Case: Kamaksha Rai Vs. State of U.P

time to cross-check the particulars given in the chart. After cross-checking the same with reference to the evidence available on record, the learned counsel for the State has agreed that the particulars given in the chart are correct. In view of the fact that there is considerable confusion in the ranking assigned to the appellants/accused persons in the trial Court, High Court and in this Court, we consider it necessary to refer to the appellants by their names while discussing the merits of their individual cases in these appeals. The evidence of PWs. 1 to 3 has not found any corroboration in regard to the appellants - Basan Rai son of Sukha Rao, Shri Rai son of Sheomuni Rai, Singhasan Rai son of Brahmdeo Rao, Uma Rai son of Badan Rai, Sita Rai son of Ramadeo Rai, Gurudatt Rai son of Lodhi Rai, Lallu @ Lallu Rai son of Radhika Rai, Nand Kishore Rai son of Lakshmi Rai, Bindhyachal Rai son of Nandan Rai, Munni Lal Rai son of Radhika Rai, Chhabinath Rai son of Bipin Bihari Rai and Mahendra Rai son of Ram Naresh Rai. On the basis of the reasoning adopted by us hereinabove as against these appellants, it cannot be said that the prosecution has established its case beyond reasonable doubt as against these appellants.15. With reference to Deena Rai son of Brahmdeo Rai, apart fom the evidence of PWs. 1-3, PW-5 has spoken about their presence at the time of the second incident and he has stated that these three persons were responsible to set his house on fire. In the cross-examination apart from establishing the fact that his evidence was recorded 3 days after the incident which in a case of this nature we find not very unnatural we are of the opinion that there is corroboration in regard to the evidence of PWs. 1-3 in regard to the participation of this accused person. In regard to Tarkeshwar Rai son of Ram Raksh Rai in addition to the evidence of PWs. 1-3, there is the evidence of PWs. 10, 11, 12, 14 and 15 which corroborates the evidence of PWs. 1-3, hence, we do not find any difficulty in coming to the conclusion that the prosecution has established the charges levelled against this accused with reference to the second incident. 16. In regard to Sivil Rai son of Baijnath Rai apart from the anchor evidence, there is the evidence of PW-8. He has stated in his evidence that Sivil Rai was one of the persons who was present at the time of attack and had set his house ablaze. We find in the cross-examination nothing material has been elicited to disbelieve the evidence of this witness. Therefore, we find corroboration in the prosecution case in support of the evidence of PWs. 1-3 to find this person also guilty of his participation in the second incident. 17. In regard to Kamaksha Rai son of Chengan Rai apart from the anchor evidence, there is the evidence of PWs. 11, 15 and 16 corroborating the same. Therefore, we do not find any difficulty in coming to the conclusion that this accused was present and had taken part in the second incident. The same can be said of Raja Ram Rai son of Chengan Rai whose presence and participation is corroborated in support of the anchor evidence by PWs. 10 and 16. Tarkeshwar Rai son of Suraj Rais participation in the second incident is spoken to by the anchor witness whose evidence is supported by the evidence of PW-10. She has in specific terms stated that two Tarkeshwar Rais i.e. Tarkeshwar Rai son of Ram Raksh Rai and Junior Tarkeshwar Rai meaning thereby both the Tarkeshwars had set her house afire consequent to which she lost her house and two domestic animals. In her cross-examination, we find that the defence has not been able to establish any contradiction or doubt. Therefore, we have no hesitation in accepting her evidence. With reference to Harihar Rai son of Dubari Lal apart from the anchor evidence PW-6 has spoken in specific terms with reference to the act of this accused having set his house on fire. Therefore, on finding corroboration, we find him guilty of his presence and participation in the second incident. In regard to Rama Rai son of Kali Ram - the case against him is sought to be corroborated through the evidence of PW-6 whose evidence we have already accepted with reference to Harihar Rai and this corroborating witness has also named this accused specifically with particulars of the overt act of burning his house. Therefore, his case stands on the same footing as that of Harihar Rai and we accept the prosecution case against this accused in regard to his presence and participation in the second incident. 18. In regard to Mukteshwar Upadhya son of Rama Upadhya, PW-5 apart from the anchor witnesses speaks about the presence of this accused at the time of the second incident. We have accepted the evidence of this witness with reference to Deena Rai above. On the same basis we find that this witness PW-5 corroborates the evidence of the anchor witness in regard to this appellant, hence, we find him also guilty of the presence and participation in the second incident. 19. In regard to Sheomuni Rai son of Chengan Rai, PWs. 1 to 3s evidence is supported by the evidence of PW-8. Though we have accepted the evidence of PW-8 with reference to the participation of Sivil Rai son of Baijnath Rai, we find it difficult to accept the evidence of this witness (PW-8) with reference to this accused since there seems to be some confusion in regard to the name of this accused in the evidence of this witness as there is no other witness to corroborate the evidence of the anchor witnesses. Apart from this witness, we consider it unsafe to rely upon the evidence of this witness. Hence, this accused is entitled to the benefit of doubt.