CRIMINAL APPEAL (DB) No. 106 OF 2004 Against the judgment and order dated 23.01.2004 and 31.01.2004, passed in Sessions Trial No. 162 of 2000 / 188 of 2002 by Shri Chiranji Singh, the Presiding Officer of Fast Track Court No. I, Gopalganj (1) SHAMBHU TIWARI, SON OF LATE DHARM RAJ TIWARI (2) IMAMUL HASAN, SON OF LATE EZAZUL HAQ, BOTH RESIDENTS OF VILLAGE-ASHADI MAHUAWA, POLICE STATION-KOCHAIKOT, DISTRICT – GOPALGANJ --------------------------------------- Appellants Versus STATE OF BIHAR -------------------------------------- Respondent ----------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE JUSTICE SHRI DHARNIDHAR JHA ***** Mridula Mishra, J. This appeal was taken up for hearing, but no one was there to represent the appellants, as such Mr. Niraj Kumar Sanidh, Advocate was appointed as Amicus Curiae to defend the case of the appellants. The Trial Court had charged two accused persons, namely, Shambhu Tiwari and Imamul Hasan for the offence, punishable under section 302/34 of the Indian Penal Code and section 27 of the Arms Act. Trial commenced against two accused and on conclusion of 2 the trial, both the accused were convicted for commission of offence, under section 302/34 of the Indian Penal Code and section 27 of the Arms Act. The accused persons were sentenced to undergo imprisonment for life and fine of Rs. 2,000/- for their conviction under section 302/34 of the Indian Penal Code and in default of payment of fine, to undergo imprisonment for a period of one year. They were further sentenced RI for two years for their conviction under section 27 of the Arms Act. Sentences were to run concurrently. Present appeal was filed by Appellants, Shambhu Tiwari and Imamul Hasan against the judgment and order, dated 23.01.2004 / 31.01.2004, passed by the Presiding Officer of Fast Track Court No. I, Gopalganj in Sessions Trial No. 162 of 2000 / 188 of 2002, whereby the appellants were convicted and sentenced for commission of offence under section 302/34 of the Indian Penal Code and 27 of the Arms Act. Appellant No. 1, Shambhu Tiwari died during the pendency of Appeal on 21.09.2006 at Sadar Hospital, Gopalganj, while still in custody. An affidavit in this regard has been filed on behalf of the appellant. Considering the affidavit, the appeal against Appellant No. 1, Shambhu Tiwari has been ordered to be abated. On 10.06.1999 at 10.00 p.m. at Sadar Hospital, 3 Gopalganj, fard beyan of Ali Imam (P.W. 7) was recorded by SI, Vijay Kumar Singh, Officer Incharge of Gopalganj Police Station and on that basis formal F.I.R. of Kuchaikote P. S. Case No. 86 of 1999 was registered on 11.06.1999 at about 08.30 a.m. by Officer Incharge of Kuchaikot Police Station, Ashok Kumar Yadav (P.W. 9). In the fard beyan of Ali Imam (P.W. 7), it was disclosed that on 10.06.1999 at about 08.00 p.m., he along with his father Samsul Hassan and two villagers, namely, Haidar Ali (P.W. 1) and Rustam Khan (P.W. 2) were coming from brick-kiln of his father, situated at a distance of about half k.m. from the house of the informant. When all these persons reached at a distance of about 20-30 steps from brick-kiln and reached near the field of Imali Mian, towards west of the road, suddenly Shambhu Tiwari with the rifle in his hand, Jhunar Tiwari with double barrel gun and Imamul Hasan with Katta in his hand along with 4-5 unknown persons suddenly appeared before them. Shambhu Tiwari fired from his rifle at Samsul Hassan, receiving injury on his head, Samsul Hassan fell down in the field of Imali Mian. Jhunar Tiwary and Imamul Hasan also fired from their fire arms at Samsul Hassan, who received injuries at his person. Ali Imam (P.W. 7), Haidar Ali (P.W. 1) and Rustam Khan (P.W. 2) ran away from the place of 4 occurrence to some distance and raised alarm. Hearing the sound of firing and the alarm raised by them, some villagers came there and found Samsul Hassan dead. The accused persons fled away from the place of occurrence towards eastern and southern direction. The informant Ali Imam brought the dead body of his father Samsul Hassan at Sadar Hospital, Gopalganj. There only, the Sub-Inspector of Gopalganj Police Station, Vijay Kumar Singh came and recorded his fard beyan at 10.00 p.m. and on the next date, i.e., on 11.06.1999 at about 08.30 a.m. FIR was registered at Kuchaikot P.S. for offence under section 302/34 IPC and 27 Arms Act. Investigation of the case was taken up by Ashok Kumar Yadav, P.W. 9, Officer Incharge of Kuchaikote Police Station, but later on the investigation of this case was entrusted to Baleshwar Choudhary, P.W. 8, who replaced Ashok Kumar Yadav on his transfer and joined as Officer Incharge