CRIMINAL APPEAL (DB) No. 504 OF 1988 WITH CRIMINAL APPEAL (DB) NO. 505 OF 1988 WITH CRIMINAL APPEAL (DB) NO. 527 OF 1988 ------ Against the judgment of conviction and order of sentence dated 31.08.1988 passed by Sri Anant Pd. Srivastava, Vth Additional Sessions Judge, Munger in Sessions case No.467 of 1986. ---- Shesho Yadav son of Eto Yadav resident of village Talkari, P.S. Sono, District Munger --- Appellant (in Cr.Appeal No.504/1988) ---- Gupteshwar Singh son of Rupdeo Narayan Singh resident of village Dashwat Khap, P.S. Madanpur,District Aurangabad,at present Village Charkapathar,P.S.Sono, District Munger --- Appellant (in Cr.Appeal No.505/1988) ---- Suresh Yadav son of Baidyanath Yadav resident of village Hassanganj,Police Station Kotwali Munger,District Munger – Appellant (in Cr.Appeal No.527/1988) Versus The State of Bihar ---- Respondent (in all the three appeals) ---- For the appellants : Ms Shashi Priya Pathak (Amicus Curiae) (in Cr.App.Nos.504 & 505/1988) For the appellant : Mr. R.C.Sharma & Arun Kr.Singh, Advocates (in Cr.Appeal No. 527/1988) For the State : Ms Shashi Bala Verma,APP ---- 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,JJ. The aforesaid three appellants through these three appeals have challenged the judgment of conviction and order of sentence dated 31.08.1988 passed by learned Vth Additional Sessions Judge, Munger in Sessions Case No. 467 of 1986 whereby and whereunder appellant Suresh Yadav (Cr.Appeal 2 (DB) No.527 of 1988) has been convicted under Sections 302 and 302/34 of the Indian Penal Code and has been sentenced to undergo imprisonment for life on both counts. However, sentences were directed to run concurrently. Appellant Gupeshwar Singh alias Gupteshwar Singh (Cr.Appeal (DB) No. 505 of 1988) and appellant Shesho Yadav (Cr.Appeal (DB) No. 504 of 1988) have been convicted under Section 302/34 of the Indian Penal Code and each has been sentenced to undergo imprisonment for life. 2. Before considering the grounds taken in appeals challenging the impugned judgment, it is necessary to state, in brief, the prosecution case which started with the fardbeyan of Kamli Mandal (P.W.3) recorded by S.I. Shridhar Chaubey of Charkapathar O.P. on 11.04.1985 at 10.30 P.M., to the effect that the informant runs a cycle repairing shop at Charkapathar being the tenant of Pramod Singh (deceased). It is said that Pramod Singh has landed property at Charkapathar and hence he used to come to Charkapathar. On the alleged date of occurrence, deceased Pramod Singh, 3 Basudeo Yadav (P.W.2) and Sanichar Singh (P.W.1) came to the house of the informant situated at Charkapathar and conveyed to him that they will stay at the informant’s place and will take dinner there and money was given to the informant for preparing the meals. It is alleged that on 10.04.1985, in the night, when the aforesaid three persons were sitting in the verandah of the informant, Gupteshwar Singh, Suresh Yadav, Bhunni Yadav and Shesho Yadav came, they were identified by the informant, in the lantern light. It is further alleged that Suresh Yadav and Bhunni Yadav were armed with revolver, Shesho Yadav with bhala and Gupteshwar had a torch in his hand. Accused Suresh Yadav enquired about Pramod Singh (deceased), on which Gupteshwar Singh flashed the torch light towards Pramod Singh and he ordered to shoot Pramod Singh and on the order of Gupteshwar Singh, Suresh Yadav moved forward towards Pramod Singh, while Bhunni Yadav threatened other persons. In the meantime, Pramod Singh stood up and started scuffling with Suresh Yadav, on which Bhunni 4 Yadav and Shesho Yadav caught hold of Pramod Singh and then Suresh Yadav fired at point blank range on the chest of Pramod Singh, who after receiving injury fell down and thereafter all the accused persons, after giving threats, disappeared from the scene. It is claimed by the informant that being frightened, he could not raise alarm but when the accused persons disappeared from the scene, then the informant and others took the injured Pramod Singh to out Post on a cot but on the way, Pramod Singh died. It is explained by the informant that he was not aware about the actual dispute behind the occurrence but has claimed that Pramod Singh used to give loan to accused Gupteshwar Singh. On the basis of the aforesaid fardbeyan, Sono P.S.Case No. 35 of 1985 dated 11.04.1985 was registered under Section 302/34 of the Indian Penal Code against four accused persons namely, Gupteshwar Singh, Bhunni Yadav, Shesho Yadav and Suresh Yadav. 