Cav Judgment:

(Per: Honourable Mr. Justice Bibek Chaudhuri)

Prologue

1. Before we embark upon the examination of the evidence in these appeals, this Court considers it necessary to place on record a few reflections of a more fundamental character.

2. The investigation of crime is not a mere administrative formality. It is a solemn public trust. Those entrusted with the duty of collecting evidence, preserving the scene of crime, recording statements, and placing the truth before the Court discharge a function that lies at the very heart of the administration of justice. When that duty is performed indifferently, incompletely, or with studied negligence, the entire edifice of criminal justice is placed in jeopardy. Innocent persons may suffer prolonged incarceration; the real perpetrators may escape; and the faith of the common citizen in the rule of law is steadily eroded.

3. This is not the first instance in which this Court has been constrained to notice serious lapses in investigation: the failure to take photographs or measurements, the non-examination of material scientific evidence, the non-tracing of independent witnesses, the omission to record vital particulars in the case diary, and the general absence of that sense of urgency and thoroughness which a case of triple murder in broad daylight demanded. Nor, regrettably, is it likely to be the last. Such recurring dereliction, whether born of ignorance, indolence, or worse, strikes at the root of the criminal process.

4. The ancient tradition of this land has always regarded the faithful discharge of one’s assigned duty as sacred. The Taittiriya Upanishad enjoins:

                  “Satyam vada, dharmam chara” - Speak the truth; practise righteousness.

5. The Manusmṛiti declares with unmistakable clarity:

                  “Dharma eva hato hanti, dharmo raksati raksitaḥ | Tasmad dharmo na hantavyo, ma no dharmo hato’ vadhit ||” (Manusmṛiti 8.15)

                  “Justice, when violated, destroys; justice, when preserved, preserves. Therefore justice must not be violated, lest violated justice destroy us.”

6. The same text further instructs that the seeker of truth in a dispute must pursue it with the diligence of a hunter who traces the wounded deer by the drops of blood (Manusmṛiti 8.44). The duty is not discharged by half-measures or by leaving crucial avenues unexplored.

7. The sages of old, including the mythical demigod lineage originating from Maharishi Kashyap, consistently upheld that dharma is not a matter of convenience but of uncompromising obligation. The performance of one’s ordained duty, particularly when it concerns the discovery of truth and the protection of the social order, was regarded as an act of the highest merit. When those charged with the investigation of crime treat their responsibility lightly, they do not merely fail in an official task; they violate a dharma that the Shruti and Smṛiti have held inviolable. The consequences of such failure are borne not by the officers alone, but by the victims, the accused, the courts, and ultimately by society itself.

8. It is in this spirit of deep concern, and with the earnest hope that those responsible for the investigation of crime will recognise the gravity of the trust reposed in them, that we proceed to examine the present appeals on their merits.

I. Introduction and Procedural History

9. These four criminal appeals arise out of the common judgment of conviction dated 24.01.2019 and the order of sentence dated 31.01.2019 passed by the learned Additional District & Sessions Judge-II, Lakhisarai in Sessions Trial No. 203 of 2017 (arising out of Kajra P.S. Case No. 50 of 2017).

The four appeals are:

(i) Criminal Appeal (DB) No. 553 of 2019

10. Preferred by Kiran Singh and Angad Kumar against their conviction under Sections 148, 302/149, 307/149 and 120-B of the Indian Penal Code and Section 27 of the Arms Act and the sentences of life imprisonment and other concurrent sentences awarded to them.

(ii) Criminal Appeal (DB) No. 248 of 2019

11. Preferred by Rohit Kumar, Ramaiya Kumar and Krishna Kumar against their conviction under the same sections and the sentences of life imprisonment and other concurrent sentences awarded to them.

(iii) Criminal Appeal (DB) No. 437 of 2019

12. Preferred by Shaligram Singh @ Khapru Singh against his conviction solely under Section 120-B of the Indian Penal Code and the sentence of rigorous imprisonment for life with fine.

(iv) Criminal Appeal (DB) No. 348 of 2019

13. Preferred by Ruchi (daughter of the deceased informant Pawan Kumar Singh) against the acquittal of accused Suraj Singh @ Suro Singh. The appellant seeks that the acquittal be set aside and Suraj Singh @ Suro Singh be convicted under Section 120-B of the Indian Penal Code.

14. By the impugned judgment, the learned trial court:

                  * Convicted Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar under Sections 148, 302/149, 307/149 and 120-B IPC and Section 27 of the Arms Act and sentenced them to rigorous imprisonment for life under Section 302/149 IPC and Section 120-B IPC, with concurrent lesser sentences under the other sections, along with fines and default stipulations.

                  * Convicted Shaligram Singh @ Khapru Singh only under Section 120-B IPC and sentenced him to rigorous imprisonment for life with fine.

                  * Acquitted Suraj Singh @ Suro Singh by giving him the benefit of doubt.

                  * Directed the State of Bihar to pay compensation of Rs. 4,00,000/- to the legal heirs of each of the three deceased.

15. All the four appeals have been heard together and are being disposed of by this common judgment, as they arise out of the same judgment, the same set of evidence and involve overlapping questions of fact and law.

16. We have heard the learned counsel appearing for the appellants in the three appeals against conviction, the learned counsel appearing for the appellant in the appeal against acquittal, and the learned APP appearing for the State. We have also carefully perused the entire lower court records, the oral and documentary evidence, the statements of the accused recorded under Section 313 of the CrPC, and the impugned judgment.

II. Prosecution Case

17. The prosecution case, as unfolded in the written report (fardbeyan) of the informant Pawan Kumar Singh (Ext. 1), is as follows:

                  "On 02.08.2017 at about 6:00 p.m., while the informant was returning from his field, he saw ten named persons of his village, namely (1) Shaligram Singh @ Khapru Singh, (2) Suro Singh, (3) Dilip Kumar, (4) Guddu Kumar, (5) Kiran Singh, (6) Angad Kumar, (7) Suraj Singh (son of Kiran Singh), (8) Rohit Kumar, (9) Ramaiya Kumar and (10) Krishna Kumar, coming out of Kisan Bhawan, Pokhrama. Shaligram @ Khapru Singh is alleged to have said that the work should be finished and thereafter they should escape safely. Kiran Singh is alleged to have stated that no one should be left alive and that after shooting, the victims should also be stabbed with a sharp knife. Khapru Singh and Suro Singh are alleged to have said that they would go to jail the next day so that no one would suspect them, whereupon Kiran Singh replied that they should go to jail and he would manage the entire episode. The informant claims that at that time he could not fully comprehend that the conversation related to his own family.

                  On 04.08.2017 at about 8:00-8:30 a.m., the informant, while sitting with Chandrachur Singh and Dhiraj Kumar, heard cries of “Bachao-Bachao” emanating from Durgasthan. All three rushed towards the spot. There they saw Rohit Kumar, Ramaiya Kumar and Krishna Kumar attacking Sanjeev Kumar @ Jhalo with knives. Guddu Kumar, Dilip Kumar, Kiran Singh, Angad Kumar and Suraj Singh were armed with pistols. Kiran Singh and Angad Kumar fired at Sanjeev Kumar @ Jhalo, who died on the spot. Seeing the informant and others approaching, Suraj Singh (son of Kiran Singh) fired at them, but the shots missed.

                  Immediately thereafter, the same group of accused proceeded towards the southern fields (Dhai Bighwa Bahiyar / Uprar Badhar) where the informant’s brother Ram Shekhar Singh and nephew Ripu Kumar (Indrasen Kumar) were supervising the transplantation of paddy. Gopal Kumar, who was carrying fertilizer towards the fields, overheard the accused saying that they would also eliminate Ram Shekhar Singh and Ripu Kumar. He threw the fertilizer, ran back and informed the informant and others. The four persons (informant, Gopal, Chandrachur and Dhiraj) then ran towards the fields. When they were still some distance away, Suraj Singh again fired at them with a pistol, forcing them to stop. From that position they claim to have seen Rohit Kumar and Ramaiya Kumar stabbing Ram Shekhar Singh and Krishna Kumar stabbing Ripu Kumar. After the two victims fell, Kiran Singh and Guddu Kumar fired at Ram Shekhar Singh, while Angad Kumar and Dilip Kumar fired at Ripu Kumar. Both died. The accused then confirmed that the victims were dead, declared that the oath taken on 02.08.2017 had been fulfilled, and fled towards the Urain railway line while firing in the air.

18. The informant and the other witnesses thereafter went near the dead bodies. With the help of villagers, the police were informed and the written report was submitted.

19. On the basis of the aforesaid written report, Kajra P.S. Case No. 50 of 2017 was registered under Sections 147, 148, 149, 324, 307, 302 and 120-B of the Indian Penal Code and Section 27 of the Arms Act. The investigation was taken up, initially informally and later formally, by Inspector Ram Niwas (PW-5) on the verbal direction of the Superintendent of Police, Lakhisarai. Inquest reports of the three deceased were prepared by Sub-Inspector Arun Kumar Yadav (PW-9). The dead bodies were sent for post-mortem examination to Sadar Hospital, Lakhisarai. After completion of investigation, charge-sheet No. 39 of 2017 dated 09.09.2017 was submitted against eight accused persons (showing two as absconding at that stage).

20. Cognizance was taken by the learned Additional Chief Judicial Magistrate, and the case was committed to the Court of Session. Charges were framed on 24.01.2018 against the accused persons for the offences punishable under Sections 120-B, 147, 148, 302/149, 307/149 of the Indian Penal Code and Section 27 of the Arms Act. The accused pleaded not guilty and claimed to be tried.

21. During the pendency of the trial, the informant Pawan Kumar Singh himself was murdered, for which Lakhisarai P.S. Case No. 14 of 2018 was registered. Consequently, he could not be examined as a witness in the present trial.

22. The defence of the accused, as emerging from the trend of cross-examination and their statements recorded under Section 313 of the CrPC, is that of complete innocence and false implication due to long-standing land dispute and political rivalry. Specific alibis were pleaded on behalf of some of the accused, and an alternative theory that the murders were committed by Maoists was also suggested.

III. Evidence on Record

23. In order to prove its case, the prosecution examined altogether ten witnesses and produced a number of documents which were exhibited.

                  Prosecution Witnesses-

                  * PW-1 Gopal Singh @ Gopal Kumar: Claimed ocular witness to the second occurrence (murder of Ram Shekhar Singh and Ripu Kumar) and to the movements of the accused after the first occurrence. He is a close relative of the deceased (Ripu was his sibling, Ram Shekhar his uncle, Sanjeev his cousin).

                  * PW-2 Dhiraj Kumar: Claimed ocular witness to both the occurrences at Durgasthan and at Dhai Bighwa Bahiyar. He is also a close family member of the deceased.

                  * PW -3 Chandrachur Singh: Claimed ocular witness to both the occurrences. He is a cognate / family member of the deceased and has admitted long-term residence at Lakhisarai.

                  * PW-4 Ashok Singh: Post-occurrence witness. He reached the first place of occurrence after hearing gunshots, saw the dead body of Sanjeev @ Jhalo and the named accused fleeing southwards near the telephone exchange. He is also a family member.

                  * PW-5 Inspector Ram Niwas: Investigating Officer of the case. He proved the places of occurrence, the recording of statements of witnesses, the seizure of blood-stained earth, and the steps taken during investigation.

                  * PW-6 Sanjeev Kumar: Officer-in-Charge of Kajra Police Station at the relevant time. He received the initial information, went to the village, and formally registered the FIR / handed over investigation.

                  * PW-7 Dr. Bipin Kumar: Medical Officer, Sadar Hospital, Lakhisarai. He participated in the post-mortem examination of the three deceased and signed the reports.

                  * PW-8 Dr. Bibhushan Kumar: Medical Officer who actually conducted and authored the three post-mortem reports (Exts. 4, 5 and 6).

                  * PW-9 Arun Kumar Yadav: Sub-Inspector of Police who prepared the inquest reports of all three deceased at the respective places of occurrence (Exts. 7, 7/1 and 7/2).

                  * PW-10 Kamleshwari Prasad Mehta: Formal witness who proved the execution and filing of the earlier informatory petition / Sanha (Ext. 8).

