Criminal Appeal (SJ) No. 892 of 2006 With Criminal Appeal (SJ) No. 935 of 2006 --------- Against the judgment and order of conviction and sentence dated 19.10.2006 and 30.10.2006 passed in Sessions Trial No. 406 of 1990 and 102 of 2002 by Shri Umesh Chandra Mishra, Additional Sessions Judge (Fast Track Court No. 3), Aurangabad. -------- Cr. Appeal (SJ) No. 892 of 2006 Birendra Singh, son of late Jai Govind Singh, resident of village – Dayalpur, P.S. – Barun, District – Aurangabad ……………… Appellant Cr. Appeal (SJ) No. 935 of 2006 Rabindra Singh, son of late Bindeshwari Singh, resident of village – Dayalpur, P.S. – Baroon, District – Aurangabad ………………. Appellant V e r s u s The State of Bihar ………….. Respondent ( in both the appeals) ---------- For the Appellants : Sarvshri Kanhaiya Pd. Singh, Senior Advocate Rajiv Ranjan, Advocate. For the State : Shri Ajay Mishra, A P P -------- P R E S E N T THE HON’BLE SHRI DHARNIDHAR JHA -------- Dharnidhar Jha, J. An occurrence was taking place at about 9.30 P.M. on 19.1.1990 somewhere described as village – Dayalpur within police station Barun in the district of Aurangabad in which one Arvind Kumar Singh, who was examined as P.W. 3 by the court below, had received gun shot injuries – one on his right hand and the other on his 2 buttock. The police reached his house, recorded his fardbeyan (Ext.1), on the basis of which the FIR of Barun police station case no. 6 of 1990 was drawn up. 2. The case was investigated into by the police and as many as thirteen persons were sent up for trial who were joined together at the trail by being charged under sections 147, 148, 307/149 IPC. The two appellants, namely, Birendra Singh and Rabindra Singh were distinctly charged under section 307 IPC, appellant Rabindra Singh further being distinctly charged under section 27 Arms Act. The trial was undertaken and the judgment was delivered by the learned Additional Sessions judge-cum-Presiding Officer, Fast Track Court- 3, Aurangabad in S.T. No. 406 of 1990 / 102 of 2002 and by judgment dated 19th day of October, 2006 while eleven accused persons except the two appellants were acquitted, appellants Birendra Singh and Rabindra Singh were pronounced guilty of committing the offence under sections 307/34 IPC and each of them was directed to suffer rigorous imprisonment for ten years as also to pay a fine of rupees five thousand, else to suffer simple imprisonment for six months. In addition to being convicted and sentenced as above, appellant Rabindra Singh was further convicted of committing the offence under section 27 of Arms Act and was directed to suffer rigorous imprisonment for three years. Sentences passed upon him were directed to run concurrently. 3. The two appellants have preferred the two connected appeals to bring into question the propriety, correctness as also the 3 appropriateness of the finding of guilt and order of sentence passed against each of them. 4. The prosecution case, as narrated just now, is contained in Ext. 1, fardbeyan of P.W. 3 in which he stated that while he was standing on the western corner of his house, thirty to thirty five persons armed variously with bhala, garasa, sword, guns and pistols, etc. were seen passing through the lane towards south and they were simultaneously flashing torch light. P.W. 3 inquired from them as to who they were, upon which appellant Birendra Singh is said to have said that the informant be shot dead as he was one of the agents of the police. Hearing the words of appellant Birendra Singh, appellant Rabindra Singh fired at P.W. 3, which hit him on his right hand and on the right side of his buttock. Thereafter, all the accused persons numbering thirteen and named in the FIR went away towards south. 5. The informant stated that the reason for the occurrence was that accused Ajay Kumar Tiwari was telling by hurling abuses that the informant had wrongly and falsely implicated him and others by wrongly informing the police and, as such, the accused persons would not leave the informant and his men and rather, kill them. On that account, the informant was shot at and seriously injured. The informant had lost his consciousness and as such he was brought to his house by his family members where he made his statements. 6. The defence of the appellant was that they had been falsely implicated by the prosecution on account of old existing enmity. It was suggested to different witnesses during their cross- 4 examination that the informant and others were hardened criminals themselves and there can be a possibility that the informant had received injury at the hands of others at some other place and after having framed facts, had foisted a completely false case. 7. The prosecution in support of the charges, produced and examined six witnesses, excluding the I.O. of the case and during the course of the hearing of the present appeals, it was one of the highlights of the senior counsel for the appellant that non examination of the I.O. had prejudiced the defence. I propose to consider this aspect a bit later. 