Criminal Appeal Nos 5 17 523 of 1978
From the Judgment and Order dated 1721977 of the Allahabad High Court in Crl
A Nos
1143 Referred No 31 of 1976 connected with Crl
A Nos
1132 1133 1156 1158 of 1976  Govt
Appeal No 2129 of 1976
Prithvi Raj Dalveer Bhandari and Prashant Choudhary for the Appellant
RL Kohli HK Pun and CP Lal NP for the Respondents
Yogeshwar Prasad Ms Rachna Gupta and PK Bajaj for the Complainant
The Judgment of the Court was delivered by section RATNAVEL PANDIAN J
It is a very tragic and pathetic case tragic in the sense that 13 persons have been massa cred in a gruesome and horrendous manner and pathetic in the sense that the culprits burnt the victims of this barbaric act by covering with sugarcane leaves and sprinkling with diesel oil
At the same time we are deeply distressed and pained to note that three of the accused persons ie A 1 A 2 and A 27 who were in prison on the date of occurrence are falsely implicated as having taken part in the occur rence and the main witness Nitya Nand PW 1 has made a deliberate and suborn perjury by naming these three accused persons even in the earliest complaint exhibit Ka 1 with an oblique motive of obtaining conviction of these accused also
Even at the threshold we would like to point out that as the appellant has not furnished the correct list of the array of the accused with reference to each of the four sessions trials in a chronological manner we with great difficulty have culled out the names of the accused persons and the sessions trial case numbers from the body of the judgment of the Trial Court and appended a list of the names of the accused as Annexure A  to this judgment so that we may not experience any difficulty in understanding and appreciating the prosecution case
There were 41 accused in total who took their trial in sessions trial case Nos
A 119 A 160 A 26574 and A 2775 as indicated by us 943 tO the foot note to Annexure A 
The Trial Court convicted 16 accused under various provisions of the Indian Penal Code and the Arms Act and acquitted the remaining 25 accused
In this judgment we are referring to the accused persons in the order as arrayed in Annexure A 
Indisputably 13 persons ranging between 22 25 years of age were done away with in the occurrence
Two other per sons namely Jama PW 3 and Balai PW 24 escaped with injuries
Of the deceased persons one by name Kedar be longed to a village called Baluahi whereas the rest of the deceased persons belonged to a village called Deotaha to which village the injured persons belong
The deceased persons are either the members of the family or associates of the complainant Nitya Nand PW 1 whose father was one among the 13 deceased persons
Of the accused some are inter related and the rest are associates
The scene of occurrence lies within the limits of Nebua Naurangia Police Station in the District of Deoria in the state of U PAt a distance of 10 miles to the west of this police station there is a village known as Bali
A few furlongs to south of Bali the village Deotaha is situated
The agricultural area of the village Bali extends up to some distance to the west of village Deotaha
About six furlongs to the west of village Deotaha there are two contiguous plots bearing Nos 736 and 737 without any dividing line
The occurrence in question took place in the very same plots
There were two rival factions in the village Deotaha in that the deceased persons their relations and associates formed one faction and the accused formed the rival faction
There was deep rooted enmity and simmering feelings between the two groups due to the following incidents
In a keenly contested Pradhanship election of the vil lage Deotaha the first accused became successful
One of the deceased Prabhu Nath filed a suit as against A 27 Jangi for recovery of a sum of Rs20000 and the suit was decreed on A 27 s admission
At the time of the occur rence the execution proceeding in pursuance of the decree was pending
In that suit Kedar one of the deceased was a witness supporting the cause of Prabhu Nath
On 155
1973 the first accused and some others attacked one 944 Rajeshwar Tiwari during the course of which one Saheb be longing to the accused party was murdered
The members of both the groups were arrested and sent to jail in connection with that occurrence
After their release in the above case they started damaging each other s crops
This led to the initiation of a security proceeding under Section 107 of the Code of Crimi nal Procedure
In that the party of the first accused was bound over
In September 1973 another security proceeding was initi ated under Section 107 of the Code of Criminal Procedure wherein A 1 A 27 and 54 others belonging to A 1 s party were bound over
Due to the above consecutive incidents these two rival factions were nursing and nurturing their ill feelings which was gaming momentum day by day ultimately culminating into the occurrence in question
We shall now give a brief note of the prosecution case
On account of the deep rooted animosity between the parties the first two accused and Accused No 27 hatched a conspiracy with some of their associates to murder Prabhu Nath and his men on 1411974 when they were expected to be engaged for cutting the standing sugar cane in plot Nos
736and 737
With an intention of screening himself from any prospective accusation the third accused deposited his licensed gun on 1211974 with an arms dealer PW 28 at Gorakhpur
