CRIMINAL APPEAL NO.791 OF 2004 (DB) WITH CRIMINAL APPEAL NO. 828 OF 2004 (DB) WITH CRIMINAL APPEAL NO. 4 OF 2005 (DB) WITH CRIMINAL APPEAL NO. 5 OF 2005 (DB) Against the judgment of conviction and order of sentence dated 16th and 29th October, 2004 respectively passed in Sessions Trial No. 20 of 1987 by Sri Chiranji Singh, P.O., Fast Track Court No. 1, Gopalganj. ********* 1. BHAJAN CHAUDHARY @ RAMBHAJAN CHAUDHARY SON OF LATE BHRIGRAJAN CHAUDHARY 2. ARVIND KUMAR PATHAK SON OF SRI RAM AWADH PATHAK BOTH R/O VILLAGE MAJHAWALIA P.S- BIJAYIPUR, DISTRICT- GOPALGANJ ……………..APPELLANTS (IN Cr. Appl. No. (DB) 791 of 2004 ) 3. MANAGER RAI SON OF LATE SAMPAT RAI 4. BHAGWATI RAI SON OF LATE SAMPAT RAI 5. UMESH RAI SON OF INDRADEO RAI 3 to 5 R/O VILLAGE- KISUNPURA, P.S.- VIJAYEEPUR, DISTRICT- GOPALGANJ 6. DEOMUNI CHAUDHARY SON OF JAYANTI CHOUDHARY, R/O VILLAGE- RAMPUR, P.S.- KATEYA, DISTRICT- GOPALGANJ ………….3 TO 6 APPELLANTS (in Cr. Appl. (DB) No. 828/2004) 7. AMLA PATHAK SON OF LATE GOMATI PATHAK R/O VILLAGE- MAJHAWALIA P.S- BIJAYIPUR, DISTRICT- GOPALGANJ…..........APPELLANT (in Cr. Appl. (DB) No. 4/2005) 8. DHURUP PATHAK SON OF LATE MAHADEO PATHAK, R/O VILLAGE MAJHAWALIA P.S- BIJAYIPUR, DISTRICT-GOPALGANJ .…………………………..APPELLANT (in Cr. Appl. (DB) No. 5/2005) VERSUS STATE OF BIHAR…………...RESPONDENTS (IN ALL THE APPEALS) ************** For the Appellants :-Mr. Ramakant Sharma, Sr. Adv. Mr. Sudhir Singh, Adv. Mr. Ranjeet Kumar, Adv. Mr. Mannan Kr. Mishra, Sr. Adv. Mr. Awanish Kr. Pandey, Adv. Mr. Manish Kumar, Adv. Mr. Narendra Kumar, Adv. For the State :-Mr. Ashwini Kumar Sinha, APP **************** 2 P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD S. K. Sharma & Gopal Prasad, JJ. Above noted all the four appeals being preferred by the above named appellants have arisen out of common judgment of conviction and order of sentence dated 16.10.2005 and 29.10.2005 respectively passed in Sessions Trial No. 20 of 1987 by the Presiding Officer of Fast Track Court No.1, Gopalganj have been heard together and are being disposed of by this common judgment. 2. Appellants Amla Pathak and Dhrup Pathak have been convicted for the offence under Section 302 IPC and under Section 27 of the Arms Act and they have been sentenced to undergo imprisonment for life u/s 302 IPC and rigorous imprisonment for 2 years u/s 27 of the Arms Act. Appellants Manager Rai, Bhajan Chaudhary, Bhagwati Rai, Umesh Rai, Deomuni Chaudhary and Arbind Kumar Pathak have been convicted for the offences under Sections 302/34 IPC and under Section 27 of the Arms Act and they have been sentenced to undergo rigorous imprisonment for life under Sections 302/34 IPC and rigorous imprisonment for 2 years u/s 27 of the Arms Act. All the sentenced were ordered to run concurrently. 3. During the pendency of the appeals one of the appellants namely, Manager Rai of Cr. Appeal No. 828 of 200 (DB) died so the appeal against him abates. 4. PW 5 Sri Thakur Dubey submitted his written report 3 to the Officer-Incharge of Vijaypur, Gopalganj stating therein that he was having a house and shop in Majhawalia Bazar under the jurisdiction of Vijaypur Police Station. That Bazar was having a market day on Tuesday i.e. on 2nd April, 1985 and on that date at 5 P.M. Paras Dubey, uncle of informant Sri Thakur Dubey, Nakched Dubey (PW 1), Dudhnath Bhagat (PW 3), Suraj Tiwary (not examined), Bhirgnath Missir (PW 2) and some other persons were present near the shop of PW 5. At that very time Amla Pathak, Dhrup Pathak, Manager Rai, Bhajan Chaudhary- all having guns, Bhagwati Rai, Umesh Rai, Deomuni Chaudhary and Arbind Kumar Pathak- all having country made pistols came on the north eastern side and exhorted each another for assaulting. Indiscriminate firing was made at PW 5 and others. Amla Pathak and Dhrup Pathak fired on Paras Dubey by gun. Paras Dubey sustained gun shot injury on his chest, neck and head. Blood oozed out from the injuries and on account of that he succumbed. Manager Rai (now dead) fired on PW 5 causing injury near his left ear. When PW 5 tried to escape then Bhajan Chaudhary fired which caused injury in his both legs. Any how PW 5 Thakur Dubey stood up but again he was fired by Bhagwati Rai. Manager Rai fired from his gun by PW 4 Samaru Chaudhary who sustained injuries in his ear and neck. Seven named accused persons arrived at the Darwaja of Thakur Dubey and fired indiscriminately. Thereafter, the accused persons escaped. The aforesaid information to police resulted in registration of Vijaypur P.S. Case No. 9 of 1985 under Sections 302/34 of the 4 Indian Penal Code and section 27 of the Arms Act. After investigation chargesheet was submitted under Sections 302/34 IPC and Section 27 of the Arms Act. Accordingly, cognizance was taken and the case was committed to the Court of Sessions. It was transferred to the court of Additional Sessions Judge where charge under Sections 302/34 IPC and section 27 Arms Act was explained to all the accused persons who pleaded innocence and so trial proceeded. 