Criminal Appeal (SJ) No.7 of 1994 Against the judgment of conviction and order of sentence dated 7.1.1994 passed by 3rd Additional Sessions Judge, Nawadah in Sessions Trial No.274 of 1984/90 of 1986 1. BALESHWAR SINGH, 2. GANAURI SINGH, 3. RAM KRISHNA SINGH ALIAS KRISHNA SINGH, 4. ARJUN SINGH & 5. RAM SWARATH SINGH-----------------Appellants Versus STATE OF BIHAR--------------------Respondent ------ For the Appellants:- Sarvasri Ramakant Sharma, sr.counsel L.K.Shasrma, Advocate Arun Kr. Pandey, Advocate & Narendra Kr. Singh, Advocate For the State :- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. Nineteen accused persons were charged together under Sections 307 and 149 IPC by the learned 3rd Additional Sessions Judge, Nawadah out of whom Chandeshwar Singh and Bankey Singh died during trial leaving 17 accused persons on trial. Some accused persons were distinctly charged for committing offences, like, 27 Arms Act and 380 of the IPC. On trial 12 accused persons were acquitted by the learned 3rd Additional Sessions Judge, Nawada by judgement 2 dated 7.1.1994 passed in Sessions Trial No.274 of 1984/90 of 1986. However, five appellants before this Court were found guilty of committing offences under Sections 307 and 149 IPC and 27 of the Arms Act and each of the five appellants was directed to suffer rigorous imprisonment for five years besides to pay fine of Rs.5,000/- in default of which each of them had to suffer rigorous imprisonment for six months. Appellants Ganauri Singh Ram Krishna Singh @ Krishna Singh, Arjun Singh and Ram Swarath Singh were held guilty also of committing offence under Section 27 of the Arms Act and each of the four appellants was directed to suffer rigorous imprisonment for three years on that count. The sentences inflicted upon appellants no.2 to 5 were directed to run concurrently. The five appellants are before this court to challenge the above noted judgment of conviction and order of sentence passed by the learned 3rd Additional Sessions Judge, Nawada in the above noted case. 2. The occurrence relates to 23.6.1980 and is said to have occurred at 6.30 A.M when as per the allegations P.W.8 Arjun Prasad Singh, the informant was washing his hands and mouth 3 after attending to the call of nature on the boaring of P.W.4 Ram Charitra Prasad Singh. P.W.4 Ram Charitra Prasad Singh was also present there. At that time appellant Baleshwar Singh came there and requested P.W.4 Ram Charitra Prasad Singh to allow him to draw water from his boaring which was refused by P.W.4 Ram Charitar Prasad Singh by stating that he himself required water on that particular day. An altercation took place and it is alleged that appellant Baleshwar Singh threatened P.W.4 Ram Charitra Prasad Singh that he would not allow water to pass through his field for irrigating the field of P.W.4 and walked out from there in rage stating that he will teach P.W.4 a lesson at his house. It is alleged that appellant Baleshwar Singh having reached his house, called his men. P.W.8 saw the assembly at the house of appellant Baleshwar Singh, and requested P.W.4 Ram Charitra Prasad Singh to go to his house as appellant Baleshwar Singh had assembled his men which was clearly visible from the side of the tube-well. P.W.4 Ram Charitra Prasad Singh and P.W.8 Arjun Prasad Singh started together and when they had reached near the house of P.W.4 Ram Charitra Prasad Singh, it is alleged, that 4 hullah was heard coming from the side of the house of P.W.4 Ram Charitra Prasad Singh. It was further found by P.W.8 that appellants Ganauri Singh, Krishna Singh, Arjun Singh and Ram Swarath Singh all of village-Fulma were having guns in their hands and were standing outside the Darwaja of P.W.4 Ram Charitra Prasad Singh. At that particular time it was striking about 6.30 A.M. At the same time P.W.4 Ram Charitra Prasad Singh, the informant Arjun Prasad Singh(P.W.8), Arun Kumar(P.W.3) and Shyamlee Singh(P.W.7) also reached there and it is stated that P.W.4 protested as to why they were indulging in such highhandedness. Hearing this, appellant Ganauri Singh is said to have ordered to kill and is alleged himself to have fired at P.W.4 Ram Charitra Prasad Singh. Appellant Ramkrishna Singh allegedly fired at P.W.3 Arun Kumar where as appellant Arjun Singh fired at P.W.7 Shyamlee Singh. Appellant Ram Swarath Singh is said to have fired at P.W.8, the informant. 