Cr. App(DB) No. 304 OF 1988 With Cr. App(DB) No. 340 of 1988 ********** (Against the judgment and order of conviction dated 6th of June, 1988 passed by 3rd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 86/87/25/87). *********** 1. Brahmdeo Rai @ Vijay Kumar, son of Rambujhawan Yadav(Rai), resident of village-Mahisoutha, P.S. Nanpur, District- Sitamarhi. -------------(Appellant) (In Cr. App(DB) No. 304 of 1988) 1. Mahabir Rai, son of Gopi Rai, resident of village Mahisautha, P.S. Nanpur, District-Sitamarhi. 2. Sita Ram Rai, son of Mahabir Rai, resident of village-Mahisautha, P.S.-Nanpur, District-Sitamarhi 3. Janardan Rai, son of Brij Lal Rai, resident of village-Mahisautha, P.S.-Nanpur, District-Sitamarhi. -------------(Appellants) (In Cr. App(DB) No. 340 of 1988 Versus The State of Bihar ------------------(Respondents) For the Appellants : Mr. Rama Kant Sharma, Sr. Adv. : Mr. Vinod Kumar, Adv. : Mr. S.R.P. Sinha, Adv with Sr. Adv. : Mr. Barun Kumar Choudhary, Adv. For the Respondent : Miss 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. The four appellants, through the aforesaid two criminal appeals, have challenged the judgment and 2 order of conviction dated 6th June, 1988 passed by the learned 3rd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 86/87/25/87, whereby and whereunder appellant Brahmdeo Rai was convicted under Section 302, 148 I.P.C. and Section 27 of the Arms Act and sentenced to undergo life imprisonment under Section 302 I.P.C. but no separate sentence was passed for conviction under Section 148 I.P.C. and Section 27 of the Arms Act. Appellants Sita Ram Rai and Janardan Rai were convicted under Sections 302, 149, 148 I.P.C. and sentenced to undergo imprisonment for life under Section 302 I.P.C., but no separate sentence was passed under Section 148 I.P.C. Appellant Mahabir Rai was convicted under Sections 302, 149, 147 I.P.C. and sentenced to undergo life imprisonment under Section 302 I.P.C., but no separate sentence was passed under Section 147 of the I.P.C. The prosecution case started rolling with the fardbeyan of Indra Deo Thakur(P.W. 7) recorded by S.I. of Nanpur P.S. on 22.03.1986 at 4:00 P.M. at the house of Indra Deo Thakur(P.W. 7) to the effect that on 22.03.1986 at 9:30 A.M. the informant was uprooting khesari crops in Chakauti area along with his son Vijay Kumar Thakur(deceased), in the meantime Janardan Rai, Ramai Rai, Narayan Rai, Mahabir Rai, Dukhi Rai, 3 Nagendra Rai, resident of village Mahisautha started getting the khesari crops of Gunanand Jha(P.W.3) and Gokul Jha, grazed by their she buffalos and when Nage Jha and Paltu Jha(both not examined) forbade the accused persons from doing so, on which the accused persons abused them and thereafter took their she buffalos in their own area. Out of seven accused persons Janardan Rai went to his village Mahisautha and came along with 50 to 60 people armed with lathi, bhala, garasa and gun, to the field of Gunanand Jha and Gokul Jha and forcefully started looting the khesari crops. Nage Jha and Paltu Jha(both not examined) forbade them from doing so, on which the accused persons in the mob started assaulting Nage Jha and Paltu Jha. When the informant and his deceased son went to save them, then accused Ram Bujhawan Rai, Mukhiya of Mahisautha village, ordered and exhorted to kill, upon which Brahmdeo Rai fired at the son of the informant causing injuries on his chest, as a result of which he fell down. Thereafter, accused Indradeo Rai(acquitted) assaulted with Bhala which caused injuries in the right arm-pit of the son of the informant. Nagendra Rai(acquitted) who is nephew of Ram Bujhawan Rai also gave Bhala blow on the left knee of the son of the informant. It is further alleged that 4 Janardan Rai(appellant) gave Farsa blow to Nageshwar Jha. Brijlal Rai(acquitted) assaulted Paltu Jha with lathi, while Sita Ram Rai assaulted Paltu Jha with Farsa causing injuries on the right knee as a result of which they got seriously injured whereas other persons of the mob assaulted the informant and others by lathi and bricks. Altogether 18 persons were named as assailants and the informant claimed to identify the other assailants if produced before him. It is further alleged that on the order of Ram Bujhawan Rai(acquitted), Brahmdeo Rai, Indradeo Rai, Nagendra Rai, Sita Ram Rai and others tried to dispose the dead body of the son of the informant, which was prevented by the informant by laying himself on the body of the deceased, on which Ram Bujhawan Rai(acquitted) assaulted with Garasa on the head of the informant which caused bleeding injuries on the back portion of the head on the left