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In view of the fact that there is considerable confusion in the ranking assigned to the appellants/accused persons in the trial Court, High Court and in this Court, we consider it necessary to refer to the appellants by their names while discussing the merits of their individual cases in these appeals. The evidence of PWs. 1 to 3 has not found any corroboration in regard to the appellantsBasan Rai son of Sukha Rao, Shri Rai son of Sheomuni Rai, Singhasan Rai son of Brahmdeo Rao, Uma Rai son of Badan Rai, Sita Rai son of Ramadeo Rai, Gurudatt Rai son of Lodhi Rai, Lallu @ Lallu Rai son of Radhika Rai, Nand Kishore Rai son of Lakshmi Rai, Bindhyachal Rai son of Nandan Rai, Munni Lal Rai son of Radhika Rai, Chhabinath Rai son of Bipin Bihari Rai and Mahendra Rai son of Ram Naresh Rai. On the basis of the reasoning adopted by us hereinabove as against these appellants, it cannot be said that the prosecution has established its case beyond reasonable doubt as against these appellants.15. With reference to Deena Rai son of Brahmdeo Rai, apart fom the evidence of PWs.5 has spoken about their presence at the time of the second incident and he has stated that these three persons were responsible to set his house on fire. In theapart from establishing the fact that his evidence was recorded 3 days after the incident which in a case of this nature we find not very unnatural we are of the opinion that there is corroboration in regard to the evidence of PWs.in regard to the participation of this accused person. In regard to Tarkeshwar Rai son of Ram Raksh Rai in addition to the evidence of PWs.there is the evidence of PWs. 10, 11, 12, 14 and 15 which corroborates the evidence of PWs.hence, we do not find any difficulty in coming to the conclusion that the prosecution has established the charges levelled against this accused with reference to the secondn, we find that the defence has not been able to establish any contradiction or doubt. Therefore, we have no hesitation in accepting her evidence. With reference to Harihar Rai son of Dubari Lal apart from the anchor evidencehas spoken in specific terms with reference to the act of this accused having set his house on fire. Therefore, on finding corroboration, we find him guilty of his presence and participation in the second incident. In regard to Rama Rai son of Kali Ramthe case against him is sought to be corroborated through the evidence ofwhose evidence we have already accepted with reference to Harihar Rai and this corroborating witness has also named this accused specifically with particulars of the overt act of burning his house. Therefore, his case stands on the same footing as that of Harihar Rai and we accept the prosecution case against this accused in regard to his presence and participation in the secondthe same basis we find that this witnesscorroborates the evidence of the anchor witness in regard to this appellant, hence, we find him also guilty of the presence and participation in the secondwe have accepted the evidence ofwith reference to the participation of Sivil Rai son of Baijnath Rai, we find it difficult to accept the evidence of this witnesswith reference to this accused since there seems to be some confusion in regard to the name of this accused in the evidence of this witness as there is no other witness to corroborate the evidence of the anchor witnesses. Apart from this witness, we consider it unsafe to rely upon the evidence of this witness. Hence, this accused is entitled to the benefit of doubt.20. Coming to the appeal of the State wherein the State has challenged the acquittal of those 5 persons of the charges under Section 302 read with Section 149, Section 364 read with Section 149 and further reducing the sentence of all the respondents for the offences under Sections 429/149 and 436/149 IPC from 5 years to 3 years RI and from 10 years and to 5 years RI. We have heard learned counsel for the State as well as for the respondents. We find the reasoning of the High Court that the incident leading to the murders of Radhey Shyam and Banarsi has not been established by the prosecution, as alleged by it. From the evidence on record the prosecution has failed to explain the circumstances in which Ram Chander Rai and Mangla Rai came to be murdered. The notice attributed in the present case having a direct bearing on the incident which led to the death of Ram Chander Rai and Mangla Rai, it cannot be said that the genesis of the attack has been properly brought forth in the prosecution case. The view taken by the High Court that both the sets of murder might have been the result of a fight between two groups of persons in the village which the investigating agency has not been able to unearth and present to the Court in its true perspective/sequence, cannot be said to be perverse and unreasonable so as to call for interference by this Court in these appeals. We are also of the opinion that taking into consideration all facts and circumstances of the case, the decision of the High Court to alter the sentence awarded by the trial Court by reducing the same from 5 years to 3 years RI for offence under Section 429 read with Section 149 and from 10 years to 5 years RI for offence under Section 436 read with Section 149 IPC respectively cannot also be said to be erroneous and unreasonable so as to call for our interference.