1 GOVT. APPEAL (DB) No.68 OF 1988 - - - - Against the judgment of acquittal dated 20.8.1988 passed in Sessions Trial No. 91 of 1984/165 of 1986 by 6th Additional Sessions Judge, Nalanda at Biharsharif. - - - - - State of Bihar … … … Appellant Versus 1. Narayan Gope, son of Lakshman Gope 2. Manikchand Gope, son of Lakshman Gope 3. Shibdhari Gope, son of Hukum Gope 4. Brahamdeo Gope, son of Ruplal Gope 5. Bijendra Gope, son of Ruplal Gope 6. Amerika Gope, son of Nandlal Gope 7. Surendra Gope, son of Gyanchand Gope 8. Jadu Gope, son of Hukum Gope 9. Ganauri Gope, son of Ruplal Gope All of village Jamunapur P.S. Noorsarai, District Nalanda. … … Respondents With CR. REV. No.924 of 1988 Arjun Prasad, son of Bihari Singh, resident of Village Jamunapur Bigha, P.S. Noorsarai, District Nalanda … … … Petitioner Versus 1. Narayan Gope, son of Lakshman Gope 2. Manikchand Gope, son of Lakshman Gope 3. Shibdhari Gope, son of Bhukhan Gope 4. Brahamdeo Gope, son of Ruplal Gope 5. Bijendra Gope, son of Ruplal Gope 6. America Gope, son of Nandlal Gope 7. Surendra Gope, son of Gyanchand Gope 8. Jadu Gope, son of Hukum Gope 9. Ganauri Gope, son of Ruplal Gope All of village Jamunapura P.S. Noorsarai, District Nalanda. … … Opp. Parties For the Appellant State: Sushri Shashi Bala Verma, A.P.P. ( in G.Appeal No. 68/88) For the respondents: Shri Kanhaiya Prasad Singh,Sr. Adv. Shri Anjani Kumar, Advocate Shri Chandra Mohan Jha, Advocate For the petitioner: None ( in Cr.Rev.924/88) P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA - - - - 2 Dharnidhar Jha,J.- The Government Appeal and the Criminal Revision Petition challenge the acquittal of the respondents in Sessions Trial No.91 of 1984/165 of 1986 by the judgment and order of acquittal dated 20.8.1988 passed by the learned Additional Sessions Judge,6th Court, Nalanda at Biharsharif. The two have been heard together and shall stand disposed of by the present common judgment. 2. The respondents facing trial in the above noted case were charged under Section 302/34 of the Penal Code. Besides the above general charge, there were some specific individual charges framed against some of the respondents. Respondents, Narayan Gope, Bijendra Gope and America Gope were charged together under Section 27 of the Arms Act, whereas, respondent Manikchand Gope was charged distinctly under Section 302/114 of the Penal Code. Respondent Shibdhari Gope was charged under Sections 302,120B as also under Section 119 of the Penal Code. 3. The case related to an occurrence dated 27.9.1983 when, as per the allegation, the informant Arjun Prasad, who is the petitioner in the Criminal Revision Petition, claimed going with his uncle Chhotan Prasad alias Chhotan Barahil to Noorsarai Block by bicycle. When the informant and the deceased had reached a particular place on a road, it was alleged, the 3 informant found Saryug Prasad, Ramswarup Prasad, Basudeo Prasad and Churaman Prasad following the informant and the deceased also by bicycles. After having paddled up to 200-250 yards from Rani Pokhar, a pond, the deceased stopped to urinate while the informant continued going ahead. It is alleged that all on a sudden 8-10 persons emerged from the brick kiln situated north of the road armed variously. They caught hold of the deceased. Seeing this, the informant turned back his bicycle to go near his uncle and found that the deceased was grappling with the accused persons. In the grapple and scuffle which was going on, respondent Manikchand Gope is said to have ordered as to why they were waiting, the deceased be quickly shot dead, upon which the respondents Narayan Gope, Bijendra Gope and America Gope, who were armed with rifles and country made pistol, fired shots at the deceased hitting him respectively at back, left shoulder and on other parts not seen by the informant. Other villagers, by that time, had also reached there. It is further alleged that respondent Manikchand Gope again said that the deceased had not died and, as such, he be beheaded upon which respondent Surendra Yadav and Jadu Yadav caught the feet of the deceased while two unknown persons caught his hairs and respondent Ganauri Gope gave blows with fasuli on the neck of the deceased but the same 4 was not cut. Thereafter, respondent Brahamdeo Gope cut the neck of the deceased with Fasuli from his right side. By that time, the people of the informant’s village and others from village Meyar came there. The informant and others raised a hulla that his uncle had been murdered upon which P.Ws. were attracted. P.Ws. who were working in the nearby fields also came there whereupon the accused persons fled away towards south. The informant came on the road and found his uncle lying dead and that the neck of the deceased was completely cut except that it was attached only by the string of skin and further there were bleeding gun shot injuries on his neck and left shoulder. Fingers of both his hands had also been cut. 4. The reason for killing the deceased, as a matter of motive for the occurrence as stated by the informant, was old continuing enmity and pending cases in courts. 