side, whereas the other members of the mob also assaulted the informant with lathi. On raising of alarm, the villagers gathered on which the accused persons fled away. Thereafter, the informant, with the help of the co-villagers, brought the dead body of his son Vijay Kumar Thakur at his door, since the informant was apprehending that the accused persons may cause disappearance of the dead body. The 5 informant claims that the occurrence was seen by Balli Thakur(P.W. 2), Guna Nand Jha(P.W. 3), Gokul Jha(P.W. 4), Maha Rudra Thakur(P.W. 6) and Bishun Deo Thakur(P.W. 8) but they all have been declared hostile. On the basis of the fardbeyan of P.W. 7, Nanpur P.S. Case No. 17 of 1986 was registered under Sections 147, 148, 149, 302, 307, 447, 323, 324, 337 and 379 of the I.P.C. and Section 27 of the Arms Act, against 18 named persons. The police after investigation submitted chargesheet under Section 302 of the I.P.C. and other Sections of the I.P.C. and Section 27 of the Arms Act. After commitment, the charges were framed under various provisions of the I.P.C. and altogether 14 accused persons were put on trial, when all the eye witnesses, except the informant P.W. 7, did not support the prosecution case and have been declared hostile, but relying upon the evidence of P.W. 7, the learned Trial Court convicted only four appellants and passed the judgment and order of conviction, whereas rest of the accused persons were acquitted, as the prosecution has failed to prove the charges against them. This Court has to see whether the testimony of P.W. 7 is credit worthy enough to prove the prosecution case beyond the shadow of reasonable doubt or whether the evidence of P.W. 7 needs reappraisal for deciding the 6 present appeal. On going through the evidence of P.W. 7, it appears that it was the specific case of the informant that the accused persons were 50 to 60 in number, out of which he identified 18 persons and claimed to identify the remaining assailants, but the F.I.R. was specifically registered only against 18 persons. In the fardbeyan, the informant specifically alleged that on the order of Ram Bujhawan Rai(acquitted), Brahmdeo Rai fired, causing injuries on the chest of the son of the informant, whereas during deposition P.W. 7 has stated that Brahmdeo Rai and Sita Ram Rai were armed with bomb and gun but he can not say that whose firing hit the victim. Moreover there is no allegation in the fardbeyan against any of the accused of being in possession of a bomb. It is a settled law that although the F.I.R. is not a substantive piece of evidence, but it is used for corroboration of the prosecution version, particularly the evidence of the informant, which is a very relevant piece of evidence and here the informant himself contradicts his own version, as was recorded in the fardbeyan. Hence, the allegation of firing by Brahmdeo Rai as alleged in the fardbeyan has been diluted by the informant himself when he came to depose that he did not know as to whose firing hit the deceased. 7 In para 4 of his deposition, P.W. 7 has specifically stated that only three accused persons were present at the place of the occurrence, namely Mahabir Rai, Sita Ram Rai and Janardan Rai and the rest accused persons were not there, which is in complete contradiction to the F.I.R. which suggests that 18 named persons and 50 to 60 unknown persons were present at the place of the occurrence. The credibility of the evidence of the fardbeyan has not been proved since the I.O. has not been examined and what has been proved by the P.W. 1, is only the signature of the informant, P.W. 7, on the fardbeyan. The informant also admits his signature on the fardbeyan but he disowns the contents of the fardbeyan. In such a situation the very first information report deems to be not proved. P.W.7 in para 4 of his evidence admits that except three accused persons he did not recognize anyone, with specific further averments that he got recorded in the fardbeyan that actually firing was made by Sita Ram Rai, hence by his own evidence the informant has completely demolished the prosecution case. Considering the fardbeyan and the evidence of the P.W. 7, we find that learned Court below has only appreciated the evidence of P.W. 7 which is the basis of convicting the accused persons. 