Criminal Appeal (SJ) No.426 of 1998 **** Against the judgment, dated 03rd/04th December, 1998, passed by Sri A.B. Shekhar, Additional Sessions Judge, I, Buxar, in S. Tr. No. 80 of 1994 **** 1. Lal Muni Singh, son of Shri Ram Nagina Singh 2. Shankar Singh, son of Sipahi Singh 3. Sri Singh, son of Sipahi Singh 4. Ram Singhashan Singh, son of Ram Nagina Singh 5. Satya Narain Singh, son of late Rash Behari Singh 6. Joginder Singh, son of Shanker Singh 7. Sudarshan Singh, son of Ram Nagina Singh 8. Jagdamba Singh, son of Sipahi Singh 9. Sudama Singh, son of Ram Nagina sh 10. Sipahi Singh, son of late Umraon Singh All residents of village Paharpur, P.O. Gigna Via Itarhi, P.S. Sikraul, district Buxar .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. M/S Aaruni Singh & Sumant Singh, Advs. For the informant .. M/S Ram Chandra Singh & Jitendra Kr. Singh, Advs. For the State .. Mr. S.N. Prasad, A.P.p. **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants, the informant 2 and the State. 2. The appellant no. 1, Lalmuni Singh, has been convicted under Section 304 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years, further, convicted under Section 148 of the Penal Code and sentenced for one year and convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. Appellants no. 2 to 9 have been convicted under Section 304 read with 149 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years. They have, further, been convicted under Section 147 of the Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellant no. 2 has been convicted under Section 323 of the Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellant no. 10 has been convicted under Section 304/149 of the Penal Code and sentenced to undergo simple imprisonment for ten years, taking into consideration the age of the appellant no.10 , being seventy five years at the time of conviction. He has, further, been convicted under Section 147 of the Penal Code and sentenced to undergo simple imprisonment for one year. 3. The prosecution case, as alleged that on 05.11.1993 at 06.30 a.m., the deceased, Hazari, along with informant, Dinanath Singh (P.W. 1), Harihar Singh, the brother of the deceased, Mohan Singh (P.W. 8), the son of Harihar Singh while scrapping the grass for making a khalihan then Lalmuni Singh along with other appellants came and commanded to leave the ground as the land stands in his name. Hazari protested and insisted that the land belonged to him. It is, further, 3 alleged that the accused persons on pretext of showing the paper took Hazari with them. When Hazari went for a distance of 20-25 yards then it is alleged that all the accused persons surrounded him and Lalmuni Singh shot at Hazari causing injury on his head by which he succumbed to his injury. On the fardbeyan of the informant, the first information report lodged and after investigation the charge sheet submitted. 4. During the trial twelve witnesses have been examined on behalf of the prosecution. 5. The defence has also adduced two witnesses and some documentary evidence. 6. The defence of the accused persons is complete denial of the place and occurrence and the defence has proved the first information report of the counter case being Sikraul P.S. Case No. 52 of 1993 in which Lalmuni Singh, appellant no. 1, is the informant with regard to the occurrence, dated 05.11.1993, alleging that Gauri Shanker Singh, Kedar Yadav, Harihar Yadav, Lalan Yadav and Gorakh Yadav, who are witnesses of the present case, variously armed went to dispossess Lalmuni Singh and Gauri Devi, Shanker Yadav, Harihar Yadav assaulted and injured Lalmuni Singh by means of garasa on the head and Mohan also assaulted by means of lathi and then Gauri Devi was also assaulted and injured. The injured persons were also admitted in the Sadar Hospital, Buxar. The cause of action is forcible dispossession of the accused from the Government land on which the appellants are in possession. 4 7. The trial Court taking into consideration the prosecution case that the occurrence took place at khalihan and the case of the prosecution that the khalihan belonged to them and record of right is in the name of prosecution’s side whereas the case of defence in counter case is that the prosecution party tried to dispossess Lalmuni Singh from the land which was in their possession on which he keeps his cattle and dead body of Hazari was found near that place in possession of Lalmuni Singh. This is a case of case and counter case and the investigating officer of both the cases is same. On the date of examination of the investigating officer the defence could not ask the question regarding the place of occurrence as investigating officer was investigating officer of both the cases, i.e., case and counter case, but, has not come with case diary of counter case and the investigating officer was recalled for further cross examination, but, the prosecution could not produce the witness and, hence, the defence has got prejudiced by non-examination of investigating officer. The trial Court, further, took into consideration the evidence of P.W. 1 that the deceased was shot dead at a distance of 20 years towards north of the khalihan and has admitted that there is nadcharan of accused, Lalmuni Singh, and taking these facts the trial Court observed that if the intention of the accused was to dispossess the informant