Brijlala Prasad Sinha @ Brajilala Prasad Sinha and ors. Vs. the State of Bihar - Court Judgment

Excerpt:
(a) penal code, 1860 - section 302 r/w 34--evidence act, 1872--section 3--murder--circumstantial evidence--deceased was killed by close firing by police--police claimed that deceased killed in encounter--manipulation in station diary while making entries--according to circumstantial evidence appellant found guilt hence no interference with conviction called for.(b) criminal procedure code, 1973 - section 366--punishment-capital punishment--police accused of murder--appellant claimed that some excess action not to be considered as deliberate act of violence--evidence show deceased were neither criminal nor fired at police in defence--held, plea of appellant--unsustainable.(c) evidence act, 1872 - section 37--station diary--statutory document--determination of--station diary is a public..... b.p. sharma, j.1. the reference in this case has been made under section 366 of the code of criminal procedure against the sentence of death passed by the trial court in st no. 8 of 1996/307 of 1994. the learned 1st additional sessions judge, gaya has passed the order of conviction again all the six appellants under section 302 read with section 34 of the indian penal code and has sentenced all the six appellants to death. the learned trial court also convicted the six appellants under section 201 of the indian penal code, but did not pass any separate sentence under this count, as the death sentence has been passed under section 302, ipc. being aggrieved by and dissatisfied with the judgment and the order of the trial court passed on 13th september, 1996, the appellants have also.....

Judgment:

B.P. Sharma, J.

1. The reference in this case has been made under Section 366 of the Code of Criminal Procedure against the sentence of death passed by the Trial Court in ST No. 8 of 1996/307 of 1994. The learned 1st Additional Sessions Judge, Gaya has passed the order of conviction again all the six appellants under Section 302 read with Section 34 of the Indian Penal Code and has sentenced all the six appellants to death. The learned Trial Court also convicted the six appellants under Section 201 of the Indian Penal Code, but did not pass any separate sentence under this count, as the death sentence has been passed under Section 302, IPC. Being aggrieved by and dissatisfied with the judgment and the order of the Trial Court passed on 13th September, 1996, the appellants have also preferred the instant appeals, as mentioned above, and the Court has also made reference of the case for confirmation of the death sentence awarded by him in this case.

2. This case may be treated as one of the most sensational trials of the recent years so far the State of Bihar is concerned. It is not on account of the fact that this is a case of triple murder, because several massacres have taken place in this State during past few years, hut the present case relates to diabolical murder of three innocent persons by the Police Officers who are supposed to be the protectors of law abiding citizens.

3. The prosecution story, narrated in brief, happens to be like this:

One Rajesh Dhawan, a businessman from Ranchi in Bihar happened to be the proprietor of a shop run under the name and style of 'Famina' which dealt in sarees and female dress materials. The shop was situated in Bagrai Market within the police station Hind-Pirhi on the main road in the town of Ranchi within the territorial jurisdiction of Ranchi Municipal Corporation. This Rajesh Dhawan used to visit several places, centers of business, in the country for the purpose of purchasing sarees and cloth materials. He was a young man with charming personality and was popular among the customers as well as the people in general at Ranchi. On 3rd December, 1993, this Rajesh Dhawan decided to go to Varanasi for making purchase of fancy sarees and cloth materials. Although he owned a car himself, as his car was getting repaired in a garage, he asked one acquaintance of his, namely, Asharfi Singh, who owned and possessed a Maruti Van in the name of his wife Smt. Kanti Devi having Regd. No. BR 14-B 7407, to lend his car to Rajesh Dhawan to go to Varanasi and, accordingly, the car was made available to him by Asharfi Singh. The car was driven by one Vinay Kumar Mishra who happened to be a man from Bhagalpur district and was the driver of the vehicle in question. Rajesh Dhawan was also accompanied by one Khedan Yadav of Chapra district who was his personal attendant. All the above named three persons, accordingly, went to Varanasi to make purchases and after making the purchases, on 4th December, 1993, in the evening, Rajesh Dhawan gave a telephonic call to his wife at Ranchi to inform her that he was starting from Varanasi that evening and was likely to reach Ranchi on 5th December, 1993.

4. While the family was waiting for arrival of Rajesh Dhawan, some acquaintances of the family informed the family of Rajesh Dhawan on 5th December, 1993 in the evening that a mishap had taken place at G.T.: Road near Barachatti Police Station in which Rajesh Dhawan alongwith his two companions had met their tragic end. A news to this effect was also circulated by the All India Radio and the Patna Door Darshan that three car borne criminals were killed in an encounter by Barachatti Police on the G.T: Road within Barachatti Police Station. A cousin brother of the informant, namely, Kamal Malhotra alongwith Pawan Dhawan, the younger brother of the deceased Rajesh Dhawan left for Barachatti in the company of Suresh Malhotra, Awatar Krishna Malhotra, Chandra Mohan Kapur and Mast Ram Poddar (P.W. 36). Subsequently, they returned to Ranchi alongwith three dead bodies in the night of 6th December, 1993. The informant was told by them that when Rajesh Dhawan alongwith his companions was returning from Varanasi after purchasing Sarees and clothes, he was killed by Police Officers of Barachatti, including the then Officer-in-charge of the Police Station near 71 Mile-post at the G.T. Road. The dead bodies belonged to Rajesh Dhawan, Khedan Yadav and Vinay Kumar Mishra. The family members of Rajesh Dhawan performed the funeral ceremony on 7th December, 1993 and, thereafter, on the 8th December, 1993, the informant came to Gaya alongwith Mast Ram Poddar (P.W. 36). They first went to the place of occurrence where they met some persons and they were told by these persons that on the alleged date of occurrence, one white Maruti Van had come and stopped at that place and soon thereafter the Police Personnel of Barachatti P.S. came and fired at the vehicle indiscriminately and they also dragged Rajesh Dhawan and Khedan Yadav out of the vehicle and demanded one lac Rupees and when the demand was not fulfilled, the said Police Officers killed these two persons. At the relevant time, while Rajesh Dhawan was sitting on the rear seat of the Maruti Van Khedan Yadav was sitting in front seat by the side of the driver Vinay Kumar Mishra. They were further told that after two persons, namely, Rajesh Dhawan and Khedan Yadav were killed by those Police Officers, they also shot dead the driver Vinay Kumar Mishra who was at the stearing of the vehicle. However, the names of the involved Police Officers were not revealed to them at the place of occurrence, but subsequently, the informant Girish Malhotra came to Gaya and met the Superintendent of Police and they also met the District Magistrate, Gaya and the DIG of Magadh Range. They gathered from the S.P., Gaya, that he had knowledge about the occurrence and he also asked the informant to lodge the FIR and when he did not do so, the S.P. asked the informant to note down the facts and had over to him. Then the informant got a detailed statement prepared and got it typed. The informant was also given a photo-copy of the FIR of Barachatti P.S. Case No. 146 of 1993 from which the informant gathered that the Officer Incharge of Barachatti at the relevant time, namely, Dudh Nath Ram had lodged an FIR on the basis of his own statement in which he stated that he alongwith some police personnel of Barachatti Police Station and one Victor Fodeles started on a Maruti Van on learning about the fact that criminals were firing from a moving Maruti Van on the G.T. Road. It was stated in the said FIR (Ext-17/1) that the police Party headed by Dudh Nath Ram followed another Maruti Van, white in colour, on G.T. Road and when the vehicle stopped at 71 Mile posts, as the bridge ahead was blocked and there was Jam on the road, they challenged the occupants of the Maruti Van bearing Regd. No. BR 14-B 7407 and when they continued to open fire on the police party, the Police opened fire and there was exchange of firing and subsequently when the police party went near the stationed Maruti Van bearing Regd. No BR 14-B 7407, they located two dead bodies near the vehicle, and one dead body was lying in the bush by the side of road. He also further disclosed that two other persons fled away in the jungle after getting down from the said vehicle. Dudh Nath Ram had also stated in his fardbeyan (Exhibit-17/1) that two country-made pistols loaded with cartridges were recovered from that place and it was also stated in the fardbeyan (Ext. 17/1) that Dudh Nath Ram had fired 10 rounds with his service revolver, S.I. Victor Fedeles had fired 7 rounds with his service revolver and S.I. Brajlala Prasad Sinha had fired 4 rounds from his service revolver. Similarly, Hawaldar Tulsi Ram had fired 10 rounds, constable Dinesh Singh had fired 6 rounds and constable Deonarain Ram had fired 5 rounds from Government rifles in their possession. Thus, according to the fardbeyan (Ext-17/1) altogether 42 rounds were fired by the Police Party. Similarly, this report claimed that several rounds were fired by the culprits from the Maruti Van. Seizure-lists were also prepared by Dudh Nath Ram. It is also stated by the informant that deceased Rajesh Dhawan was wearing a golden chain in his neck and had also a wrist watch on his body and there was some handsome amount of cash in his possession when the incident took place, but the Police Officer Dudh Nath Ram took away all the valuables and instead of showing the recovery of these valuables, he prepared fake seizure-lists showing recovery of fire-arms and other incriminating articles which was apparently with a view to give the incident a different colour and to come out with a case that there was an encounter between the criminal and the Police Officers of Barachatti Police Station in which three persons were killed. It appears from the prosecution story that after this incident, the dead bodies alongwith the damaged vehicle, Maruti Van BR 14-B 7407, were brought to the Police Station at Barachatti and after the seizure-lists were prepared and the inquest reports of the three dead bodies were prepared, the dead bodies were sent to A.N. Magadh Medical College, Gaya, for post-mortem examination and autopsy was held and later the dead bodies were returned to the kith and kin of deceased Rajesh Dhawan when they had arrived at Gaya on 6th December, 1993. It also appears that the Inspector of Police of Sherghati, who had jurisdiction over Barachatti Police Station, and the Deputy Superintendent of Police, Barachatti had also arrived at the Police Station soon after the occurrence. It also appears that the Superintendent of Police, Gaya, Sri Sunil Kumar had also arrived at the Barachatti Police Station and on receiving information about the occurrence from the Police Officers of Barachatti he had given information to the correspondents of All India Radio as also of the local Door Darshan and the news was broadcast accordingly in the evening of 5th December, 1993. The Superintendent of Police Sri Sunil Kumar had also given telephonic message to the City Superintendent of Police, Ranchi Sri Alok Raj and the family members of deceased Rajesh Dhawan had taken confirmation of this fact from the City Superintendent of Police, Ranchi Sri Alok Raj (P.W. 39). It appears that after the present case bearing Barachatti Police Station Case No. 148 of 1993 was registered, the investigation was taken over by Inspector of Police, Sherghati Sri Ramdhani Choudhary (P.W. 58), but subsequently the investigation was made over to the Crime Investigation Branch of the State Police and a team of three Police Officers was entrusted with the work of investigation. The team was headed by Inspector of Police Mirja Maksood Alam Beg (P.W. 62) and two other members of the investigating team were Inspector Indu Bhushan Prasad (P.W. 51) and Inspector Balmiki Prasad (PW 50). The team of Investigators did some good job in collecting evidence and the team came to the conclusion that whereas the story propounded in the FIR of Barachatti P.S. Case No. 146 of 1993 was incorrect and the plea of encounter was fake one; the materials indicated that the three occupants of the Maruti Van BR-14 B7407, who were innocent persons, were killed in cold blooded manner. The team submitted charge-sheet' in the case after procuring the necessary sanction for the prosecution and, accordingly, the cognizance was taken and, thereafter, the case was committed to the Court of Sessions.

5. In course of hearing, as many as 65 witnesses were examined by the prosecution and a large number of documents have been admitted in evidence on behalf of prosecution.

6. The witnesses examined in this case for the prosecution are of different categories. Some of the witnesses are the family members and the close relations and the well-wishers of the deceased Rajesh Dhawan from Ranchi and a set of witnesses for the prosecution belong to Varanasi. Deceased Rajesh Dhawan had business connections with the dealers of Varanasi and he is said to have made purchases of sarees from these dealers on 4th December, 1993 before he left for Ranchi. It is also important to note that in this case, some witnesses have been examined by the prosecution to show that while the ill-fated Maruti Van arrived near Barachatti on the G.T. Road, it had developed some problem in the Engine and the Engine had started misfiring. Misfiring of Engine makes a sound of fut-fut which gives an impression of firing with firearm also. It appears that the defence had also accepted this part of the story and tried to make out a case that while the vehicle was passing on the G.T. Road near Barachatti Police Station, a Hawaldar of the Police Station Jai Karan Yadav, who was also made accused in this case and happens to be the appellant in Cr. Appeal No. 488 of 1996, informed the Officer In-charge Dudh Nath Ram at the Police Station, while he was sitting and chatting with appellant Victor Fedeles and Brijlala Prasad Sinha, that a vehicle was passing through the G.T. Road from which criminals were firing at-random and then the Police Officers started in a Maruti Van to follow and to intercept the said vehicle. The encounter took place and the three deceased were killed. However, this aspect of the case shall be considered at subsequent stage.

7. The investigating team had also recorded the statements of several persons present at the place of occurrence at the alleged time of occurrence who had also given oculars account of the manner of occurrence resulting in killing of these three victims, but unfortunately at the trial, these witnesses could not support the prosecution story and all such witnesses have been declared hostile by the prosecution.

8. Another category of prosecution witnesses is Police Officials connected with Barachatti Police Station at the relevant time and the other senior Officers of the Police Department who came to know about the incident after the occurrence. They include, Inspector Ramdhani Choudhary (P.W. 58), the then Deputy Superintendent of Police Section Himbram (P.W. 59), Sri Sunil Kumar, the then Superintendent of Police, Gaya (P.W. 64) and Sri Alok Raj, City Superintendent of Police, Ranchi (P.W. 39). Out of other witnesses of the police Department, P.W. 6 Ashok Kumar Sinha, the then O.C. of Mohanpur Out-post under Barachatti P.S., PW 7 Shakir Ahmad, a literate constable of Barachatti P.S. at the relevant lime and P.W. 8 Dhaniram Garai happen to be important witnesses from the prosecution side.

9. So far as the documents are concerned, the prosecution has produced a large number of documents. These include, P.M. Report (Extol Series), several letters written by the Investigating Officers to the S.P., Gaya and also by the Forensic Science Laboratory to the S.P., Gaya and also by the Officer Incharge of Barachatti P.S. to the Sub Divisional Judicial Magistrate Sherghati and by the Superintendent of Police to the Head of the Investigating Team are marked Ext-2 Series. Ext-3 Series are the signatures on the inquest reports, Ext-4 Series are the seizure lists and carbon copies of some seizure lists. Ext-6 Series are the endorsement of S.P., Gaya. Ext-7 Series are the signatures on the seizure-lists prepared from time to time by the different investigators, Ext-8 Series are the carbon copies of the different Bills prepared by the dealers regarding purchase of Saraes' by deceased Rajesh Dhawan at Varanasi, Ext-9 is the acknowledgment receipt of articles dated 22nd December, 1993. Ext 10 is the survey report dated 15th January, 1994, Ext-12 Series are the production list dated 21st February, 1994 and 13th January, 1994, Ext-13 Series are the photographs of Maruti Van, the dead bodies and other materials connected with the incident, ExM4 Series are the negatives of such photographs, Ext. 15 Series are the writings on the photographs, Ext-16 Series are the reports of Forensic Science Laboratory, altogether 7 in number, Ext-17 is the fardbeyan of Girish Malhotra dated 9th December, 1993 and Ext-17/1 is the fardbeyan of Dudh Nath Rams Officer In-charge of Barachatti P.S. which is the basis of FIR of Barachatti P.S. Case No. 146 of 1993. Ext-18 Series are the photo copies of the extracts of Magazine receiving Register and Ext-19 Series are the reports regarding the issuance of the Rifles and Revolvers alongwith cartridges. Ext. 20 Series are the carbon copies of entries in register. Ext-21 Series are the cheques dated 20th December, 1993 and 30th December, 1993. Ext. 22 series are the requisitions dated 18th January, 1994 and Ext. 23 is the list of damaged sarees. It is said that some sarees had got damaged in course of this incident and a separate list of these sarees was prepared by the Investigating team in this case. Ext. 24 happens to be the photo-copies of paragraphs 7, 10, 17, 18 and 19 of the case diary. Ext. 25 is the FIR of the present case and Ext. 25/1 is the FIR of Barachatti P.S. case No. 146 of 1993. Ext. 26 series are the different entries in the station diary at Barachatti police station on different dates and Ext. 27 is the order of Superintendent of Police, Gaya. Ext. 28 series are the charge reports, Ext. 29 series are the photocopies of different portions of the case diary in the two cases, Barachatti P.S. case No. 146 of 1993 and Barachatti P.S. case No. 148 of 1993. Ext. 30 is the sketch map of the place of occurrence. Ext. 31 series are the sanction orders and Ext. 32 is the final report in Barachatti P.S. case No. 146 of 1993.

10. A peculiar feature of this case is than although in course of investigation, several witnesses are said to have supported the prosecution story regarding occurrence, in Court during trial, almost all these witnesses failed to support the prosecution story and they were declared hostile by the prosecution and their attentions were drawn towards the statements said to have been made by them before the I.O. such witnesses are P.Ws. 2, 4, 5, 9, 10, 11, 12, 17, 18, 20, 22, 35, 40, 43, 52, 53, 54, 56, 57, 60 and 61. Many of these witnesses denied their presence at the alleged place of occurrence and they have expressed complete ignorance of knowledge of the happenings. However, some other witnesses have stated something about the happenings at the alleged place of occurrence at about the alleged time of occurrence, but they have also suppressed major part of the story. Therefore, the prosecution in this case has been handicapped in adducing the evidence regarding the actual manner of occurrence and also regarding the participation of individual accused in the commission of the crime for which they have been charged, tried and convicted. In this special circumstance, the prosecution relied on certain circumstances appearing in the case. The learned trial Court has taken great pains to note down and scrutinize the entire circumstances appearing in the case and has come to a conclusion that from the circumstances appearing in evidence, oral as well as documentary, the guilt of the accused stands proved. The learned Counsels appearing for the appellants have assailed the judgment of the learned Trial Court by submitting that the learned Trial Court has failed to properly appreciate the evidence and by ignoring the lacuna in the prosecution story, the Trial Court has misdirected itself in recording the finding holding the appellants guilty in this case. It has been contended on behalf of the appellants that in a case based on circumstantial evidence, the prosecution has to create a complete story by connecting all the links in such a manner that the only irresistible conclusion should lead towards the guilt of the accused and if there is any missing link, the prosecution case should be disbelieved and the accused should be given benefit of doubt. So far as the soundness of this principle is concerned, there cannot be any dispute about it. It cannot be denied that in a case of circumstantial evidence, the duty of the prosecution becomes more onerous and the Trial Court has also to be more vigilant in scrutinizing the evidence strictly in order to see that an innocent person is not convicted, specially when the case is one in which capital punishment may be awarded. The duty of the Court becomes heavier when it is a case of capital punishment. But at the same time it has to be borne in mind that the finding must not be based on imaginary possibilities and fantastic imagination of the defence Counsels. The Courts have to be realistic and any conclusion should be drawn after considering the entire material on the record in its totality. The Courts cannot be supposed to accept some fantastic hypothesis. It has also to be kept in mind that the crime scenario is fast changing with the advancement in the society which is becoming more complex day by day. The law has also to be realistic. It has to adjust according to the changing circumstances.