On the same day namely on 1211974 at about noon accused Nos 1 2 and 27 in order to create evidence of their alibi entered into an agreement with one SD Dubey who was at that time working in the Railways as Travelling Ticket Examiner TTE and who is shown as Accused No 40 in Annexure A  to do an illegal act to wit to have the deceased persons murdered by their associates on 141
In pursuance of this conspiracy these three accused 1 2 and 27 traveled without tickets by 2 Dn
Mail Train running between Khora Bhar and Gauri Bazar which stations lie on Gorakhpur Bhatni line
As these three accused who traveled as ticketless passengers did not pay the charges due from them to the TTE Accused No 40 they as pre planned were apprehended and produced before the Railway Magistrate on 1311974 who convicted them and sentenced them to imprison ment till 1811974
Thus these 3 accused were incarcerated in the Gorakhpur jail till 1811974
945 The occurrence in question took place in the afternoon of 141
On the day of occurrence at about 1000 AM all the 13 deceased persons accompanied by two injured persons PWs 3 and 24 and few others went to plot Nos 736 and 737 for cutting the sugar cane crops raised by one of the deceased namely Trijugi and his family members
The deceased persons had also taken a tractor with the trolley attached to it for removing the sugar canes
By about 100 PM the entire cane crops had been cut
Some bundles of the sugar canes already cut had been loaded on the trolley
At this point of time about 80 90 persons inclusive of these accused persons armed with lethal weapons such as fire arms spears lathes and pharsas surrounded the spot from 3 direc tions namely north east and west and after nearing the field started firing shots indiscriminately and also at tacked the prosecution party with pharsas spears and lathes
All those persons who were cutting the sugar cane crops got panicky and started running helter skelter
These unfortunate 13 deceased persons ran towards north evidently to save their lives by taking positions behind the trolley and the tractor which were parked just north of the place of occurrence
PWs 3 and 24 and some others ran towards south
While so running PWs 3 and 24 received injuries
But the other witnesses namely Nitya Nand PW 1 Om Prakash PW 6 Smt
Mala PW 11 and Smt
Chandgudi PW 12 escaped unhurt
They all hid themselves in the fields of Hakim and Paras which lie to the south of the place of occurrence and witnessed the entire orgy of violence therefrom
The cul prits chased these 13 deceased persons like hunters chasing the fleeing beasts and ruthlessly and indiscriminately attacked them
All the 13 persons instantaneously succumbed to their injuries
The dead bodies were found lying scat tered around the tractor and trolley providing a gory sight
During the course of the occurrence it is said that one of the deceased Prabhu Nath who had a gun fired at the accused party in self defence and injured Rambali Accused No 36
Accused Nos 10 and 16 covered the dead bodies with sugar cane leaves and sprinkled diesel oil taken out from the tractor and set fire to
After committing this heinous crime all the culprits left the scene of occurrence
While leaving the scene Accused No 32 carried away the gun of the deceased Prabhu Nath
The entire occurrence was over within an hour
After the accused persons had left the scene PW 1 went to the police station which is at a distance of 10 miles from the scene and presented a written complaint exhibit Ka 1 which was registered at about 245 PM
The chik report  The First Information Report is exhibit Ka
51 the copy of which is exhibit Ka
The Station House Officer 946 PW 43 took up investigation and proceeded to the scene accompanied by his head constable and other constables after giving instruction to PW 17 to proceed to the scene by arranging some vehicles
PW 43 reached the scene of occur rence at 400 PM and examined PWs 3 24 and others and sent the injured witnesses for medical examination
Then PW 43 held inquest over the dead bodies and thereafter sent the dead bodies for post mortem examination
After despatch ing the dead bodies PW 43 inspected the scene of occurrence and found marks of pellets on all sides of the trolley and ash of burnt leaves lying around the trolley
The wheels of the trolley were also found burnt
Two live cartridges and several used and fired cartridges of 12 bore gun together with the pellets and some burnt clothes were found by the investigating officer on the spot
Patches of blood were found at different places
PW 4 the Medical Officer exam ined the injured witnesses and found on their person punc tured wounds besides abrasions
PW 3 had two gun shot wounds
The Doctor had noted the injuries
in Exhibits Ka 5 and Ka 6
The Medical Officers namely PWs 2 9 10 and 46 conducted necroscopy on the dead bodies and noted various kinds of injuries such as incised wounds lacerated in juries contusions and gun shot wounds etc
There was super ficial burn on the dead bodies indicating that the dead bodies were set fire to
PW 43 searched for the accused mentioned in the FIR but none was available
Then he took proceedings under Sections 87 and 88 of the Code of Criminal Procedure old
He arrested Accused No 39 on 1611974 and seized his licensed gun
Accused Nos 3 and 16 were arrested in the house of Accused No 38
A rifle exhibit 11 and a gun exhibit 12 were seized by PW 43 from the house of Accused No 38
On 1611974 the sub Inspector PW 43 was suspended
Thereafter the investigation was taken up by the Circle Inspector of Police on 171
