CRIMINAL APPEAL (DB) No.906 OF 2006 With CRIMINAL APPEAL (DB) NO.1002 OF 2006 ----------- Against the judgment and order dated 4.9.2006 and 7.9.2006 passed in S.T. No. 307/75 of 1994/2004 by Sri Virendra Kumar Singh, the learned Additional Sessions Judge, FTC V, Bettiah, West Champaran. ------------ Cr. Appeal No. 906 of 2006 1. Mritunjay Mani Mishra alias Mritunjay Mishra, 2. Shashikant Mani Mishra alias Shashi Kant Mishra, 3. Mukund Mani Mishra, 4. Pradot Mani Mishra, all sons of Late Malik Mishra, 5. Shailesh Mani Mishra, 6. Sharma Mishra alias Tripurari Mishra, sons of Late Prahlad Mishra, 7. Bhashkar Mani Mishra alias Bhaskar Mishra, son of Shashikant Mishra, 8. Kartikey Mani Mishra alias Kartikey Mishra, son of Mukund Mani Mishra, 9. Pramod Mani Mishra (since dead), son of late Bamdeo Mishra, 10. Aryabhatt Mishra, son of Mukund Mani Mishra, all residents of village – Puraina Gosain, P.S. – Chanpatia, District – West Champaran, Bettiah …………. Appellants Cr. Appeal No. 1002 of 2006 1. Narottam Mani Mishra, son of late Malik Mishra, 2. Dadan Mishra alias Rakesh Mani Mishra, son of late prahlad Mishra, Niraj Mishra, son of Mukund Mishra alias Mukund Mani Mishra, all residents of village – Puraina Gosain, P.S. – Chanpatia, District – West Champaran, Bettiah …..………Appellants V e r s u s The State of Bihar ………. Respondent in both the Appeals ----------- 2 For the Appellants : Sarvashri Rana Pratap Singh, Sr. Advocate Sumant Singh, Aaruni Singh, Advocates For the State : Shri Ashwani Kumar Sinha, APP For the Informant : Shri Basant Kumar Choudhary, Senior Advocate --------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA -------- Dharnidhar Jha, J. Seventeen accused persons were put on trial in Sessions Trial No. 307 of 1994 / 75 of 2004, out of whom three appellants of Cr. Appeal No. 1002 of 2006, namely, Narottam Mani Mishra, Dadan Misha alias Rakesh Mani Mishra and Niraj Mishra were charged along with the deceased accused Krishna Mishra alias Krishna Nandan Mishra under section 302 of the IPC and section 27 of the Arms Act. Thirteen other accused, including the ten appellants of Cr. Appeal No. 906 of 2006, were charged under section 302/149 of the IPC. Accused Chandra Bhushan Mishra alias Malik Mishra, Bamdeo Mishra and Purushottam Mishra as also Krishnan Nandan Mishra died during the pendency of the trial and the proceedings as against them were dropped, as may appear from paragraph 17 of the impugned judgment. 2. The charges related to an occurrence dated 24th May, 1994 in which Munindra Prasad was killed, allegedly by the accused persons, i.e., the accused of Chanpatia P.S. Case no. 74 of 1994. The judgment was delivered by the learned Presiding officer-cum-Additional Sessions 3 Judge, FTC- V, Bettiah (West Champaran) on 4.9.2006 by which the appellants Narottam Mishra, Dadan Mishra alias Rakesh Mani Mishra and Neeraj Mishra of Cr. Appeal No. 1002 of 2006 were found guilty of committing offence under section 302 of the IPC and each of them was directed to suffer R.I. for life as also to pay a fine of rupees ten thousand each. The above named appellants were acquitted of the charge under section 27 of the Arms Act. No substantive sentence in lieu of fine imposed, in case of the same not being paid, appears passed by the learned trial judge against any of the appellants in both the appeals. The ten appellants of Cr. Appeal No. 906 of 2006 were found guilty of committing an offence under sections 302/149 of the IPC and each of them were directed to suffer R.I. for life and was also directed to pay a fine of rupees ten thousand each. Again, in their case also, there was no direction by the court as to what term of substantive sentence each of the ten appellants could suffer in case of non-payment of fine. 3. The appellants of the two appeals assail their respective conviction and the sentence passed against each of them by preferring the two appeals which were heard together and are being disposed of by this common judgment. 