24. The informant Pawan Kumar Singh could not be examined as he was murdered during the pendency of the trial.

                  Prosecution Exhibits

                  * Ext. 1 - Written report / fardbeyan of the informant.

                  * Ext. 1/1 - Endorsement / order of the Officer-in-Charge for registration of the FIR.

                  * Ext. 2 - Charge-sheet No. 39/2017 dated 09.09.2017.

                  * Ext. 3 - Formal FIR.

                  * Ext. 4 - Post-mortem report of Sanjeev Kumar @ Jhalo Singh.

                  * Ext. 5 - Post-mortem report of Ram Shekhar Singh.

                  * Ext. 6 - Post-mortem report of Indrasen Kumar @ Ripu Singh.

                  * Exts. 7, 7/1 & 7/2 - Carbon copies of the inquest reports of the three deceased.

                  * Ext. 8 - Informatory petition / Sanha No. 920/2017.

                  * Exts. 9, 10 & 11 - Certified copies of earlier FIR, order-sheets and related documents concerning previous cases (produced to show the background of custody of Shaligram and Suro).

                  * Marks X, X/1, X/2 - Signatures of witnesses on the inquest reports / photocopies.

25. On behalf of the defence, three witnesses were examined:

                  * DW-1 Nathan Paswan: Claimed that Maoists had come to the southern Bahiyar and that he later heard about the murder. He did not claim to have witnessed the actual occurrence.

                  * DW-2 Gulshan Kumar: Attempted to support an alibi for accused Krishna Kumar by stating that the latter was working with him in Surat (Gujarat).

                  * DW-3 Bambam Kumar: Claimed that on the morning of 04.08.2017 he was with Ramaiya Kumar (and others) while ploughing a field and saw unidentified armed men with covered faces going towards the south.

26. The defence also produced the following documents:

                  * Ext. A - Certified copy of deposition of Shaligram Singh @ Khapru Singh in Sessions Trial No. 753/2017.

                  * Ext. A/1 - Certified copy of deposition of Dilip Kumar @ Vikan in Sessions Trial No. 758/2013.

                  * Ext. A/2 - Certified copy of order passed in Sessions Trial No. 318/2004.

                  * Ext. A/3 - Certified copy of judgment passed in Sessions Trial No. 318/2004.

27. These documents were tendered primarily to demonstrate prior enmity and earlier litigation between the two sides.

28. The statements of all the accused were recorded under Section 313 of the CrPC. They denied the incriminating circumstances appearing against them and pleaded false implication due to land dispute and political rivalry.

IV. Arguments

A. Arguments on behalf of the Appellants in the Appeals against Conviction. Common submissions on behalf of Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar, Krishna Kumar and Shaligram Singh @ Khapru Singh

29. Learned counsel appearing for the appellants in Criminal Appeals (DB) Nos. 553 of 2019, 248 of 2019 and 437 of 2019 submitted that the entire prosecution case is false and fabricated. The appellants have been falsely implicated on account of long-standing land dispute and political rivalry. It was pointed out that appellant Kiran Singh had defeated the wife of the informant in the Panchayat Samiti election, which supplied the immediate motive for false implication of the entire family.

30. It was contended that all the material witnesses (PW-1 to PW-4) are close family members of the deceased. There is no independent witness to the actual assaults. The evidence of interested witnesses requires a high degree of scrutiny and cannot be accepted as gospel truth.

31. Serious doubt was cast on the presence of PW-1, PW-2 and PW-3 at the places of occurrence. PW-3 admitted that he has been residing at Karyanand Nagar, Lakhisarai for 22 years and that the informant also lived there. The suggestion that these witnesses were still in Lakhisarai at the time of the occurrence was not satisfactorily rebutted.

32. Even assuming presence, their ability to observe and attribute specific roles is highly doubtful. They admitted that they were fired upon and could not go closer. The distances claimed make precise identification of individual acts unreliable.

33. Material contradictions exist in the evidence of the three ocular witnesses on distances, positions, number of injuries, who reached first, whether other villagers chased the accused, and the sequence of events.

34. The fardbeyan itself is an afterthought. It is too exhaustive and meticulously drafted for a person who had just witnessed the brutal murder of three family members. The delay in lodging the FIR (police present from about 9:30-10:30 a.m. but FIR registered at 14:35 hours, and according to PW-2 effectively after discussion with Pramod Singh who arrived in the afternoon) further strengthens the inference of deliberation and tutoring.

35. The story of conspiracy on 02.08.2017 at Kisan Bhawan is equally an afterthought introduced to implicate even those who were already in judicial custody.

36. The investigation is thoroughly defective; no photographs, no forensic examination of blood-stained earth, no recovery of weapons or empties, non-tracing of Saharsa labourers, non-recording of residence particulars of key witnesses, etc.

37. The non-examination of the informant is fatal, particularly to the conspiracy charge.

                  Specific submissions on behalf of Rohit Kumar, Ramaiya Kumar and Krishna Kumar (Cr. App. 248/2019)

38. These three appellants were attributed the role of causing knife injuries. Learned counsel highlighted the unnatural conduct of PW-1 (he did not warn his brother after overhearing the threat) and the contradictions regarding whether

the witnesses could have seen the first occurrence at Durgasthan. The evidence of DW-2 (Surat alibi for Krishna) and DW-3 (ploughing alibi for Ramaiya and others) was pressed. It was also submitted that appellant Rohit Kumar is suffering from AIDS and deserves a lenient view on humanitarian grounds.

Specific submissions on behalf of Shaligram Singh @ Khapru Singh (Cr. App. 437/2019)

39. Learned counsel for Shaligram submitted that the appellant was admittedly in judicial custody on the date of occurrence in Kajra P.S. Case No. 11 of 2017 (bail granted but bond not furnished). He could not, therefore, have been a member of the unlawful assembly that committed the murders on 04.08.2017.

40. There is no direct or cogent evidence of the conspiracy meeting of 02.08.2017. The informant has not been examined and the other witnesses only claim to have heard about it from the informant after the occurrence. The trial court has convicted him on pure conjecture and surmises.

41. The trial court adopted a double standard: on the same evidence it acquitted his son Suro @ Suraj by giving him the benefit of doubt, but convicted the father under Section 120B IPC.

42. The appellant is about 80 years of age, infirm, and his entire family has been implicated, leaving his old wife alone. The conviction is wholly unsustainable.

B. Arguments on behalf of the Appellant in the Appeal against Acquittal (Cr. App. (DB) No. 348 of 2019)

43. Learned counsel for the appellant Ruchi (daughter of the deceased informant) submitted that the trial court committed a serious error in acquitting Suraj Singh @ Suro Singh.

44. The prosecution evidence clearly establishes that Suraj @ Suro was an active participant in the conspiracy hatched on 02.08.2017 at Kisan Bhawan. According to the fardbeyan and the evidence of the ocular witnesses, he, along with his father Shaligram, agreed to go to jail so that suspicion would not fall on the others, while the remaining accused would execute the plan.

45. Ext. 10 (order-sheet of Kajra P.S. Case No. 11 of 2017) proves that both Shaligram and Suro surrendered / were remanded to judicial custody around 03.08.2017, which is fully consistent with the prosecution case of prior planning.

46. The trial court itself found the conspiracy proved against Shaligram on the same set of circumstances, yet adopted a discriminatory and inconsistent approach in acquitting Suro. Once the conspiracy is held proved, both the persons who agreed to go to jail as part of the plan are equally liable under Section 120-B IPC.

47. The acquittal of Suraj @ Suro is perverse and is liable to be set aside. He deserves to be convicted under Section 120-B IPC and adequately sentenced.

Arguments on behalf of the State

48. Learned APP strongly supported the convictions of Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar. He submitted that PW-1, PW-2 and PW-3 are natural witnesses who lost their close family members in a brutal daylight attack. Their evidence is consistent, detailed and corroborative of each other on the sequence of events, the places of occurrence, the weapons used and the specific roles played by the appellants. Minor variations are natural and do not detract from the core of their testimony.

49. The medical evidence (PW-7 and PW-8) fully corroborates the ocular account. The presence of firearm and stab injuries, blackening and tattooing on some entry wounds, and mud on the bodies of the two deceased killed in the fields completely support the prosecution version.

50. The places of occurrence have been clearly proved by the Investigating Officer and the inquest officer and match the ocular evidence.

51. On the question of presence, mere admission of long-term residence at Lakhisarai does not prove that the witnesses were absent from the village on the morning of 04.08.2017. All three witnesses have categorically denied the suggestion of absence. The defence has failed to produce any positive evidence to establish that they were in Lakhisarai at the relevant time.

52. The ability of the witnesses to observe the occurrence was defended on the ground that the fields were open, the accused were known to them, and the natural reaction upon seeing close relatives being murdered is to watch rather than to flee or hide. The muddy condition of the fields may restrict movement but does not obstruct visibility.

53. The delay in lodging the formal FIR has been satisfactorily explained. The family was in a state of extreme shock after losing three members. There were a large crowd and a law-and-order situation. The relatives were waiting for another family member to arrive from Patna. Delay of a few hours in such circumstances is not fatal, especially when the police were already present and the core version has remained consistent.

54. The absence of independent witnesses is fully explained by the fear generated by the extreme brutality of the crime. Even Jai Prakash, the shopkeeper whose shop is situated at the first place of occurrence, refused to name the assailants out of fear, though he supported the sequence that the accused went towards the fields after the first murder.

55. Defective investigation, even if present, does not ipso facto destroy a credible ocular case supported by medical evidence. The omissions pointed out by the defence are not of such a nature as to go to the root of the prosecution case.

56. The alibis pleaded by the defence have not been proved. The burden under Section 103 of the Evidence Act lies on the accused. On the material brought on record, that burden has not been discharged. The Maoist theory is a mere suggestion without any supporting material.

57. Previous enmity and political rivalry supply a strong motive for the accused to commit the crime rather than a motive for false implication.

58. As regards Shaligram Singh @ Khapru Singh, the learned APP submitted that the conviction under Section 120-B IPC is sustainable on the basis of circumstantial evidence, the conduct of the accused in remaining in custody as planned, and the overall chain of circumstances.

59. On the appeal against acquittal of Suraj @ Suro (Cr. App. 348 of 2019), the State supported the trial court’s decision to give him the benefit of doubt, while maintaining that the evidence against him was not as strong as against the others who actually participated in the assaults.

60. In sum, the learned APP submitted that the trial court has carefully appreciated the evidence, applied the correct legal principles, and reached a just conclusion in respect of the five main convicts and Shaligram. The appeals against conviction deserve to be dismissed, and the appeal against acquittal of Suraj also deserves to be dismissed.

V. Points for Determination

61. On the basis of the rival submissions advanced in all the four appeals and the evidence on record, the following points arise for determination:

                  5.1. Whether the presence of the three ocular witnesses (PW-1 Gopal Singh, PW-2 Dhiraj Kumar and PW-3 Chandrachur Singh) at the relevant time and places of occurrence on 04.08.2017 has been satisfactorily established by the prosecution?

                  5.2. Whether the evidence of the ocular witnesses regarding the manner of occurrence, the sequence of events and the specific roles attributed to the appellants and the other accused is reliable, consistent and trustworthy?

                  5.3. Whether the medical evidence fully corroborates the ocular account of the nature of the injuries and the cause of death of the three deceased?

                  5.4. Whether the places of occurrence have been duly proved and are consistent with the ocular and other evidence?

                  5.5. Whether the delay in the formal registration of the FIR is fatal to the prosecution case or has been satisfactorily explained?

                  5.6. Whether the investigation conducted by the police suffers from such serious infirmities and omissions as to render the entire prosecution case doubtful?

                  5.7. Whether the non-examination of the informant Pawan Kumar Singh is fatal to the prosecution case, particularly with respect to the allegation of conspiracy?

                  5.8. Whether the defence has succeeded in establishing the alibis pleaded on behalf of the appellants / co-accused or the alternative theory of Maoist involvement?

