CRIMINAL APPEAL No.188 OF 1988(D.B.) With CRIMINAL APPEAL NO.206 of 1988(D.B.) ----------- Against the judgment and order dated 8th April, 1988 passed by Sri Laloo Prasad Singh, 4th Additional Sessions Judge, Nalanda in S.T. No. 71 of 1984. ---------- 1. Bundi Choudahry 2. Krishna Choudhary 2. Mahesh Choudhary 4. Chhotelal Yadav 5. Nandey Pasi ---------- Appellants (in Cr. Appeal No.188 of 1988) 6. Chandu Manjhi 7. Shree Manjhi 8. Jethan Manjhi 9. Ganauri Manjhi 10.Lal Keshwar Manjhi ------------ Appellants (in Cr.Appeal No.206 of 1988) Versus The State of Bihar ------------ Respondent (in both the cases). ----------- For the Appellants: Mr. Binod Kumar Ambastha, Amicus Curiae. For the State : Mr. Lala Kailash Bihari Prasad, Sr. Advocate & Public Prosecutor. ------------ P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE MADHAVENDRA SARAN ------------ S.K. Katriar, & Madhavendra Saran,JJ. The ten appellant in the two appeals are aggrieved by the judgment dated 8.4.1988, passed by the learned 4th Additional Sessions Judge, 2 Nalanda, in S.T. No. 71 of 1984 (State of Bihar Vrs. Chandu Mochi & Ors.), whereby appellant Nande Pasi has been convicted under section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. The remaining appellants, namely, Bundi Choudahry, Krishna Choudhary, Mahesh Choudhary, Chhotelal Yadav, Chandu Manjhi, Shree Manjhi, Jethan Manjhi, Ganauri Manjhi and Lal Keshwar Manjhi have been convicted under section 302, read with section 149, of the Indian Penal Code, and have been sentenced to undergo rigorous imprisonment for life. The convicted persons shall hereinafter be referred to as the appellant(s). 2. According to the Fardbeyan of Brij Nandan Singh (P.W.10), recorded on 29.5.1983, at about 8 P.M., at Biharsarif Sadar Hospital that he had grown Onion plants on agricultural lands near the Harijan Toli, Gaurichak. On that day, at about 6.30 P.M., the cattle belonging to the Harijans were grazing and destroying the plants of the informant. His brother Jai Nandan Singh deceased had driven the cattle out of his fields away towards the Harijan Toli and was using abusive language against them, and was also warning them that they should not do such injustice to him. The appellants emerged using abusive language and variously armed. Appellants Nande Pasi and Bundi Pasi were armed 3 with Hasuli and Lautha, and the remaining appellants were armed with lathi and Paina, were using abusive language against the said Jai Nandan Singh, and had encircled him. On hearing Hulla, the informant (P.W.10), Bhaso Singh (P.W.4), Siya Saran Singh(P.W.6), and Bihari Singh (P.W.9), also assembled there. They saw that Krishna Pasi had caught hold of the left hand of Jainandan Singh, Mahesh Pasi was holding his right hand, and Chotelal Gope was holding his hairs on the head from behind. Bundi Pasi gave the order that “lkkyk dk eqM+h dkV nks”, whereupon Nande Pasi who had Hasuli in his hand wanted to strike with his Hasuli on the neck which he warded off and landed on his left arm resulting in injury. This was followed by the second attack with Nande Pasi with his Hasuli on the right side of the chest, pierced it resulting in profuse bleeding and his brother fell down, and started trembling and became unconscious. This was followed by the third attack by Nande Pasi on his brother which hit his left wrist causing injury. The informant had taken his injured brother in a critical condition to Biharsharif Sadar Hospital. The appellants had then burnt their own hutments made of straw. His brother died in Sadar Hospital, Biharsarif, as soon as he reached there. 3. Investigation commenced. The occurrence had taken place at 6.30 P.M. The Fardbeyan (Ext.5) was 4 recorded at the Sadar Hospital at about 8 P.M., and the inquest report (Ext7) was also prepared at that time. The dead body was forwarded for post-mortem which was conducted on 30.5.1983, at 5.45 A.M. Post-mortem was conducted by Chandradeo Sahay( P.W.1), who submitted his post-mortem report on 30.5.1983. A formal F.I.R. was drawn and was registered as Silao (Nalanda) P.S. Case No.123 of 1983, dated 29.5.1983, under section 302/34 of the Indian Penal Code. The appellants were arrested and charge sheets were submitted after conclusion of the investigation. Cognizance was taken and charges were framed against the ten appellants under sections 302/149 of the Indian Penal Code. Charges were also framed against appellants Bundi Pasi, Krishna Pasi, Mahesh Pasi and Chotelal Yadav under section 302/34 of the Indian Penal Code. Charge sheet was submitted against appellant Bundi and Nande under section 302 of the Indian Penal Code. The charges were framed by the learned 4th Additional Sessions Judge on 18.6.1984. 