CRIMINAL APPEAL No.460 OF 1988 (DB) With CRIMINAL APPEAL NO. 500 OF 1988 (DB) Against the judgment of conviction and order of sentence dated 28th July, 1988 passed in Sessions Trial No. 10 of 1982 by Sri Laxman Uraon, 5th Additional Sessions Judge, Rohtas *********** 1.Hardwar Ram Son of Bidhur Ram 2.Kashi Ram Son of Rapti Ram 3.Ram Vyas Ram Son of Raghubar Ram All resident of village- Charui, P.S.- Kudra, District- Rohtas …………………………………Appellants (In Cr. App. No. 460/1988) With 1.Kapil Muni Singh Son of Lala Singh 2.Sita Ram Singh Son of Chandrika Singh 3.Kanhaiya Singh Son of Chandrika Singh 4.Ram Kawal Singh Son of Dutta Rai 5.Sudama Singh Son of Chandrika Singh 6.Vishwanath Singh Son of Chandrika Singh All resident of village Charui, P.S.- Kudra, District- Rohtas ……………………………..Appellants (In Cr. App. No. 500/1988) Versus The State of Bihar ……………….Respondent (In both the Appeals) ***************** For the Appellants :-Mr. Subodh Prasad, Advocate (Cr. App. 460/88) Mr. M.Prasad, Advocate For the Appellants :-Mr. Ashwani Kumar Singh, Sr. Advocate (Cr. App. 500/88) Mr. Jai Prakash singh, Advocate Mr. Pankaj Kumar Singh, Advocate ********************** 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. Above noted both the appeals have arisen out of common judgment so both have been heard together and are being 2 disposed of by this common judgment. 2. These above named nine appellants have challenged their conviction and sentence vide judgment dated 28th July, 1988 passed in Sessions Trial No. 10 of 1982 by the learned 5th Additional Sessions Judge, Rohtas by which all the appellants have been convicted and sentenced to undergo rigorous imprisonment for life under Sections 302/149 of the Indian Penal Code and further all the appellants have been convicted and sentenced to undergo rigorous imprisonment for one year under Section 323/149 of the Indian Penal Code. Apart from that the appellant no. 4 (Cr. App. 500 of 1988) Ram Kawal Singh has further been convicted under Sections 302/109 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. It was ordered that all the sentences shall run concurrently. 3. The prosecution canvassed on the fard-beyan of Sheoshankar Singh (PW 6) recorded by Sub-Inspector L. B. Singh, Officer Incharge of Kudra Police Station on 20.8.1981 at 2 PM at village Charui is to the effect that the informant is on litigating terms with appellant Biswanath Singh due to land dispute and the litigation is pending before the Consolidation Court. It is claimed by the informant that the land is in the possession of the informant since 1961 but Biswanath Singh was inclined to capture the land of the informant and due to that animosity, on 20.8.1981 about 11 AM, 11 persons including the nine above 3 named appellants, since two others namely, Baijanth Singh and Bachnu Singh died, came. When the informant along with PWs 1, 2 and 4 were spreading the paddy seedling in the field, all the 11 accused persons surrounded the informant and his brothers whereupon Ramkawal Singh ordered to kill on which all the 11 accused persons started indiscriminate assault by lathi. In the mean time the informant’s relative Ram Janam Rai (one of the deceased) came and forbade the accused persons whereupon Sudama Singh and Kanahiya Singh ordered to kill and then all the accused persons assaulted Ramjanam Rai and Krishna Singh (both deceased) as a result of which both of them fell down then the accused persons pressed them into the deep mud and thereafter, fled away. On alarm being raised Rameshwar Singh (PW 2), Biswanath Rai (not examined), Mahesh Singh (PW 3) and others came at the place of occurrence but in the mean time accused persons fled away. It is further alleged that the informant’s brother Dadan Singh (PW 4) and Sudarshan Singh (PW 1) were also assaulted and they received injuries. It is further claimed that the two persons were killed by assault made by lathi and by pushing the two deceased into the deep mud. On the basis of aforesaid fard-beyan Kudra P.S. Case No. 83 of 1981 dated 20.8.1981 was registered under Sections 147, 149, 323, 307/302 of the Indian Penal Code at 4 PM and the FIR was transmitted to the court of A.C.J.M. on 22.8.1981. 4. The police after investigation submitted chargesheet. 4 Though the appellant Ramkawal Singh was not sent up for trial but subsequently cognizance was taken against all the accused persons and the case was committed to the Court of Sessions where the charges were framed under Sections 302/149 and 307/149 of the Indian Penal Code against all the 11 accused persons whereas charge under Section 302/109 of the Indian Penal Code was also framed against appellant Ramkawal Singh. 