CR. APP(DB) No.494 OF 1988 With CR. APP(DB) No. 529 of 1988 With CR APP(DB) No. 536 of 1988 ********** (Against the judgment and order of conviction dated 29th of August, 1988 passed by Sri. Eric Mechyari, 5th Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 252/117 of 1987) *********** 1. KHABIR KHAN, son of Yaqub Khan 2. BHUKHAL KHAN, son of Majibullah Khan 3. CHATURI MANJHI, son of Chandradeo Manjhi 4. JOGENDRA MANJHI, son of Sheopujan Manjhi All residents of village Raghupur, P.S. Garkha, District-Saran. ----------------(Appellants) (In Cr. App(DB) No. 494 of 1988) MAZHARUL HAQUE KHAN @ MAHAR KHAN @ MAZHARUL KHAN, son of Yaqub Khan, resident of village-Raghupur, P.S.-Garkha, District-Saran. ------------(Appellant) (In Cr. App(DB) No. 529 of 1988) NIHORA SAH, son of Brahamdeo Sah, resident of village Raghupur, P.S.- Garkha, District-Saran. ----------(Appellant) (In Cr. App(DB) No. 536 of 1988) Versus The State of Bihar ------------(Respondents) (In all the three appeals) For the Appellants : Mr. N.A. Shamsi, Adv. : Mr. S. Ehteshamuddin, Adv. : Mr. Arjun Prasad No. 2, Adv. For the Respondent : Miss Shashi Bala Verma, A.P.P. 2 P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH *********** S.K. Sharma & D.K. Singh, J.J. Cr. Appeal No. 494 of 1988 of Khabir Khan, Bhukhal Khan, Chaturi Manjhi, Jogendra Manjhi, Cr. Appeal No. 529 of 1988 of Mazharul Haque Khan @ Mahar Khan @ Mazharul Khan and Cr. Appeal No. 536 of 1988 of Nihora Sah have been taken together because all the appeals have arisen out of common judgment of conviction and order of sentence dated 29th of August, 1988 passed in Sessions Trial No. 252/ 117 of 1987 by 5th Additional District & Sessions Judge, Saran at Chapra whereby appellant Mazaharul Haque @ Mazahar Khan and Nihora Sah have been found guilty under Section 302 I.P.C. and they have been sentenced to undergo imprisonment for life. Appellants Khabir Khan, Jogendra Manjhi, Bhukhal Khan and Chaturi Manjhi have been found guilty under Section 302/149 of the Indian Penal Code and they have been sentenced to undergo imprisonment for life. All the six appellants have further been found guilty under Section 148 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for two years each. The farebeyan of Raj Kumar Sah, the informant (P.W. 4), for the occurrence of about 9:00 A.M. dated 3 24.04.1986 is the basis of the prosecution case. According to the prosecution version, at the relevant time the informant(P.W. 4), son of Deonath Sah( the deceased) has given his fardbeyan before the Officer- in-charge alleging therein that that at the preceding night he along with his father(the deceased) and Raj Narain Sah(P.W. 1) were going to their flour mill shop and when they reached near the house of Raghunath Sah then Mazaharul Khan and Nihora Sah having pistols and Khabir Khan, Umesh Sah, Jogendra Manjhi, Chaturi Manjhi and Bhukhal Khan having Bhalas came and at the behest of Khabir Khan first shot was fired by Mazaharul Khan which caused injury upon the back portion of the informant’s father. In the meanwhile Nihora Sah also fired which caused injury upon the back and waist of Deonath Sah(the deceased). On hue and cry being raised, villagers Mohan Sah(not examined), Ram Nath Sah(P.W. 3), Indra Deo Sah(P.W. 2) and Sheonath Singh(not examined) and others came and witnessed the occurrence. The informant’s father died after ten minutes of the assault. The motive for the occurrence is that the informant’s father had deposed in Court against Mazaharul Haque Khan and Khabir Khan. In another case Nihora Sah was convicted. These motives resulted into the murder of the informant’s father Deonath Sah and the fardbeyan 4 resulted in registration of Garakha P.S.Case No. 55 of 1986, G.R. Case No. 957 of 1986 under Sections 147, 148, 149, 302 of the I.P.C and investigation was taken up and after completion of investigation chargesheet was submitted. After completing all paraphernalia including supply of police paper to the accused persons, the case was committed to the Court of Sessions and charge under Sections 302 and 148 I.P.C. was framed against Mazaharul Haque Khan and Nihora Sah and charge under Sections 148, 302/149 of the Indian Penal Code was framed against Khabir Khan, Jogendra Manjhi, Bhukhal Khan and Chaturi Manjhi. The charges were explained to the accused, they pleaded innocence and preferred to face the trial. In order to prove the case the prosecution has examined eight witnesses. They are Raj Narayan Sah(P.W.1), Indra Deo Singh(P.W.2), Ram Nath Sah (P.W.3), Raj Kumar Sah(P.W.4), Jodhan Sah(P.W. 5), Dr. Sidheshwari Prasad(P.W.6), Birendra Kumar Rai(P.W.7), Hari Lal Yadav(P.W.8). The defence has also examined Sukeshwar Singh(D.W.1), Baban Singh(D.W.2), Baljeet Singh(D.W.3), Gorakh Singh(D.W.4), Ram Pujan Singh(D.W.5), Dr. M.S. Goshal(D.W. 6), Serajul Haque Khan(D.W.7), Salimudding Khan(D.W. 8). 