CRIMINAL APPEAL (DB) No. 279 OF 1988 Against the judgment of conviction and order of sentence dated 09.05.1988 passed by Sri S. Rahaman, Additional Sessions Judge VI, Arrah in Sessions Trial No. 378 of 1981, G.R. No. 333 of 1981 (Sahar P.S. Case No. 25 of 1981). 1. Krishnanandan Chamar, Son of Bira Chamar. 2. Dharichhan Chamar, Son of Deomun Chamar. 3. Harinandan Chamar, Son of Naradmuni Chamar. All residents of village Narhi, Police Station Sahar, District – Bhojpur. WITH CR. APP (DB) No. 261 oF 1988 Against the judgment of conviction and order of sentence dated 09.05.1988 passed by Sri S. Rahaman, Additional Sessions Judge VI, Arrah in Sessions Trial No. 378 of 1981, G.R. No. 333 of 1981 (Sahar P.S. Case No. 25 of 1981). Ramadhar Chamar, Son of Sheo Prakash Chamar, Resident of Village – Narhi, Police Station – Sahar, District – Bhojpur -----------------------(Appellants) Versus The State of Bihar --------------------------(Respondent) For the Appellants :- Mr. S.R.P Sinha, Sr. Advocate. Mr. Rahul Nath, Advocate. Mr. Lokesh Kumar Singh, Advocate. For the State :- Mr. Ashwini Kumar Sinha, APP. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. These two appeals, Cr. Appeal No. 279 of 1988 and Cr. Appeal No. 261 of 1988 have been heard together and are being disposed of by this common judgment since they arise out of the judgment and order dated 9th 2 May, 1988 passed by the 6th Additional Sessions Judge, Arrah in Sessions Trial No. 378 of 1981 arising out of Sahar P.S. Case No. 25 of 1981, G. R. No. 333 of 1981. 2. The appellants in Cr. Appeal No. 279 of 1988 Krishnanandan Chamar, Dharichhan Chamar and Harinandan Chamar and the appellant in Cr. Appeal No. 261 of 1988 Ramadhar Chamar have been convicted under Section 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and further convicted under Section 307/147 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for seven years and three months. 3. The prosecution story as alleged in the ferdbeyan of the informant Harinandan Prasad Chamar, whose statement recorded at 2:30 P.M before the Officer-In-Charge of Sahar Police Station, is that at about 7:00 A.M in the morning on 15.02.1981 Radhe Kumar Ram the brother of informant was coming after meeting the call of nature from the east of the village on way to his house. The accused Dev Muni Ram and Ramadhar Chamar armed with Bhala, Krishnandan Chamar, Dharichhan Chamar, Harinandan Chamar armed with Lathi were standing in the Gali in front of the house of Dev Muni Chamar and as soon as Ramadhar Chamar the brother of the informant reached there then Ramadhar Chamar gave a Lathi blow on the head of Radha Kumar Ram. Ramadhar Chamar made a Halla. The informant at that time was also coming after meeting the call of nature and he also reached there. The further case of the prosecution is that as soon as the informant reached there, he was also assaulted 3 by Bhala on the person of Ramadhar Chamar on his back. The brother of informant and the nephew of the informant fell down being unconscious and at that time all the accused persons indiscriminately assaulted the informant and his brother. 4. The further case of the prosecution is that on Halla inmates of the informant Ganesh Ram (N.E.), Swaroop Ram (N.E.), Devnandan (N.E.) and Marai (N.E.) searched the spot and the accused persons flew away on their reaching the spot. Thereafter the injured were taken to hospital. The motive for the offence alleged that there is ditch to the east of the village which has been purchased by Bidheshi Chamar and some day prior to the occurrence Ramadhar Chamar, Krishnandan Chamar and Dev Muni Chamar had assaulted Bidheshi and had restrained from fishing. The further case is that on last Friday when the brother of the informant Radha Kumar Chamar was going for taking money from block then Bidheshi had also followed him, in quest of Amin to block for measuring the land but Amin did not come and then the accused persons thought that Radha Kumar Chamar was instrumental, so, has done the occurrence. 