11. It can also be observed that the number of persons dead in a particular incident is not so important as the background and the manner of the incident. What is important is the impact of a particular incident on the society. This is a case in which a group of Police Officers headed by the Officer-In-Charge of a police station is said to have killed three innocent persons in cold blooded manner. The background, as stated above, is that one of the deceased persons, namely, Rajesh Dhawan happened to be a businessman of Ranchi. He was running a shop dealing in fancy Sarees and dress materials termed and styled as 'Famina'. He used to go outside in connection with making purchases for his shop from time. He was a man without any criminal antecedent. This fact has been supported by none else than the then City Superintendent of Police, Ranchi Alok Raj (PW 39). He has stated in his evidence that once he hail attended the opening ceremony of the shop on invitation and thereafter he had also gone to the shop of deceased Rajesh Dhawan on some occasion far making purchase of clothes etc. and he had personal knowledge that deceased Rajesh Dhawan was a man of clean antecedents. This fact has also been supported by Asharfi Singh (PW 63) who happens to he a constable. He happens to be the owner of the vehicle BR-14-B 7407 in which the three deceased were travelling at the relevant time when the unfortunate incident is said to have taken place.

12. According to the wife of deceased Rajesh Dhawan, PW 65 Rita Dhawan, her husband had left for Varanasi on 3rd December, 1993 to make purchases of Sarees. He was carrying Rs. 63,000/- (sixty-three thousand) in a hag for this purpose. According to her, Rajesh Dhawan was also accompanied by two other persons, namely, Khedan Yadav, his personal attendant-cum-driver and Vijay Kumar Mishra, the driver of Maruti Man BR-I4-B 7407. This fact has aiso been supported by PW 63. Asharfi Singh. According to PW 63 the vehicle was registered in the name of his wife and it was a private vehicle and on 3rd December, 1993, Rajesh Dhawan, who was known to him, asked him to lend his vehicle for going to Varanasi for making purchase and, accordingly, the vehicle was made over to Rajesh Dhawan by this witness on which he left for Varanasi and he was to return on 5th December, 1993. PW 65 Rita Dhawan has also stated that her husband deceased Rajesh Dhawan had left for Varanasi on 3rd December, 1993 and told her that he would return on 5th December, 1993 positively, PW 65 has also stated that on 4th December 1993, her husband deceased Rajesh Dhawan had talked to her on telephone from Varanasi and informed her that he was leaving that evening and he was likely to arrive by the morning of 5th December, 1993.

It is established that the husband of this poor lady (PW 65) did never return. She had been waiting for arrival of her husband on 5th December, 1993 and her brother-in-law Pawan Dhawan had also gone away and he returned in the evening of 5th December, 1993 and she expressed her anxiety to him that though her husband had informed her in the evening of 4th December, 1993 that he was returning on 5th December, 1993, he had not yet returned. On this, Pawan Dhawan also became anxious and in the evening, three young boys came to his residence and took him out and told him that his brother alongwith his two companions was reported to have been killed on G.T. Road in Barachatti P.S. It came as a shock to this PW 25 Pawan Dhawan. He immediately informed his well-wishers and relations and some people assembled at once. PW 25 was also told that a news to this effect was received by the City SP, Ranchi from the Superintendent of Police, Gaya and a news to this effect was also broadcast in the All India Radio and was displayed on the Door Darshan that there was an encounter on the G.T. Road near Barachatti in which three criminals travelling in a Maruti Van were killed by the police. The said P.W. 25 Pawan Dhawan also informed his cousin brother Girish Malhotra (PW 37) and Girish Malhotra started making enquiry in the matter. In the meanwhile, Pawan Dhawan started for Barachatti with some persons, including one Mast Ram Poddar (PW 36). When Pawaa Dhawan and his companions came to Barachatti, they saw many trucks and buses standing on the G.T. Road to the west of Chenari Bridge near 71 mile post and they learnt from the persons present there, including the drivers of some vehicles, that the local police had killed the three innocent person in a fake encounter. However, those persons did not disclose the names of the police personnels involved in this incident. Accordingly, PW 25 alongwith PW 36 went to Barachatti PS to enquire from the police Officers. They met appellant Dudh Math Ram, the then Officer In-charge of Barachatti police station, who confirmed this report that three persons were killed in an encounter. When the witness PW 25, strongly refuted the claim of appellant Dudh Nath Ram by saying that they were not criminal and they had nothing to do with crime; rather they were responsible citizens and they were illegally killed, Dudh Nath Ram told them to do whatever they liked. However, the witnesses were told by the police officers that the dead-bodies had already been sent to A.N. Magadh Medical College, Gaya, for post mortem Examination. They went to Gaya and received the three dead-bodies with the help of the local administration. Thus, they picked up the dead-bodies and returned to Gaya reaching there in the evening of 6th December, 1993. The dead bodies were cremated according to the rites and on 8th December, 1993, informant Girish Malhotra (PW 37) left for Barachatti with PW 36 Mast Ram Poddar and another person. They also stopped for some while at the alleged place of occurrence at 71 Mile post on GT Road and enquired from the people and there was confirmation to the report that in a fake encounter, three persons traveling in a Maruti Van were killed by local police. The informant accordingly, went to Gaya and met the Superintendent of Police, Gaya Sunil Kumar (P.W. 64) and talked to him in the matter. He gathered that the S.P. had also knowledge of the incident from before and when he expressed his reaction, the informant was told by the S.P. (PW 64) that he should lodge an F.I.R. in the case. The informant was also asked by the S.P. to give in writing. Accordingly, the informant stayed at Gaya overnight and on 9th December, 1993, he got a report typed which was prepared by him and after signing the same, he filed it before the S.P. on the basis of which the case was registered. The written information of the informant of this case is Ext-17 and the F.I.R. drawn on its basis is Ext-25 Thus, Barachatti P.S. Case No. 148 of 1993 was registered. When the informant had met the S.P., Gaya, he was shown an FIR (Ext-25/1) registered as Barachatti P.S. Case No. 146 of 1993 on the basis of a self-drawn fardbeyan of informant Dudh Math Ram (Ext-1711). This Dudh Nath Ram happened to be the Officer In-charge of Barachatti Police Station at the relevant time and he had stated in his fardbeyan (Ext-17/1) that on 5th December, 1993 in the morning, he was sitting in the premises of Barachatti P.S. alongwith appellant Victor Fedeles and Brijlala Prasad Sinha at about 7 A.M. in the morning, one Haulaldar Jaikaran Yadav of that very police station came and told them that some criminals were passing through the GT Road in a white Maruti Van firing in the air. According to Ext-17/1, on hearing this news the Officer In-charge Dudh Nath Ram, the appellant, took with him these two Officers with whom he was talking and also took two constables of his police station, namely, Dinesh Singh and Deo Narain Ram appellants and one Nisi Ram, Hawaldar and rushed toward the GT Road to follow the criminals. According to Ext. 17/1, when the police part followed ill Maruti Van, they spotted a white Maruti Van stationed near 71 Mile post because of the fact that the road ahead was blocked and there was jam on account of the fact that one truck had turned turtle on the bridge ahead. According to Ext-17/1, when the police party id Maruti Van spotted the said vehicle BR. 14-B 7407, the police party challenged the occupants of the Maruti Van to surrender but there were firings from the vehicle on the police party and then the police party also opened fire at the said white Maruti Van BR-14-B 7407 and when some culprits came out of the vehicle, they were shot at by the police party and the police party also saw two persons who had emerged from the vehicle running towards the nearby jungle and they disappeared. When the police party came near the vehicle which was standing, they spotted a dead body in the vehicle on the driving seal, another dead body lying on the road near the vehicle and they also located a third dead body in a nearby bush. According to the fardbeyan of Dudh Nath Ram (Ext-17/1) the dead bodies and the vehicle BR-14-B 7407 were searched and some incriminating articles were recovered which were seized and seizure lists were prepared and thereafter the dead bodies were loaded on a jeep which had arrived from the Police Station. However, the dead bodies were brought to the Police Station at Barachatti. The damaged vehicle was also taken to the police station by trochen. The information was sent to the higher authorities and the Inspector of Police Sherghati Ramdhan Choudhary (PW 58) followed by PW 59 S. Hembram, Deputy Superintendent of Police, Sherghati and PW 64 Sunil Kumar, SP Gaya arrived at the police station at Barachatti. In their presence, the inquest reports of the dead bodies were prepared and the dead bodies were sent to A.N. Magadh Medical College, Gaya through Brijlala Prasad Sinha for P.M. Examination. The materials recovered from the vehicle were taken out and handed over the then Officer-In-charge Dudh Nath Ram who kept it in the Malkhana Later, on the basis of this fardbeyan (Ex-17/1) the FIR (Ext-25/1) of Barachatti P.S. Case No. 146 of 1993 was drawn up and a case was registered and the investigation was also taken up by appellant Dudh Nath Ram who happened to be the Officer In-charge of Barachatti P.S. at the relevant time. However; it so transpired that as soon as the news of killing of three persons all Barachatti was flashed on the All India Radio and the Door Darshan and the family members, friends, and relations of deceased Rajesh Dhawan came to know of it, they reacted and the Police Administration at Gaya realised the gravity of the situation. So the Inspector of Police Ramdhani Choudhary PW 58 was entrusted by the SP Gaya to handle the investigation of Barachatti P.S. Case No. 146 of 1993. It appears from the evidence of PW 58 that initially appellant Dudh Nath Ram was reluctant to hand over the investigation of the case to this witness and he had to write to the Superintendent of Police Gaya, in this connection and then the investigation was handed over to him. In the meanwhile, a new case was registered as Barachatti P.S. case No. 148 of 1993 on the basis of written information of PW 37 ('Irish Malhotra (Ext 17). The FIR of this case is Ext-25. The investigation of this case was also handed over by the S.P. to P.W. 58 Ram Dhani Choudhary and when the inspector visited the place of occurrence, he found that there was no sign of blood or trampling in the bush where, according to the allegation in the FIR (Ext-25/1), one of three dead bodies was found lying. He also found that the road near the place where the ill-fated vehicle was standing at the relevant time was freshly touched with chips and coollar and so he found no blood. However, some broken pieces of glass were scattered and there were pieces of bones and flesh in front of seat of vehicle BR-14-B 740?. According to this PW 58 the materials were collected in his presence from the damaged vehicle BR-J4-B 7407 and the materials were handed over to the officer In-charge Dudh Nath Ram for keeping it in the Malkhana, According to him, no fire-arm or ammunition was recovered. Similar is the statement of PW 59 Section Hembram, Dy. S.P. Sherghati who had also arrived in the meanwhile. PW 64 Sunil Kumar, the then Superintendent of Police. Gaya had also not stated about any recovery of fire-arm from the vehicle or from the deceased persons. All these three higher police officers of the district have stated that they did not see any FIR of Barachatti P.S. Case No. 146 of 1993 registered on the basis of statement of appellant Dudh Nath Ram and according to PW 58 for the first time, he saw a copy of the F.I.R. (Ext-25/1) lying on the table in his Office at Sherghati in the evening of 7th December, 1993. It may be noted that in such cases, several copies of the FIR are prepared and one copy of the FIR is forwarded to the Inspector of police having jurisdiction over the police station concerned. In this case the copy of the F.l.R. was forwarded to PW 58 Ramdhani Choudhary which was located by him in his Office in the evening of 7th December, 1993. The Dy. S.P. (P.W. 59) and the S.P. (P.W. 64) also did not appear to have seen the F.I.R. either on 5th, i.e. the alleged date of occurrence or on the following date, i.e. December 1993.

13. It is also pertinent to note that Station Diary is maintained in all the police station as a matter of practice and the Rules. According to the Police Manual, the station diary entries are made of all important events relating to the police stations. Such station diaries are maintained by the writer constable in the police stations. According to the Police Manual, whenever the Officer In-charge or any Officer of the P.S., leaves the police station on official duty, an entry to this effect is made in the Station Diary. Similarly, whenever the police officer returns to the P.S. from duty an entry to this effect is made in the station diary. According to the case in Barachatti P.S. Case No. 146 of 1993, the Officer In-charge Dudh Nath Ram, the maker/author of the statement (Ext. 17/1), in the preceding night i.e., in the night between 4/5th December, 1993, he was on patrolling duty with police force and he had returned to the police Station in the morning of 5th December, 1993 and thereafter he was talking to two other police officers, namely, Victor Fedeles and Brajlal Prasad Sinha when Jaikaran Yadav, Hawaldar came and reported about the movement of some suspected criminals in a Maruti Van. Thereupon the Officer In-charge appellant Dudh Nath Ram is said to have left the police station and an entry to this effect is said to have been made in the station diary. This station diary is S.D. Entry No. 82 of 5th December, 1993 (Ext-26/2) and it is mentioned that Officer In-charge Dudh Nath Ram had returned to the police station alongwith Brijlal Prasad Sinha, S.I. Victor Fedeles (appellant) and Hawaldar Tulsi Ram as well as constable Deonarain Ram and Dinesh Singh (appellants) and the Officer In-charge drew up a written report on his statement and registered a case as Barachatti P.S. case No. 146 of 1993 under Sections 307, 353/34 of the Indian Penal Code and also under Sections 25 (B) and (A) and 27 of the Arms Act and he had taken up the investigation of the case himself He also stated in the station diary (Ext-26/2) that he had brought two country made pistols of 315 bore and 12 bore respectively and also 2 live cartridges of 315 bore and 3 empty cartridges of 315 bore and empty cartridges of 12 bore and live cartridge of 12 bore. It also stated that a Maruti Van bearing Regd. No. BR-14-B 7407 was also brought to the police station which was damaged as a wind shield glass was broken and there were bullet-marks on the vehicle. It also stated that some bundles and attached were also recovered from the said vehicle. It a}so spoke of some recovery of some clothes and a bag containing Rs. 467/-. The station diary also speaks of the incident in which three alleged culprits were said to have been killed in encounter by police Force. However, in this connection the Inspector of Police, P.W. 58 Ramdhani Choudhary, has stated that when he was at the P.S. on 5th December, 1993, the Deputy Superintendent of Police and the Superintendent of Police had also arrived there and they were present at the P.O. till late and in the evening and when this witness enquired for the station diary which is ordinarily kept in the custody of literate constable, he was told that the same was not available and it was taken away by the Officer In-charge, appellant Dudh Nath Ram. However, several days thereafter P.W. 58, the Inspector of Police, happened to see the station diary in which certain entries were made and regarding one entry, he has stated that the entry was made subsequently and the original page was removed and a separate page was introduced. It relates to the page containing Ext-26/2 P.W. 58 has also stated that one seizure list (Ext-4) was prepared in his presence in which there was no mention of recovery of any fire arm or any liquor bottle, but subsequently it transpires that the original seizure list (carbon copy of which is Ext. 4) was not available and it also transpired that some other seizure lists were shown to have been prepared by said Dudh Nath Ram (appellant) in which recovery of fire-arm, ammunitions and other materials were shown. P.W. 58 has also clearly stated that it was for the first time on 9th December, 1993 that nephew of appellant Dudh Nath Ram appeared before him and handed over the key of Malkhana of the police station and produced two country-made pistols which were claimed by Dudh Nath Ram (appellant) to have been recovered from the vehicle in which the deceased persons were moving and were killed. P.W. 58 also stated that the articles which were recovered in his presence from the Maruti Van BR-14B 7407 and handed over to Dudh Nath Ram as Officer In-charge of the police station at the relevant time, could not be available in the Malkhana and only some papers kept in a file could be recovered. Therefore, it has become clear from the evidence that after three dead bodies were brought to the P.S. by the Officer In-charge Dudh Nath Ram accompanied by others, some manipulations started. It appears in this context that soon after the dead bodies were brought to the P.S. and a news of this encounter spread, there were reactions from all corners. A very significant statement has been made by P.W. 58 Ramdhani Choudhary that appellant Brajlala Prasad Sinha was handed over the dead bodies by the Officer In-charge Dudh Nath Ram to take the same for post mortem examination in the Medical-College at Gaya and he had taken the dead bodies, but about two hours thereafter he returned to the police station in a perturbed condition and reported that he was being challenged by the public. It shows that immediately after the incident, people had come to realise this fact that the persons killed in a fake encounter were innocent persons and were not actually criminals and there was instantaneous reaction against the atrocious attitude of Barachatti P.S. From the statement of the then S.P. Sri Sunil Kumar also it appears that after the incident he had come to know that there was mistake on the part of the police officers involved in this case and he had passed orders of their suspension. At this stage it is relevant to note that this S.P. (P.W. 64) did not appear to have acted as he was required to do as a responsible police officer holding charge of a district. It appears that from the very beginning, he had lurking suspicion in his mind that the incident did not happen in the manner, as alleged by the police of Barachatti P.S. but he kept mum. In such a situation, a responsible police officer is required to hold through enquiry in the matter by removing the Police Officers involved in this case from their post, but he did it after three days and he remained satisfied only by suspending them and he did not think it necessary to get a police case registered against these police Officers. It also appears from the evidence of the I.O. of this case that P.W. 62 Mirja Maksud Alam Beg that when he went to record the statement of P.W. 64, he refused to do so and said that he would give his statement in writing. It may be noted that after only a few 'says after starting investigation by P.W. 58 Ramdhani Choudhary, the investigation of the case was ordered to be made over to the Criminal Investigation Department (Crime) on public demand and a team of three Inspectors was constituted by the CID for making investigation in this case which was headed by M.M.A. Beg (P.W. 62).

14. The I.O. of this case M.M.A. Beg alongwith his two companions, P.W. 50 Balmiki Prasad and P.W. 51 Indra Bhushan Prasad investigated into the case and tried to collect materials on all relevant points and then submitted charge-sheet in this case. However, it appears that the investigation of Barachatti P.S. Case No. 146 of 1993, which was previously being done by the appellant Dudh Nath Ram himself and which was subsequently handed over to P.W. 58 Ramdhani Choudhary, was also later made over to the CID and this investigating team also conducted the investigation in this case and submitted final report (Ext. 32).

