Death Reference No. 002 of 2006 With Criminal Appeal No. 111 of 2006 With Criminal Appeal No. 167 of 2006 With Criminal Appeal No. 179 of 2006 **** Reference made by Sri Arvind Kumar Sinha, Additional Sessions Judge, Fast Track Court, III, Bhagalpur, vide letter no. 3, dated 20.01.2006, and against the judgment of conviction, dated 09.01.2006, and order of sentence, dated 13.01.2006, passed by him in Sessions Case No. 149 of 1998/Trial No. 57 of 2004 **** Death Reference No. 2 of 2006 The State of Bihar .. Appellant Versus Bahadur Yadav .. Condemned Prisoner Medi Paswan .. Appellant (in Criminal Appeal No. 111/06) Ram Bilash Mandal .. Appellant (in Criminal Appeal No. 167/06) 1. Bahadur Yadav 2. Arbind Kumar Rai .. Appellants (in Criminal Appeal No. 179/06) Versus The State of Bihar .. Respondents (in all the Appeals) **** 2 For the appellants .. M/S Sanjay Singh, Neeraj Singh, Ranjeet Prasad and Sibesh Mishra, Advs. For condemned Prisoner .. Mr. Lala Kailash Bihari and the State Prasad, P.P. **** P R E S E N T THE HON’BLE JUSTICE MRS. MRIDULA MISHRA THE HON’BLE MR. JUSTICE SHAILESH KUMAR SINHA Mridula Mishra, J. Death Reference No. 2 of 2006 has been heard analogous with Criminal Appeal No. 111 of 2006 (Medi Paswan Vrs. The State of Bihar), Criminal Appeal No. 167 of 2007 (Ram Bilash Mandal Vrs. The State of Bihar) and Criminal Appeal No. 179 of 2006 (Bahadur Yadav & Anr. Vrs. The State of Bihar) and are being disposed of by a common judgment and order. 2. The Death Reference is for confirmation of judgment and order, dated 09.01.2006, passed by the Additional Sessions Judge, Fast Track Court, III, Bhagalpur, in Sessions Case No. 149 of 1998, whereby Bahadur Yadav, appellant no. 1, of Criminal Appeal No. 179 of 2006 has been convicted under Sections 302/34 and 379 of the Indian Penal Code and sentenced to death punishment. He is ordered to be hanged by neck till death under Section 302/34 of the Indian Penal Code. Against same impugned 3 judgment, Appeals have been filed by appellants, Bahadur Yadav, Arbind Kumar Rai, Ram Bilash Mandal and Medi Paswan. Appellants, Arbind Kumar Rai, Ram Bilash Mandal and Medi Paswan, have been convicted under Sections 302/34 of the Indian Penal Code read with 379 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- (rupees five thousand) each under Section 302/34 of the Indian Penal Code. They have, further, been sentenced six months’ rigorous imprisonment under Section 379 of the Indian Penal Code. In case of default of payment of fine they have to undergo simple imprisonment for two years. 3. The prosecution case, as unfolded in fardbeyan of informant, Mahohar Paswan (P.W. 6), dated 17.11.1996, before the Sub Inspector of Police, Lodipur Police Station at 09.45 p.m. is that on the same day at about 06.45 p.m., the informant, Manohar Paswan, was returning to his house. He saw a crowd near Cooperative Bhawan and also came to know that his brother, Shaligram Paswan (deceased) has been apprehended by Constables. He asked one of the Constables, Bahadur Yadav, as to why his brother has been arrested, but no reply was given by him. Shaligram Paswan, who was in custody of Police Constables, told him that his rupees three hundred have been snatched by these Guards. The informant asked Bahadur Yadav and other Guards to get his brother free. On this, the Guard told him that since his brother has made allegation of snatching of rupees three 4 hundred by them therefore, they would not let him free rather he will be produced before “Bada Babu”. The informant, thereafter, returned to his house telling the Constables that if they do not want to let his brother to go, he himself will meet the Officer-in-Charge when he comes. The informant returned to his house and after changing dress, again, proceeded for Cooperative Bhawan to see his brother. When he had moved a little distance ahead of his house, he met co-villager, Gainu Paswan (P.W. 2). Gainu Paswan informed him that a Jawan of Home Guard, who is bald headed, has shot dead his brother and his dead body is lying in front of Cooperative Bhawan. The informant had also heard sound of firing some time earlier. He went running to the Cooperative Bhawan and saw his elder brother, Shaligram Paswan, lying dead in the field in front of Cooperative Bhawan. He was shot at in the middle portion of his neck. The Jawans of Home Guard were not near the Cooperative Bhawan. The informant enquired about the persons standing there and they informed that Shaligram Paswan was drinking toddy in Lodipur Pasikhana from where Chowkidar, Medi Paswan, brought him near the Guards on a