showing his arrest and remand and was detained in jail in the afternoon.
91. P.W.8 has further stated that three Constables, who are alleged to have arrested Kamlesh Singh, claimed to have returned to the police station with Kamlesh Singh on 15.12.1995 at 8:30 a.m., but their signatures are not there in the G.D., which should have been there as a common practice and they did not go again for law and order duty at the University, which is highly unusual.
92. None of the police personnel, who allegedly arrested the appellant under the arms act, has been examined as a defense witness. The G.D. entries prima facie appear to be fictitious and forged. How a Constable, who proceeded on previous evening, did not even return to the police station and again he was shown to have proceeded in the morning of 15.12.1995 for another duty. To us, the arrest of Kamlesh Singh by police constables under section 25 Arms Act was simply a stage managed drama with the connivance of the police officers including the concerned S.O. and, therefore, we have no hesitation in rejecting the plea of alibi raised on behalf of appellant Kamlesh Singh.
93. Thus, on analyzing the defence evidence on the plea of alibi of appellants-Suresh and Kamlesh Singh, what we find is that not only the pleas were bogus rather the documents which were produced in Court were rank forgeries and those evidences were tendered in the judicial proceeding by witnesses who testified to them or which were fabricated by persons as stated by them.
94. In the above light, we reject the defence pleas of alibi as the same is based on forged and fabricated documents and there is every chance that the entire evidence was stage managed by some very highly influential persons in league with accused persons. We simply want to reiterate that the plea of alibi has to be proved almost with same certainly as is required for proving a charge to the hilt. That not being the case, we dismiss the plea.
95. One of the arguments upon which Sri Kumar, learned counsel for the appellant attempted to build up another defence in the alternative was with reference to the evidence of D.W.-5, Dharmaraj Yadav, Head Operator, Police wireless, 42 Battalion, Naini, Allahabad. It was submitted that an information was received by the George Town Police Station on 15.12.1995 at 9.15 am, which was entered into the log book on that date by D.W.-5 which indicated that four criminals by using two scooters came and killed Vikram Singh at K.P. College Ground, his 'mama' Bhagat Singh and his 'mami' Prabha Singh at Sohabtiya Bagh, Allahabd. D.W.-5 further stated that at 9.25 am, the Circle Inspector-II of George Town Police Station further pointed out that at 6.25 am Vikram Singh, son of Nigam Singh, resident of Sohbatiya Bagh and permanent resident of village Makanpur, P.S. Pipri, District Allahabad, who had gone to K.P. College Ground, had been killed by four criminals riding two scooters after being shot dead. Just thereafter, the same set of criminals killed Bhagat Singh and his wife. D.W.-5 entered these informations also in the log book. It was contended that as regards the names of criminals there were none named in either of the two entries which were made by D.W.-5. It was, as such, contended that it was not known as to who had really killed the three deceased. What we find from the above entries, which had been substantially reproduced by D.W.-5, is that there is no name as to who had given those informations nor the Circle Inspector-II, George Town Police Station was examined in respect of any of the statements. More over the informations appear quite misleading and inadmissible. Smt. Prabha Singh one of the deceased had been described as 'mami' of deceased Vikram Singh, though there was no dispute in the fact that she was the mother of deceased Vikram Singh. It is true that Bhagat Singh was his 'mama' and brother of deceased Prabha Singh but he had been described as husband of Prabha Singh. This may not be of much consequence but what appears to us is that it was not the first hand information received from any particular person who was known and none of the persons who could have supplied those informations, were coming into the witness box to depose to those facts. Thus, the statements which were recorded by D.W.-5, were completely inadmissible in evidence as the primary sources of informations were not coming to support any of these facts. However, what we find from the evidence of D.W.-5 was that indeed the occurrence had occurred at Sohbatiya Bagh residence of the informant where Bhagat Singh and Prabha Singh were killed and the other occurrence had taken place at K.P. College Ground where Vikram Singh had been shot dead. Thus, this evidence also indicated about the credibility of the prosecution's claim that the occurrence had occurred at two places and on the basis of this evidence also we could note that the statement of P.W.-3 that Vikram Singh was shot dead in K.P. College ground, was worth accepting.
96. Having considered the contentions and the evidence of the parties, we find and hold as under:
1. The deceased Bhagat Singh and Prabha Singh had been killed by appellants-Suresh Singh, Sukhlal Singh and Kamlesh Singh at 16/115, Sohbatiya Bagh, Allahabad whereas deceased Vikram Singh had been shot dead by Kapil Dev Singh and Daya Singh at K.P. College Ground on 15.12.1995 early in the morning.
2. The evidence of P.Ws. 3 and 4 was trustworthy and the findings of learned trial court that P.W.-3 Dharmendra Singh was not reliable, was against the weight of record and perverse.
3. The F.I.R. had been replaced by the police to help out the accused and a new one was substituted with distorted statement.
4. We further hold that P.W.-7, S.I. Ranveer Singh manipulated the police record so as to benefiting the accused persons.
5. The defence evidence were all forged and fabricated to support the pleas of alibi of appellant Suresh Singh and Kamlesh Singh and all documents in connection of those pleas of alibi of the two appellants were rank forgeries, which were used as evidence in a judicial proceeding with a view to shielding the real culprits from being convicted and punished.
6. There was no conflict in the oral and medical testimony and, finally, the prosecution had succeeded in proving the charges to the hilt against the four accused persons who had been put on trial.
97. In the result, we dismiss Criminal Appeals No. 5634 of 2006 filed by appellant Kamlesh Singh as also bearing No. 5868 of 2006 filed on behalf of appellants Suresh Singh and Sukhlal Singh.
98. As regards the Criminal Revision Petition No. 5840 of 2006, we find on re-appraisal of the evidence that acquittal of opposite party Kapil Dev Singh was perverse as it was based on perverse appreciation of the evidence of P.W.-3. As such, we set aside the judgment and order of acquittal in respect of accused Kapil Dev Singh (opposite party in criminal revision) and direct the court below to retry him by hearing the arguments and pronouncing the judgment afresh on the basis of evidence already on record. Kapil Dev Singh, respondent, in criminal revision petition, is directed to surrender himself to the court below within one month from today failing which the court below shall be free to issue warrant of arrest bailable or other processes which may be necessary for enforcing his appearance before it.
99. We have held at the appropriate stage while discussing pleas of alibi of the accused persons that the records of the jail were manipulated alongwith record of the hospital as also the F.I.R. under Section 25 Arms Act so as to creating defence in favour of appellant Suresh Singh and Kamlesh Singh. The documents were forged and fabricated probably under influence of some higher ups.
100. In the light of the findings, we have recorded in paragraphs 84, 85, 86 and onwards up to paragraph 90, we have no hesitation in directing the court below to hold an enquiry under Section 340 Cr.P.C. against persons who had created the F.I.R. of Case Crime No. 261 of 1995 of Madiawa Police Station, District Lucknow as also the officers of the jail who had prepared the entries in respect of accused Kamlesh Singh, as also the hospital which created the records to shield appellant Suresh Singh. As such, we direct holding of enquiry under Section 340 Cr.P.C. regarding the forgeries of those records of the hospital by persons who identified after perusing the original records by the court below.
101. The enquiry must be initiated within 15 days of receipt of the copy of the present order which must be transmitted alongwith lower court records together to the court below, by the Registry of the Court.
102. Enquiry must be completed within a maximum period of four months and if it is found that a fit case for lodging complaint was made out, the same shall be filed without any let or hindrance.
103. Due to having disposed of by dismissing the appeals the connected Habeas Corpus Writ Petition stands dismissed.