Criminal Appeal (DB) No. 459 of 1988 ---------- Against the judgment of conviction and order of sentence dated 31.08.1988 passed by Sri Bhukhal Prasad, learned 4th Additional Sessions Judge, Motihari, East Champaran, in Sessions Trial No. 36 of 1988/02 of 1988. ---------- 1. Kishori Singh, Son of Shri Basudeo Singh. 2. Basudeo Singh, Son of Late Janaki Prasad Singh. 3. Mokhtar Singh, Son of Sri Banka Singh. 4. Dharkhan Singh, Son of Sri Gajadhar Singh. 5. Rameshwar Singh, Son of Sri Harihar Singh. 6. Banka Singh, Son of Butai Singh. All are residents of Village- Mathurapur, Police Station-Turkaulia, District-East Champaran…………………….………………….…….Appellants. -Versus- The State of Bihar……………………………………………………………..Respondent. With Criminal Appeal(DB) No. 521 of 1988 --------- Fulena Singh, Son of Sri Basudeo Singh, resident of Village-Mathurapur, Police Station- Turkaulia, District-East Champaran……………………………………….……………Appellant. -Versus- The State of Bihar……………………………………………………Respondent. ---------- For the Appellants : Mr. Sudarshan Sharma, Advocate. (In both the appeals) For the State : Ms. Shashi Bala Verma, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S.K.Sharma & D.K.Singh,JJ. Through the aforesaid two appeals, the seven appellants have challenged the judgment of conviction and sentence dated 31.08.1988 2 passed by the learned 4th Additional District and Sessions Judge, East Champaran, Motihari, in Sessions Trial No. 36 of 1988/02 of 1988, whereby and whereunder the appellant Fulena Singh was held guilty under Sections 302, 148 and 379 of the Indian Penal Code and sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code, rigorous imprisonment for one year under Section 148 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year under Section 379 of the Indian Penal Code whereas appellants Kishori Singh, Rameshwar Singh and Mokhtar Singh were convicted under Sections 302,149, 148, 379 of the Indian Penal Code and sentenced to undergo imprisonment for life under Sections 302/149 of the Indian Penal Code, one year rigorous imprisonment under Section 148 of the Indian Penal Code and further one year rigorous imprisonment under Section 379 of the Indian Penal Code. Basudeo Singh, Dharkhan Singh and Banka Singh have been convicted under Sections 302, 149, 147 and 379 of the Indian Penal Code and sentenced to undergo imprisonment for life under Sections 302/149 of the Indian Penal Code, 3 rigorous imprisonment for six months under Section 147 of the Indian Penal Code and rigorous imprisonment for one year under Section 379 of the Indian Penal Code. All the sentences were directed to run concurrently. 2. The prosecution case started rolling on the fardbeyan of Jogi Hazra(P.W.9) recorded on 01.11.1976 at 3.00 P.M. at Semra Tola Sekh Toli Turkaulia in Madarsa Hat by the Officer- in-Charge of Turkaulia police station, to the effect that at 9.00 A.M. Basudeo Singh(appellant no.2 in Cr. Appeal No. 459 of 1988) came with his followers and started cutting the paddy crops of Rahman Ansari(not examined), who had grown the crop on bataidari basis. It is claimed by the informant that since Bataidari case was decided in favour of informant’s side, hence they grew the paddy crops and when the accused persons started cutting the crops, then the villagers protested. The informant heard some noise at about 12 P.M. in the south of his house and when he came out, he found Basudeo Singh armed with Lathi, Fulena Singh armed with Gun, Kameshwar Singh armed with gun, Rameshwar Singh armed with gun, Banka Singh armed with 4 Farsa, Dharkhan Singh armed with Lathi and Mokhtar Singh armed with Farsa, alongwith 30- 40 people who were not identified by the informant, started cutting the crop of Singhashan Hazra (P.W.7), Sk. Akbar Ali (P.W.2) and of the informant and when protest was made, then Fulena Singh fired which hit on the chest of the informant’s wife, Chhathiya Dusadhin, who had come out of her house alongwith the informant, on alarm being raised and then on receiving injuries, the victim fell down and died on the spot. It is alleged that when the villagers came, the accused persons fled away and they also took away the paddy crops with them. It is further claimed by the informant that Sk. Nazir(P.W.5) conveyed to the informant that Banka Singh was armed with Lathi and the occurrence has been witnessed by Sk. Nazir(P.W.5), Sk. Yaqub (not examined), Sk. Kaish Ali (not examined), SK. Ishu Mohammad (P.W.6), Bachan Ram (P.W.4), Sk. Hasim(P.W.3),Singhashan Hajra(P.W.7), Sk. Andul Rahman(not examined),Devi Chandra Hajra(P.W.8) and others. 3. On the basis of the aforesaid fardbeyan, Turkaulia P.S. Case No. 02 of 1976 was 5 registered under Sections 147,148,149, 302,379 of the Indian Penal Code and Section 27 of the Arms act at 8.30 P.M. on 01.11.1976 and the First Information Report was transmitted to the learned Magistrate on 03.11.1976. 