3. It is alleged that on the hulla which was generated by the mob of the accused persons as also the injured persons Harihar Singh(P.W.11), Fagu Singh(not examined), 5 Muneshwar Singh(not examined), Shyamlee Singh(P.W.7) and others came there and saw the four injured and the accused persons armed with guns. 4. Thereafter, some of the accused persons, like, Chandeshwar Singh, appellants Mathura Singh, Kailash Singh, Chandrika Pandey, Bankey Singh and Sita Ram Singh who were armed with safe, garasa, bhala and lathi, entered inside the house of Ram Charitra Prasad Singh and started plundering it. Three accused persons, namely, Surendra Singh, Brij Nandan Singh and Nagina Singh are said to have entered inside one particular room as they were seen coming out of it, whereas others, like, Naresh Singh, Anugrah Singh, Siya Ram Singh and Chandrika Pandey were also seen coming out of different rooms of the house after having picked up different utensils and belongings. It is specifically alleged against accused Chandrika Pandey that he picked up the bed-mattress, pillow, Chadar, Kurta, etc from the Darwaja of P.W.4. Fardbeyan was recorded by P.W.10 Sureshwari Pandey and he himself took up the investigation. He went to inspect the place of 6 occurrence, i.e., the house of P.W.4 Ram Charitra Prasad Singh but as per his evidence he was not allowed to enter inside it as the doors were not opened by his family members. He did not find any trampling marks, any foot marks, any marks of violence, like pillets hitting the walls of the house or the empties of the pillets there. It was specifically stated by P.W.10 that it was doubtful whether an occurrence had occurred at the house of P.W.4. 5. It appears that only four or five days after the occurrence the Superintendent of Police, Nawadah ordered the investigation to be handed over by P.W.10 to P.W.12 S.I. Kumar Yogendra Prasad Singh who also visited the place of occurrence and found that the house of Begraj Singh, who happens to be the father of Ram Charitra Prasad Singh, was not bearing any marks which could be indicative of commission of any offence there so much so that no mark of violence could be found anywhere by him. P.W.12 stated that evidence by other public witnesses pointed out that village-Fulma is located on either sides of the pitch road which runs from Patna to Ranchi and in the direction of east to west and about 200 yards away from the house of 7 Begraj Singh, the road was located and that was the place of occurrence as was pointed out to him by many persons. P.W.12 has stated in paragraph-5 that the occurrence had in fact taken place at the pitch road and in paragraph-6 he has categorically stated that the house of Begraj Singh, i.e., the father of P.W.4 Ram Charitra Prasad Singh was not the place of occurrence. It is stated further by P.W.12 in the same paragraph that he went to inspect the pump house of P.W.4 which was located at some distance from the house of P.W.4 and found that the motor which was installed there with the boring for irrigating the field was out of order and that there was no signs of any field having been irrigated in the near past. Besides, the fields located around the boring were planted with paddy which was of about 6” in height. 6. P.W.10 stated that in spite of having searched for the witnesses no one came forward to him and some of them stated that unless P.W.4 Ram Charitra Prasad Singh was back from Patna, they were not willing to make any statement to the police. As regards P.W.12 he has given different dates on which the four injured persons made statement to him and if one 8 peruses the evidence of P.W.12 on that particular aspect of the case then one could find that the witnesses were giving their statements after more than three months of the incident and one, like P.W.4, even after six months of the occurrence P.W.12 received the injury reports and finding the case true, sent the accused persons to trial which ultimately ended in the judgment of conviction and order of sentence which is being scrutinized in the present appeal. 7. The defence of the appellant was that in fact there had been an occurrence altogether in a different manner when Baleshwar Singh was taking one Dhanraj Singh for getting some land transferred to him through a registered deed of sale by a vehicle. However, the witnesses and others of the case intercepted the vehicle, caught the said Dhanraj Singh and others who were the family members of the appellant and brought them down from the vehicle so as to taking them away. Knowing about it, accused Ganauri Singh reached there with his son and fired shots in defence of his family members. 8. During the course of the trial a 9 total number of 12 witnesses were examined, out of whom P.Ws.1 and 2 were declared hostile. P.W.3 Arun Kumar who was one of the injured persons on account of being fired at by appellant Ram Krishna Singh stated that he did not identify any one who had fired at him or other injured persons. P.W.4 Ram Charitra Prasad Singh is the injured and the proprietor of the boaring from which appellant Baleshwar Singh was to draw water for irrigation. P.W.5 Ram Sharan Singh was also a witness who claimed his presence at the place of occurrence and on account of being fired at by the accused persons he is said to have got injured. P.W.6 Shyam Kishore Singh is not named in the FIR as witness and still he has supported the charges as an eye witness, like, P.W.7 Shyamlee Singh whose name figures in the FIR. P.W.8 Arjun Prasad Singh is the informant who was also allegedly injured in the occurrence. P.W.9 Dr. R.P.Sah has examined the four injureds and had issued injury certificates and his opinions are Exts-2 to 2/5. P.W.11 Harihar Singh though named in the FIR was tendered for cross-examination. P.W.13 Baleshwar Pd. Yadav is a formal witness who has proved the affidavits filed by some witnesses, like, Fagu 10 Singh, etc which affidavits have been marked as Exts-5 to 5/1. This witness has also brought on record the protest petition filed by the P.W.8 Arjun Pd. Singh and that has been marked Ext-6 on behalf of the prosecution. The fardbeyan has been marked as Ext-1 and the FIR of the case as Ext-3. 