IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) NO.247 OF 2005 WITH CRIMINAL APPEAL (DB) NO. 325 OF 2005 ====================================================== Against the judgment of conviction and order of sentence dated 29th March, 2005 passed in Sessions Trial No. 518 of 1992 by Sri Avinash Kumar Sinha, Additional Sessions Judge, F.T.C. No. II, Arah, Bhojpur ======================================================= 1. Dukhi Bhagat S/o Late Gop Chand Bhagat 2. Amawas Bhagat S/o Sarju Bhagat 3. Ram Nath Bhagat S/o Late Butan Bhagat 4. Jai Govind Bhagat s/o Late Dukh Bhajan Bhagat 5. Innar Bhagat S/o late Pran Bhagat All r/o village-Kumhaila, P.S.-Charpokhari, District- Bhojpur at Arrah……………………………………..Appellants (Cr. App. No. 247/05) With Sheojee Bhagat S/o Late Pran Bhagat, r/o vill- Kumhaila,P.S.- Charpokhari, District- Bhojpur….…..Appellant (Cr. App. No. 325/05) Versus THE STATE OF BIHAR ………………………Respondent ======================================================= Appearance : (In CR. APP (DB) No. 247 of 2005) For the Appellant/s : Mr.Harsh Singh, Advocate Mr. Kamal Kishor Singh, Advocate For the Respondent/s : Mr. Ashwini Kumar Sinha, APP (In CR. APP (DB) No. 325 of 2005) For the Appellant/s : Mr. Birju Prasad, Advocate For the Respondent/s : Mr. Ashwini Kumar Sinha, APP ======================================================= CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Above noted both the appeals have arisen out of one judgment dated 29th March, 2005 passed by the learned Additional Sessions Judge, F.T.C. No. II, Ara, Bhojpur in Sessions Trial No. 518 of 1992 whereby the accused/appellants of Cr. Appeal No. 247 of 2005 were Patna High Court CR. APP (DB) No.247 of 2005 dt.19-08-2011 2 held guilty under sections 302/34 of the Indian Penal Code and appellant of Cr. Appeal No. 325 of 2005 was held guilty for the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and all were sentenced to undergo rigorous imprisonment for life and appellant Sheoji Bhagat was further sentenced to undergo three years rigorous imprisonment for the offence under section 27 of the Arms Act. Sentences of appellant Sheoji Bhagat was ordered to run concurrently. 2. Exhibit 4 which is fard-beyan of occurrence is the basis of prosecution case. According to the informant’s version, in the night of 8.6.1990 at the request of Sheo Bachan Bhagat (deceased) ten persons, namely, Sheo Jee Bhagat, Innar Bhagat, Jai Govind Bhagat, Ram Ekbal Bhagat, Keshwar Bhagat, Brija Bhagat, Mithu Bhagat and Masudan Bhagat all of village Kumhaila, P.S.- Charpokhari made their sheeps to sit in the field of deceased in Lahi Badhar. In the night they all coocked and ate Litti and slept there. The informant was sleeping at the distance of 25 yards south east where his father Sheo Bachan Singh was sleeping. After midnight i.e. at about 1.00 A.M. in the night the informant woke up on some humming sound and noticed that Sheo Jee Bhagat, Innar Bhagat, Jai Govind Bhagat, Ram Nath Bhagat, who were sleeping by the side of the informant went near the informant’s father and they overpowered him. At the same time Amawash Bhagat and Dukhi Bhagat also caught the informant’s father. The informant ran to a distance of 50 yards. At that very time he heard sound of gun fire and when he proceeded a bit ahead then he heard two more sound Patna High Court CR. APP (DB) No.247 of 2005 dt.19-08-2011 3 of gun firing. On alarm and on hearing gun firing the villagers started coming. Bhola Singh, Kamlesh Singh, Ekram Singh, Sita Ram Sah and others came to the place of occurrence and found that the informant’s father was lying dead with a firearm injury on his abdomen. The motive behind the occurrence as alleged by the informant was that the informant’s father Sheo Bachan Bhagat had agreed to part with his land in favour of Innar Bhagat and Jai Govind Bhagat for Rs. 20,000/- . A sum of Rs. 8200/- was paid as advance and rest was to be paid at the time of execution of the sale deed. The amount was not paid and so the informant’s father refused to transfer the land and part of advance money was returned. The dead body was brought to the house of the informant. The matter was informed to the police and police officer came and fard-beyan was recorded. The fard-beyan resulted into FIR (Ext.5) of Charpokhari P.S. Case No. 55 of 1990. The allegation was investigated into. After investigation chargesheet was submitted and accordingly cognizance was taken. The case was committed to the Court of Sessions where the accused persons appeared. On their appearance charges were framed against them. The accused persons pleaded innocence and they claimed that they have been implicated due to enmity. Their further defence was that in fact on the date and time of occurrence some thieves wanted to take away the sheep and on protest the thieves fired which caused death of the informant’s father. 