4. The prosecution examined the following 11 witnesses to prove the charges: (i) P.W.1 is Dr. Chandra Deo Sahay, the Civil Assistant Surgeon, Sadar Hospital, who had conducted the post-mortem on the 5 dead body of the Jai Nandan Singh on 30.5.1983. (ii) P.W.2, Anandi Singh, is a witness to the seizure list of blood-stained earth. (iii) P.W.3 Ram Charitra Singh, is another witness to the seizure list of blood- stained earth. (iv) P.W.4, Bhaso Singh, is a co-villager and an eye-witness. (v) P.W.5, Ghanshyam Singh, is another co- villager and an eye-witness. (vi) P.W.6, Siya Saran Singh, is a co-villager and eye-witness. (vii) P.W.7, Narayan Singh is a tendered witness. (viii) P.W.8, Nandu Singh, is a tendered witness. (ix) P.W.9, Bihari Singh, is an eye-witness to the inquest report. (x) P.W.10 is Brijnandan Singh, the informant and an eye-witness. (xi) P.W.11 is Ram Suresh Pathak, the Investigating Officer. 5. The prosecution proved the following exhibits:- (a) Exhibit-1- Post-mortem report, proved by P.W.1. 6 (b) Exhibit-2-Signature of P.W.2 on blood-stained earth. (c) Exhibit-2/1- Signature of P.W.3 on seizure-list of blood-stained earth. (d)Exhibit-2/2-Signature of P.W.4 on the inquest report. (e)Exchibit-2/3-Signature of P.W.8 on the inquest report. (f)Exhibit-3- Signature of P.W.6 on the seizure-list of blood-stained clothes. (g)Exhibit-3/1- Signature of P.W.7 on seizure-list of blood-stained clothes. (h) Exhibit-4- Signature of P.W.10 on Fardbeyan. (i) Exhibit-5- Fardbeyan of P.W.10 written in the hand- writing of P.W.11 and proved by him. (j) Exhibit-6- Signature of P.W.11 on Ext.5 and proved by P.W.11. (k) Exhibit-7- Inquest report proved by P.W.11. (l) Exhibit-8- Seizure list proved by P.W.11. (m)Exhibit-8/1- Seizure list of blood-stained earth proved by P.W.11. 6. The defence examined one witness, namely, Sudama Prasad Singh (D.W.1). The following documents were marked exhibits on behalf of the defence: Exhibit-A- Entry No.483 of case diary Exhibit-A/1- Entry no.485 of case diary Exhibit-B- Injury report of Bundi Pasi Exhibit-C- Written report of G.R. Case No.818/83, proved by D.W.1. Exhibit-D- Formal F.I.R. of G.R.818/83 proved by D.W.1. 7. On a consideration of the materials on record, the learned trial court held that the genesis of the 7 occurrence was that the cattle of the appellants were grazing the onion crops and other plants of the deceased. He had driven away the cattle towards the Harijan Tola, using abusive language against the appellants, and had warned them for doing that kind of injustice. The learned trial court also held that the prosecution has been able to prove the mode and manner of the occurrence as stated in the Fardbeyan. Krishna Pasi was holding the left hand of the decased, Mahesh Pasi was holding his right hand, Chotelal was holding his hairs of head from behind, Bundi Pasi was the order-giver, and Nande Pasi had delivered three Hasuli blows on the deceased resulting in his death. He has further held that the prosecution case was fully supported by the medical evidence. The appellants have been convicted and sentenced in the aforesaid manner. Hence this appeal at the instance of the convicted persons. 8. Learned Public Prosecutor has submitted that the convictions and sentences are fit to be maintained. 9. P.W.1 is Chandra Deo Sahay who was posted as Civil Assistant Surgeon in the Sadar Hospital, Biharsharif on the date of occurrence. He conducted post-mortem on the dead body of Jainandan Singh on 30.5.1983, at 5.45 A.M. It was the dead body of a Hindu male, aged about 25 years. Rigor mortis was present in 8 all the limbs, and partially in the neck. He found the following ante mortem injuries on the dead body:- “(i) one vertical punctured wound (margins sharply cut)- 3” x2 ½”x deep to thoracic cavity near and below the right nipple. (ii) One incised wound- 2” x1”x1” on the base of left thinner eminence. (iii) One horizontal incised wound 1”x1/2”x skin deep across middle and front of left fore-arm.” He has further deposed to the effect that on dissection, the 4th, 5th and 6th ribs of the right side were cut. The right lung (2 ½”), and liver (2”), were also cut. The thoracic cavity and abdominal cavity were full of blood. The stomach contained 20Z of partially digestive food. The chambers of heart were empty. In his opinion, the death was due to shock and haemorrhage as a result of the aforesaid injuries. Injury no.