8. So far six witnesses are concerned, P.W. 3, the informant of the case was supported by P.W. 1 Ram Das Singh, P.W. 2 Kamdas Singh, P.W. 4 Alakhdeo Singh and P.W. 6 Ram Bilas Singh. P.W. 5 Dr. Pradeep Kumar Jha was deposing to having examined and treated P.W. 3 Arbind Kumar Singh for his injuries and thereafter having prepared the injury report (Ext.2) in respect of the injuries found by him on the person of P.W. 3. 9. The defence examined one witness namely Kamlesh Prasad Sinha, who tendered the FIR of Barun P.S. Case no. 107 of 1989 as Ext. A, in evidence for the defence. Besides, the defence produced a series of documents, like, judgment delivered by the Additional Sessions Judge, Aurangabad in Cr. Appeal no. 161 of 1993 as also Ext. D/1, which was yet another judgment delivered by a court of similar jurisdiction which was passed in Cr. Appeal no. 118 of 1987 by which the conviction of accused Umesh Kumar Tiwari was 5 set aside while that of Devendra Singh and others who were the family members of the witnesses was upheld. 10. By taking me through the evidence of witnesses the learned senior counsel Shri Kanhaiya Prasad Singh assisted by Shri Rajiv Ranjan submitted that the evidence of witnesses on being present at the scene of occurrence to see it happening appears quite contrary to each other when considered individually as also collectively. It was further contended that on that account either the witness has to be held not competent or may be held making false statements on most important point and, as such, this Court should reject the evidence of witnesses who had not seen the occurrence. It was further contended that the very statement in the FIR as also the evidence of some of the witnesses indicated as if it was quite dark and not possible to pick up the identity of men in the mob and on account of previous long enmity, the two appellants and others were falsely implicated. The manner of occurrence as stated by the witnesses was not corroborated by the evidence of P.W. 5 rather, the evidence of the doctor was indicative of the fact as if there had been two shots which were fired by two different persons from two different places and in that view of the evidence, the whole prosecution case has to be rejected as a pack of lies. 11. P.W. 3, the informant was not stating in his fardbeyan (Ext. 1) to which his attention was drawn during his cross examination that he was coming from his Khalihan along with Ram Bilas Singh (PW 6), Arun Singh (not examined), Bhupesh Singh (not examined) 6 and Alakhdeo Singh (P.W. 4). Above facts besides being contradicted from the statement of P.W. 3 contained in Ext. 1 was contrary to the evidence of at least Ram Bilas Singh and Alakhdeo Singh. Ram Bilas Singh has, of course, stated that he was coming from Khalihan and after he had reached his house, he was atop his house, but he has not stated that he was accompanied by anyone much less by P.W. 3 or P.W. 6. P.W. 4 Alakhdeo Singh, who as per P.W. 3, was accompanying him while coming from Khalihan tells a different story. He sated in paragraph 1 that he was going to Khalihan and again he does not name anyone as his companion while going there. What he further adds up is that he claimed hearing a halla and on that account ran towards the Khalihan from where he saw the occurrence. Thus, the two witnesses, P.Ws 4 and 6 do not appear corroborating P.W. 3 on his claim of returning from Khalihan being accompanied by at least P.Ws 4 and 6. So far as claim of P.Ws 4 and 6 being present at the place of occurrence is concerned, the same is quite contrary to the claim of P.W. 3. Thus, the contention of learned senior counsel that this Court should reject the evidence of P.Ws 3, 4 or 6 as eye witnesses, if could not brushed aside, the same could not be altogether rejected as well. 12. The evidence of witnesses could be accepted or rejected on many parameters. One of the parameters could be their claim of being present at or around the place of occurrence. If it is indicated that there could be any doubt about the claim regarding their presence at the place of occurrence, then the whole of their evidence has to be 7 thrown above board. They cannot be trusted as trustworthy witness and their evidence could never be utilized to seek corroboration of charges. Besides the above, if the story of presence of witnesses indicates that it could be simply unacceptable, then also the witness have to be rejected as eye witnesses. I have already dealt with the claim of P.Ws, 3, 4 and 6 as regards their story of remaining present around the place of occurrence. When I consider the evidence of P.W. 1 and P.W. 2 their very claim also appears inherently improbable and absurd. The time of occurrence was 9 P.M. on 19.1.1990. I could hardly point out that on 19th of January of any year any part of this State could be as cold as not to permit any one to even think of scaling the stairs of his house to go atop it. P.W. 1 was stating that he was already at the roof top of the house at 9 P.M. so is the claim of P.W. 2, that he was at the roof top of his house at about 8 to 8.30 P.M. when the mob was passing through the lane below his house. There is a reason assigned by P.W. 1 that a hut had been erected by him atop his house for living there. The I.O. could have been the best person to say whether the hut was there existing at the top of the house of Ram Das Singh. Incidentally, the I.O. was not produced, so this fact goes untested as regards the claim of P.W. 1 Ram Das Singh that he was at the roof top of his house at 9 P.M. in a cold night. 