3. In order to prove the charge, the prosecution has examined altogether 9 witnesses. They are: Dani Singh (PW 1), Nawak Kishore Singh @ Nanda Singh (PW 2), Sita Ram Singh (PW 3), Bhola Singh (PW Patna High Court CR. APP (DB) No.247 of 2005 dt.19-08-2011 4 4), Bimlesh Kumar Singh (PW 5), Bindeshwari Prasad Singh (PW 6), Murat Ram (PW 7), Dr. Suresh Prasad Srivastava (PW 8) and Awadhesh Kumar (PW 9). 4. PW 8 has performed post mortem examination of the deceased on 9.6.1990 at 1.30 P.M. and has found one lacerated wound at buttock + right hypochondsium and right tumber region of the size ¼”x1/4”x peritoncal cavity deep. Margin of the wound charred. It was caused within 24 hours. The post mortem report (Ext. 3) prepared by PW 8 shows that the death was caused by fire arm injury. The death and manner of death are not in dispute, which appear from the cross- examination of the defence. So the prosecution has proved that in the night of the occurrence Sheo Bachan Bhagat was killed by use of firearm. 5. Once the death has been proved then the prosecution is required to prove the accusation against the accused persons and for that witnesses were examined. 6. PW 1 is a witness of seizure of blood which was seized by the Investigating Officer. PW 2 Nand Kishroe Singh @ Nanda Singh and PW 4 Bhola Singh are the witnesses who came after hearing the sound of firing and so they are not the eye witnesses. PW 3 is another seizure witness and he also went to the place of occurrence after hearing the sound of firing. Similar is the version of PW 1. PWs 6 and 7 are formal witnesses. Investigating officer has not been examined. PWs 1 to 4 have stated that they were taking rest in their houses and when they went to the place of occurrence then they found the informant’s father dead. Patna High Court CR. APP (DB) No.247 of 2005 dt.19-08-2011 5 Therefore, their evidence does not support the prosecution in any manner. 7. Sole witness who has been relied upon by the prosecution is PW 5. This witness has stated that in the night of 8th June, 1990 sheeps were made to sit in his field at the behest of his father. At that very time the owners of the sheep Sheo Jee Bhagat, Innar Bhagat, Ram, Nath Bhagat, Jai Govind Bhagat, Mithu Bhagat, Keshwar Bhagat, Madhusudan Bhagat, Kanahiya Bhagat and Birja Bhagat were also there. The informant was sleeping at the distance of 20-25 yards south of the place where his father was sleeping. On some sound the informant’s sleep was disturbed and he noticed Innar Bhagat, Sheo Jee Bhagat, Jai Govind Bhagat, Ram Nath Bhagat, Amawash Bhagat and Dukhi Bhagat catching hold his father. An altercation took place and Sheo Jee Bhagat fired upon the informant’s father, thereafter, the informant ran towards his house. In the mean while he met with the villagers and later on he returned and found his father dead. Thereafter, the police came, took his fard-beyan and prepared the inquest report. The dead body was sent for post mortem examination. After recording the statements of the witnesses and after obtaining the post mortem examination report chargesheet was submitted against the accused persons. 8. In cross-examination this witness has stated that Madhusudan Bhagat and Mithu Bhagat (DWs 1 and 3) were also among the persons who have gone to save his father. This is the entire version which has been brought on the record on behalf of the prosecution. Patna High Court CR. APP (DB) No.247 of 2005 dt.19-08-2011 6 Through the version which has been brought on the records the prosecution wants to establish the charge that the accused persons with common intention and object have caused death of informant’s father. 9. On the other hand, the defence has examined Madhusudan Bhagat (DW 1), Ram Ekbal Bhagat (DW 2), Mithu Bhagat (DW 3) and Ram Nagina Singh- Mukhiya of Sonbarsa Panchayt (DW 4). DW 4 has stated that Dukhi Bhagat and Amawash Bhagat do not keep any sheep. He has given certificate (Ext. A) to show that these persons were not owning any sheep. All the witnesses who were brought on the record by the defence have stated that in the night of occurrence some criminals have come for stealing the sheep and on protest, they fired, which accidentally caused death of informant’s father. The defence has relied primarily on the evidence of the witnesses who were named by the prosecution. The informant in his evidence has named DWs 1 and 3 as the witness who should have been examined on behalf of the prosecution because according to the informant, they arrived at the place of occurrence soon after the occurrence and they were revealed the details about the manner of occurrence. PW 4 has named another witness who also should have been examined on behalf of the prosecution. Attention has been drawn towards the statement of P.W.4 given under section 161 Cr.P.C. because defence version was that PW 4 has not named any of the accused who were put on trial. 