15. So far as this part of the story that deceased Rajesh Dhawan had gone to Varanasi on 3rd December, 1993 and that he had made purchase at Varanasi on 4th December, 1993 and that he had left for Ranchi by road in the evening of 4th December, 1993 and that he arrived at Barachatti in the evening of 5th December, 1993, there is sufficient evidence and there cannot be any doubt about the correctness of this part of the story Apart from the statement of wife of deceased Rajesh Dhawan and PW 63 Asharfi Singh, this part of the story has also been supported by PW 21 Pawan Dhawan, PW 36 Mast Ram Poddar and PW 37 Girish Malhotra himself who happens to he the cousin of deceased Rajesh Dhawan So far as the question of purchasing is concerned, several dealers from Varanasi have also been examined in this case and they also been examined in this case and they have supported this fact. They are P.Ws. 23 Niraj Bedi, P.W. 41 Arvind Kumar Agrawal, P.W. 42 Ganesh Prasad, P.W. 44 Rajendra Kumar Tandon, P.W. 45 Raj Kumar Khanna, P.W. 46 Binod Kumar Khanna, PW 47 Dilip Kumar Khanna, P.W. 48 Kewal Krishna Khanna and P.W. 49 Rajan Khanna. They have been produced in Court as prosecution witnesses in order to support that Rajesh Dhawan had made purchases of sarees from their concerns at Varanasi on 4th December, 1993 and that he had gone to Varanasi for this purpose and he was returning in this vehicle alongwith two companions in the evening of 4th December, 1993.

16. It also appears from the evidence on the record that on the alleged date of occurrence, i.e., on 5th December, 1993 early in the morning vehicle BR. 14-B 7407 arrived near Barachatti on G.T. Road. When it came to village Bhadeya to the west of Barchatti, the vehicle developed some trouble in the engine. The occupants of the vehicle were anxious to get it repaired and they met some persons by stopping the vehicle and sought their help which could not be available there and they thereafter proceeded ahead in search of mechanic. It also appears from the evidence that the silencer of the vehicle Maruti Van BR-14-B 7407 had developed some problem and was misfiring making the sound of phat phat. On this account, several persons whom the driver and the occupants of the said vehicle met as also some other persons present and living by the side of the G.T. Road marked the defective sound of this vehicle. It further appears that when the vehicle reached near 71 miles post on the G.T. Road, it found the road blocked as there was a jam on account of the fact that a truck had turned turtle on a bridge ahead and had blocked the road. So far as this part of the story is concerned, several witnesses have been examined by the prosecution. These witnesses include P.W.10 Jagdish Prasad Gupta, P.W. 11 Santosh Prajapat, P.W. 12 Sanjay Kumar, P.W. 13 Karu Prasad, P.W. 17 Nawal Kishore Gupta, P.W.18 Bisheshwar Yadav, P.W. 22 Kapildeo Yadav, P.W. 26 Zaiullah Khan, P.W. 27 Taufir Ali Khan, P.W. 28 Nasimuddin Khan, P.W. 29 Muzaffar Khan, P.W. 30 Jubair Ahmad Khan, P.W. 40 Alakh Deo Singh, P.W. 53 Anirudh Prasad, P.W. 54 Ramji Yadav, P.W.56 Sudama Yadav, P.W. 57 Saytendra Singh, P.W. 60 Kailash Yadav and P.W. 61 Rajendra Prasad Yadav, etc. It appears that P.W. 10 Jagdish Prasad Gupta has got a Hotel near Barachatti P.S. on the G.T. Road and, according to him, early in the morning of the alleged date of occurrence at about 7 a.m. while he was fetching water from the well he heard the sound of firing and of Maruti Van proceeding towards east. Subsequently, an incident also took place near 71 Milepost P.W. 11 Santosh Prajapat is a boy of 8 years only and he has failed to state anything in this connection and as he had supported the prosecution case before the Investigating team in this regard, he has been declared hostile. Similar is the case of P.W. 12 Sanjay, a boy aged about 7 years at the time of occurrence P.W. 13 Karu Prasad refused to answer the questions when he was produced in Court for evidence P.W. 17 Nawal Kishore Gupta is a man from Barachatti who had heard the sound of firing and had also gone to the place of occurrence after the incident but he has failed to support the prosecution story and he has been declared hostile. He has admitted that he was produced in Court by the Police Officers who had also paid his fair. P.W. 18 Bisheshwar Yadav is also a man from Barachatti and he had heard the sound of firing and had also seen the firings and had run away out of fear. Subsequently, he had returned to the P.O. and had signed some papers at the instance of the Police Officers P.W. 22 Kapildeo Yadav also seen the vehicle in question going and stopping at the P.O. on account of Jam on the road. He stated before the Investigating team to this effect, but he failed to support the prosecution story and he has been declared hostile. P.W. 26 Ziaullah Khan is from Bhadeya who has got Motor Garage on the southern side of G.T. Road and on the alleged date of occurrence at about 6.46 a.m. while he was in his garage, a Maruti Van came from western side and the witness was called by the driver of the vehicle.

It was told by the driver that the Engine was misfiring and he was asked to correct it, but he refused to do so, as he was not a Mechanic of Maruti Van. Then the vehicle proceeded ahead P.W. 27 Taufir Ali Khan is a local Mukhia and a resident of village Karma within Barachatti P.S. he has got his house near a Petrol pump on the G.T. Road and on the alleged date of occurrence he was sitting in his house alongwith Nasimuddin Khan (P.W. 28), Muzaffar Khan (P.W. 29) and Jubair Ahmad Khan (PW 30). It was at about 6.45 a.m. in the morning. According to this witness, a Maruti Van came and stopped near his house and he saw that while one person was sitting on the rear seat of the vehicle altogether three persons were occupying the vehicle. According to him, one person was sitting by the side of the driver on the front seat. He further stated that the driver of the vehicle and the person, who was sitting on the rear seat and appeared like the master, got down and asked him to give the location of some garage so that the vehicle could be set right and corrected. They also enquired about some driver and the witness said that he had no driver with him and then the vehicle moved ahead. His statement has been supported by P.Ws. 28 and 29 and P.W. 30 has been tendered. P.W. 32 Ojair Ahmad Khan, who is also a resident of village Paily within Barachatti P.S., stated that while he was at the place of his uncle on the alleged elate of occurrence, a white-coloured Maruti Van came on the G.T Road and stopped and the silencer of the vehicle was defective and it was misfiring and making sound of phat phat. The vehicle stopped near the house of his uncle and three persons alighted from it and one person checked it up and thereafter they proceeded P.W. 35 Narayan Jha, who happens to be a night-guard under the Bal Vikash Yojna, has refused to state anything in support of the prosecution story, though it appears that he had stated before the investigating team in this case that he had seen a white-coloured Maruti Van moving on the G.T. Road from west to east and that the silencer of the vehicle was misfiring. He was also declared hostile by the prosecution. P.W. 40 Alakhdeo Singh happens to he the driver of a truck and, according to the prosecution story, he was also present at. the P.O. at the time of occurrence, but he denied that he was driving any vehicle on that date. So he has also been declared hostile. P.W. 52 Kedar Yadav is a man from village Barbadih within Barachatti P.S. and according to him, the G.T. Road runs from west to east and there is Chenari Pool on this road. He happens to be a Hotel keeper on G.T. Road at 71 Mile-post. But be denied it and he has also been declared hostile by the prosecution. Similarly, P.W. 53 Anirlidh Prasad of Barbadih within Barachatti P.S. also failed to support the prosecution case, though he had made his statement to this effect before the 1.0. He has also been declared hostile. Similar is the case with P.W. 54 Ramjee Yadav who has also got a Hotel at G.T. Road. He has also denied to support the prosecution story and has been declared hostile. P.W. 56 Sudama Yadav is a man from village Barbadih within Barachatti P.S. He has stated that on the alleged date of occurrence at about 7.30 a.m. he was near G.T. Road 71 Mile-post and when he came to the road, he heard some sound of firing and when the firing stopped he went there and saw two Maruti Vans standing on the road and he saw a dead body in one of the vehicle and he heard that three dacoits were killed. He has stated that Maruti Van in which he saw the dead bodies was white in colour. However, he has not given the full story and has been declared hostile. P.W. 57 Satyendra Singh is a man from village Duhobar P.S. Mohanpur, Gaya at present residing at Barachatti has got a Coal Dump at G.T. road and on the alleged date of occurrence he was there on his stall and he heard people saying that dacoits were fleeing on a Maruti Van. He refused to state anything further, though he had supported the facts in detail before the I.O. during investigation and he has also been declared hostile by the prosecution. P.W. 60 Kailash Yadav is an employee of the Forest Department at Barachatti and on the alleged date of occurrence at about 7 a.m. in the morning he saw a Maruti Van going towards the east on the road and he heard the sound which was appearing like a fire sound. He has stated that he could not distinguish whether it was a firing sound of a firearm or was a sound of misfiring but he heard people saying that the dacoits were fleeing away He also stated that soon thereafter, he saw the police Officers, including appellant Dudh Nath Ram and Victor Fedeles alcngwith some constables following the vehicle in another Maruti Van and when at about 8.30 a.m. he went to the P.O. he saw three dead bodies lying there and many people had collected and there was Jam on the road. However, he has also been declared hostile as he has failed to support part of the prosecution story as stated by him before l.O. during investigation. P.W. 61 Rajendra Prasad Yadav of Barbadir within Barachatti P.S. has failed to state anything regarding the occurrence and he has also been declared hostile. So, from the evidence of these witnesses at least it becomes clear that a Maruti Van white in colour was found moving on the G.T. Road near Barachatti on the alleged date and time of occurrence at about 7 A.M. in the morning and that the vehicle had developed some problem and the silencer of the vehicle was misfiring making sound of phat phat. It also appears that the occupants of the vehicle were anxious to get the vehicle repaired, but they could not succeed in it and it also appeared that the vehicle had to stop near 71 mile post, as the road was blocked on account of jam ahead of this place. On the eastern side of Chenari bridge, a truck had turned turtle blocking the road. It also further appears that the arrival of the vehicle at the P.O. has been supported by some witnesses, including some police personnel. One witness P.W. 4 Aftab Khan who happens to be a truck driver failed to support the prosecution story on this point and he has been declared hostile. However, P.W. 5 Shankar Prasad a driver of a truck, BR 2H 9669, has stated that on 4th December 1993 he had loaded tin sheets on his truck and was proceeding from Ramgarh to Baraily and he was passing through G.T. Road, He reached near Chenari bridge on 5th December. 1993 and he found jam on the road. So he had to stop the vehicle. However, he tried to move towards west slowly and his truck was standing in the jam. At this stage he heard sound of firing. According to this witness, the place where the firing was taking place was intervened by about 15-20 vehicles. He further stated that after the firing stopped, he went towards 71 mile-post and at this stage he saw a dead body lying near a Maruti Van. Thereafter he proceeded ahead. He did not further support the prosecution story and was declared hostile.

17. A very important witness in this connection is P.W. 7 Shakir Ahmad Khan who happens to be a literate constable working as writer constable posted at Barachatti P.S. According to him he turned up at the P.S. on duty at about 6.30 A.M. In the morning and while Dudh Nath Ram, Victor Fedeles and other were talking, Jaikaran Yadav came and told that some criminals were moving on the G.T. Road opening firing. On hearing it, the Officer, meaning thereby, Dudh Nath Ram, Victor Fedeles, two constables and a Hawaldar left the P.S. and they were followed by appellant Brijlala Prasad Sinha. According to this witness, he could not recollect the names of those constables and Hawaldar, but they belonged to that very PS. He has further stated that there was one Maruti Van detained at the P.S. which was used by the Officer In-charge for going towards the P:O. and appellant Brijlala Prasad Sinha had followed in a Jeep which was detained at the P.S. for about 11/2 to 2 months. This jeep was being used for the purpose of patrolling. The witness has stated that these persons, meaning thereby the police personals returned to the P.S. subsequently and they brought three dead bodies in the jeep and they also brought a Maruti Van by trochen. The witness found Wind-Shield of this van broken and there was blood also in the vehicle. He also further stated that all the three dead bodies brought by the Police Personnel had bullet injuries. He has stated that one of the dead bodies had Pajama Kurta and others had Full-Pant and shirts. Another witness Dhaniram Garai (P.W. 8) was a constable at Barachatti on 5th December, 1993 and he was on duty in the morning. According to him, Hawaldar Jaikaran Yadav came at that time and told that dacoits were moving opening fires. Thereafter police personnel's of the Barachatti P.S. went away alongwith Jaikaran Yadav on a Maruti Van and later appellant Brijlala Prasad Sinha also followed. According to him, appellants Victor Fedeles, Dudh Nath Ram, Jaikaran Yadav and Binay Singh had gone on the Maruti Van and about an hour thereafter they returned to the P.S. with three dead bodies in a jeep. The jeep belonged to the P.S. along with the dead bodies they had also brought a Maruti Van white in colour and he also found bullet-mark on this Maruti Van. According to him Banarsi Saiees and attachee were recovered from this Maruti Van. P.W. 9 Ram Balak Singh is a retired constable and at the relevant time he was posted at Barachatti P.S. and on 5th December, 1993 he was present at the P.S. According to him, at that time appellant Dudh Nath Ram happened to the officer in-charge of Barachatti P.S. According to him he had gone away to ease at the relevant time and nothing happened before this, but when he returned he learnt that they had gone to chase a Maruti Van from which sound of firing was coming. Later, when he was cooking food in the barrack by the side of the P.S., these persons returned with dead bodies on the jeep. He saw three dead bodies and also a Maruti van brought by trochen. It was white in colour and there were Banarasi Sarees and brief case recovered by the Officer In-charge Dudh Nath Ram. He also further stated that one of the dead bodies was wearing Pajama and some money was recovered from his pocket. However, this witness has stated that the officer in-charge was also showing revolver as recovered and on this point he has been declared hostile by the prosecution and it has been suggested that he did not make such statement before the 1.0. during investigation. This part appears to have been added with some purpose. However, from the statement of these witnesses, i.e. P.Ws. 7, 8 and 9, who are police personnel and who were posted at Barachatti P.S. at the relevant time, it appears that a Maruti Van was moving on the G,T Road at the relevant time and it was making sound of chat chat which was described as sound of firing by appellant Jaikaran Yadav resulting in rushing of the police personnel to the place of occurrence headed by the appellant Dudh Nath Ram in Maruti Van kept at the P.S. It may be noted at this place that the details of this Maruti Van has not been given by any one at any stage and it appears that this Maruti Van was detained at the P.S. under mysterious circumstances and it was used by the police personnel of the P.S. concerned during this occurrence. It also appears that a Jeep was being engaged by the Police Officers of Barachatti P.S. at the relevant time, but how and in what manner the Jeep was being kept and used by the police officers has also not been clarified in the evidence. It is also obvious from the evidence that the defence has also not seriously challenged the arrival of this ill-fated Maruti Van on the G.T. Road at the alleged time of occurrence and it appears that the peculiar feature of misfiring of the Engine of the Maruti Van has been highlighted by the defence. It is not without purpose. From the papers on the records at Barachatti P.S. it becomes clear that some incident had taken place on the alleged date at the alleged time of occurrence near 71 Mile-Post under Barachatti P.S. in which three persons were killed in police firing. It appears that the defence has tried to make out a case that the police personnel of Barachatti P.S. had followed the ill-fated vehicle under the impression that the criminals were opening tires from the moving Maruti Van and as they mistook the sound of misfiring as the sound of firing by criminals from the Maruti Van they opened tire at the Maruti Van and in this firing three persons lost their lives. So tar as this plea is concerned, it has also not been clearly and categorically taken in course of trial; rather some documents have been created to create confusion. It is material to note that according to the police personnel, as emerging from the FIR (Ext-25/1) based on the fardbeyan of Dudh Nath Ram (appellant), the then Officer In-charge of Barachatti P.S. relating to Barachatti P.S. case No. 146 of 1993, when the police party approached the moving Maruti Van, they challenged the occupants of the van and then fire was opened by the occupants and in retaliation, the police party fired at the van which resulted in death of three persons. According to this FIR (Ext-25/1) read Ext-17/1 two country-made pistols were also recovered from this Maruti Van by the then Officer In-charge Dudh Nath Ram, presently one of the appellants. However, it appears to be the absurd proposition and it indicates that there has been good deal of fabrication and manipulation for distorting and destroying the evidence in this case from the very beginning. It appears that the Police personnel in this case were very much conscious of this fact that innocent persons have been killed and in order to save their neck, they started making preparation of their defence at that very stage. So far the Senior Police Officers like appellant Dudh Nath Ram, appellant Victor Fedeles and Brijlala Prasad Sinha are concerned, they are trained police officers and they are expected to distinguish between the sound of firing from a fire-arm and the sound of misfiring from a vehicle and it cannot he accepted that they mistook the sound of misfiring as sound of firing from a fire-arm. If the persons occupying the ill-fated Maruti Van BR-14-B 7407 were opening fire on the police party, some bullet of pillet must have hit the Van in which the police personnel were pursuing, according to them. But it has not happened. The police personnel involved in this case could have also located the barrels of the fire-arms when the fires were opened at them. For this purpose, the presence of fire-arm in the ill-fated vehicle was absolutely necessary, but from the evidence of three Senior Police Officers, namely, P.W. 58 Ramdhani Choudhary, the then Inspector of Police, Sherghati, P.W. 59 Section Hembram, the then Deputy Superintendent of Police, Sherghati, and P.W. 64 Sunil Kumar, the then Superintendent of Police, Gaya, who had jurisdiction over Barachatti P.S., they had arrived at the P.S. after the occurrence on hearing about it and according to them, articles were taken out of the ill-fated Maruti Van in their presence. They have spoken of other materials, but they did not speak of recovery of fire-arms from the vehicle BR-14-B 7407. According to P.W. 58 Ramdhani Choudhary, Inspector of police who subsequently took charge of Investigation of both the cases, i.e., Barachatti P.S. Case No. 146/93 and Barachatti P.S. Case No. 148/93, the recovered articles were handed over to the then Officer In-charge Dudh Nath Ram, one of the appellants to be kept in the Malkhana According to P.W. 58 these articles were not subsequently found in the Malkhana and disappeared. P.W. 58 also further stated that for the first time on 9th December 1993, a nephew of appellant Dudh Nath Ram came to him and handed over to him the key of Malkhana and he also produced two pistols and some cartridges saying that they were recovered from the Maruti Van. This circumstance is clear enough to show that the then Officer In-charge of Barachatti P.S. Dudh Oath Ram had manoeuvred to create some defence for him at that very stage. As a matter of fact, had the fire arms been recovered from the person and possession of the culprits who were killed or from the Maruti Van in which the three deceased persons were traveling, the Officer In-charge must have produced the firearms before the superior officers at that very stage. It also appears that some seizure list has subsequently been manoeuvred as clearly indicated by P.W. 58, in order to show that there was recovery of fire-arms and ammunitions from the possession of these persons. But there is another circumstance to falsify the claim of the defences because when the fire-arms were sent for examination, the ballistic expert, including the Sergeant Major, P.W. 38 Ashok Kumar Sinha, the pistols produced in this connection were not in fit condition to fire, as per Ext-19/2. An examination of the two country made pistols and cartridges was also made by the Forensic Science Laboratory and P.W. 34 Umesh Kumar Sinha, a Senior Scientific Officer has proved the report (Ext-16) and the further report Ext-16/1. From the report (Ext-16) it appears that the cartridges shown as fired with country-made pistol and the other cartridges were found fired by two different weapons. Therefore, it falsifies the stand that the occupants or Maruti Van BR-14-B 7407 had opened fire at the police party necessitating opening of fire by the police party at the Maruti Van. The plea is further falsified by the report (Ext. 16/1) in which it is clearly stated that the two country-made pistols were not recently bred and were actually not fit for firing.

