Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1571 of 2001 (Old No. 294 of 1991) Gauri Datt S/o Sri Mathura Datt R/o Village Poanti (Amoli) Tehsil Bhikyasen (Ranikhet) District Almora (U.P.). ………..Appellant. Versus State of U.P. ……..Respondent. Shri Lalit Tiwari, learned Amicus Curiae for the appellant. Shri Amit Bhatt, learned A.G.A. and Shri M.A. Khan, learned Brief Holder for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 31.01.1991, passed by learned Sessions Judge, Almora, in Sessions Trial No. 38 of 1986, whereby the accused/appellant- Gauri Datt along with other two was convicted under Section 147, 302 read with Section 149, Section 395 and 412 of Indian Penal Code, 1860 (herein after referred as I.P.C.) Each one of the convicts including the appellant is directed to undergo rigorous imprisonment for a period of one year under Section 147 I.P.C., rigorous imprisonment for a period of 7 years under Section 395 I.P.C., rigorous imprisonment for a period of 5 years under Section 412 I.P.C. and imprisonment for life under Section 302 read with Section 149 I.P.C. 2. Heard learned Amicus Curiae for the appellant and learned Additional Government Advocate for the State and perused the lower court record. 3. This is a case of dacoity with SIX MURDERS. Prosecution story in brief is that complainant Amba Datt Khulbe (P.W. 1) and accused Ganga Singh (since killed in encounter during investigation), were residents of Village Soral within the limits of P.S. Bhatraunjkhan, Tehsil Ranikhet (now part of Tehsil Bhikiyasain), District Almora. Due to land dispute between them the accused Ganga Singh started harbouring ill will towards complainant and his family members. Another motive disclosed in the First Information Report (Ext. A -1) by the complainant is that since Ganga Singh after leaving Village Soral, used to live in the plains and he joined hands with outlaws and started indulging in criminal activities, consequently the police used to enquire from complainant Amba Datt, who was Pradhan of the village and passed on the information about Ganga Singh. In the year 1983 (before the present incident of 1984), someone fired shots in night in the house of the complainant in which his wife received injuries. A First Information Report was lodged with police outpost Bhikyasain but no one was named as complainant could not see anyone. But the complainant had suspicion that it was Ganga Singh, who was responsible for said attack. On 24.07.1984, at about 4:30 p.m. Ganga Singh, accompanied with his five associates, in Khaki uniform, came to the shop of Daya Kishan (one of the deceased and son of the complainant) and asked him to show him the house in which shots were fired in the year 1983. Believing the persons in Khaki as policemen, Daya Kishan took all of them to the complainant’s house where Ganga Singh and the five accused accompanying him fired shots at Daya Kishan and his mother Rewati Devi, killing them on the spot. Thereafter the miscreants including Ganga Singh shot dead Jeewanti Devi and Km. Usha (both daughters of Daya Kishan). Kunwar Ram, resident of same village who had come to the complainant’s house was also shot dead by the dacoits (Ganga Singh and his five associates). The terror did not end there. Daya Kishan’s wife Tara Devi, who was returning from a field in the village was also chased by the miscreants and killed. Complainant Amba Datt (P.W. 1) and his grand daughter Km. Lalita (P.W. 3) could witness the horror being committed from near the water tank of complainant’s house. After committing the murders, Ganga Singh and his five associates looted licensed rifle and a S.B.B.L gun belonging to complainant’s family. They also took cash and ornaments from the house of the complainant. 4) The report of the incident was got scribed through villager Prakash Khulbe by complainant Amba Datt (P.W. 1), who lodged the same on the very day i.e. 24.07.1984, at 6:35 p.m. against Ganga Singh and by unknown persons with Police Chowki Bhikiasain, which was registered relating to offence punishable under Section 396 I.P.C. Head Constable Basant Ballabh (P.W. 2) prepared check report (Ext. A-4) of the first Information and made necessary entry in the General Diary (copy of extract of which is Ext. A-5). The distance of police outpost Bhikiasain from the place of the incident is 31 Kms. According to the complainant he reached to Police outpost after taking lift in a car of a tourist going towards Bhikiasain. Sub- Inspector Digar Chand, S.O. Incharge, P.S. Ranikhet, started the investigation. On 25.07.1984, He made local inspection and prepared site plans (Ext. A-43 and Ext. A -44). He took the dead bodies of Daya Kishan (son of the complainant), Tara Devi (wife of Daya Kishan), Km. Jiwanti Devi (D/o Daya Kishan), Km. Usha (another daughter of Daya Kishan), Rewati Devi (W/o Amba Datt complainant) and Kunwar Ram and prepared inquest reports (Ext. A-6 to Ext. A-11). The dead bodies in sealed condition were sent for post mortem examination to Civil Hospital, Ranikhet along with necessary papers, letters (ext. A-12 to Ext. A-17), requesting for post mortem examination, police form No. 13 (Ext. A -18 to Ext. A -23), and sketches of the dead bodies (Ext. A-24 to Ext. A-29). The police also collected blood stained soil and simple soil from the place of incident and prepared memorandum (Ext. A-36 to Ext. A-40). It also collected empty cartridges from the spot and prepared recovery memo (Ext. A-41). The Investigating Officer took possession of the licenses from the houses of the complainant of S.B.B.L. gun and the rifle looted by the dacoits and prepared recovery memo (Ext. A-42). The Investigating Officer interrogated the witnesses Amba Datt, Lalita and others, Meanwhile, information was sent by the police also to P.S. Ram Nagar on 24.07.1984, at about 7:40 p.m. to apprehend the culprits. Entry in the general diary (copy Ext. A-48) was made by Head Constable Gobardhan Prasad (C.W. 1) in that police station. Brijendra Singh, Station House Officer of Ram Nagar along with other Sub-Inspectors including Randhir Singh, Head Constable Gurbachan Singh and some other constables, proceeded in a jeep with arms and ammunition. The said police party proceeded towards Jungle where the dacoits were said to have gone. On seeing police party, miscreants started firing at them. On this, police also resorted to fire and arrested Chintamani (another convict in this case), Umed Singh (third convict in this case), Ram Niwas and Mahendra Singh. Said arrested accused disclosed that other two Ganga Singh and Gauri Datt have escaped. From Umed Singh, a rifle bearing No. 55494 (Ext. 1), 15 live cartridges (Ext. IV 1 to Ext. IV/15), a country made pistol, 8 live cartridges, a torch and some clothes along with cash of Rs. 1,150/- were recovered. From Chintamani, one country made pistol, 11 live cartridges, two gold Guloband (necklace)-Ext. VI and Ext. VII, and cash of Rs. 750/- were recovered. From Mahendra Singh one rifle, one country made pistol, one pair of silver Payjeb (Ext. V), 38 live cartridges and sum of Rs. 1850/-, were recovered. From Ram Niwas one country made pistol, 10 live cartridges, a gold Teeka, a torch and sum of Rs. 1650/-, were recovered. A recovery memo (Ext. A-45) was made by the police regarding items recovered from the arrested four dacoits. Their faces were kept covered (Baparada) by the police after their arrest. Sub-Inspector A.S. Rawat (P.W. 9) accompanied with Sub-Inspector K.P. Sharma and S.H.O. Brijendra Singh (C.W. 2) and other police officials, namely Head Constable Gurbachan Singh, Jayendra Dube and Shishupal started combing for the rest of the culprits. On 25.07.1984, at about 12:10 p.m., accused/appellant Gauri Datt, was seen coming near Gularghatti, Ram Nagar. He started running back on seeing the police party but police party chased and apprehended him. On his search, police recovered S.B.B.L. gun and six live cartridges and one gold ear ring- Karnfool (Ext. IX), one gold Tops (Ext. VIII), one torch and Rs. 2,390/- in cash. The police prepared recovery memo (Ext. A-56) relating to the recoveries made from the accused/appellant Gauri Datt. Search for the accused Ganga Singh was still on. However, by 2:00 p.m. the aforesaid police party led by Brijendra Singh saw a person near Kosi Bairaj, near Ram Nagar. On seeing police party, he fired at police. The police fired back at him (Ganga Singh), who received fire arm injuries and died on the spot. 5. On 26.07.1984, Dr. O.P.L. Srivastava, conducted post mortem examination on the dead body of Kunwar Ram, Dr. Maheshwari conducted post mortem examination on the dead bodies of Rewati Devi, Jiwanti Devi and Km. Usha, and Dr. R.P. Tamta, conducted post mortem examination on the dead body of Tari Devi and Dr. S.N. Srivastava (P.W. 7), who conducted post mortem examination on the dead body of Daya Kishan. The identification of the recovered looted property was got conducted by Mohd. Shakoor, Naib Tehsildar. During investigation, Sub-Inspector Digar Chand died and investigation was taken up by D.C.S. Rawat (P.W. 10), who after completion of the investigation submitted charge sheet (Ext. A-60) against accused Ram Niwas, Mahendra Singh, Umed Singh, Chintamani and Gauri Datt. The sixth accused Ganga Singh killed in the encounter with the police during investigation. Accused Mahendra Singh is said to have escaped from jail during the trial. 