Subsequently on 211
1974 the investigation was entrusted to the CID Branch
PW 38 an Inspector of that branch took up further investigation
During the investigation he came to know that Rambali Accused No 36 was admitted to Gorakhpur Hospital but slipped away from the hospital
on 1811974
PW 38 collected evidence about the arrest of Accused Nos 1 2 and 27 by the TTE while the latter found these three accused travelling without tickets on 1211974
He sent the two cartridges recovered from the place of occurrence to the ballistic expert who opined that the same should have been fired by rifle exhibit 11
Some of the accused surrendered before the court on different dates
After completing the investigation PW 38 laid the chargesheet in 4 batches which gave rise to 4 different sessions trials which were disposed of by the learned Sessions Judge by this impugned common judgment
947 All the accused pleaded not guilty and denied their complicity with the offence in question
Rambali Accused No 36 admitted his presence and stated that the sugar cane crops belonged to one Phunni and not to Tirjugi and his relations and that while Phunni and his men were cutting the sugar cane crops the deceased Prabhu Nath and the other deceased persons attempted to forcibly taking away the crops and during the course of such attempt Phunni and his men attacked the deceased party and that he was shot by the deceased Prabhu Nath when he entreated that the sugar cane crops of Phunni should not be taken away
Accused nos
1 2 and 27 denied the charge of conspiracy and stated that they were in prison on the date of occurrence consequent upon their conviction recorded by the Railway Magistrate for their ticketless travelling
The prosecution in all examined 53 witnesses and filed number of documents
The accused examined DWs 1 7
Of the witnesses examined by the prosecution PWs 1 3 6 11 12 20 and 24 are ocular witnesses
It may be mentioned here that PW 20 has been treated as hostile as he has not sup ported the prosecution case
Of these witnesses PWs 3 and 24 were injured witnesses
One Ganga Prasad Pande mentioned as an eye witness in the FIR was examined as a court witness CW 1 and he did not support the prosecution version
The learned Trial Judge believing the plea of accused Nagendra alias Tara A4 on the basis of the evi dence of DW 1 Dr Krishna Swarup found this accused as having not participated in the occurrence
However he spurned the plea of defence put forth by rest of the ac cused
The learned Sessions Judge for the discussions made in his judgment acquitted 25 accused persons out of the total of 41 accused namely 4 6 11 14 17 22 24 26 28 32 35 39 41 finding them not guilty of any of the charges and convicted the rest of the 16 accused under various charges and sentenced them as hereunder Accused Nos 1 2 and 27 were sentenced to life impris onment under Section 302 read with Sections 109 and 120 B IPC and Accused Nos 3 7 8 15 23 33 34 36 and 37 were convicted under Section 302 read with Section 149 IPC and sentenced to imprisonment for life and in addition to that these 9 accused were convicted under Section 307 read with Section 149 IPC and each of them was sentenced to undergo rigorous imprisonment for a period of 4 years
Accused No 9 was convicted under Section 302 simpliciter and sentenced to life imprisonment and convicted under Section 307 sim pliciter and sentenced to 5 years rigorous imprisonment
In addition to that A 9 was con 948 victed under Section 27 of the Arms Act and sentenced to rigorous imprisonment for a period of two years and also under Section 147 for a period of one year
Accused Nos 10 and 16 were convicted under Section 302 read with Section 149 IPC and each of them was sentenced to the extreme penalty of law namely death
These two accused A 10 and A 16 were also convicted under Section 307 read with Section 149 IPC and each of them was sentenced to rigorous imprisonment for a period of 5 years
Accused Nos 3 7 8 10 15 16 23 33 34 36 and 37 were convicted under Section 148 IPC and each of them was sentenced to undergo rigorous imprisonment for a period of one and half years
Apart from this all the convicted accused persons except Accused Nos 1 2 27 and 38 were convicted under Section 201 read with Section 149 IPC and each of them was sentenced to rigorous imprisonment for a period of 4 years
Added to that all these accused except ing the above four were convicted under Sections 435 and 427 IPC and sentenced each one of the accused to undergo rigorous imprisonment for one year under each of these two charges
Accused No 37 was also convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprison ment for a period of two years
All the convicted accused filed Criminal Appeal Nos
1132 1133 1143 1156 1157 and 1158 of 1976
The reference made by the Trial Court for confirmation of the sentence of death imposed on A 10 and A 16 was heard as a Referred case No 31 of 1976
The State preferred an appeal under Section 378 of Cr
PC against the acquittal of all the 24 acquitted persons
It may be mentioned at this juncture that the High Court did not grant leave as required under Section 3783 of the Code of Criminal Procedure to entertain an appeal against the acquittal of SD Dubey A 40
The High Court disposed of these appeals inclusive of the State appeal and the Referred case by the common impugned judgment dated 1721977 allowing all the criminal appeals preferred by all the convicted accused except the appeal preferred by Rambali A 36 and setting aside the convictions and the sentences of those whose appeals were allowed