false pretext that he is being called by the Officer-in-Charge. The Officer-in-Charge was not there at the Police Station and Medi Paswan took his brother near the Guards. Rupees three hundred cash which was in the pocket of his brother after selling the apples were snatched away by the Jawans of Home Guards. Shaligram Paswan was detained by the Guards. When the informant has requested the Jawans for 5 releasing his brother, at that time “hmt Janta” watch was on his wrist, but that was found missing from the dead body of his brother. When the informant had gone to get his brother released from the clutches of Jawans of Home Guards, one of the Jawans, Bahadur Yadav, had told him that they could detain any person for twenty four hours. The informant alleged that the Jawans of Home Guards of Cooperative Bhawan have shot his brother dead. The reason behind the occurrence is snatching of rupees three hundred and wrist watch from his brother during which the dispute arose. The accused, Medi Paswan, Chowkidar, has fully aided in commission of the murder, because five days before the occurrence he had forcibly demanded rupees twenty from his brother, Shaligram Paswan, for drinking toddy, which was refused by his brother. The Chowkidar, Medi Paswan, was in the habit of taking money from people in which regard complaints have also been made to the Officer-in-Charge. On the day of occurrence also Medi Paswan, because of not giving the money, kept his brother in guard of Jawans where he was shot dead and his money and wrist watch were snatched. The occurrence was witnessed, as per the fardbeyan by Genu Paswan, P.W. 2, Ram Anup Mandal (not examined) and Ganauri Mandal (P.W. 6) declared hostile. 4. On the basis of the fardbeyan, Sabour (Lodipur) P.S. Case No. 252 of 1996 was registered under Sections 302 and 379 of the Indian Penal Code read with Section 27 of the Arms Act against two named accused persons, namely, Bahadur Yadav and Chowkidar, Medi Paswan. So 6 far Arbind Kumar Rai and Ram Bilash Mandal are concerned, their names were not in the column of the accused in the first information report. The police submitted charge sheet against named as well as unnamed accused persons. Cognizance was taken and the case was committed to the Court of sessions. Charge was framed, against the accused persons, under Sections 302/34 and 379 of the Indian Penal Code to which they pleaded not guilty and claimed for trial of the case. 5. The prosecution, in support of charge, examined eight witnesses. P.W. 1, Sushil Paswan is the son of Gainu Paswan (P.W. 2) and is not an eye witness. He is an inquest witness and has signed inquest report. In his evidence (Paragraph 6) P.W. 1 has admitted his statement was not recorded under Section 161 of the Criminal Procedure Code, during investigation. He is a hear-say witness whose house is at a distance of 1 K.M. north to the Police Station. 6. P.W. 2, Gainu Paswan, has been examined as eye witness. He is maternal uncle of the deceased and informant and father of P.W. 1. The evidence of P.W. 2 has heavily been relied upon by prosecution and he happens to be the star witness. P.W. 2 has claimed to have witnessed the incident when deceased was kept in captivity by the Home Guards and when the deceased was shot, on account of altercation relating to snatching of rupees. P.W. 2, in his evidence, has not named the assailant but has described physical features of the assailant that he was a bald headed person, 7 who shot at Shaligram Paswan. P.W. 2 has stated, in his evidence, that the occurrence took place at 07.00 p.m. and at that time he was at tea stall, which is at a distance of 2-4 cubits from the actual place of occurrence. P.W. 2 is aged about sixty years, as per his deposition. This witness has also admitted, in his evidence, that no Test Identification Parade was held for identification of the assailant and for the first time he has identified the assailant in dock in Court. 7. P.W. 3 is Gholtan Paswan. As per the evidence of P.W. 2, Gainu Paswan, Gholtan Paswan came after the occurrence. P.W. 3 has been examined by the prosecution as an eye witness and he himself also claimed to be sitting at the shop of Indu Tanti at the time of occurrence. He claims to be eye witnesses of both parts of the prosecution story, i.e., the detention of the deceased by the accused persons and firing by them causing his death. P.W. 3 is also a seizure list witness of empty cartridges. P.W. 3 has deposed that Shaligram Paswan was caught and taken away by Jawans from a toddy shop. P.W. 3 is the only witness who could identify Bahadur Yadav by name. He identified Ram Bilash Mandal in Court, but could not name him. He failed to identify appellant, Medi Paswan, though he is Chowkidar of his village. P.W. 3 had admitted that he is cousin of deceased, Shaligram Paswan. 