4. The police, after investigation, submitted charge sheet. Subsequently, cognizance was taken and case was committed to the Court of Sessions. Charges under Sections 302, 148 and 379 of the Indian Penal Code were framed against accused Fulena singh, whereas charges were framed under Sections 302, 149, 148 and 379 of the Indian Penal Code against the accused Kishori Singh, Rameshwar Singh and Mokhtar Singh, whereas charges were framed under Sections 302, 149, 147,379 of the I.P.C. against Basudeo Singh, Dharkhan singh and Banka Singh. 5. The prosecution has examined altogether 12 witnesses of which P.W.1(Bijali Thakur) is formal witness and has proved the inquest report, which is Ext.1. P.W.2 is Sk. Akbar Ali, the F.I.R. named witness who claims to have seen the occurrence. P.W.3 Sk. Hasim is also F.I.R. named witness, P.W. 5 is Sk. Nazir, P.W.6 is Sk. Ishu Mohammad, P.W.7 is 6 Singhashan Hajra and P.W.9 Jogi Hajra is the informant of this case and they all claim to be eye witnesses to the occurrence. P.W.4 Bachan Ram and P.W.10 Baldin Miyan have been tendered. P.W.8 Devi Chandra Hajra has come to depose as a hear-say witness. P.W.11 Ram Deo Singh is the Investigating Officer. P.W.12 Dr. Kapil Deo Singh has proved the post mortem report(Ext.7), as Dr. Anurudh Prasad, who conducted the post mortem, has not come to depose during trial. 6. On consideration of the evidence, the learned Trial Court found all the seven appellants to be guilty and accordingly judgment of conviction has been passed. 7. This Court has to examine whether the prosecution witnesses have been able to prove the charges beyond shadow of reasonable doubts or whether on the basis of the evidence on record, the judgment and order of conviction can be upheld. 8. From the First Information Report, it appears that there was some land dispute between the accused and the informant’s side. It is claimed by the informant that, initially the paddy crop was being cut by the accused 7 persons and subsequently when the informant came out, on hearing noise in the locality, followed by his wife, then the firing was resorted to by Fulena Singh. From the First Information Report, it also appears that the occurrence took place on the land which came in the possession of the informant, pursuant to a decree of the Court, from Fulena Singh and Basudeo Singh, which precipitated the occurrence. The First Information Report is in such a torn condition that it is barely legible. 9. From the evidence on record, it appears that P.W.9, in paragraph no.1 of his evidence, has stated that the accused persons who were 100-150 in number started cutting the paddy crops of Sk. Akbar Ali( P.W.2),Rahman Mian(not examined) and Devi Chandra Hajra (P.W.8). P.W.2 has also similarly deposed, in paragraph no.1 of his evidence, while P.W.3 has deposed that the accused persons started cutting the paddy crops from the field of Rahman Mian (not examined),Baldin Miyan(P.W.10), Sk. Akbar Ali (P.W.2) and Devi Chandra Hajra(P.W.8). P.W.11- the Investigating Officer, has visited the plots i.e., Plot Nos. 681, 696 and 696, from 8 which the paddy crops were cut, but has not been able to verify the ownership of these lands. Though P.W.2, in paragraph no.12 of his evidence, has stated that the land in question was transferred to Basudeo Singh on 16.08.1966, whereas P.W.3, in paragraph no.19, has stated that the land belonging to Fulena Singh, initially belonged to ancestors of P.W.3 which was subsequently sold to Fulena Singh. P.W.8, in paragraph no.13, has admitted that his land in question was transferred to Sudama Singh. Hence, from the evidence of P. Ws. itself, it appears that the land from which it is alleged that the accused persons were cutting the crops does not belong to the informant’s side or to any of the P. Ws. 10. All the witnesses including the informant have admitted this fact that there was some Bataidari dispute between the parties. Hence from discussions above, the prosecution has failed to prove that the crops were cultivated by the informant’s side and that the accused side were aggressors. 11. The second place of occurrence is the place where the deceased (Chhathiya Dusadhin) received fire arm injury. As per the 9 informant, he was inside his house and he came out followed by his wife and was standing at a distance of 1-1½ Laggis from the place of occurrence and the victim was standing 1½ Laggis west to the informant. The Investigating Officer, in Paragraph no.3 of his evidence, has stated that the dead body was lying 14 Yard (Gaj) west to the road near the bush (Munj Ka Jhar) and the distance between the place where the crops were being cut and the place of occurrence was 125, 135 and 145 Yards(Gaj), whereas in paragraph no.3 itself, the Investigating Officer has further specified that the distance between the place from where the alleged firing took place and the place of occurrence, as 115 Yards(Gaj). 