The State appeal was dismissed
The referred case was rejected conse quent upon the acquittal of A 10 and A 16
The State on being dissatisfied with the impugned judg ment of he High Court has preferred as many as seven crimi nal appeals as 949 detailed in the table given below S1
No Criminal Appeal No The Accused concerned
51778 A 10 and A 16 2
51878 A38 3
51978 A 1 A2  A27 4
52078 A3 A7 A8 A9 A 15 A23  A33
52178 A 37 6
52278 A34  A36 7
52378 A 4 6
A 11 14 A 17 22 A24 26 A28 32 A35 A39  A41 After the grant of special leave SD Dubey Respondent No 25 in Criminal Appeal No 52378 Accused No 40 in the Annexure A  to this judgment filed a petition for rectifi cation in Miscellaneous Petition No 21079 praying to recall the leave granted and the nonbailable warrant issued against him on the ground that the High Court did not grant leave to the State for preferring an appeal against his order of acquittal
This Court by order dated 2311979 deleted the name of SD Dubey from the array of the re spondents in Criminal Appeal No 52378 and revoked the special leave granted so far as he was concerned and also discharged the unbailable warrant issued against him
The result is that there is no appeal against A 40
It seems that the complainant in all these appeals has filed Criminal Miscellaneous Petition Nos
3621 3627 of 1989 for impleading him as a party
Natarajan J as he then was by an order dated 1491989 passed an order The counsel for the complainant may be heard at the time of heating of the appeal Mr Prithvi Raj Sr
Advocate as sisted by Mr Dalveer Bhandari and another appeared on behalf of the appellantstate
Mr RL Kohli Sr
Advocate assisted by Mr HK Puri and another appeared on behalf of the respondents
Mr Yogeshwar Prasad Sr
Advocate assisted by two advocates appeared on behalf of the complainant
Mr Prithvi Raj after taking us very meticulously through the judgment of the Trial Court as well as of the High Court and the evidence of some of the witnesses presented a very 950 comprehensive and detailed analysis of the case with the circumstances surrounding it and made the following submis sions 1
The High Court has erroneously set aside the convictions recorded by the Trial Court without adverting to the intrin sic  value of the evidence of the eye witnesses who speaks about the motive as well the actual occurrence in question which took place in the broad day light of 141
There is abundant and overwhelming evidence both oral and documentary conclusively establishing the long standing and deep rooted animosity for the accused persons to brutally attack the prosecution party
The High Court is not justified in rejecting the testimo ny of the ocular witnesses especially of PWs 3 and 24 who were injured and whose presence at the scene of occurrence cannot be doubted merely on the ground that they were all partisan witnesses
The nature of the injuries sustained by the deceased persons as well by PWs 3 and 24 unmistakenly corroborate the evidence of the eye witnesses that all the victims have been indiscriminately and ruthlessly attacked with deadly weapons such as fire arms spears pharsas lathes etc
Both the Trial Court and the High Court without appreci ating the evidence adduced as against the acquired persons concerned in Criminal Appeal No 52378 has wrongly recorded the order of acquittal which is liable to be set aside
Before entering into a detailed discussion of the oral and documentary evidence we may point out certain incontro vertible facts
The time of occurrence the place of occur rence and the manner of attack are all not in dispute
It seems that the learned Trial Judge himself had made a local inspection and visited the place of occurrence on 11476 and he was satisfied with the evidence regarding the topog raphy of the scene
So far as the motive is concerned we have clearly stated in the narrative portion of the judgment that the prosecution party and the accused party were on war path on account of a series of incidents over a considerable length of time
The evidence both oral and docu 951 mentary demonstrably establish that each one was out for the blood of another
The very fact that 13 persons have been done away with by an inhuman archaic and drastic mode of execution indicates that the culprits whoever they might have been should have been fomenting their hatred and pre planned to perpetuate this heinous crime on that particular day
According to the prosecution the perpetrators of the crime were numbering between 80 to 90
When the victims and the witnesses started running away apprehending imminent danger to their lives they were chased by the perpetrators of the crime and attacked ruthlessly by deadly weapons including fire arms
The prosecution case is that except the father of PW 1 Prabhu Nath who was armed with a gun others were armless
PW 1 speaks about the entire motive for the occurrence
On a careful analysis of the evidence we have no reservation in holding that there was bitter animosity between the prosecution and accused parties and as such there was sufficient motive on the part of the accused party to attack the prosecution party
But at the same time one should not lose sight of the fact that the prosecution party which was also entertaining the same amount of animosity against the accused party had sufficient motive to implicate all the leading persons of the accused party with the of fence in question
