CRIMINAL APPEAL No.132 OF 2003 (DB) (Against the judgment and order of conviction and sentence dated 30th January, 2003 passed in Sessions Case No. 408 of 1998 by Shri Bijay Prasad Poddar, 2nd Additional Sessions Judge, Banka ) ********** 1. RIYASAT MIYAN @ RIYASAT MIAN SON OF NIGAM MIYAN 2. JABIR MIYAN @ JABIR MIAN @ LANGRA SON OF LATE GUL BASIR MIYAN @ GUL BASIR MIAN BOTH RESIDENT OF VILLAGE- TARA KURRA, P.S.- JHAJHA, DISTRICT- JAMUI ……………………………………..APPELLANTS Versus STATE OF BIHAR ……………………………………RESPONDENT ************* For the Appellants :- Mr. K. B. Verma, Advocate Mr. Samir Kumar Sinha, Advocate For the State :- Mr. Ashwini Kumar Sinha, APP ********************* P R E S E N T HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA HON'BLE MR. JUSTICE DINESH KUMAR SINGH J U D G M E N T S. K. Sharma, J. The appellants above named have preferred this appeal against the judgment of conviction and order of sentence dated 30th January, 2003 passed in Sessions Case No. 408 of 1998 by the learned 2nd Additional Sessions Judge, Banka whereby and whereunder the appellants have been found guilty for the offence under Section 396 of the Indian Penal Code and accordingly, they have been convicted and sentenced to undergo rigorous 2 imprisonment for life. 2. Shortly stated, the prosecution case as disclosed from the written report (Ext.-1) is that at about 6.30 P.M. on 7.7.1997 five persons, namely, the informant Mrigendra Kumar Singh @ Pappu Singh (PW 3), Biplav Kumar Singh (since deceased) and Ramjee Kumar Yadav (PW 13) on one Kawasaki Motorcycle and two on another Rajdoot Motorcycle, namely, Shishupal Singh (PW 1) and Sankar Kumar Singh (since deceased) were returning after making advance payment to Bishundeo and Johari Pandit for fish. At that very time six unknown criminals variously armed with revolver, dagger, iron rod, chain, bow and arrow and bomb etc. were standing at Spillway bridge near Badua Dam. The motorcyclist had to stop the vehicle because of the obstruction and at that very time these appellants and other criminals took away money, watch, ring etc. from the possession of the informant and others. Thereafter, the accused persons tide their legs and hands on their back with the assistance of the Lungi of the informant and his companions. In the mean while three more persons including Pankaj Bhagat (since deceased) with two of his relatives came on their scooter and they were also robbed of their belongings by the miscreants. Soon thereafter, a tractor of Saloni Murmu loaded with sand being driven by PW 6 Sukar Pandit along with labourers Mahesh Pandit (PW 4), Subhash Sao (PW 5), Dasrath Pandit (PW 7) and Raj Kumar Saw (PW 8) arrived and those persons were also robbed of their belongings. At the behest of Sardar of the gang of the criminals 3 several persons were thrown and pushed down into the water of Badua Dam one after another by tying their hands or arms behind their back as a result thereof seven persons died. Some of the persons who were thrown in the dam namely, informant (PW 3), Shishupal Singh ( PW 1) and Ramjee Yadav ( PW 13) any how managed to save themselves from drowning. They rushed to the nearby village Biji Khorwa and reported about the occurrence and police was informed at 2.00 A.M. on 8.7.1997 which was situated at 8 kilometers away from Spillway Bridge Badua Dam. Formal FIR was drawn and investigation was taken up. After investigation Chargesheet was submitted against eight accused persons including the appellants. Cognizance was taken and the case was committed to the court of Sessions where the charge was framed for the offence under Section 396 of the Indian Penal Code for conjointly committing dacoity and murder of several persons during the commission of daocity. The appellants have not pleaded guilty and preferred to face trial. 3. In order to prove the case, the prosecution has examined 19 witnesses and no witness was examined on behalf of the accused persons. From the trend of cross-examination, it appears that the defence of the appellants was of false implication at the behest of police. Further defence was that on the basis of such scanty evidence on the means of identification there was no occasion for the Court to convict them. 4. It is to be seen here as to whether the judgment passed 4 by the learned Court below is correct or not and as to whether the prosecution has been able to prove the charge against the appellants beyond all reasonable doubts or not. 5. The prosecution has examined 19 witnesses in course of trial. PW 19 is a formal witness. Six witnesses are official witnesses. PW 11 is Sub-Inspector of police who has assisted the investigating officer (who has not been examined) and he has prepared seven inquest reports regarding seven dead bodies recovered from Badua Dam which were marked as Ext.