8. P.W. 4 is Ashok Kumar Mandal. This witness runs a shop of “chura dahi” near the place of occurrence. He has admitted that the date of occurrence was the evening puja of “chhath” festival and the offices, near- 8 by the place of occurrence were closed. This witness has also admitted that his statement was not recorded under Section 161 of the Criminal Procedure Code, during investigation. He has stated that he was informed by three boys about the occurrence and has not witnessed the occurrence. He did not recognize the persons altercating with Shaligram Paswan, the deceased. 9. P.W. 5, Ganauri Mandal, has deposed that he was returning from market when altercation was going on between deceased and Jawans. The deceased was demanding his three hundred rupees and wrist watch from three Home Guards and one Chowkidar. The Guards and Chowkidar had confined him and were saying that matter will be decided after the Officer-in- Charge returns. He proceeded for his house and there he was informed by three boys that Shaligram Paswan was killed by the Guards. He, again, went to the place of occurrence, saw dead body of Shaligram Paswan lying on the ground with bleeding injury on his throat. The people were saying that Bahadur Yadav had killed him. This witness has been declared hostile and cross examined by the prosecution. 10. P.W. 6 is the informant, Manohar Paswan. He is own brother of deceased. He has deposed that when he was returning from Bhagalpur, he stopped near Cooperative Bhawan and saw scuffle going on in between Shaligram Paswan (deceased) and accused persons. He was informed that Guards have detained his brother, Shaligram Paswan. P.W. 6 has witnessed only first part of the occurrence. So far firing and shooting is 9 concerned, he was informed by P.W. 2. He has not witnessed actual assault. He has deposed about the missing of watch from the wrist of his deceased brother, which was on his wrist when he had gone to Cooperative Bhawan for the first time and his brother had complained about snatching of rupees three hundred from him by the Home Guards. He has not identified the accused persons by name. Only Medi Paswan was identified by name. P.W. 6 has also stated that when he went to Cooperative Bhawan he had asked Bahadur Yadav, Guard, as to what was the matter, he did not reply. Another Home Guard replied that Shaligram Paswan has alleged regarding snatching of three hundred rupees from him and that is the reason that he has been detained by them. Informant, P.W. 6, is a hear-say witness, so far the actual assault is concerned. This witness has admitted that Bahadur Yadav was known to him from before and he did not know the name of others. This witness has also admitted that there were quite a large number of his co- villagers assembled at the place of occurrence, when he visited the place of occurrence receiving the information about the death of his brother. 11. P.W. 7 is Dr. Atul Kumar Mallick, who was posted as Assistant Professor, Forensic Medicine at J.N.M.C., Bhagalpur, at the relevant time and performed the post mortem examination on the dead body of deceased, Shaligram Paswan. P.W. 7 had found one wound of entry with inverted margine 1 - 1/2 c.m. leading to left chest cavaty near the middle of lower part of neck. His opinion is that bullet after piercing trachea entered 10 left chest cavaty from behind left clavicle and pierced left lung and its pluera causing fracture of left scapula and came out through wound of exit with everted margine 2- 1/2 c.m. 1-1/2 c.m. over scapular region 3” above. The injury was caused by fire arm grievous and dangerous of life, in an ordinary course of nature. P.W. 7 had found toddy in the stomach of the deceased and he was of the opinion that the deceased had taken toddy before death. He did not find any charring and blackening present at the point of injury. 