8 P.W. 5, Dr. Tej Narayan Singh, who conducted the postmortem report found three injuries on the dead body of the deceased Vijay Kumar Thakur, which are as follows:- (i) Charred burnt area of 1” in diameter above left nipple which on dissection showed a track passing through muscles fracturing 5th left rib injuring plura, left lung, pericardium, right auricle(right 4th portion of heart) and right lungs, right third rib(fractured) and going through subcutaneous(under skin) tissue of the right upper arm from where bullet (one) was located and removed, preserved in plastic small Jar which was sealed and handed over to constable (accompanying). Bullet was black mettallic hard having a dimension of about ¾ inch in diameter. Blood and Blood clots were present in thoracic cavity. (ii) Incised wound in the right armpit 9 having dimension of 1¼ x ¼” x ¾”. (iii) Incised wound on left knee-having dimension of 1”x ½” x ¼”. Out of the three injuries, only injury no. 1 is caused by the fire arm, while injury nos. 2 and 3 have been caused by sharp cutting weapons, whereas it is the specific case of the informant, in the fardbeyan, that Brahmdeo Rai caused fire arm injuries on the chest of the deceased and thereafter Indradeo gave Bhala blow on the right arm-pit and then Nagendra Rai caused Bhala blow on the left knee of the deceased, but both the injuries i.e. injury nos. 2 and 3 suggest that they have been caused by sharp cutting weapon. Though the doctor in his evidence has suggested that injury no. 2 was caused by sharp pointed weapon whereas injury no. 3 was caused by sharp cutting weapon, but it appears that injury no. 3 has not been caused by Bhala because Bhala is a sharp pointed weapon, which clouds the prosecution version as got recorded by the informant. The materials on record suggest that the occurrence took place at 9:30 A.M. on 22.03.1986, whereas the fardbeyan was recorded at 4:00 P.M. and no effort was being taken by the informant side to inform the police or to any local authority. The judgment 10 suggests that the fardbeyan was recorded, when the S.I. of Nanpur P.S. visited the village during law and order duty, where he came to know about the occurrence, which creates doubt about the prosecution version as recorded in the fardbeyan. All the F.I.R. named eye witnesses i.e. P.W.s 2, 3, 4, 6 and 8, whom P.W. 7 in his deposition in para 6, claim to be distantly related have refused to support the prosecution case by saying that they did not see the occurrence which creates doubt about the credibility of P.W. 7 because in spite of the fact that the eye witnesses were related to the informant, they refused to support the prosecution case. The fardbeyan suggests that the assault was made upon Gunanand Jha ( P.W.3) and Gokul Jha (P.W.4), hence there was no occasion for them not to support the prosecution case as they also received injuries. It is alleged that the accused persons were getting the khesari crops of Gunanand Jha(P.W. 3) and Gokul Jha(P.W. 4), grazed by their she-buffalos, hence P.W. 3 and P.W. 4 are the affected parties but they have not supported the prosecution case. As per the fardbeyan the injuries were received by Nage Jha, Paltu Jha and the informant by Farsa, lathi and other weapons but none of these injured have come forward to 11 show that they received injuries, particularly the informant P.W. 7 who does not talk even a word about his injuries in his evidence nor there is any document on record to suggest that he received injuries or he was offered any treatment. This factor also creates serious doubt about the prosecution version. From scanning of the evidence on record, we find that all the material witnesses i.e., P.Ws 2, 3, 4, 6 and 8 have been declared hostile, whereas P.Ws. 1 and 9 are formal witnesses who proved the inquest report and the signature on the F.I.R. and the only witness who has been examined, is the informant, P.W. 7, who has also not supported the prosecution case rather has completely disowned the prosecution case and his fardbeyan also. In such a situation, it is difficult to uphold the judgment and order of conviction passed by the learned Court below as the prosecution has not taken any effort to prove its case, rather the prosecution, particularly, the informant himself, has tried to disapprove the case as recorded in the fardbeyan, which impeaches the credibility of the informant who is the sole witness to the occurrence and thereby completely impeaches the very basis of the prosecution case. In result, all the two appeals are allowed and 12 the judgment and order of conviction dated 6th of June, 1988 passed by the 3rd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 86/87/25/87 are set aside. All the four appellants are acquitted of the charges. They are also directed to be discharged from the liabilities of their respective bail bonds. Both the appeals are accordingly allowed. Patna High Court Dated 24th of September, 2010 Shageer/NAFR (Shyam Kishore Sharma, J) ( Dinesh Kumar Singh, J.)