5. On the basis of the ferebeyan, the FIR was lodged and after investigation the charge – sheet was submitted. After submission of the charge – sheet the cognizance was taken and subsequently the case was committed to the Court of Sessions and after commitment the charges were framed under Section 302, 307 of the Indian Penal Code against all the five accused persons and subsequently Krishnandan Chamar and Dharichhan Chamar were charged under Section 147 4 of the Indian Penal Code and Dev Muni Chamar and Ramadhar Chamar were charged under Section 148 of the Indian Penal Code and Ramadhar Chamar were further charged under Section 324 of the Indian Penal Code. 6. After framing of the charge trial proceeded. The prosecution adduced nine witnesses. P.W. 1 Radha Kumar Roy, P.W. 2 Ballam Chamar, P.W. 3 Lalan Ram, P.W. 4 Dr. R. K. Singh, P.W. 5 Baleshwari Devi, P.W. 6 Kushmi Devi, P.W. 7 Dr. U.P. Himansu, P.W. 8 Hari Prasad Chamar and P.W. 9 Braham Lal Singh. The defence has also adduced oral and documentary evidence. Prahalad Singh adduced oral evidence and documentary evidence which is Ext. A. A/1 and A/2, which are the injury report regarding injury on person of the accused persons by the Doctor Upendra Prasad Himansu. 7. The defence of the accused persons was that they have been falsely implicated in this case as no occurrence as alleged occurred and really the prosecution party assaulted Ramadhar Chamar when he refused to depose on their behalf and when Ramadhar flew away and concealed himself in the house then the prosecution party attacked him in his house and set on fire the house of Ramadhar and assaulted Ramadhar, Dev Muni and Krishnandan and Swarswatiya Devi and Ram Rati Devi and Phuljharia Devi and committed mischief to destroy their roof of the house by setting on fire and the accused persons have falsely been implicated. The accused persons got injured and were treated in hospital and have proved their injury and they have also got injured in the occurrence. 5 8. After considering the oral and documentary evidence and hearing the submission of the parties, the learned court below convicted and sentenced as stated above. 9. Learned counsel for the appellants however contended that the prosecution has not been able to prove charged beyond reasonable doubt. There is contradiction in the evidence of the witnesses and the witness has developed the story from stage to stage, none of the witness named in the ferebeyan have been examined and the witnesses examined are interested and inimical and the accused persons have also got injury in same transaction of the occurrence which has not been explained by the prosecution and though there is allegation of assault by Bhala but no Bhala injury has been found and prosecution has developed the case that the injury was not made by sharp portion of the Bhala but by Lathi portion of the Bhala and hence the prosecution has not been able to prove the charges beyond reasonable doubts as the evidence are neither reliable nor trustworthy and suffer from inherent improbabilities. 10. Learned counsel for the State, however, contend that the prosecution has been able to prove that the charges. Hence question for consideration whether prosecution has proved the charge beyond reasonable doubt. 11. Now I proceed to consider the evidence in the light of submission made by parties. The prosecution has alleged that on 15.02.1981 at about 2:30 P.M while the informant was coming after meeting the call of nature and his brother also Radha Kumar Ram also came from east from his house after meeting the call of nature. Accused Dev Muni and Ramadhar armed with Bhala, 6 Krishnandan Chamar, Dharicchan Chamar and Harinandan Chamar armed with Lathi were standing at in the Gali in front of the house of Dev Muni Chamar and thereafter when the Radha Kumar Ram reached near the house then Ramadhar assaulted Radha Kumar Ram on his head by Lathi on which Ramadhar Chamar made a cry and then informant as well as the Ram Roop Chamar the nephew of the informant rushed there then it is alleged that the accused persons started indiscriminately assaulting Ram Roop Chamar by Lathi and when the informant reached there then he was assaulted by Ramadhar Chamar on Bhala on his back and on Halla the inmates of the informant Ganesh, Swaroop, Dev Nandan, Marai and several persons collected. 