As repeatedly said motive is a double edged weapon and that it could be made use of by either party to wield that weapon of motive against each other
Therefore the key question for consideration is whether the prosecution has convincingly and satisfactorily established guilt of all or any of the accused beyond all reasonable doubt by letting in reliable and cogent evidence
Regarding the conspiracy that is said to have been hatched on 12174 among A 1 A2 and A27 with three others A28 A29 and A34 we have to scrutinise the evi dence of PWs 5 8 15 and DW 5
The Trial Court in its judgment has found A 1 A2 and A27 guilty under Sections 302 read with 109 and read with 120B and sentenced them for life though has not placed much reliance on the evi dence of PWs 8 and 15
In this connection we may state that DW 5 the Assistant Station Master was examined only to discredit the testimony of PW 8
PW 5 was the Railway Magistrate during the relevant period
PW 29 was a Travelling Ticket Inspector and PW 39 was a constable
According to them A 1 A2 and A27 were caught as ticketless travellers by SD Dubey A40 and produced before PW 29 who in turn handed over them to PW 39
These three accused were detained at the waiting room of Bhatini Railway Station on the night of 1211974 and pro duced before PW 5 on 1311974 who convicted and 952 sentenced them to imprisonment till 1811974
These three accused themselves admit their conviction and imprisonment
But would this piece of evidence coupled with the animosity that existed between the two groups be sufficient to con clude that the three accused have conspired to commit this offence9 No doubt this impelling circumstance creates a strong suspicion against A 1 A2 and A27 as to whether they had voluntarily got themselves arrested by creating a circumstance presumably due to some pre arrangement so that this circumstance might serve as a plea of alibi
It is well said that suspicion however strong it may be it cannot take the place of legal proof
Therefore from this circum stance the Court cannot be justified in drawing an inference that these three accused had hatched a conspiracy to commit this offence
There is absolutely no evidence that these three accused had any conversation among themselves to commit this offence or they pre planned to involve them selves in the offence of ticketless travelling so that they might escape their involvement with the offence
One more circumstance relied upon by the prosecution in attempting to prove the conspiracy is the deposit of the gun by A2 on 121
1974 with PW 28 an arms dealer of Gorakhpur
But the prosecution miserably fails in this attempt also because it is in evidence that the gun licence of A2 had already been suspended
Evidently A2 had thought it appropriate to deposit his gun with an arms dealer for the sake of safety
Therefore that conduct of A2 in depositing the gun could not be taken as a circumstance proving the conspiracy to any extent
The High Court has rightly rejected the case of the prosecution on this aspect and dismissed the case of con spiracy and consequently set aside the conviction of these three accused under Section 302 read with Sections 109 and 120B IPC
We shall now deal with the evidence relating to the actual occurrence
The prosecution examined PWs 1 3 6 11 12 20 and 24 as eye witnesses to the occurrence
Of the above witnesses PW 20 who is the son of one of the de ceased has resiled from his earlier statement and as such he was treated as a hostile witness
As has been repeatedly stated in the earlier part of the judgment PWs 3 and 24 were injured during the occurrence
We shall examine the evidence of these eyewitnesses one by one subjecting their testimony to strict scrutiny
PW I is none other than the son of deceased Prabhu Nath Tiwari who is said to have been armed with a gun and fired at Rambali A36
He claims to have been present at the spot of occurrence from beginning to end and to have wit nessed the entire occurrence and also identified all these accused persons as active participants along with 953 some others
It is his evidence that he along with the other witnesses ran towards south and took shelter in the nearby field where from he witnessed the occurrence
After all the miscreants had left the scene he was the person who went to the police station with a written complaint exhibit Ka 1 and set the law in motion
In exhibit Ka 1 PW 1 has implicated accused Nos 1 2 and 27 along with others assigning specif ic overtact to accused Nos 1 and 2 stating that they were armed with a pistol and a gun respectively and fired at the prosecution party though has not attributed any specific overtact to A27 against whom PW 1 was not entertaining so much of animosity as in the case of A 1 and A2
Besides attributing the above overtacts he has averred in the earliest document exhibit Ka 1 that accused Nos 1 and 2 ex horted and incited his associates to bounce upon the prose cution party and to attack
On a very close examination of the testimony of PW 1 we are disinclined to place any reliance much less safe reliance on his testimony for more than one reason
Firstly PW 1 who is the son of deceased Prabhu Nath Tiwan and grand son of the deceased Tirjugi and nephew of deceased Damodar is not only much interested in the prosecu tion case but is anemically disposed towards accused party
The sugar cane crops which was the subject matter for this occurrence was owned by his grand father Tirjugi and his family members
