IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No. 351 of 1991 Arising out of PS.Case No.6 Year- 1979 Thana-Daudnagar District--Aurangabad =========================================================== 1. Ram Govind Dubey, Son of Markandey Dubey. 2. Ram Peyare Dubey, Son of Ram Govind Dubey. Both residents of village Khaira Dubey, P.S. Daud Nagar, District Aurangabad. .... .... Appellants Versus The State of Bihar .... .... Respondent With =========================================================== Criminal Appeal (DB) No. 360 of 1991 Arising out of PS.Case No.6 Year- 1979 Thana-Daudnagar District--Aurangabad =========================================================== 1. Ram Niwas Dubey, Son of Bacchu Dubey. 2. Siddhi Dubey, Son of Chandeshwari Dubey. 3. Kameshwar Dubey, Son of Ramchandra Dubey. All residents of village Khaira Dubey, P.S. Daud Nagar, District Aurangabad. .... .... Appellants Versus The State of Bihar .... .... Respondent With =========================================================== Criminal Appeal (DB) No. 375 of 1991 Arising out of PS.Case No.6 Year- 1979 Thana-Daudnagar District--Aurangabad =========================================================== Devendra Dubey, Son of Ram Kumar Dubey, resident of village Khaira Dubey (Khairadip), P.S. Daudnagar, District Aurangabad. .... .... Appellant Versus The State of Bihar. .... .... Respondent =========================================================== Appearance : (In CR. APP (DB) No. 351 of 1991) (In CR. APP (DB) No. 360 of 1991) (In CR. APP (DB) No. 375 of 1991) For the Appellants : Shri B.P.Pandey, Sr. Advocate : Shri Pramod Kumar, Advocate For the State : Dr. Mayanand Jha, APP For the State : Shri Dilip Kumar, Sinha, APP =========================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA and HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) Date: 20-11-2014 Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 2 / 21 2 The batch of three appeals arises out of judgment of conviction dated 4.9.1991 and order of sentence passed on 5.9.1991 by the learned 3rd Additional Sessions Judge, Aurangabad in Sessions Trial No. 169 of 1980/ 46 of 1991 by which all the appellants except Devendra Dubey had been convicted under Sections 148 and 302 of the Indian Penal Code and each of them was directed to suffer rigorous imprisonment for two years and for life under the two respective counts of his conviction. As regards solitary appellant Devendra Dubey of Cr. Appeal (D.B.) No. 375 of 1991 he was convicted of offence under Sections 148 and 302 of the Indian Penal Code as also under Section 27 of the Arms Act and was directed to suffer the same terms of imprisonment as his other companion convicts were to suffer on account of having been found guilty of offence under Sections 148 and 302 of the Indian Penal Code and had further been directed to suffer rigorous imprisonment for two years for committing the offence under Section 27 of the Arms Act. Out of the nine convicts, appellant no. 1 Ram Sakal Dubey and appellant no. 4 Saligram Dubey of Criminal Appeal (D.B.) No. 351 of 1991 as also appellant no. 4 Rameshwar Dubey @ Ramesh Dubey of Cr. Appeal (D.B.) No. 360 of 1991 died during the pendency of these appeals and their appeals abated due to their deaths. Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 3 / 21 3 2. It may also be pertinent to point out that originally there were only 11 accused persons named in the First Information Report but 13 accused persons were put on trial on account of having been implicated during the investigation by the witnesses out of whom four, namely, Hirdeya Dubey, Siyaram Dubey, Sri Ram Dubey and Ramashish Ojha were acquitted of the charges they had been indicted of. We have heard these appeals together and we are disposing them of by this common judgment. 3. Radha Singh Yadav (P.W.5) who happened to be the son of deceased Ramautar Yadav came to the police station along with the dead body of his father with others, like, Chandra Deo Singh (P.W. 4), Shiv Bachan Singh (P.W. 1), Kedar Singh (P.W. 2) Dhanrajik Yadav (P.W. 3) and got his statement recorded by the Officer-in-Charge of Daudnagar Police Station on 7.12.1979 at about 6.30 p.m.. He alleged that on that particular day at about 3 p.m. he along with his deceased father Ramautar Yadav were bringing the bundles of paddy from their fields into the khalihan. They had brought the bundles together and were about to leave the khalihan for going to the field for fetching the bundles again when 11 accused persons named in the First Information Report arrived there. Appellant Devendra Dubey was carrying a rifle with him, whereas, appellants Ram Niwas Dubey, Ram Sakal Dubey, Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 4 / 21 4 Kameshwar Dubey, Shaligram Dubey and Hirdeya Dubey (since acquitted) were carrying guns. Appellant Ram Niwas Dubey was carrying a country made pistol. Appellants Sidhi Dubey, Rameshwar Dubey, Ram Govind Dubey were armed with bhalas, whereas, Ram Pyare Dubey was carrying a farsa. No sooner the accused persons had arrived at the khalihan of the informant, than appellant Devendra Dubey fired a shot which hit the father of the informant, namely, Ramautar Yadav just by the umbilicus on its left side, as a result of which he fell down dead. Ramniwas Dubey also fired a shot, but that does not appear targeted upon the informant and others and, as such, that does not even appear to have caused a scratch to any of them. The informant stated that in order to save themselves the witnesses had hidden themselves behind the bundles of paddy. 