5. On the basis of Ext.3, the fradbeyan of P.W. 8, Arjun Prasad, the F.I.R. of the case, Ext.8 was drawn up by P.W. 12, S.I. Balmiki Prasad who was working as Officer-in-charge of Noorsarai Police Station. In fact, P.W.12 had reached the place of occurrence after picking up some information about the incident after having made an entry in the station diary to that effect and recorded the fardbeyan of 5 P.W.9. Thereafter, he sent the fardbeyan to the Police Station for registering a case and it was how the F.I.R. was drawn up. 6. P.W. 12, the Investigating Officer of the case, stated that he himself took up the investigation and prepared the inquest report by carbon process, a copy of which has been marked Ext.4 in the case. P.W. 12, thereafter, sent the dead body for post-mortem examination. 7. He also inspected the place of occurrence which was a pitch road running between Noorsarai and Bihar and it was in between villages Jamunapur Bigha and Village Bheria. The place where the occurrence had taken place was known as Kapania Khanda(fields) and there was a blackberry tree standing there. The road was of 20 feet in width, 9 feet being pitched and the remaining part of it being earthen. It was running from East to west and there was a bridge about 20-25 feet east to the place of occurrence over which some identification marks were written. There was canal on both the sides of the road and the same was filled with water. A brick kiln was situated about 150 feet away from the place of occurrence towards north-west which was a lonely place surrounded by fields on both sides. 8. The dead body was found by P.W. 12 on the northern flank of the road on its earthen part just 6 under the blackberry tree. Opposite the place of occurrence was the paddy field. There was copious blood found there. Empties of fired cartridges of 3.15 bore, three in number, were also found and the same were seized along with the blood stained earth. A wet gamchi of white colour with green borders, a bicycle along with a shoe were also seized from the place of occurrence. The seizure memo has been marked Ext.5 in the case. The seized bicycle was found bearing the name of Vijay Kumar of Yamunapur. 9. The Investigating Officer recorded the statements of various witnesses and after having received the post-mortem examination report sent up the respondents for trial. 10. The defence of the respondents was that Chhotan Prasad alias Chhotan Barahil was not killed by the respondents, rather, he being a bad character was killed by his enemies either in the night or in the wee hours on 27.9.1983 and on account of long standing enmity and pending cases in courts between the deceased and the respondents, the respondents were roped in with false charges. 11. In support of the charges, the prosecution examined as many as 12 witnesses, out of whom P.W. 4 Ramswarup Prasad, P.W. 6 Amrit Raut and P.W.10 Bhola Mahto were tendered for cross-examination. P.W. 1 7 Dr.A.K.Kashyap had held post-mortem examination and prepared the report Ext.1 in that behalf. Out of the remaining eight witnesses, P.Ws. 2,3,5,,7 and 8 have given eye witness account to the occurrence. P.W. 7 was tendered for cross-examination. P.W. 9 was not the eye witness to the occurrence and had picked up the information about the occurrence and he has not named any one as to who had really committed the murder of the deceased. P.W. 11 has not stated any names as regards the specific overt acts which were stated by him but he claimed identifying the respondents on account of having reached the place of occurrence. 