5. Defence of the appellants was of false implication on account of previous enmity. Their further defence was that Paras Dubey was accused in dozen of serious cases from before which was noted by the Investigating Officer also in course of investigation and there was all possibility that he might have been killed due to gang rivalry because he was a notorious criminal having many serious cases in the State of Bihar and State of Utar Pradesh. 6. Trial court after considering the defence and the evidences adduced on behalf of the prosecution, passed the order of conviction and sentence. 7. Now it has to be seen here as to whether the prosecution has been able to prove its case beyond the shadow of all reasonable doubts or not. 8. In order to prove its case, the prosecution has examined altogether 15 witnesses. They are: Nekchand Dubey (PW 1), Bhirgnath Missir (PW 2), Dudhnath Bhagat (PW 3), Samru Yadav (PW 4), Thakur Dubey, the informant (PW 5), 5 Jagdish Prasad (PW 6), Dr. Ramishwar Singh (PW 7), Brahma Prasad (PW 8), Harendra Prasad (PW 9), Prem Sagar Prasad (PW 10), Prabhu Nath Yadav (PW 11), Sanehi Ram (PW 12), Salim (PW 13), Surendra Tiwari (PW 14) and Brahma Prasad (PW 15). Besides the oral evidence the signature of informant on fard- beyan has been marked as Ext.1 whereas formal FIR has been marked as Ext.2. Forwarding of fard-beyan is Ext.3 and signature of PW 10 on fard-beyan is Ext. 1 & 1/2. Ext. 5 is the case diary, Ext. 6 is the endorsement on FIR of the Officer In- charge. Whereas Ext. 4 is the post mortem report of the deceased. The defence has not examined any oral or documentary evidence. 9. Before proceeding with the evidences, it is necessary to mention here that PW 8 is a formal witness who proved the case diary. PW 9 is another formal witness who has proved the writing by way of endorsement. PW 13 has been declared hostile. PW 14 has been tendered and PW 5 has proved the injury report of the doctor who has treated the injured. 10. The informant claims himself to be the witness of the occurrence. He has claimed himself to an injured witness. According to the evidence of PW 5, 15 years earlier at 5 P.M. he was sitting in front of his shop and at that time the named accused persons having firearms came and exhorted each other to assault. Due to firing Paras Dubey received injuries on his head, neck and chest. He died on account of that injury. He has also received injury. His fard-beyan was prepared by PW 10. 6 Though in initial part of the evidence this witness has supported the prosecution but in cross-examination he has stated that the deceased has visited jails of two states in various cases but he has given complete go-bye of his version when he stated that the first short was fired upon him and thereafter, he fell down. If version of the informant is scrutinized then one paragraph of his evidence demolishes his entire version that he was a witness of the occurrence rather only inference surfaced from his evidence is that he was the first person who received injuries and on account of that he fell down and became unconscious. Thus he was not a witness of the occurrence of killing. 11. PWs 1, 2, 3, and 4 have supported the prosecution case that on account of firing Paras Dubey died and the doctor who has conducted the post mortem of the deceased has found following injuries: (i) Penetrating wound of the size ¼” round deep of the skull bone on left side of scalp on the temporal bone. (ii) Lacerated wound of the size 1” x 1/2” deep to the skull bone on left side of scalp over the occipital region. (iii) Penetrating wound of the size 1/4” round x deep up to the chest cavity in the left side of chest in upper portion. (iv) Penetrating wound of the size 1/4” round x deep to chest cavity on left side of neck, supra –cavical region. (v) Lacerated wound of the size 1”x1” deep up to the chest cavity, right side of neck, in supra cavical region. 7 (vi) One lacerated wound of the size 1” x ½” x skin deep over the chin. On dissection the following features were found:- (i) Upper part of left lung was found lacerated, blood and blood clot were present in the plural cavity. (ii) The right lung was found lacerated. Blood and blood clot were present on the right plural cavity. (iii) There was fracture of 7th and 8th rib in right side. One pillet of about ¼” round, irregular, was found in the chest wall. (iv) Temporal bone was found fractured. (v) Blood clot was found in the brain substance over temporal bone. 12. In the opinion of the doctor, the above injuries were caused by fire arm. The death of Paras Dubey on account of fire arm injury has been established by the prosecution. This fact has been supported by PWs 1, 10 and 4 but there is another set of witness in the present case. Prem Sagar Prasad was the person who was relied upon by the informant and according to the informant, the fard-beyan was written