12. P.W. 8, Md. Shakur, is an Advocate Clerk. He has proved all documents relied upon by the prosecution, including the letter of investing officer to Sergeant Major asking for his opinion regarding firing made from rifle no. 30176Z, butt no. 581, barrel no. 303 and inspection report of rifle sent by Sergeant Major, Vinod Kumar Sinha, marked as Exhibits 4, 4/1 the Guard Book of deputed Constables, dated 03.11.1996 to 17.11.1996, Exhibit 5, seizure list, Exhibit 6, inquest report, Exhibit 7, statement of Gainu Paswan, Ganauri Mandal and Ramrup Mandal, recorded by Kamlesh Mishra, Judicial Magistrate, 1st Class, Bhagalpur, under Section 164 of the Criminal Procedure Code as Exhibits 8, 8/1 and 8/2 as well as statement of Ashok Kumar Mandal, Dilip Mandal, recorded under Section 164 of the Criminal Procedure Code by Shri Arun Kumar Jha, Judicial Magistrate, 1st Class, Bhagalpur, as Exhibits 8/3 and 8/4. He has also proved the fardbeyan recorded by the Officer-in-Charge of Lodipur Police Station as Exhibit 9 as well as paragraphs 20, 21 and 66 of the case diary marked as Exhibit “A”. He 11 has admitted that since he is an Advocate Clerk he has no personal knowledge about the case and fardbeyan or any paper related to this case as they were not prepared in his presence. He has also admitted that none of the witnesses were examined by the investigating officer in his presence and he is not acquainted with the witnesses. He can not identify the signature of the witnesses and further he has admitted that the gun from which firing was made not seized in his presence. 13. Two defence witnesses have been examined. One of them was appellant, Medi Paswan, himself. The defence witnesses have been examined in support of the claim of alibi taken by appellant, Medi Paswan, that he was on duty at different place at the time of alleged occurrence and camman was issued in his favour in regard to this duty. 14. The statement of appellants, Medi Paswan, Arbind Kumar Rai, Ram Bilash Mandal and Bahadur Yadav, has been recorded under Section 313 of the Criminal Procedure Code. All appellants in the statement under Section 313 of the Criminal Procedure Code have denied that the murder of the deceased, Shaligram Paswan, was committed by them, Bahadur Yadav has specifically stated in his statement under Section 313 of the Criminal Procedure Code that on the date of occurrence Arbind Kumar Rai was on sentry duty at the time of occurrence. The rifle from which murder of deceased, Shaligram Paswan, was committed and seized had been issued in the name of Home Guard, Arbind Kumar Rai. The shot had been fired with 12 butt no. 581 which belonged to Arbind Kumar Rai. The shot had not been fired from his rifle and he has been implicated falsely. 15. The investigating officer of the case has not been examined and paragraphs 20, 21 and 66 of the case diary have been exhibited and marked as Exhibit “A”. Exhibit “A” is the statement of Arbind Kumar Rai. His statement is that deceased, Shaligram Paswan, was in drunken stage and creating nuisance, as such, detained by the Guards. Fifty-sixty people had assembled there and started creating trouble, as such, in order to save Government rifles as well as to scare the mob, fire was made by him in the sky which accidentally hit Shaligram Paswan and he died on the spot. He, along with two Jawans of Home Guards, Bahadur Yadav and Ram Bilash Mandal, went to Lodipur Police Station with rifle and cartridges. Next statement is of appellant, Ram Bilash Mandal, where it has been stated that firing of shot was done from the rifle of Arbind Kumar Rai, who was on sentry duty at the time. Firing made from his rifle hit Shaligram Paswan and he died. The supervision note, which is part of the case diary, has also been exhibited and there the finding is that the accused persons detained Shaligram Paswan in the Guard Room at the instance of Medi Paswsan. Shaligram Paswan was trying to flee away and this accused, Arbind Kumar Rai, who was on sentry duty pointed the Government rifle towards the deceased and said that if you will try to flee away you will be shot dead. In this process the 13 shot was fired with the rifle, which hit Shaligram Paswan and he died on the spot. 16. Exhibit 4 is the letter which has been written by the investigating officer of Sabaur (Lodipur) P.S. Case No. 252 of 1996 to the Sergeant Major, Police Line, Bhagalpur, regarding examination of butt no. 581 in connection with case registered as Sabaur (Lodipur) Police Station under sections 302/34 and 379 of the Indian Penal Code and 27 of the Arms Act against Home Guards, Jawans and Chowkidar. A request has been made to examine the rifle no. 30176Z, butt no. 581, barrel no. 303, and an empty cartridge, at the bottom of which O.K. 887 is mentioned and report whether the pillet has been fired from this rifle or not and the empty cartridge belongs to the same rifle or not. Exhibit 4/1 is report of Sergeant Major where it has been mentioned that the smell of gun powder is still coming from the barrel no. 303, rifle no. 30176Z with butt no. 581. It is clear that a shot has been fired from