of Kuchaikote Police Station. Finally, P.W. 8 submitted charge-sheet in the case. Though as per his deposition, he did not interrogated any of the witness and did not do any investigation, except submission of the charge-sheet. Inquest report of the dead body of Samsul Hassan had been prepared by Vijay Kumar Singh, Sub- Inspector of Police, Gopalganj Police Station at Sadar 5 Hospital Gopalganj, after recording fard beyan of P.W. 7. The dead body challan was also issued by him for post- mortem of dead body, but finally on completion of investigation, charge-sheet was submitted by Baleshwar Choudhary, P.W. 8, under section 302/34 of the Indian Penal Code and 27 of the Arms Act against all three named accused persons, which also included Jhunar Tiwary, showing him as an absconder. Jhunar Tiwary never appeared before the Court, as such, his case was separated and the case of Shambhu Tiwari and Imamul Hasan was committed to the Court of Session by the Chief Judicial Magistrate for conducting trial and its disposal. Nine witnesses were examined by the prosecution in order to prove charges framed against the accused persons. Haidar Ali, P.W. 1 and Rustam Khan, P.W. 2 are the FIR named witnesses. They have been examined as eye-witness to the occurrence. Kudus Rahman, P.W. 3, and Abdul Samad, P.W. 5 have also been examined as witness, who came at the place of occurrence hearing the sound of firing and found Samsul Hassan dead. Jalil Ahmad, P.W. 6 is a inquest witness, who has put his signature on the inquest report (exhibit- 2). Ali Imam, P.W. 7 is the son of deceased and informant of the case. Dr. Tirtha Nand Singh, P.W. 4, had 6 conducted post-mortem on the dead body of the deceased on 11.06.1999 at 07.30 a.m. and prepared post-mortem report (exhibit-1). P.W. 8, Baleshwar Choudhary and P.W. 9, Ashok Kumar Yadav are two Police Oficers, who had investigated the case at different stages and finally charge-sheet was submitted by P.W. 8, Baleshwar Choudhary. Counsel, representing the appellants, has made submissions, assailing the finding recorded by the Trial Court on different grounds. It has been submitted that despite the fact that there were vital contradictions in the prosecution story as revealed by the informant in his fard beyan and evidence led by the witnesses during the trial, the Trial Court did not take notice of these important and relevant contradictions. The contradictions and the development introduced in the prosecution story during the trial, if at all would have been taken care of properly by the Trial Court, it would have been sufficient to perceive that none of the prosecution witness, including P.W. 1, 2 and 7, who claimed to be the eye-witness, were actually present at the place of occurrence when the incident took place. P.W. 7 is the informant of the case and son of the deceased. He, in his evidence, has disclosed that he is a Law Graduate and an Advocate, earlier practicing at Patna High Court, but prior to one 7 and half years of incident had shifted his place of practice to Gopalganj. In his fard beyan, P.W. 7 has stated that at 08.30 p.m., he along with P.W. 1, P.W. 2 and his father Samsul Hassan (deceased), proceeded from brick-kiln of his father for his residence, which is situated at a distance of half k.m. from the brick-kiln. Hardly, they had traveled 20-25 steps ahead of brick-kiln and reached near the field of Imali Mian, when suddenly the accused persons emerged and fired at his father. In the fard beyan, the place of occurrence is mentioned as Imali Mian field, but all witnesses, including P.W. 1, P.W. 2, P.W. 3, P.W. 5 and P.W. 7, changed the place of occurrence during their deposition in Court, to the field of Yasin Mian. If at all, witnesses, who claimed to have witnessed the occurrence, would have actually been present there, there was no reason for such vital discrepancies in the fard beyan of P.W. 7, wherein the place of occurrence had been mentioned as Imali’s Mian field. This shifting of place of occurrence was intentional for the reason that Imali’s Mian field is not situated near the brick-kiln. Investigating Officer (P.W. 9) has deposed that he was shown Yasin’s Mian field as place of occurrence by P.W. 7, when he reached village Asandi Mahua, the village of occurrence on 11.06.1998 at 10.00 8 a.m. P.W. 9 has stated that he has not mentioned in the case-diary that any mark of violence was found in the field of Yasin Mian, except that he found some blood like marks on the soil and had seen an empty wad, which was not seized by him. The evidence of P.W. 9 in para 11, 12 and 13 indicates that he received a wireless message on 10.06.1998 at 10.00 