18. Thus, there does not appear to be any possibility of the police party of Barachatti P.S. acting in resorting to firing at the ill-fated Maruti. Van in retaliation. Further, it has also been pointed out on behalf of State that if the plea of the then Officer In-charge of Barachatti, appellant Dudh Nath Ram, is accepted, then it means that the firing was made from some distance. There cannot be any encounter in which firing is made from a close range, but from the opinion of the Doctor holding P.M. Examination over the dead bodies (P.W. 1), there were blackening marks in the injuries caused with fire-arm, indicating that the fatal shots were fired from close range, i.e., approximately about 18 inches.

19. According to Modi's Medical Jurisprudence, so far as the distance of the fire-arm at the time of causing injuries found on the person of the deceased succumbing to fire-arm injuries:

A charge of small shot fired from closely or within a few inches of the body enters in mass like a single bullet making a large regular wound with scorched and contused edges, and is followed by the gases of the discharge which generally lacerate and rupture the dipper tissues. Particles of unburnt powder expelled from the weapon behind the missile are driven to some distance through wound and some of them are found embedded in the wound and the surrounding skin which is also singed and blackened by the flame and smoke of combustion. The exit would of a close range shot may show greater damage of the tissue than the entrance wound. The margins are exerted, but there is no evidence of blackening or singing. At a distance of 1-3 feet, small shot make a single aperture with irregular and lacerated edges corresponding in size to the bore of the gun, as shot enters as one mass, but are scared after entering the wound and cause great damage to the internal tissues. The skin surrounding the wound is blackened, scorched and tattooed with unburnt grains of powder. On the other hand at a distance of 6 feet the central aperture is surrounded by separate openings in an area of 2 inches in diameter made by a few pillet of the shot which spread out before reaching the mark. The skin surrounding the aperture may not be blackened or scorched but it tattooed to some extent. At a distance of 12 feet, the charge of shots spreads widely and enters the body as individual pillet producing separate openings in an area of 5-8 inches in diameter depending on the choke but without causing blackening, scorching or tattooing of the surrounding skin.

20. It has also been observed by Modi that if the missile enters the body crossing the clothes worn by she object, the tattooing, the singing as well the blackenings are reduced to a great extent. In this case three dead persons were all wearing clothes at the time when they were fired upon. The clothes of the victims were also collected, seized and examined by the Forensic Science Laboratory and a detailed report was submitted in this connection. The detailed report of the examination of clothes indicated that holes found in the kurta and shirt worn by deceased Rajesh Dhawan and Khedan Yadav indicated that firearm injuries found on their persons tallied with the description of the holes found on the clothes examined. The different weapons seized from the accused and examined by the Forensic Science Laboratory alongwith the used cartridges and recovered portion of the missiles confirmed the opinion that the missiles were fired from the rifles and the revolvers issued to the accused persons in this case by the Police Department. The detailed report in this regard is Ext-16/6. The entries in the Register of arms and ammunitions maintained in the Office of the Surgeant Major, Gaya have also produced and stand marked as Ext-18 Series. It appears that a service revolver bearing No. 70403 was issued to appellant Dudh Nath Ram with 30 rounds of cartridges. Similarly a 33 bore Revolver bearing No. V/B 24100 along with 30 rounds of cartridges was issued to appellant Brijlala Prasad Sinha and, similarly, a Revolver bearing No. 161.9326 and 30 rounds of cartridges were issued to the appellant Victor Fedeles. Likewise, three Rifles of 303 bore were issued to the said three other appellants and the same were subsequently deposited in the police Line at Gaya after the occurrence and were examined by the Surgeant Major, Gaya and subsequently by the Forensic Science Laboratory. It also appears that the appellants returned the fire-arms with cartridges, but there was shortage which was not explained. P.W. 38 Ashok Kumar Sinha the Surgeant Major, Gaya at the relevant time has stated that on 25th November, 1993 he had issued a service Revolver and 30 rounds of cartridges to S.I. Dudh Nath Ram (appellant), on 22nd February, 1993, he issued service Revolver and 30 rounds of cartridges to Sub-inspector Brajlala Prasad Sinha (appellant) and on 19th November, 1992 he had issued a service Revolver and 30 rounds of cartridges to Sub-Inspector Victor Fedeles who had put their signatures on the Register concerned in which these entries are made. These entries are Ext-18 Series.

This witness has further stated that Rifles were also issued to constables Dinesh Singh, Deo Narain Ram as well as to Hawaldar Tulsi Ram and Rifles were kept in the police station and were seized from there on 13th March, 1993. This witness has also examined those weapons and has submitted reports Ext. 19 Series. According to this witness, alongwith the Revolver issued to appellant Brijlala Prasad Sinha, he had received only 16 rounds of live cartridges and 5 empty cartridges. Thus, there was shortage of 9 rounds of cartridges of 38 hore. Similarly, on 19th December, 1993, the Revolver alongwith cartridges issued to appellant Dudh Nath Ram was recovered and only 20 rounds of cartridges were received and 10 cartridges were unaccounted. Similarly, on 13th December, 1993 the Revolver and 25 rounds of cartridges were received from appellant Victor Fedeles arid thus, there was a shortage of 5 rounds of cartridges which remained unaccounted. The three accused have thus, failed to account for the shortage of cartridges of 38 hore and according to the prosecution, these three appellants had participated in the occurrence and had used the fire-arm i.e., the service Revolvers in their possession. Similarly, so far as the cartridges issued to the constables and Hawaldar and concerned, there are also shortage of cartridges and according to the allegation in the prosecution story against the three appellants, namely, Jaikaran Yadav, Dinesh Singh and Deo Narain Ram. It also appears from the report of the Forensic Science Laboratory that the bullet marks found on the ill-fated vehicle BR-14-B 7407 and on the bundles of sarees were found to have been caused by 38 revolver and 303 Rifles. The portions of the missiles recovered from the dead bodies also indicated that the same were fired from 303 Rifle. The reports of different Examinations by the Forensic Science Laboratory are Ext16 Series. These facts go to show that the death of the three victims in this case had occurred on account of the fires made on them from a close range which rules out the possibility of the firings having been made on them in an encounter, which was supposed to have taken place from some distance. The materials appearing in the evidence thus, indicate that the story of encounter by the police is falsified.

21. So far as the prosecution story is concerned, there is allegation that when the Police party arrived at the place of occurrence near 71 Mile-Post on G.T. Road, they started demanding a sum of Rupees one lac from the occupants of the ill-fated vehicle BR-14-B 7407 and on their refusal the police party dragged out two of the persons from the vehicle and shot at them from close range resulting in their death and thereafter the third victim Vijay Kumar Mishra was shot in the vehicle itself when he was sitting on the driving seat. It has already been mentioned earlier that different persons had given out the circumstances resulting in the firing and death of three victims at the stage of investigation, hut almost all the witnesses on this point have failed to support the prosecution story in Court and have been declared hostile. In this regard, it has been contended on behalf of State that the reason for their turning hostile is obvious. It has been submitted that this is a case in which the police officers are accused of having killed three persons in cold-blooded manner on account of the tact that they refused to oblige the police personnel involved in this case and the witnesses are ordinary people coming from the locality of the place of occurrence as also some drivers moving on the G.T. Road and they could not pick up courage to incur the displeasure of police in coming forward to support the prosecution story. Therefore, this part of the story could not get support from the witnesses that there was a demand of money and because of nonpayment, the victims were shot at.

22. The learned Counsel for the appellants have submitted that because the motive of occurrence has not been proved by the prosecution, the prosecution story should be disbelieved. This point was also raised at the trial stage and the learned Trial Court has also dealt with this aspect of the case in detail. There is no doubt about the soundness of this principle that if a motive is pleaded and is not proved, the prosecution case becomes doubtful, but it is also to be borne in mind that if the prosecution story otherwise appears to be proved on the point of killing, mere absence of the motive cannot be treated as a factor to disbelieve the entire prosecution story.

23. That the learned Trial Court has referred to the principle laid down in the cases reported in : 1987CriLJ1119 , : 1966CriLJ960 and 1981 Cr.LJ. (SC) 1278 and from all these decisions the motive behind the crime is relevant no doubt, and the prosecution has flailed to prove the motive, but the circumstances which prove the guilt of the case are not affected at all by the fact that the motive has not been established. In majority of the cases the motive is imputed and the prosecution is also required to lead evidence on the point of motive, but in many cases the motive is not known to the informant or the witnesses and there is no necessity of motive being proved. Therefore, what is important is evidence, circumstantial as well as direct, relating to the actual commission of the offence and if from the materials and evidence on record it is established that the crime has been committed in the manner as alleged in the prosecution story, the fact that the motive has not been proved, cannot be the deciding factor to throw away the prosecution case. Because of the refusal on the part of the material witnesses on the point of occurrence, who were supposed to have witnessed the occurrence, the prosecution has to rely in the case on the circumstantial evidence only and the circumstances appear to be over-whelming to indicate that it was a case in which the three innocent persons were killed in coldblooded manner by a police party of Barachatti P.S. It is also significant to know that a Maruti Van detained in the Police Station at Barachatti was used for the purpose of committing the offence by the Police Officers and it transpired during the investigation that this Maruti Van was being driven by one Raju of Bishungarh in Hazaribagh district. It appears that the statement of this Raju was recorded under Section 164 of the Code of Criminal Procedure also at investigation stage and he is said to have supported the prosecution story, but because of the special circumstances in the case, prosecution ailed to produce this witness in Court. Therefore, there is no direct evidence to this effect and that the appellants fired at the deceased persons resulting in their death. This is a peculiar story in which a take encounter has been enacted. From the evidence of the then Inspector of Police of Sherghati (P.W. 58) Ram Dhani Choudhary, earlier there were some complaints regarding conduct of the Officer In-charge Dudh Nath Ram, one of the appellants and there were reports that they were extorting money from the vehicles passing on the G.T. Road and the witness claims to have brought this fact to the notice of the S.P. and to have warned the appellant Dudh Nath Ram to desist from such act. However, the S.P. (P.W. 64) Sunil Kumar has denied this knowledge, but a letter addressed by P.W. 58 to the S.P. Gaya has been brought on the record in this case. This letter is Ext. 2/3 which was sent by the Police Inspector of Sherghati to the S.P., Gaya on 30th November, 1993, i.e., only a few days prior to this occurrence. It gives a clear indication of the back ground in which the crime has been committed. The instances of forcible collection of tolls from the passing vehicles on the National Highway and also from the shop-keepers, etc. are not new in this state and such incidents have been taking place from time to time resulting in some major incident. It, therefore, appears that the victims in this case have been killed by the police in a show of a take encounter and it appears that the circumstances leading to this occurrence are most unfortunate for a civilised society. The police force is meant for protecting the law abiding citizens from anti-social elements and to come to the rescue of the citizens of onslaught from the mighty and influential persons, hut the role of police in this case appears to have reversed. If innocent persons are made target of police violence in the manner as described in this case, no person can feel safe in this State. It is said that the exercise of power in encounter by the police gives rise to a tendency to indulge in such activity which amounts to gross violation of human rights. It has come on record and there were serious kinds of demonstrations and dharna by the Business Community of Ranchi, as stated by the City S.P. Ranchi (P.W. 39) Alok Raj. It is said that if a police personnel tastes the human blood, then he becomes disparate like a man-eater add it gives rise to fake encounters resulting in killing of innocent law abiding citizens on false pretext. As observed earlier, the role of the District Superintendent of Police, Gaya at the relevant time, P.W. 64 Anil Kumar cannot be overlooked and ignored. He did not take any prompt action getting the police personnel involved in this case arrested and a case registered, rather, he kept waiting till a report in writing was filed before him by the informant of this case on 9th Dec, 1993. It appears that he had refused to give his statement before the 1.0. when he approached him for his statement, as stated by P.W. 62 M.M.A. Beg and the I.O. had to issue a questionnaire to him and that questionnaire was also answered by him in a vague manner with a view to help the offenders.

24. The appellants have attacked the delay in lodging the FIR in this case. It is obvious that while the occurrence is said to have taken place on 54th December, 1993 in the morning, the written report (Ext. 17) was field on 9th December, 1993 at about 11.30 A.M. and thereafter the present case was registered and the FIR (Ext. 25) was drawn up. Therefore, there has been a delay of about five days in lodging the FIR, no doubt, but the circumstances are also very clear. The informant admittedly does not happen to be an eyewitness to the occurrence. The occurrence took place on G.T. Road at Barachatti while the deceased Rajesh Dhawan belonged to Ranchi at a distance of 250 kms. Victim Rajesh Dhawan alongwith his two companions had met a tragic end at Barachatti and his wife P.W. 65 Rita Dhawan was anxiously waiting for her husband as she was informed on telephone on 4th December, 1993 that Rajesh Dhawan was expected to arrive at Ranchi in the forenoon of 5th December, 1993. When the husband of Rita Dhawan did not arrive by the evening of 5th of December, 1993 she get more anxious and when her brother in-law returns from outside, the expresses her anxiety to him. Thereafter three unknown persons arrive and call P.W. 25 Pawan Dhawan outside his house and tell him that they have received information that his brother has been killed at Barachatti alongwith his two companions. The said P.W. 25 also learned from the three persons that news to this effect was received by the City Superintendent of Police, Ranchi and the news was also broadcast on the All India Radio and telecast on the local Door Darshan. P.W. 25 confirms it from the local correspondent of Door Darshan who confirms it and then he collects some well-wishers and proceeds for Barachatti on 6th December, 1993 arrives there and gathers information that his brother alongwith his two companions was killed on 5th on the pretext of an encounter and he is also told that the dead bodies were lying in the A.N. Magadh Medical College, Gaya. Then he comes to Gaya, receives the dead bodies and returns with the dead-bodies to Ranchi late in the night of 6th December, 1993. When the news of death of Rajesh Dhawan in the so called police encounter spreads in Ranchi town, there is wide-spread resentment in Ranchi Town and some-how the cremation is completed on 7th December 1993. Thereafter, the appellant of this case leaves for Barachatti with two other persons and he meets the Officer Incharge of Barachatti Police Station, Dudh Nath Ram and learns about the incident. He then goes to the Superintendent of Police, Gaya, meets him, some papers are shown to him and he gathers the same. So it took time in preparing the report and, accordingly, the report was prepared on 9th December 1993. The report is filed and in-the First Information Report, therefore, the delay In this case does not appear to be unexplained or unreasonable when such a report is received by the kith and kin of the deceased, such persons become so shocked that it takes time in recovering and becoming normal. In such a highly disturbed state of mind and the trauma, none is expected to he in proper frame oil mind to lodge a case. It is also apparent that because the police officers of Barachatti P.S. were themselves involved in the incident, any kith and kin of the deceased was not expected to get any support, co-operation and help from the local police and, therefore, in order to get information, the informant had to wait for some time.

25. One pertinent point has been raised by the earned Counsel appearing for the appellants that the naming of the accused persons in this case and the' details of the incident given out in the written report (Ext-17), which is the basis of FIR (Ext-25), is based on the written report (Ext-17/1) which is the basis of the FIR (Ext-25/1). It has been submitted that so far as this written statement of appellant Dudh Nath Ram (Ext-17/1) is concerned, since it has been made by one of the accused in this case, it could not be used as evidence in the case, because it amounted to confession and retracted confession cannot be used in evidence. The earned Counsel for the State challenged this contention saying that the said document cannot be treated as a confession by any means, because at the relevant time, the maker of this statement was not an accused in this case. However, it was submitted on behalf of State that this statement can be relied upon as an admission and is relevant as statement of facts and it is also submitted that under Section 8 of the Evidence Act, this document can be treated as evidence regarding the conduct of the accused. It has also been contended that some of the entries in the station diary, specially Ext-26/4 can be used by the prosecution under Section 35 of the Evidence Act, because it is a statement in the Register maintained in performance of duty. There cannot be any doubt about the fact that the station diary is a Public Register or a statutory document. According to the Police Manual, the entries made in the Register are made by the Public Officer in performance of his duty. From this particular entry (Ext-26/4) it appears that on the relevant date, when the appellants Dudh Nath Ram, Victor Fedeles and Brijlala Prasad Sinha were sitting and talking in the premises of the Police Station at Barachatti, one appellant Jaikaran Yadav came and said that some persons were fleeing opening fire from a Maruti Van. On this, the Officer In-charge, appellant Dudh Nath Ram took with him the above mentioned Officers with two constables and a Hawaldar and proceeded towards the P.O. It also appears that subsequently an entry was made which is Ext-26/2 that the Police Officers had returned to the P.S. with three dead bodies and a damaged Maruti Van and thereafter Barachatti P.S. Case No. 146 of 1993 was registered on the basis of the statement of appellant Dudh Nath Ram in which the details of the incident were given. It is, therefore, clear that the entries in the Station Diary as also the Fardbeyan of appellant Dudh Nath Ram (Ext-17/1) are relevant documents and the same have been treated as piece of evidence by the Trial Court, as statement of certain facts and also as the conduct of the accused. However, the learned Counsels for the appellants submitted that so far as the statement in Ext. 17/1 is concerned, even if it is treated as an admission of accused Dudh Nath Ram, it can at best be treated as an evidence against him, but it cannot be treated as evidence against other accused in this case.

