(1.) THIS is an appeal by, the State of UP against the judgment and order of I Addl. Sessions Judge, Shahjahanpur by which he acquitted the respondents who were tried by him on a charge u/S. 396 IPC. The crime which led to the trial was one of gruesome foulness and diabolical cruelty. On 2 -10 -964 at about 9 P.M. a dacoity was committed at the house of Hardwari Lal in village Pandaria Dalelpur, P.S. Banda, distt. Shahjahanpur, and in the course of that dacoity Hardwari Lal himself, his brother Ram Naresh alias Puttu Lal and their father Ram Swarup were murdered. Further, the heads of Hardwari Lal and Ram Swarup were severed and the head of Puttu Lal was partially cut off in the presence of the wives of Hardwari Lal and Puttu Lal who, it is said, were brought out by the miscreants from inside the house to see the tragic sight with their own eyes. The severed heads of Hardwari Lal and Ram Swarup were also tied up in bundles and taken away along with the property looted in the dacoity. The evidence led in the case clearly establishes the factum of dacoity and murders and it has not been disputed before us on behalf of the respondents. The question to be determined is whether the respondents or any of them can be said to have been among the perpetrators of this ghastly crime.
(2.) BRIEFLY stated the case of the prosecution is as follows. Ram Swarup deceased and his cousin Jwala Prasad PW 2 were formerly residents of village Silua, but about ten or eleven (?) before the occurrence they shifted to village Pandaria Dalelpur which is at a distance of about six or seven miles from Silua and settled there. Ram Swarup began living in village Pandaria Dalelpur permanently with his family, but Puttu Lal used to reside in both the villages. Ram Swarup was doing Gur business and had two Bels, one in village Pandaria Dalelpur and the other in village Alampur, and he also carried on money lending. Jwala Prasad PW 2 was his partner in the Bel business, and Jagdish Prasad PW 1, who is Hardwari Lal's wife's brother, was their Munim. Ram Swarup had also a cloth shop in his Chaupal or Baithak in village Pandaria Dalelpur. The Baithak is quite close to his re identical house and consists of a room and a Tarwaha in front of it. On the day of occurrence Jwala Prasad and Puttu Lal came from village Silua sometime in the day and brought with them a sum of Rs. 2000/ - for distributing it among cane -growers who were to supply cane juice to their Bel. At about 9 or 9.30 P.M. Hardwari Lal, Puttu Lal and Jwala Prasad were sitting on a Takhat in the Tarwaha and looking into the accounts of their business. A lantern was burning at the northern end of the Tarwaha and a Kuppi was burning in a Taq in the wall of the Tarwaha. Jagdish Prasad PW 1 was also there and Hardwari Lal's servant Tejpal alias Teja PW 5 was sitting on the ground at a short distance. Ram Swarup was inside the Baithak with Hardwari Lal's child Lala, and was trying to make the child sleep. A little before the occurrence Nathoo Lal of village Pandaria Dalelpur passed from east to west along the path way in front of the Tarwaha and then went back in the direction from which he came. Just a few minutes thereafter, about twenty persons suddenly came to the Baithak. Tika Ram and his son Ram Bhajan, Kunwar, Manohar, Maiku, Ram Kishan, Shanker, Ram Charan and Nathoo Lal of village Pandaria Dalelpur and Chhotey Lal and his son Lalu of village Bhatnause were known persons and the remaining miscreants were unknown persons. Ram Bhjan said "ye hi hain" whereupon Shanker fired a shot at Puttu with a gun. Puttu Lal got injured and fell down on the ground from the Takhat. Hardwari Lal tried to escape but Nathoo Lal fired at him with a pistol with the result that he too was injured and fell down on the ground. Six or seven miscreants then entered the Baithak and caught hold of Ram Swarup. One of them attacked him with a sword but the blow, instead of hitting him, hit the child who was lying on the cot besides him. Jagdish Prasad got an opportunity to escape through a door of the Baithak and he ran away and raised an alarm. Thereupon Lakhan PW 3, Kashi Ram PW 16, Nathoo Lal alias Shaukin PW 13, Ram Bhajan PW 33, Lok Ram PW 41, and several other persons of the village came up, stood inside Khyali's Khandahar which is at a short distance from Hardwari's house and witnessed the entire incident from there in the light of the lantern, the Kuppi and the torches. Some of the miscreants entered the house out of whom two went up on the roof. One of the persons who went up on the roof began firing shots on all sides and merrily reciting Alha. Kunwar and Manohar brought out the wife of Hardwari Lal and Puttu Lal from inside the house and took them to the Tarwaha. Ram Bhajan, one of the miscreants, suggested that they should be shown the condition of their husbands and, referring to Ram Swarup, Hardwari Lal & Puttu Lal, said that their heads should be chopped off. Ram Swarup himself severed the head of Hardwari Lal while Maiku severed the head of Ram Swarup with sword. Phul Chand respondent began to severe the head of Puttu Lal but it was not entirely cut off. The miscreants also looted considerable property from the house and the Baithak and placed it near the Tarwaha. After carrying on these activities for about an hour they brought out two pieces of cloth from the Baithak, and