CRIMINAL APPEAL No.439 OF 1988 ------- Against the Judgment of conviction dated 20th July 1988 passed by the 9th Additional District & Sessions Judge, Munger in Sessions Case No. 139/85/185/85. ---------- 1.Sunil Prasad son of Shri Jadunandan Prasad 2.Brijnandan Prasad son of Ram Saran Prasad 3.Satya Narayan Prasad son of Shri Ram Khelawan Prasad 4.Rajendra Prasad son of late Bhattu Mahto 5.Sahdeo Chaurasia son of Shri pairo Mahto 6.Naresh Prasad son of Shri Banshi Mahto , all are R/o Village Aifni P.S. Ariari Dist. Munger …..Appellants. Versus The State of Bihar. ---------------------- Respondent ----------- For the Appellants : Smt.Nutuan Sahay (Amicus Curiae) Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE BIRENDRA PRASAD VERMA Dharnidhar Jha & B.P. Verma, JJ The present appeal arises out of the judgment of conviction dated the 20th July 1988 passed by the learned 9th Additional District & Sessions Judge, Munger in Sessions Trial No. 139/1985 and 185/1985. The appellants were tried for composite charges under sections 148 and 302 read with 149 of the Penal Code and by the above noted judgment they were found guilty of committing the offences under which they had been charged and each of them was directed to suffer rigorous imprisonment for two years under section 148 of the Penal Code and R.I. for life under section 302 of the Penal Code. The appellants challenge the vires of the findings recorded against them and the sentences passed by the learned trial court upon them. - 2 - We did not have the counsel before us whose name appears in the cause list and as such Smt. Nutan Sahay, Advocate offered to assist us in the present appeal as Amicus Curiae and accordingly we have heard her. We have also heard Shri Jharkhandi Upadhaya , learned A.P.P. for the State. The short facts are that the informant Surendra Prasad( P.W.1), along with deceased Bhagirath Pd. and Bhushan Raut P.W.4 and Manoranjan @ Manu, (not examined) were going towards cattle fair for purchasing some cattles . When they were on the bank of a pond, the accused persons were found sitting there. The deceased was moving ahead along with the informant and others and as soon as they proceeded towards the appellant Rajendra Prasad and Brijnandan Prasad remonstrated to kill the deceased upon which accused Anurodh Pd. @ Tunna (since dead) came out of a bush and fired from his rifle which hit the deceased on his head and he fell down and thereafter all the accused persons who were either armed with a gun or with a rifle came near the deceased and fired a number of shots so as to kill him at the spot. The accused persons thereafter fled away towards north. The reason for the occurrence as alleged by P.W.1 were that the accused persons wanted the informant, the deceased and others to be on their side which they were not ready to do. - 3 - The defence of the appellants was that of denial about their participation in the occurrence and further that no occurrence had really taken place in the manner as alleged by him and in fact the deceased was killed either by P.W.1 or at his behest, by someone else. The prosecution examined a total number of eight witnesses. P.W.1 Surendra Prasad is the informant of the case and has given eye witness accounts to the occurrence. P.W.2 Abdul Khalil is a Chaukidar and he narrated the incident after having learnt about it from P.W.1. P.W.3 Bindeshwari Paswan, a chaukidar, was tendered for cross-examination. P.W.4 Bhushan Raut is named in the first information report and allegedly was accompanying the informant and the deceased at the time of occurrence. Dr. Ramakant Singh P.W.5 had held postmortem examination on the dead body of Bhagirath Prasad and had prepared postmortem examination report, Ext.2. P.W.6 S.I. Naresh Pd. Sharma had recorded the fardbeyan and had partly investigated the case. He prepared the inquest report (Ext.3) and thereafter handed over the charge of investigation to P.W.8 S.I. Lallan Singh. P.W.7 S.I. Sarfuddin Khan had submitted charge sheet in the case. The defence examined one Bhushan Prasad who testified to the defence suggestion that it could be the informant or some one else acting on his behalf who murdered the deceased. After considering the evidence, the - 4 - impugned judgment was passed in terms as indicated just now. Smt. Sahay, learned Amicus Curiae, has taken to us through the evidence of witnesses and has submitted that on the very strength of the evidence of P.W.1 it could be said that no one had seen the occurrence or they were testifying in court out of their imagination . It was further contended that the evidence of P.W.1 indicates that the dead body was found on the western bank of the pond but the evidence of the I.O. in paragraph 3 at page 17 indicates that the dead body was found at a place which was the embankment of a canal (Ahar) on its eastern flank and on the southern side of it. Thus the whole place of occurrence was a different from that which was stated in the first information report or in the evidence of P.W.1. In the above connection our attention was also drawn to the evidence of