9. The defence also examined a couple of witnesses and produced certain documents in respect of previous litigations between the parties and those are very much available on the record and some of the facts have been admitted by the prosecution witnesses also. 10. Sri Ramakant Sharma, learned senior counsel appearing for the appellants has submitted that the place of occurrence which was said to be the Darwaja of P.W.4 was not found the place where the occurrence had taken place and in fact P.W.12 categorically stated that the occurrence had indeed taken place at the pitch road. P.W.6 Shyam Kishore Singh was cross- examined and his attention was drawn to his previous statement made before the police and that version which appears in paragraph-7 of P.W.6 indicates probability of the defence version that the prosecution party had attempted 11 to bring down the appellant Baleshwar Singh and Dhanraj Singh and others from a jeep so as to taking them away and Ganuari Singh fired in their defence. It was contended that almost all witnesses have admitted that there was a counter version which was lodged by Anugrah Singh an acquitted accused of the case which was in respect of an occurrence of the same day in which all the witnesses were made accused with some or the other allegations. This also appears not denied that there were a couple of persons on the side of the appellants who were also injured. It was contended that the genesis of the occurrence that appellant Baleshwar Singh went on to the boaring of P.W.4 for taking water so as to irrigating the field pales into doubt on account of the evidence of P.W.12, the I.O. of the case in paragraph-6, when he stated that he found the motor installed there not in working condition and that there was no signs of irrigating any of the surrounding fields in recent times. It is true, it was contended, that P.W.9 Dr. R.P.Sah had found injuries caused by fire arm on P.Ws.3, 4, 5 and 8, but it is doubtful whether the injuries were inflicted intentionally or those were caused in self 12 defence. 11. Replying to the above submission Sri Ajay Mishra, learned counsel appearing for the State in the present appeal has submitted that the witnesses were credit worthy inasmuch as they were injured and as such their evidence on the manner of receiving injury cannot be doubted. It was contended that the doctor found as many as five injuries on the person of P.W.4 Ram Charitra Prasad Singh, one each on the person of P.W.8 Arjun Prasad Singh and P.W.5 Ram Saran Singh as also six pellet injuries on the person of P.W.3 Arun Kumar. It might be a case that there was a counter version but the charges appear established by the evidence. 12. Witnesses who have been examined are injured. As per the principles of criminal jurisprudence their presence at the place of occurrence could never be doubted. But when there are two versions from the two sides about the same incident, then the evidence of each and every witness has to be seen taking into account the totality of the circumstances appearing from the consideration of both the prosecution and defence versions and evidence. There is a definite case of the 13 prosecution that appellant Baleshwar Singh came to the boaring of P.W.4 Ram Charitra Prasad Singh when it was being run, to beg water for irrigating his field and that was refused on the ground that P.W.4 was himself requiring water on that particular day also for irrigating his own field. The story of altercation, assemblage of persons by appellant Baleshwar Singh and then coming into a mob near the Darwaja of P.W.4 is consistently stated in one manner or the other by all the witnesses. Witnesses have stated that they picked up some hullah and were attracted to the Darwaja or house of P.W.4 when they found the accused persons assembled there after having armed themselves variously. Some of witnesses, like, P.Ws.5 Ram Sharan Singh, P.W.6 Shyame Kishore Singh and P.W.7 Shyamlee Singh have made general statements that the five appellants fired at the four injured witnesses. These, three witnesses have not stated as to who fired at whom. The specific story of firing shots by particular appellant comes from P.W.8 and P.W.4 Ram Charitra Prasad Singh and the informant. This is also apparent from the genealogy given by P.W.4 that the witnesses are coming from the same family and the same stock as do the 14 appellants and this is admitted by witnesses that they had been litigating both for land and superiority since long and there has been series of criminal and civil litigations between them. Those facts are probabilized by the defence documents relating to past and pending litigations. 