-3 to 3/F and signatures of witnesses on inquest reports are marked as Ext.-2 series. Other official witnesses, namely, PW 16 Subhash Chandra Shrivastava and PW 18 Sifat Ahmad are the Judicial Magistrates. They have conducted the test identification parade and prepared the Test Identification Chart (Ext-5). PW 14 Dr. Bishwanath Prasad and PW 15 Dr. Ashok Kumar Singh are the two doctors who have examined on behalf of the prosecution. The Civil Surgeon, Banka has constituted the Medical Board comprising of three doctors. PW 14 Dr. Bishwanath Prasad was the Chairman of the Medical Board. Besides PW 15, Dr. Uday Shankar Bhagat (not examined) was one of the members. Medical opinion regarding the seven post mortem reports was brought on the record by the PW 14. Autopsy of seven dead bodies were conducted on 9.7.1997 after recovery of the dead bodies and were brought for post mortem examination. Ext.-4 is the post mortem examination report of Pankaj Bhagat @ Pankaj Kumar Bhagat (aged 30 years). Ext.-4/1 is the post mortem examination 5 report of Shankar Kumar Singh (aged 30 years). Ext.-4/2 is the post mortem examination report of Krishan Kumar (aged 20 years). Whereas Ext.-4/3 is the post mortem examination report of Biplav Kumar Singh (aged 26 years). Ext. 4/4 is the post mortem examination report of Om Prakash Gupta (aged 32 years) and Ext.- 4/5 is the post mortem examination report of Lalan Gupta (aged 32 years). Ext.- 4/6 is the post mortem examination report of unknown and uncircumcised dead body of a male (aged 32 years). In all the cases death was due to drowning and it was within time span of 24 hours to 48 hours. 6. Sixth official witness PW 17 is the Sub-Inspector of Police who was the member of the raiding party and he has recovered one stolen motorcycle Bajaj Kawasaki having registration no. BR 10-6084 from the house of one of the accused which was marked as Ext.-7 and it was signed by the witnesses (Ext.-6 series). The driver of the tractor which was carrying sand and labourers has been examined. The labourers who were going through the tractor are PW 4 Mahesh Pandit, PW 5 Subhash Sao, PW 7 Dasrath Pandit, PW 8 Raj Kumar Sao and driver of the tractor is PW 6. All the witnesses have supported the factum of occurrence but PW 4 is the witness of identification of these appellants who were put on test identification parade on 4.9.1997 by PW 16 vide Test Identification Chart (Ext.-5). PW 18 is the Judicial Magistrate Ist Class has also held test identification parade on 29.9.1997 and he has recorded the statements of 8 witnesses under Section 164 of the Cr.P.C. on the 6 order of the learned Chief Judicial Magistrate, Banka. Out of those 8 witnesses PWs 4, 5, 6, 7 and 8 have been examined in course of trial and remaining 3 witnesses who have given their statements under Section 164 of the Code of Criminal Procedure, namely, Siya Ram Singh, Ram Manjhi and Dasrath Bhagat were not examined in course of trial. Three witnesses, namely, PW 1 Shishupal Singh, PW 3 Mrigendra Kumar Singh @ Pappu Singh-informant and PW 4 Mahesh Pandit are the witnesses of the occurrence and identification. 7. PW 3 in his evidence has stated that on 7.7.1997 possibly Monday at about 6.00 to 7.00 P.M. he was at the spillway bridge. At that time 5 more persons were with him and they were on two motorcycles. One was Kawasaki Motorcycle upon which the informant along with Biplav Kumar Singh and Ramjee Yadav were present while on another Rajdoot motorcycle Shishupal Singh and Santosh Singh @ Shankar Singh were traveling. They were returning after making advance to fisherman and when they reached at the spillway bridge then six miscreants variously armed intercepted them. One of the criminals was having a pistol of six rounds, the second was having a bomb and third was having iron rod, fourth was armed with bow and arrow. Fifth was having dagger and sixth was having iron chain. The informant and other persons were surrounded from all the sides by the criminals who started snatching their articles. In course of loot the criminals snatched watches, ring and cash. After looting the properties one of the victim Ramjee Yadav 7 was forced to part with his Lungi which was torn in pieces and were utilized in tying the hands by putting it behind the body. The legs were