26. Citing a decision in Chandra Kant Chimanlal Desai v. State of Gujrat : 1992CriLJ2757 , it has been contended on behalf of the appellants that conviction cannot be recorded on the basis of confession. There is no dispute regarding this position that conviction cannot be recorded on the basis of confession made before police and the earned Counsel for the State also does not dispute it and it is submitted that conviction in this case cannot be said to have been recorded on the basis of any concession, but certainly the evidence in Ext. 17/1 and Ext. 26 Series can be treated as statements of certain facts and so admissible in evidence regarding the conduct of the accused. However, it is not that the Court has based the findings regarding participation of accused in the commission of this offence only on the Station Diary entries (Ext. 26-Series) and the fardbeyan (Ext. 17/1); Rather there are other independent materials to support this fact that the appellants had left the Police Station in the morning of the fateful day on hearing from appellant Jaikaran Yadav that some criminals were opening fire from a Maruti Van which was moving on the G.T. Road towards the east. It also appears from the evidence of some of the witnesses connected with the police station in question that later these appellants returned to the Police Station alongwith damaged Maruti Van and three dead-bodies and they claimed that the criminals were killed in encounter. Actually it is commendable that some of the Police personnel connected with Barachatti Police Station where the incident took place have come forward with the facts very boldly without caring that the police official of that police station were indicated in this case and they included the then Officer In-charge of the P.S.; appellant Dudh Nath Ram. These police personnels are P.W. 7 Shakir Ahmad Khan, a literate constable then attached to the Barachatti P.S., P.W. 8 Dhani Ram Garai, then posted in the Barachatti P.S. and P.W. 9 Ram Balak Singh, a constable then attached with Barachatti P.S. The evidence of these witnesses have been discussed in detail at a foregoing paragraph P.W. 7 has stated that the Officer In-charge Dudh Nath Ram and others proceeded in the Maruti Van which was stationed at the P.S. and was a seized vehicle. According to him appellant Brijlala Prasad Sinha had gone in a Jeep which was engaged in the Police Station. He further stated that sometime thereafter they returned to the Police Station and they brought three dead bodies in a jeep and they also brought a Maruti Van by trochee which was damaged. There were blood stains on the Maruti Van and there were bullet injuries on the dead bodies. According to him, Rs. 2,600/- was recovered from the pocket of one of the dead bodies which was wearing Kurta-Panjama and it was handed over to Ramdhani Choudhary, Inspector of Police which was subsequently handed over to appellant Brijlala Prasad Sinha who was In-charge of Malkhana. He also stated that an attached containing clothes etc. was also taken out from the damaged vehicle and about 14-16 bundles of clothes were also recovered and there were blood marks on these bundles. He also found some blood and pieces of bones inside the Maruti Van. According to him, the Inspector of Police, Sherghati and Deputy Superintendent of Police, Sherghati had arrived there by that time. Later, the dead bodies were sent to the Hospital for P.M. Examination through proper channel (Ext 6).This witness has also stated that it was his duty to make station diary entries under the orders of the Officer In-charge, hut, according to him, the departure of these police personnel from the P.S on the report of Jaikaran Yadav was never recorded in the Station Diary at that time as he was not ordered to record it and the entry was made on their return. He has also stated that the station diary was then taken away by the Officer In-charge Dudh Nath Ram and after 2-3 days, the same was returned and certain entries were made on the dictation of the Officer Incharge Dudh Nath Ram. He is stating about Ext. 26/2. So it is clear that appellant Dudh Nath Ram, Victor Fedeles and Brijlala Prasad Sinha had gone away on receipt of information from appellant Jaikaran Yadav that some criminals were moving on the GT Road making firing from Maruti Van and thereafter three dead bodies and a damaged Maruti Van were brought to the P.S. It is also evident that soon on return to the P.S. from the P.O. with the dead bodies, this Officer In-charge Dudh Nath Ram started manipulating things. He took away the Station Diary with him and the entries, especially Exts-26/2 and 26/4, were made subsequently as desired by him. So far as the fardbeyan of Dudh Nath Ram (Ext. 17/1) is concerned, it was also not drawn up at that time, but it appears that subsequently the case was registered on the basis of the fardbeyan (Ext-17/1) in which certain untrue facts were also given. This manipulation is evident from the statement of Senior Police Officers, as stated above, that they did not see the FIR in the police station on that day and according to Ramdhani Choudhary, the Inspector of Police (P.W. 58), he saw a copy of the FIR (Ext-25/1) for the first time on 7th December, 1.993 lying on his office table. It has also been observed earlier that PW 58 had stated that certain articles which were recovered from the Maruti Van in presence of police officers were handed over to appellant Dudh Nath Ram to be kept in the Malkhana, but subsequently these articles were not traceable and it is also clearly stated by him that on 9th December, 1993 for the first time a nephew of appellant Dudh Nath Ram appeared before him and handed over the key of Malkhana as well as two pistols saying that the same were recovered from the Maruti Van in which the deceased persons were travelling. It has been observed earlier that this planing of firearms and ammunitions is evident from the statements of Senior Police Officers themselves. It is obvious that had any fire-arm been recovered either from the Maruti Van or tram the possession at the deceased, the same must have been produced before the senior officers, including the SP, Gaya and a seizure list to this effect would have been prepared, but according to the PW 58 it also appears that seizure list which was prepared in his presence was misplaced subsequently and some different seizure lists were prepared and placed on the record. It is also clear that Ex.- 26/4, the Station Diary dated 5th December 1993, was subsequently manufactured and the appellant Dudh Nath Ram who got it mentioned in it that two revolvers or pistols and some cartridges were received from the Van in which the deceased were travelling. It has been stated by PW 58 that probably some interpolation was made in the station diary in the page containing Ext.- 26/4 attached and the page does not belong to the original volume of the station diary.

27. All these circumstances clearly indicate that there was serious effort on the part of Officer incharge Dudh Lath Ram to manipulate things and to create some evidence to suit his purpose for hiding the crime, P.W. 8 Dhaniram Garai who was posted at Barachatti P.S. on the relevant date has also stated that he was on duty on the relevant date in the morning and Jaikaran Yadav came and said that dacoits were going firing shots. He also stated that staff of the police station went with Jaikaran Yadav by maruti Van and half an hour thereafter Brijlalababu also came in a Jeep. It also appears that this part of evidence has deliberately and purposely been made to extricate appellant Brijlala Prasad Sinha tram the responsibility. This witness has, however, stated that Victor Saheb, meaning thereby, Victor Fedeles, Officer Incharge Dudh Nath Ram, appellant Jaikaran Yadav and armed guard Bijay Singh had gone in the Maruti Van alongwith others and they returned about halt an hour thereafter and they brought three dead bodies in a Jeep which was present in the P.S. from before. The dead bodies were taken out from the Jeep by the Chaukidar. He has also stated that money was taken out from the clothes worn by one of the dead bodies. It may be noted in this connection that according to P.W. 65 Rita Dhawan the wife of the deceased Rajesh Dhawan, Rajesh had taken Rs. 63,000.00 with him and from the evidence of P.W. 23 it appears that he paid him Rs. 32,000.00 only and nothing was paid to other dealers, except PW 48 to whom Rs. 10,602.00 was paid. So Rs. 20,000/- (twenty thousand) and odd was left with the deceased, but on paper a recovery of Rs. 2,600/- from the pocket of Kurla of deceased Rajesh Dhawan was shown. It is apparent that the accused had taken away the rest of the amount. It also appears from the evidence of PW 8 that one damaged Maruti Van of white colour was also brought by him and there were bullet marks on this Maruti Van and some bundles of Sarees, etc. also were kept in the said vehicle alongwith one attached This witness identified all the appellants in the dock during trial and clearly stated that these appellants had gone to chase the so-called culprits.

28. Another witness who was also a constable posted at Barachatti P.S. at the relevant time is P.W. 9 Ram Balak Singh. According to him, appellant Dudh Nath Ram was the In-charge and appellant Brijlala Prasad Sinha was the S.I. posted in the Barachatti P.S. on the relevant date. According to him, at the relevant time in the morning, he was present in the barrack by the side of the P.S. However, he said that he had gone away to ease himself at the relevant time and when he returned with the staff of the P.S. he also heard two shots. Later, when he was cooking his food in the Barrack, he learnt that three dead bodies had been brought to the P.S. in a Jeep. According to him a Maruti Van was also brought by trochen which was white in colour and there were bundles of Banarasi Sarees in the vehicle. This witness has stated that a revolver was also being shown by the Officer In-charge to the Dy. S.P. and the Inspector of Police, hut his part of his statement has been negatived by two senior Officers which means that he has deliberately tried to make some incorrect statements to help the defence and consequently he has been declared hostile by the prosecution. So far as the presence of the police at the P.O. at the relevant time of firing which resulted in death of three persons, some other statements are available on the record which have been discussed above. Therefore, there does not appear any difficulty in coming to this conclusion that these appellants had chased the Maruti Van on which three deceased persons were travelling claiming that they were chasing the criminals who were firing from the vehicle and the three occupants of the damaged Maruti Van were shot dead and thereafter the Maruti Van and the dead bodies were brought to the P.S. It is obvious that Jaikaran Yadav heard the sound of Phat Phat which was as a result of misfiring of the engine of the vehicle due to defect in the silencer. There is abundant evidence. However, later it transpired that when the vehicle was inspected by the Motor Vehicle Inspector he did not find any such defect and there is indication in his statement that the vehicle was repaired surreptitiously by the police officers to create confusion. This aspect has been death with earlier. The entire circumstances appearing in the evidence, therefore clearly go to show that there is no doubt regarding the correctness of the prosecution story that three innocent persons who had nothing to do with any crime were shot dead by the police officers in cold blooded manner at the time and place of occurrence, as alleged in the prosecution story.

29. From the evidence of P.W. I Dr. Kapildeo Prasad, who held the autopsy over the dead bodies, it appears that bullet injuries were found on the persons of the three deceased.

A perforating wound of the size 4' x 2' x brain deep was found over the temporal region of the dead body of a man aged about 35 years. The margin of the wound was irregular, inverted and blackened. It had an opening on the opposite side of the size 7' x 5'. So it was a case of injury of entry as well as exit and the firing was from close range.

On another dead body of a man aged about 40 years the doctor found a penetrating wound of 2' x 2' x bone deep on the right elbow joint. The margins were irregular, inverted and blackened. The metallic was also found embedded in this wound. It had cause fracture of radius and ulna bones of the hand. Another wound on the person of the dead body was a perforating wound of size 1/4' in diameter on the left side of chest 4-1/2' below the left axilla over lateral border of axillary line. The margins of the wound were inverted, irregular and blackened. The wound was communicating with the opening of the size 1-1/2' x 1' over upper part of the right side of abdomen. The margins were averted and irregular. So these two injuries were the wounds of entry and exit. The injury was caused with fire-arm from close range.

30. The Doctor (P.W. I) had found three injuries on the person of the third dead body of a man aged about 40 years:

(i) perforating wound of size 1/4' in diameter on the back of the root of the neck. The margins of the wound were inverted, irregular and blackened;

(ii) perforating wound of size 1/4' in diameter over left side of chest situated 6' below the left axilla. The margins of the wound were irregular, inverted and blackened. The injury was passing right side and communicated with an opening over the abdomen 4' below the right nipple. The size of the opening was 2' x 1/2' with irregular and everted margins. Thus, this injury had an wound of entry and an wound of exit;

(iii) The third injury was 1/4' in diameter over left side of loin with irregular, inverted and blackened margins and communicating with an wound of exit over right renal region with irregular exerted margins. There were wounds of entry and exit.

31. The injuries were caused by firearms and it appears that it was with a Revolver fired at close range. So it is apparent from the P.M. Report (Ext-1 series) and from the evidence of PW 1 that ail the injuries were caused from close range and not from distant place which rules out the possibility of encounter and fits in with the case of the prosecution.

32. From the prosecution story it also appears that the killings were made by the police officers as a result of their dubious objectives of collecting money from the occupants of the vehicle. There is no direct evidence on this point and some of the witnesses who are said to have supported this part of the story before the Investigating team failed to support this point in Court. But P.W. 58 Ramdhani Choudhary, who was earlier entrusted with the investigation of the case before the investigation was taken up by the Inspecting team of CID (Crime), made a significant statement that earlier he had received reports regarding the conduct of Officer Incharge Dudh Nath Ram that he was in the habit of collecting money from the drivers passing through the jurisdiction of his police station on the G.T. Road and he had also sent a report to the S.P. in this regard. Though the Superintendent of Police has tried to deny this fact, but the copy of such a letter is on the record as Ext-2/3. Therefore, it appears to be true that actually the killing had taken place in a deliberate manner because the deceased failed to fulfill their demand of money. So far the exchange of firing between the occupants of the ill-fated vehicle and the police party is concerned, there does not appear any evidence to support it and it appears to be a fabrication on the part of the culprits to make a case of genuine encounter. It is obvious that neither any fire-arm was available with either the deceased persons or in the vehicle in which they were travelling nor any bullet mark was found on the vehicle in which the police party had gone there nor any of the police personnel, engaged in so-called encounter received any injury. In such a circumstance, there does not appear to be any truth in the defence story that there was actually any encounter in which these three persons were killed. It also becomes clear from the evidence of Ramdhani Choudhary (P.W. 58) and also from the subsequent investigating officer and leader of the investigating team of the CID (P.W. 62) M.M.A. Beg that they did not find any sign at the place of occurrence to suggest that there was any encounter. They did not find any sign that any dead body had fallen in the bush near the road, as alleged by appellant Dudh Nath Ram in Ext. 17/1 and on the road also no blood was found and the place where the dead body is said to have fallen was tampered with some chips, coltar etc. The story propounded in the FIR (Ext. 17/1) that two culprits got down from the vehicle and fled away is also falsified from the statements of several witnesses who stated that there were only three occupants in the Maruti Van. Therefore, considering the entire circumstance it becomes clear that the occurrence had taken place in the manner as alleged in the prosecution story in this case and not as stated in. the fardbeyan of appellant Dudh Nath Ram (Ext. 17/1). The prosecution story, thus, appears to have been proved by all means by the prosecution and the Court also appears to have arrived at a correct conclusion in holding the appellants guilty and awarding sentence to them.

33. So far as the relevancy and admissibility of the fardbeyan of Dudh Nath Ram (Ext. 17/1) is concerned, it was seriously challenged by the earned Counsel for the appellants and it was submitted that it cannot be looked into for getting support to the prosecution case. But such FIR is admission of the maker and is admissible. There are two station diary entries also (Ext. 26/2 and 26/4). This view finds support from the observation and findings - of their Lordships in the case of Ram Prasad Sharma v. State of Bihar : 1970CriLJ496 . It has been thus observed in the case:

In this case it has not been proved that entry in question was made by a public servant in the discharge of his official duty. As observed by this Court in : [1965]3SCR861 , the reason why an entry made by a public servant in a public or other official book, register or record stating a fact in issue or relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the possibility of its being truly and correctly recorded is high.

Thus, both the fardbeyans (Ext. 17/1) and the station diary entries (Ext. 26/2 and Ext. 26/4) having been made by public servants in discharge of their official duty become admissible, in view of the provisions of Section 35 of the Evidence Act. In another case, Keshoram v. State of Assam : 1978CriLJ1089 , also it has been held by their Lordships that it is well settled that where a confession or admission is separable, there can be no objection taking one part into consideration which appears to be true and reject the other part which is false. Therefore, it has been contended on behalf of prosecution that so far those parts of the FIR and the two entries in the Station diary that the appellants left for the P.O. on being informed by appellant Jaikaran Yadav that criminals were probably moving in a Maruti Van opening fire and thereafter they returned to the P.S. with three dead bodies and the damaged vehicle is admissible. The similar entries in the station diary Exts. 26/2 and 26/4 are also admissible to this effect that the police personnel had gone to chase the Maruti Van in which criminals were suspected to moving and thereafter they returned to the PS with three dead bodies and the damaged vehicle. This part of the statement in the fardbeyan (Ext. 17/1) also becomes admissible that the three persons were killed in an encounter by the police. In the case of in re, Natesan 1969 Cr.LJ 83, it was held by their Lordships of the Madras High Court that:

If a statement contains admission of an offence, not only that admission, but also every other admission of incriminating fax contained in the statement is part of confession. If the first information given to a police officer amounts to a confession, any incriminating fact mentioned therein, if it has got a bearing directly or indirectly with the confession, such fact, even though it may be of admission will be inadmissible. If the first information does not amount to a confession, any admission made therein can be proved against the maker under Section 21 of the Evidence Act.

In this view of the matter, it becomes clear that the admission of appellant Dudh Nath Ram in his fardbeyans (Ext-17/1) is admissible in evidence against him though not against other appellant. In this connection it can be said that even if the fardbeyan of appellant Dudh Nath Ram is not taken into consideration, the other material as discussed above go to prove beyond doubt the participation of other appellants in the crime. The statement made by appellant Dudh Nath Ram in the fardbeyan is in the nature of admission and that can be used also against the other appellants. As there is no legal bar in relying upon the same. A reference may be made to the Sarkar on Evidence, 1993, Edition wherein while discussing the scope of Section 21 of the Evidence Act it has been said:

The section does not say that the admission may not be used against the persons other than maker, and is evidently not intended to be exhaustive. The statements which are admissions within Sections 19 and 20 are relevant and may clearly be proved against the persons other than the makers of them, and similarly it appears that admissions by persons who have a proprietary interest in certain property may be used against other persons interested in the same property, although the later are not representatives in interest of the persons by whom the admissions were made.

34. The earned Counsel for the appellants also submitted that so far as use of cartridges alleged to have been fired from the revolver and rifle in their possession is concerned, no specific question has been put to the accused persons regarding shortage found in their statement under Section 313 of the Code of Criminal Procedure and, therefore, they have been prejudiced and the Trial has vitiated, but it is clear that the questions have been put to the appellants that there was use of particular amount of cartridges made over to them as per the report of the Surgeant Major (P.W. 36). It gave an opportunity to them to explain the shortage and thereby to explain the use of such cartridges. Therefore, even if specific questions have not been put, it does not cause any prejudice to the accused persons. Moreover, from the other materials in the evidence, such as the ballistic report (Ext. 16 series) it has bean proved that the shots were fired from revolvers and rifles in course of the incident. Therefore, there is no difficulty in holding that the prosecution case has been supported by the materials on the record.

35. Much has been stated on behalf of the appellants regarding the acceptability of circumstantial evidence in a case and as to how far the circumstantial evidence can be made basis for finding of guilt against the accused facing trial. It has also been contended that the Court cannot arrive at a conclusion of guilt of an accused facing trial on account of the fact that pica of an encounter taken on behalf of defence was found to be false. Reliance in this connection was placed in the case of Shanker Lal v. State of Maharashtra : 1981CriLJ325 . In this case it has been held by their Lordships that:

Falsity of plea of accused can at best be treated as additional evidence and the finding cannot be based on this plea only.

There is no question of disputing the soundness of this principle. It cannot be said that merely because a particular plea of defence taken on behalf of accused facing trial is found to be false, the corollary will be guilt of the accused. This is not the position in the present case. Here there are several circumstances to indicate that firing had taken place at the alleged place of occurrence at the alleged time and on the alleged date of occurrence in which a Maruti Van in which the deceased persons were travelling was damaged and three dead bodies were recovered. From the evidence of witnesses, including the witnesses who turned hostile, it becomes clear that three dead bodies had fallen at the PO which were brought to the P.S. in a Jeep used by the police officers. Therefore, it is not only that the Ending of guilt has been recorded in this case merely on basis of falsity of plea of the accused. The earned Counsel for the appellants also relied on Padala Veera Reddy v. State of A.P. and Ors. : AIR1990SC79 , in which it has observed by their Lordships that:

the circumstances creating strong suspicion against the accused persons cannot be treated as sufficient material for recording of finding of guilt against the accused persons facing trial.

But this is clear that it was a case of poisoning in which stand taken was different and the findings in this case do not have any bearing in the present case. The materials on the record in this case appears to be sufficient. It has been contended on behalf of the appellants that cardinal principle of criminal jurisprudence is that innocence of an accused is presumed till otherwise proved and it is the duty of the prosecution to prove the prisoners' guilt, subject to any statutory exceptions. In support of this principle, the earned Counsel for the appellant placed reliance on the case Nisar Ali v. State of U.P. : 1957CriLJ550 . The soundness of this principle can also not be disputed. However, it is also obvious that in a case of circumstantial evidence, the burden of proving lies on the prosecution and the prosecution has to discharge its duty by bringing on the record sufficient materials to show that the circumstances' are incompatible with the innocence of the accused and lead to the irresistible conclusion regarding the guilt of the accused. The principles have been enumerated in the case of S.D. Soni v. State of Gujarat : 1991CriLJ330 and Union of India v. T.S. Brar (1993) SCC 176. In the case of Tarseem Kumar v. Delhi Administration 1994 Supp. (3) SCC 367, it has been held by their Lordships that when the prosecution on case is based solely on the circumstantial evidence, the Court has to be satisfied:

(i) That the circumstance from which such conclusion of guilt is to be drawn has been fully established;

(ii) All the facts so established are consistent only with the hypothesis of guilt of the accused and they do not exclude any other hypothesis, except the one sought to be proved; and

(iii) The circumstances on which reliance has been placed are conclusive in nature; and

(iv) The chain of evidence is such that there is no scope for any reasonable ground for a conclusion consistent with the innocence of the accused.

