CRIMINAL APPEAL (DB) No.508 OF 2003 With CRIMINAL APPEAL (DB) No. 27 OF 2004 -------- Against the judgment of conviction dated 14.11.2003 and order of sentence dated 15.11.2003 passed by Shri Ranjan Kumar Sanyal, 4th Additional Sessions Judge, Muzaffarpur, in Sessions Trial No.71 of 1988. ------- 1.Binda Singh son of late Pragas Singh 2.Jamuna Singh @ Jamun Singh son of late Pragas Singh 3.Jagdish Singh son of late Pragas Singh 4.Ram Balak Singh son of late Janak Singh 5.Bimal Kumar Singh @ Bimal Singh son of Girija Singh. 6.Baleshwar Singh son of late Siyaram Singh 7.Harendra Singh son of late Janak Singh All are residents of village- Fatahpur (Kasturi), P.S.-Kurhani, District- Muzaffarpur ….. ….Appellants in Cr. Appeal No.508 of 2003. Raj Kumar Singh son of Binda Singh, Resident of village-Fatehpur (Kasturi), P.S.-Kurhani, District- Muzaffarpur ….. ….Appellant in Cr. Appeal No.27 of 2004. Versus THE STATE OF BIHAR ….. Respondent in both the appeals. -------- For the appellants: Sharva Shri Kanhaiya Prasad Singh, Sr.Advocate with Amar Nath Singh and Atal Bihari For the State: Shri Ashwini Kumar Sinha, Addl. Public Prosecutor. --------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA THE HON’BLE SHRI JUSTICE RAKESH KUMAR ---------- Rakesh Kumar,J. Since both the appeals arise out of same occurrence, they have been heard together and are being disposed of by this common judgment. 2. The appellants have questioned the judgment of their conviction and sentence passed in Sessions Trial No. 71 of 1988 by 4th Additional Sessions Judge, Muzaffarpur. 3. All the appellants in Cr. Appeal No.508 of 2003 have been convicted and sentenced for the offence under sections 302/149 of the Indian Penal Code. Appellant no.1, Binda Singh, has also been held guilty under section 302/109 of the Indian Penal 2 Code. All the appellants except appellant no.1, Binda Singh, have been sentenced to rigorous imprisonment for life under section 302/149 of the Indian Penal Code. Appellant no.1, Binda Singh, has been sentenced to rigorous imprisonment for life for the offences under sections 302/149 and 302/109 of the Indian Penal Code. So far as appellant, Raj Kumar Singh, in Cr. Appeal No.27 of 2007 is concerned, he was convicted for the offence under section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life. He was also convicted under section 27 of the Arms Act, but no separate sentence was passed in respect of section 27 of the Arms Act. The appellants by filing the aforesaid appeals have challenged the judgment of their conviction dated 14.11.2003 and order of their sentence dated 15.11.2003 passed by learned 4th Additional Sessions Judge, Muzaffarpur in Sessions Trial No.71 of 1988. 4. At the very outset, it is necessary to indicate that during the pendency of the appeal, appellant no.2, namely, Jamuna Singh, in Cr.Appeal No.508 of 2003 died on 22.10.2007 and, accordingly, after filing of the affidavit along with death certificate by order dated 11.2.2010 passed by this court his case stood abated. 5. Short facts of the prosecution case as narrated in the fardbeyan, i.e., Ext.5, is that on 20.2.1986 at about 5.15 P.M. Rajeshwar Singh (P.W.1) gave his fardbeyan in front of his house, which was situated in village Fatahpur Kasturi, Police Station Kurhani, district Muzaffarpur, to the Sub. Inspector of Police in which he disclosed that on the same day at about 4 P.M. while his father Jai Mangal Singh was returning after attending to nature’s call, he was intercepted by several accused persons, including all the appellants of both the present appeals and they started abusing him. It was alleged that his father was intercepted near the wheat field of Ram Balak Singh. It was also stated in the fardbeyan that while accused persons were preparing to kill his father, the informant, Ram Naresh Singh (P.W.3), after hearing Hullah along with Rajeshwar Singh (P.W.1), Ram Chhabila Singh (P.W.2), Binda Singh (not examined), Urmila Devi (not examined) and many other villagers rushed to the place of occurrence. It was disclosed by the informant that the accused persons were armed 3 with various weapons. He specifically alleged that the appellant, Baleshwar Singh, was having Farsa in his hand, Sia Ram Singh (since dead) Bhala, Raj Kumar Singh appellant in Cr.Appeal No.27 of 2004 was armed with a licencee gun and all other accused persons were having Lathi in their hand. Immediately after their arrival, the accused persons started assault and during the occurrence appellant