                  5.9. Whether the previous enmity and political rivalry between the parties operate as a motive for the commission of the crime by the accused or as a motive for their false implication by the prosecution witnesses?

                  5.10. Whether the prosecution has proved the existence of an unlawful assembly and the common object of the members thereof (Section 149 IPC), as also the criminal conspiracy (Section 120-B IPC), beyond reasonable doubt?

                  5.11. Whether the prosecution has proved the charges against Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar beyond all reasonable doubt?

                  5.12. Whether the conviction of Shaligram Singh @ Khapru Singh solely under Section 120-B IPC is sustainable in law and on facts, particularly in view of the admitted fact that he was in judicial custody on the date of occurrence?

                  5.13. Whether the acquittal of Suraj Singh @ Suro Singh recorded by the trial court is perverse or has resulted in miscarriage of justice so as to warrant interference in the appeal against acquittal (Cr. App. (DB) No. 348 of 2019)?

VI. Discussion & Findings

A. Legal Principles

62. Before proceeding to appreciate the evidence on record, it is necessary to recapitulate the well-settled legal principles that govern the determination of the points formulated above.

Appreciation of evidence of related / interested witnesses

63. It is now too well settled that the evidence of a related or interested witness cannot be discarded solely on the ground of relationship or interest. Relationship is not a factor that affects the credibility of a witness. A related witness would ordinarily not screen the actual culprit and falsely implicate an innocent person. However, the Court is required to adopt a cautious approach and scrutinise such evidence carefully to ensure that it is cogent, credible and free from embellishment.

64. The Hon’ble Supreme Court in Motiram Padu Joshi v. State of Maharashtra, (2018) 9 SCC 429, after referring to a catena of earlier decisions including Mohabbat v. State of M.P., (2009) 13 SCC 630, State of Punjab v. Jagir Singh, (1974) 3 SCC 277 and Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381, has reiterated that mere relationship is not a ground to discard the testimony of a witness. The evidence has to be evaluated on its own merits. If the evidence is otherwise found to be reliable and consistent, it can form the basis of conviction even in the absence of independent corroboration. The relevant paragraph of the said judgment is reproduced below:

                  12. Likewise, the relationship of PW 2 with the deceased cannot be the reason for doubting the testimony of PW 2. It is fairly well-settled that relationship is not a ground affecting the credibility of a witness. In Mohabbat v. State of M.P. [Mohabbat v. State of M.P., (2009) 13 SCC 630 : (2010) 1 SCC (Cri) 1154] , this Court held as under: (SCC pp. 633-35, para 11)

                  “11. The learned counsel for the respondent State on the other hand supported the judgment of the High Court.

                  ‘12. Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version.

                  13. “5. … Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

                  ***”

                  To the same effect are the decisions in State of Punjab v. Jagir Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC 277 : 1973 SCC (Cri) 886] , Lehna v. State of Haryana [Lehna v. State of Haryana, (2002) 3 SCC 76 : 2002 SCC (Cri) 526] (SCC p. 81, para 5) and Gangadhar Behera v. State of Orissa [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 : 2003 SCC (Cri) 32] .’

                  The above position was also highlighted in Babulal Bhagwan Khandare v. State of Maharashtra [Babulal Bhagwan Khandare v. State of Maharashtra, (2005) 10 SCC 404 : 2005 SCC (Cri) 1553] , Salim Sahab v. State of M.P. [Salim Sahab v. State of M.P., (2007) 1 SCC 699 : (2007) 1 SCC (Cri) 425] and Sone Lal v. State of M.P. [Sone Lal v. State of M.P., (2008) 14 SCC 692 : (2009) 3 SCC (Cri) 417] (SCC pp. 695 & 697, paras 12- 13).”

                  As held in various decisions, judicial approach has to be cautious in dealing with such evidence. It is unreasonable to contend that evidence given by related witness should be discarded only on the ground that such witness is related.

65. At the same time, when the witnesses are closely related and there exists previous enmity, the Court must look for some assurance from the surrounding circumstances, medical evidence or other reliable material before acting upon such testimony.

Effect of delay in lodging the FIR

66. Delay in lodging the FIR, by itself, is not a ground to reject the prosecution case. The Court is required to examine whether the delay has been satisfactorily explained and whether, in the facts of the case, the delay has resulted in fabrication or embellishment of the prosecution version.

67. In Munshi Prasad v. State of Bihar, (2002) 1 SCC 351, the Hon’ble Supreme Court observed that while Section 157 CrPC requires the FIR to be sent to the Magistrate forthwith, a mere delay, if otherwise reasonably explained, cannot demolish an otherwise trustworthy prosecution case. Technicalities should not be allowed to outweigh the course of justice. The relevant paragraphs of the said judgment are reproduced below:

                  13. In support of the appeal, a further submission has been made pertaining to the first information report (FIR). On this score the appellants contended that delayed receipt of the FIR in the Court of the Chief Judicial Magistrate cannot but be viewed with suspicion. While it is true that Section 157 of the Code makes it obligatory on the officer in charge of the police station to send a report of the information received to a Magistrate forthwith, but that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice — if the court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case. The decision of this Court in Shiv Ram v. State of U.P. [(1998) 1 SCC 149 : 1998 SCC (Cri) 278] lends support to the observation as above.

                  16. As noticed above, the statutory obligation warrants utmost promptitude and in the event of the delay not being an unreasonable one and in the event of availability of some explanation therefor, which is otherwise acceptable as well, question of prosecution being tainted would not arise. FIR sets the investigation rolling and in the event of there being some delay somewhere and as noticed above with the acceptable explanation, the delay cannot be said to vitiate the trial by reason therefor. In the wake of the aforesaid, we are thus unable to record our concurrence with the submissions in support of the appeals.

68. Similarly, in Bhajan Singh v. State of Haryana, (2011) 7 SCC 421, it was held that delay alone cannot be a ground for discarding the prosecution case if the evidence is otherwise credible. The relevant paragraph of the said judgment is reproduced below:

                  20. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding its true version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint may prove to be fatal. In such case of delay, it also cannot be presumed that the allegations were an afterthought or had given a coloured version of events.

69. The length of the delay, the explanation offered, the presence of the police at the scene, and the consistency of the core version are all relevant factors to be considered.

Defective investigation

70. A defective or incomplete investigation does not necessarily lead to the rejection of the prosecution case. The Court has to assess whether the defects are of such a nature as to go to the root of the matter and create a reasonable doubt about the complicity of the accused.

71. The Hon’ble Supreme Court in C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567, held that faulty investigation by itself is not sufficient to acquit the accused if the ocular and medical evidence is found to be reliable. The Court must examine the effect of the omissions on the overall credibility of the prosecution case. The relevant paragraph of the said judgment is reproduced below:

                  55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandrakant Luxman v. State of Maharashtra [(1974) 3 SCC 626 : 1974 SCC (Cri) 116 : AIR 1974 SC 220] , Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] , Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085 : AIR 1998 SC 1850] , Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104] , State of Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715 : 2000 SCC (Cri) 61 : AIR 2000 SC 185] , Amar Singh v. Balwinder Singh [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] , Allarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519] and Ram Bali v. State of U.P. [(2004) 10 SCC 598 : 2004 SCC (Cri) 2045] ) Burden of proof in case of alibi

72. When an accused pleads alibi, the burden of proving the same lies upon him under Section 103 of the Indian Evidence Act, 1872. The standard of proof is preponderance of probabilities and not proof beyond reasonable doubt.

73. In Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283, the Hon’ble Supreme Court held that the plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence. A vague or unsubstantiated plea is of no avail. The relevant paragraph of the said judgment is reproduced below:

                  23. The Latin word alibi means “elsewhere” and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of U.P. [(1981) 2 SCC 166 : 1981 SCC (Cri) 379] ; State of Maharashtra v. Narsingrao Gangaram Pimple [(1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63] .

74. Once the prosecution has led evidence of the presence of the accused, it is for the accused to rebut the same by leading reliable evidence of alibi.

Proof of criminal conspiracy (Section 120-B IPC)

75. Criminal conspiracy is an independent offence. It is rarely possible to adduce direct evidence of conspiracy. The offence can be proved by circumstantial evidence, the conduct of the parties, and the chain of events leading to the commission of the crime.

76. In Bilal Hajar @ Abdul Hameed v. State, (2019) 17 SCC (451), the Hon’ble Supreme Court held that the agreement to commit an illegal act is the gist of the offence. It is not necessary that every conspirator should know every detail or should participate in every act. Presence and participation in the meeting, coupled with subsequent conduct, may be sufficient to infer conspiracy. The relevant paragraph of the said judgment is reproduced below:

                  30. Reading of Section 120-A and Section 120-B IPC makes it clear that an offence of “criminal conspiracy” is a separate and distinct offence. Therefore, in order to constitute a criminal conspiracy and to attract its rigor, two factors must be present in the case on facts : first, involvement of more than one person and second, an agreement between/among such persons to do or causing to be done an illegal act or an act which is not illegal but is done or causing to be done by illegal means.

                  31. The expression “criminal conspiracy” was aptly explained by this Court in E.G. Barsay v. State of Bombay [E.G. Barsay v. State of Bombay, (1962) 2 SCR 195 : AIR 1961 SC 1762 : (1961) 2 Cri LJ 828] . The learned Judge Subba Rao, J. (as his Lordship then was and later became CJI) speaking for the Bench in his distinctive style of writing said : (AIR p. 1778, para 31) “31. … The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.”

                  32. Therefore, in order to constitute a conspiracy, meeting of minds of two or more persons to do an illegal act or an act by illegal means is a must. In other words, it is sine qua non for invoking the plea of conspiracy against the accused. However, it is not necessary that all the conspirators must know each and every detail of the conspiracy which is being hatched and nor is it necessary to prove their active part/role in such meeting.

                  33. In other words, their presence and participation in such meeting alone is sufficient. It is well known that a criminal conspiracy is always hatched in secrecy and is never an open affair to anyone much less to the public at large.

Unlawful assembly and common object (Section 149 IPC)

77. Once the existence of an unlawful assembly and the common object of its members are proved, every member of the assembly is vicariously liable for the offences committed in furtherance of that common object, even if he did not himself commit the overt act. The common object may be inferred from the weapons carried, the nature of the assault, the conduct of the members and the surrounding circumstances.

Scope of appellate interference

78. In an appeal against conviction, the High Court has the duty to re-appreciate the entire evidence. However, when the trial court has taken a possible reasonable view after proper appreciation of evidence, the appellate court does not interfere merely because another view is also possible. Interference is warranted only when the findings are perverse, against the weight of evidence, or result in miscarriage of justice. The Hon’ble Supreme Court crystallised this principle in relation to acquittal (and by extension, conviction) in Ghurey Lal v. State of Uttar Pradesh, (2008) 10 SCC 450. The relevant paragraph of the said judgment is reproduced below:

                  70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

                  1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so.

                  A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court's decision. “Very substantial and compelling reasons” exist when:

                  (i) The trial court's conclusion with regard to the facts is palpably wrong;

                  (ii) The trial court's decision was based on an erroneous view of law;

                  (iii) The trial court's judgment is likely to result in “grave miscarriage of justice”;

                  (iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

                  (v) The trial court's judgment was manifestly unjust and unreasonable;

                  (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

                  (vii) This list is intended to be illustrative, not exhaustive.

                  2. The appellate court must always give proper weight and consideration to the findings of the trial court.

                  3. If two reasonable views can be reached—one that leads to acquittal, the other to conviction—the High Courts/appellate courts must rule in favour of the accused.

VI-B. Presence of the Ocular Witnesses (Point for Determination No. 5.1)

79. The first and foremost question that arises is whether the prosecution has satisfactorily established the presence of PW-1 Gopal Singh, PW-2 Dhiraj Kumar and PW-3 Chandrachur Singh at the places of occurrence at the relevant time on the morning of 04.08.2017.

80. All three witnesses have deposed that they were present in village Pokhrama on the morning of the occurrence. PW-2 and PW-3 have stated that they were sitting at the door / courtyard of their house along with the informant when they heard the cries of “Bachao-Bachao” from the direction of Durgasthan. PW-1 has stated that he was going towards the field with a sack of fertilizer when he heard gunshots and thereafter saw the accused running southwards.