36. It has also further been observed by their Lordships that:

Where the prosecution purports to prove the charge against the accused on the basis of direct evidence, oral or documentary then the evidence so produced, can be considered by the Court on the well-recognized principles including as to when the FIR of the occurrence was lodged, whether the accused was named therein and the version of the occurrence which is being disclosed in the case was disclosed in the FIR or not, the witnesses who have supported the case of prosecution are trustworthy or not. But in a case based on circumstantial evidence, when neither the accused is known nor the manner of occurrence is known to the persons connected with the victim, even the FIR in respect of such cases is lodged after a considerable delay in many cases, because an offence has been committed itself, is not known to any one. The circumstances discovered by the I.O. during the course of investigation and proved by the prosecution during trial have to be cautiously examined for the purpose of recording a verdict of guilt or giving benefit of doubt to accused persons.

However, it was also observed in this case by their Lordships that, 'in a case based on circumstantial evidence, motive is a very important factor and it should be proved', but it has been further observed by their Lordships that, 'if each of the circumstances proved on behalf of the prosecution is accepted by the Court for the purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of motive for commission of such a crime, the accused can be convicted.'

37. However, it has already been observed earlier that in this case the motive was assigned in the FIR and the evidence was also collected by the investigating agency during the investigation, but unfortunately the witnesses on the point of occurrence turned hostile and failed to support the prosecution story. This aspect has been dealt with earlier and it appears that the motive was illegal monitory benefit to the accused persons. It was also pointed out by the earned Counsel for the State that one of the appellants stated in his statement under Section 313, Cr.P.C. that his name was included in the fardbeyan (Ext. 17/1) because he had a chance of getting reward for participating in an encounter. Therefore, it appears that this incident was motivated by one of the two reasons: for the purpose of collecting money in an illegal manner from the occupants of the ill-fated vehicle or the accused persons were motivate by their desire and expectation to get reward for getting persons killed in a fake encounter. In any view of the matter the motive could not have been innocent or pious. It must be observed at this stage that such motivation on the part of the State to reward the police personnel participating in an encounter can give impetus to motivate persons creating a circumstance in which the lives of innocent persons are endangered. Such situation must be averted by the State by all means. It is obvious in this case that none of the deceased persons had any criminal antecedent and still they were killed. It is apparent in this case that though eye-witnesses to the occurrence were available they did not come forward to support the prosecution story and, therefore, the prosecution has to rely on the circumstances appearing in this case. In the case of Jagjit Singh v. H.P. 1994 Cr.LJ 233, it was held by their Lordships of the Supreme Court that even if the eye-witness to an occurrence is not available to the prosecution, it cannot prevent the prosecution from relying on the evidence, though circumstantial in nature and if such evidence is sufficient to bring home guilt, convictions should follow. Thus, it is clear in this case that the witnesses who were expected to support the prosecution story as eye-witnesses failed to support the prosecution story and, therefore, the prosecution has to rely on the circumstantial evidence and, in my view, the circumstantial evidence is sufficient to lead to the conclusion that the accused persons, i.e. the police officers connected with Barachatti PS in the district of Gaya were involved in the incident. The manner in which the killing has been done is very much despicable and such incident should be condemned in the strongest possible terms. On consideration of the entire materials on the record, it becomes clear that the prosecution has proved the charges in this case levelled against the appellants for which they have been held guilty by the Trial Court.

38. So far as the participation of appellant Dudh Nath Ram of Cri. Appeal No. 459 of 1996 is concerned, there does not appear to be an iota to doubt about his participation in view of the overwhelming circumstances appearing in this case. He appears to be the leader of the group of killers involved in this case. He was at the relevant time Officer In-charge of Barachatti P.S. and within his jurisdiction killings have been made. Ordinarily also when the police party picked up the dead bodies, if the incident had taken place otherwise than in the manner alleged in the prosecution story, it was his primary duty to investigate into the case by registering a case, but he registered a case on his own statement with some fabrications and falsehoods. The admissions made by him in the fardbeyan (Ext-17/1) are available against him to show that he was the leader of the group involved in the killing of three innocent persons on the pretext of fake encounter.

39. So far the participation of appellant Victor Fedeles is concerned, a plea was taken on his behalf that at the relevant time, he was not posted in Barachatti Police Station and was posted in Civil Lines Police Station at Gaya and he was supposed to be there and he was not present in Barachatti Police Station and, therefore, he had no opportunity to participate in this occurrence. True it is that earlier this appellant was posted as Officer In-charge of Barachatti Police Station and prior to this incident he was transferred to Civil Lines PS at Gaya, but it is also evidence that till the date of occurrence, his Family continued to reside at Barachatti and he used to visit Barachatti very frequently. It is the very dangerous aspect that the police officer who was supposed to be available in Civil Lines P.S. at Gaya was present at Barachatti P.S. and was participating in a nefarious activity in collusion with his successor Dudh Nath Ram. There is overwhelming evidence that at the relevant time, he was present in Barachatti P.S. The investigating agency has also looked into the materials and records of Civil Lines P.S. at Gaya and found that he was supposed to be on duty in Civil Lines P.S. at Gaya, but he was not there. All the three persons who were police personnels at Barachatti P.S., i.e. P.Ws. 7, 8 and 9 have consistently stated that he was there and he had gone away to participate in the present crime. They also stated that he also returned with others when the three dead bodies and the damaged vehicle were brought to the P.S. It has, therefore, rightly been contended on behalf of the State that the offence of this particular accused becomes graver in view of the fact that he was probably guiding his successor Dudh Nath Ram in the nefarious activities on the basis of his previous experience during his posting at Barachatti P.S. and his participation in the commission of the offence also shows that he was not faithful to his duty too.

40. So far as appellant Brijlala Prasad Sinha is concerned, admittedly he was posted as Sub-inspector of Barachatti P.S. at the relevant time and he was also present in the P.S. It is apparent from the materials on the record that he was sitting with appellant Dudh Nath Ram and Victor Fedeles when Jaikaran Yadav came and said that some criminals were moving opening fire and then altogether six persons left for the P.O. He is said to have taken a Jeep alongwith them on which the dead bodies were later brought. This Jeep is said to have been detained in the P.S. for past about 1-1/2 months and was being used for patrolling purpose. However, some witnesses have tried to help this appellant by saying that he had followed the accused persons subsequently in a Jeep. However, they have subsequently stated that he had left the P.S. after half an hour or one hour when the police had left. But it appears from the evidence of P.W. 7 that the police party had returned to the P.S. only after half an hour of leaving the P.S. Therefore, there is no question of his proceeding to the P.O. even after half an hour when the other persons had left. From the evidence of P.W. 9 it appear that he had also left simultaneously alongwith other persons. Therefore, his participation in commission of the offence cannot be ruled out.

41. So far as the appellant Deo Narayan Ram and Dinesh Singh are concerned their names were mentioned in the fardbeyan of Dudh Nath Ram (Ext. 17/1) in which it has been stated that he had proceeded alongwith these two persons and Hawaldar Tulsi Ram. In this connection a reference may be made to the statement of three P.Ws. who are non-else than the police personnel posted at the relevant time in the Barachatti police station. They are P.Ws. 7, 8 and 9. They have also stated that the officer incharge Dudh Nath Ram had proceeded alongwith the two constables and a Hawaldar. Therefore, it is clear that these two appellants were members of the group involved in the commission of this offence. However, so far as the case of Jaikaran Yadav is concerned his name was not mentioned in the context and instead of name of one Hawaldar Tulsi Ram was mentioned and accordingly in the first information report in this case (Ext.25) the name of Tulsi Ram was mentioned and that of Jaikaran Yadav was omitted. It appears that it was because of the fact that Tulsi Ram was Hawaldar of Armeons constabulary of the P.S., whereas Jaykaran Yadav happen to be a Hawaldar of the constable who were unarmed. But in this view of the matter, it is clear from the fardbeyan (Ext. 17/1) as also from the evidence on record including the evidence of three police personnel, i.e. P.Ws. 7, 8 and 9 that it was Jaykaran Yadav who had come and stated before the officer incharge and other sitting in the premises of the P.S. that the culprits firing shots from a Maruti Van and on the basis of this information the police party proceeded towards the P.O. Therefore, it appears that in course of investigation the name of Tulsi Ram was dropped as it transpired that it was Jaykaran Yadav who had joined the party; rather than Tulsi Ram Hawaldar and accordingly charge-sheet was not submitted against Tulsi Ram while it was submitted against Jaikaran Yadav who had been tried and convicted. So far as the P.W. 8 is concerned he has very clearly stated that when Jaykaran Yadav uttered that the criminals were moving in a Maruti Van opening firings the officer incharge and other proceeded towards the P.O. alongwith this Jay Karan Yadav. Therefore, the participation of Jaykaran Yadav in the commission of the offence cannot be ruled out.

42. From the discussion made above it is thus clear that all the six appellants in this case have participated in the commission of this ghastly and gruesome murder which was committed most indestandently manner which was likely to shake the confidence of people in the law and order machinery of the State. Therefore, there does not appear to be any doubt that these appellants have been rightly convicted by the Trial Court.

43. It was contended on behalf of the appellants that they do not deserve the death sentence in the case and it has been stated that it appears that the police party had moved in good faith on the information of Jaykaran Yadav that some criminals were moving in a Maruti Van and were making firings and so it was natural that the officer incharge of the police station concerned thought his duty to go and stop it or apprehend the criminals they were likely to pose in danger to the law-abiding citizen or to the society. It has been further contended that if any such act any excess has been made it cannot be treated as deliberate act of violence and they deserve to be spared from capital punishment. This contention however, does not appear to be convincing. Had it been a case in which there was encounter between the victims and the police party and the victims died as a result of police firing, the matter would have been altogether different. But in this case from the circumstances discussed above, it becomes clear that neither the persons who were travelling in the Maruti Van were criminals having any criminal record nor they carried any weapon as alleged by the police officers and there was also no firing from the side of the occupants of the ill-fated Maruti Van. The vehicle in which the victims were travelling had developed some mechanical trouble and it was causing a sound of phat phat which was taken to be a sound of firing by Hawaldar Jaykaran Yadav and that resulted in the tragic event. So far as the appellant Dudh Nath Ram is concerned he was the senior most officer of the group and being a senior most police officer he was also expected to work with certain amount of care and caution and should not have acted in desperate manner as he did in the case. Leading the police party in attack on defenseless persons sitting in a vehicle which was stopped on account of blocked of the road is such an act which can have no justification of any kind. The entire action of Dudh Nath Ram shows his recklessness and desperate behaviour. Such persons does not deserve any consideration in the matter of punishment, rather he deserve exemplary punishment of the extremist kind.

44. It has also been submitted on behalf of the appellant Victor Fadeless that he was at that time not attached with the Barachatti P.S. and even if he was present there and he accompanied other police officials, he cannot be said to he participants in the commission of the present occurrence and he deserves lenient punishment. But again considering the circumstances and the situation that this police officer who was earlier posted there and who was transferred to another P.S. far away and that he was present in the P.S. and he participated in the fake encounter with a revolver and used the same indicates that everything was done in a planned and calculated manner and such persons do not deserve any consideration.

45. So far as the case of the appellant Brijlala Pd. Sinha @ Braj Lala Prasad Sinha is concerned he was also instrumental in perpetrating the crime of killing of innocent travellers and thereafter manipulating things with a view to hide and suppress the crime. He was the man who took a jeep kept in the police station to the place of occurrence and after the three victims were killed, he is said to have brought the dead bodies to the police station in that jeep. He is the person who is also said to have taken the dead bodies to the hospital for getting the postmortem done before people could know, the realities. He was one of the Sub-inspector posted in the Police Station Barachatti at the relevant time and he also hold a revolver which was used in course of the occurrence as established from the evidence discussed above. So his role in the case cannot be lost sight of while deciding the quantum of punishment. As he was one of the main actors in the Gory drama, he also deserves the severest punishment for his unpardonable crime. His role in the entire episode was not a minor role. No leniency can be shown to such accused in a crime of this kind. It appears from the evidence that he was check in jot with his officer in charge, Dudh Nath Ram in collecting illegal money from the passers by from the G.T Road under the jurisdiction of Barachatti P.S. So his participation in the crime cannot be of passive assistance; rather he played active role in the commission of the heart-rending triple murder of innocent helpless persons in cold and calculated manner. His enthusiastics participation is motivated by personnel gain of getting monetary benefit by robbing the valuables of the victims and also by getting cash reward.

46. So far as the constable Dinesh Singh and Deo Narayan as also Hawaldar Jaykaran Yadav are concerned, it has been contended that they were lowly paid police personnel and they had to obey the senior police officers and if they acted and obeyed their seniors, they do not appear to have committed such offence for which they deserve capital punishment. In this connection it can be said that if such order of the senior officer is illegal and wrong, the subordinate is not supposed to follow it and if they follow it they make themselves responsible for the act done, which has been done in this case. So far as the Hawaldar Jaykaran Yadav is concerned, he appears to have been the root of the mischief because on his information the police party decided to chase the Maruti Van in which the victims were travelling. But it has been contended that at the time when he gave this information to the officer incharge Dudh Nath Ram, he was not aware that he was giving this informatory under some wrong impression, because he did not know the reality and the truth. It is true that there is nothing on the record to show that the act of Jaykaran Yadav was deliberate and intended to commit any mischief leading to the tragic events.

47. Some decisions have been cited by the earned Counsel for the appellants on the point of sentence. One of these decisions is in the case of Brij Mohan and Ors. v. State of Rajasthan : 1994CriLJ922 . In this case their Lordships had converted death sentence into sentence of life imprisonment on the principle that life sentence is a rule and death sentence is exception. It was further held by their Lordships 'A real and abiding concern for the dignity of human life postulates resistance to taking a life through laws instrumentality. That ought not to be done, save in the rarest of rare cases when the alternative option is unquestionably for closed.' There is no dispute about this fact that the rule is that death sentence should be awarded but only in rarest of rare cases. There are several decisions on this point and in all these cases emphasis has been laid on this point that if it is not a case of extreme brutality and the nature of the case is not such that may have bearing on the sentiments of the general people, the death sentences should not be awarded. However, the present case must-be viewed from special angle. It has been observed earlier that the very concept of police force is to protect the law abiding citizens from the anti-social elements and if such a force itself starts indulging in killings like this, every citizen will start feeling unsafe and there will be a fear psychosis which is a most unfortunate situation. It has to be kept in mind that the three persons who were killed had nothing to do with crime. They were law-abiding citizens with clean records and they were innocently moving without fear of the calamity which was going to fall. Deceased Rajesh Dhawan had telephoned his wife on 4th December, 1993 that he was leaving Varanasi and was expected to arrive at Ranchi on 5th December. The three persons were moving in a vehicle. They spent the whole night of 4th December, 1993 in journey but no harm was caused to them by anti-social elements. When the dawn fell, they must have been feeling safe little knowing that they are going to be killed in this cruel manner. They had some trouble in the vehicle and they wanted to get rid of it, but could not succeed and, ultimately, they had to stop the vehicle BR-14-B 7407 at the P.O. as the road was blocked ahead. At that stage the police party arrived and located the Maruti Van in which the three victims were travelling. Two of the occupants were dragged out of the vehicle and shot at on the road and the poor driver was shot at while sitting on the stearing. Thus, the whole drama ended. This shows the nature and manner of the attackers while killing innocent persons and such incident caused deep anguish in the mind of general public. Therefore, imposition of heaviest punishment in this case appears to be necessary to restore public confidence in the majesty of justice.

48. The decision cited above given an indication as to how the sentence of death should be awarded. It appears that in the case of Bachan Singh v. State of Punjab, reported in : 1980CriLJ636 , it was observed that the Court should consider the mitigating as well as aggravating factors while deciding the point of sentence in the case of capital punishment. It has been observed that the Court has to consider not only circumstance of the crime but the circumstance of the offender also while imposing penalty. The view taken in Bachan Singh's case (supra) was reiterated by the Supreme Court in the case of Machhi Singh and Ors. v. State of Punjab : 1983CriLJ1457 . In the said case it was held that the Court, while awarding extreme penalty has to consider the motive, manner of commission of murder, anti-social or socially abhorrent nature of crime, the magnitude of crime, personality of victim of murder, number of murders and other relevant considerations. It was further held therein that in order to apply these guidelines two questions may be asked and answered. The questions are: (a) Is there something uncommon about the crime which renders sentences for imprisonment of life inadequate and calls for a death sentence; (b) Are the circumstances of the crime such that there is no alternative but to impose death sentences even after according maximum weightage to the mitigating circumstance which speak in favour of the offender.

49. Therefore, it is clear that if the Court finds that the circumstances are such that the extreme penalty is the only appropriate remedy, then the Court should award the said sentence.

50. Recently the Supreme Court has made certain pertinent observations as guidelines for considering the awarding of capital punishment. In the case of Dhananjay Chaterjee @ Dharma v. State of West Bengal : [1994]1SCR37 , their Lordships have observed like this:

In recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the Courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of the crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislations, judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.

In our opinion, the measure of punishment in a given case must depend upon the atrocity of the criminal the conduct of the criminal and the defenseless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminals. Justice demands that Court should impose punishment befitting the crime. The Courts must not only keep in view the rights of criminal but also the rights of the victims of crime and the society at large while considering imposition of appropriate punishment.

51. In the circumstance discussed above and after taking into consideration all the factors including mitigating circumstance, I find that so far as the three appellants, namely, Dudh Nath Ram, Victor Fedeles and Brijlala Pd. are concerned, the sentence of death imposed against them does not require any interference. However, so far as the other three appellants, namely, Dinesh Singh, Deo Narayan Ram and Jaikaran Yadav are concerned, since they appeared to be subordinate police men and were acting under the order and direction of theirs superiors, howsoever illegal the order might have been, they could not have thought of disobeying it being members of a disciplined force. So the sentence of death awarded to them is fit to be commuted to life imprisonment.

52. The convictions passed by the Trial Court are thus maintained and upheld, but the sentence of death against the three appellants, namely, Dinesh Singh appellant No. 2 in Cri. Appeal No. 422 of 1996; Deonarain Ram, appellant of Cri. Appeal No. 439 of 1996 and Jai Karan Yadav of Cri. Appeal No. 488 of 1996 is commuted to life imprisonment for offence under Section 302/34, IPC. Accordingly the Cri. Appeals 422 of 1996, 439 of 1996 and 488 of 1996 are dismissed with modification to the extent suggested above.