by PW 10. But when PW 10 was examined in court then he has stated that neither his statement was recorded by police nor he has seen the occurrence. He is an important witness of the prosecution and his version is that occurrence was in connection with a settlement of a land dispute for which a panchayati was being organized on the date of occurrence in the middle school and not at the Darwaja of the informant. PW 11 has stated that the occurrence was near the middle school and at that time he has heard some noise. He has stated that he has not seen as to who has assaulted. PW 12 has 8 stated that the occurrence was in course of a panchayati which was being organized in middle school. According to this witness, the accused persons who were participating in the panchayati were not even armed. He has stated that the present case was filed by the persons of deceased only with a view to put pressure and take benefit of death of Paras Dubey. 13. PWs 10, 11 and 12 are the witnesses who have given a complete go-bye to the prosecution version when they stated that the occurrence was at the school and not at the place which has been stated by PWs 1 to 4. Not only that the genesis of occurrence has also been given a go-bye by two sets of the witnesses. One says that on account of enmity, firing was resorted by the accused persons and another set of witness of the prosecution says that while the panchayati was being organized then some firing was resorted by strangers and on account of that firing Paras Dubey died and to take the benefit of the unfortunate incident the case was lodged, so that the accused may be pressurized. Therefore, place of occurrence varies in the present case and it has not been proved and non-examination of I. O. has compounded the doubt because the defence could not take the benefit of these two vital contradictions either with regard to the manner of occurrence or place of occurrence. Not only that another glaring inconsistencies which has come in the prosecution case is with regard to time of the occurrence. PWs 1 to 5 have stated that the occurrence was of 5 P.M. but PW 10 in cross-examination stated that panchayati was being organized at 9 10-11 AM and on that very time the firing was taken place. Therefore, the time is not consistent. PW 10 has not been declared hostile and so his evidence has to consider in totality. The time of occurrence also gets disputed in view of the inconsistent evidence of the prosecution witnesses. 14. Learned counsel for the appellants submitted that two sets of witnesses have contradicted themselves on vital points and the informant himself has resiled from his earlier version when he has stated that he has not seen the occurrence. Neither time nor manner of occurrence has been proved so the prosecution has utterly failed to prove charge against the accused persons. It has also been submitted that though charge was framed under sections 302/34 IPC but conviction has been passed under Section 302 IPC. 15. Learned counsel appearing on behalf of the State has supported the judgment and has stated that in a criminal case rarely all witnesses support a prosecution case and it is natural that some witnesses might give a different version in different manner so benefit of these minor contradictions could not go to the accused persons. 16. After analyzing the evidence on record and after hearing the parties, it is apparent that the informant himself does not remain eye witness to the occurrence in latter part of his evidence. There are two types of conflicting prosecution witnesses. The family members of the deceased have supported the prosecution case but independent witnesses who were 10 claiming to be present at the place of occurrence have given completely different version of the occurrence and these two conflicting versions could have been clarified if the I. O. would have been examined. But the I. O. has not been examined and non-examination of the I. O. has left vital gap in the prosecution version. Once some gaps remain in prosecution case then it is settled principle that such benefit goes to the defence. 17. The prosecution has to prove its case in entirety and in case prosecution fails to prove the case beyond the shadow of all reasonable doubts then the benefit will go to the accused persons who are the appellants herein. So after considering the facts discussed above, it is apparent that the prosecution has not been able to prove its charge beyond the shadow of all reasonable doubts against the accused persons. 18. In the result, these appeals are allowed and the judgment of conviction and order of sentence is set aside. Some of the appellants are on bail. They are discharged from the liabilities of their bail bonds. The appellants, namely, Amla Pathak and Dhurup Pathak are in custody, they are directed to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Patna High Court, Patna Dated 11th April, 2011 Avin/N.A.F.R.