12. The prosecution evidence is not consistent with regard to the place from where the firing was specifically resorted to, as P.W. 2, in paragraph nos. 1 and 6, has said that the firing was made from the paddy crops of Fulena Singh, whereas P.W. 3 in paragraph no. 7 has said that the firing was resorted to by Fulena Sigh from Basudeo Singh’s field. P.W. 5, in paragraph no.11 of his evidence, has stated that the firing was resorted to by 10 Fulena Singh from P.W.2’s land. P.W.7, in paragraph no. 10, has said that firing was resorted to from Rahman’s land. 13. So far as the manner of the occurrence is concerned, the prosecution evidence appears to be inconsistent in this regard also and the contradictory version of the P.Ws., cloud their claim of being an eye witnesses to the occurrence. Though it is the consistent evidence of P. Ws. 2,3,5,6,7 and 9 that it was Fulena Singh who fired at the deceased but it was the case of the informant in the fardbeyan that the firing was resorted to by Fulena Singh by gun whereas during trial all the witnesses have stated that firing was resorted to by rifle. 14. Learned counsel for the appellants submits that the contradictory stand of the prosecution with regard to use of arms, itself creates doubt about the prosecution case. 15. Ms. Shashi Bala Verma, learned counsel for the State, however, submits that the informant is an illiterate person and was in a condition of shock when his wife died during the occurrence and hence such a minor contradiction deserves to be ignored. 11 16. In our view, the submissions of the learned counsel for the State has substance. Moreover, during the trial all the witnesses have consistently deposed that the firing was resorted to by rifle. 17. So far as the accusation against others of sharing the common object with Fulena Singh is concerned, it is well-settled principle that for bringing the accused within the ambit of Section 149 of the Indian Penal Code, two essential ingredients or the pre conditions are that the occurrence is committed by a member of unlawful assembly and such occurrence must have been committed in prosecution of the common object of that assembly. 18. From perusal of the prosecution version, as per the First Information Report and the evidences on record, two things are apparent. Firstly, that though there was an unlawful assembly, as the number of the accused persons were more than 100 and most of them were armed with various weapons, but so far as sharing of common object is concerned, it becomes doubtful in view of the fact that as per the informant’s own version, he came 12 out from his house alongwith his wife on hearing the noise in the locality. Hence, the accused persons were not knowing that the victim would appear at the place of occurrence. It is true that common object can develop on the spot also but from the prosecution evidence it appears that the firing was resorted to indiscriminately, which hit the informant’s wife but it is a well- settled law that merely because the persons of the unlawful assembly were variously armed, it does not mean that they came with an intention to assault, as it is the consistent case of the prosecution that none of the accused persons made any overt act against any of the person of the informant’s side and to that extent of the evidence of P. Ws., is consistent that except Fulena Singh, none made any overt act. Hence, we are of the view that other six accused persons, were not sharing a common object. 19. Hence the prosecution has failed to prove the case under Section 149 of the Indian Penal Code with the aid of which other accused persons, excluding Fulena Singh, have been convicted under Section 302 of the Indian 13 Penal Code. 20. Though all the eye witnesses have consistently deposed that only Fulena Singh fired at the deceased(Chhathia Dushadhin) and none resorted to firing, but their evidences clearly suggest that the firing was not made by Fulena Singh targeting the deceased. The consistent case of the prosecution is that one firing was made by Fulena Singh from the paddy crops of either of the three fields and all the three fields are at distance of 125, 135 and 145 Gaj away from where the victim received fire arm injury. This distance between the place of firing and the place where the victim received injuries has not been disputed by the prosecution witnesses including the informant. Though, Dr. Anurudh Prasad, who conducted the post mortem, has not come to depose but P.W.12- Dr. Kapil Deo Singh has proved the post mortem report which is Ext.7. The Post mortem report suggests that the victim received two injuries. One injury is an oval-lacerated inverted wound on the left side of chest 3” below the left clavicle and the size of the wound is 1/4” in diameter with charring of the adjacent skin up to 1” in 14 diameter whereas the other injury is lacerated inverted wound of size 1/2” in diameter on the lateral aspect of right scapula close to right shoulder joint. 