Case: Kamaksha Rai Vs. State of U.P

2. In regard to an incident which took place in the early morning of 27.4.1975 in village Sherpur Kalan under Bhanwarkol Police Station, district Ghazipur, as many as 65 persons were tried for offences punishable under Section 302 read with Section 149, Sections 147, 364 read with Sec. 436 read with 149, Section 429 read with 149, Section 323 and with 149, Section 325 read with 149. Out of the said 64 accused persons, the trial court firstly convicted and sentenced3 andto imprisonment for life under Section 302 read with Section 149 for the murder of Radhey Shayam and Banarsi, and also convicted the abovesaid accused persons under various other offences, particulars of which may not be relevant at this stage. Nextly, the trial Court convicted and sentenced the above accused along with0 to5 andto undergo rigorous imprisonment (RI) for 10 years under Section 436 IPC read with Section 149 IPC for having committed arson and also sentenced them to undergo imprisonment for various other lesser offences. The sentences so awarded were directed to run concurrently.3. These 36 accused preferred the criminal appeal referred to above to the High Court of Judicature at Allahabad and the High Court as per its judgment dated 22.12.1993 partly allowed the said appeal and held that the prosecution has not established the charge under Section 302 read with Section 149 and Section 364 read with Section 149 against the accused who were convicted under the said Sections acquitted those appellants of the said charges but convicted all appellant Nos.for offence under Sections 147, 323, 325, 429 and 436 all read with Section 149 IPC, and also confirmed the sentence awarded by the trial Court under Sections 147 and 323 read with Section 149 and Section 325 read with 149 IPC. The sentences awarded by the trial Court under Section 429 read with Section 149 IPC in regard to these appellants were reduced to 3 years R.I. and the sentence awarded by the trial Court under Section 436 read with Section 149 IPC to R.I. for 5 years. The High Court also directed the sentences to run concurrently.4. Being aggrieved by the judgment and conviction awarded against them, 30 out of the 36 appellants have preferred Crl. A. No. 323/94 before this Court and being aggrieved by the acquittal of the appellants of their charge against Section 302 and connected offences referable to the first part of the incident, the State has preferred Crl. Appeal No. 114/96. It transpires that either during the pendency of the appeal before the High Court or during the pendency of these appeals, the following accused have since died and their respective appeals have abated in regard to : Shambhu Rai, Baliram Rai, Uma Rai, Janardan Rai, Chandrahas Rai, Harihar Rai, Abhai Rai, Chandradeo Rai and Ayodhya Rai. Therefore, in effect, both the appeals are for and against 25 other accused persons.5. The prosecution case, stated briefly, is that there was continuing feud between the members of the upper caste and the Harijans of Sherpur Kalan village within the Police Station Bhanwarkol in the district of Ghazipur consequent to which the Provincial Armed Constabulary (PAC) was posted near about the village. Inspite of the said security measures on 27.4.1975 at about the time of sunrise, accused 1 to 34 forming an unlawful assembly armed with deadly weapons like spears, Gandasas, and lathis came to the Harijan Basti and forcibly took away Radhey Shyam, son of Muneshwarand Banarsi who belonged to the Harijan community to the Khalihan of Ram Chander Rai where beneath a peepal tree the bodies of two persons named Ram Chander Rai and Mangla Rai belonging to the upper caste were lying and belaboured the said Radhey Shyam and Banarsi mercilessly consequent to which the said two persons died on the spot. The attack on Radhey Shyam and Banarsi was witnessed by prosecution witnesses PWs. 1, 2,0. Thereafter, these 34 persons were joined by accused Nos. 35 to 65 who together started proceeding towards the Harijan Basti. On the way, according to the prosecution, this group of upper caste members was further joined by another group of nearlypeople and they together indulged in assaulting the members of the Harijan Basti, looting and setting ablaze the huts belonging to the members of the Harijan community. Consequently, a large number of hutments and cattle were destroyed in the fire and nearly 17 members of the Harijan Basti were injured. The prosecution witnesses, as stated above, implicated accused Nos.before the trial Court of having abducted Radhey Shyam and Banarsi and having caused various types of injuries on them and ultimately causing death of these 2 persons. They have implicated accused Nos.of having indulged in arson, causing hurt and destroying property in the Harijan Basti along with anothermembers of the upper caste who were not brought to trial.6. The prosecution case in regard to the murder of Radhey Shyam and Banarsi (hereinafter referred to as the first incident) and subsequent attack on Harijan Basti (hereinafter referred to as the second incident) was due to a suspicion entertained by the accused in regard to the death of Ram Chander Rai and Mangla Rai which, according to the prosecution, had taken place sometime in the midnight between 26th and 27th April, 1975 at the Khalihan of Ram Chander which came to be known to the family of the said Ram Chander Rai and Mangla Rai in the early morning ofng that the said murders must have been caused by deceased Radhey Shyam and Banarsi. Accusedtook the law into their own hands and committed the murders of Radhey Shyam and Banarsi and in the company of64 committed the offences alleged against them in the second incident.7. The FIR in regard to the death of Radhey Shyam and Banarsi and subsequent attack on the Harijan Basti was given by Muneshwarby an oral complaint made to Ram Nagina Prasad Singhwho was one of the investigating officers in the case. In the said FIR,36 along withunnamed persons as members of the mob which committed the murder of Radhey Shyam and Banarsi and the subsequent attack on Harijan Basti. After investigation, the prosecution, as stated above, challaned34 for offences punishable under Sections 147, 148, 364, 149, 302 and 149 and further challaned accused Nos.for offences under Sections 147, 323, 436, 429,25 read with 149 IPC with reference to the second part of the incident, namely, arson and attack on the Harijan Basti. During the trial, the prosecution relied on the direct evidence of PWs. 1, 2,20 with regard to the first incident and PWs. 1 to 21 in regard to the second incident. During the trial, one of the accused by name Baikunth Upadhyaya died hence the trial proceeded against accused Nos.only.8. The trial Court accepted the evidence of the prosecution with reference to the first incident as against4 and convicted them of offence under Section 302 read with Section 149 along with lesser offences for their role in the murders of Radhey Shyam and Banarsi and accepted the case of the prosecution as against34 in regard to their role with reference to the attack on the Harijan Basti and sentenced them accordingly while acquitting the other accused persons.9. In appeal, the High Court on reappreciation of the evidence did not accept the case of the prosecution in regard to the murders of Radhey Shyam and Banarsi as put forth by the prosecution and relying upon the material available on record, came to the conclusion that the death of Ram Chander Rai, Mangla Rai, Radhey Shyam and Banarsi occurred at or about the same time as a sequel to attack on each other by the two groups. According to the High Court, the attack on Ram Chander Rai and Mangla Rai came to be known to the members of the upper caste on hearing the cries of one Jagdish Rai who was injured in the said attack and in the consequent attack and counter attack, Ram Chander Rai, Mangla Rai, Radhey Shyam and Banarsi succumbled to the injuries suffered by them. Therefore, the High Court considered it not safe to rely upon the prosecution case with reference to the first incident and acquitted accused3 andof the charge of murder for which the trial court had awarded life imprisonment to these accused persons and acquitted them of other incidental charges found against these accused by the trial Court, but accepted the case of the prosecution in regard to the second incident relying upon the evidence of the prosecution, confirmed the sentence awarded by the trial Court on36 on account of the second incident.

Reasoning:
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.