p.m., i.e., in the night of the occurrence itself, relating to an incident, taken place at village Asandi Mahua, in which a person has been killed. P.W. 9 came at the village in the night itself. For the whole night, he camped at the village. He has visited the place of occurrence and recorded statement of some persons, present at the place of occurrence. He also recorded the statement of staffs, working at the brick-kiln of the deceased, but none of them disclosed before him the name of accused persons and the manner, in which the occurrence took place. They all had shown their ignorance regarding the incident. P.W.s 1, 2, 3 and 5, who subsequently came and deposed in the Court, were not found present. Their statement was recorded by the Investigating Officer, subsequently, after 2-3 days of the occurrence or later on. Counsel, appearing for the appellant submits that the evidence of P.W.s 1, 2 and 3 indicates that in the night of the occurrence, they did not accompany P.W. 7, 9 Samsul Hassan to Gopalganj Hospital, where dead body of Samsul Hussan was brought in a jeep. P.W. 1 and 2 has rather admitted that they were present in the village in the night of occurrence, but even on the next date, when P.W. 9 went to the village and started investigation, they did not appear before him for making any statement. The evidence of P.W. 9 indicates that their statement was recorded by him after 2-3 days of the occurrence. Counsel for the appellant submits that these are very irrelevant facts to show that none of these witnesses were present at the time of the occurrence. None of them has seen the occurrence and prosecution case is the outcome of the imagination of fertile brain of P.W. 7, who was a practicing Advocate of Gopalganj Civil Courts. Counsel for the appellant further submits that the manner of occurrence, as disclosed in the fard beyan as well as in the deposition of the prosecution witnesses is nothing but a fabricated and concocted story. The evidence of P.W. 9, the Investigating Officer shows that in the night of occurrence itself he interrogated several villagers and the staff and employee of the brick-kiln, but none of them was knowing the name of the accused and the manner, in which the 10 occurrence had taken place. The deceased Samsul Hassan, as per the evidence of the witnesses, was a big Contractor. An important person of the village had been killed in the village itself, this was unimaginable that his own staff and employee, as well as the villagers were ignorant about the incident and the manner of occurrence and the name of person involved in this case. This also is indicative of the fact that the occurrence had not taken place in the manner, as disclosed in the fard beyan and in the deposition of the witnesses, rather as per the suggestion given to the witnesses by the defence, Samsul Hassan was killed by some unknown person, inimical to him, on account of his own illegal and criminal activities and no one had seen the occurrence. Counsel for the appellant submits that suggestion was also given to the witnesses that they have not seen the occurrence. In fact, the deceased, who had long criminal history, was killed by some unknown criminals and the accused persons being inimical to the informant as well as prosecution witnesses, were falsely implicated in this case. It has further been contended by the counsel for the appellant that time of occurrence, as mentioned in the fard beyan, as well as disclosed in the evidence of prosecution witnesses, is 08.30 p.m. P.W.s, 1, 2, 3 and 5 11 have admitted in their evidence that it was dark night. P.W. 1 has also admitted in his evidence that he has a weak eye-sight. In this circumstance, for identifying the accused persons, some light source of identification was essential. P.W. 7 in his fard beyan has not mentioned that when the occurrence took place, he was carrying any torch with him or any person accompanying him, like, P.W. 1 or P.W. 2 had any torch with them. In the fard beyan, it has also not been mentioned that the accused persons had flashed their torch on the face of the deceased or any other person accompanying the deceased had flashed torch to give chance to the witnesses for identifying the accused persons. This lacunae in the prosecution case has been filled by the prosecution witnesses by introducing the torch and its availability with them at the time of occurrence. The informant, P.W. 7 in his deposition has stated that he was carrying a torch with him and when accused persons suddenly emerged before him from the sugarcane field, he flashed his torch and identified Shambhu Tiwari, Jhunar Tiwari and Imamul