Baleshwar Singh (appellant no.6 in Cr. Appeal No.508 of 2003) gave a Farsa blow on Rajeshwar Singh (P.W.1). The informant said that due to Farsa blow Rajeshwar Singh received injury on his left knee and blood started oozing from the said injury. The informant alleged that the accused persons started to assault him with Lathi. In the meanwhile, Binda Singh, in Cr.Appeal No.508 of 2003, gave an order to Raj Kumar Singh(appellant in Cr. Appeal No.27 of 2004) to finish the work and on such order Raj Kumar Singh thrice fired from his gun. First gun shot injury hit on the head of the father of the informant, namely, Jai Mangal Singh and after receiving injury he fell down and started writhing in pain. Second shot hit on the head of Urmila Devi and she after receiving the said injury fell down. However, third shot did not cause any injury to any one. Immediately thereafter, Yogendra Singh ( not examined) , Dinesh Singh ( not examined ) and several persons arrived there and they started to oppose the occurrence and thereafter all the accused persons fled away from the place of occurrence. The informant further stated that he carried his father to his door but on its way he died.The injured Urmila Devi was carried hurriedly by the villagers to Hospital for her treatment. The informant disclosed that reason for the occurrence was that on the preceding day i.e. 19.2.1986 in the evening there were scuffle and exchange of abuses on the point of irrigation and due to the said ill-will the accused persons committed the said occurrence. 6. After recording the First Information Report, police started investigation and during the investigation, inquest report was prepared in respect of the dead body of the deceased Jai Mangal Singh. The dead body was sent for postmortem examination. After completing the investigation, Charge sheet was submitted against altogether 4 thirteen accused persons. Subsequently, on the ground of juvenility, the case of four accused persons was separated. During the pendency of the trial, one accused, namely, Siyaram Singh, died and by the order dated 6.8.1998, passed by the trial court, the case of Siyaram Singh stood abated. As indicated above, after the death of Jamuna Singh, appellant no.2, in Cr.Appeal No.508 of 2003, his case stood abated in view of order dated 11.2.2010 passed by this Court. Now the case of total seven appellants, i.e. six in Criminal Appeal No.508 of 2003 and one in Cr.Appeal No.27 of 2004, is before me for consideration. 7. The defence of all the appellants, as has been advanced by Sri Kanhaiya Prasad Singh, learned Senior Counsel appearing on behalf of the appellants, is that there were case and counter case in between the parties and the prosecution has not produced evidence before the Court for giving a true picture of the case, rather they have suppressed the facts. 8. Second limb of defence argument advanced by Sri Singh is that the place of occurrence has not been proved by the prosecution beyond all reasonable doubts. However, the investigating officer has found the place of occurrence in the case instituted by one of the accused persons, namely, Siya Ram Singh, who was an injured, as true during investigation. He argued that in injured condition, Siyaram Singh (since dead) arrived at the Police Station and on his written report a case vide Kurhani P.S. Case No.21 of 2006 was instituted against the prosecution party. It was also argued that the genesis and manner of occurrence have not been proved by the prosecution. Sri Singh has vigorously attacked the prosecution case with a plea that the witnesses were inconsistent on the point of distance of firing on the deceased and from time to time they had given different story regarding the distance of firing. The prosecution case is falsified on the basis of injuries found on the person of the deceased by Dr. Shailesh Kumar Singh (P.W.5), who held autopsy on the dead body of Jai Mangal Singh. He further argued that injuries noticed in the injury report prepared by Dr. Rajiv Bhushan Sinha ( P.W.4) in respect of injured P.W.1 Rajeshwar 5 Singh and P.W.3 Ram Naresh Singh indicate that injuries were not such as was alleged either in the first information report or in the evidence of prosecution witnesses. 