4. Finding that Ramautar Yadav was dead, the accused persons ran away from there with their respective weapons. The informant stated that he and his companions dared not chasing them out of fear. 5. The reason for the occurrence as alleged by the informant was pendency of two criminal cases between him on the one side and accused persons on the other which included a proceedings under Section 107 Cr.P.C. which was still going on on the date of occurrence in some court. Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 5 / 21 5 6. The Investigating Officer had not been examined and, as such, we do not have any inkling as to how the investigation had progressed, but what appears from the record is that the dead body was sent for autopsy to Aurangabad Hospital where P.W. 6 Dr. S. J. Rahman had held autopsy on it and had found the solitary ante- mortem injury on the dead body which was as below:- (i) in the middle quadrant of the left side of the abdomen, there was one oval lacerated wound just above the iliac crest 1" in diameter. There was a little amount of blackening around the aperture and peritoneum had popped out of the aperture created by the wound. A corresponding lacerated wound was found on the back on its left side measuring 1¼" in diameter. On opening the abdomen P.W.6 did not find any pellet. He found the intestine ruptured at many places and in his opinion the pellet might have passed out of the corresponding aperture on the back that's, the wound of exit. P.W. 6 further opined that the above injuries had been caused by firearm, like, a rifle fired from a distance of more than four feet. In the opinion of P.W. 6 the time elapsed since death and holding of post-mortem examination was about 12 to 18 hours. Thus, the fact that Ramautar Yadav had been shot and killed is concluded from the evidence of PW6. It appears that after closing the investigation the Investigating Officer Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 6 / 21 6 sent up the 13 persons for trial by submitting the charge-sheet which ended in the impugned judgment. 7. The defence of the appellants was of false implication and non-participation in the commission of the offence. Appellant, like, Ram Sakal Dubey had taken a plea of alibi by pleading that on the date of occurrence he was admitted in Sadar Hospital, Aurangabad and had been discharged subsequent to the occurrence. The defence of being falsely implicated due to enmity was also there. 8. Six prosecution witnesses were examined in support of the charges including PW6 Dr. S. J. Rahman as noted earlier. Out of the remaining five witnesses, P.W. 4 Chandra Deo Singh had been tendered for cross-examination thus, the support to the charges were limited to the evidence of four witnesses, i.e., P.Ws. 1, 2, 3 and 5 who all gave eye witness account of the occurrence. The defence examined two witnesses as we have just noticed. P.W. 1 was tendering in evidence the discharge slip of appellant Ram Sakal Dubey so as to establishing that the above named appellant had been admitted in Sadar Hospital, Aurangabad prior to the day of occurrence, whereas D. W. 2 had brought on record a copy of first information report which was marked Ext. C. 9. The witnesses examined by the prosecution were Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 7 / 21 7 held trustworthy by the learned trial Judge who also held that their testimony was substantially corroborated by the evidence of P.W. 6 Dr. S. J. Rahman and ultimately, held that the charges had been brought home against the appellants while the same had not been proved against four accused persons who were acquitted. 10. Shri B. P. Pandey, the learned senior counsel has appeared for the appellants in the three appeals. We were taken through the evidence of the witnesses and while so doing Shri Pandey criticized individual evidence of the witnesses by drawing the attention of the Court to some of the significant aspects of their individual evidences. It was contended that there is no doubt that Ramautar Yadav was killed but it was very curious that his wife who was in his house which was situated somewhere at a distance of about 100 yards, had neither been informed nor she out of her own would come to have a glance of her husband who had been killed. Yet another curious behaviour as per Sri Pandey was that of the informant (P.W. 5), who saw his father being shot and killed but did not rush to his village or to his house for informing the people or his family members. Submission also was that admittedly, as may appear from P.W. 2 Kedar Singh, the full brother of the deceased it was a harvesting time and people were harvesting the paddy crop all around the place of occurrence, but even after the firing of the shots Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 8 / 21 8 and the running away of the accused persons no one was rushing to the scene of occurrence to find out as to who had been killed by whom. By citing a Supreme Court decision reported in (2013) 6 SCC 417, Lahu Kamlakar Patil & Anr. vs. State of Maharashtra, it was submitted that the unusual human behaviour of the persons and the witnesses as also the family members probably was indicating to a different story which was suppressed by the prosecution and that was missed by the learned trial judge who wrongly convicted the present set of appellants. It was also contended that the appellants were convicted by virtue of Section 149 of the Indian Penal Code but except the solitary statement in the First Information Report that accused Ram Niwas Dubey, Ram Sakal Dubey and Kameshwar Dubey had also fired upon the informant and others, there was no evidence to support that particular allegation and it does not appear established that indeed accused persons had acted in prosecution of the common object by ultimately killing Ramautar Yadav. 