12. P.W. 1 Radha Kumar Ram is injured. He has stated that he reached at the house of Dev Muni and Ramadhar then saw accused persons sitting in Bathaka and then Dev Muni, Ramadhar and Krishnandan surrounded him and Dev Muni and commanded to assault on which the Radha Kumar Ram made a cry and it is alleged that Ramadhar gave him Lathi blow on his head by which he has got injury on his head and he fell down. However, he has stated that Dev Muni, Ramadhar and Krishnandan. Dharicchan, Harinandan assaulted him by Lathi. He has further stated that the motive of the occurrence that he had been to Sahar Block and Bidheshi had gone with him to bring the Amin (Khatib) and so the accused person thought that he is helping Bidheshi as there was dispute with Bidheshi as Bidheshi had taken Bandobasti of government land which was a ditch and used to fish and Ramadhar, Dev Muni and Krishnandan protest the fishing. However, in cross examination he has stated that on getting the Lathi 7 blow on his head he had not become unconscious though has fell down and all the five accused person were indiscriminately assaulting him by Lathi and each one gave five to six Lathi blow and Ramroop, his nephew, came and he was also assaulted by Lathi indiscriminately. However he has denied the suggestion there is one Shiv Mangal Ram in his village and he has filed a case on this witness regarding Gairmajura land and the government has settled the land in his name and for that he has filed a case before the Munsiff. He has denied the suggestion that the work of Shiv Mangal Ram has been left by the Chamar’s defence and for the reason that Shiv Mangal Ram has filed a case on him and it is not fact since he is the leader of the Chamars and it is not a fact since this witness wanted to have the evidence of Ramadhar in his favour and Ramadhar was not reached and so he has falsely been implicated. However, this witness has further stated that a criminal case has been lodged against him and 22 persons his family for an offence of the same day and the charge sheet has also been submitted and the case has been committed to Court of Sessions. He has further stated that he know that Dev Muni has filed a case of mischief for setting on fire and assault. Further he has stated that the said case is false. He has stated that it is not a fact that Ramadahr was assaulted with Lathi out side the village when he refused to depose and when Ramadhar flee away then this witness chase Ramadhar and Ramadhar conceal himself in his house and then Ramadhar and his entire family was attached and his house was set on fire. Hence, from the evidence of this witness two facts comes out that this witness was assaulted on his head by Ramadhar by Lathi though Ramadhar has been 8 attributed and alleged to have been armed with Bhala but role attributed for assault is by Lathi on the person of this witness and further assaulted by indiscriminately Lathi blow by five accused persons and each gave as much as 5 to 6 Lathi blow indiscriminately and further has admitted about a counter case filed by the defence with regard to the same occurrence and the charge-sheet has been submitted in counter case and the case has been committed to the Court of Sessions in which it was alleged that prosecution party assaulted Ramadhar by entering in his house and set on fire his house and assaulting the inmate in the house. 13. P.W. 2 is Ballam Chamar. He has also stated that about 7:00 A.M Radha Chamar made a cry then he went there and saw the accused persons Dev Muni and Ramadhar armed with Bhala and rest accused persons armed with Lathi and saw that Ramadhar gave a Lathi blow on the head of the Radha Kumar & other accused persons assaulted him by Lathi. He has further stated that Hari Prasad came there, then he was assaulted by Bhala by Ramadhar and Ram Rup was assaulted by Krishnandan, Ramadhar and Dev Muni, Harinandan and Dharicchan. However, in his cross examination he has stated that when he reached in the Gali then he saw that there was verbal altercation between Radha Kumar and Ramadhar and other accused persons. However, he has stated that he did not heard for what and on what topic there was verbal altercation. He has further stated that he saw all the five accused persons assaulting. He has further stated that there was 5 – 6 persons of the village and Hari Prasad was also and he was also gave a Bhala blow and the blood has oozed out from the injury. He 9 has further stated that the accused persons have also brick batted on them. He has further stated that the accused persons were brick batting by getting over the Barari and had denied the suggestion about the chest of Ramadhar and breaking his door and then Dev Muni Chamar, Krishnandan Chamar, Ramadhar, Swarswatia, Ram Rati, Phuljharo were assaulted. Further he has admitted that the Dev Muni has also lodged a case. 14. P.W. 3 that stated that he heard Halla and reached there and saw Radha and Ramroop assault and is unconscious and Hari Prasad has got injury by Bhala and Radha Kumar and Ram Roop has got injury. He has stated that the wife of Hari Prasad and Bhadai stated that Dev Muni, Ramadhar, Krishnandan, Dharicchan and Hari Nandan have assaulted Ram Roop and Radha Kumar by Lathi. Her attention has been drawn about her earlier statement about having seen the occurrence. 