Secondly the absence of any injury on his person creates a grave doubt about his presence in the scene of occurrence
Thirdly PW 1 has not only given an exagger ated version in exhibit Ka 1 but also deliberately and falsely implicated A 1 A2 and A27 as having actively participat ed and shot at the deceased
Fourthly his explanation now offered by him that he gave the names of these three accused persons since he overheard during the occurrence the Other accused shouting Paras Avo Sharda Avo Jangi Babu Avo which explanation is summarily rejected both by the Trial as well the High Court
Fifthly in exhibit Ka 1 PW I has not given the names of the fathers of any one of the accused persons
Sixthly even assuming but not conceding that PW I was present at the scene of occurrence he when fleeing towards south for his life on seeing the accused party with the strength of nearly 80 90 persons armed with deadly weapons could not have witnessed any part of the occurrence especially when all the accused were moving towards north
Seventhly it would not have been possible for PW 1 to prepare Ka 1 on his own but this document should have been brought into existence on account of some deliberations and consultations with some of the people belonging to his faction
Eighthly there is no guarantee to believe even a part of his evidence when he goes to the extent of making 954 deliberate false implication of accused persons who are proved to have been in prison at the time of occurrence
Ninthly the entry in the General Diary dated 1711974 marked as exhibit C 1 reveals that the investigating officer recorded the statement of the witnesses only on 151
It may be recalled that the first investigating officer PW 43 was suspended on 1611974
It is surprising that though exhibit Ka 1 does not contain the names of the fathers of any one of the accused exhibit Ka 51 First Information Report prepared on the basis of exhibit Ka 1 contains the names of the fathers of all the accused per sons
The only explanation given by the head constable Ram Hausila Pandey is that he incorporated the fathers  names on an enquiry from others is totally unacceptable
Some doubt is created about the veracity of exhibit Ka 1 on the basis of certain corrections made thereon
Though the Trial Court was inclined to rely upon the evidence of PW 1 despite the patent infirmities the High Court has rejected his evidence in toto for just reasons
PW 6 is the son of Rajeshwar Tiwari who was one of the counter petitioners on the side of the prosecution party in the security proceedings
This Rajeshwar Tiwari is the real brother of Tirjugi the deceased
PW 6 was interrogated for the first time by the investigating officer only on 1711974
The High Court has observed that this witness was thrust into service only at a later stage to serve as an ocular witness
The accused in their defence has attempted to show on the basis of the evidence of CW 1 that PWs 1 and 6 were residing far away from the scene of the occurence and that they were not present at the scene
But as CW 1 has not supported the prosecution version much weight was not attached to this evidence
However the conduct of PW 6 in not going to the police station and not being available for examination till 1711974 leads to an inference that he would have been made as an eye witness to the occurrence at a belated stage
This witness too as PW 1 ran towards south and did not sustain any injury
Hence we are in total agree ment with the High Court that PW 6 is pressed into service to serve as an eye witness
PW 11 has admitted that her parents used to take loans from Prabhu Nath Tiwari and that she was residing in the house of Rajeshwar Tiwari as his servant
The evidence of PW 11 is contradictory to that of PWs 3 and 24 in that PW 11 has deposed that PWs 3 and 24 were found going towards east on the road which is not the prosecution case
Though this contradiction seems to be very trivial in the context of the case it assumes some signifi cance in examining the presence of the witnesses at the scene
PW 12 is the mother of deceased Ram Vilas
She has admitted that her 955 husband s sister had taken loan from Rajeshwar Tiwari in lieu of which her husband had given 12 bighas of land to Rajeshwar Tiwari
According to these two witnesses PWs 11 and 12 the accused persons after firing certain shots did not use their gun but attacked the victims only with spears pharsas and lathis
The High Court has given cogent and convincing reasons to discard the testimony of these two witnesses also
Now we are left with the testimony of the injured witnesses PWs 3 and 24 on whose evidence Mr Prithvi Raj learned counsel appearing for the State placed much reli ance
PW 4 the Medical Officer has testified to the fact that he examined PW 3 at 915 AM on 1511974 and noted a punctured wound on the left scapula an incised wound on the left buttock two gun shot wounds one on the left knee another on outer side and middle of the left shoulder and an abrasion on the left thigh
According to the Medical Officer the injuries were of a day old
He issued the Wound Certificate exhibit Ka 5
The same Medical Officer exam ined PW 24 at about 930 AM on 1511974 and found on his person two abrasions one contusion a swealing and three gun shot wounds one on the right scapula region the other below iliac crest and the third one near the fight elbow
exhibit Ka 6 is the Wound Certificate