3. The police after investigation submitted chargesheet against six accused persons including the four F.I.R.named 5 accused. Subsequently after cognizance, the case was committed to the court of Sessions, where charges were framed against five accused persons, who were put on trial, as one other accused Bhunni Yadav son of Sohan Yadav was absconding, hence his trial was split up. Charges against all the five accused were framed under Sections 302/34 and 148 of the Indian Penal Code whereas against accused Suresh Yadav, charge was also framed under Section 302 of the Indian Penal Code. 4. The prosecution in order to substantiate its case examined altogether 11 witnesses whereas the defence has not examined any witness. P.W.1-Sanichar Singh, P.W.2-Basudeo Yadav and P.W.3-Kamli Mandal (informant) are the eye witnesses to the occurrence. P.W.4-Ibrahim Miyan and P.W.5- Mitan Mistry are hearsay witnesses. P.W.6- Jhoti Mandal, P.W.7-Baguli Yadav, P.W.8- Basant Chaudhary and P.W.9-Teku Miyan are also hearsay witnesses but all of them have been tendered. P.W.10-Dr.Satya Narayan Singh has conducted the post mortem over the dead body of the deceased Pramod Singh. P.W.11- 6 Shridhar Choubey is the Investigating Officer of the case. 5. The plea of the defence during trial was that the deceased Pramod Singh had illicit relationship with the second daughter of the informant, as a result of which P.Ws. 1 to 3 committed the murder of Pramod Singh and they have falsely implicated the appellants to save their skin as there was enmity with appellants, particularly, Gupteshwar Singh. 6. The learned trial court relying upon the prosecution evidence came to the conclusion that the prosecution has proved the charges beyond the shadow of all reasonable doubt against three appellants and they were convicted, as stated above, whereas two accused namely, Bhubneshwar Yadav, son of Mogal Yadav and Bhuna Yadav alias Bhubneshwar Yadav were acquitted of the charges since prosecution failed to prove the charges against these two accused persons. 7. Now this Court has to reappraise the prosecution evidences to find out whether the testimony of the eye witnesses i.e., 7 P.Ws. 1, 2 and 3 is credit worthy to the extent that the impugned judgment of conviction needs no interference. 8. So far as the death of Pramod Singh, on 11.4.1985, is concerned, the same is an admitted fact. The dispute is with regard to the exact place of occurrence, and the manner of occurrence as alleged by the prosecution. 9. So far as the manner of occurrence is concerned, it is alleged by the informant that P.Ws. 1,2,3 and the deceased Pramod Singh were sitting in the verandah of the informant (P.W.3) when the four accused came, out of whom Suresh Yadav and Bhunni Yadav were armed with pistol, Shesho Yadav armed with bhala and on identification of Gupteshwar Singh in torch light, Suresh Yadav fired at point blank range on the chest of Pramod Singh whereas Shesho Yadav and Bhuni Yadav caught hold of the victim. P.W.1 in paragraph 1 of his evidence has stated that Suresh Yadav fired at point blank range by a pistol, on the chest of the victim whereas P.W.2 in the opening paragraph of his 8 evidence has stated that, Bhuni Yadav and Suresh Yadav, both fired at the victim and P.W.3, in paragraph 2 of his evidence, has stated that Suresh Yadav fired from point blank range at the victim. The evidence of P.Ws. 1,2 and 3, is not only inter se inconsistent, in view of the fact that P.W.2 claimed that two shots were fired at the victim but it does not also corroborate with the evidence of the Doctor-P.W.10, who found only one ante mortem injury which is as follows: “There was a lacerated wound on the left side chest front in the third inter coastial space with inverted black margin size ½” x ¼”x deep to the chest cavity.” In paragraph 14 of his evidence, the doctor has stated that he did not find any sign of tatooing, charring and singing, near the injuries in question. In paragraph 13, the doctor admits that firing appears to have been made from a distance of 18 to 24 yards. The postmortem report negates the eye witnesses account, particularly that of P.Ws. 9 1 to 3. The consistent version of the eye witnesses is that the firing was made from point blank range, then the absence of tatooing and charring creates doubt about the credibility of P.Ws. 1 to 3 being the eye witnesses. 10.It is true that the doctor’s evidence is opinionative in nature and it cannot override the ocular evidence, but it becomes relevant when the medical evidence completely negates the prosecution case. In the present case, the eye witness account is inter se inconsistent. Moreover the doctor’s evidence creates serious doubt, as the size of the bullet found stuck and recovered from back wall of the chest of the victim is 1¼ inches in length and it was suggested by the doctor that it appeared to him that the bullet was fired from a rifle whereas it is contended by the eye witnesses that firing was made from the revolver. No doubt, the doctor is not a ballistic expert to suggest about the nature and specification of injury being caused by firearm from close range,but since the firing was alleged to be made from 10 point blank range, the bullet ought to have passed through the body when it was found lodged in the body. 11. The medical evidence suggests that on dissection the left lung was found badly lacerated, pericardium was ruptured and there was through and through wound