tied the severed heads of Hardwari Lal and Ram Swarup in them separately. Thereafter they picked up the looted property and the severed heads and went away. The Chaukidar of the village, Angney PW 8, who lives about a mile away in village Sheopuria, reached the scene of occurrence shortly after the departure of the miscreants. He had started from his village on hearing reports of gun -shot from the side of Pandaria Dalelpur, taking with him four residents of his village. These four persons were gun licensees & they had also fired their guns from their village. On reaching the outskirts of village Pandaria Dalelpur, however, they asked Angney to go to the village and see what had happened and themselves went back to their village saying that the dacoits might go there after leaving Pandaria Dalelpur. When Angney reached the scene of occurrence he found weeping and crying going on & Ram Swarup, Hardwari Lal & Puttu Lal lying dead. He also found that the heads of Ram Swarup and Hardwari Lal had been completely severed and taken away. Further, he heard Tej Ram alias Teja telling the village people that a dacoity had been committed and three persons had been killed and the dacoits had also taken away the two guns of Hardwari Lal. Thereupon Angney ran back to his village, took his uniform and hurried to Police Station Banda situate at a distance of three miles from the place of occurrence. He reached the Police Station at 0.5 A.M. and lodged a report there. The S.O., S.C. Saxena PW 42, was not present as he had gone out in connection with the investigation of another case. He, however, arrived soon after at 0.35 A.M. and left the Police Station at once for the scene of occurrence, taking with him Khyali Ram SI and a few constables. He reached the scene of occurrence at 2 A.M. In the meantime Jagdish Prasad PW 1 had prepared a list of the property lost in the dacoity and he gave it to the SO just after the latter's arrival. The SO examined Jagdish Prasad, Jwala Prasad and Angney and, as the first two persons named certain culprits, he searched and got a search made for such of them as were residents of that very village. None of them could, however, be found. The SO found the headless body of Ram Swarup, lying outside the Tarwaha and the headless body of Hardwari Lal and the badly mutilated body of Puttu Lal inside the Tarwaha and a lot of blood at all the three places. He also found one fired cartridge outside the Tarwaha and eight percussion caps near the dead body. He saw a lantern and a kuppi in the Tarwaha and another lantern inside the house. He took in his possession all relevant articles found at the scene of occurrence of which it is not necessary to give details. Thereafter he sent Teja and Hardwari Lal's small child, Lala, who were also injured in the incident for medical examination. Under his instructions Khayali Ram SI held inquests on the dead bodies and they were dispatched for postmortem examination. Investigation and search for the culprits continued and ultimately on 1 -1 -1965 a charge -sheet was submitted against Jagne, Phul Chand, Chhotey, Ram Singh, Tika Ram, Ram Charan, Manohar, Kunwar, Ram Kishan, Sia Ram, Tej Ram, Ram Bilas, Gokaran, Maiku, Shanker, Ram Bhajan, Nathoo Lal, Chhotey Lal and Lala. Out of these persons the first nine had been arrested while the rest were absconding. Chhotey Lal surrendered in court on 19 -2 -1965 and he too was accordingly tried along with nine others who had been arrested. Some recoveries are also said to have been made on the pointing out of Tika Ram and Phul Chand accused. It is said that Khyali Ram SI arrested Tika Ram on 17 -10 -1964 in the Har of village Saijhania where he has got some field. On interrogation Tika Ram told the SI that a sweater was at his house and offered to give it. The SI went to the house of Tika Ram with witnesses and there Tika Ram, after taking out a key from his pocket, opened the lock of a Kothari of his house. From a box kept inside the Kothari Tika Ram took out sweater Ex. 1 and gave it to the SI who packed and sealed it. On further interrogation Tika Ram took the SI to a grove to the north of village Saijhania where the SI found some Royal and some pieces of Bidis and match -sticks. Tika Ram was again interrogated and then he offered to point out near the bank of river Gomti the place where they had thrown the severed heads in the river. Tika Ram took the SI and the witnesses to Gadaighat and after entering the river and after some search he brought out a bundle containing one brick, some sand and one Zanani Dhoti of red border. After some further search in the water he brought out another bundle containing another brick, some sand and a Dhoti Pair. He also took out two other Dhotis. The SI dried these pieces of clothes and packed and sealed them. Phul Chand was arrested at his house and on being interrogated he handed over to the police a sword from a Kothari inside his house. Out of the eleven known miscreants only six could be arrested and the rest remained absconding. The position, therefore, was that the trial proceeded against ten persons out of whom six viz. Tika Ram, Ram Charan, Manohar, Kunwar, Ram Kisshan and Chhotey Lal were known to the witnesses from before the occurrence and four were not known.
(3.) ALL the accused persons pleaded not guilty and denied the allegations made against them.