6. The Magistrate, on receipt of charge sheet after giving necessary copies to the accused, as required under section 207 of Cr.P.C., committee the case to the court of sessions for trial. Learned Sessions Judge, Almora, after hearing the parties, on 12.01.1988, framed charge of offence punishable under Section 396 against the accused/appellant Gauri Datt and others. He further framed alternative charge of offence punishable under Section 412 I.P.C. Thereafter on 25.07.1989, additional charge was framed against Gauri Datt (present appellant), Chintamani and Umed Singh in respect of offences punishable under Sections 147, 302 read with Section 149 and Section 395 I.P.C. All the accused pleaded not guilty and claimed to be tried. To prove the charge, the prosecution got examined P.W. 1 Amba Datt (complainant and eye-witness), P.W. 2 Head Constable Basant Ballabh Joshi, P.W. 3 Km. Lalita Khulbe (minor daughter of deceased Daya Kishan and an eye-witness), P.W. 4 Abdul Shakoor, Naib Tehsildar (who conducted the identification of the properties recovered from the accused), P.W. 5 Madan Gopal Singh, Naib Nazir (who made arrangements of similar jewellery for mixing with the jewellery recovered from the accused for the purpose of identification), P.W. 6 Sub-Inspector K.P. Sharma, (who was member of police party and participated in combing operation to apprehend the dacoits and after arresting accused Umed Singh, Chintamani, Ram Niwas, Mahendra Singh, arms ammunitions, cash and jewellery were recovered before this witness and memorandum (Ext. A-5, Ext. A-6, Ext. A-7 and Ext. A- 45) were prepared before him), P.W. 7 Dr. S.N. Srivastava (who conducted post mortem examination on the dead body of Daya Kishan. He also proved the post mortem report –Ext. A-47, prepared by R.P. Tamta after autopsy on the dead body of Tari Devi), P.W. 8 Head Constable Kishan Singh (who made entry in the general diary, a copy of which is Ext. A-48, on receiving telephonic information about the incident at P.S. Bhatraujkhan and before whom on the next day accused including appellant Gauri Datt brought with covered faces (Baparda and the property recovered was kept in malkhana in a sealed condition), P.W. 9 Sub-Inspector Arjun Singh Rawat, (another member of the police party who participated in combing operation on 25.07.1984 and apprehended the accused including Gauri Datt -appellant and before whom the recoveries were made), and P.W. 10 Dinesh Chandra Singh Rawat, Investigating Officer, who concluded investigation. It appears that under orders of the court, C.W. 1 Gobardhan Prasad, Head Constable and C.W. 2 Vijendra Singh under whom the police party made combing operation to apprehend the accused, were also examined. 7. All the oral and documentary evidence was put to the accused to which they alleged to be false. They also denied having any recovery made from them. However, no evidence was adduced in defence. After hearing the parties, the trial court found accused/appellant Gauri Datt, Chintamani and Umed Singh, guilty of offences punishable under Sections 147, 302 read with 149, 395 and 412 I.P.C. Each one of the convicts was sentenced to rigorous imprisonment for a period of one year under Section 147 I.P.C., rigorous imprisonment for a period of seven years under Section 395 I.P.C., rigorous imprisonment for a period of five years under Section 412 I.P.C. and imprisonment for life under Section 302 read with Section 149 I.P.C. 8. Convict Umed Singh filed criminal appeal No. 427 of 1991 (New No. 1397 of 2001), before Allahabad High Court, which was withdrawn by him after he served out the sentence and his sentence was remitted under Section 432 Cr.P.C. Another convict Chintamani, who filed criminal appeal No. 513 of 1991 (New No. 1398 of 2001) before Allahabad High Court, also did not press the appeal on the same ground that he has served out sentence and remaining sentence is remitted under Section 432 Cr.P.C. Both the appeals were dismissed. Aggrieved by judgment and order dated 31.01.1991, passed by learned Sessions Judge, Almora, in Sessions Trial No. 38 of 2006, the convict/appellant Gauri Datt, filed this appeal before Allahabad High Court on 21.02.1991, which was admitted there on 22.02.1991. The convict/appellant Gauri Datt was granted bail on 08.10.1991, by Allahabad High Court. The appeal is received by transfer to this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 9. We have examined the evidence on record afresh in the light of submissions of learned counsel for parties. Before further discussions, we think it just and proper to mention ante mortem injuries found on the post mortem examinations of six deceased. The post mortem examination report (Ext. A-52), prepared on 26.07.1984, by Dr. Maheshwai at 1:20 p.m. (genuineness of this document is admitted and formal proof is dispensed with by the defence counsel), shows following ante mortem injuries on the dead body of Km. Usha (three year old minor daughter of Daya Kishan):- 1. Gun shot wound of entry:- size 6cm X 3cm side left temporal region extending from left eye lid canthus to 2 cm infront of pinna. Margin inverted. Blacking around wound present. In the opinion of the Medical Officer. Km. Usha died due to coma as a result of injury noted above. 