- (1.) The State of Uttar Pradesh questions legality of the judgment rendered by a Division Bench of the Allahabad High Court directing acquittal of the respondents (hereinafter referred to as 'the accused'), 13 persons were claimed to be responsible for the death of large number of persons including small children. Of them, one namely, Mahendra died during trial. After commitment, they faced trial in the Court of Third Additional Sessions Judge, Muzaffarnagar. While the trial was in progress, 4 of them absconded and 8 persons have been tried. Three of them namely, Hardeep, Sinder Singh and Nishan Singh were acquitted by the trial Court, while the rest five who are respondents herein were convicted for the offences punishable under S. 302 read with S. 149 of the Indian Penal Code, 1860 (in short 'IPC'). They were also found guilty under S. 307 read with S. 149, I.P.C., and under S. 452, I.P.C. For the offence relatable to S. 307 read with S. 149, I.P.C. they were sentenced five years R.I. and for the offence relatable to S. 452 they were sentenced four years R.I. Respondent-Veer Singh, Tahal Singh, Balkar Singh were also found guilty of offences punishable under S. 148, I.P.C. and sentenced to three years R.I. while Kameer Singh and Amreek Singh were found guilty of offence punishable under S. 147, I.P.C. and were sentenced to one year R.I. In appeal by the convicted accused persons, the conviction has been set aside by the impugned judgment.
(2.) Prosecution version in essential is as follows : Information was lodged by Sardar Gurdip Singh at about 4.00 a.m. on 14-7-1984 at P. S. Chhinjhava, District Muzzaffarnagar stating that he heard shots and cries coming from the deras of Sardar and Mohan Singh in village Dompura near village Barnan. He took his licensed gun and came secretly with Jessa Singh s/o Harbans Singh and Huzoor Singh (P.W. 5) towards the dera of Gopa Singh. They saw in the moonlight and torch light that Kartar Singh, standing on his roof and was loudly calling out his son Sinder Singh, Ginder Singh, Mahendra and Lakkha loudly and asking them to wipe out the whole family and Mohar Singh, leaving none of them alive, and that the account is to be settled that day. When the complainant and his companion challenged them, many shots were fired immediately. The complainant retreated out of fear. At the same time Harbhajan Kaur (P.W. 4) wife of Sheesa Singh came towards near him and told him that Kartar Singh and his four sons and 10-12 more men with them, including Amrik Singh, Tahal Singh, Kamir Singh, Veer Singh sons of Sampurna Singh Balkar Singh of Usarpur have killed all the members of her family and all the members of Mahar Singh's family. The complainant said that he came to give this information to the police station after hiding Harbhajan Kaur, and requested the police to go immediately to the site to help her because shots were being fired when he left the site. His above statement was recorded and chic report was prepared and he signed the report to confirm that it was read over to him and was written correctly as dictated by him. A case was registered on the basis of said report and Mohd. Akhtar, who was present at the police station when report was written, took up the case immediately and went immediately to the site with the complainant. After reaching the site, he sent injured Harbans Kaur and her child Bachu by jeep with a constable to Shanti for medical examination. Thereafter, the Investigating Officer started investigation. On completion of investigation, charge-sheet was placed. The trial Court placed reliance on the evidence of P.W. 4 and the statement purported to be the dying declaration. As noted above, the trial Court acquitted some and convicted the present respondents. The High Court was of the view that though in the FIR names of present respondents were indicated, in the dying declaration they were not named and, therefore, they were to be acquitted. That is how the present judgment of acquittal is recorded.
(3.) Mr. N. S. Gahlot, learned counsel appearing for the appellant-State submitted that the approach of the High Court is clearly erroneous. The so-called dying declaration which was recorded with the belief that there was no chance of survival of P.W. 4 is in essence a statement recorded under S. 164 of the Code of Criminal Procedure, 1973 (in short 'the Code') having been recorded by the Executive Magistrate, since she has survived. It related to a part of the incident so far as the assailants on her are concerned and did not in any way related to the rest of the occurrence. Therefore, the High Court was not justified in directing acquittal of respondents.;