13. Likewise, the claim of Kamdas Singh that he was at the roof top of his house also appears without any reason and I am reluctant to accept the claim of the witnesses as I doubt the veracity of their claim. No human being could ever dare go over the roof top on 8 19th of January at or around 9 P.M. without any purpose. None of the witnesses claiming their presence at the roof top of their respective houses say that they, out of curiosity of hearing the voices from the mob had gone there. In fact each of them states the fact as if it was an usual and routine presence of the witness. They were probably inventing this story so as to impressing upon the court that they were most competent witness seeing everything from the roof top and, as such, could not be discredited as untrustworthy witness. Their attempt to project themselves as trustworthy witness is also a background. Witness like Ram Bilas Singh or Ram Das Singh or even the informant P.W. 3 would say as may appear from paragraph 12 of P.W. 3, paragraphs 16,17 and 19 of P.W. 6 and paragraphs 4 and 6 of P.W. 1 besides paragraphs 4 and 5 of P.W. 2, that both parties were deeply inimical to each other. The enmity was not merely of differences of opinion or on account of any other reason. There were recorded differences for which the pending cases were there in different courts. They were probably baying for the blood of each other and this, probably, was the reason that even junior members of the family were being witnesses against their adversaries. This was common to both sides. It could not be confined to either of the sides. 14. The background of the present case, as may appear from the very reading of Ext. 1, the fardbeyan of P.W. 3, may also indicate that the attempt to bay for the blood of his adversary was so serious that accused Ajay Tiwari at the eve of that particular day was accusing the informant and others of informing the police and getting some of 9 them arrested. This could probably give a clear glimpse of the attempts of both parties to humiliate his adversary by resorting to any mean means. If this was the background then there was no wonder that the witnesses were attempting to project themselves by telling the court as to how they were present on or around the place of occurrence. 15. After having considered the claims and the background in which claims have been made, in addition to the absurdity and improbability of the claims, I do not find any hesitation in me to reject their claim and to hold that they could never have been at the roof to look downwards to identify any of the members of the band of persons and thereby note their actions. 16. The above discussion could have been sufficient for allowing these appeals. But, that is not the end of the matter. Real crux lies as regards the merit of two appeals on two other aspects of the case. The first aspect is that could there be light facilitating the identification of the members of the mob and, second, was the manner of occurrence, which was propounded by the prosecution was really acceptable and probable in the light of the evidence of P.W. 5 Dr. Pradeep Kumar Jha. The FIR itself reiterates that the informant, seeing the mob passing through the lane in front of his house towards south, was enquiring of them as to who they were. This itself indicated that the light was not sufficient. It may be said that I am utilizing the statement of the informant made in the fardbeyan as evidence. That is not the case. I am simply attempting to point out as to what was the 10 basic prosecution case from the very inception as regards the availability of light or identification of the accused persons on spot. There is evidence amply available on record, as may appear from the evidence of P.W. 1 Ramdas Singh who happens to be the own uncle of the informant in front of whose house the lane was passing through, in paragraph 8 that because, it was night, Arbind Singh (P.W. 3) had made enquiry from the members of the mob as to who they were. This single line of evidence of P.W. 1 in paragraph 8 fully puts the claim, of the prosecution about the identification of the appellants and others into doubt. If the identification was not possible then could not it be the only inference that the appellants and other accused persons were named only out of grudge and a sense of vengeance so as to wreaking it against their enemies as the accused persons were of the prosecution witnesses. 