10. Post mortem examination report (Ext. A-53) prepared on 20.07.1984, at 3:00 p.m., by Dr. Maheshwari, after autopsy on the dead body of Jiwanti Devi (another daughter of Daya Kishan) (genuineness of this document is admitted and formal proof is dispense with by the defence counsel), shows following ante mortem injuries on her dead body:- 1. G.S. (Gun shot) wound over left forearm in lower of forearm on the frontal side dorsum. Size 6cm X 4cm margin, blackened. 3 pellets recovered from wound and one wad piece. 2. G.S. wound of Entry in between left side of ear and occiput, size 3cm X3cm margin inverted. Blackened and scorching present. 3. G.S. wound of exit in an area of temporal maxillary and parotid in front of left ear. Size 8cm X 6cm, margin everted. Brain matter coming out from wound. 4. G.S. wound on left upper arm lateral aspect, multiple lacerated wound with blackened margins scorching around it in an area of 8cm X 6cm, 10cm below tip of shoulder. 4 pellets recovered from wound. 5. G.S. wound of Entry on left abdominal wall, 8cm above iliac crest. Left margins inverted, blackened and scorching present around the wound. Size 4cm X 3cm. Intestine coming out from the wound. Cause of death according to the Medical Officer Dr. Maheshwari, was coma due to ante mortem injuries, quoted above. 11. Autopsy report (Ext. A-54) relating to the dead body of Rewati Devi (W/o complainant Amba Datt), which is also prepared by Dr. Maheshwari, shows that following ante mortem injuries were found on 26.07.1984, at about 2:00 p.m. on her dead body. (Genuineness of this document is admitted and formal proof is dispensed with by the defence counsel):- 1. Gun shot wound over wrist inner aspect 4 cm below wrist joint. Size 4cm X 3cm oblique muscle deep margins blackened. 2. G.S. wound of entry right side of neck, 4cm below angle of mandible. Size 3cm X 1cm. Margins inverted, blackened. Scorching present. 3. G.S. wound of exit right side of neck, 3.5cm below and backward of right ear, margins everted. Size 4cm X 2cm. 4. G.S. wound of entry over right side of back, 4cm lateral and back to shoulder size 3cm X 3cm. Margin inverted and blackened. Scorching present. 5. G.S. wound of exit over right side of chest at the junction of neck and chest. Size 4cm X 4.5cm margin everted. 6. G.S. wound of entry lateral side of right chest and abdomen, 8cm above iliac crest. Size 5cm X 3cm. Margin inverted and blackened. Scorching present. In the opinion of the Medical Officer, cause of death was shock and hemorrhage due to injuries described above. 12. Autopsy report (Ext. A-55), relating to dead body of Kunwar Ram, prepared by Dr. O.P.L. Srivastava, on 26.07.1984, at 12:35 p.m. shows following ante mortem injuries on his dead body (genuineness of this documents is admitted and formal proof is dispensed with by the defence counsel):- 1. Gunshot wound of entry 5cm X 3cm supra elamelan region (left) 3cm above and lateral to (left) sternocariedan joint inverted margins. Blackening around the wound present. Cavity deep. 2. Gunshot wound of entry 3cm X 3cm upper part of abdomen 5cm above and (right) of umbilicus, inverted margins. Blackening around the wound present. The Medical Officer has also noted that wad piece and 4 pellets recovered from the abdomen cavity and one wad piece and 13 pellets recovered from pleura cavity and lung. The cause of death according to the Medical Officer was shock and haemorrhage as a result of injuries described above. 13. Dr. R.P. Tamta, who conducted post mortem examination on the dead body of Tari Devi (wife of Daya Kishan) on 26.07.1984, at 11:45 a.m. and prepared autopsy report (Ext. A-47) discloses following ante mortem injuries on the dead body (this document is proved by P.W. 7 Dr. S.N. Srivastava, who was acquainted with the handwriting of Dr. R.P. Tamta):- 1. Gunshot wound of entry over middle of forehead 2cm above bridge of the nose. Size 3cm X 2cmX brain cavity deep with underlying fracture bone. Blackening around the wound seen. Margins inverted. 2. Gun shot wound of entry, 1cm above right pinna (ear). 3cm X 2cm. brain cavity deep. Margins inverted. Blackening seen. 3. Gun shot wound of entry 4cm above middle of right clavicle. Size 1.5cm X 1cm X neck deep. Margins inverted. 