13. In the above background the finding recorded by P.Ws.10 and 12 that there was no signs or evidence of any occurrence taking place at the Darwaja of Ram Charitra Prasad Singh as was found by P.W.10 and 12 gets significance. P.W.12 has been very specific in pointing out that the electric motor stalled in the pump house of Ram Charitar Prasad Singh was out of order and the boaring was not functional. If the boaring was not functional and the motor installed thereon was also out of order, then the very genesis of the prosecution story that the appellant Baleshwar Singh had gone to beg water of Ram Charitra Prasad Singh pales into serious doubt. 14. The evidence of P.W.4 Ram Charitra Prasad Singh in paragraph-9 indicates that he was irrigating his wheat. This statement itself is absurd inasmuch the occurrence is of 23rd of 15 June, 1980. As regards the district of Nawada or the whole of Bihar which was existing on the 23rd of June, 1980 it could not even be imagined that crop of wheat could be sown and grown in the month of June. However, P.W.12 has stated that he did not find any of the fields which were located around the boaring bearing any signs of having been irrigated in the recent past. These evidences of witnesses clearly create doubt in the very genesis of the prosecution story and on this score alone a serious doubt is raised in the prosecution claim that the occurrence had occurred on account of a particular reason. 15. It is true that four persons were injured but P.W.3 one of the injured, namely, Arun Kumar has turned hostile. He has stated in single line of his evidence that he did not recognizance any one of the mob which had indulged in firing gun shots. Besides, the evidence of the two investigating officers also indicates that there was no signs of violence or any occurrence having taken place at the house of P.W.4 Ram Charitra Prasad Singh as, firstly, P.W.10 was not allowed to enter inside it so as to inspecting it and when P.W.12 was allowed to, 16 he did not find any signs of violence. The boxes in which the valuables of the household articles were kept were found properly kept and properly placed at different places of the house. There was no trampling mark. There were no signs of any other violence, like the marks of the pellets on the walls of the house and no blood was found at the place of occurrence nor were any empties recovered from there. P.W.12 specifically stated that on investigating the place of occurrence he found that it was the pitch road where the occurrence had occurred. What appears from the above discussion of the evidence is that yet another frailty renders the prosecution story doubtful as regards the place of occurrence. If the doubt is there as regards the place of occurrence then it could simply be a case of doubt. In the above backgroound, the statement of P.W.6 in paragraph-7 assumes significance wherein he has stated a different story which was almost the version of the counter case. 16. After having considered the evidence of the witnesses what appears to me, is that the probability may be there that when the appellants; Balesgwar Singh, Dhanraj Singh and 17 others were proceeding to registry office by a vehicle, the prosecution party intervened and got them forcibly down from the vehicle for being taken away. The evidence indicates that Ganuari Singh after learning about the acts of P.W.4, rushed to the scene of occurrence, i.e., the pitch road and started firing shots. He had a right of defence against the wrongful confinement of appellant Baleshwar Singh and Dhanraj Singh and others. Two witnesses P.W.4 and P.W.3 were receiving injuries more than one in number. But they were never dangerous or grievous in nature or had caused damage to any vital organs of the witnesses. The doctor has opinioned that those were simple injuries inflicted by pillet of gun. Rescuing a person from wrongful confinement of other, could be within the right of private person. Here, considering the injuries, the court finds that it was almost the appropriate use of required force; so as to rescuing the illegally confined and wrongfully restrained appellant. This probability might not be true, but the defence has not to prove its versions. The defence if succeeds in creating doubt then the very foundation of the prosecution case is shaken 18 creating a doubt in the prosecution version whereby the defence gets acquitted. 17. In the result, what this court finds is that the appellants also deserved to be acquitted on being extended benefit of doubt as the prosecution appears suppressing some vital facts as regards the real manner of occurrence. The learned trial Judge was committing error heavily while he was convicting and directing the five appellants to suffer rigorous imprisonment of different terms. The judgement of conviction and the order of sentence is hereby set aside by allowing the appeal. The five appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. Patna High Court, Dated the 6th of April, 2011 Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)