1 CRIMINAL APPEAL No.216 OF 2004(D.B.) - - - - Against the judgment of conviction dated 3.2.2004 and order of sentence dated 5.2.2004 passed by the 4th Additional Sessions Judge, Begusarai, in Sessions Trial No.23 of 2oo2. - - - - HARE RAM SINGH … … Appellant Versus STATE OF BIHAR … … Respondents With CR. APP (DB) No.119 of 2004 1. TUNTUN SINGH 2. Lucho Singh 3. Suchit Singh 4. Ram Kumar Singh 5. Ram Sudhar Singh … … Appellants Versus STATE OF BIHAR … … Respondent With CR. APP (DB) No.173 of 2004 HARISH CHANDRA SINGH … … Appellant Versus STATE OF BIHAR … … Respondent For the appellants: S/Shri Hare Krishna Kumar ( in all the appeals) Amiya Kumar Ritesh Kumar Narain Singh Abdul Kalam Raj Kumar, Advocates For the State: Shri Rajendra Nath Jha, Addl.P.P. P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE RAKESH KUMAR - - - - Dharnidhar Jha,J.- The present set of three appeals have been filed by the appellants, described above, to question the correctness of the finding of their guilt recorded by the learned Additional Sessions Judge, 4th Court, Begusarai, in Sessions Trial No.23 of 2002 on 3.2.2004 as also the propriety of the sentences passed against each of them by the order of sentence dated 5.2.2004. 2 2. Appellants Hare Ram Singh and Harish Chandra Singh were charged together under Sections 302, 302/149, 323 of the Indian Penal Code and Section 27 of the Arms Act and they were held guilty of committing the offences under Sections 302 and 323 of the Penal Code and 27 of the Arms Act and were directed to suffer rigorous imprisonment for life, rigorous imprisonment for six months as also rigorous imprisonment for a year under the above noted respective sections of the Penal Code and the Arms Act. Besides, the above noted two appellants were also directed to pay a fine of Rs. 5,000/- each under Section 302 of the Penal Code in addition to the sentence of rigorous imprisonment for life, else, to suffer rigorous imprisonment for six months each. As regards the other five appellants of Cr Appeal No. 119 of 2004, they had been charged under Sections 302/149 and 323 of the Indian Penal Code and Section 27 of the Arms Act and they were found guilty under Sections 302/149 and 323 of the Penal Code and each of them was directed to suffer rigorous imprisonment for life and six months respectively for his individual conviction. 3. The prosecution case emanates from the fardbeyan ( Ext.10) of the informant P.W.3, Rupesh Kumar Singh recorded on 30.6.2001 at village Aighu in which he 3 stated that there was a dispute for some land between his neighbour Nandan Kumar Singh( P.W.4) and appellant Harish Chandra Singh. The father of the informant, who happens to be the deceased of the present case, namely, Ramesh Chandra Prasad Singh, was striving for an amicable settlement of the land dispute between the parties. For the above purpose, the deceased along with P.W. 4 Nandan Kumar Singh set out for Begusarai on 30.6.2001 at 12.30 P.M. They had a cycle with them, but were moving on foot. P.W. 3, the informant and Ram Prakash Singh (P.W.8) were also going to Hemra Chowk and were moving behind the deceased and P.W.4 who were about 500 yards ahead of P.Ws. 3 and 8. 4. When the deceased and P.W.4 were on the pitch road in front of the shop of one Bhola Choudhary at about 1 P.M. all the appellants came and surrounded P.W.4 Nandan Kumar Singh and the deceased. They started to drag the said Nandan Kumar Singh and the deceased down the pitch road from its earthen flank. The deceased offered resistance. The appellants who were armed with pistols, thereafter, started giving blows with butt of their pistols to P.W. 4 Nandan Kumar Singh. The deceased forbade them to do so, upon which, it is alleged, appellant Harish Chandra Singh alias Lulha fired a shot from his pistol into the belly of the deceased Ramesh Chandra Prasad Singh who 4 fell down injured on the ground. In the meantime, Nandan Kumar Singh freed himself from the clutches of the accused persons and ran away from there. Appellant Hare Ram Singh fired the other shot from his pistol into the head of the deceased as a result of which the head of the deceased was completely avulsed. After having committed the murder of the father of the informant, the accused persons ran away into the west- south direction. 