P.W.2 which also indicates that the dead body was found at a place different from that appearing in the evidence of P.W.1. As regards the complicity of the present set of appellants, it was contended that no one appears to have seen that the appellant had really fired a shot as P.W.1 or P.W.4 had either fled away or both had concealed themselves after the first shot was fired and, as such, they were telling the court that they simply heard the sounds of shots being fired. Shri Jharkhandi Upadhaya learned A.P.P. initially resisted the submission by interpreting the evidence otherwise, but lastly conceded that - 5 - the inference which is being raised by the argument of the learned Amicus Curiae may not be impossible. The two witnesses P.Ws 2 and 4 have given evidence as eye witness to the occurrence. The description of the place of occurrence appears in paragraph 4 of evidence of P.W.1 in which he has also given description as to who among the accused or the witnesses and the deceased were sitting or moving at what particular place when the occurrence really took place. The evidence of P.W.1 in paragraph 4 indicates that the embankment of the pond was 5-6 ft in height from the ground level existing around the pond. The assailant Anurodh Pd. @ Tunna was hiding himself in a bush which was located some where at about 20/25 yards in the north-east corner of the pond. Initially P.W.1 stated that Bhagirath Pd. was 10 yards from the western embankment of the pond. The other line of his evidence tells us that when the shot hit Bhagirath, he was at the western embankment of the pond and he had fallen there. We see inherent improbability in the evidence because height of the embankment as per this witness was 5 to 6 ft from the normal ground level existing around the pond. If the shot was being fired by Anurodh Prasad @ Tunna from as distant a place as 75 ft from the north eastern embankment of the pond, the gun shot could, firstly, be intervened by the raised embankment. Secondly, the whole distance which could be - 6 - existing in between the deceased and the assailant would be quite big because, admittedly, the distance was also intervened by a pond which had an area of 12 bighas. It makes it utterly improbable for us to accept that the shot could be fired and the deceased could be hit by that. This is the reason that we have read the evidence of the I.O. in paragraph 3 appearing at page 17 of the paper book. This paragraph contains the description of the place where P.W.8 the I.O. of the case had found the dead body lying in the pool of blood. It has been stated by P.W.8 that a canal was running from west to east at a distance of about 600 yards from village Afni and he found the dead body in a pool of blood lying on the eastern embankment of the canal on the southern side. What further appears from the evidence of P.W.8 is that there were two plots on the northern side of the canal and those were filled up with water. The I.O. found the pond, which is stated by the witness as the place of occurrence, situated about 300 yards from this place as may appear from the same paragraph 3 of P.W.8 and nothing was found on the embankment of that particular pond. This is one part of the evidence which indicates that the occurrence might not have taken place at the place as is claimed by the prosecution. It was contended before us that witnesses were making their statements out of their imagination. We have been shown some very - 7 - compelling reasons in support of the above contention. If one considers the evidence of P.Ws.1 and 4 carefully then it is clearly indicated by the evidence of the two witnesses that as soon as the shot was fired both of them either had concealed themselves behind the raised height of the embankment of the pond or had run away from there and as such they have not stated that they had seen any of the appellants firing shots upon the deceased. Thus we find that they were not the real witnesses to the occurrence. They appear created for supporting the prosecution case. We are of the considered view that the murder of Bhagirath Pd. was committed for some other reasons by some unknown or known persons but the informant on account of any particular reasons had concealed the real facts and had presented distorted version of the occurrence as a result of which we find that the complicity of the appellants have not been proved satisfactorily and to the hilt. In the result the appeal is allowed. The conviction of the appellants and the sentences passed upon them are hereby set aside. The six appellants are acquitted. At the same time they are discharged from the liabilities of their respective bail bonds. We must appreciate the effort of Smt. Nutan Sahay who had assisted us wonderfully at a very short notice and we think that she deserves a fee of hearing to be paid to her by the High Court Legal Services Committee. Let a copy of the first and last pages of - 8 - this judgment be handed over to Smt. Nutan Sahay for that purpose. (Dharnidhar Jha, J) (Birendra Prasad Verma, J) Patna High Court, The 24th Feb. 2010 M.Rahman(NAFR)