in the upper part of the heart. Hence the doctor has suggested that in view of the nature of injury, the death must have been caused instantly. Hence on this ground also the ocular evidence gets clouded as they have claimed that after the accused disappeared from the scene, the informant and others took the victim on a cot to out Post but the victim died on the way. It is the specific evidence of P.Ws 1, 2 and 3 that at the time of occurrence the victim was taking food and P.W.3 in paragraph 30 has specifically stated that the hands and mouth of the victim were containing food material. Though P.W.2 has clarified in his evidence by saying that the victim was waiting to eat and P.W.3 has suggested that the Investigating Officer was shown the utensils in which the victim was 11 taking food but the Investigating Officer, during his evidence, has clearly stated that he neither found any utensil at the place of occurrence nor the mouth and hands of the victim were containing food materials. This contention of the Investigating Officer gets corroborated with the inquest report which does not reflect that the hands and mouth of the victim was found containing food material. Moreover, the doctor, during post mortem, has found semi digested food in the stomach and in paragraph 8 of his evidence the doctor has admitted that the food might have been taken at least one and half hours prior to the occurrence which creates doubt about the contention of the P.Ws. that either victim was taking food or was about to take it. Hence we come to the conclusion that the manner of the occurrence has not been proved by the prosecution beyond the shadow of all reasonable doubts. 12. So far as the place of occurrence is concerned, as per fardbeyan, the firing took place when the victim and P.Ws. 1 to 3 were sitting in the verandah of the 12 informant-P.W.3. P.W.2 in paragraph 1 of his evidence has stated that the firing took place when the victim was in the Verandah. P.W.3 in paragraph 2 of his evidence has developed his version by saying that the victim was taken 10 to 12 steps in the field from the verandah. Though P.Ws. 4 and 5 are hearsay witnesses who reached the place of occurrence on hearing the sound of gun shot and the alarm and they found the victim in an injured condition at the door of the informant-P.W.3. P.W.11 in paragraph 8 of his evidence has described that he was initially conveyed that the victim received injury at verandah and also 15 to 20 yards from verandah in the east sahan of P.W.3. It appears that since the Investigating Officer did not find any blood at the verandah or any evidence with regard to the occurrence having taken place at verandah, then P.W.3 tried to shift the place of occurrence to the sahan in front of his verandah. Taking into consideration the nature of injury the victim received, it was impossible for him to run away from the verandah, as has been inferred 13 by the learned Trial Court. 13. Moreover, the absence of blood at the verandah creates doubt about the true unfolding of the prosecution case by the eye witnesses, as P.W.11 in paragraph 29 has stated that the blood drops were found 15 to 20 yards from the verandah. Further, P.W.1 in paragraph 31 has stated that the blood was 1 to 2 drops and it was so meagre in quantity that it could not be collected. This evidence of the Investigating Officer, also makes the second place of occurrence i.e. the Sahan of P.W.3, doubtful because the nature of injury to the victim suggests huge quantity of blood being spread at the place of occurrence. As the doctor during post mortem has found only 300 c.c. of blood within the left side of plural cavity, hence the prosecution has also failed to prove the place of occurrence. 14. Suggestion has been given to P.Ws.1,2 and 3 that the victim had illicit relationship with the second daughter of the informant P.W.3 and P.W. 3 after seeing his daughter in a compromising position with the 14 victim Pramod Singh, in his house, the victim was killed by P.Ws. 1,2 and 3 and they implicated the appellants due to old enmity. 15. So far as the allegation of the victim being a characterless person is concerned, suggestion was given to the witnesses, and this fact is also incorporated in paragraph 64 of the case diary wherein the Investigating Officer has recorded that the deceased had illicit relationship with the daughter of P.W.3 and he was apprehending threat to his life. 16. P.W.3 in paragraph 40 of his evidence has admitted that he along with P.W.2 were named accused of a case lodged by Gupteshwar Singh. A suggestion has been given to the prosecution witnesses that since Gupteshwar Singh had lodged a case in which P.Ws. 1,2 and 3 were made accused, hence the appellants were implicated. 