5. Prosecution in order to substantiate its charge examined altogether 11 witnesses, out of which PWs 1, 4 and 6 are the injured witnesses. PW 6, is the informant. PWs 2 and 3 Rameshwar Singh and Mahesh Singh, respectively, are the labourers of the deceased Krishna Singh and they claimed themselves to be an eye witnesses to the occurrence. PW 5, Dr. Prashant Kumar Sinha has conducted post mortem on the dead bodies of both the deceased. PW 7, Lal Bahadur Singh is the Investigating officer. PW 9, Dr. Bijay Kishore Sinha examined the injuries of three injured PWs 1, 4 and 6. Whereas PWs 9, 10 and 11 are the formal witness and through them the prosecution has tried to prove the rent receipts. 6. The defence has also examined 3 witnesses who have basically proved the sale deed with regard to the place of occurrence executed by the father of the informant in favour of the appellant Biswanath Singh as well as the rent receipts. 7. The factum of death of two persons namely, Ram Janam Rai and Krishna Singh is an admitted fact whereas the 5 injuries of PWs 1, 4 and 6 has also been proved by the prosecution. The only question which has to be determined is whether the prosecution has been able to prove the manner of occurrence and which side was the aggressor, since from the First Information Report itself it is apparent that the genesis of the occurrence is land dispute. 8. Learned Senior Counsel for the appellants submitted that the manner of occurrence creates doubt with regard to unfolding the truth by the prosecution witnesses including the informant. In view of the contradictions between the manner of occurrence alleged in the fard-beyan as well as in the deposition of the witnesses and the injuries received by the deceased as well as injured PWs 1, 4 and 6, it is submitted that it is the consistent case of the informant in the fard-beyan that all the 11 accused persons assaulted the informant and his two brothers-PWs 1 and 4 whereas subsequently Ram Janam Rai and Krishna Singh came to the place of occurrence when all the accused persons assaulted both the deceased. PW 6, the informant in his deposition asserted this fact that all the accused persons assaulted both the deceased and three injured persons. Similarly PW 1 has also asserted this fact in paragraphs 24 and 25 of his deposition that all the accused persons assaulted both the deceased and injured persons. No specific averment has been made by PW 4 but in paragraph 2 of his deposition he has admitted that all the 11 accused persons have assaulted. When the depositions of PWs 1, 4 and 6 is being 6 compared to that of the post mortem report and injury reports given by the PWs 5 and 8 and it becomes apparent that on the dead body of Krishna Singh two injuries were found which are as follows: (i) Fracture of bones of scalp both tearing of meninges and damage of brain matter- leading to bleeding. (ii) Injury of ear parts leading to bleeding through ear (left). 9. Whereas on the dead body of Ram Janam Rai, whose name has wrongly been recorded in the evidence part, also two injuries were found which are as follows: (i) Fracture of scalp bones caused tear of meninges and damage of the brain matter. (ii) Chest injuries caused puncture of lungs on left side at 3 to 4 places and collection of blood of almost half liter in the thorasic cavity. 10. In the similar manner PW 8 examined three injured persons. On the person of PW 1 Sudarsan Singh three injuries were found-all are simple in nature caused and by hard blunt substance. On the person of PW 4, Dadan Singh, five injuries were found- all are simple in nature and caused by hard and blunt substance where as on the person of the informant PW 6 three injuries were found out of which injury no. 3 was grievous since it 7 was fracture of Alna. The injuries of all the three injured persons are as follows: “Injuries on PW 1 Sudarshan Singh are: (i) lacerated wound 2”x1/6”x1/4” and 1- 1/2”x1/6”x1/4” vertically middle to right side of the head. (ii) Tendered swelling 6”x3” on the middle part of right forearm. (iii) Tenderness over and around right shoulder joint. Injuries on PW 4Dadan Singh are: (i) lacerated wound 2”x1/8”x1/4” deep middle part of head (ii) Lacerated wound 3”x1/4”x1/4” into bone deep 4” below left knee joint. (iii) Lacerated wound 1”x1/4”x1/6” middle front part of left leg. (iv) Lacerated wound 1-1/4”x1/6”x1/8” on the left side of head. (v) Lacerated wound ¼” x 1/8” x 1/8” on the middle part of chin. Injuries on PW 6 Sheoshankar Singh are: (i) Lacerated wound 1-1/2” x 1/6” x ¼” deep right middle part of head. (ii) Tender swelling 2” x 1” on the right upper part of back. (iii) Fracture of left alna bone at its lower boarder.” 11. From perusal of the post mortem report, the injury report and the evidence of both the doctors, it appears that all the 11 persons did not assault either to any of the deceased or to any of the injured persons which suggest that neither the informant nor the eye witnesses including the informant have seen the occurrence correctly or have not come with true version of the 8 occurrence. Hence their credibility to the extent of manner of occurrence gets clouded. 