The very fact that these two witnesses have sustained certain gun shot wounds probabilities the presence of these two witnesses at or about the time of occurrence at the scene
Therefore their evidence might command acceptance provided their evidence inspires confidence in the minds of the Court and that the said evidence is free from any in firmity
PW 3 was a servant of Rajeshwar Tiwari
According to the prosecution these two witnesses were standing almost at the centre of the eastern side of the scene field at which point they received injuries and thereafter took shelter in the field of one Hakim
PW 3 mentions the names of accused Nos 3 5 11 15 16 18 22 23 25 26 28 30 33 37 and 41 the total number of which is 23 of whom 11 have been acquitted by the Trial Court itself
PW 24 had named six accused persons of whom Jhullar A 17 is said to have assaulted him
A 17 is acquitted by the Trial Court
It shows that the Trial Court had not placed complete reliance on the testimony of these two witnesses
According to him he and PW 24 were examined by the Sub Inspector PW 43 and sent for medical examination
But it is surprising to note that both these 956 witnesses were medically examined after a delay of 21 hours on 151
1974 at about 930 AM
No explanation is forthcom ing as to why there was such a delay of medical examination of these two witnesses who are said to have been sent to the hospital immediately after examination by PW 43
The entry exhibit C 1 in the General Diary of 1711974 evidently made after suspension of PW 43 shows that the statements of witnesses were recorded on 1511974
This entry is diamet rically in opposition to the evidence of not only of these two witnesses but also of PW 43 who is said to have examined the witnesses at the spot on the evening of 1411974 it self
PW 24 has admitted that he was suffering from total blindness in his right eye and poor sight in his left eye and he was suffering from eye blindness since 4 5 years
He admitted that he could not see as to who assaulted whom
Later on he stated that he had not seen any accused by their face and even the accused named by him were recognised only by their voice
It is found in the judgment of the High Court that PW 24 was cross examined by the public prosecutor himself which circumstance indicates that PW 24 has not supported the prosecution version
It is the evidence of the investigating officer that he did not find any blood at the place where these two witnesses were allegedly lying
It is under these circumstances the High Court was disinclined to place any reliance on the evidence of these two witnesses who are indisputably partisan witnesses
It is pointed out by the High Court that the entry in exhibit C 1 giving the details of the investigation carried on by PW 43 on 1411974 does not indicate that the investigating officer contacted and interrogated these two witnesses on 1411974 itself
The only inference that would follow is that these two witnesses even admitting that they had received injuries at the scene field as pointed out by the High Court rightly too in our view might have run away to the village and were contacted by the police only on the next day
So on safe reliance can be placed on the testimony of these two wit nesses
When viewed from any angle we are of the firm view that the reasons assigned by the High Court for disbelieving the testimony of all the ocular witnesses are unreasonable
The evidence is ambulatory and vasulating besides suffering from insurmountable infirmities and improbabilities
The totality of the evidence is unworthy of any credence when examined by the standard of yardsticks of credibility
As we have repeatedly pointed out earlier there is a deliberate false implication of the accused Nos 1 2 and 27 to whom overtacts are 957 attributed in exhibit Ka 1
In fact the High Court has gone in great depth into the facts and circumstances of the case and rightly concluded that the prosecution has miserably failed in establishing the guilt of the accused except A36
In spite of best efforts and great deal of pondering over the matter we are unable to disagree with the conclusion ar rived at by the High Court in rejecting the testimony of these witnesses whose evidence lacks the guarantee to in spire the confidence especially when the major portion of the evidence is manifestly false and patently incredible
No doubt the circumstances attending the case namely the conduct of A 1 A2 and A27 voluntarily getting themselves arrested by A40 creates suspicion against them
But that suspicion by itself howsoever strong it may be is not suffi cient to take the place of legal proof and warrant a finding of guilt of these three accused
It is pertinent to note that even the charge flamed by the Trial Court reads as if all the accused inclusive of A 1 A2 and A27 formed themselves into an unlawful assembly on 1411974 in the village Bali in prosecution of the common object of committing murder of 13 deceased persons and disposing of the dead bodies
In such a situation can it be said that there is justification for convicting the rest of the accused barring accused Nos 1 2 and 27 for the specific acts attributed to them by the witnesses whose evidence is tainted with patent falsehood
The observation of the High Court reading All this indicates that Nitya Nand PW 1 had not seen the occurrence that the first information report was not lodged when it purports to have been lodged and that it came into existence later on and was ante timed cannot be said to be perverse