15. P.W. 5 is Baleshbari Devi, has stated that she was washing the utensil and on the cry of Radha Kumar he went to the Darbhanga of Dev Muni and saw the accused persons Dev Muni and Ramadhar armed with Bhala and rest with Danda and they were assaulting Ram Rup and Radha Kumar. Further states that when she reached there she was Ram Roop and Radha having been fallen on ground and the accused persons after assault flew away. Further, this witness in his cross-examination has stated that Ram Roop is his nephew and her father in law has taken Ram Roop, Arrah hospital and she was fired set in the house of Dev Muni and they themselves broken their door and set on fire. She has further stated that there was brick batting. Her attention has also been drawn with 10 regard to her earlier statement before police and she has stated that she has stated before the police that occurrence took place at 7 A.M. and she was cleaning the utensil and heard the cry of Radha Kumar and went there. 16. P. W. 6 Kushmi Devi, has stated that on Halla and cry of the Radha reached there found the accused persons there Dev Muni and Ramadhar armed with Bhala and rest were armed with Danda and they were assaulting Radha and Ramroop and Hari Prasad was assaulted by Bhala by Ramadhar. Further she has further developed the story and has stated that when she reached there then saw the accused who has taken Bhala and is assaulting by the Danda portion of the Bhala and the Ram Roop died out of the assault. In his cross examination she has stated that Badhai Chamar is her husband and the accused persons have filed a counter case in which her husband is an accused. She has further stated that when she reached Dev Muni at the Darwaja then saw several persons there and all the five accused persons were assaulting and except the five accused persons. There was three witness Rabhhas, Lalan and Ballam. Further she has stated that she did not say anything 20 to 25 persons who came just after the occurrence. Her attention has been drawn with regard to her evidence and has stated that she has stated before the police about the occurrence at 7:00 and she was at his Darbaja and on cry of Radha went there and saw accused persons assaulting Radha and Ramroop. 17. P. W. 8 is Hari Prasad, the informant has stated that when he reached at the ways of the house then saw Radha and Ramroop coming from the east and when they reached at the Darwaja of Dev Muni Chamar then Radha Kumar and 11 Ramroop made a cry and then he reached there then saw the accused persons there at the Darwaja of Devmuni. Ramadhar and Devmuni armed with Bhala and others were armed with Lathi and they assaulted Radha Kumar by Bhala having Lathi and rest accused persons assaulted the accused by Lathi and when Ramrup came to save then he was also assaulted by the accused persons from the Lathi portion of the Bhala and on assault Radha Kumar fell down and Ramroop also fell down and got unconscious and when he went to say then he was also assaulted by Ramadhar by Bhala on his back. He has further stated that when there was assault, at that time Baleshwari Devi, Kushma Devi and her father Ramas, Lalan Prasad, Ballam Chamar came and the accused persons flee away then the injured were taken on cot to the police station. The injured Radha Kumar and Ramroop got unconscious. Daroga Jee send Ramroop and Radha to hospital. In Sadar Hospital Ramroop died. His statement could not be taken. He has further stated that the reason of the occurrence was that Bindeshwari Chamar had taken the Bandobasti of the ditch and there was quarrel for fish in the said ditch and the accused persons protested fishing in the ditch by Bidheshi and since Radha went to block and Bidheshi also went to the block and so the accused persons assaulted him under a belief that Radha is helping Bidheshi. However, in his cross examination he has sated that with regard to the same occurrence at the same time Dev Muni Chamar has also filed a case against the informant and his family members and it has been alleged that the false case has been filed with false allegation that when Ramadhar Chamar was returning then the accused persons asked him to depose on their behalf and then when 12 Ramadhar refused then Ganesh awarded on which Radha assaulted with Lathi and Ballam and Ganesh also assaulted with Lathi and then Ramadhar entry into his house and then all the accused person broke open his door set on fire destroy his roof and house by mischief and assaulted Ramadhar and others family members. He has stated that he did not see any injury on the persons of the accused persons and has denied the suggestion. 