81. The defence has seriously challenged their presence by relying primarily on the admissions made by PW-3. In paragraph 30 of his cross-examination, PW-3 stated that he has not lived in the village for 22 years. In paragraph 155 he further stated that he has been living in Karyanand Nagar, Lakhisarai for 22 years and that the informant Pawan Singh also lived in Karyanand Nagar with his family. PW-2, in paragraph 65 of his cross-examination, also stated that Pawan Singh lives in Lakhisarai with his entire family.

82. On the basis of these admissions, learned counsel for the appellants submitted that the three witnesses (and the informant) were permanent residents of Lakhisarai and that their claim of presence in the village at 8:00-8:30 a.m. on 04.08.2017 is highly improbable. The defence specifically suggested to PW- 3 that on 04.08.2017 at about 10:30 a.m. he was still in Lakhisarai and made a mobile call stating that three persons had been murdered and that he was going to the village, and that the three witnesses reached Pokhrama in a Scorpio only around 11:00 a.m. These suggestions were denied by the witness.

83. We have carefully examined this aspect. The admission of long-term residence at Lakhisarai is a relevant circumstance. It does raise a legitimate caution regarding the claim of presence in the village on the crucial morning. At the same time, the following factors must also be kept in mind:

                  i All three witnesses have categorically denied the suggestion that they were absent from the village at the time of the occurrence.

                  ii PW-3 specifically stated that he had come to Pokhrama a day before the incident.

                  iii PW-4 Ashok Singh, another family member, stated in paragraph 39 of his cross-examination that he saw Pawan, Chandrachur and Dhiraj in the dalaan (courtyard) of the house at 5:00-6:00 a.m. on the morning of the occurrence.

                  iv The defence has not produced any positive, independent or documentary evidence (such as call detail records, independent witnesses from Lakhisarai, or any other contemporaneous material) to establish that the three witnesses were actually in Lakhisarai at 8:00-8:30 a.m. on 04.08.2017.

                  v Mere long-term residence at another place does not, by itself, prove absence on a particular day, especially when the witnesses claim to have come to the village for agricultural work during the transplantation season.

84. It is true that the prosecution has also not led any independent evidence to corroborate the presence of these witnesses in the village from the early morning hours. In a case where the witnesses are closely related and previous enmity exists; some independent assurance of presence would have been desirable. However, the absence of such independent corroboration, though a weakness, is not conclusive.

85. On an overall consideration of the material on record, we are of the view that while the admissions regarding long-term residence at Lakhisarai cast a shadow of doubt and require the remaining evidence to be scrutinised with greater care, the defence has not succeeded in proving positive absence of the witnesses at the time of the occurrence. The categorical assertions of the witnesses, supported to a limited extent by PW-4, cannot be discarded solely on the basis of their residential status at Lakhisarai.

86. We therefore answer Point for Determination No. 5.1 by holding that the presence of the three ocular witnesses at the relevant time and places, though open to some doubt on account of their residential background, cannot be said to have been disproved. Their claim of presence will have to be evaluated along with the remaining evidence, particularly the consistency of their accounts, the medical corroboration, and the probabilities of the case.

87. The above finding on the presence of PW-1, PW-2 and PW-3 is relevant to the case against those accused who are alleged to have been physically present at the places of occurrence and to have participated in the assaults, namely Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar. It has no direct bearing on the case of Shaligram Singh @ Khapru Singh and Suraj Singh @ Suro Singh, both of whom were admittedly in judicial custody on the date of occurrence and are not alleged to have been present at either place of occurrence.

VI-C. Reliability of the Ocular Evidence and Ability to Observe the Specific Roles (Point for Determination No. 5.2)

88. The next and most crucial question is whether the evidence of PW-1, PW-2 and PW-3 regarding the manner of occurrence and the specific roles attributed to the appellants and the other accused is reliable and can be safely acted upon.

89. All three witnesses have given a broadly consistent account of the sequence of events. According to them, the occurrence took place in two stages:

                  * First, at Durgasthan near the shop of Jai Prakash, where Sanjeev Kumar @ Jhalo was attacked with knives by Rohit, Ramaiya and Krishna and thereafter fired upon by Kiran and Angad (among others), resulting in his death.

                  * Immediately thereafter, the same group proceeded to the southern fields (Dhai Bighwa Bahiyar), where Ram Shekhar Singh and Ripu Kumar were attacked in a similar manner, i.e., stabbed by Rohit, Ramaiya and Krishna and thereafter shot by Kiran, Guddu, Angad and Dilip.

90. The witnesses have further consistently stated that Suraj (son of Kiran) fired at them on both occasions to prevent them from coming closer, that they were unarmed, and that after completing the crime, the accused declared that the oath taken on 02.08.2017 had been fulfilled and fled towards Urain while firing.

91. The defence has attacked this evidence primarily on two grounds:

                  (a) material contradictions in the accounts of the three witnesses; and

                  (b) inherent improbability of their being able to observe and attribute specific roles from the distances claimed while under fire.

92. As regards contradictions, we have carefully compared the examination-in-chief and cross-examination of the three witnesses. There are variations in respect of exact distances (20 feet, 30-35 feet, 50 feet, “two plots”), the precise position of each accused relative to the victims, the number of blows or shots observed, and certain peripheral details. However, on the core aspects relating to the identity of the principal assailants, the weapons used by them, the sequence of knife attacks followed by firing, the role of Suraj in deterring the witnesses, and the direction of flight, the accounts are substantially consistent.

93. It is well settled that minor variations are natural when several witnesses describe a fast-moving and traumatic incident. Such variations, far from weakening the evidence, often indicate that the witnesses have not been tutored. Only material contradictions that go to the root of the prosecution case can justify rejection of the testimony. In this context, it is relevant to refer Leela Ram v. State of Haryana, (1999) 9 SCC 525, where the Hon’ble Supreme Court was pleased to observe:

                  9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105 : AIR 1985 SC 48] . In para 10 of the Report, this Court observed: (SCC pp. 514-15)

                  “10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.”

94. On the question of ability to observe, the witnesses have admitted that they were fired upon and therefore could not go very close. The distances stated by them range from about 20 feet (first occurrence) to 30-50 feet or two plots (second occurrence). The fields were water-logged and muddy. We have given anxious consideration to this aspect. In an open field, from a distance of 30-50 feet, it is certainly possible for persons who are known to the witnesses (fellow villagers and cognates) to be identified. The broad nature of the assault, that whether a person was using a knife or a firearm, is also capable of being observed from such a distance. The muddy condition of the fields would impede free movement but would not obstruct the line of sight.

95. When close relatives are being brutally attacked in broad daylight, the natural reaction of the onlookers is often to freeze in horror and watch rather than to turn away or take effective cover, particularly when the firing is directed more at keeping them at bay than at killing them. The detailed and inter-se consistent attribution of primary roles by three witnesses cannot, therefore, be discarded merely on the ground of the distances involved.

96. The evidence of the three ocular witnesses further finds support from the following circumstances:

                  i The medical evidence (discussed in the next section) fully corroborates the nature of the injuries, forming a combination of stab wounds and firearm wounds, and the presence of blackening/tattooing on some entry wounds is consistent with firing from a relatively close range after the victims had fallen.

                  ii The places of occurrence described by the witnesses match the description given by the Investigating Officer and the inquest officer.

                  iii The statement of Jai Prakash (recorded by the IO) supports the sequence that after the first murder the accused group went towards the fields.

                  iv The subsequent conduct of the accused in fleeing while declaring that their oath had been fulfilled is consistent across the witnesses.

97. It is true that all three witnesses are closely related to the deceased and that previous enmity exists. Their evidence is therefore required to be scrutinised with caution. Having done so, we find that the core of their testimony has remained intact despite lengthy and searching cross-examination. The trial court, which had the advantage of watching their demeanour, found them reliable. We see no good reason to take a different view.

98. We accordingly answer Point for Determination No. 5.2 by holding that the evidence of PW-1, PW-2 and PW-3 regarding the manner of occurrence and the specific roles played by the appellants is reliable and can be safely acted upon.

99. The reliable and consistent ocular evidence of PW-1, PW-2 and PW-3 establishes the presence and specific roles of the following five accused at the places of occurrence:

                  * Kiran Singh and Angad Kumar - who fired at the deceased;

                  * Rohit Kumar, Ramaiya Kumar and Krishna Kumar - who caused knife injuries to the deceased.

100. The same ocular evidence does not establish the physical presence of Shaligram Singh @ Khapru Singh or Suraj Singh @ Suro Singh at either place of occurrence on 04.08.2017. Their complicity, if any, rests solely on the allegation of conspiracy and will be examined separately under the charge of Section 120-B IPC.

101. Consequently, the finding that the ocular evidence is reliable and can be safely acted upon is confined to the case against Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar.

VI-D. Medical Evidence

(Point for Determination No. 5.3)

102. The medical evidence in the present case consists of the oral testimony of PW-7 Dr. Bipin Kumar and PW-8 Dr. Bibhushan Kumar and the three post-mortem reports marked as Exts. 4, 5 and 6.

103. PW-8 Dr. Bibhushan Kumar, who actually conducted the autopsies and authored the reports, has proved the following ante-mortem injuries:

                  On the body of Sanjeev Kumar @ Jhalo Singh (Ext. 4)

                  * Multiple injuries caused by firearm and stabbing, including fracture of ribs, button-hole fracture of the skull (exit wound), laceration of the heart and lungs, and various lacerated/stab wounds on the chest, wrist and abdominal region.

                  * Cause of death: massive bleeding, shock and head injuries due to firearm and stabbing.

On the body of Ram Shekhar Singh (Ext. 5)

                  * Firearm entry wound on the lower posterior chest with blackening and burn, fracture of 7th and 8th ribs, damage to left pleura and lungs, empty heart.

                  * Multiple penetrating/stab wounds at the root of the neck (both sides).

                  * Another firearm entry wound with blackening and burn and corresponding exit wound.

                  *Lacerated wound on the right shoulder.

                  * Cause of death: massive bleeding, asphyxia and shock.

                  * Mud present on clothes and both legs.

                  On the body of Indrasen Kumar @ Ripu Singh (Ext. 6)

                  * Firearm entry wound on the right anterior axillary fold.

                  * Firearm entry wound on the left cheek (mandible region) with blackening, tattooing and burn; corresponding exit wound on the left temporo-parietal region with skull fracture.

                  • Cause of death: massive bleeding, head injuries, laceration of brain parenchyma and shock.

                  * Mud present on both legs.

104. PW-7 Dr. Bipin Kumar has corroborated that he was present and signed the reports. Both doctors have stated that the post-mortems were conducted on the special requisition of the District Magistrate, Lakhisarai.

105. The medical evidence completely corroborates the ocular version on the following material points:

                  i All three deceased died of a combination of firearm and stab/penetrating injuries.

                  ii The presence of blackening, burn and (in the case of Ripu) tattooing on some of the firearm entry wounds indicates that the shots were fired from a relatively close range. This is consistent with the ocular account that after the victims had been stabbed and had fallen, the accused fired at them from a short distance.

                  iii The presence of mud on the clothes and legs of Ram Shekhar Singh and Ripu Kumar is consistent with the ocular and investigating officer’s evidence that these two persons were killed in water-logged and muddy fields.

                  iv The nature and location of the injuries (neck, chest, head, etc.) broadly match the description of the assault given by the ocular witnesses.

106. In cross-examination, certain limitations in the post-mortem reports were elicited; the absence of recorded direction of wounds, inter-se distances between injuries, detailed description of clothing, and exact distance of firing. The rough notes prepared at the time of autopsy were not preserved. These are deficiencies in the manner of recording, but they do not detract from the core findings regarding the nature of the weapons used and the cause of death.