10. Non-examination of the Investigating Officer has definitely caused prejudice to the extent that the defence could not take the Patna High Court CR. APP (DB) No.247 of 2005 dt.19-08-2011 7 benefit of the contradictions which have crept in the version of PW 4. The persons who should have been the prosecution witnesses have appeared on behalf of the defence and they have consistently stated that the occurrence of the night was for commission of theft and so two versions of the occurrence have come on the record. Another fact which can be noted is that the prosecution has relied upon the testimony of the sole eye witness who is the informant. The informant himself has stated that he was sleeping at a distance of 25 yards and at that very time he heard sound of firing and it has not come in evidence that what was the mode of identification of the accused persons. The accused persons have been attributed different roles relating to the occurrence. Some persons have been alleged to be catching the deceased whereas one person has been specified to be the shooter. The informant has described the entire manner of occurrence, but the entire prosecution is absent with regard to source of light which enabled the informant to identify the accused. No doubt the villagers are accustomed to identify the person even during night, but when the informant ascribes the role played by each of the accused separately, then it is not possible that such description could be given if there was no source of light. Therefore, non-mentioning of any source of light makes the entire means of identification doubtful. 11. Learned counsel for the appellants has pointed out that if the informant or his father was having any apprehension against the accused then they would not have spent the night with them and so the motive cannot be said to be proved. Another important aspect of the Patna High Court CR. APP (DB) No.247 of 2005 dt.19-08-2011 8 case is that one accused Sheo Jee Bhagat has been convicted under section 302 IPC and section 27 of the Arms Act. Charges to the accused persons were explained on 15th July, 1995 and all were charged under section 302 read with section 34 of the Indian Penal Code and section 27 of the Arms Act. Sheo Jee Bhagat was not separately charged under section 302 IPC but he has been convicted under section 302 IPC. 12. All the accused persons were explained same substance of accusation under section 313 Cr.P.C. There is identical substance of accusation explained to them and if substance of accusations were not separately explained to any one of the accused then it is not justified that one can be dealt with separately. Sheo Jee Bhagat has been charged together with other accused persons and statement u/s 313 Cr.P.C. were also recorded on same substance but the learned court below has erred in treating the case of Sheo Jee Bhagat separately. Therefore, it is apparent that the evidence of sole testimony has not been corroborated, non-examination of the Investigating Officer has caused great prejudice to the defence because they could not take out the contradictions which have crept in their evidences. The source of light has not been explained and there is error in charge as well as in explaining the substance of accusation under section 313 Cr.P.C. The prosecution has withheld the witnesses who should have been examined on behalf of its side but they have appeared on behalf of defence and they have given altogether a different version of the occurrence. The cumulative effect is that a genuine doubt has remained Patna High Court CR. APP (DB) No.247 of 2005 dt.19-08-2011 9 on the prosecution version of the occurrence. The onus is on the prosecution to explain the entire circumstances which has to be considered against the accused persons, which the prosecution has failed to do. 13. In view of the discussions made above, we are of the view that the prosecution has failed to prove its charge against all the appellants beyond the shadow of all reasonable doubts. So the appellants deserve to be acquitted. 14. In the result, the judgment of conviction and order of sentence against the appellants is set aside and both the appeals are allowed. The appellants are acquitted of the charges. Appellant Sheo Jee Bhagat (Cr.Appeal No. 325 (DB) of 2005) is reported to be in custody. He is directed to be released forthwith if not wanted in any other case. Other appellants are discharged form the liabilities of their respective bail bonds. Sheema Ali Khan, J.:- I agree. (Shyam Kishore Sharma, J.) (Sheema Ali Khan, J.) Patna High Court, Patna Dated the 19th August, 2011 Avin/N.A.F.R.