11. Dr. Mayanand Jha, the learned Additional Public Prosecutor has appeared on behalf of the State and he was submitting that human conduct may not have some set pattern and every human being reacts or acts in his own special manner under situation of threat and despair. However, Dr. Jha was fairly submitting that the evidence of witnesses does not indicate that any Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 9 / 21 9 accused other than Devendra Dubey had committed any overt act rather it is indicated by the evidence available on record that they did not even raise their voice or their hands showing that they had indeed appeared there in prosecution of the common object and that they knew that the murder of Ramautar Yadav was likely to be committed by one of them. 12. While being taken through the evidence of witnesses, we did find that no one had rushed or appeared at the place of occurrence even after the accused persons had run away from there. The evidence of P.W. 5 Radha Singh Yadav, the informant of the case also indicated that he also did not move out the place even to go to his house to inform his family members as to what had happened and who had killed his father. But that appears unexplainable on the very evidence of witnesses who were very categorically speaking that as soon as the accused persons came there armed variously, Devendra Dubey fired the shot and they chose to save themselves by taking shelter behind the bundles of paddy. A single shot was fired by Devendra Dubey which appears from the evidence of all the witnesses and that hit the deceased and he fell dead. P.W. 2 Kedar Singh and other witnesses had also admitted that it was the paddy harvest season and harvesting was going on all around the place of occurrence, but no one rushed or Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 10 / 21 10 came to the scene of occurrence even after the accused persons had run away from there. One may in some different situation treat the circumstance as not befitting to the usual human behaviour as usually, an incident of the magnitude which had occurred on 7.12.1979 generally attracts a huge mob after the occurrence is over. But the Supreme Court decision which was cited by Shri Pandey appears taking into account the submission which was raised before their lordships also and after perusing some of the decisions of the Apex Court in paragraphs 23, 24 and 25 of the judgment appears observing in paragraph 26 as follows:- "From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded. 13. The Supreme Court had also taken note of the submission which was raised before us on the unusual conduct of persons and as appears from the above paragraph, held that reacting to a particular situation differs from individual to individual and Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 11 / 21 11 further there cannot be any uniform human reaction. One of the most usual behaviour which had appeared in recent time in rural areas or urban part of the nation is that most of us do not want to be concerned with incident where one has to stand up into the witness box to depose against a person. If it is a criminal case then this behaviour is more prominently observed even in literate persons and one of chief reasons of such a behaviour is that the grilling one gets while being examined as witness during trial proceedings is so discouraging and insulting sometimes, that most of us want to keep ourselves aloof of being a witness. As appears from the evidence, it was a case of single shot and no sooner Devendra Dubey had appeared there, he had fired the shot without even having an exchange of words either with the deceased or with anyone of his family as appears from the evidence. Witnesses were the family members of Ramautar Yadav and they have stated that they did not have any individual animosity with any of the accused persons. They could have chosen to come into the witness box, but those who were away and not present there and those who had seen the occurrence happening from a distance on account of being engaged in harvesting the paddy crop might have thought it better to keep themselves away from the affairs of the witnesses and their family members and not to poke their noses Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 12 / 21 12 individually in such serious matter. Considerations could have been various for them. They might have thought it not to rub their skin against a person, like, Devendra Dubey who was not hesitating in firing a shot without even having some exchange of words or without any provocation given by anyone to him. Life is very precious to everyone and probably they were purchasing safety by keeping themselves away from the affairs of the informant and his family even if his father had been brutally killed. For these reasons we do not find it a sufficient circumstance if the persons other than witnesses had not rushed to the place of occurrence to discard the prosecution case. 14. So far as the non-appearance of the wife of the deceased is concerned, Sri