18. P.W. 9 is the I.O. and he has stated that the P.O. is the Galli in front of the house of Mushafir Chamar and Shital Chamar and adjoining North there is house of three accused persons and to the west there is Galli and house of Sardar Chamar. He has stated that he has seized the blood stained cloth, issued injury report and sent the injured to hospital. He has further stated that he recorded the statement of the injured and informant but could not take the statement of Ramroop. He has proved the ferdbeyan. He has further stated that with regard to the occurrence of the same day a counter case was also lodged / filed on the statement of Dev Muni Chamar and has proved the FIR as Ext. A and in the charge sheet submitted by him in that case in which Ganesh Chamar, Swaroop Chamar, Radha Chamar, Bhadai Chamar and Hari Chamar and others accused and both the cases were inspected together and the ditch for which there was quarrel was Bandobast in the name of Bidheshi. He has further stated that Ballam Chamar has not stated before him about the assault by Radha and has stated that Ballam Chamar has not named Radha Chamar. He has further stated that the Ballam Chamar has stated that Hari Prasad was assaulted by Bhala. He has further stated that Lallan Ram has not stated that he was at his 13 house on the date of occurrence. He has further stated that Balashbari Devi has not stated that she washing the utensil that she has not stated that Dev Muni and Ramadhar armed with Bhala and rest were armed with Lathi and she has stated that Ballam and Lallan, prior to the occurrence, were present at P.O and hence contradiction taken regarding evidence of P.Ws. 2, 3, 5 and 6. However, there is some contradiction in their evidence but may not be very much material. Though P.W. 2 claims to be eyewitness but the I.O. stated that he has not stated the name of Radha but his evidence regarding the assault on Radha and he has not stated the name of Radha or assault on Hari Prasad by Bhala in para 34, 35 and 36 the evidence of I.O. 19. The prosecution case is that Radha Kumar Ram was assaulted by Ramadhar on his head. However, Radha has been said to have been armed with Bhala but allegation is of assault by Lathi by Ramadhar. The witnesses have stated specifically that Radha Kumar was assaulted with Lathi and when Ramroop came to his rescue then he was also assaulted with Lathi by accused person and further Ramadhar Chamar assaulted the informant by Bhala and thereafter there is indiscriminate assaulted by Lathi. 20. P. Ws. 1 and 2 have stated that each accused person assaulted Radha Kumar about five to six Lathi blows each on his person and further Ramroop was also assaulted two to three Lathi blows by each of the accused persons. In an indiscriminate assault by Lathi, however, the injury report on the person of Radha Kumar shows one lacerated wound 3”x1/2” x bone deep on the posterior part of the left side of scalp, abrasion with swelling 1”x1/6” on the medial side 14 of the right wrist (3) contusion 3”x 2” on the back of right arm tenderness of the swelling 2”/1/2” x 2” on the back of the left thigh and all the injuries are simple in nature cause by hard and blunt substance. However, the injury on the person of Ramroop shows tenderness with swelling 3” x 2” interior part of scalp, bruise 1” in diameter on both side of chest, both the injuries were grievous in nature. The injuries were found on the person of Hari Prasad is by arson ½” x 1/6” on the back of the right side of the chest. However, the injuries are shown to be simple caused by pointed weapon such as Bhala. 21. However, in the FIR there is allegation of assault by Ramadhar on the person of Radha Kumar Ram and there is allegation of assault by Ramadhar by Bhala on the back. However, the two assault attributed to Ramadhar but no injury of Bhala has been found on Radha Kumar and all the injuries