also tied. One person was the Sardar of the gang and was dictating the criminals. His dictates were being followed by other criminals. In the meanwhile three more persons on a scooter arrived there, out of whom one Pankaj Bhagat was identified. He was also looted away his belongings and thereafter, their legs and hands were also tied. At the behest of the Sardar, namely, the leader of the criminals other criminals started throwing all the persons into the water of the dam for killing. While the informant was standing then he was pushed into water where the depth of water was 30-40 feet. The miscreants took away Biplav Kumar Singh for throwing him into water and when he sates that he would not be able to walk because his legs were tied then Sardar ordered to untie the legs and the miscreants obeyed the same by opening the rope around his legs and on the order of the Sardar the miscreants started throwing the persons one by one into the water. Firstly, Biplav Kumar Singh was thrown, thereafter, the informant was thrown. When others were waiting for being thrown and were to be thrown in the water then one tractor arrived there. The persons upon the tractor were over powered and the miscreants asked about the owner of the tractor. When the driver replied that the tractor was of Saloni Murmu then the four labourers and drivers were assaulted. When the informant was being pushed into the water he balanced himself and ultimately when he was thrown then he came near the pillar of the bridge by 8 swimming. There was a wall in the middle of the pillar just like a platform and the informant climbed upon it. Sometimes thereafter, Ramjee Yadav also climbed upon the platform. Shishupal Singh also reached up to the platform but Biplav Kumar Singh was not seen any where. After all the persons were thrown in the water, the informant came to know through Shishupal Singh and Ramjee Yadav that all the persons have been thrown in the water. While the informant and others were at the platform in the river he noticed the departure of the tractor. The informant waited there but none came and then the informant came to Biji Khorwa after swimming in the dam and narrated the incidents to the villagers after awakening them from their sleep. Villagers assembled and in the mean while SDO, Biji Khorwa was spotted who was coming. His help was sought for informing the police. Shishupal Singh and Ramjee Yadav were taken out from the water by the villagers and they were taken to village Biji Khorwa. Informant and other victims received no help from S.D.O., Biji Khorwa. At that very time a maruti car of Kaushal Bhagat was seen coming. The informant and witness Shishupal Singh came to Belhar Police Station and submitted a written report to the Officer In Charge. The informant has proved the hand writing and his signature which has been marked as Ext.1. His re-statement was taken and the informant claimed that he was in a position to identify the miscreants at the test identification parade. While the informant was deposing then he has identified these two appellants and the informant stated that these appellants were the persons who were 9 responsible for throwing him into the water and at the time of occurrence they were armed with rod and knife. They were also threatening all the persons. In the next morning seven dead bodies were recovered from the dam and those dead bodies were identified to be of Biplav Kumar Singh, Santosh Kumar, Pankaj Bhagat and others were not identified by the informant. 8. This witness was cross examined in detail as to how he came to know about the names but the informant clearly stated that he was not knowing the names of the accused persons but he has identified them because they were the persons who were responsible for this occurrence. 9. Another witness PW 1 has described the manner in which his life could be saved by others after they were thrown into the water of the dam by the accused persons on the date and time of occurrence. He stated that he proceeded from Biji Khorwa on a Rajdoot motorcycle. The motorcycle was being driven by Shankar Singh. He was sitting in the middle and Ramjee Yadav was sitting behind him. On another motorcycle Pappu Singh, the informant and Biplav Kumar Singh were going ahead which was being driven by Biplav Kumar Singh. He stated that after giving advance for fish to Jahur Pandit they were returning home through Badua Dam. At that very time six miscreants surrounded them near spillway. One of the criminals was armed with pistol and was of black complexion. The