Pandey was drawing our attention towards paragraph-27 of the above noted judgment in which the conduct of witness in not having gone to the village or to the house of the deceased to inform anyone about the incident and going away to Pune instead has been noted. He had not even informed his wife or his family members about the incident and the Supreme Court had taken note of this unusual conduct of P.W.2 of Lahu Kamlakar Patil (supra) to discard his evidence. Here in the present case, P.W.5 the informant of the case was the son of the deceased and he had very categorically stated that he did not even go to his house to inform Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 13 / 21 13 anybody or the villagers in that regard. But what we find from the perusal of the evidence of the four witnesses is that they had immediately arranged for a cot, put some bedding material, like, carpet etc. and after putting the deceased on to it had rushed to the police station for lodging the report. Sri Pandey was critical of this behaviour also on another score when it was pointed out that they should have instead taken the dead body of the deceased to their house to show the dead body to the family members specially the mother of the informant. We do appreciate the argument that it could have been one of the finest behaviour and expected action as regards a son, like, P.W.5 or brother like P.W.2 or other family members, like, P.Ws. 1 and 3 who were very closely related to the deceased as appears from the evidence of P.W.1 in paragraph-4. But, it could be those persons who could have explained the conduct of not either informing their family members or taking the dead body for their perusal. During the cross-examination of witnesses which was quite lengthy and witnesses were even recalled after amendment of charges, we could not find a single isolated line in an attempt to elicit an explanation from those witnesses on that particular point which was raised by Sri Pandey as to why they chose not to take the dead body to their house or did not inform their family members either. The witnesses, in our opinion, could have Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 14 / 21 14 been more concerned about lodging a report promptly as the man was already dead and they had due to that concern rushed to the police station with the dead body to lodge the report as they did through P.W.5. 15. The third contention which was raised by Sri Pandey was the non-proof of motive. The First Information Report recited that there were two criminal cases pending between the parties and one of the cases was a proceedings under Section 107 Cr.P.C. Witnesses other than P.W.5 had admitted that they did not have any individual animosity with the accused persons; even the full brother of the deceased Kedar Singh (P.W.2) stated in paragraph-3 as also in paragraph-8 of his deposition that he did not have any quarrel with the accused. He did not even have any inkling that they had some ill-will towards him and that the accused persons did not have any concern with the Khalihan least to talk of some dispute with the deceased and others in that aspect. This is somewhat other witnesses have also stated except P.W.5, who stated that he himself had initiated a proceedings under Section 107 Cr.P.C. against Devendra Dubey and others by filing a petition before the S.D.M., Aurangabad. This evidence appears in paragraph-3 of P.W.5 as also in paragraph-4 when P.W.5 was cross- examined to the above fact of initiating a proceedings under Section Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 15 / 21 15 107 Cr.P.C. against Devendra Dubey and others. It was initiated against P.W.5 and his father both of whom were one of the parties to the proceedings and that was initiated by appellant Kameshwar Dubey on a petition filed for that purpose. It is true that P.W.5 had admitted t hat there was no other case pending on the day of occurrence or prior to that or there had been any other case prior to that between the accused persons and the deceased. It is true that the First Information Report recites pendency of two criminal cases including the one proceedings under Section 107 Cr.P.C. and it is also true that the prosecution has not brought on record the details of any further criminal case, but was not D.W.2 Baleshwar Prasad tendering in evidence a copy of the First Information Report which was lodged by acquitted accused Sri Ram Dubey against persons including P.W.2 Kedar Singh. The evidence of Kedar Singh in paragraph-3 indicates that the family constituted by himself and the deceased Ramautar Yadav was still joint on the day he was deposing in court. He might have stated that he did not have any enmity with the accused persons but that document (Ext.C) tells a different story that there was a criminal case other than the proceedings under Section 107 Cr.P.C. between one of the accused and the witnesses, like, P.Ws. 2 and others. The evidence might have come from the prosecution or the defence in support of either the charge or the plea Patna High Court CR. APP (DB) No.351 of 1991 dt.20-11-2014 16 / 21 16 which had been raised by the accused persons in their defence, but for a court of justice, the evidence of both sides is the evidence in a case and that has to be considered in its entirety for raising some inference. Therefore, even if P.W.5 or for that matter the prosecution brought on record any document or evidence in spite of they having denied the existence of any