12. The defence did not examine any witness nor produce any document in support of its plea. 13. The learned trial Judge while passing the order of acquittal appears taking into account the relatedness and interestedness of the witnesses of the prosecution and further appears being influenced by the fact that the Doctor had found rigor mortise present all over the dead body at 4.30 P.M. while the occurrence had taken place at 10 A.M. which was not possible because it would not have set in by that time and, as such, accepted the probability that the occurrence might have occurred sometimes at the wee hours of the day of occurrence. The learned Judge also considered the manner of occurrence and use of weapons 8 as suggested by the evidence of the Doctor, P.W.1 and was influenced by the fact that the manner of occurrence was not supported by the evidence of the Doctor, P.W.1 as he found more number of injuries on the dead body than the two on neck which was the initial allegation in the F.I.R. and which could have been caused by weapons other than fasuli or hansuli and, as such, found that it created doubt in the manner of assault and the credibility of the witnesses. The learned Judge further mentioned the improvement made by the prosecution after it was found by it that there were many injuries on the dead body and the witnesses were made to make statement that more blows than two with fasuli were given on the deceased. The evidence of the Investigating Officer was also considered, as may appear from paragraph 17 of the judgment and order of acquittal recorded by the learned trial Judge. 14. We have heard Sushri Shashi Bala Verma, learned counsel for the State in support of the appeal and no one appeared to support the Criminal Revision Petition. However, the Government appeal and the revision petition were resisted by Shri Kanhaiya Prasad Singh, learned Senior counsel appearing on behalf of the respondents. Sushri Verma took us through the evidence of the witnesses and submitted that the manner of occurrence and details thereof has been stated by 9 P.Ws. 2,3,5,7 and 8 and that gets general support from the evidence of P.W.1. It was also contended that the evidence of P.W.12, the Investigating Officer, indicates that the place of occurrence was a road as stated by the informant and he found copious blood and empties of 3.15 bore cartridges there. Thus, the charges were proved to the hilt. 15. Shri Kanhaiya Prasad Singh, learned Senior counsel appearing for the respondents submitted that it was an acquittal order passed 22 years back and there were sound reasons assigned by the learned trial Judge. As such, there was no necessity for this Court to upset the order of acquittal which has remained intact for such a long period. We were taken through some parts of the judgment, as recorded in some of the paragraphs of it and Shri Singh attempted to convince us that the reasons could not be said to be perverse, rather, those could also be a view which could reasonably be taken on evidence available on record and, as such, this Court should not upset the order of acquittal. Shri Singh also emphasized the long existing enmity between the parties some of which were also pending in courts through certain litigations, besides, finding of the Doctor that injuries found on neck of the deceased could be caused not by fasuli but a weapon like garansa and submitted that the whole prosecution story was 10 shrouded in mystery. It was contended that, in fact, the deceased had died earlier than the time alleged and no one had seen as to how the deceased had been killed but the respondents were implicated falsely due to enmity. Shri Singh submitted that as per evidence, shots were fired from very close range, but the Doctor stated that shots could have been fired from a distance of about 30 feet. On these, submissions Shri Singh sought the order of acquittal to be sustained. 16. Because the findings of the learned trial court are being challenged through the present appeal, we were taken through the evidence of the witnesses so as to considering the findings in the light of the submissions which were advanced by both the sides before us. On consideration of the findings what is found is that there is no independent witness who could have deposed in support of the charges in the trial court. P.W 2 Churaman Prasad has admitted in paragraph 6 of his evidence that he was accused in a criminal case of theft, etc. in which the deceased had also been an accused. There were suggestions given to him in the same paragraph that he and the deceased had been accused in many cases. It may be found from the deposition of P.W.2 Churaman Prasad that he was a resident of village Meyar which was different from that of the village of the deceased, i.e., Jamunapur. P.W. 2 11 was cross-examined as to how he could reach the road which was going from village Bheria to Noorsarai and he has stated that it was connected to village Meyar through