4. The informant, Kshemendra Kumar, is the son of the deceased Munindra Prasad, Mukhia of Grampanchayat Puraina Gosai under Police station Chanpatia, District – West Champaran. He stated that when he was going to Chanpatia bazaar, at about 8.00 A.M. on 24.5.1994 and had reached near the bridge situated ahead of Miyanji Tola, he found that his 4 father who had gone to Chanpatia at 6.00 A.M. on the same day, had been surrounded by seventeen named accused persons and some unknown and that the accused persons were firing at his father. Seeing the incident, he shouted which attracted the villagers and persons working in the surrounding fields, who came running. It was alleged that appellants Krishna Nandan Mishra alias Krishna Mishra armed with a revolver, Neeraj Mishra armed with a country made rifle and Narottam Mishra, also armed with a country made gun, were firing at his father. Other accused persons were armed with revolvers and country made guns. The deceased accused Krishna Nandan alias Krishna Mishra fired from his weapon at his father which hit the deceased near his right ear. Neeraj Mishra fired a shot with his rifle which hit the deceased in his back whereas appellant Dadan Mishra also fired from his country made rifle hitting the deceased in his left arm. The deceased fell down there. The accused persons, while retreating, fired at the informant and the villagers who had assembled there out of whom, one unknown person was chased and caught by the villagers. The villagers assaulted him so much so that he died then and there. The informant stated that the villagers were pointing out that the deceased unknown accused was the brother-in-law (Sala) of appellant Pradot Mani Mishra. The informant stated that the occurrence had been seen by Babulal Mahto (P.W. 1), Khalil Mian (not examined), Gena Raut (P.W. 2), Jagdish Kasera (not examined), Banshi Singh (not examined), Anwarul Haque (P.W. 3). He 5 further stated that the officers of Chanpatia and other police stations arrived there, but, his father was already dead. 5. It was stated by the informant that the accused persons were trying to dispossess persons of Musahar community from a Gairmazarua land and the deceased had lodged some information about it and, as such, he had been shot dead by the accused persons. 6. In spite of the fact that officers of Chanpatia police station, as stated very much in the fardbeyan, had arrived at the place of occurrence, the Fardbeyan appears recorded by P.W. 9 S.I. Ramesh Chandra Upadhyaya who on the date of occurrence was the Officer Incharge of Sathi police station. On the basis of Ext. 1, the fardbeyan, the FIR of the case, i.e., Ext. 6 was registered by P.W. 12, the Officer Incharge of Chanpatia police station and the investigation was taken up by him. In fact, after having recorded Ext. 1, the Fardbeyan, P.W. 9 who did not have any jurisdiction to investigate the case, as the occurrence had taken place, undisputedly, within the jurisdiction of P.Ws 10 and 11, started investigating the case, as may appear from the evidence of P.W. 9 S.I. Ramesh Chandra Upadhyaya. P.W. 9 has stated that after having recorded the fardbeyan, he went towards the houses of the accused persons and searched them. During that course, he recovered an air gun over which HEBEMO-1(35) was engraved. He also recovered a farsa along with a chhura in presence of two witnesses, namely, Pashpat Prasad and Ram Bilas Raut (both not examined) and prepared the sezure memo (Ext.8/11). 6 7. It appears from the evidence of P.W. 12 S.I. Bharat Ram that he was transferred immediately after the occurrence from Town Police station, Bettiah to Chanpatia Police station on 4.5.1994 on account of the incident and joined his new assignment at Chanpatia at 12.30 P.M. He received the fardbeyan (Ext. 1) of the informant P.W. 4 Kshemendra Kumar, which was in the writing of S.I. Ramesh Chandra Upadhayay (P.W. 9) and on that basis he drew up the FIR (Ext. 6) and took up the investigation. He went to the place of occurrence and inspected the same in presence of P.W. 2 Gena Raut. It was a field situated contiguous south of the village road, which was further south of the village. In fact, he had not found the dead body, but he found blood in the field. The road which was contiguous north of the field was going from the village Puraina Mian tola to Chanpatia bazaar from east to west. The place where the blood stains were found, was about fifty yards east of the orchard of Malik Mishra and further one hundred yards east of that orchard was situated the FCI godown and its premises. The house of the deceased Mukhia was 1 K.M. west of the place of occurrence and there were fields of persons all around the P.O. field. It appears from the description given by P.W. 12 that the dead body of the unknown accused was also found somewhere at the same place of occurrence. P.W. 12 had learnt that the dead body was sent after preparation of the inquest report for postmortem examination to M J K Hospital, Bettiah and the blood which was found at the place of occurrence had also been seized before his arrival by one ASI. 7 8. In