17. Though the informant has specifically stated in his fardbeyan that he was not aware about the actual cause of commission of the offence, he has suggested that the victim used to give money to accused 15 Gupteshwar Singh on credit. This fact has been suggested by P.W.1 also, but P.W.3 in paragraph 34 of his evidence has accepted this fact that he never witnessed the exchange of money, rather P.W.3 has admitted that Gupteshwar Singh collected loan at the behest of the victim. Hence, it appears that neither any specific motive has been alleged by the prosecution nor any attempt has been made to prove the motive of dispute with regard to the money lending which lends credence to the suggestion of the defence that since the informant was on inimical terms with Gupteshwar Singh, Suresh Yadav and other accused who used to visit Gupteshwar Singh, hence they have been implicated in the present case. 18. P.W.3 in paragraph 13 has denied that his daughter and other family members were present in the house, whereas P.W.2 in his cross-examination has admitted that the family members of P.W.3 were present in the house when the occurrence took place. Similarly, the Investigating Officer-P.W.11 in paragraph 8 of his evidence has admitted 16 that the family members of P.W.3 were present but none of the family members have been examined, though explanation has been given in paragraph 35 of the evidence of the Investigating Officer that the family members of the informant were not inclined to give statement. This fact also creates doubt about the credibility of P.W.3. 19. Though pistol was seized from possession of Suresh Yadav along with cartridges but neither seizure-list has been prepared nor the alleged bullet found in the body of the deceased was sent for ballistic examination to establish the fact whether the firing was made from the alleged seized pistol by Suresh Yadav. Though it has been suggested by the defence that the bullet seized from the deceased body, was a rifle bullet. Hence the Investigating Officer deliberately did not send the pistol for ballistic examination. The suggestion of the defence cannot be accepted but the conduct of the Investigating Officer definitely creates doubt about the prosecution case. 20. The prosecution has tried to 17 prove its case through interested witnesses as P.W.1 in the cross-examination has admitted that the deceased was his cousin, whereas P.W.2 was working as a servant of the deceased, Pramod Singh, as is evident from paragraph 18 of the evidence of the informant and the informant P.W.3 was admittedly the tenant of the deceased Pramod Singh. P.Ws. 6 to 9 were independent witnesses but they have been tendered by the prosecution for reasons best known to it. 21. So far as the evidence of P.W.1 is concerned, in our view, the learned Trial Court has wrongly relied upon his evidence, as the application filed on behalf of accused Gupteshwar Singh to re-call P.W.1 was allowed but despite coercive steps, P.W.1 failed to appear for cross-examination. The recall application suggests that it was general in nature, since the Counsel failed to cross-examine P.W.1, hence on this score itself, the evidence of P.W.1 is of no help to the prosecution. 22. So far as the means of identification is concerned, it is claimed by 18 the informant that he identified the accused persons in the lantern light and torch light which were being used by accused Gupteshwar Singh. There is no doubt that in the villages, the optical capacity is tuned to visualize anything in dim light but the Investigating Officer has neither found any torch or any lantern at the place of occurrence nor any seizure was made to that effect. It is the specific case of the prosecution that the victim was carried to the out post on a cot and P.W.3 admits that blood stains were present on the cot and on the bed spread on the cot but the Investigating Officer has not found any cot or blood stained bed which creates further doubt with regard to the prosecution version. 23. Learned counsel for the appellants has argued that the two co-accused namely, Bhubneshwar Yadav son of Mogal Yadav and Bhuna Yadav alias Bhubneshwar Yadav have been acquitted which suggests that the learned Trial Court has partially doubted the prosecution version. 24. In view of the discussions made 19 above, we come to the conclusion that the prosecution has failed to prove the place of occurrence and the manner of occurrence and as such the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts. Accordingly, the appellants deserve to be acquitted. Hence the judgment of conviction and order of sentences are set aside. The appellants are acquitted of the charges and are discharged from the liabilities of their bail bonds. Accordingly, all the three appeals are allowed. 25. We appreciate the assistance given by Ms Shashi Priya Pathak, Advocate as Amicus Curiae on behalf of appellants of Cr.Appeal Nos. 504 and 505 of 1988. 19. Let the first page and last page of the judgment be given to Ms. Pathak, so that she may get her prescribed fee from the High Court Legal Services Committee, Patna. Patna High Court,Patna The 26th October,2010 Tahir/-(NAFR) ( Shyam Kishore Sharma, J. ) ( Dinesh Kumar Singh, J.)