107. It is well settled that the medical evidence is primarily meant to show the nature of the injuries and the cause of death. When the medical evidence is consistent with the ocular account, it provides strong corroboration to the latter. The Hon’ble Supreme Court also drew a similar parallel in Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195. The relevant paragraphs of the said judgement are reproduced below:

                  43. The learned counsel appearing for the respondents has then tried to create a dent in the prosecution story by pointing out inconsistencies between the ocular evidence and the medical evidence. However, we are not persuaded with this submission since both the courts below have categorically ruled that the medical evidence was consistent with the ocular evidence and we can safely say that to that extent, it corroborated the direct evidence proffered by the eyewitnesses. We hold that there is no material discrepancy in the medical and ocular evidence and there is no reason to interfere with the judgments of the courts below on this ground. In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. [See Solanki Chimanbhai Ukabhai v. State of Gujarat [Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174 : 1983 SCC (Cri) 379] , Mani Ram v. State of Rajasthan [Mani Ram v. State of Rajasthan, 1993 Supp (3) SCC 18 : 1993 SCC (Cri) 853] , State of U.P. v. Krishna Gopal [State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC (Cri) 928] , State of Haryana v. Bhagirath [State of Haryana v. Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658] , Dhirajbhai Gorakhbhai Nayak v. State of Gujarat [Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 : 2003 SCC (Cri) 1809] , Thaman Kumar v. State (UT of Chandigarh) [Thaman Kumar v. State (UT of Chandigarh), (2003) 6 SCC 380 : 2003 SCC (Cri) 1362] , Krishnan v. State [Krishnan v. State, (2003) 7 SCC 56 : 2003 SCC (Cri) 1577] , Khambam Raja Reddy v. Public Prosecutor [Khambam Raja Reddy v. Public Prosecutor, (2006) 11 SCC 239 : (2007) 1 SCC (Cri) 431] , State of U.P. v. Dinesh [State of U.P. v. Dinesh, (2009) 11 SCC 566 : (2009) 3 SCC (Cri) 1484] , State of U.P. v. Hari Chand [State of U.P. v. Hari Chand, (2009) 13 SCC 542 : (2010) 1 SCC (Cri) 1112] , Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] and Bhajan Singh v. State of Haryana [Bhajan Singh v. State of Haryana, (2011) 7 SCC 421 : (2011) 3 SCC (Cri) 241] .]

44. In the present case, we do not find any major contradiction either in the evidence of the witnesses or any conflict in medical or ocular evidence which would tilt the balance in favour of the respondents. The minor improvements, embellishments, etc. apart from being far yield of human faculties are insignificant and ought to be ignored since the evidence of the witnesses otherwise overwhelmingly corroborate each other in material particulars.

108. We accordingly hold that the medical evidence fully corroborates the ocular account of the nature of the injuries inflicted on the three deceased and thereby supports the case against the five accused who are alleged to have actually participated in the assaults (Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar). It has no direct relevance to the pure conspiracy charge against Shaligram Singh @ Khapru Singh. Point for Determination No. 5.3 is answered in the affirmative.

VI-E. Places of Occurrence (Point for Determination No. 5.4)

109. The prosecution has alleged that the occurrence took place at three connected places:

                  i The first place of occurrence: Near Durgasthan / in front of the grocery shop of Jai Prakash on the Kajra-Alinagar road in village Pokhrama, where Sanjeev Kumar @ Jhalo was murdered;

                   ii The second place of occurrence: In the field of Ram Bilas Singh in Dhai Bighwa Bahiyar / Uprar Badhar, where Ram Shekhar Singh was murdered; and

                  iii The third place of occurrence: In the adjacent field of Murari Singh, about 30 metres south-west of the second place, where Ripu Kumar was murdered.

110. The ocular witnesses (PW-1, PW-2 and PW-3) have described these places in clear terms. PW-4 also identified the first place of occurrence and stated that he saw the accused running southwards from there towards the Bahiyar near the telephone exchange.

111. The Investigating Officer (PW-5) inspected all three places on the date of occurrence itself (re-inspection at about 4:30 p.m.) and has given detailed boundary descriptions:

                  * First Place of Occurrence: 10-feet-wide east-west road (Kajra to Alinagar); concrete house and grocery shop of Jai Prakash to the north; 2-3 feet high boundary wall of Bacchu Singh (with blood stains) to the south; informant’s house about 50-60 yards north; Durgasthan 8- 10 yards south. Large quantity of blood was found spilled and blood-stained earth was seized.

                  * Second Place of Occurrence: Field of Ram Bilas Singh (about 10 kattha), prepared for paddy transplantation, containing about 6 inches of water and deep mud; body of Ram Shekhar found in the north-east corner. Boundaries: Tano Devi’s field (east and north), Murari Singh’s field (west), Arun Singh’s field (south).

                  * Third Place of Occurrence: Field of Murari Singh, about 30 metres south-west of the second PO, also water-logged and muddy; body of Ripu found in the south-east corner. Adjacent to it was the 2.5-bigha field of Ram Shekhar where seedlings were found scattered.

112. PW-9 (the Sub-Inspector who prepared the inquest reports) has also confirmed the locations of the three bodies and the water-logged / muddy condition of the field sites. The inquest reports (Exts. 7, 7/1 and 7/2) were prepared at the respective spots in the presence of witnesses.

113. There is no material contradiction between the ocular account, the evidence of the Investigating Officer and the inquest officer regarding the places of occurrence. The presence of mud on the bodies of the two deceased killed in the fields (noted in the post-mortem reports) further corroborates the location of the second and third places of occurrence.

114. The defence has not seriously disputed the places of occurrence. The challenge is essentially to the identity of the assailants and the ability of the witnesses to observe the occurrence from those places. On the question of the places themselves, the evidence is consistent and reliable.

115. We therefore hold that the prosecution has duly proved the three places of occurrence and that they are fully consistent with the ocular, medical and documentary evidence against the five accused who participated in the occurrence. The finding has no application to Shaligram and Suraj, who were not present at the scene. Point for Determination No. 5.4 is answered in the affirmative.

VI-F. Independent Corroboration / Absence thereof and the Fear Factor (Related to Points for Determination Nos. 5.2 and 5.6)

116. One of the principal contentions of the defence is that the prosecution case rests entirely on the evidence of related and interested witnesses and that there is no independent corroboration of the actual assaults. It is submitted that in a daylight occurrence that took place on a public road near a grocery shop and in open fields, the absence of independent witnesses is a serious infirmity.

117. It is correct that no independent villager has been examined as an ocular witness to the actual assaults on the three deceased. The only independent person whose statement was recorded by the Investigating Officer is Jai Prakash, the owner of the grocery shop situated at the first place of occurrence. According to the IO (PW-5), Jai Prakash stated that he heard 3-4 gunshots and cries of help at about 8:30 a.m. His wife prevented him from coming out. After about half an hour, when he came out, he saw the dead body of Sanjeev @ Jhalo with bullet and stab wounds. He further stated that he learnt that the accused had gone towards Uprar Badhar and that later Ram Shekhar Singh and Ripu Kumar had also been murdered. He refused to name the assailants, stating that if he disclosed the names, he too would be murdered.

118. Although Jai Prakash has not been examined in court, his statement recorded by the IO provides limited independent corroboration of two important aspects:

                  i the time and place of the first occurrence; and

                  ii the movement of the accused group towards the fields (Uprar Badhar) after the first murder; a fact that is consistent with the ocular version that the same group thereafter committed the murders of Ram Shekhar and Ripu.

119. The Investigating Officer also recorded statements of a few other local persons (Ram Udit Singh, Kailu Singh, Rambilas Singh, Parmanand Singh and Naval Singh). These witnesses broadly supported the fact of the occurrence and the subsequent knowledge that the named accused were responsible, but none of them claimed to have seen the actual assaults. Some of them expressed fear in disclosing further details.

120. The non-examination of independent ocular witnesses and the non-tracing of the Saharsa labourers (who, according to the prosecution, were present in the fields for transplantation work) are certainly weaknesses in the prosecution case. The Investigating Officer admitted that he made no effort to ascertain the addresses of the labourers or to record their statements.

121. However, the absence of independent corroboration has to be viewed in the light of the nature of the crime. Three persons were brutally murdered in broad daylight by a group of armed accused in a rural setting. Extreme fear in the minds of ordinary villagers is a natural consequence of such an incident. The Hon’ble Supreme Court in Adalat Yadav v. State of Bihar, 2026 SCC OnLine SC 660, recognised that in cases involving brutal and terrorising crimes, independent witnesses are often reluctant to come forward. The relevant paragraph of the said judgment is reproduced below:

                  12. One additional point raised was the absence of any of the villagers to give statements about the incident, i.e., the lack of independent witnesses [Manjit Singh v. State of Punjab, (2019) 8 SCC 529 : (2019) 3 SCC (Cri) 600; Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627; Mohd. Naushad v. State (NCT of Delhi), (2024) 12 SCC 494] . It is well settled that the same does not compromise the case of the prosecution. In this case particularly the Court cannot lose sight of societal realities where, allegedly at the command of an ill-reputed person, witness in his trial had been gunned down. Hesitation on the part of the common person is but natural, not wanting to be entangled, in what was clearly unpleasant and thorny business.

122. The refusal of even Jai Prakash to name the assailants out of fear is a clear illustration of the atmosphere prevailing in the village.

123. It is well settled that the evidence of related witnesses, if found credible after careful scrutiny, can form the basis of conviction even in the absence of independent corroboration. Independent corroboration is a rule of prudence and not a rule of law. When the ocular evidence is consistent, finds support from the medical evidence and the places of occurrence, and the defence has not been able to shake its core, the absence of independent witnesses does not automatically render the prosecution case doubtful.

124. In the present case, after having already found the evidence of PW-1, PW-2 and PW-3 to be reliable on the core aspects (Section VI-C) and the medical evidence to be fully corroborative (Section VI-D), we are of the view that the absence of independent ocular witnesses, though a factor to be kept in mind, is sufficiently explained by the fear generated by the brutality of the crime. This fear adequately explains the absence of independent ocular witnesses against the five accused who actually participated in the murders. This factor, however, does not fill the gap in the evidence of conspiracy against those who were in judicial custody on the date of occurrence.

125. The non-tracing of the labourers remains an investigative lapse, but it is not of such a nature as to destroy the otherwise consistent and medically corroborated ocular evidence.

VI-G. Delay in Registration of the FIR (Point for Determination No. 5.5)

126. The defence has laid considerable emphasis on the delay in the formal registration of the FIR. It is submitted that the police had reached the village within a short time of the occurrence, yet the formal FIR was registered only at 14:35 hours, thereby providing sufficient opportunity for deliberation and fabrication of a detailed story.

127. The evidence on the point of timing may be summarised as under:

                  • PW-6 (Officer-in-Charge, Kajra P.S.) has stated that he received information of firing in village Pokhrama at about 9:00-9:30 a.m. on 04.08.2017. He entered the information in the station diary and immediately left for the village with SI Arun Yadav (PW-9). The journey took about 15-20 minutes.

                  • PW-9 has stated that he reached the village around 10:00-10:30 a.m. and found a large crowd near the body of Sanjeev @ Jhalo. He prepared the inquest report of Sanjeev and thereafter went to the fields, reaching the second and third bodies at about 12:00 noon.

                  • PW-5 (Investigating Officer) has stated that he received verbal directions from the Superintendent of Police at the spot and formally took charge of the investigation at 14:35 hours at Kajra Police Station.

                  • The formal FIR (Ext. 3) and the endorsement on the written report (Ext. 1/1) both record the time as 14:35 hours.

128. It is thus clear that the police were present at the scene from approximately 9:30-10:30 a.m. onwards. The inquest proceedings were completed by around noon or shortly thereafter. The formal registration of the FIR, however, took place only at 14:35 hours, constituting a gap of roughly four to five hours after the police had taken control of the situation.

129. The explanation offered by the prosecution is that the family members were in a state of extreme shock after the brutal murder of three close relatives, that there were a large crowd and a law-and-order problem, and that they were waiting for another relative (Pramod Singh) who arrived from Patna in the afternoon. PW-2 has specifically stated that the written application was submitted after discussion with Pramod Singh who arrived around 4:00-4:30 p.m.