17. So far as the manner of occurrence is concerned, the definite prosecution case right from the stage of fardbeyan up to the evidence of all the witnesses including the informant was that the appellant Birendra Singh ordered to shoot at the informant, and appellant Rabindra Singh fired a shot. The evidence of witnesses does not say that Rabindra Singh fired shots more than once. However, when one had considered the evidence of P.W. 5, one could have found that the doctor found two injuries exactly on the limbs of P.W. 3 where he claimed being hit by shot fired by Rabindra Singh. First injury was the blackening of skin with multiple bleeding wounds on right forearm whereas the second wound was consisting of two round 11 holes at the distance of 1” from each other, about 3 mm in diameter on right iliac region of P.W. 3. A bare perusal of the two injuries could indicate that no blackening or charring was found by P.W. 5 on or around injury no. 2 which were the two holes appearing on the right iliac region of P.W. 3. The distance from which appellant Rabindra Singh could be firing the shot, appears from the evidence of P.W. 4 in paragraph 10, and it could be somewhere around 25 -30 yards bringing it into between 75 ft to more than 90 ft. It hardly requires to be pointed out that blackening around a wound caused by gun shot could appear only when the shot was fired from a very close range, probably, from under a distance of about 4 ft. Thus, the injury no. 1 which was blackening of wound with multiple blackening wounds on the right forearm of P.W. 3 could be said to have been caused by someone who could have fired that particular shot from the nearest range and preferably within the range of 4 ft or below that distance from the injured. When injury no. 2, i.e., the two holes each having diameter of 3 mm which were found on the iliac region of P.W. 3 are considered then it could be found that there was no blackening nor there was any charring nor there was any singing and the doctor was very categorical in pointing out that the two wounds indicated that there could be a probability of the two shots being fired from two different distances. 18. We always hear arguments and consider them also that anomalies in oral and medical evidence are not always fatal to the prosecution charges. But, when the anomalies are going so deep into 12 the root of the matter as to improbabilizing the very manner of the occurrence, then it could not be ignored as well. I simply want to reiterate the principle of law, that’s, the medical evidence has its own special use for the prosecution and the defence. The prosecution could, by using the evidence of the doctor, argue that the manner of occurrence which has been propounded by it was probabilized on account of being corroborated by the opinion of the doctor. At the same time, the defence has a right to argue by drawing the attention of the court towards the anomalies having crept into by virtue of contrary medical report, which was contrary and non supporting to the prosecution story on the manner of assault, simply improbabilizing the manner of occurrence. As such, the accused may be entitled to the benefit of doubt because the very prosecution case was rendered doubtful. Applying the principle, what I find is that the manner of occurrence that one single shot was fired by Rabindra Singh which caused two injuries appears completely unacceptable on account of being improbable because the two injuries which were recorded by P.W. 5 could never have been probable and possible by that very shot because of the reason assigned by P.W. 5 specially when he was deposing that the two shots must have been fired by two different persons from two different places. 19. If the above could be the difference coming out from the evidence both oral and medical as appears from record, then I find myself inclined to record that the prosecution appears guilty of suppressing the true facts. The prosecution was not coming out 13 cleanly with correct and true story and was narrating a story which was probably not true and had not happened. The suggestion of the defence that on account of bearing criminal background of being accused in many truck-hijacking cases, P.W. 3 might have sustained those injuries at some other place at some other body’s hands, might assume significance and in that background, I find that the two appellants Birendra Singh and Rabindra Singh also deserved to be acquitted. The two appeals, as such, are allowed. The two appellants are acquitted by setting aside the impugned judgment and order of conviction and sentence. Both the appellants are said to be on bail. They shall stand discharged from the liabilities of their respective bail bonds. (Dharnidhar Jha, J.) Patna High Court, The 14th July, 2011, AFR/Anil/