this rifle and the rifle is in working order. Exhibit 5 is writing, dated 17.11.1996, in the Guard Book. The Guard Book relates to assigning of sentry duty and the Government properties like rifles and cartridges supplied to them. Exhibit 5 reads as follows : “Today, i.e., on 17.11.1996, the armed guard of ¼ was deputed in Lodipur village under Lodipur Police Station from 08.00 a.m. for the next 24 hours. Each of them was assigned 14 sentry duty for two hours each for safety of the Government properties like five rifles, 100 round (unintelligible) cartridges and other Government properties and they have been warned to remain alert and vigilant while discharging the duty. If any laches is found, departmental proceeding will be initiated against them. Everything was explained to them and their signatures were obtained so that they may be of used when required.” In this Guard Book the arms supplied to each person on sentry duties and their details have been mentioned in which butt no. 581, cartridge no. 9449 was allotted to Arbind Kumar Rai. Bahadur Yadav was allotted rifle butt no. 565/26,7728. Exhibit 6 is seizure list where the details of the seized articles shows seizure of one barrel no.303 rifle of the police of which butt no. is 581, and rifle no. 30176Z is mentioned in which an empty cartridge no. 303 has been recovered as O.M. 88-70 mentioned on its bottom. Exhibit 12 was one of the Guard Book in which entries have been made from 03.11.1996 to 17.11.1996. 17. The counsel for the appellants has submitted that Exhibits 4, 4/1, 5 and “A”, which are admitted Exhibits, show that the prosecution has screened and concealed the real story. There is another part of the story 15 which has erroneously been ignored by the trial Court while examining the evidence. In the trial Court judgment neither the statement of appellant, Bahadur Yadav, recorded under Section 313 of the Criminal Procedure Code nor Exhibits 4, 4/1, 5 and Exhibit “A” have been considered or discussed though these Exhibits throw light that the firing was not made by Bahadur Yadav as deposed by the prosecution witnesses. The prosecution witnesses, as such, are not trust worthy and their claim to have witnessed the occurrence is also not correct. 18. Mr. Sanjay Singh, counsel appearing for the appellants, Bahadur Yadav and Arbind Kumar Rai, has submitted that judgment of conviction and order of sentence passed by the trial Court is erroneous as the evidence, documentary as well as oral, has not been considered in it’s correct perspective. So far the documentary evidence, such as, Exhibits 4, 4/1 and “A” are concerned, they were marked Exhibits without any objection. Only Exhibit 5 was marked Exhibit with objection, but Exhibit “A”, statement of Arbind Kumar Rai, Ram Bilash Mandal (appellants) recorded by the investigating officer, during investigation of the case, support that the firing was made by rifle no. 30176Z, barrel no. 303 and butt no. 581. Arbind Kumar Rai himself made a statement that firing was made from his rifle just to scare the mob in order to protect the Government properties, such as, rifles and cartridges kept at Cooperative Bhawan. This Exhibit is further corroborated by the statement of appellant, Bahadur Yadav, recorded under 16 Section 313 of the Criminal Procedure Code. The trial Court completely ignored and over looked these unimpeachable and important piece of evidence. Over looking these evidence a judgment of conviction was passed and appellant, Bahadur Yadav, has been awarded death sentence. 19. The counsel for the appellants has, further submitted that in the present case non-examination of the investigating officer has caused prejudice to the case of defence. In fact, investigating officer was withheld by the prosecution deliberately. The prosecution has not shown any reason for non-examination of the investigating officer. It has further been submitted that had the investigating officer been produced by the prosecution he would have been confronted to those two paragraphs in the case diary which have been marked Exhibit “A” and true facts would have come in fore. The prosecution has withheld examination of investigating officer with an intention to cover up the lacunae in prosecution case. The informant, in the first information report, has not mentioned about existence of tea shop or refreshment shop from where two witnesses, i.e., P.Ws. 2 and 3 have claimed to have seen the incident. If the investigating officer would have been examined he could have been confronted with the surrounding of place of occurrence to bring about the real fact and