from khalihan then they would have committed the murder for assault at the khalihan itself and there was no need to take the victim-deceased on a pretext of showing the papers and, further P.W. 1 has admitted that Hazari was shot dead near the nadcharan of accused Lalmuni and, hence, held that 5 it is possible that in order to justify the place of murder which has been created by the prosecution side and that in order to show the record of rights accused took Hazari with them from khalihan and the investigating officer also did not say that he found the sign of grass scrapping and so it is probable that the prosecution and accused side fought between themselves for taking their possession unlawfully on a piece of Government land and, hence, held that the killing of Hazari falls within the meaning of clause (1) to Section 300 of the Penal Code and convicted the appellants under Section 304 of the Penal Code. 8. The learned counsel for the appellants, however, contends that the prosecution story that the occurrence took place at the khalihan. The prosecution party was scrapping the grass for making a khalihan and the case of the prosecution that the land belonged to them and they have got the papers with regard to that land. The accused persons took the deceased on the pretext of showing the papers, but, after taking 20 yards, the deceased has been shot dead, but, the prosecution has not been able to prove the genesis as neither the paper of the land has been proved in evidence nor the investigating officer has found the scrapping of the land and, further, the dead body was found near the nadcharan and as per evidence of P.W. 1 in paragraph 10 having accepted that the occurrence of firing took place at about land in which nadcharan of the accused persons are standing and, further, the doctor, who found the injury on the person of deceased also examined Lalmuni Singh and found him injured for which there is no explanation for injury on person of Lalmuni Singh and, further, pointed out that 6 there is delay in dispatch of the first information report and, hence, the genesis of the occurrence has not been proved and between the parties from the same family and, further, no specific allegation except Lalmuni Singh shot and no role has been attributed to other appellants except that they had surrounded the deceased which is not acceptable and, hence, the appellants are entitled to the benefit of doubts as the prosecution has not been able to prove charge beyond reasonable doubts. 9. The learned counsel for the State as well as the informant, however, contended that it is a definite case of the prosecution that the occurrence took place at the khalihan and, thereafter, the accused persons took Hazari, on a pretext of showing papers of the land and after taking him to 20 yards, Lalmuni Singh shot him dead and the witnesses, P.Ws. 1, 2, 3, 4, 68. 9 and 11 have supported the prosecution case that the accused persons surrounded and Lalmuni Singh shot Hazari dead. 10. However, taking into consideration the respective submissions the question for consideration whether prosecution has been able to prove the case beyond reasonable doubts. The prosecution case is that the occurrence took place at the khalihan where the grass was being scrapped and from there Hazari was taken to kill on the pretext of showing him the paper and, thereafter, taking him at a distance of 20 yards he was shot dead by Lalmuni Singh. However, the role has been attributed to other appellants that they surrounded the deceased. 7 11. However, the case of the defence is that the witnesses of the case Kedar Yadav, Harihar Yadav, Lalan Yadav, Mohan, Gorakh and others came and wanted to demolish the nadcharan of the accused persons on which there was assault by the prosecution party causing injury to Lalmuni Singh and it is stated that Lalmuni Singh was also examined by the same doctor and has proved the injury on the person of Lalmuni Singh. However, the injuries found on the person of Lalmuni Singh are laceration, swelling and abrasion and the injury found to be of simple in nature and, hence, in view of the fact that since the injuries are simple, the prosecution case is not required to explain. 12. However, the witnesses, P.Ws. 1, 2, 3, 4, 8. 9 and 11, have supported the prosecution case about the scrapping of grass when the accused persons came and protested claming it that it is their land and Lalmuni Singh took the deceased on pretext of showing paper and after going at a distance of 20 yards Hazari (deceased) was shot dead and the deceased and the allegation of assault by lathi is on Shanker and no role has been attributed to other appellants except Lalmuni Singh. P.W. 1, in his cross examination has stated that there was scrapping of the land, which was in the name of Sudan Singh and Lalmuni Singh ever not claimed, hence, though the witnesses supported the prosecution case about the firing, but, the evidence regarding surrounding and catching hold of the deceased is neither specific nor witnesses mention the role and the witnesses stated that they do not know that who has caught what part of the body has not been proved and, hence, the prosecution case regarding the accused having 8 surrounded the deceased, Hazari, is not established. 