9. During the trial, prosecution examined altogether seven witnesses to prove its case. Out of seven witnesses, P.W.1 Rajeshwar Singh and P.W.3 Ram Naresh Singh were injured and eye witnesses to the occurrence. P.W. 3 is the informant of the case. P.W.2 Ram Chhabila Singh, brother of the informant, is an eye witness to the occurrence.P.W.4, Dr. Rajiv Bhushan Sinha, has examined injuries which were received by Rajeshwar Singh (P.W.1) and Ram Naresh Singh (P.W.3) . Dr. Shailesh Kumar Sinha ( P.W.5) has conducted the autopsy on the dead body of Jai Mangal Singh and he proved the report of the postmortem examination which has been marked as Ext.4. P.W.6, Pramod Kumar Singh, is the investigating officer of the case and he has proved the fardbeyan, first information report and inquest report which were marked as Exts.5, 6 & 7 respectively. P.W.7 Ram Bilash Singh, karpardaz, has been examined to prove the First Information Report dated 24.2.1986 which has been marked as Ext.8. Similarly, Vidyanath Jha (P.W.8), who was an Advocate’s Clerk, has proved the protest petition and signature dated 31.3.1986 and the same have been marked as Exts.9 and 10. Now, coming to the evidence of the informant (P.W.3), I may indicate that P.W.3 besides supporting the prosecution case, as alleged in the first information report, has further deposed during the trial with a specific case that appellants Ram Balak Singh and Harendra Singh assaulted him with Lathi and Rajeshwar Singh was given Farsa blow by the appellant, Baleshwar Singh. Similarly, P.Ws.1 and 2 have supported the prosecution case and deposed during the trial like P.W.3 by stating specifically that all the appellants had shown their overt act during the occurrence. It is apt to indicate that in paragraph 2 at page 13 of the paper book, Rajeshwar Singh (P.W.1) has stated regarding participation of the appellants with Lathi during the occurrence and in paragraph 3 at page 21 of the paper book P.W.2 has identically alleged participation of the rest of the appellants on the point of firing 6 by appellant, Raj Kumar Singh and giving a Farsa blow by appellant Baleshwar Singh. The evidences of all the three witnesses are consistent. 10. While examining the case of prosecution whether it was truthful or not, I have tested the evidence of injured witnesses i.e. P.Ws. 1 and 3. It is proper to refer paragraph 14 at page 17 of the paper book regarding cross-examination of P.W.1 wherein he asserted that Ram Naresh Singh (P.W.3) had received ten Lathi blows and all the blows hit the whole body of Ram Naresh Singh. If I examine the injury report of P.W.3, which is marked as Ext.3, It is clear that the injury does not corroborate the allegation as made by P.W.1 in paragraph 14 of his cross-examination. Dr. Rajiv Bhusan Singh, P.W.4, who has examined injury of P.Ws.1 and 3 has deposed during the trial that there were no evidence of external injury on the person of Ram Naresh Singh. P.W.4 only noticed complaint of pain in all over his body which was made by injured himself. Similarly, Rajeshwar Singh (P.W.1) stated that he received Farsa blow on his knee which was given by Baleshwar Singh. Ram Chhabila Singh (P.W.2) supported the statement of P.W.1. Ram Naresh Singh (P.W.3) in paragraph 23 at page 37 of the paper book is very much categorical on the point that by way of holding Farsa by both hands, forcibly Farsa blow was given on Rajeshwar Singh. Rajeshwar Singh was also assaulted by Lathi blow. In his further cross-examination in para-24 at page-37, he had taken a complete different stand and said that Rajeshwar Singh was not assaulted by Lathi but he received only Farsa blow. Now, coming to the evidence of P.W.4, Dr. Rajiv Bhusan Sinha, I may indicate that P.W.4 has noticed only one injury on the person of Rajeshwar Singh which is lacerated injury ½” x ¼” x skin deep situated in front of left knee. The doctor opined that the injury was caused by hard and blunt substance which may be Lathi or back portion of Farsa. In his cross-examination at paragraph 5, P.W.4 has stated that the injury caused on Rajeshwar Singh can be caused by falling. 11. On the point of injury received by P.Ws.1 and 3 during the course of alleged occurrence, after noticing the evidences of injured witnesses and the injury report of 7 the doctor, there is no doubt in the mind of the court that the prosecution case is not proved beyond all reasonable doubts. 