Hasan, but could not identify other 4-5 accused persons. Similarly, P.W. 2 and P.W. 5 also claimed that they were carrying a torch with them and that was flashed by them on the face of the accused persons. P.W. 5, who is a chance witness, also claimed 12 that he was equipped with a torch, which he flashed on the face of the accused person and identified them. This part of deposition of prosecution witnesses, regarding carrying torch with them, has completely been contradicted by P.W. 9 in para 26 of his deposition. P.W. 9 has stated that during investigation, none of the witnesses had produced any torch before him and stated regarding identification of accused persons in the flash of that torch light. P.W. 9 has stated that since no torch was produced by the prosecution witness before him, as such there was no seizure of any torch. Counsel for the appellant submits that, admittedly, as per the prosecution case, the accused persons suddenly appeared before them from a sugarcane field in the darkness of a night and started firing on the deceased. The deceased or the witnesses were not expecting any such incident at that time. In these circumstances, it is impossible to believe that without there being any source of identification, the witnesses could have identified the accused persons. It has also been submitted that since the witnesses have brought this vital development in their evidence regarding identification of accused persons in the flash of a torch light. It was more essential for them to produce such torch before the Investigating Officer during 13 investigation. Since it was not done, as such it could not be believed that the witnesses had actually identified the accused persons with their specific overt act. All the witnesses have specifically deposed as to which of the accused was equipped with which fire arm and at which specific part of the body of the deceased they fired and caused injury. The evidence of prosecution witness in the given facts and circumstances of the case, is not reliable and trustworthy. The identification part of evidence on account of this vital lacuna can not be believed. Counsel for the appellant further submits that considering the evidence of P.W. 4, Dr. Tirthanand Singh, who had conducted post-mortem on the dead body of the deceased and prepared post-mortem report, the prosecution case regarding specific overt act of each accused, can not be believed. Dr. Tirthanand Singh, P.W. 4, was posted at Sadar Hospital, Gopalganj as Civil Assistant Surgeon on the date of occurrence. He had conducted post-mortem examination on the dead body of the deceased on 11.06.1998 at 07.30 a.m. He found following injuries on the person of the deceased: (i) Round aperture of the size 2 ½” diameter deep to thoracic cavity on right lateral side of chest with blackened inverted wound margin associated with multiple peal size apertures about 1 ½ in diameter 14 around it. (ii) A round aperture of the size 3” in diameter of left lateral side of chest deep to thoracic cavity with blackened wound margin surrounded by multiple pea size aperture about the area of 5 ½ in diameter. (iii) Oval aperture on the right side of forehead of the size 1/2” X 1/3” deep to muscle with blackened inverted wound margin. (iv) A round aperture of the size 1/2" diameter deep to muscle on the right lateral side of neck below mastoid process. In the opinion of P.W. 4, all four injuries found on the person of the deceased, Samsul Hassan were caused by fire arm. The injuries found on the fore-head of Samsul Hassan were caused by fire arm, but it was not an injury from rifle. The injury caused by rifle would have been different and more severe than the injury found on the person of the deceased. P.W. 4 is very specific that the nature of all injuries found on the person of the deceased was on account of firing from a same fire arm, probably a gun, but so far the allegation of prosecution that the injury was caused by rifle, is not possible. The witnesses are very specific on this point that three firings were made by the accused persons at the deceased from these kind of fire arms. The Doctor, conducting post- 15 mortem, had found four injuries on the person of the deceased who caused the fourth injury that is not disclosed by the prosecution witnesses though they have claimed to be the eye-witness of the occurrence. Counsel for the appellant submits that such contradiction only indicate that occurrence would have taken place in some other manner. None of the prosecution witness had witnessed the occurrence, but due to serious and long lasting enmity, names of accused persons were falsely implicated