5 One Court witness Bishwanath Pathak was also examined as C.W. I. The Trial Court after taking into consideration the evidences on record came to the opinion that the prosecution has been able to prove the charges against the appellants and so they were convicted, as stated above. This Court has to see whether the prosecution was able to prove the charges against the appellants beyond the shadow of all reasonable doubts. Before discussing the evidence of the material witnesses, it is relevant to note down the deposition of the doctor(P.W.6) who had performed the postmortem examination over the dead body of Deonath Sah at 1: P.M. on 24.04.1986 and he has found the following:- (i) Multiple pea size lacerated wounds with charred margin from skin to chest cavity deep, scattered on the left side of chest axillary line and back of the left chest, causing lacerated wound 1½” x ½” x ¾” on the left lung outer surface with collection of about 1 pint dark red fluid blood in the left chest cavity. (ii) Multiple pea sized lacerated wound with charred margin from skin to abdominal cavity scattered on the left side of abdomen axillary line, back of the left side of abdomen(left lumber region) and back sacral 6 region and axillary line left gluteal region, causing multiple perforating wounds in the stomach, small and large intestine, lacerated wound of the spleen 2” x ¾” x ¾” and lacerated wound 1 ½” x ½” x ¾” on the left side of the kidney with collection of about 1 pint of dark red fluid blood in the abdomen left side. Injury No. II was situated about 1 1/2” below the injury No. 1. 15 pellets were recovered from the abdominal cavity and chest cavity. The postmortem report has been marked as Ext- 2. The doctor in his cross examination in para 7 has stated that the injuries were found on the chest and abdomen. Now the evidence of the informant and others are being discussed. The informant P.W. 4 has stated that at about 9:00 P.M. on night he was going along with his brother Raj Narayan Sah(P.W. 1) and his father Deonath Sah( the deceased) and when they reached near the house of Raghunath Sah then seven persons Mazaharul Khan, Nihora Sah, Khabir Khan, Umesh Sah, Jogendra Manjhi, Chaturi Manjhi and Bhukhal Khan came. Accused Mazaharul Khan and Nihora Sah were having country made pistol whereas others were having Bhalas which is sharp pointed weapons. Mazaharul Khan challenged the 7 informant and others and thereafter Khabir Khan instigated and immediately thereafter Mazaharul Khan fired with pistol which caused injury in the back portion of the informant’s father. Again Nihora Sah fired from his country made pistol which also caused injury in the back side and waist of the informant’s father who fell down and died within ten minutes. The occurrence was witnessed by the informant, his brother Raj Narain Sah(P.W. 1) brother- in-law Ram Nath Sah(P.W. 3) Indra Deo Singh(P.W. 2) and Sheonath Singh(not examined). Another eye witness P.W. 1 Raj Narain Sah has also supported the prosecution case that on the date and time of the occurrence the firing was resorted to by Mazaharul Khan and Nihora Sah which caused injuries on the father of the informant who fell down and succumbed to the injuries within ten minutes. His evidence is specific that injuries were on the back. Other witnesses P.W. 2 and P.W. 3 are not the eye witnesses of the occurrence and they have stated that they came to the place of the occurrence after hearing the sound of firing. Therefore they are the hearsay witnesses and so there is no requirement to go through their evidences. P.W. 5 has been tendered by the prosecution. If the evidence of the eye witnesses P.W. 1 and P.W. 4 are to be looked into, then the prosecution case 8 remains that firings attributed to Mazahar Khan and Nihora Sah caused injuries to Deonath Sah on his back but the evidence of the doctor is specific that injury was only on the chest and abdomen which is situated in front of the body of the deceased and not even one injury has been found by the doctor on the back of the deceased. It has been argued by learned counsel for the appellants that after seeing the postmortem examination report the witnesses have tried to improve their case because no injury was found on the back and so they have given different version in their evidence. The evidence of P.W. 1 has also been assailed on the ground that he has stated that injury was on the waist also but no injury has been found by the doctor on the waist and so it has been argued that P.W. 1 has also not seen the occurrence. It has been stated by P.W. 1 and P.W. 4 that when Deonath Sah was escaping then firing was resorted to which he has caused injuries on the back part of the body but the postmortem report contradicts the ocular evidence and the contradiction is not of minor nature rather it is complete contradiction. The injuries have been found on the chest and abdomen where as the ocular evidence is that the injuries were caused in the back. If the prosecution brings the case that firing was 9 at the back then it has to prove beyond reasonable doubt that firing was on the back and non finding of any injury by the doctor on the back belies the testimony of the eye witness. Considering the fact that the contradictions in evidence of the witnesses are major and vital, we are of the view that the prosecution has not been able to prove the charges against the appellants beyond the shadow of all reasonable doubts. Once the doubt is created, then the benefit of the same is to be given to the accused and accordingly it is being passed in favour of the appellants. In the result, all the three appeals are allowed and the judgment of conviction and order of sentence passed by 5th Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 252/117 of 1987 is set aside. The appellants are acquitted of the charges. They are also discharged from the liabilities of their respective bail bonds. Patna High Court Dated 17th of August, 2010 Shageer/NAFR (Shyam Kishore Sharma, J) ( Dinesh Kumar Singh, J.)