fact, on perusal of the evidence of P.W. 11, it appears that he along with P.W. 10 S.I. Umanath Sahay on receiving an information about commission of the murder of the deceased, came to the place of occurrence and found that a young person of 25 years was lying dead there. There was a mob of about one thousand persons and they were giving out that the dead body of that unknown man shall also be cremated with that of the Mukhia. The mob was armed with lathi, bhala and faththa also and was furious. He stated that a pistol and a few cartridges were found lying near the dead body of the unknown deceased, but the furious mob was not allowing the police either to seize the revolver or the cartridges or to take the dead body in its control. The irate mob took the dead body near that of the Mukhia and it was found that revolver and the cartridges had gone missing from there. P.W. 11 stated that he and others reached near the place of occurrence and at the orders of the Officer Incharge (P.W. 10), he prepared inquest report by carbon process in presence of witnesses Kshemendra Kumar (P.W. 4, the informant) and Srikant Choubey (not examined). P.W. 11 also put his signature. The inquest report has been marked Ext 2. P.W. 11 seized blood and prepared seizure memo from the ploughed up field of one Nabi Hassan Mian from a place also situated west of the orchard of accused Malik Mishra. The seizure memo (Ext. 2/2) was prepared in presence of P.W. 6, Rameshwar Yadav and P.W. 7 Nandu Yadav. 9. As may appear from the evidence of P.W. 12, he recorded statements of various witnesses and received the copy of the postmortem 8 report and after finding materials sufficient sent the accused persons up for trial, which ultimately, ended in conviction of 13 appellants of the two appeals. 10. The defence of the appellants was that in fact no one had seen as to how the Mukhia happened to receive injuries and died of them and that on account of some admitted dispute with the accused, all the witnesses came together to implicate the appellants falsely out of enmity. 11. In support of the charges, the prosecution examined as many as twelve witnesses, out of whom, P.W. 1 Babu Lal Mahto, P.W. 2 Gena Raut and P.W. 3 Anwarul Haque, all named in the FIR, supported the evidence of P.W. 4, Kshemendra Kumar, the informant of the case as eye witnesses. P.W. 5 Neeraj Kumar was a formal witness who had witnessed the seizure of clothes of the deceased which were produced by the informant before the police. The seizure memo has been marked Ext. 1. These were the clothes which were found on the dead body of the deceased. P.W. 6 Rameshwar Yadav and P.W. 7 Nandu Yadav were witnesses to the seizure of blood stained earth from the field of Ali Hassan Mian in respect of which Ext. 3, the seizure memo, was prepared which was signed by both P.Ws 6 and 7. P.W. 8 Dr. Purushottam Singh had held postmortem examination on the dead body of Munindra Prasad, the deceased, and had prepared the report (Ext.4). Besides the above witnesses, four police officers were also examined by the prosecution. P.W. 9 Ramesh Chandra Upadhyaya, who on 24.5.1994 was the Officer 9 Incharge of Sathi police station, was examined to state that while he was going to Bettiah in connection with some court work, he found a mob assembled at Chanpatia and he learnt that the Mukhia of Grampanchayat, Puraina had been murdered giving rise to a law and order situation. He went to village Puraina and found that two dead bodies were lying there, out of which, one was of the Mukhia and the other was of an unknown villager who had been killed by the irate mob. He recorded the fardbeyan (Ext.1) of P.W. 4 and searched the house of the accused persons and recovered an air gun, a farsa and a chhura in presence of a couple of persons. 12. P.W. 10 Uma Nath Sahay was the Officer Incharge of Chanpatia Police station within whose jurisdiction the place of occurrence was situated. P.W. 10 stated that on 24.5.1994, chowkidar Chandrika Yadav (not examined) came to the place of occurrence to lodge an information that Munindra Prasad, the Mukhia of Puraina Grampanchayat, was killed by some persons after being shot at and the accused persons had ran towards Chanpatia, out of whom, one was killed by the villagers about 1 K.M. away from the place of occurrence. He came to the place of occurrence and found a dead body of about 25- year- young- person, who was wearing a full pant and a vest as also shoes. A mob of about 500 persons was raising a halla and was telling that the dead body of the killed accused shall be cremated simultaneously with the body of the deceased Mukhia. P.W. 9 could not seize the weapon which was found lying near the dead body due to the 10 fury of the mob and attempted to calm it down and by the time the mob was controlled, the weapons went missing. P.W. 9 stated that he could not identify anyone. 