(1.)On 29-5-1981 at about 8 A.M. a grave rioting took place in the village of Tirro in Varanasi District. In the course of the said rioting two persons Mahendra Singh and Virendra Singh deceased Nos. 1 and 2 were killed and Vijay Narain Singh, P.W. 1, Uma Shankar Singh, P.W. 2 and one Kailash Singh received injuries. In respect of these offences 14 accused were tried under Sections 148 and 302 read with Section 149, I.P.C. Chirkut Singh, accused No. 6 was tried for offence punishable under Section 307, I P.C. for attempting to commit the murder of P.W. 1 and the remaining accused under Section 307 read with Sec. 149, I.P.C. for causing injuries to Uma Shankar Singh, - P.W.2 and Kailash Singh. It is alleged that the material prosecution witnesses, deceased persons and the accused belong to the same village. Since 1972 there have been disputes between these two rival groups. A number of cases were also pending in the Courts. On the day of occurrence at 8 a.m. P.W. 1 went to his pumping set. P.W. 2 Uma Shankar Singh and his relation Kailash Singh were also at the pumping set. Deceased Nos. 1 and 2 were proceeding along with the rasta towards the pumping set for taking bath. When they reached near the Khandhar (old building) of Vijay Pratap Singh Accused No. 5 Lallan Singh exhorted the other accused who Were all lying in wait to kill them. All the 14 accused emerged out of the Khandar. Out of them accused Nos. 1, 3, 4 and 6 (accused Nos. are being referred to as arrayed before the trial Court) were armed with guns and the rest were armed with lathis. They advanced towards deceased Nos. 1 and 2. Accused No. 1 fired a shot which hit deceased No. 1 and he was immediately also shot at by accused No. 3 Ranjit Singh and he fell down. In the meanwhile accused No. 4 Ram Briksh Singh fired at deceased No. 2 Virendra Singh who fell down and both deceased died on the spot. The other accused carrying lathis advanced towards P.W. 1 who ducked and escaped unhurt. Then the lathis-wielding accused assaulted P.W. 1 Vijay Narain Singh, P.W. 2 Uma Shankar Singh and Kailash Singh. P.W. 1 managed to escape and ran away.
(2.)The trial Court relying on the evidence of P.Ws. 1 and 2, who are the main eye-witnesses, convicted all the 14 accused of the offences for which they were charged and the substantial sentence awarded is imprisonment for life under Section 302, I. P.C. read with Section 149, I.P.C. The convicted accused preferred appeals. The State also filed appeal for enhancement of the sentence. A Division Bench of the Allahabad High Court consisting of Justice Katju and Justice Agrawal heard the appeals. justice Katju allowed the appeals filed by the accused and dismissed the appeal filed by the State but the other learned Judge disagreed and dismissed all the appeals concurring with the trial Court. The matter came up before a third Judge Seth, J. He took the view that only such of those accused to whom specific overt acts were attributed could be convicted and the other should be given benefit of doubt. In that' view of the matter he confirmed the conviction of accused Nos. 1, 3, 4 and 6 and, acquitted the rest of the accused. Accused' Nos. 1, 3, 4 and 6 applied for special leave which was granted by this Court and their appeals are numbered as Criminal Appeals Nos. 375-77/87 and the State has preferred appeals against the acquittal of the other remaining 10 accused which are numbered as Criminal Appeals Nos. 372-74/87.
(3.)It is contended on behalf of the State that the occurrence has taken place in broad-day light and merely because the witnesses are interested their evidence cannot be rejected and that the view taken by Justice Seth is incorrect and the view taken by the trial Court as well as by Justice Agrawal has to be accepted. On the other hand, the counsel appearing for the accused submitted that witnesses who were partisans and were highly interested have made omnibus allegations and it is highly dangerous to accept their evidence because there is every likelihood of innocent persons having been falsely implicated. It is also their further submission that the prosecution has not come forward with the whole truth; and that the origin of the occurrence has been suppressed inasmuch as injuries to some of the accused persons have not been explained and consequently it must be held that occurrence did not take place in the manner alleged by the prosecution and that under these circumstances the truth from falsehood cannot be separated and therefore, none of the accused could be convicted.