in the prosecution story. The witnesses in a planned manner have deposed against the accused person as they had motive for falsely implicating the accused person. It has also been contended by counsel for the appellant that the evidence of prosecution witnesses and the prosecution story indicate that besides P.W. 1, 2 and 7, several other villagers had assembled at the place of occurrence, hearing the sound of firing and alarm raised by the prosecution witnesses. None of those persons, who are independent witnesses were examined, except the inimical and interested witnesses. P.W. 9, the Investigating Officer has stated in his deposition that on 11.06.1998, he received the fard beyan of P.W. 7, recorded by Vijay Kumar Singh at Gopalganj Sadar Hospital along with Inquest Report. 16 P.W. 9 had visited the place of occurrence in the night of occurrence itself and there he had recorded statement of Mustafa, Budh Ram Sah and Md. Kudus. Subsequently, also he recorded statement of Tufani Manjhi, Ammanullah Mian, Anwar Khan and Kudus Rahman. None of these persons have been examined as witness, except Md. Kudus, who had put his signature on the Inquest Report. The prosecution has not disclosed any reason for non-examining the witnesses, whose statement had been recorded by P.W. 9 at the earliest occasion. Counsel for the appellant submits that though the prosecution has not disclosed the reason for not- examining these persons as witness during trail, but the obvious reason is that only such persons were examined as witness by prosecution, who had enmity either with Shambhu Tiwari or Imamul Hasan. In the evidence of P.W. 1, P.W. 2, P.W. 7 and P.W. 9, reference of several police cases have come, which indicates that the informant, his deceased father and P.W. 1 were named accused in murder case of Ajajul Haq, brother of accused Imamul Hasan in Uchakageon P. S. Case No. 64 of 1992. The father of Shambhu Tiwari had prosecuted a criminal case against the father of the informant and others. Shambhu Tiwari had also instituted a criminal case 17 against them. P.W. 9 in his deposition at para 27 has stated that he examined the genuineness of all those police cases, which were cause of enmity in between the informant and accused persons and found that these cases were being contested in between the parties. Counsel for the appellant submits that on account of admitted enmity, the accused persons were falsely implicated by the informant in the murder case of his father, which was done by some unknown accused persons. Taking advantage of the situation, the informant falsely implicated names of his enemies in the case. Counsel for the appellant has also pointed out the evidence of P.W. 9, the Investigating Officer of the case in order to show that the prosecution witnesses have developed the case of prosecution in Court. None of the witness had made any such statement at the time of investigation before the IO, P.W. 9, as they deposed in Court. P.W. 9 in his deposition has stated that P.W. 1, 2, 3 and 7 had not stated before him that they identified the accused persons in the flash of the torch light. They had not stated that Shambhu Tiwari had fired from his rifle on the forehead of the deceased. They were not specific about the overt act by Imamul Hasan. The prosecution witnesses and the informant had not stated that, receiving such injury, Samsul Hassan fell in the field of 18 Yasin Mian. None of the prosecution witnesses had disclosed before him that while they were coming from the brick-kiln at 08.00 p.m., such occurrence had taken place. In support of this contention, counsel appearing for the appellant, has also pointed out the evidence of P.W. 1, who himself admitted that he had not made such statement before the IO during investigation. Counsel for the appellant has further submitted that in order to convict an accused for a serious charge of murder, it is essential that they should not be convicted merely on probability, but there must be evidence to prove charge beyond all reasonable doubts. In the present case, the evidence of prosecution witnesses is doubtful on all counts. In a given facts and circumstances, when there are improbabilities and doubts, so far the prosecution evidence is concerned, there was no reason for conviction of the appellant. One of the appellant, Shambhu Tiwari is already dead. So far the case of Imamul Hasan is concerned, the prosecution evidence is not specific that which injury was caused by him and whether such injury was sufficient for causing death of the deceased. This is also one of the reason for coming to the conclusion that the evidence on record is not