5. On the basis of Ext.10, the fardbeyan of P.W.3 which was recorded by S.I. S.K. Jha, the F.I.R. Ext.12 was drawn up by the same Officer. P.W. 9 S.I. Rajeshwar Sharma took up the investigation of the case. 6. S.I. Rajeshwar Sharma has stated in his evidence that a telephonic message was received at Begusarai Muffasil Police Station where he was posted on the day of occurrence that a man had been murdered at village Chhoti Aighu. The information was entered in the station diary, vide entry no.802 dated 30.6.2001 and P.W. 9 along with S.I. Shyama Kant Jha and A.S.I. Nitya Nand Singh started for verifying the truthfulness of the information. The police contingent reached at the place of occurrence where S.I. Shyama Kant Jha recorded Ext.10 the fardbeyan of the informant. The inquest was held, thereafter, by the 5 Officer-in-charge of the Police Station and the report was prepared by carbon process, a copy of which was marked Ext.11. P.W.9 recorded the further statement of the informant after having taken over the investigation of the case and also prepared the injury report of P.W. 4 Nandan Kumar Singh and forwarded him to hospital for treatment. 7. He inspected the place of occurrence which was on the pitch road situated at some distance from Shalini Cinema Hall. Copious blood was found there. The road was going from south to north and was going to Begusarai in north and to Matihani in south. P.W.9 found an empty cartridge at the place of occurrence and seized the same by preparing the seizure report Ext.13. He recorded the statements of different persons and different witnesses to the occurrence and also obtained the injury certificate of P.W. 4 Nandan Kumar Singh. He had sent the dead body for post-mortem examination and obtained the post-mortem examination report, Ext.1. P.W.9 also got the statements of various witnesses recorded under Section 164 of the Code of Criminal Procedure by a Judicial Magistrates and submitted the charge sheet for trial of the appellants after finding sufficient material in that behalf. 6 8. The defence of the appellants was that on account of the land dispute which they had with P.W. 4, namely, Nandan Kumar Singh, they had falsely been implicated. 9. In support of the charges, 11 witnesses were examined by the prosecution during the trial. P.W. 1 Dr. Gopal Mishra held the post-mortem examination on the dead body and prepared post-mortem report Ext.1. P.W.9 is the Investigating Officer of the case, as indicated above, who investigated the case and sent up the appellants for trial. P.Ws. 10 and 11, namely, Shri Mukesh Updadhyay and Sri Ravindra Kumar Triapthi respectively, were the Judicial Magistrates who recorded the statements of different witnesses which have also been marked Exhibits on behalf of the prosecution. As regards other witnesses, P.W. 2 Anand Kumar Singh, P.W. 5 Anand Singh, P.W. 6 Balmiki Singh and P.W. 8 Ram Prakash Singh have supported the informant P.W.3 Rupesh Kumar Singh. P.W.4 Nandan Kumar Singh was allegedly injured during course of the occurrence. 10. Besides the above oral evidence and the documents, like, fardbeyan, the F.I.R., inquest report and the post-mortem report, the prosecution also brought on record the statements of Balmiki Singh recorded under Section 164 of the Code of Criminal 7 Procedure which is Ext.8. Other exhibits, like, 7 series or 5 series as also 3 and 4 series are signatures of the witnesses on different documents. Ext.2 is the injury report of Nandan Kumar Singh prepared by P.W.1 Dr. Gopal Mishra. 11. The defence examined two witnesses, Bishundeo Sigh( D.W. 1) and Shiv Nandan Singh( D.W. 2).The evidence of D.W. 1 was that appellants Ram Kumar Singh and Ram Sudhar Singh were full brothers and had landed properties at different villages and they seldom came to village Aighu, the place of occurrence village and, as such, his evidence is on the plea of alibi indirectly set up by the two appellants Ram Kumar Singh and Ram Sudhar Singh. So far the evidence of D.W. 2 is concerned, he is a deed writer in the Registry office, Begusarai, and has proved the sale deed dated 18.4.2001 executed by Tuntun singh, Lucho Singh, Suchit Singh and Harish Chandra Singh, all appellants in favour of the two other appellants Ram Kumar Singh and Ram Sudhar Singh. The deed has been marked Ext. A. This document is relevant for the prosecution also, as may appear from the discussions likely to be made hereinafter. 12. After considering the evidence of both the sides, the impugned judgment was passed. 8 13. We have heard Shri Hare Krishna Kumar learned counsel for the appellants in Cr. Appeals No.119 and 173 of 2004. We have also heard Sri Abdul Kalam, learned counsel appearing for the solitary appellant in Cr. Appeal No. 216 of 2004. The learned Additional Public Prosecutor has been heard for the State in all the three appeals. 