13. To the contrary the defence has developed a case that accused persons came to disturb the nadcharan of the defence kept on Government land and there the occurrence took place causing injury to the accused, Lalmuni Singh, and the said injury has been proved by D.W. 1 and the injuries have been proved on the person of Gauri Devi as well as Lalmuni Singh. However, the injury found on the persons of Gauri Devi said to be pellet injury caused by fire arm said to be simple in nature and the opinion was reserved and the patient was advised for x-ray, but, the x-ray has not been proved and the injury has also been proved on the person of Lalmuni Singh which are mostly laceration and swelling and the x-ray advised of his scalp, but, the x-ray plate has not been proved. However, it is true that the defence is not required to establish it’s case beyond reasonable doubt and even the defence version is found to be probable then defence can get benefit of doubt. 14. However, having regard to the fact that the defence has proved the injuries of D.W. 1, but, the injuries on the person of Lalmuni Singh are simple and superficial. However, Exhibit “D” is the fardbeyan of the counter case on which the first information report was drawn which has been marked as Exhibit “C” in which there is allegation of scrapping grass on the land on which nadcharan of the defence has been kept. However, P.W. 1 in his evidence in paragraph 10 of his evidence stated that the deceased fell near the land where was the nadcharan of Lalmuni. The evidence of the investigating officer is not specific and the inquest report shows that it was prepared where the 9 dead body lying at the premises of the accused persons, however, it has come in evidence that the dead body fallen at the second place of occurrence near the nadcharan of Lalmuni Singh as per the evidence of P.W. 1 and then it was taken to the house of the informant and from there to the Police Station. The investigating officer was recalled, but, does not appear. 15. Hence, taking into consideration, the entire evidence, it is apparent that it is a case of case and counter case and though the parties are adjacent to each other, however, the case of the prosecution is that the occurrence started at the first place of occurrence, i.e., in khalihan and after taking 20 yards the deceased was shot. The case of the accused that it is the second place of occurrence near the nadcharan of Lalmuni and it was the prosecution party who has come to dispossess from the said land which is the gairmazrua land and there the occurrence took place causing injury to Lalmuni and Gauri Devi and the dead body was taken away after the occurrence even before the arrival of the police. The prosecution case is that the accused persons surrounded and then shot dead Hazari, but, the evidence regarding surrounding and shooting does not inspire confidence. There is no reliable evidence about the scrapping of the land by the prosecution party and the investigating officer did not come to support that he found scrapping of khalihan. The case of the defence is that the occurrence took place near the second place of occurrence. The investigating officer though examined with case diary of second counter case and he could not be cross examined as was not armed with the case diary of 10 the second case and it has caused prejudice to the defence case and, hence, having regard to the facts and circumstances it creates doubt about the genesis and manner of occurrence.. The trial Court also though disbelieved the prosecution case as alleged and has come to conclusion that there may have been a free fight at the second place of occurrence and has observed that the possibility can not be ruled out that the prosecution’s side wants to take possession of the Government land as an aggressor. However, if this theory has been accepted by the learned lower Court then genesis and manner of occurrence changed the occurrence may have taken place at the second place of occurrence for the dispossession of the accused persons from the land. The order of conviction and sentence recorded by the lower Court can not sustain as the prosecution has not been able to prove it’s case beyond all reasonable doubts and in such a case if the prosecution case has been disbelieved and the manner of occurrence is with regard to the dispossession from the Government land as held by the learned lower Court the order of conviction and sentence can not be sustained as the manner of occurrence and genesis of occurrence, itself, changed and prosecution has not been able to prove it’s case beyond reasonable doubts as made out from the first first information report and, hence, having regard to the facts and circumstances if the manner of occurrence has been changed and if it has been admitted by P.W. 1 that the appellants is in possession of the Government land having their nadcharan over it and the trial Court has accepted the theory that prosecution party, itself, has come to dispossess as an aggressor then 11 the order of conviction recorded by the trial Court is not sustainable and the appellants are entitled to benefit of doubt. 16. Hence, having regard to the facts and circumstances, I find and hold that the appellants are entitled to benefit of doubt. The order of conviction and sentence recorded by the lower Court is set aside the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court The 12th day of October, 2011, N.A.F.R., S.A.