53. So far as the conviction and sentence against the (appellants Brij Lala Prasad Sinha appellant No. 1 of Cri. Appeal 422/96, Dudh Nath Ram Appellant of Cri. Appeal No.459 of 1996), and Victor Fideles appellant of Cri. Appeal No. 495/96 are concerned, the same are upheld and there is no question of any interference.

54. Accordingly, all the five appeals i.e. Cri. Appeals No. 422/96, 439/96, 459/96, 488/96 and 495/96 are dismissed. The reference is also accepted only in part of this effect that the death sentences of appellants Brijlala Pd. Sinha @ Brajlala Pd. Sinha, Dudh Nath Ram and Victor Fideles are confirmed and the death sentences of the three other appellants, i.e. Dinesh Singh, Deonarain Rama and Jaikaran Yadav are commuted to life imprisonments. Thus the judgment and order of the Trial Court in Sessions Trial No. 8/96/307/96 are upheld with partial modification in the sentences as indicated abovf.

as per Nagendra Rai J.

agree with the judgment and order of conviction and sentence passed by my learned brother. However, would like to add the following:

56. The prosecution case and the materials, which have been brought on the record in support of the case, have already been dealt in the judgment by my learned brother and as such 1 will not overburden this judgment by reproducing the same. However, I am giving a brief account of the prosecution case.

57. According to the prosecution case, deceased Rajesh Dhawan was a proprietor of a shop run in the name and style of 'Famina' in the Ranchi town. On 3-12-1993, he had gone to Varanasi on a Maruti Van bearing registration No. BR 14-B-7407 alongwith two other deceased, namely, Khedan Yadav, his Personal Attendant and the driver of the Maruti Van, namely, Vinay Kumar Mishra. After making purchases of Sarees at Varanasi, they were returning to Ranchi in the morning of 5.12.1993. While they were going on G.T Road and were passing through Barachatti P.S., one of the appellants, Jaikaran Yadav, is alleged to have told the other appellants that a Maruti Van was going towards east of G.T. Road and occupants thereof were firing. Thereafter, the appellants, who were all Police Officers of Barachatti Police Station, are alleged to have followed the Maruti Van. They found the vehicle in the standing position at 71 mile post on the G.T Road. They are alleged to have gone there, demanded money from the occupants of the vehicle and on refusal, they are alleged to have fired indiscriminately killing three persons on the spot and also removed the valuable articles and created documents in the shape of FIR, seizure list and others to justify their killing by introducing a story that the occupants of the vehicle were indiscriminately firing and the Police with a view to protect their lives indulged in firing resulting into their death. It is to be mentioned that in the Court, the appellants have not stated that they resorted to firing to save themselves when the occupants of the Maruti Van indulged in indiscriminate firing upon the Police Party.

58. In this case, when a hue and cry was raised by the people that the Police had killed three innocent persons, the investigation of the case was handed over to the CID and, thereafter, a large number of persons, who were present at the time of occurrence at 71 mile post, were examined and they stated that the Maruti Van was in standing position due to road jam and the police party, consisting of the appellants, came there, demanded money from the occupants and on refusal indulged in indiscriminate firing killing them and, thereafter, they took the Maruti Van and the deal bodies to the Barachatti Police Station. Unfortunately, in this case, all the eye-witnesses have gone back from their statements made before the Police and have been declared hostile by the prosecution. The reasons is obvious. The appellants are the Police personnel and most of the witnesses, who were examined, were either truck-drivers, mechanics, tea-stall owners and betel shop owners and they, it appears, due to fear or pressure adopted by the appellants, have turned hostile. The evidence, which now remains against the appellant, is of circumstantial nature.

59. In a case of circumstantial evidence, the Court has to adopt a very cautious approach so as to see that each of the circumstances alleged against the accused are proved and, thereafter, these proved circumstances form a complete chain, which is consistent with the hypothesis of the guilt of the accused. As held by the Apex Court in the case of Sharad Birchand Sarda v. State of Maharashtra reported in : 1984CriLJ1738 , the prosecution has to fulfill the following conditions before a case based on circumstantial evidence can be said to have been proved, established:

(i) The circumstances from which the conclusion of the guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not may be' established.

(ii) The fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(iii) The circumstances should be of a conclusive nature and tendency.

(iv) They should exclude even possible hypothesis except the one to be proved, and

(v) There must be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

It was further held therein that the case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.

60. In the light of the law laid down by the Apex Court, now the facts of this case have to be considered to find out as to whether the conditions required by law to prove a case based on circumstantial evidence have been proved in this case or not.

61. Deceased Rajesh Dhawan was running a shop known as 'Famina' in the Ranchi town, on 3.12.1993, he had gone to Varanasi to purchase sare.es in the company of other two deceased persons. He had taken Rs. 63,000/-. He was bearing three rings, chain the Titan watch, which is evidence from the evidence of the wife of the deceased Rita Dhawan (P.W. 65) as well as the brother of the deceased Pawan Dhawan (P.W. 25). At Varanasi, he had purchased clothes on 4.12.1993, which is evident from the evidence of P.W. 23 Niraj Bedi, P.W. 41 Arvind Kumar Agrawal, P.W. 42 Ganesh Prasad, P.W. 44 Rajendra Kumar Tandon, P.W. 45 Raj Kumar Khanna and P.W. 48 Kedar Krishna Khanna. From the evidence of the shop-keepers of Varanasi, it is clear that the most of the' purchases of clothes were made on credit basis and out of Rs. 65,000/-, deceased Rajesh Dhawan had paid Rs. 32,000/- to P.W. 23 Niraj Bedi and Rs. 10,602/- to P.W. 48 Kedar Krishna Khanna towards their past dues. On 4-12-1995, he had a talk with his wife Rita Dhawan (P.W. 65) at Ranchi on telephone and during course of talk, he told his wife that he was in possession of rupees fifteen to twenty thousand. The evidence of the City Superintendent of Police, Ranchi Alok Raj (P.W. 39) is that the deceased was a man of good character and a respectable man in the town of Ranchi. P.W. 58 Ramdhani Choudhary, Inspector of Sherghati Police Station, who was the Investigating Officer for a short period, of the case in question, had made an enquiry with regard to the antecedent of all the three deceased, namely, Rajesh Dhawan, Khedan Yadav and Vinay Kumar Mishra, and found that there was no criminal antecedent against any of the deceased. The three deceased on a Maruti Van in question left Varanasi in the evening of 4.12.1993. In the morning of 5.12.1993 while they were proceeding to Ranchi, in the way the vehicle is alleged to have developed certain trouble and there was a sound of Phat Phat misfiring. The evidence on the record show that when the vehicle reached at a place near village Bhadeya which is a place west of Barachatti P.S., the driver of the Maruti Van contacted the owner of a garage, namely, Zia-Ullah Khan and requested him to repair the same. P.W. 26 told that he could not repair the Maruti Van and so he should get it repaired elsewhere. He noticed that there were three persons in the vehicle one was sitting on the rear seat and two were sitting on the front seat.

62. P.W. 27 Taufir Ali Khan, who is the Mukhiya of Bhagmati Panchayat, has got his house on the G.T. Road near Bhadeya Petrol Pump. He, alongwith P.W. 28 Nasimuddin Khan, Muzaffar Khan P.W. 29 and Jubair Khan P.W. 32, was sitting there on 5.12.1993 in the morning. The Maruti Van in question came there from western side. The vehicle stopped for repairing. Three persons were in the vehicle. The driver and the owner got down from the vehicle and asked P.W. 27 to get the vehicle repaired by a driver. P.W. 27 and other witnesses told them that they had an ambassador car and as such the Maruti Van could not be repaired and, thereafter the Maruti Van proceeded towards east. To the same effect is the evidence of P.W. 28, P.W. 29 and P.W. 32. These witnesses have also stated that after one and half hour, they heard hulla that three persons have been murdered ahead of Barachatti by the police. P.Ws. 27, 28, 29 and 32 wont to the Barachatti P.S. at 10 O'clock in the morning and they identified that the same Maruti Van, which they had seen earlier, was at the Police Station. The glass of t z vehicle was broken and there was a mark of firing on the dicky of the vehicle. P.W. 29 Muzaffar Khan identified one of the deceased as a person, who was in the said vehicle and P.W. 32 Ojair Ahmad Khan identified that the three deceased in the Maruti Van were the same persons, who were seen earlier. These witnesses had no animosity against the appellants though certain suggestions were made but they have denied the same. Thus, from the evidence of the aforesaid witnesses, it is evident that the three deceased were seen in the Maruti Van at Bhadeya Petrol Pump, which is west to Barachatti. The vehicle was having some defects as noticed above and after sometime, they found the said Maruti Van and the dead bodies of the aforesaid three persons at Barachatti Police Station.

63. P.W. 7 Shabir Ahmad Khan was posted as a literate constable at Barachatti Police Station on the dale of the occurrence. He was on duty from 6.30 O'clock in the morning. At that time, appellant Dudh Nath Ram and others were present at the police Station. Appellant Jaikaran Yadav came there and said that the criminals were moving ahead firing shots. Appellants Dudh Nath Ram was the Officer In-charge of Barachatti P.S. and appellant Victor Fedeles was the Officer In-Charge of the said Police Station prior to appellant Dudh Nath Ram. He was transferred to Gaya, but was still residing with his family members at Barachatti P.S. The Officer Incharge, Victor Saheb, two constables and a Havaldar left the place on this information. After some time, appellant Brijlala Prasad Sinha also went towards that direction. He stated that he did not remember the names of those constables and Havaldar but they were posted at the Police Station. The Officer in-charge and other went by Maruti Van kept at the Police Station and appellant Brijlala Prasad Sinha went on a private jeep, which used to remain at the police station and was utilised for patrolling. They returned back to the Police Station with three dead bodies with them. They also brought a Maruti Van by pulling it (tochan). The glass of the Maruti Van was broken and there was blood-stain on it. All the three dead bodies had received bullet injuries. Some deadbody was dressed in full pant and some was dressed in Kurta Pajama. Rs. 2,600/- was taken from the Kurta of the dead body, who was dressed in Kurta pajama. Attachee case, cloth etc. were taken out from the Maruti Van, The money recovered as aforementioned was handed over to P.W. 58 Ramdhani Choudhary, Inspector of Police, who in his turn gave the same to appellant Brijlala Babu, who was Incharge of Malkhana at that time. Other articles, such as, clothes, were also taken out from the Maruti Van. There was also piece of bone and mark of blood inside the Maruti Van.

64. P.W. 8 Dhani Ram Garai is another constable posted at Barachatti Police Station at that time and he has also stated that appellant Jaikaran Yadav stated that the dacoits were going while firing shots. Staff of the Police Station went with appellant Jaikaran Yadav by a Maruti Van. After half an hour, appellant Brijlala Babu also went there by a jeep. Appellants Victor Saheb, Dudh Nath Ram, Jaikaran Yadav and Arms Guard Vijay Singh had left by Maruti Van. They returned back after half an hour, alongwith one Maruti Van in damaged condition and three dead bodies. Money was taken out from the cloth of the deceased. He had identified all the appellants in the dock and stated that they had gone to chase after appellant Jaikaran Yadav informed that the dacoits were going ahead while firing shots. P.W. 9 Ram Balak Singh was also a constable posted at Barachatti Police Station. P.W. 8 has not been cross-examined at all by the defence and P.W. 7, though cross-examined, but nothing has been elicited in this cross-examination to discredit that the appellants had gone on the information given by appellant Jaikaran Yadav that the dacoits were running while firing shots and, thereafter, they came with the dead bodies and a Maruti Van. Thus, from the evidence of the witnesses, it is clear that the appellants had chased the Maruti Van in question and after one hour, they returned with three dead bodies and a damaged Maruti Van.

65. P.W. 38 Ashok Kumar Sinha, at the relevant time, was posted as a Sergeant Major at Gaya. His duty was to see the man-management course, look after the government property and deputation of force etc. On 25.11.1993, he had supplied one revolver bearing No. V-704031 and 30 rounds of bullets to appellant Dudh Nath Ram, who was Sub-inspector of Police at Barachatti P.S., one revolver bearing No. V-324100 and thirty rounds of bullets to appellant Brijlala Prasad Sinha, Sub-Inspector on 22.2.1992 and one revolver bearing No. 161-93267 and thirty rounds of ammunitions to appellant Victor Fedeles, who was Sub-Inspector, on 19.11.1992. Exts. 1.8 series are the extract of the relevant register showing the receipts of the aforesaid arms and ammunitions by these three appellants. He had also supplied rifles of 303 to constable appellant Dinesh Singh and one Krishna Mohan. Later on, its charge was given to Havildar Tulsi Ram and Deo Narayan Ram. During the course of investigation of the case, appellant Brijlala Pd. Sinha handed over only 16 rounds of live cartridges and five empty cartridges together with revolver. He did not hand over nine cartridges of 38 bore, which were in his possession. Similarly, appellant Dudh Nath Ram returned only 20 rounds of live cartridges together with the revolver on 29.12.1993. Ten rounds of cartridges were not returned by him. Appellant Victor Fedeles returned only a revolver and 23 rounds of live cart-ridges on 30.12.1993 he did not return seven rounds of cartridges. The Government rifles, which were also alleged to have been used by the constables and kept at the Police Station, were also sent to this witness for examination. Similarly, the three revolvers and the cartridges, which were returned by the appellants were also sent to him for examination. He examined them and submitted a report. The report submitted with regard to rifles connected with the case is Ext. 19 and the rifles were found in working condition. Similarly, the report submitted with regard to the three revolvers and cartridges sent to him for examination is Ext. 19/1 and he found the same to be in working condition. He has admitted in cross-examination that he is a ballistic expert and not a forensic expert. He examined the fire-arms externally and found them in working condition.

66. The post-mortem examination over the dead bodies was held by P.W. 1 Dr. Kapildeo Prasad and the injuries found over the dead bodies have been given in detail in paragraphs 27 and 28 of the judgment of my learned brother. The Doctor found that wounds of entry were irregular and blackened. During the course of post-mortem examination, from the persons of one of the deceased, a metallic broken piece of bullet was found embedded in the tissues of the skin and the same was recovered, sealed and handed over to the constable. The said dead body was later on found to be identified as the dead body of Khedan Yadav. In cross-examination, he has admitted that if firing is made from a close range, then there will be a blackening of the margin due to gun-powder. Blackening of the margin can occur if fire-arm is used within a distance of two to three metres. He stated that he has not seen any case, in which blackening of margin has occurred even a fire-arm has been used from a distance of 25 feet to 30 feet. The marks of firing were also found on the clothes of the deceased, cartoons, wherein series were kept and the same were seized during investigation. The swabs from the hole of the Maruti Van were also taken. Ext. 16/6 is the report of the Director, Forensic Science Laboratory, Patna, which shows that three 303 calibre l.O.F. Regular Rifles and three pistols surrendered by the appellants, fired cartridges cases fired bullets and broken splinters of bullets marked as Ext. 'F' found from the dead body of deceased Khedan Yadav, were sent to him for examination. Apart from them, the clothes in which there were holes by firing as well as the swabs taken from the hole of Maruti Van were also sent for examination.

67. The result of the examination shows that three rifles were found in working order. On chemical analysis, firearm discharge residues could not be detected in the barrels of the rifles due to oiling and cleaning. Out of 15 empty cartridges, which were seized and sent to the said Expert for examination, he found that three cartridges (Exts. D 7 to D 10) were found to have been fired from a rifle bearing No. 35839, three cartridges (Exts D 11 to 13) from Rifle bearing No. 0511 and two cartridges (Exts. D 14 to D 15) from Rifle No. 28896. Other six empty cartridges were fired from some other Rifles. Regarding the broken splinter of bullet, which was marked as Ext. 'F' the opinion is that as a result of microscopic comparison, Ext. 'F has been fired from the barrel of 303 rifle bearing No. 28896 marked as Annexure-C. The evidence on the record shows that this rifle is one of the rifles, which was allotted to one of the constable-appellants. Regarding revolver, it is also stated in the said report that they are in working order, but the sign of firing could, not he detected as the barrels and chambers were carefully cleaned after firing. On microscopic comparison, he found that the five empty cartridges, which were returned by appellant Brijlala Prasad, were fired from his pistol. He has also opined that hole-marks on the clothes were caused by firing. Regarding holes found on the Maruti Van, he has given dimensions of the holes and opined that 8 rounds of firings were made on the Maruti Van by 303 weapon in downward direction. Thus, from the aforesaid report, it is clear that the firearms were in working order and bullet found embedded on the person of the deceased Khedan Yadav was fired by one of the rifles, which was given to one of the appellants.

68. The clothes of the deceased and the cartoons, in which clothes were kept were also sent to the Forensic Science Laboratory for examination and in regard to the clothes found on the person of the deceased, the report is Ext. 16/2 and with regard to the holes on the cartoons, the report is Ext. 16/3. From a perusal of the aforesaid reports, it appears that these holes were caused by bullets and the firing was made from a powder range, i.e. within four feet distance. The post-mortem report as well as the reports of the Forensic Science Laboratory thus clearly show that the firing was made from a very close range on the person of the deceased as well as on the vehicle and the fire-arms, which were given to the appellants, were used in commission of the crime. As the weapons were oiled and cleaned, no definite opinion about their use was given, but the experts found that they were in working order.

69. Apart from the aforesaid circumstances, the prosecution has relied on two station diary entries-one recorded on 5.12.1993 at 7.35 A.M. by P.W. 7 Sabir Ahmad Khan, which bears the signature of appellant Dudh Nath Ram and the other of the even date, i.e. S.D. Entry No. 82 (Ext. 26/2) as well as on the fardbeyan recorded by appellant Dudh Nath Ram on his own handwriting, which has been marked as Ext. 17/1. The S.D. Entry (Ext. 26/2) shows that appellants Dudh Nath Ram, Brijlala Prasad Sinha, Victor Fedeles, constable Deo Narain Ram and appellant Dinesh Ram returned to the police station after night duty. Appellant Jaikaran Yadav told that some miscreants were running in a Maruti Van and firing shots. Thereafter, all the aforesaid officers, meaning thereby appellant Dudh Nath Ram, Brijlala Prasad Sinha, Victor Fedeles, Jaikaran Yadav, constable-appellant Deo Narain Ram, appellant Dinesh Ram and constable Tulsi Ram proceeded towards that direction. S.D. Entry No. 26/2 shows that the aforesaid persons returned to the Police Station and appellant Dudh Nath Ram drew up a written report on his own statement and registered Barachatti P.S. Case No. 146 of 1993 under Sections 307, 353/34 of the Indian Penal Code and also under Section 25 (B) and (C) and 27 of the Arms Act. The S.D. Entry (Ext. 26/2) further shows that two country-made pistols and cartridges were also recovered, which the Police party had brought. It is also mentioned therein that the Maruti Van in question was also brought to the Police Station, which was damaged and its glass was broken and there were bullet-marks on the vehicle. It was also stated that some bundles and attaches were also recovered from the said vehicle. It also spoke of recovery of some clothes and a bag containing Rs. 467A. It also speaks about the incident that three culprits were murdered in Police encounter. It appears from the evidence of PW 7 who recorded the S.D. entries that they were recorded after two to three days of the occurrence. The S.D, entries were not produced before the Inspector, D.S.P. and others, who had visited the Police Station on the date of the occurrence. It also transpired that there were certain interpolations in the S.D. entries.