14. Shri Hare Krishna Kumar learned counsel appearing for the appellants in Cr. Appeals No. 119 and 173 of 2004 took us through the evidence of the witnesses and besides making general submissions on the over all merits of the prosecution case made categorical comments upon the veracity of each of the witnesses. It was contended by Shri Kumar that the land dispute which has been stated in the F.I.R. to be the reason for which the offence appears to be committed stands disproved by the evidence of P.W.4 Nandan Kumar Singh himself. It was contended that assuming for the sake of argument that there was some dispute for any land between P.W.4 and the appellants generally and appellants Harishchandra Singh, Tuntun Singh, Lucho Singh and Suchit Singh particularly, there does not appear any reason in absence of any evidence showing ill-will or bad relationship between the appellants and the deceased Ramesh Chandra Prasad Singh so that the appellants could kill him. It was 9 contended that the witnesses, in fact, had never seen the occurrence. The informant of the case, i.e.,Rupesh Kumar Singh( P.W. 3) had also not seen his father being killed by any one and it appears that everything started happening as soon as the wife of the deceased came and then it was decided as to who was to be made accused for the murder of the deceased. The above contention was made by learned counsel in the light of the evidence of P.W.2 in paragraph 11. It was further contended that the star witness of the prosecution, i.e., P.W. 8 Ram Prakash Singh who was accompanying P.W. 3 Rupesh Kumar Singh, the informant of the case, and who was moving on the same road at some distance behind the deceased has not supported the story of the prosecution as regards the participation of the appellants in the commission of the murder of Ramesh Chandra Prasad Singh, as such, the evidence of P.W.3 goes uncorroborated. It was, lastly, contended that the purpose for which the deceased and P.W. 4 Nandan Kumar Singh were going together at the time of occurrence has been stated by P.W. 4 in his evidence. It has been stated by P.W.4 that a police Officer, namely, S.I.Bimal Babu from Moffasil Police Station had come to hold an enquiry into the allegations contained in a petition filed by P.W. 4 before the Superintendent of Police, Begusarai and he had asked 10 the informant to come to the Police Station for further discussions. It was contended that neither the said petition which was presented by P.W. 4 to the Superintendent of Police in respect of the land dispute or, for that matter, any dispute, was produced in court nor the said S.I. of Begusarai Muffasil Police Station has been examined to prove the above fact. Besides, it was contended that on that day P.W. 4 Nandan Kumar Singh stated that he had got another petition drafted by the deceased and that was kept by the deceased in his pocket but the evidence of the Investigating Officer, P.W.9 S.I. Rajeshwar Sharma indicates that he had not found any paper on the dead body rather he had recovered some petition from a bag which was found lying at the place of occurrence. It was contended that it is all created so as to lending support to the prosecution story. Besides, if Ramesh Chandra Prasad Singh, the deceased, had no grudge against any of the appellants why should he take a lead in the personal dispute of the parties and, likewise, why he would be killed by the appellants. Shri Kumar submitted in the above light that P.W. 4 Nandan Kumar Singh had created a hoax of a land dispute and has not produced any document to satisfy the court that there was indeed any dispute between him and the appellants Harishchandra Singh and others 11 for any particular homestead land. There were six brothers of P.W.4 but no one was coming to support him on the land dispute also. 14. As regards the conduct of P.W. 4, it was contended that p. w. 4 could not be a witness to the firing of the second shot by appellant Hare Ram Singh. Likewise, it appears curious as to why after being assaulted P.W.4 would remain roaming in a neighbouring street at the place of occurrence and was not informing the police or any one. It was contended that the cycle of the deceased was not found at the place of occurrence and this also creates a doubt about the story of the prosecution as the deceased and P.W. 4 were going together and they had a cycle with them which was being dragged by either of them. It was contended finally that the above circumstances indicated towards the probability that the deceased might have been killed in some other manner. 