130. We have considered the rival submissions. A delay of several hours after the police have already reached the spot is certainly a circumstance that requires satisfactory explanation. In a case of daylight triple murder, the prompt lodging of the FIR is always desirable. At the same time, the following factors cannot be lost sight of:

                  i Three close family members had been murdered in an extremely brutal manner within a short span of time. The natural shock and trauma of the surviving family members cannot be ignored.

                  ii There were a large gathering of villagers and a law-and-order situation, as specifically deposed by PW-9. The police officers were initially engaged in controlling the crowd and preparing the inquest reports.

                  iii The core version regarding the assailants and the manner of occurrence has remained consistent from the stage of the fardbeyan onwards. There is no material improvement or contradiction on the essential features.

                  iv The police had already secured the scene and commenced the inquest proceedings long before the formal FIR was registered. The delay is therefore not a case of the crime remaining unreported for a long period.

131. The Hon’ble Supreme Court has consistently held that delay in lodging the FIR is not fatal by itself. The Court has to examine whether the delay has been properly explained and whether it has resulted in the fabrication of a false case (Munshi Prasad, supra; Bhajan Singh, supra).

132. In the facts of the present case, while the delay is not insignificant, the explanation offered is plausible in the circumstances of extreme trauma and the prevailing law-and-order situation. More importantly, the delay has not been shown to have resulted in any material fabrication or improvement in the core prosecution version. The consistency of the ocular evidence and its full corroboration by the medical evidence substantially dilute the force of the argument based on delay.

133. We therefore hold that the delay in the formal registration of the FIR, though present, has been adequately explained and is not fatal to the prosecution case. The finding that the delay in registration of the FIR is not fatal applies to the prosecution case as a whole. It does not, by itself, cure the deficiency in the direct evidence of conspiracy against Shaligram and Suraj. Point for Determination No. 5.5 is answered accordingly.

VI-H. Quality of Investigation / Defective Investigation (Point for Determination No. 5.6)

134. Learned counsel for the appellants has strenuously argued that the investigation is thoroughly defective and perfunctory and that the omissions are of such a nature as to create a serious doubt about the fairness and reliability of the entire prosecution case.

135. The specific deficiencies pointed out may be enumerated as under:

                  i No photographs or videography of the places of occurrence were taken, although the Investigating Officer (PW-5) admitted that he possessed a smartphone.

                  ii Blood-stained earth was seized from the first place of occurrence but was never sent for serological or forensic examination.

                  iii No empty cartridges, bullets or weapons were recovered from any of the places of occurrence.

                  iv The Saharsa labourers who, according to the ocular witnesses, were present in the fields for paddy transplantation were never traced and their statements were never recorded. The IO admitted that he made no effort to ascertain their addresses.

                  v The fact that the key ocular witnesses (particularly PW-3 and the informant) had long-term residence at Lakhisarai was not recorded in the case diary.

                  vi The Investigating Officer did not inquire from the informant as to why, having overheard the alleged conspiracy on 02.08.2017, he did not report the matter to the police earlier.

                  vii Kisan Bhawan (the alleged place of conspiracy) was inspected but the fact was not recorded in the case diary, and no statements of nearby residents were taken.

                  viii Criminal antecedents of the deceased, the informant and the witnesses, though known to the IO, were not mentioned in the case diary.

                  ix Site maps were prepared without measurements (the IO stated he had no measuring instrument) and some details were recorded only in the late afternoon.

136. There is no manner of doubt that the investigation suffers from several omissions and lapses. In a case of triple murder committed in broad daylight, a more thorough and scientific investigation was expected. The failure to preserve forensic evidence (blood-stained earth, possible empties), the non-tracing of the labourers, and the non-recording of certain relevant facts are clearly deficiencies.

137. The legal position with regard to defective investigation is, however, well settled. The Hon’ble Supreme Court has repeatedly held that a defective or incomplete investigation by itself is not a ground to discard the prosecution case if the ocular and medical evidence is found to be reliable and trustworthy. The Court is required to examine whether the defects are of such a nature as to go to the root of the matter and shake the very foundation of the prosecution case (C. Muniappan, supra).

138. In the present case, the core of the prosecution case rests upon the consistent ocular testimony of three witnesses, which we have already found to be reliable after careful scrutiny (Section VI-C), and which finds full corroboration from the medical evidence (Section VI-D) and the proved places of occurrence (Section VI-E). The deficiencies pointed out by the defence, though regrettable, do not destroy or even seriously undermine this core evidence.

139. The non-recovery of weapons or empties is not uncommon in cases where the accused flee the scene with the weapons. The non-examination of the blood-stained earth, though a lapse, does not contradict the ocular or medical evidence. The non-tracing of the labourers is an omission, but their non-availability cannot be used to reject the otherwise consistent evidence of the family witnesses who have explained the circumstances. The other omissions are in the nature of incomplete documentation rather than suppression of material facts favourable to the accused.

140. It is also relevant to note that the Investigating Officer has explained that he took informal charge at the spot on the verbal direction of the Superintendent of Police and that there were a large crowd and a law-and-order situation. While this does not completely excuse the lapses, it provides some context for the manner in which the investigation proceeded on the date of occurrence.

141. On an overall assessment, we are of the considered view that although the investigation is not free from defects and omissions, those defects are not of such a magnitude as to render the entire prosecution case doubtful or to create a reasonable doubt about the complicity of the appellants. The reliable ocular evidence, duly corroborated by medical evidence, remains intact despite the investigative shortcomings. The investigative lapses noted above do not destroy the core of the prosecution case against the five accused who participated in the actual occurrence. However, the non-examination of the informant (which is a consequence of his subsequent murder) and the failure to collect independent evidence regarding the alleged meeting of 02.08.2017 do create a material gap in so far as the conspiracy charge against Shaligram Singh @ Khapru Singh is concerned.

142. Point for Determination No. 5.6 is accordingly answered by holding that the investigation, though defective in certain respects, does not fatally affect the prosecution case in the facts of the present case.

VI-I. Non-examination of the Informant and the Conspiracy Angle

(Point for Determination No. 5.7)

143. One of the most significant features of the present case is that the informant Pawan Kumar Singh, who is the author of the fardbeyan (Ext. 1) and the sole person claiming to have directly overheard the alleged conspiracy talk on 02.08.2017, could not be examined during the trial. He was himself murdered on 09.01.2018, for which Lakhisarai P.S. Case No. 14 of 2018 was registered. His non-examination has a direct and substantial bearing on the charge of criminal conspiracy under Section 120-B of the Indian Penal Code.

144. The fardbeyan contains a detailed account of the conversation that is alleged to have taken place at about 6:00 p.m. on 02.08.2017 near Kisan Bhawan, Pokhrama. According to that version, ten named persons, including the present appellants, came out of Kisan Bhawan. Shaligram @ Khapru is alleged to have said that the work should be finished and they should escape safely. Kiran Singh is alleged to have said that no one should be left alive and that after shooting, the victims should also be stabbed. Khapru and Suro are alleged to have stated that they would go to jail the next day so that no one would suspect them, whereupon Kiran Singh replied that they should go to jail and he would manage the entire episode. The informant claimed that at that time he did not fully understand that the conversation related to his own family.

145. This detailed conversation forms the foundation of the prosecution case on conspiracy. Since the informant was never produced in the witness box, the defence had no opportunity to cross-examine him on this vital aspect. The evidence regarding the conspiracy meeting of 02.08.2017, therefore, remains untested by cross-examination.

146. PW-1 Gopal Singh, PW-2 Dhiraj Kumar and PW-3 Chandrachur Singh have all stated in their evidence that they came to know about the alleged conspiracy only after the occurrence of 04.08.2017, when the informant told them about it. Their knowledge is, therefore, purely hearsay on this point. None of them claims to have been present at Kisan Bhawan on 02.08.2017 or to have overheard the conversation himself.

147. The Investigating Officer (PW-5) has stated that in his restatement the informant told him that he had informed his family members about the talk of 02.08.2017. This, however, is again based on the version of the informant who was never examined. No independent witness from the locality of Kisan Bhawan has been examined to corroborate the meeting.

The legal position regarding non-examination of the informant is well settled. The Hon’ble Supreme Court in Umesh v. State of Maharashtra, (2007) 15 SCC 393, held that no adverse inference can be drawn against the prosecution for failing to examine the informant and other witnesses when the core charge is fully established by other convincing and reliable evidence. The relevant paragraph of the said judgment is reproduced below:

                  19. The next contention of the learned counsel for the appellant that adverse inference should be drawn against the prosecution for non-examination of the informant and other material witness does not merit acceptance. In the teeth of the reliable and convincing evidence, which has come on record, we have no other option but to accept the finding recorded and the conclusion arrived at by the High Court on reappraisal of the entire evidence on record to hold that it was the appellant and none else who has committed the murder of Dilip. The prosecution has been able to establish the offence against the appellant beyond reasonable doubt. None of the contentions raised by the learned counsel on behalf of the appellant can be accepted.

148. The mere non-examination of the informant is not necessarily fatal to the prosecution case if the occurrence itself is proved by other reliable ocular and medical evidence. However, when a particular charge (here, the charge of conspiracy) rests predominantly on the untested version of the informant, the Court is required to scrutinise the remaining circumstances with greater care and caution before recording a finding of guilt on that charge.

149. The prosecution has sought to rely upon the following circumstances to prove the existence of a criminal conspiracy:

                  i The highly coordinated nature of the attacks on three members of the same family at two different places within a short span of time;

                  ii The clear allocation of roles among the accused: some armed with knives and others with firearms;

                  iii The consistent evidence of the ocular witnesses that while leaving the scene the accused declared that the “oath” or “plan of the 2nd” had been fulfilled;

                  iv The fact that Shaligram Singh @ Khapru and Suro Singh @ Suraj were in judicial custody on 03.08.2017 / 04.08.2017 (proved by Ext. 10 and the evidence of PW-5), which is consistent with the alleged plan that they should go to jail so that suspicion would not fall on the others;

                  v The prior conduct of Shaligram in selling cattle, grain and giving land on batai shortly before the occurrence (as stated by some witnesses to the IO).

150. These circumstances are certainly relevant and, when taken together with the ocular evidence of the actual occurrence, permit a strong inference of prior concert and planning among the persons who actually participated in the assaults on 04.08.2017. The charge of conspiracy against those who were present and participated in the murders can, therefore, be sustained on the basis of circumstantial inference even without the direct evidence of the informant.

151. The position, however, is materially different when we come to the case of those accused who were not present at the scene of the murders and whose complicity is sought to be established only through the alleged conspiracy meeting of 02.08.2017. In their case, the absence of the informant assumes greater significance because the only direct evidence of their participation in the meeting remains untested.

152. It is also noteworthy that the trial court itself, while convicting Shaligram under Section 120-B IPC, gave the benefit of doubt to his son Suro @ Suraj on substantially the same set of circumstances. This differential treatment itself indicates that the evidence of conspiracy was not free from doubt.

153. In view of the above discussion, we record the following conclusions on this point:

                  (a) The non-examination of the informant does not destroy the prosecution case regarding the actual occurrence of 04.08.2017, which stands proved by the reliable ocular evidence of PW-1, PW-2 and PW-3 duly corroborated by medical evidence.

                  (b) The circumstances proved on record are sufficient to infer prior concert and conspiracy among the five accused who participated in the assaults (Kiran, Angad, Rohit, Ramaiya and Krishna).

                  (c) Insofar as the accused who were in judicial custody on the date of occurrence are concerned, the non-examination of the informant creates a significant gap in the proof of their participation in the conspiracy. The remaining circumstances, though consistent with the prosecution narrative, are not so conclusive as to exclude every reasonable doubt.

154. Point for Determination No. 5.7 is answered accordingly.

VI-J. Defence Evidence, Alibis and the Maoist Theory (Point for Determination No. 5.8)

155. The defence has examined three witnesses and has also relied upon certain documentary evidence (Exts. A to A/3) to support the plea of alibi in respect of some of the accused and the alternative theory that the murders were committed by Maoists.

Alibi of Kiran Singh

156. It was suggested to the prosecution witnesses and argued before us that appellant Kiran Singh was present in the civil court at Lakhisarai on the morning of 04.08.2017 and was arrested from the court premises itself. The prosecution version is that he was arrested near the office of the Superintendent of Police on the basis of secret information.