13. P.W. 11 A.S.I. Gyan Prakash Shrivastava has supported P.W. 10 by stating that on receiving the news of the murder of Mukhia, he along with P.W. 10 came to the place of occurrence and found a furious mob, who were not allowing them to take the dead body of unknown accused in their control or the weapon which was lying there. After the mob was calmed down, he was asked to prepare the inquest report and, accordingly, he prepared it at about 10 A.M. P.W. 12 Bharat Ram is the I.O. of the case who had been posted on transfer on the same day and had joined the police station, Chanpatia at about 11.30 P.M. 14. The defence examined a solitary witness namely Ravindra Nath Mishra, an advocate practicing in Civil Courts, Bettiah who stated to the presence of appellant Narottam Mishra in the Civil Court premises where he had gone to make proper pairvi in Title Suit No. 347 of 1992. 15. On consideration of the evidence of four eye witnesses and the police witnesses as also the doctor P.W. 8, the learned court below found the appellants guilty and passed the order of sentence as indicated above. 16. Shri Rana Pratap Singh, the learned senior counsel appearing for the appellants has submitted that inquest was held as per the evidence of P.W. 11 ASI Gyan Prakash Shrivastava and Inquest Report (Ext.5) was prepared at 10.00 A.M. on 24.5.1994, i.e., one hour 11 fifteen minutes prior to the lodging of the information (Ext.1). During the above period of one hour and fifteen minutes, the police was admittedly there as appears stated in the fardbeyan and which is further stated by P.W. 4 Kshemendra Kumar at paragraph 21 of his evidence. But, no one was coming forward to lodge a report regarding the manner of occurrence by naming the assailants of the deceased. Witnesses including P.W. 4 stated that when the inquest report was being prepared, they, specially P.W. 4, was present there, but they were not naming any person as accused before the police officer. It was, as such, contended that the reason for the silence of P.W. 4 as regards not coming forth to lodge a report and tell the names of the accused persons who had assaulted his father to kill him was obvious. It was submitted that it creates a serious doubt in the veracity of the prosecution story, which is further compounded by the fact that an officer who had nothing to do with the incident, appears jumping at the scene by telling a false story that he was going to Bettiah in connection with a court case and was recording the fardbeyan of the informant. When the Officer incharge of Chanpatia Police station (P.W. 10) and another officer, i.e., ASI Gyan Prakash Shrivastava, P.W. 11, were already present at the scene of occurrence whom P.W. 4 had already met after they had reached and who had also approached P.W. 4 to elicit the report, there was no reason to accept that P.W. 9 had recorded the fardbeyan (Ext. 1). It was contended that the very document is fabricated and an after thought which is not only inadmissible in evidence but which creates a further 12 doubt in the veracity of the prosecution story. It was contended further by Shri Singh that the police officers and other officers were against accused Malik Mishra, as was suggested to P.W. 4 in paragraph 22, and the informant who was a person who was acting behind the façade of taking up cudgels against the haves for the have-nots, might have been murdered and it was a right opportunity for the police officers to falsely implicate the whole family of accused Malik Mishra. It was contended that interestedness of the police in implicating the accused persons might be gathered from the fact that P.W.9 Ramesh Chandra Upadhyaya who did not have any jurisdiction to do anything regarding the investigation of the case, was going to make raid in the houses of the accused persons and was showing recovery of innocuous articles so as to creating incriminating material. It was contended further that holding of inquest and seizure of incriminating materials, like, the blood stained earth are part of investigation, as admitted by P.W.12 in paragraph-16 of his evidence. Facts indicating that investigation had already preceded the recording of fardbeyan(Ext-1), renders the document inadmissible