Similarly yet another observation reading Once it is established that some of the accused persons named by these witnesses had not participated in the occurrence and have been falsely impli cated by them it will not be safe to place reliance upon their testimony regarding the complicity of the other ac cused nominated by them without corroboration in material particulars by other reliable evidence direct or substan tial also does not call for interference
We went through the available records placed before us and examined them scrupulously and meticulously with all seriousness and onerous responsibility cast upon us in getting at the truth but we regret to say that the entire evidence is nothing but a coloured version with concocted story and exaggerated account mixed with falsehood and that the prosecution has miserably failed to make out the charges against all or any of the accused beyond all reasonable doubt except 958 Rambali A36 who himself admitted his presence at the scene
In this connection we would like to cite a decision of this Court in Balaka Singh  Ors
vs State of Punjab  wherein the following observation is made
   the Court must make an attempt to separate grain from the chaff the truth from the falsehood yet this could only be possible when the truth is separable from the false hood
Where the grain cannot be separated from the chaff because the grain and chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made then this principle will not apply
 No doubt it is true that this heinous offence is dia bolical in conception and executed in gruesome and ghastly manner
It is shocking that 13 persons have been done away with in a broad day light in the course of the same transac tion
Nonetheless the Court when satisfied that the evidence adduced by the prosecution is not only unworthy of credence but also manifestly and inextricably mixed up with falsehood cannot be carried away merely on the fact of multiplicity of victims and on the basis of speculations and suppositions in the confused stream of facts
In our considered view the High Court has apprised the evidence in the proper perspec tive and arrived at a correct conclusion which is neither perverse nor unreasonable
For all the reasons stated above we see no reason to interfere with the findings of the High Court and dislodge the same
In the result the judgment of the High Court is confirmed and all the appeals preferred by the State are dismissed
Y Lal Appeals dismissed
959 Annexure A  LIST OF THE ACCUSED PERSONS 1
Parasnath Tiwari 2
Sharda Prasad 3
Hausila Tiwari 4
Nagendra alias Tara 5
Bishwanath 6
Mahendra Tiwari 7
Anirudha Tiwari 8
Shukhal 9
Pramhans 10
Prahlad 11
Sudama 12
Jumarati 13
Shahid 14
Birjhan 15
Suryaman Koiri 16
Moti Ram 17
Jhullar 18
Suryabali 19
Kumar Kewat 20
Shanker 21
Ram Asrey 22
Jamuna Pasi 23
Harilal 24
Banwari 25
Bindsari 26
Lachman 960 27
Jangi 28
Jhinnu 29
Samsher 30
Jetan 31
Bramhdoo 32
Jagdish Tiwari 33
Durga Pandey 34
Jagat Narain Misra 35
Sunder 36
Rambali 37
Babu Singh alias Bandhoo Singh 38
Parasnath Pandey 39
Ram Naresh Pandey 40
SD Dubey 41
Kailash Note 1
Accused Nos 1 to 33 were tried in Sessions Trial No A 11974 2
Accused Nos
34 36 were tried in Sessions Trial No A 16074 3
Accused Nos
37 40 were tried in Sessions Trial No A 26574 4
Accused No 41 was tried in Sessions Trial No A 2775


Summary:
The appellant a resident of the once independent State of Udaipur held 266 shares in the Mewar Industries Ltd a company registered in that State
There was no law in the State of Udaipur imposing tax on income and it was on April 1 1950that for the first time the residents of Rajasthan in which the State had merged became liable to pay such a tax
On January 18 1950 the Company went into liquidation and on April 22 1950 the liquidator distributed a portion of the assets among the shareholders the appellant receiving a sum of Rs 26000
This sum represented the undistributed profits of the company which had accrued during the six accounting years preceding the liquidation
The income tax authorities included this sum in the taxable income of the appellant for the assessment year 1051 52 holding that it was dividend as defined in section 26Ac of the Indian Income tax Act
Under section 26Ac the distribution of accumulated profits which arose during the  six previous years  preceding the date of liquidation would be dividend
Section 21 defined  previous year  to mean the year which was previous tothe assessment year
The appellant contended that  previous years  in section 26Ac must be read in the light of the definition is section 21 and as in the present case there had been no law imposing a tax prior to April 1 1950 the profit for the years 1943 44 to 1948 49 cannot be held to be profits which  arose during the six previous years  and consequently could not be taxed as dividend as defined in section 26Ac of the Indian Income tax Act
Held that the said sum was dividend within the meaning of section 26Ac of the Act and was liable to tax
The definitions given in section 2 Of the Act applied unless there was anything repugnant in the subject or context
It would be repugnant to the definition of  dividend  in section 26Ac to import into the expression  six previous years  the definition of  previous year  in section 2ii of the Act
By the expression previous years  in section 26Ac of the Act was meant the financial years preceding the year in which liquidation took place
Commissioner of Income tax Madras vs K Srisivasan and Gopalan  referred to 205