second was having bomb, third was armed with bow and arrow and was bearing Dhoti Kurta and 4th was appearing to be leader and he 10 was armed with iron chain and stick of iron. The fifth criminal was having knife and sixth was having iron rod. All the miscreants caught PW 1 and others and demanded money and other articles which were given to them. Thereafter, the accused persons snatched the Lungi of Ramjee Yadav and after tearing it they tied the legs and hands of Biplav Kumar Singh and others one by one. The person armed with revolver was threatening that he would kill them. In the mean while one Scooter came from west upon which three persons were present. One person was identified as Pankaj Bhagat. The miscreants started committing plundering with them on which Pankaj Bhagat replied that he has identified them upon which 3-4 miscreants started cutting his neck on which Sardar ordered to throw them into water upon which firstly, Biplav Kumar Singh was thrown. Then the informant was thrown and thereafter, others were thrown one by one. The depth of water was about 70 feet. This witness tried to save himself then he found the informant sitting on the platform of the pillar. This witness acknowledged that other persons were also thrown and later on dead body of Biplav Kumar Singh, Santosh Kumar Singh, Pankaj Kumar Bhagat, Om Prakash Gupta, Lalan Gupta and krishan Kumar Sah were recovered. They anyhow managed to inform the police. He further sated that the test identification parade was held in which he identified four miscreants out of which two, namely, the appellants were present in the Court in course of their trial. He has described that the appellant Jabir Mian was tying them and appellant Riyasat was threatening them and 11 other accused persons were helping others in throwing them in the water. This witness has identified the appellants in the jail premises and at the time of test identification parade he was the only identifying witness, Magistrate and jail authority were present. 10. PW 13 Ramjee Yadav was also thrown into the water but he managed to save his life. He has described the occurrence, which according to him, had taken place on Monday dated 7.7.1997 between 6.00 to 6.30 P.M when he along with Biplav Kumar Singh, Pappu Singh (PW 3), Shishupal Singh (PW 1) and two more persons went to village Suiya for purchasing fish. They were going on a Kawasaki motorcycle. Later on they found PW 1 Shishupal Singh, Biplav Kumar Singh and another were sitting. These three persons accompanied him. Then they went to village Bhimadih and were going to Johari Pandit who used to rear fish. They met Johari Pandit in the way and after advancing him Rs. 150/- for fish, they again started returning to their houses through the road of dam. When all the five reached near spillway the miscreants stopped them by brandishing pistol. The miscreants were 5 to 6 in numbers and they were variously armed. The miscreants looted away all the belongings of all the five persons, in the meanwhile one scooter came upon which three persons were present. One Pankaj Bhagat was identified. Those three persons were also looted. Hands and legs of all the persons were tied by the rope of lungi and they were also assaulted. At that very time a tractor carrying sand and labourers came which was stopped by the miscreants and they were also 12 robbed of. Biplav Kumar Singh was the first person who was firstly thrown into the water and later on others were thrown one by one. This witness was also thrown in the water by the miscreants but he any how untied his legs in the water and came to the platform where PW 3 and PW 1 were present where they came there a bit earlier. The matter was to be reported to the police and for that PW 3 was requested. PW 3 went to village Biji Khorwa and with the assistance of some others matter was reported to police. 11. PW 2 is a hearsay witness. PWs 1, 3 and 13 have stated that a tractor has come at the place of occurrence when the miscreants were preparing for throwing other persons into water. PWs 4, 5, 6, 7 and 8 are driver and labourers of the tractor. The driver of the tractor PW 4 has stated that the occurrence is of four years and 8 months before. These witnesses have supported the occurrence in its entirety. They have stated that many persons were looted and they were thrown into the water. 