70. Be that as it may, it is clear from the aforesaid S.D. entries that all the appellants, including Jaikaran Yadav had chased the Maruti Van in question and returned with the dead bodies and the damaged Maruti Van and the articles kept therein. At this place, I may mention that I am relying upon that portion of the S.D. entries, which shows that the appellant went altogether and came back with the dead bodies and the Maruti Van, At this stage, I may also point out that it was submitted on behalf of the appellant Jaikaran Vadav that he was not named as one of the persons in the aforesaid S.D. Entry, who had accompanied other appellants. Earned Counsel for the appellants was not right in submitting so. S.D. Entry No. 26/2 shows that after appellant Jaikaran Yadav told that the dacoits were going ahead while firing shots, all the Police Officers and constables left towards that direction. Appellant Jaikaran Yadav was an ASI of Police and as such reference of the Officers in the S.D. entry includes his name also and as such it cannot be said that he was not one of the persons, who had gone with other appellants toward 71 mile post. This apart, P.W. 8 says that Jai Karan went alongwith others on Maruti.

71. As stated above, appellant Dudh Nath Ram had recorded a Fardbeyan on this own statement. It was submitted by earned Counsel for the appellants that his FIR was not admissible in evidence on two grounds, firstly that an FIR cannot be used as substantive evidence and secondly even of it is used as it contains a confessional statement of appellant Dudh Nath Ram made before the Police, the same is not admissible in evidence in view of the provision of Section 25 of the Evidence Act.

72. Before considering the aforesaid submissions, firstly I will state, in brief, the statement made by appellant Dudh Nath Ram in the fardbeyan. He has stated therein that he along with S.I. of Police appellant Brijlaia Prasad Sinha, A.S.I. Tulsi Ram, constable-appellants Deo Narain Ram and Dinesh Singh of Armed Forces returned to the Police Station at 6.30 A.M. on 5.12.1993 after night duty. Appellant A.S.I. of Police Jaikarn Yadav came shouting that some miscreants were going towards east on a white colored Maruti Van firing shots in air. Thereafter, he alongwith the aforesaid persons and appellant Victor Fedeles, who was present at the Police Station, started chasing the Maruti Van. Seeing the Police Party, the occupants of the Maruti Van kept on fleeing towards east while firing indiscriminately upon the Police Party. Thereafter, as the traffic was at halt at the G.T. Road due to a truck having turned turtle near 70 mile post and as a result of which, the Maruti Van could not proceed further; The Police party reached near them. The accused persons in the Maruti Van started firing indiscriminately. On taking position in self-defence and after complying with all the rules, the Police party asked them to surrender, but that made no effect on them and they went on firing and, thereafter, under compulsion, appellant Dudh Nath Ram gave order to the officers and the Armed forces to open fire intermittently in self-defence due to which the Police force also started firing shots in return. Thereafter, some criminals of the aforesaid Maruti Van got down and took position under the cover of the stationed truck and some took position in a nearby bush and indulged in firing at the Police party The firing continued for about 20-25 minutes from both sides. As the bring ceased from the criminals side, he asked the Police personnel not to fire. Thereafter, they reached near the Maruti Van and found the Maruti Van bearing registration No. BR-14-B-7407. Nearby the Maruti Van, it was lying a dead body of an unknown criminal and a country made pistol of 3.15 bore was tying on the ground by the side of his right arm, which was loaded with a cartridge of 3.15 bore. He also found one live cartridge and three empty cartridges. In the Maruti Van, a dead body of an unknown criminal was also lying. In the nearby bush, he also found the dead body of another criminal and he also found a country-made pistol lying by his side, in which an empty cartridge of 12 bore was trapped and found for empty cartridges by the side. Rest of the criminals managed to run away. He also stated that he fired ten rounds with service revolver, ASI Victor Fedeles fired 7 rounds, S.I. Brijala Prasad Sinha fired four rounds from their service revolvers, A.S.I. Tulsi Ram fired ten rounds, constable Dinesh Singh fired six rounds and constable Deonarayan Ram fired five rounds with Government rifles. In total, 42 rounds were fired. He prepared seizure list of pistol and cartridges found at the place of occurrence in presence of the witnesses.

73. On the basis of the said Fardbeyan, an FIR is alleged to have been drawn being Barachatti P.S. Case No. 146 of 1993 on the same date at 11.30 hours. Though the Inspector of Police, Sherghati, namely, Ramdhani Choudhary (P.W. 58) had taken charge of the investigation of the case of Barachatti P.S. Case No. 146 of 1993 on the order of the superior officer, as stated above, but this FIR was produced before him on 9.12.1993. It is not disputed that this fardbeyan was written by appellant Dudh Math Ram under his signature on his own statement either on the 5th of Dec, 1993 or on a subsequent date.

74. An FIR is not a substantive evidence. It can be used only to corroborate or contradict the maker or in some cases it is treated as a dying declaration. Sometimes, it is also admissible as evidence to show the conduct of the maker. However, if the FIR has been lodged by a person, who is either an accused or becomes an accused later on and that contains a confessional statement, then it is not admissible, but if the statements made therein are on admissions, then it is admissible in evidence. In this connection, reference may be made to the case of Faddi v. State of M.P. reported in : 1964CriLJ744 , wherein it was held that where the person, who lodged the FIR regarding the occurrence of a murder, is himself subsequently accused of the offence and tried and the report lodged by him, is not a confessional FIR, but is an admission by him of certain facts which have a bearing on the question to be determined by Court, viz. how and by whom the murder was committed or whether the statement of the accused in the Court denying the correctness of certain statements of the prosecution witnesses is correct or not, the FIR is admissible to prove against him, his admissions which are relevant under Section 21. It was further held that the FIR being neither a confession nor a statement made to a Police Officer during the course of investigation, its admissibility is not barred either by Section 25 of the Evidence Act or by Section 162 of the Code of Criminal Procedure.

75. It is well settled that where a confession or an admission is separable, there can be no objection to taking one pan into consideration and rejecting other part, which is false See Nishi Kant Jha v. State of Bihar reported in : 1969CriLJ671 and Kesho Ram Bora v. The State of Assam, reported in : 1978CriLJ1089 .

76. The first question to be considered is as to whether the statement mood by appellant Dudh Nath Ram in the fardbeyan is an admission or a confession? If it is found that it is not a confession but an admission, then it can be relied upon. While relying upon the same, the Court will accept that part of the admission, which is true and finds support from other evidence and reject that part of the admission, which is inherently absurd and improbable.

77. In the case of Palvindar Kaur v. State of Punjab, reported in : 1953CriLJ154 , it was held that a confession must either admit, in terms the offence, or at any rate substantially all the facts should constitute the offence. An admission of a gravely incriminating fact, and even a conclusively incriminating fact is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confessions if the exculpatory statement is of some fact, which is true, would negative the offence alleged to be confessed. A statement, when read as a whole, is of an exculpatory character and in which the prisoner denies his guilt is not a confession and cannot be used in evidence to prove his guilt. Thus, it is clear that before any statement made by the accused can be termed as a confession, it must admit the offence or contains all the ingredients of the offences charged. If the self-exculpatory matter in a confession is of some effect, which if true would negative the offence alleged to be confessed, it cannot amount to a confession.

78. In the present case, in his statement appellant Dudh Nath Ram did not admit that he and other members of the Police personnels had committed the murder of three deceased persons. He had made a self-defending statement justifying the Police action in firing. If this self-defending statement is accepted, then this self-defending statement; as a matter of fact, negatives the charge against the appellants. The whole statement, if read together, cannot be said to be a confession to the guilt or to the fact constituting an ingredient of the offence of murder.

79. Thus, the statements made in the Fardbeyan of appellant Dudh Nath Ram are in the nature of admissions and not confessions. Even assuming that certain statements made in the said fardbeyan; such as they indulged in firing and, thereafter, three persons were found to have been killed, are treated as confessions the other statements are only admissions and not a part of confession. As stated' above, the Court can accept a part of the confession or admission and reject other part if the same is found to be inherently improbable. In this case, some of the statements made by appellant Dudh Nath Ram in the aforesaid Fardbeyan, are false ones as will appear from the discussion made hereinafter and as such these statements have to be rejected. According to the prosecution case, appellant Jaikarn Yadav informed that a Maruti Van was going, from which miscreants were firing. There is a difference between the sound of firing and the sound of phat phat (misfiring) coming out of vehicle. The evidence of the witnesses discussed above clearly show that the Maruti Van in question had developed some defect and that was giving sound of phat phat. It is difficult to believe that they will not make any distinction between a sound of misfiring coming from the Maruti Van or sound of firing coming from fire-arm. It is stated that two fire-arms and empty and unused cartridges were found near the dead bodies of two persons, which were found by the side of the Maruti Van.

80. From the materials on the record, it appears that three seizure list were prepared on 5-12-1993 by appellant Dudh Nath Ram. Ext. 4 is the carbon copy of the seizure list, which was seized by the first Investigating Officer (P.W. 62), Inspector of Police, from the office of the Superintendent of Police, Gaya. There is no mention of any seizure of fire-arm and wine-bottle from near the dead bodies of the deceased in the said seizure list. Ext. 4/10 is the another seizure list, which shores only the seizure of Maruti Van, V.I.P. attachee, cash Rs. 467/-. There is also no mention of seizure of any fire-arm and cartridges from near the dead bodies of the deceased. However, seizure lists (Ext.7 and 7/1) prepared on the same date shows recovery of country-made pistols and cartridges from the place of occurrence. Exts. 7 series are alleged to have been prepared by appellant Dudh Nath Ram with a view to justify his false assertion of recovery of fire-arms.

81. P.W. 58 Ramdhani Choudhary, Inspector of Police, Sherghati and P.W. 59, Section Hembram reached the Police Station, Barachatti, at 10 o'clock on 5.12.1993. They found the dead bodies on a jeep at the Police Station. Search of the dead bodies was made in presence of the Superintendent of Police. Other articles were recovered, the details of which were given in their statement, but there is no mention that any pistol was either produced or recovered. The D.S.P. (P.W. 59) has clearly stated that he had not seen pistol or cartridges in possession of the deceased persons at the Police Station. He has also stated that the pistols and cartridges were shown to him after four-five days of the occurrence. P.W. 58 I.O. has also stated that on 9.12.1993 i.e. after four days of the occurrence, the nephew of appellant Dudh Nath Ram, namely, Shera, showed him the revolvers alleged to have been recovered from the possession of the deceased persons. P.Ws. 7 and 8, namely, Sabir Ahmad Khan and Dhani Ram Garai, respectively, who are constables and were present at the Police Station, also did not say that when the accused appellants came alongwith the dead bodies and the Maruti Van, they had seen any country-made pistol being brought by the Police Personnel. P.Ws. 27, 28 and 29, who were also alleged to be present at the time when the dead bodies were brought at the Police Station, also did not see that any pistol was brought to the Police Station, alleged to have been recovered from the possession of the deceased persons.

82. Thus, the story of recovery of two pistols used and unused cartridges from near the dead bodies of the two deceased is not correct. There is another reason to come to the aforesaid conclusion. The alleged country-made pistols and the cartridges were sent to the Ballistic Expert (P.W. 38) for examination. He had examined the same and his report is Ext. 19/2. The report shows that out of the two country-made pistols, one was not in a working condition because its cocking demise, adjustment of barrel, alignment of firing PIN including its thickness and tension of homer spring were found incorrect and not suitable. The fire-arms cartridges were also sent to the Forensic Science Laboratory and the same were examined by P.W. 34 Umesh Kumar Sinha, Senior Scientific Officer. His report is Ext. 16. He also found that one of the country-made pistols were defective and it was not possible to fire from it. He also found that some of the empty cartridges, which were alleged to have been' recovered from the place of occurrence, were not fired from the country-made pistols, which are alleged to have been seized.

83. Thus, it is clear that no country made fire-arm and cartridges were found near the dead bodies of the deceased and that the two fire-arms (country made pistols) and cartridges were procured by appellant Dudh Nath Ram and produced for the first time on 9.12.1993 to create an evidence in his favour. As such, the statement in the fardbeyan about recovery of the country-made pistols and cartridges is inherently improbable and false statement.

84. The statement in the fardbeyan that some of the miscreants came out of the Maruti Van and took positions at different places, including in the bush, is also palpably a false statement made by the appellant Dudh Nath Ram to save his own skin. P.W. 58 Ramdhani Choudhary, Inspector of Police, Sherghati, visited the place of occurrence on 6.12.1993, which is about 250 metres east of 71 mile post on G.I. Road. The place of occurrence is a medaled road. He did not find any blood-stain in the bush nor did he find any trampling mark on bush. He also did not find blood-stain at the place where the Maruti Van was stated to be stationed. He found fresh coal-tar spread over same. Though attempt was made to put coal-tar to obliterate the objective findings, the absence of the blood in the bush where the dead body of one of the deceased was alleged to have been found according to the statement in the fardbeyan of appellant Dudh Nath Ram is a proof to the fact that the story of firing by the deceased persons from different places outside the Maruti Van is an incorrect statement made in the fardbeyan.

85. Other statement in the fardbeyan that there was an indiscriminate firing by the occupants of the Maruti Van and in self-defence, the Police Party also started firing is not believable for the reason that it is not the defence case that the police party indulged in firing from a very close range. In a case of encounter, the police party will fire from a distant place. The reports of the Experts of the Forensic Science Laboratory and the evidence of P.W. 1 Dr. Kapildeo Prasad. show that the injuries caused on the persons of the deceased were from a very close range. The aforesaid evidence shows that the firing was made on the persons of the deceased from a very close range and this also belies the assertion made in the fardbeyan that the occupants of the Maruti Van had indulged in firing.

86. Thus, the aforesaid statements made in the fardbeyan, as discussed above, are inherently improbable and have to be discarded as they are falsified by the circumstances available on the record. Other statements in the fardbeyan are consistent with the circumstantial evidence on the record and the same have to be accepted.

87. It was submitted that as the fardbeyan was made by appellant Dudh Nath Ram, the same is admissible against him only and cannot be used against other appellants.

88. Even if the fardbeyan of appellant Dudh Nath Ram is not taken into consideration, the other materials as discussed above prove beyond doubt the participation of other appellants in the crime. The statement made by appellant Dudh Nath Ram in the fardbeyan is in the nature of admission and that can be used also against other appellants. There is no legal bar in relying upon the same. In this connection reference may be made to the Sarkar on Evidence, 1993 edition, wherein while discussing the scope of Section 21 of the Evidence Act at page 346, it has been said as follows:

The section does not say that the admissions may not be used against persons other than the maker, and is evidently not intended to be exhaustive. Statements, which are admissions within Sections 19 and 20 are relevant and may clearly be proved against persons other than the makers of them, and similarly it appears that admissions by persons who have a proprietary interest in a certain properly may be used against other persons interested in the same property although the latter are not representatives in interest of the persons by whom the admissions were made.

Thus, I am in full agreement with the view expressed by my learned brother that the circumstances clearly prove the guilt of the appellants. I am conscious of the fact that it is the duty of the prosecution to prove the case and the prosecution cannot take the benefit of the weakness of the defence case. As stated above, this is a peculiar case. In a case based on circumstantial evidence, a false plea or false defence can be used as additional aid to lend assurance to other materials on the record. In this case, at the initial stage, the case of the appellants was that they fired on the deceased in self-defence to protect their lives from the firing made by the deceased persons. In the Court, in course of examination under Section 313 of the Cr.P.C., they have given a go-by to their case and have denied their participation in the crime. The defence put by them even at the earliest stage is a false plea as is evident from the discussion of the evidence on the record. It is an admitted fact that they chased the Maruti Van. It is also an admitted fact that they came back with the Maruti Van and three dead bodies. So, it was their duty to explain as to how three persons died. They came out with an explanation, which, on a detailed discussion, has been found to be a false defence.

89. Learned Counsel for the appellant laid much stress on the point that the materials on the record don't show the motive for committing such a crime.

90. The prosecution allegation is that the appellants firstly demanded money from the deceased and when the deceased persons refused, the murders were committed to loot the property. As stated above, direct evidence is lacking, so there is no evidence on the record to show that the appellants demanded the money, but the evidence on the record clearly shows that after the occurrence, the accused-appellants had removed valuable articles and cash from the persons of the deceased. Deceased Rajesh Dhawan was said to be having about Rs. 20,000/- in his possession, who was also hearing a golden chain and golden ring, but the seizure list prepared by appellant Dudh Nath Ram show only recovery of Rs. 467/- and other materials and it does not show the recovery of golden ring and golden chain. The evidence of the police officers shows that the golden chain and ring were on the person of deceased Rajesh Dhawan but the same were not shown to have been recovered from the person of the said deceased. Thus, the evidence on the record shows that there was a motive on the part of the appellants to commit the crime. Though the motive has an important role to play in the case based on circumstantial evidence, but even if the motive is not proved in a case like this and the factum of murder is proved by reliable and clinching evidence, the case cannot be disbelieved. However, as stated above the motive has been proved by the prosecution.

91. The evidence of bad character of an accused is not relevant and not admissible in evidence, but the same is admissible to prove the intention knowledge, good faith and conduct of the accused under Sections 14 and 15 of the Evader 3 Act. The evidence of P.W. 58 Ram Dhani Choudhry, Inspector of Police, shows that prior to the occurrence he had received a complaint that appellants Dudh Nath Ram and Brijlala Prasad Sinha used to forcibly collect money from the truck-drivers on the G.T. Road, due to which serious situation used to be created and it was feared that any unpleasant incident might occur. He made a Sanha entry to that effect on 29.11.1993 and asked appellant Dudh Nath Ram to keep himself under control. The said Sanha has been proved as Ext. 26. He also sent a letter to the Superintendent of Police, Gaya, with regard to the said matter and a carbon copy of the said letter has been proved as Ext. 2/3. The evidence on the record further shows that appellant Dudh Nath Ram is involved in a large number of cases and he was caught red-handed while accepting bribe. There were six departmental, proceedings against him and in two, he was awarded punishments. These facts have been stated not with the purpose to show the bad character of accused-appellant Dudh Nath Ram, but only for the purpose of its relevancy under Sections 14 and 15 of the Evidence Act.

92. Before concluding I may say that the present case is an example of adage 'who will guard the guards. The protector of the society had become the destructor. The custodian of law and order had become murderers as a result of which three innocent persons lost their lives for no fault of theirs. No word is enough to condemn the misdeeds of the appellants. If the Police personnel will behave in this way, then the people's confidence will be shattered and the society will remain in constant peril.