as was held by this Court in 2005(1)PLJR 446 and also by the Supreme Court in (2007) 13 SCC 501. Some of the witnesses named in the FIR were not examined and persons who had witnessed the incident and who could be the members of the mob or had assembled there as per the FIR itself, were not ready to come forward to support the prosecution charges. Informant is the son of the deceased and the three witnesses, P.Ws.1, 2 and 3 were highly interested persons on account of being 13 inimical to the accused persons or appearing deeply interested with the deceased. Their evidence could not be relied upon to uphold the conviction. Learned counsel took us through the evidence of witnesses in support of above contention on interestedness and animosity of the witnessed towards the appellants. It was contended, lastly, that the manner of occurrence, as stated by P.W.4 either in the fardbeyan or in his evidence, does not get corroborated by the evidence of P.Ws.1, 2 and 3 and the evidence appears highly improbable and as such unsafe to act upon. It was as such contended that the learned trial Judge mis- appreciated the evidence and went on to convict the appellants wrongly. 17. Sri Basant Kumar Choudhary, the learned senior counsel appearing for the informant, contended that the police investigation was callous and deficient and that the police was simply not allowed to investigate the case by an irate mob. It was contended that while preparing fardbeyan and inquest report, mentioning time in them were not serious matters and it was merely a mistake committed by the police officers for which the whole of the prosecution story could not be thrown out as was laid down by the Supreme Court in (2008) 16 SCC 372 as the credibility of the witnesses has to be considered and the judgement has to be tested on that basis. The manner of occurrence also appears not varying much and this was the reason that the courts duty was always to separate the grains from the chaff. Sri Choudhary referred to us a few decisions of the Supreme Court, like, (2007) 13 SCC 501, (2008) 16 SCC 372, (2001) 9 SCC 567 and AIR 1975 SC 1962. Sri 14 Choudhary was contending that the witnesses might have mistaken in stating that they saw any accused firing a particular shot, but they appear to have witnessed the incident. It was further contended in the above context that their evidence was co-related to seeing a bleeding wound and thereby inferring that a shot had hit a particular part of the body and as such, they might have mistaken in giving evidence as regards the manner of occurrence. Similarly, the distance between the assailant and the deceased could not be accepted as the only distance; it may vary and varying narration about the distance from which the shots were fired by the police may be due to human perception. Hence, the absence of blackening or charring around a wound was not vital. Sri Choudhary was pointing out that injury no.1 which was a very simple injury recorded by P.W.8 while holding the postmortem examination may also be caused by fire arm on account of the shot being fired tangentially. Sri Choudhary referred to us another judgement of the Supreme Court reported in (2010) 10 SCC 259. 18. Sri Ashwani Kumar Sinha, the learned Additional Prosecutor appearing for the State drew our attention to the statement made in the fardbeyan of P.W.4 when he was stating to P.W.9 S.I. Ramesh Chandra Upadhyay that just after the incident the police of Chanpatiya had already reached and they were very much present there, but the fardbeyan was recorded by the officer-in-charge of Sathi police station and that tells a volume about the genuineness and acceptability of the 15 prosecution story and the chance of false implication as pleaded by the accused. 19. Four police officers, namely, P.W. 9 Ramesh Chandra Upadhyaya, P.W. 10 Umanath Sahay, P.W. 11 Gyan Prakash Shrivastava and P.W. 12 S.I. Bharat Rai had investigated the case in one part or the other. The evidence of P.W. 12 Bharat Rai would point out as if he were the only investigating officer. But, when his evidence is considered deeply, then what is found is that some of the most important documents pertaining to some aspects of investigation, like, seizure of blood from the place of occurrence, search of the houses of the accused, holding of inquest on the dead body and preparing documents in the above behalf were done by any of the three officers, i.e., P.Ws 9, 10 and 11. P.W. 12 Bharat Rai, the main investigating officer of the case, of course, appears going to the place