15. Shri Abdul Kalam learned counsel appearing for the appellant, namely, appellant Hare Ram Singh has contended that the medical evidence of P.W. 1 may suggest that the weapon which was used in causing the death of Ramesh Chandra Prasad Singh could be different from that it was stated by the P.Ws, as such, the witnesses were making false statements on one of the most material points of the case and, as 12 such, they could not be reliable. Appellant Hare Ram Singh had no dispute with the deceased or Nandan Kumar Singh( P.W. 4) nor he had any concern with the land which was sold by appellant Harishchandra Singh and his brothers to appellant Ram Kumar Singh and Ram Sudhar Singh as has been stated by P.Ws. 3,4 and 8 in their respective evidence and, as such, it does not come to reason as to why appellant Hare Ram Singh would be firing the shot finally into the head of the deceased so as to avulsing it and killing him. It was contended that the evidence of P.W. 3 is inconsistent with his own statement contained in the F.I.R. and he could not be held to be a reliable witness. It was contended that only interested and related P.Ws. have been examined and, as such, their evidence be rejected. 16. Shri Rajendra Nath Jha, learned Additional Public Prosecution, has submitted that the place of occurrence and the village of the deceased and P.Ws. 3,4 and 8 or those of other witnesses appear contiguous to each other and they have given good reasons for their presence at the place of occurrence at the time of occurrence. It was contended that the cycle could not have been found because anyone could have taken it away in the melee which could have occurred after the shoot out. Shri Jha contended that 13 the motive was clearly stated by P.W. 4 and the witnesses have given consistent evidence on the manner of occurrence. As regards appellant Hare Ram Singh, Shri Jha drew the attention of the Court to the evidence of P.W. 5( Paragraph 61) in which the witness stated that Hare Ram Singh had cut and felled Shisham trees standing on Government land and had sold them. Besides, he had dug out earth from different lands and had sold it also. The deceased Ramesh Chandra Prasad Singh had always protested to the above acts of appellant Hare Ram Singh and the acts had also been reported in the news paper which could be the reason for appellant Hare Ram Singh to nurse a grudge and to look out for an opportunity to settle the scores or to avenge the insult which was heaped by the deceased upon him. 17. P.W. 3, the informant of the case, has stated in his evidence that his father Ram Chandra Prasad Singh and Nandan Kumar Singh (P.W. 4) were going together and p.W. 3 was also going to Hemra Chowk for purchasing some writing material(copies). P.W. 3 stated that he was accompanied by P.W. 8 Ram Prakash Singh and both of them were moving behind the deceased and P.W. 4 on the same road. When the deceased reached near the Kirana shop of Bhola Chaudhary, all the appellants who were waiting there came out and caught 14 hold of P.W. 4 Nandan Kumar Singh and started dragging him down the pitch road. The deceased forbade them upon which P.W. 4 was assaulted by accused persons with the butt of pistol. The deceased again forbade them upon which appellant Harishchandra Singh appears to have fired a shot into the belly of the deceased and the deceased fell down on the ground. Just a few minutes after, appellant Hare Ram Singh fired another shot into the temple of the deceased as a result of which the head of the deceased was avulsed and he died there. 18. The above evidence of P.W. 3 as regards the manner of occurrence has been corroborated by P.W. 4 with a bit of variance. P.W. 4 has stated that when the deceased and P.W. 4 were in front of the shop of Bhola Chaudhary all the accused persons surrounded him and the deceased and they started dragging P.W. 4 down the road towards a saw mill. The deceased protested by saying as to where they were taking Nandan Kumar Singh upon which some of the appellants stated a particular fact and appellant Harishchandra Singh fired a shot at the deceased which hit in his belly and he fell down there. Appellant Hare Ram Singh after a few moments also fired a shot in his head and it was completely avulsed. P.W. 4 has stated that thereafter he was assaulted by Harishchandra Singh by 15 the butt of the pistol as a result of which he was injured above his right eye and one of his teeth was also broken. All the appellants, as per P.W. 4, assaulted him with legs, fists and butts of pistols. 