12. P.W.6, Pramod Kumar Sinha, who has conducted investigation of the case, has also noticed that the story as alleged by the appellants in respect of Kurhani P.S. Case No.21 of 1986 to the extent of place of occurrence was true. In paragraph 5 of his examination at page 55 of the paper book, he has stated that he had inspected the second place of occurrence, which was a field of potato where fight had initially started. It was a potato field of Jamuna Singh, appellant no.2, (since deceased) which was in about ½ Katha of land. He found that the entire potato field was trampled. He also noticed that even potatoes had come out from the field due to trampling. He has made it clear in paragraph 15 at page 60 of the paper book that second place of occurrence was in respect of Kurhani P.S. Case No.21 of 1986. While inspecting first place of occurrence i.e. place of occurrence in Kurhani P.S. Casse No.20 of 1986, he noticed that it was only 6`long and 2` wide area near the wheat field. Story of prosecution that about 13 accused persons assembled at the place of occurrence at such a narrow radius and committed the crime appears to be not probable. 13. I quite appreciate the argument advanced by Sri Kanhaiya Prasad Singh creating doubt in respect of injuries found on the dead body of Jai Mangal Singh and about evidences of prosecution witnesses. It was the case of prosecution that Raj Kumar Singh fired from his gun on the order given by the appellant, Binda Singh, from a distance of about 8/9 hands. Admittedly, none of the witnesses have stated that shot was fired from a very close range. On the contrary, the witnesses have deposed that it was made from some distance. The doctor, i.e., P.W.5, who had conducted postmortem examination on the dead body of Jai Mangal Singh, found only one injury, i.e., one wound of entry at the left temporal region with blackening and tattooing having dimension of ½`` diameter and exit wound was ¾” in diameter. The doctor had not detected any other injury. Sri Singh has argued that mark of blackening and tattooing on the injury of the deceased indicates that firing was made from point 8 blank range and, as such, the evidence of witnesses on the point of gun shot injury cannot be believed. He submitted that if firing is done from some distance, there is no possibility of causing blacking and tattooing mark on the entry point of the injury. He relied upon a constitution Bench judgment of the Supreme Court in the case of Santa Singh Vs. State of Punjab (A.I.R. 1956 SC 526). He particularly referred paragraph 5 of the judgment. It is appropriate to quote paragraph 5 which is as follows: The circular wound of entry at the back of the deceased, ¼” in diameter, had burnt inverted margins according to the doctor who conducted the postmortem examination. The ballistic expert, Dr. Goyle, examined as P.W.11, said that if there were burnt edges of the wound, the distance between the muzzle and the victim would only be a few inches and not more than nine inches. This opinion is in substantial accord with what is found in some of the text books on medical jurisprudence. For instance, it is stated in Taylor’s Principles and Practice of Medical Jurisprudence, Vol. I, 10th Edition, at page 441, under the heading “Burning on the Wound”: “It is impossible to state rules as to the precise distance from which it is possible produce marks on burning, for this depends on the quantity and nature of the powder, the method of charging, and the nature of the weapon. It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shot gun, or at more than half a yard with a revolver.” 14. So far as development of story by the prosecution witnesses during the trial in respect of attributing allegation against the appellants Jagdish Singh, Ram Balak Singh, Bimal Kumar Singh and Harendra Singh that they assaulted the witnesses by Lathi, giving specific picture Sri Singh, learned Senior Counsel, has taken me to the evidence of P.Ws.1, 2 and 3 which shows that attention was drawn to them as to whether such a statement was made during investigation or not. Subsequently, while Investigating Officer was being examined, the defence had also taken contradiction under section 145 of the Evidence Act. On the reading of evidence of P.Ws.1, 2 and 3, there is no doubt in the mind of the court that with a view to prove the case against the aforesaid appellants such statement was developed during the trial which creates 9 suspicion on the prosecution case and, as such, on the basis of such calculated and designed evidence it is not desirable to hold the appellants guilty. 