a Kuchi road. But, P.W.8, namely, Arjun Prasad in paragraph 28 of his evidence stated that there were two different roads for going to Noorsarai from villages Meyar and Jamunapur and the two roads were away from each other by 1 K.M. Thus, it could be found from the evidence of P.W.8 that the claim of P.W. 2 that he was also going to Noorsarai by the same road on which the incident had occurred appears a bit difficult to accept. This appears more compounded when we find that P.W. 2 who was admittedly a resident of village Meyar which was quite a different village. The witness and the deceased were members of the same group, as may appear from the evidence of different witnesses like P.W.3 in paragraphs 8,9 and 10. P.W. 4, Ramswarup Prasad was tendered for cross-examined by the defence and stated in paragraph 2 that there was a series of litigations pending between the parties since long. The evidence of enmity between the parties appears coming also from the informant, P.W.8, Arjun Prasad, as may appear from Paragraphs,11,19,20,21,22,23 and 24 of his evidence. Not only that, the evidence of P.W.8, the informant, in paragraphs 22,23 and 24 may also indicate that the deceased was such a character that he could 12 throw out any person from his rightful possession over any land or could be creating dispute over lawfully entitled persons to different lands. Not only that, he was accused in various dacoity cases and cases of more serious nature. There were two factions in the village Bheria which was in between two castes, namely, Gwala and Koiri and the animosity was of such height that there was a deputation of police force with a Magistrate in the village on the orders of the concerned District Magistrate. It may also be found from the evidence of the above named witness that in spite of the deputation of the Magistrate and a contingent of police force respondent Manikchand Gope had been fired at in an attempt to be killed for which the Magistrate had lodged a criminal case and some persons had been convicted in that case. This is the background in which the court had to appreciate the evidence. It is always dangerous to accept the evidence of such witnesses and to record a conviction. The court has to approach the evidence of such highly interested witnesses with care and caution. When the witnesses who came to depose appear deeply interested on account of deep animosity as also of such senses of conceit of driving away persons of a particular caste then all care and caution had to be applied in judging the veracity of such witnesses. 13 17. From the F.I.R. and the situation of the place of occurrence and the evidence of P.W. 11 and others, it could be found that during the day time of occurrence there were a lot of persons working around in other fields. The F.I.R. itself shows that many persons were present there or persons from nearby villages rushed there. But no independent persons came to support. Only related and interested persons deposed in court. 18. It is true that the witnesses have given consistent account of the occurrence. They have given blow by blow account of the incident. The witnesses have also stated in their evidence that respondent Ganauri Gope attempted to cut the neck of the deceased and the same not being cut, Brahmdeo Gope accomplished the act. Two of the them, namely, respondents Surendra Gope and Jadu Gope had caught the feet of the deceased while two unknown had caught the head by the hairs of the deceased. The evidence of giving fasuli blows on the neck of the deceased was confined up to P.Ws. 2 and 3 to two accused, but the subsequent witnesses, like, P.Ws. 5 and 6 and other while giving eye witness account to the occurrence with the informant started dropping the charge against respondent Brahamdeo Gope of cutting the neck finally of the deceased when it could not be cut completely by respondent Ganauri Gope. 14 Thus, what could be expected was that there could be three firearm injuries and two incised or other such wounds which could be caused by a sharp cutting weapon, like fasuli. The learned trial Judge on reading the evidence of the Doctor P.W.1, who had held post-mortem examination on the dead body of the deceased Chhotan Prasad alias Chhotana Barahil on 27.9.1983, i.e., on the very day of the occurrence at 4.10 P.M., i.e., after about six hours of the occurrence found that rigor mortise was present all over the four limbs besides the following injuries: (i) Incised wound 5”X2”X1” cutting right carotid artery extending from 1 ½” left side from