157. No contemporaneous court record, order-sheet, or independent witness has been produced by the defence to establish that Kiran Singh was actually present inside the court premises at 8:00-8:30 a.m. (the time of the occurrence). The mere suggestion in cross-examination, without any supporting material, is insufficient to prove the plea of alibi. The burden under Section 103 of the Evidence Act lies on the accused. On the material placed on record, that burden has not been discharged.

Alibi of Krishna Kumar

158. DW-2 Gulshan Kumar stated that he was working in Surat (Gujarat) and that Krishna Singh (claimed to be the accused Krishna Kumar) was also working with him and living in the same room. On 07.08.2017 Krishna allegedly told him about the murder and that his name had figured in the case.

159. The evidence of DW-2 is vague and unconvincing. He could not satisfactorily establish the identity of the person he referred to as “Krishna Singh” with the accused Krishna Kumar. No document, employer certificate, co-worker, or any other independent material has been produced to prove the presence of either DW-2 or the accused in Surat on the relevant dates. The trial court rightly discarded this evidence as unreliable.

Claim regarding Ramaiya Kumar and others (DW-3)

160. DW-3 Bambam Kumar claimed that on the morning of 04.08.2017 he was with Ramaiya Kumar (who was driving a tractor) along with Dilip Kumar, Guddu Kumar and Rohit Kumar while ploughing a field in Srikishun Mauja. He further claimed to have seen 10-15 unidentified men with faces covered by towels and carrying weapons going towards the south, after which he heard firing.

161. In cross-examination, DW-3 could not give the plot/khasra number of the field or the registration number of the tractor. He admitted that he did not recognise any of the armed men. The evidence is wholly lacking in material particulars and does not inspire confidence. It appears to be a vague attempt to create a doubt about the presence of some of the accused at the place of occurrence. The trial court rightly rejected it.

Maoist Theory

162. The defence has also suggested that the murders were committed by Maoists on account of a land dispute between the informant’s family and the Maoists/tribals in respect of land in Budhauli Bankat Kol Mauza, and that the accused have been falsely implicated due to previous enmity. It was further suggested that due to fear of Maoists no independent villager came forward.

163. This theory remains a mere suggestion. No material whatsoever was placed before the Investigating Officer during investigation, and none has been brought on record during the trial, to show any incident of Maoist violence, seizure of tractor, construction of huts, or any complaint made by the informant’s family against Maoists in connection with the land in question. The Investigating Officer (PW-5) specifically stated that no such material came to his notice. In the absence of any foundational evidence, the Maoist theory is speculative and cannot be accepted.

Defence Documentary Evidence

164. Exts. A to A/3 are certified copies of depositions and judgments in earlier cases. At best, they demonstrate the existence of previous litigation and enmity between the parties, a fact that is otherwise also admitted by the prosecution witnesses. They do not advance the plea of alibi or the Maoist theory.

165. On a conspectus of the defence evidence, we find that the pleas of alibi have not been proved even on the touchstone of preponderance of probabilities. The Maoist theory is without any evidentiary foundation. The trial court was right in rejecting the defence evidence as insufficient to create a reasonable doubt.

166. The alibi evidence led by the defence was directed mainly at Krishna Kumar (Surat) and at Ramaiya Kumar and others (ploughing). No alibi was required to be proved for Shaligram Singh @ Khapru Singh and Suraj Singh @ Suro Singh because both were admittedly in judicial custody on the date of occurrence. Their presence at the scene of the murders was never the prosecution case.

167. Point for Determination No. 5.8 is accordingly answered against the appellants / defence.

VI-K. Motive / Previous Enmity (Point for Determination No. 5.9)

168. Both sides have relied upon the existence of previous enmity between the parties, but for diametrically opposite purposes. The defence contends that the long-standing land dispute and political rivalry supplied the motive for false implication of the accused. The prosecution, on the other hand, contends that the same enmity supplied the motive for the accused to commit the triple murder.

169. The evidence on record clearly establishes that there existed a long-standing land dispute between the family of the informant / deceased and the family of the accused, particularly Shaligram Singh @ Khapru and his sons. PW-1, PW-2, PW-3 and PW-4 have all admitted the existence of the land dispute. A partition suit and other civil and criminal cases were pending between the parties. It is also admitted that appellant Kiran Singh had contested and won the Panchayat Samiti election against the wife of the informant Pawan Kumar Singh. Thus, both land-related enmity and political rivalry are established on the record.

170. It is well settled that previous enmity is a double-edged weapon. It can be a ground for false implication; it can equally be a strong motive for the commission of the crime. When the evidence of the ocular witnesses is found to be reliable and is corroborated by medical evidence, the existence of motive strengthens the prosecution case. Conversely, when the ocular evidence itself is shaky or doubtful, the existence of enmity may lend support to the plea of false implication. Credence on this point may be made by referring to State of U.P. v. Kishanpal, (2008) 16 SCC 73, where the Hon’ble Supreme Court was pleased to observe:

                  20. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement. The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. (Vide State of A.P. v. Veddula Veera Reddy [(1998) 4 SCC 145 : 1998 SCC (Cri) 817] , Ram Anup Singh v. State of Bihar [(2002) 6 SCC 686 : 2002 SCC (Cri) 1466] , Harijana Narayana v. State of A.P. [(2003) 11 SCC 681 : 2004 SCC (Cri) 65] , Anil Sharma v. State of Jharkhand [(2004) 5 SCC 679 : 2004 SCC (Cri) 1706] , Seeman v. State [(2005) 11 SCC 142 : 2005 SCC (Cri) 1893] , Salim Sahab v. State of M.P. [(2007) 1 SCC 699 : (2007) 1 SCC (Cri) 425] , Kapildeo Mandal v. State of Bihar [(2008) 16 SCC 99 : AIR 2008 SC 533] and D. Sailu v. State of A.P. [(2007) 14 SCC 397 : (2009) 1 SCC (Cri) 898 : AIR 2008 SC 505] )

171. In the present case, after having carefully scrutinised the evidence of the three ocular witnesses and having found their testimony on the core aspects of the occurrence to be consistent, reliable and duly corroborated by the medical evidence and the places of occurrence, we are of the view that the proved previous enmity operates as a motive for the accused to eliminate members of the rival family rather than as a ground for holding that the accused have been falsely implicated.

172. The manner in which the occurrence was committed, i.e., a coordinated attack by a group of armed persons on three members of the same family at two different places within a short span of time, is consistent with a pre-planned assault driven by deep-seated enmity. The declaration allegedly made by the accused while leaving the scene (that the oath / plan of 02.08.2017 had been fulfilled) further indicates a motivated and targeted attack.

173. We therefore hold that the previous land dispute and political rivalry, far from weakening the prosecution case, provide a clear and strong motive for the commission of the crime by the accused persons, including those who allegedly planned the crime while remaining in the background. Motive, however, is only a supporting circumstance and cannot, by itself, prove the charge of conspiracy against a person who was in custody when the direct evidence of the conspiracy meeting remains untested. Point for Determination No. 5.9 is answered accordingly.

VI-L. Unlawful Assembly, Common Object (Section 149 IPC) and Conspiracy (Section 120-B IPC)

(Point for Determination No. 5.10, 5.12, & 5.13)

 A. Unlawful Assembly and Common Object - Section 149 IPC

174. The five appellants Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar have been convicted with the aid of Section 149 of the Indian Penal Code. It is, therefore, necessary to examine whether the prosecution has successfully established the existence of an unlawful assembly and the common object of its members.

175. Section 149 IPC creates a constructive or vicarious liability. Once it is proved that an unlawful assembly of five or more persons existed and that an offence was committed by any member of that assembly in furtherance of the common object of that assembly, every person who was a member of the same assembly at the time of the committing of that offence is guilty of that offence.

176. The essential ingredients that the prosecution must establish are:

                  i the existence of an unlawful assembly of five or more persons;

                  ii the common object of such assembly falling within one of the five clauses of Section 141 IPC; and

                  iii the commission of an offence by any member of the assembly in furtherance of that common object.

177. On a careful appreciation of the evidence of PW-1, PW-2 and PW-3, which we have already found to be reliable and consistent on the core aspects, it stands established that a group of eight or more accused persons assembled and participated in the coordinated attacks on the three deceased. They were armed with pistols and knives. The attacks took place in quick succession at two different places within a short span of time. The manner of the assault by first stabbing the victims and then shooting them after they had fallen, and the declaration made while leaving the scene demonstrate a clear common intention and object.

178. The common object of the assembly was clearly to commit the murder of members of the informant’s family (falling under Section 141(3) IPC). The five appellants named above were members of that assembly and were present and participating at the time the offences were committed. Their individual overt acts (firing by Kiran and Angad, knife attacks by Rohit, Ramaiya and Krishna) further reinforce their active participation. Even if the precise individual act of every single member is not proved with mathematical exactitude, per Lalji v. State of U.P., (1989) 1 SCC 437, the constructive liability under Section 149 IPC is clearly attracted once membership of the unlawful assembly and the common object are established. The relevant paragraphs of the said judgment are reproduced below:

                  9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.

                  10. Thus, once the court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.

179. We therefore hold that the prosecution has successfully proved the existence of an unlawful assembly of which Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar were members, and that the murders of the three deceased and the firing at the witnesses were committed in furtherance of the common object of that assembly. The convictions of these five appellants with the aid of Section 149 IPC are fully justified and are upheld.

B. Criminal Conspiracy: Section 120-B IPC

180. The charge of criminal conspiracy under Section 120-B IPC has been framed against all the accused. Conspiracy is an independent offence. The gist of the offence is the agreement to commit an illegal act. It is rarely possible to adduce direct evidence of conspiracy. The offence is largely proved by circumstantial evidence, the conduct of the parties, and the chain of events (Bilal Hajar, supra).

181. In the present case, the prosecution relies upon both direct and circumstantial evidence to prove the conspiracy. Direct evidence

182. The only direct evidence of the meeting of 02.08.2017 is the fardbeyan of the informant. As already discussed in detail in Section VI-I, the informant could not be examined. The three ocular witnesses have only hearsay knowledge of that meeting. Consequently, the direct evidence of the conspiracy meeting remains untested by cross-examination. Circumstantial evidence

183. The following circumstances have been pressed into service:

                  i The highly coordinated and almost simultaneous attacks on three members of the same family at two different places;

                  ii The clear allocation of specific roles (knife-wielders and firearm-users);

                  iii The consistent evidence of the ocular witnesses that while leaving the scene the accused declared that the plan/oath of 02.08.2017 had been fulfilled;

                  iv The circumstance that Shaligram @ Khapru and Suro @ Suraj were in judicial custody on the date of occurrence, which matches the alleged plan that they should go to jail;

                  v The prior conduct of Shaligram in disposing of cattle, grain and giving land on batai shortly before the occurrence.

184. As against the five appellants who were present and participated in the actual occurrence (Kiran, Angad, Rohit, Ramaiya and Krishna), the above circumstances, taken together with their active participation, are sufficient to infer prior concert and agreement. The charge under Section 120-B IPC is, therefore, proved against them beyond reasonable doubt.

185. The case of Shaligram Singh @ Khapru Singh stands on an entirely different footing. It is admitted that he was in judicial custody on 03.08.2017 and 04.08.2017 in Kajra P.S. Case No. 11 of 2017 (bail had been granted but he had not furnished the bail bond). He was not present at either place of occurrence. The only material against him is the allegation that he participated in the conspiracy meeting of 02.08.2017 and agreed to remain in jail as part of the plan. That allegation rests almost entirely on the untested fardbeyan of the informant and the hearsay statements of the ocular witnesses.

186. While the circumstance of his remaining in custody is consistent with the prosecution narrative, it is equally consistent with the defence version that he was already in custody in connection with another case. The same set of circumstances led the trial court to extend the benefit of doubt to his son Suro. Applying a consistent standard, and regard being had to the significant gap created by the non-examination of the informant, we are of the considered opinion that the charge under Section 120-B IPC cannot be said to have been proved against Shaligram beyond all reasonable doubt.