21. The post mortem report proved by P.W.12 has not been disputed by the prosecution, which clearly demolishes the prosecution case because it is the consistent case of the prosecution witnesses that only one firing was made by Fulena Singh. The post mortem report negates the prosecution case on two grounds. Firstly, on the ground that the victim received two injuries whereas only one firing has been alleged by the prosecution, which suggests that the P. Ws. have either not seen the occurrence, or they came before the Court to depose the incorrect version. 22. The post mortem report secondly clouds the prosecution case on the ground that admittedly the firing was resorted to from more than 100 yards, whereas injury no.1 has been found to be a charring injury. Though the doctor has opined that death was due to fire arm injury caused from 15-20 feet which suggests that the firing has been resorted to from very close range, whereas the prosecution 15 claims that the firing has been resorted to from long distance, hence on this score also the prosecution case gets clouded. No doubt the medical evidence is opiniative in nature and cannot over ride the ocular evidence but when medical evidence substantially negates the ocular evidence regarding the manner of occurrence then at least it creates doubt about the bonafide of the prosecution evidence. 23. Learned counsel for the appellants has submitted that the allegation of firing against Fulena Singh also gets clouded in view of ballistic report of Sergeant Major (Ext.6) which suggests that it can not be stated that the firing was made from the rifle of Fulena Singh. This contention of the learned counsel for the appellants has no substance in view of the fact that the occurrence took place on 01.11.1976 whereas the rifle was transmitted for ballistic examination on 03.04.1977 and it was examined on 07.04.1977, where the expert opined that the rifle was in operating condition but added to say that it is difficult to specifically state as to when the last firing was made, when no gun powder was 16 found in the barrels. 24. In our view, when the gun in question was transmitted to the expert after several months of the occurrence, in that circumstances it is difficult for the expert to suggest any positive finding. Hence by relying upon the report of the Sergeant Major, the appellants are not able to establish that the rifle in question was not used in the occurrence. 25. From the evidence of P.W.11, it appears that though the prosecution has seized the blood stained soil but it appears that it was never transmitted for examination nor the report was ever submitted by the prosecution. No reason has been assigned for non- examination of the doctor as P.W. 12 has clearly stated during his cross-examination that he does not know why the doctor who conducted the post mortem has not come to depose during the trial. 26. So far as the motive is concerned, the prosecution has failed to prove the motive. Though the prosecution witnesses have admitted with regard to lodging of criminal case by Fulena Singh and Basudeo Singh and in their 17 evidence they have admitted that these lands belonged to the informant’s side initially and subsequently, it was purchased by the accused side. Hence, there was an enmity from before between the parties but from the evidence of P.W.9 (the informant), it appears that the informant’s land was not in possession of the accused persons and moreover there was no enmity between the informant and the accused persons, except that the informant was the Bataidar of some of the accused persons and he tried to canvass his case in that background and circumstance, in which his wife received injury and succumbed to the injury. Hence, on this score also the prosecution has failed to prove any motive for commission of the occurrence and particularly, the motive for killing the informant’s wife. 27. So far time of the occurrence is concerned, the informant’s initial version in the fardbeyan reflects time of the occurrence as 9.00 A.M. but during evidence informant has deposed that the occurrence took place at 12.00 P.M. Though the consistent case of the witnesses during trial is that the occurrence took place at 9.00 A.M. but even by assuming 18 that time of the occurrence as 9.00 A.M., then also, the recording of the fardbeyan at 3.00 P.M. when the distance between the place of occurrence and police station is 10 K.M., is not fatal to the prosecution case. 28. From the discussions made above, it is apparent that the prosecution has failed to prove the manner of the occurrence, the place of occurrence and the time of occurrence. 29. In view of the discussion made above, the prosecution has failed to prove its case beyond the shadow of reasonable doubt. Hence, the judgment of conviction and order of sentence dated 31.08.1988 are set-aside. The appellants are directed to be discharged from the liabilities of their bail bonds. 30. Accordingly, both the appeals are allowed. Patna High Court Dated 7th September,2010 A.F.R./U.K. (Shyam Kishore Sharma,J) (Dinesh Kumar Singh,J.)