12. The further contention of the learned Senior Counsel for the appellants is that it is the consistent case of the informant that after the assault the two deceased were drowned deep in the mud. Since it was a paddy field, as a result of which the victim died but both the doctors have not found any mud either on the person of the injured persons or on the dead body and specific question has been asked to the doctor with regard to the same about the mud ridden dead body which has been denied by the doctor in paragraph 11 of his cross examination where it has specifically been mentioned that if had there been mud inside the body, I would have mentioned the same. Moreover, it has also specifically been denied that no water has come up from the dead body. So far as the prosecution case is concerned, on this aspect, though PW 6, the informant has deserted this part of the prosecution case, that both the deceased were pressed deep into the mud, in his evidence but in cross examination in paragraphs 26 and 27, PW 1 has accepted that both the deceased were pressed deep into mud. With regard to the aforesaid contention of the appellants, Mrs. Shashi Bala Verma learned counsel appearing on behalf of State submits that the inquest reports (Ext. 6 and 6/1) clearly reflect that the dead bodies were having mud all over. 13. Though the aforesaid contradiction with regard to the claim of the prosecution case regarding the post mortem report 9 and the injury report, is not a very vital contradiction, since the other injured persons also received injury in the paddy field and the specific case of the prosecution is that the deceased were pushed into mud after they fell down and non-finding of the mud by the doctor creates doubt about the manner of the occurrence. 14. The other contention of the learned Senior Counsel for the appellants is that the appellants have been convicted under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code and for constituting an offence of 149 IPC there are two pre-conditions: (i) that the assembly must be unlawful and (ii) that all shared the common object. 15. It is well settled that the pre-conditions for application of offence under Section 149 Indian Penal Code is that there must be an unlawful assembly. So far as sharing of common object is concerned there is a difference between the common intention and common object. For the common intention the sharing of mind is much before the occurrence took place where the common object gets developed even on the spot. So far as for the criminal courts, to arrive at a decision with regard to the accused sharing the common object, the given circumstances and the surroundings atmosphere has also to be examined. It is the specific case of the prosecution that all the 11 accused persons were armed with lathi and all 11 assaulted not only the injured but also the deceased. Since the injuries on the persons of the deceased have been found to be true hence, it cannot be said that 10 the prosecution case to the extent that the 11 persons were armed and all 11 have assaulted to be the accurate version as canvassed by the prosecution. Hence, the first element of unlawful assembly has to be taken with caution, particularly in the background of the admitted land dispute between the parties where an attempt has been taken to implicate the entire family members of the accused side. So far as sharing of the common object is concerned, it is an admitted case of the prosecution that both the deceased came subsequently to the place of occurrence when they tried to forbade the accused persons when the occurrence took place. Hence the object of killing the two deceased was not from before, it might have been developed at the spot and then it is difficult to scan and analyze that out of 11 accused persons who actually assaulted the deceased because, if others have not assaulted then it cannot be said with certainty that others were sharing the common object. Hence, in such circumstances we think that the benefit of doubt with regard to sharing of common object is concerned, it should go to the appellants. 16. The credibility of the prosecution witnesses further gets shaken in view of the fact that PW 4 in paragraph 17 of his deposition admitted that all the injured persons were admitted in hospital for 8-9 days whereas the injury reports (Ext. 8 to 8/2) do not reflect that the injured persons were admitted to the hospital. 