4. Gun shot wound of exit just above the middle of left clavicle. Margins everted. Size 4cm X 3cm communicating with injury No. 3. 5. Gun shot wound of entry over right side of front of chest in the 5th intercostal space, 3cm from middle of sternum. Size 3cm X 2cm X cavity deep. Margins inverted. Blackening seen. 6. Badly lacerated wound over 3rd interdigital space of right hand. 6cm X 3cm X bone deep, continued over dorsal and palmer surface. According to the Medical Officer, cause of death of the deceased is come as a result of injuries described above. 14. P.W. 7, Dr. S.N. Sirvastava, who conducted post mortem examination of the dead body of deceased Daya Kishan (son of complainant Amba Datt) on 26.07.1984, at 11:00 a.m. and prepared autopsy report (Ext. A-46), recording following ante mortem injuries on the dead body of Daya Kishan. 1. Gun shot wound of entry with inverted margins, blackening and corching all around the wound,2.5cm x 2cm, 4cm below and medial to right nipple. 2. Gun shot wound of entry with inverted margins, blackening all around the wound, 2cm, x 2.5cm on middle of sternum, 7cm below supresternal noble. 3. Wound of exit, everted margins, no blackening at the T 10 level on midline or back 3cm X 4cm. 4. Wound of exit, everted margins. No blackening at inner margins of left scapula, at middle 3cm x 4cm. Cause of death according to the Medical Officer was shock and haemorrhage. 15. From the above post mortem reports, it is clearly established that all the six deceased namely Daya Kishan, his wife Tari Devi, his daughters- Usha, Jiwanti and his mother Rewati Devi and Kunwar Ram died homicidal death on 24.07.1984. The nature of ante mortem injuries show that they received gun shot injuries on the same day. Now the question is whether the accused/appellant Gauri Datt was one of the persons, who committed dacoity and murder after forming unlawful assembly for which he is charged, and it is also to be seen whether the alleged recovery of the looted property was made from him or not. 16. P.W. 1 Amba Datt (complainant) is an eye-witness. He has stated on oath that Ganga Singh (since killed in an encounter) belonged to Village Soral of the complainant. There was land dispute with Ganga Singh in the village and he (Ganga Singh) started harbouring enmity with the family of Amba Datt. He further told that earlier in the year 1983, Ganga Singh fired shots in the house of the complainant and his wife Rewati Devi got injured. However, since nobody could see the culprit as such, Ganga Singh was not named in that report. Thereafter on 24.07.1984, at about 4:30 p.m., when the complainant was getting repaired his water tank near his house, some six persons dressed in police uniform and armed with fire arms came to his house and they fired at Daya Kishan (son of the complainant). On this Smt. Rewati Devi, mother of Daya Kishan came out of house and she too was killed by the miscreants. Meanwhile, Lalita, minor daughter of of Daya Kishan could escape and came towards water tank. Thereafter, Tari Devi wife of Daya Kishan, who was coming from the village towards the house was fired at by two of the miscreants and died. Thereafter the said two miscreants entered inside the house, looted the property and murdered Usha and Jiwanti (both daughters of Daya Kishan) and also one Kunwar Ram, who had come to the house of the complainant. This witness has proved that he lodged First Information Report (Ext. A-1) with the police. P.W. 1 Amba Datt, has further stated that one of the miscreants was Ganga Singh. He further states that among the looted property his licensed rifle and S.B.B.L. gun were also looted. In this connection, he proved fire arm licenses (Ext. 2 and Ext. 3). He has also identified the two recovered arms (Ext. 1 and Ext. 2) after recovery was made. He has also identified the jewelry recovered from the accused. He has also stated that he participated in the identification proceedings. 17. P.W. 3 Lalita, minor daughter of Daya Kishan, who is also eye witness has corroborated the story as narrated by his grand father (P.W. 1 Amba Datt). 18. P.W. 2 Head Constable Basant Ballabh Joshi has proved that the First Information Report was registered by him on 24.07.1984, at 6:35 p.m. and that he prepared check report (Ext. A-4). He has further proved that he made entry in the general diary, extract of which is Ext. A-5. P.W. 2 Head Constable Basant Ballabh Joshi, has further stated that immediately information was sent by wireless to Ram Nagar, Ranikhet and Almora. Other police stations were also informed on phone. 19. P.W. 6 Sub-Inspector K.P. Sharma, has stated that on 25.07.1984, he was a member of police party, headed by Station House