15. Shri Singh has further argued that the prosecution witnesses have not come out with a fair case inasmuch as none of the prosecution witnesses have said that the injuries were sustained by the appellants also and there were case and counter case between the parties, whereas P.W.6, who is Investigating Officer of the case in paragraph 8 at page 57 of the paper book stated that on the same date of occurrence Sia Ram Singh (since dead), who was father of appellant no.6, namely, Baleshwar Singh and first information report named accused in the present case, had come to the police station and on his fardbeyan Kurhani P.S. Case No.21 of 1986 was registered. P.W.6 has further found the place of occurrence of Kurhani P.S. CaseNo.21 of 1986 as believable. One thing may not go unnoticed which is the first information report lodged on the fardbeyan of Urmila Devi, who had gone to the place of occurrence along with the informant and, as such, she received gun shot injury on her head. Sri Singh has argued that Urmila Devi had lodged a case on 24.2.1986 in which she disclosed that she received one gun shot injury in the occurrence. Ext.8, which is fardbeyan of Urmila Devi, indicates that she had specifically stated that Raj Kumar Singh lifted his gun and fired upon her which hit her head due to which she fell down and became unconscious. This part of the story of Urmila Devi is sufficient to indicate the reason for withholding her evidence in the present case by the prosecution. Perusal of fardbeyan of Urmila Devi makes out a case that in the said occurrence only one shot was fired by appellant, Raj Kumar Singh from his gun whereas in the first information report of the present case the informant disclosed that Raj Kumar Singh thrice fired from his gun and first firing hit the father of the informant and second hit Urmila Devi. 16. After discussing the evidence of prosecution witnesses as well as documentary evidence, there is no doubt in my mind that the prosecution has not come out with clean hand and the evidences are inconsistent. The blackening and tattooing mark 10 found on the injury of the deceased, Jai Mangal Singh, is sufficient to turn down the prosecution case, as rightly argued by Shri Kanhaiya Prasad Singh, learned senior counsel appearing on behalf of the appellants. 17. Shri Ashwini Kumar Singh, Additional Public Prosecutor, appearing on behalf of the State, was not in a position to controvert the argument advanced on behalf of the appellants. However, he forcefully tried to defend the case of the prosecution. 18. It is pertinent to note that during investigation the witnesses appears to have stated before the police that firing was made from a distance of 50-60 ft., which is evident from paragraph 17 of the deposition of P.W.3, Ram Naresh Singh. Of course, on attention being drawn to him to his previous statement, he had denied and said that he had not stated before the police that firing was made from a distance of 50-60 ft. Shri Singh submitted that manner of occurrence, as alleged by the prosecution, is not true. He submitted that though during investigation the witnesses made their statement that firing was made from a distance of 50-60 ft. but, it appears that after noticing the fact contained in the postmortem examination report and on being advised the witnesses particularly P.W.3 has tried to make out a case with calculated move that firing was made from a distance of 2-3 yards. I am in agreement with the argument of Sri Singh, particularly in view of Santa Singh case (supra). Conflict between the evidence of prosecution witnesses, particularly P.Ws.1, 2 and 3 on one hand and the evidence of P.W.5, Dr. Shailesh Kumar Sinha and also postmortem examination report, Ext.4, on the other hand, is sufficient to persuade the court to believe that the prosecution case is doubtful and if there is doubt certainly benefit of doubt, as settled law, is to be given to the accused persons. 19. In view of the evidences discussed herein above, I am of the view that the prosecution has not proved its case beyond all reasonable doubt and, as such, it is a fit case where I may extend the benefit of doubt in favour of the appellants. Accordingly, both the appeals succeed. The judgment and order of conviction and sentence dated 14.11.2003 and 15.11.2003 respectively, is hereby set aside and both the appeals are 11 allowed. Six appellants in Cr.Appeal No.508 of 2003, who are on bail are hereby discharged from the liability of their bail bonds. The appellant, Raj Kumar Singh in Cr.Appeal No.27 of 2004, who is in jail is directed to be released forthwith, if not required in any other case. Dharnidhar Jha, J. I agree. Patna High Court, Patna The 19th March, 2010 Md.S. (NAFR) ( Rakesh Kumar, J.) (Dharnidhar Jha, J.)