17. So far as the place of occurrence is concerned, in the First Information Report no specific place of occurrence has been 11 given in the fard-beyan. Though during evidence of the prosecution witnesses it has been stated that the land in question was the old Khata No. 27 plot no. 326 of an area of 1 acre 7 decimals of which corresponding new Khata No. 50 Plot No. 208. Though the Investigating Officer in paragraph 6 of his deposition has given the old Khata No. of the place of occurrence as Khata No. 17 Plot No. 323. With regard to this plot in question a sale deed has been exhibited on behalf of the defence as Ext.A which has been proved by DW 1 which reflects that the informant’s father Jadu Singh executed sale deed in favour of the appellant Biswanth Singh. Whereas other defence witnesses have tried to prove that the rent were paid from the accused side. Though the prosecution has also examined PWs 8 to 11 to prove that the rent receipts and the irrigation receipts were granted in favour of the informant’s side but PW 1 has failed to depose with regard to actual contents of the sale deed which has been exhibited as Ext.- A and the same reflects that the title was virtually transferred in favour of the appellant Bishwanath Singh which leads to a presumption that the title of the land traveled to the accused side and hence the presumption with regard to actual possession can also be in favour of the accused side. Admittedly the land on which the occurrence took place is Khata No. 17 Plot No. 323 which relates to the sale deed Ext. –A. It appears that being afraid of being confronted with the sale deed Ext-A the prosecution tried to shift the place of occurrence to another land bearing Khata No. 12 27 Plot No. 56. 18. Hence from the aforesaid discussions it is apparent that the occurrence took place on Plot No. 323 of Khata No. 17 which belongs to the accused side. It appears that the informant side were actually aggressors. 19. So far as the motive of the occurrence is concerned, though no specific evidence has been led on this point but from perusal of the fard-beyan it appears that the genesis of the occurrence was the dispute with regard to the aforesaid land and the occurrence took place for claiming the aforesaid land in question. 20. The other contention of the learned Senior Counsel for the appellants is that in statement under Section 313 Cr.P.C. of the accused persons also, all the circumstances have been placed including the circumstances of the land dispute between the parties and with regard to title and possession of the land in question which also reflects that there was a land dispute between the parties. 21. Learned Senior Counsel for the appellant Ramkawal Singh has tried to suggest that Ramkawal Singh was in hospital at Mugalsarai on the alleged date of occurrence which has been substantiated by the Investigating officer in paragraph 17 of his deposition. 22. It is well settled law that the alibi has to be proved by the person who is putting forward the alibi beyond shadow of 13 all reasonable doubts. Hence this alibi of Ramkawal Singh has not been proved. Moreover, the Investigating Officer has specifically stated in paragraph 17 of his deposition that though he visited the hospital and found Ramkawal admitted in the hospital on the alleged date of occurrence but neither admission nor any documents have been produced in the court, hence this alibi of the appellant Ramkawal Singh has no meaning and it has not been proved. 23. The other contention on behalf of the learned counsel for the appellant Ramkawal Singh is that the accused persons have also received injuries and the prosecution case does not unfold the injuries received by the accused side. In this regard reliance has been placed on a judgment reported in AIR 1976 Supreme Court 2263 (Lakshmi Singh & Ors. Versus The State of Bihar). 24. In our view the injuries of the accused side has not been brought on record hence, this contention of the learned counsel for the appellants has no legs to stand and the aforesaid judgment is not applicable in this case. 25. The other contention of the learned counsel for the appellants is with regard to appellant Haridwar Ram and Kashi Ram who were minors as on the date of judgment i.e. 28.7.1988 they were aged about 24-25 years hence they were minor on the date of occurrence i.e. 20.8.1981. 26. In view of the aforesaid discussions, we do not think 14 to consider the question of juvenility of these two appellants. The other contention of the learned counsel for the appellants is that the appellant Sitaram, Kanahiya Singh, Ramkawal Singh, Biswanath Singh and Rambeyas Ram were aged about 70 to 75 years on the date of judgment. Hence they may not be surviving right now as in spite of efforts no contacts have been made to the appellants. 27. In view of the aforesaid discussions, we hold that the prosecution has failed to prove the manner of occurrence and place of occurrence. Accordingly, these appeals are allowed and the impugned judgment of conviction and order of sentence as stated above against the appellants named above is set aside. They are discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.) Patna High Court, Patna Dated 27th August, 2010 Avin/N.A.F.R.