mid line of neck to 3” below auricle. (ii) Incised wound 4”X1”Xmuscle deep from2” below right external ear to ½” below occipital protuberances. (iii) Incised wound 1 ½”X1” X ¾” left side of neck (iv) Incised wound 2”X ½”Xscalp deep on left occipital region 3” above left external ear. (v) Transversed incised would 4”X1” X bone deep fracturing both medial side of parietal on middle of head. (vi) ¼” diameter lacerated X abdomen deep 1” above left lateral to hamblicus. Margin of wound charred( wound of entry). (vii) 1” X ¾”X abdomen deep on left side back 4” above left iliac crest( wound of exit) (viii) 1/3” in diameter lacerated wound X chest deep 2” above backwards to left front axilla- margin charred. (ix) Incised wound 2”X1/2”Xmuscle deep on back of left thumb. (x) Incised wound 1”X ¼” X muscle deep on front of right ring finger. (xi) Incised wound ½” X 1/8” on front of right middle finger on middle phalanx. 15 19. As may appear from the description of the above injuries there were eight incised wounds on different parts of the body right from the neck of the deceased up to the right phalanx of the middle finger. Not only that, both the hands and fingers were found bearing incised wounds as may appear from the injuries no. 9,10 and 11. Those injuries indicate as if the deceased was attempting to defend himself before he was finally killed while he was being assaulted by his assailants, specially, by those who were hurling sharp cutting weapon which might cause such injuries. Thus what appears to me is that there could be every possibility as appears from the evidence of the Doctor P.W.1 that before the deceased was brought down to the ground on account of gun shots he was probably given fasuli blow by his assailants and he attempted to defend himself and, as such, injuries on the fingers of his two hands were caused. If this was so, as appears probably appearing from the medical evidence then the sequence of blows as appears from the narration of the occurrence by the witnesses as also the informant, P.W. 8, in his fardbeyan and in his evidence appears completely changed. The three firearm injuries which were found by the Doctor, P.W.1 being injury nos. 6,7, and 8- injury nos. 6 and 7 being wounds of entry- were caused by a single shot. What may appear from injury no. 6 was that that particular injury with its exit wound, was caused by 16 firearm from front of the deceased. The story told by the witnesses is that the deceased was firstly hit in his back. This finding of the Doctor also contradicts the oral testimony of the witnesses. Not only that, injury no. 8 also appears fired if not directly from the front of the deceased, surely from some angle where the assailant could be standing in front of the deceased. This appears the possibility because the respondents must have taken precaution that none of their men could come within the coverage of the shots which could be fired by them. What further appears from the reading of the evidence of P.W.1 is that there were incised wounds over other parts of the body of the deceased other than his neck. The prosecution witnesses tell us that the respondents Ganauri and Brahmdeo Gope were two persons who had been hurling fasuli to cut the neck of the deceased. However, the Doctor who held the post-mortem examination, besides finding two injuries, i.e., injury nos. 1 and 3 also found serious injuries on the head of the deceased as appears described by him at injury serials no. 2,4, and 5. On consideration of those injuries at serials no. 2,4, and 5 what appears to me is that those were more not serious than injury no.1 and could equally be dangerous to life. The witnesses do not say as to who had dealt blows causing those particular injuries. Their case is very simple that after firing 17 three gun shots, two of the respondents Ganauri Gope and Brahamdeo Gope were doing the acts of cutting the neck. If it was like that then how those injuries, which I have just discussed which found by the Doctor either on the head of the deceased or on his neck, were caused remained to be explained by the prosecution witnesses. 20. Not only the above, what further appears from the evidence of the Doctor is that he found rigor mortise present on all the four limbs indicating thereby that rigor mortise had set in all over the body by 4.30 P.M. or prior to that. The time of occurrence was 10 A.M. on 27.9.1983. The post mortem examination had been performed at 4.30 P.M., i.e., just after about six hours of the death of the deceased. It was the month of September and