12. The inquest reports of all the dead bodies were prepared by PW 9. He has stated that on the date and time of occurrence he prepared the inquest reports of all the dead bodies which were marked as Ext. 2 to 4 and these were signed by the witnesses which were marked as Ext. 2 to 9 and another witness of the inquest is PW 10 and he has also stated that inquest reports were prepared in his presence. 13. PW 14 has conducted the post mortem examination of all the seven dead bodies which were taken out from the water. 13 14. PW 14 has found following injuries on the dead body of Pankaj Bhagat:- 1. Bruise 1” x1” above the left ankle 2. Fracture of mandible of both sides. 3. whole body swelling. 4. visceras conjested. 5. stomach contain plently of fluids watery with food materials. 6. Froth from mouth and nostril. 7. Tracchea conjested Both arms were tied behind the body with a piece of cloth and both legs were tied with a piece of cloth appears to be a Lungi. Cause of death: Asphyxia due to drowning. The above, post mortem report has been marked as Ext.4. On the dead body of Shankar Kumar Singh following finding were found by the doctor during post mortem conducted on the same day:- 1. Bruise 2” x 2” below the left knee. 2. abrasion two in number on the chin size 2”x1/2” 3. Body swollen 4. Froth from mouth and nostril. 5. Generalized visceral conjestion. 6. stomach contained plenty of fluid watery with food material. Both the arms were tied behind the body with piece of cloth likely appears to be piece of lungi. Cause of death- Asphyxia due to drowning. Time since death within 24 hours to 48 hours. This post mortem report has been marked as Ext.4/1. 14 On the same day he conducted post mortem examination on the dead body of Krishna Kumar and found the following ante mortem injuries:- 1. Bruise 3”x2” on the back in the inter scapular area 2. Bruise 1”x1” on the dorsam of left fore arm. 3. whole body swollen. 4. Froth from mouth and nostril. 5. Teachea conjested. Generalised visceral conjestion. 6. Stomach contained plenty of fluid watery with food material. Both arms were tied with a piece of cloth appears like piece of lungi behind the body just above the elbow. Cause of death- Asphyxia due to drowning. Time since death within 24 hours to 48 hours. This post mortem report has been marked as Ext.4/2. On the same day, he conducted the post mortem examination on the dead body of Biplav Kumar Singh and found the following ante mortem injuries:- 1. Lacerated wound 1/2”x1/2”x deep to mediastnum above the sternum. 2. Bruise 3”x2”below the left ear. 3. Bruise 2”x1” on the doresame of left hand. 4. Body swollen. 5. Froth from nostril and mouth. 6. Stomach contained plenty of fluid watery with food particles. 7. Generalised visceral conjestion. Both arms were tied behind the body with a piece of cloth looking like lungi. Cause of 15 death: Asphyxia due to drowning. Time since death within 24 hours to 48 hours. This post mortem report has been marked Ext. 4/3. On the same day he held the post mortem examination on the dead body of Om Prakash Gupta and find the following ante mortem injuries:- 1. Bruise 3”x2” on the right part of forehead. 2. Whole body swollen. 3. Froth from mouth and nostril. 4. Stomach contained plenty of watery fluid with food. 5. Trachea Conjested. Both the arms were tied behind the body with piece of cloth appears to be piece of Lungi. Cause of death-Asphyxia due to drowning. Time since death within 24 to 48 hours. This post mortem report has been marked as Ext.4/4. On the same day he held the post mortem examination on the dead body of Lalan Gupta and found the following ante mortem injuries:- 1. Bruise 2”x2 over left Maxillary area. 2. Bruise 2”x1” over right chin of Tibia. 3. Whole body swollen. 4. Froth from mouth and nostril. 5. Stomach contained plenty of watery fluid with food materials. 6. Tachear conjested. Other viscera conjested. Both arms were tied behind the body with piece of cloth appears to be piece of lungi. Cause of death: Asphyxia due to drowning. Time since death 24 to 48 hours. This post 16 mortem report has been marked as Ext. 4/5. On the same day, he conducted post mortem examination on the dead body of unknown, uncircumcised and found the following ante mortem injuries:- 1. Incised wound 4”x1 1/2”x2” on the left mandibler region . 2. Fracture of mandible of both the sides. 3. Fracture of left tibial condylar region. 4. Abrasion 1”x1” over the anterior aspect of both knee. 5. whole body swollen. 6. Froth from mouth and nostril. 7. Stomach contained plenty of fluid watery with food. 8. Trachea conjested and viscera conjested. Both the arms were tied behind the body with a piece of cloth appears to be piece of lungi. Cause of death-Asphyxia due