187. The case of Suraj Singh @ Suro Singh is closely similar. In addition to the conspiracy allegation, the ocular witnesses attributed to him the role of firing at them to deter them from coming closer. The trial court, after a full appreciation of the evidence, gave him the benefit of doubt and acquitted him. In an appeal against acquittal, the High Court can interfere only if the view taken by the trial court is perverse, impossible, or has resulted in a miscarriage of justice (Ghurey Lal, supra). The view taken by the trial court is a possible view on the evidence. No interference is warranted.

188. Summary of findings on the charge of conspiracy:

                  (a) The charge under Section 120-B IPC is proved beyond reasonable doubt against Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar.

                  (b) The charge under Section 120-B IPC is not proved beyond reasonable doubt against Shaligram Singh @ Khapru Singh. His conviction under this section is liable to be set aside.

                  (c) The acquittal of Suraj Singh @ Suro Singh does not call for interference in the appeal against acquittal.

VI-M. Individual Liability of the Appellants (Point for Determination No. 5.11)

189. Having held that the ocular evidence of PW-1, PW-2 and PW-3 is reliable, that the medical evidence fully corroborates the nature of the assault, that the places of occurrence stand proved, and that the appellants were members of an unlawful assembly whose common object was to commit murder, we now examine the specific role and liability of each of the appellants and Suraj Singh @ Suro Singh.

Liability of Kiran Singh and Angad Kumar

(Cr. App. (DB) No. 553 of 2019)

190. The consistent evidence of PW-1, PW-2 and PW-3 is that both Kiran Singh and Angad Kumar were armed with pistols and actively participated in the occurrence at both places.

                  * At Durgasthan they fired at Sanjeev Kumar @ Jhalo after he had been stabbed.

                  * At Dhai Bighwa Bahiyar, Kiran Singh (with Guddu) fired at Ram Shekhar Singh and Angad Kumar (with Dilip) fired at Ripu Kumar after the victims had been stabbed and had fallen.

191. Their presence, identity and specific overt acts have been clearly established. They were members of the unlawful assembly whose common object was to commit murder. The plea of alibi raised on behalf of Kiran Singh has not been proved.

192. We uphold their conviction under Sections 148, 302/149, 307/149, 120-B IPC and Section 27 of the Arms Act. Liability of Rohit Kumar, Ramaiya Kumar and Krishna Kumar

(Cr. App. (DB) No. 248 of 2019)

193. These three appellants have been consistently named by PW-1, PW-2 and PW-3 as the persons who caused knife injuries:

                  * At Durgasthan they attacked Sanjeev Kumar @ Jhalo with knives.

                  * At Dhai Bighwa Bahiyar, Rohit and Ramaiya stabbed Ram Shekhar Singh while Krishna stabbed Ripu Kumar.

194. Their role as the primary knife-wielders is specific and consistent across the three ocular witnesses. The medical evidence of multiple stab/penetrating wounds fully corroborates this part of the ocular account.

195. The alibi evidence of DW-2 (Surat for Krishna) and DW-3 (ploughing for Ramaiya and others) has already been found unreliable and insufficient. The fact that Rohit Kumar is suffering from AIDS is a mitigating circumstance relevant only to sentence, not to conviction.

196. We uphold their conviction under Sections 148, 302/149, 307/149, 120-B IPC and Section 27 of the Arms Act.

Liability of Shaligram Singh @ Khapru Singh

(Cr. App. (DB) No. 437 of 2019)

197. Shaligram was convicted by the trial court only under Section 120-B IPC. It is admitted that he was in judicial custody on the date of occurrence (03/04.08.2017) in Kajra P.S. Case No. 11 of 2017.

198. The only material against him is the allegation that he participated in the conspiracy meeting of 02.08.2017 and agreed to remain in jail so that suspicion would not fall on the others.

199. The direct evidence of that meeting comes solely from the fardbeyan of the informant, who has not been examined. The three ocular witnesses only claim to have been told about it by the informant after the occurrence. Their evidence on this point is hearsay.

200. While the circumstance that Shaligram remained in custody without furnishing bail bond is consistent with the prosecution narrative, it is equally consistent with the defence version that he was already in custody in connection with another case.

201. The trial court itself gave the benefit of doubt to his son Suro @ Suraj on virtually the same set of circumstances. Applying the same standard, and regard being had to the absence of direct, tested evidence of the conspiracy meeting, we are of the view that the conviction of Shaligram solely under Section 120-B IPC is not sustainable beyond reasonable doubt.

202. The appeal of Shaligram Singh @ Khapru Singh is allowed. His conviction under Section 120-B IPC and the sentence awarded to him are set aside. He is acquitted of the charge.

Case of Suraj Singh @ Suro Singh (Cr. App. (DB) No. 348 of 2019 - Appeal against acquittal)

203. The trial court acquitted Suraj @ Suro by giving him the benefit of doubt. The complainant (daughter of the informant) has challenged this acquittal and prayed that he be convicted under Section 120-B IPC.

204. The evidence against Suraj is similar to that against his father Shaligram, i.e., alleged participation in the conspiracy meeting of 02.08.2017 and the plan to go to jail. In addition, the ocular witnesses have attributed to him the role of firing at them to keep them away at both places of occurrence. However, the trial court found the evidence insufficient to convict him.

205. In an appeal against acquittal, the High Court can interfere only if the view taken by the trial court is perverse, impossible, or has resulted in miscarriage of justice. The trial court’s decision to give Suraj the benefit of doubt is a possible view on the evidence, particularly in the light of the weak direct evidence of conspiracy and the fact that the main overt acts of murder were attributed to the other accused.

206. We find no perversity in the acquittal recorded by the trial court. The appeal against acquittal (Cr. App. (DB) No. 348 of 2019) is dismissed. The acquittal of Suraj Singh @ Suro Singh is affirmed.

VI-N. Overall Conclusion on Conviction

207. We have carefully re-appreciated the entire oral and documentary evidence, considered the rival submissions advanced in all the four appeals, and applied the relevant legal principles. Our final conclusions on the question of conviction are as under:

A. Appeals against Conviction of Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar (Cr. App. (DB) Nos. 553 of 2019 and 248 of 2019)

208. The presence of the three ocular witnesses (PW-1, PW-2 and PW-3) at the relevant time and places of occurrence, though questioned on the ground of their long-term residence at Lakhisarai, has not been disproved by the defence. Their claim of presence stands.

209. The evidence of these three witnesses is consistent, coherent and trustworthy on the core aspects of the prosecution case: the sequence of events, the places of occurrence, the weapons used, and the specific roles played by the five accused named above. Minor variations in distances or peripheral details do not detract from the reliability of their testimony. Their ability to observe the occurrence from the distances claimed, in the facts and circumstances of the case, cannot be doubted.

210. The medical evidence fully corroborates the ocular account regarding the nature of the injuries (a combination of stab and firearm wounds) and the cause of death of all three deceased.

211. The three places of occurrence have been clearly proved and are consistent with the ocular, medical and investigative evidence.

212. The delay in the formal registration of the FIR, though present, has been adequately explained by the extreme shock, the law-and-order situation, and the surrounding circumstances. It is not fatal to the prosecution case.

213. The investigation suffers from certain omissions and lapses. Those deficiencies, however, are not of such a nature as to destroy the core of the prosecution case against these five accused, which rests on reliable ocular evidence duly corroborated by medical evidence.

214. The alibis pleaded on behalf of some of these accused have not been proved even on the standard of preponderance of probabilities. The Maoist theory is without any evidentiary foundation.

215. The proved long-standing land dispute and political rivalry supply a strong motive for the commission of the crime.

216. The existence of an unlawful assembly of five or more persons and the common object of its members to commit murder have been fully established. All the five accused were members of that assembly and actively participated in the occurrence.

217. The charge of criminal conspiracy under Section 120-B IPC is also proved against them on the basis of the coordinated nature of the attacks, the allocation of roles, their subsequent conduct, and the overall chain of circumstances.

218. In view of the above findings, we hold that the prosecution has proved the charges against Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar beyond all reasonable doubt.

Their convictions under Sections 148, 302/149, 307/149 and 120-B of the Indian Penal Code and Section 27 of the Arms Act are affirmed.

B. Appeal of Shaligram Singh @ Khapru Singh (Cr. App. (DB) No. 437 of 2019)

219. Shaligram Singh @ Khapru Singh was convicted by the trial court only under Section 120-B IPC. It is admitted on record that he was in judicial custody on the date of occurrence (03/04.08.2017) in Kajra P.S. Case No. 11 of 2017. The only material against him is the allegation that he participated in the conspiracy meeting of 02.08.2017 at Kisan Bhawan and agreed to remain in jail as part of the plan. The direct evidence of that meeting rests solely on the fardbeyan of the informant, who could not be examined. The three ocular witnesses have only hearsay knowledge of the meeting.

220. While certain circumstances (his remaining in custody without furnishing bail bond, prior disposal of cattle and grain, etc.) are consistent with the prosecution narrative, they are not conclusive and are equally capable of an innocent explanation. The trial court itself extended the benefit of doubt to his son Suro @ Suraj on substantially the same set of circumstances.

221. Applying a consistent standard and regard being had to the significant gap created by the non-examination of the informant, we hold that the charge under Section 120-B IPC has not been proved against Shaligram Singh @ Khapru Singh beyond reasonable doubt.

His conviction under Section 120-B IPC and the sentence awarded to him are set aside. He is acquitted of the said charge. Cr. Appeal against Acquittal of Suraj Singh @ Suro Singh (Cr. App. (DB) No. 348 of 2019)

 222. The trial court acquitted Suraj Singh @ Suro Singh by giving him the benefit of doubt. In an appeal against acquittal, the High Court can interfere only if the view taken by the trial court is perverse, impossible, or has resulted in a miscarriage of justice.

223. The evidence against Suraj was similar to that against his father Shaligram, with the additional allegation that he fired at the witnesses to keep them away. The trial court, after a full appreciation of the evidence, found it insufficient to convict him. That view is a possible view on the evidence.

224. We find no perversity or miscarriage of justice in the acquittal recorded by the trial court.

225. Criminal Appeal (DB) No. 348 of 2019 is dismissed. The acquittal of Suraj Singh @ Suro Singh is affirmed.

Operative Order

226. Criminal Appeal (DB) No. 553 of 2019 preferred by Kiran Singh and Angad Kumar is dismissed.

227. Their conviction under Sections 148, 302/149, 307/149 and 120-B of the Indian Penal Code and Section 27 of the Arms Act, and the sentences awarded to them by the trial court, are affirmed.

228. Criminal Appeal (DB) No. 248 of 2019 preferred by Rohit Kumar, Ramaiya Kumar and Krishna Kumar is dismissed.

229. Their conviction under Sections 148, 302/149, 307/149 and 120-B of the Indian Penal Code and Section 27 of the Arms Act, and the sentences awarded to them by the trial court, are affirmed.

230. Criminal Appeal (DB) No. 437 of 2019 preferred by Shaligram Singh @ Khapru Singh is allowed.

231. His conviction under Section 120-B of the Indian Penal Code and the sentence of rigorous imprisonment for life with fine awarded to him are set aside. He is acquitted of the said charge. He shall be released forthwith if not required in connection with any other case.

232. Criminal Appeal (DB) No. 348 of 2019 preferred by Ruchi against the acquittal of Suraj Singh @ Suro Singh is dismissed.

233. The acquittal of Suraj Singh @ Suro Singh recorded by the trial court is affirmed.

234. The direction of the trial court for payment of compensation of Rs. 4,00,000/- (Rupees Four Lakh only) to the legal heirs of each of the three deceased is affirmed. The District Magistrate, Lakhisarai shall ensure compliance of the said direction, if not already complied with, within a period of two months from the date of receipt of a copy of this judgment. The appellants Kiran Singh, Angad Kumar, Rohit Kumar, Ramaiya Kumar and Krishna Kumar shall remain in custody to serve out the sentences awarded to them. The jail authorities shall ensure that appellant Rohit Kumar is provided with proper and specialised medical treatment for his ailment.

235. Let a copy of this judgment be transmitted to the trial court for information and necessary compliance. The lower court records be returned forthwith.