19. The above departure from the evidence of P.W. 3 was highlighted by learned counsel for the appellants to seek the rejection of the evidence of both the informant (P.W.3) and P.W. 4 Nandan Kumar Singh. If we consider the evidence of P.W. 8, who was accompanying P.W.3 and who turned hostile, as regards the identification of the appellants and the deceased or P.W. 4, it could be found stated by him that both P.W. 3 Rupesh Kumar Singh and P.W. 8 Ram Prakash Singh were moving on the road behind the deceased and P.W. 4 and the distance between the two was 25 to 30 yards. This evidence has come from P.W. 8 in paragraph 4 of his evidence. The evidence of all the witnesses indicates that the deceased and P.W. 4 Nandan Kumar Singh were going on foot and either of them was dragging the bicycle. P.W. 4 Nandan Kumar Singh has stated in paragraphs 91 and 92 that there were some defects in the cycle and the deceased had pointed out that to P.W. 3 and had asked him to move on foot and drag the bicycle. This fact has been brought into the cross-examination of P.W. 4 and he was fully cross- examined in paragraphs 92,93 and 94 of his evidence on 16 the above fact of availability of cycle repairing shop on the route on which they were moving. The distance between the deceased and P.Ws. 3 and 8 was quite big. It was about 90 feet. The deceased and P.W.4 were moving distantly from P.Ws. 3 and 8. The witnesses have stated that all the appellants came and surrounded them. The first thing was that P.W. 4 Nandan Kumar Singh was attempted to be dragged away down the road and on being resisted the deceased was shot at. The scene which appears from the evidence indicates that it could have been very difficult for any witness to really pick out the accused persons clearly. Besides, the act which was committed by the appellants must have created panic and excitement in persons present there on account of the sudden eruption of the violent acts of the appellants so as to not go near the scene of occurrence. In my considered view in such a background a minor deviation or shift in the evidence of witnesses as regards the attempt on the victim being assaulted is bound to occur. This simple small variance or deviation in the sequence of assault upon the deceased or P.W. 4 Nandan Kumar Singh could never be sufficient for any reasonable person to brand any of the witnesses untrustworthy and his evidence not reliable. 17 20. As regards the competence of P.W. 4 Nandan Kumar Singh as a witness, there are various reasons available from evidence to make him a trustworthy witness. He was, firstly, an injured witness. This is stated by all witnesses- and by himself that he was caught and was attempted to be dragged down the road by the appellants. Resistance by deceased resulted in P.W. 4 being beaten up by butts of pistols and also by legs and fists. He claimed one of his teeth being broken in that assault. P.W. 1 Dr. Gopal Mishra has testified to having found the following injuries on P.W.4 on examining him on 30.6.2001 at 3.55 P.M.- (i) Abrasion 1”X1” over lateral cheek below left eye. (ii) Lacerated wound ¼”X ¼” X1/4” over inner aspect of left lip. (iii) Bleeding from gums of left upper jaw besides from lateral incisor tooth. (iv) Bruise 1”X1” over right thumb. P.W.1 has stated that he had found all injuries bleeding and that bleeding from gum of P.W.4 was not due to any disease and they could not be manufactured. The injuries were caused to P.W.4 in 6 hours of examination by P.W. 1 and they were caused by hard and blunt object. 18 The other reason for treating him as a trustworthy witness is that he had no previous enmity and the present occurrence was the result of a dispute arising out of the execution of Ext.A, the sale deed dated 18.4.2001 in respect of a valuable homestead land in which P.W. 4 also claimed having some stakes. The occurrence took place only 12 days after Ext.A was scribed. The third reason for treating him as a reliable witness is his evidence which is free from embellishments. The other reason is that he appears telling the truth and without any grudge towards any of the appellants as he did not appear to have any special and compelling reason