(i) could have been caused by Hasuli. The remaining injuries could also have been caused by Hasuli. The injuries were sufficient to cause death in ordinary course of nature. Death had taken place within 24 hours. He has proved his post mortem report marked Ext.1. 9 He has stated in his cross-examination that injury nos. (ii) and (iii) individually or jointly could not have caused death. He ahs also stated that Hasuli is a carved weapon and will always cause carved injury. It appears to us on a perusal of the deposition of P.W.1 that he appears to be a straight-forward witness, had done the post-mortem examination sincerely, and fully supports the prosecution case. It appears that P.W.1 was examined on recall, and deposed to the effect that on 29.5.1983, at 11 P.M., he had examined one Bundi Choudhary, and had found the following injuries on his person: (i) one abrasion ½”x ½” on the outer aspect of left eye-brow. (ii) one abrasion ½”x ½” on the left elbow. (iii) One abrasion ¾”x ½” on the right knee. (iv) one swelling 2” x 1 ½”on the right side of chest with suspected fracture of right coastal rib. I refer him for X‟ray which was received on 31.5.83 which showed fracture of right 6th, 7th and 8th rib.” In his opinion, injury nos. 1 to 3 were simple but injury no.4 is grievous in nature. All the injuries were caused by hard and blunt substance. He 10 has proved the injury report of Bundi Choudhary marked Ext.D. 10. P.W.2 is Anandi Singh. He has stated in his examination-in-chief that the Investigating Officer had seized the blood-stained earth from the place of occurrence in his presence, which is close to the road going to Rajgir at Mahuabad More. The seizure list was prepared in his presence and he had affixed signature on it. He has proved his signature marked Ext.2. He has stated in his cross-examination that the blood-stained earth was seized at 10.30 P.M. in his presence. He was there for about 5-10 minutes from before. He has given description of the place of occurrence and the shops nearby. He has also stated that the hutments of the Harijan Toli were found burnt. 11. P.W.3 is Ram Charitra Singh. He has stated in his examination-in-chief that he was at Nalanda More at about 10.30 P.M. Sub-Inspector of Police of Nalanda police station had come. He had come with Fardbeyan about the death of Jai Nandan Singh. He has seized the blood-stained earth and prepared the seizure list in his presence. P.W.3 has affixed his signature on the seizure list marked Ext.2/1. The dead body of Jai Nandan Singh had been taken away to the hospital prior to the preparation of the seizure list. 11 He has further stated in his cross- examination that about 10-20 persons were present at the place of occurrence when the Investigating Officer had come. 12. P.W.4 is Bhasho Singh and is an eye witness. He has stated in his examination-in-chief that 29.5.1983 was a Sunday. It was 6.30 P.M., and he was at the bus stand at Nalanda More. While standing there, he had noticed that the cattle of the appellants were grazing the fields of Jai Nandan Singh deceased which he had driven away to the road side near the Harijan Toli. Houses of some of the appellants were close to it. The deceased Jai Nandan Singh started warning Chotelal Gope, other members of Manjhi‟s and Bundi Choudhary, whereupon Bundi Pasi, Nande Pasi, Krishna Pasi, Mahesh Pasi, Chandu Manjhi, Chotelal Gope, Jethan Manjhi, Lal Keshwar Manjhi and Shri Manjhi, ten persons altogether, arrived and encircled Jai Nandan Singh. He has given the description of the weapons possessed by the appellants. He then rushed towards that place and found that Krishna Pasi was holding the left hand of Jai Nandan Singh, Mahesh Pasi was holding his right hand, Chotelal Gope was holding the hairs of his head from behind, Bundi Pasi gave orders to kill, whereupon Nande Pasi started rubbing his Hasuli on the neck of Jai Nandan Singh which he warded off, and the Hasuli 12 landed on his left hand. Nandey Pasi gave second Hasuli blow which landed on his chest on the right side, it pierced deep into his chest, resulting in profuse bleeding, he fell down and was trembling. Nandey Pasi delivered the third blow of Hasuli which hit on his left wrist. The remaining appellants were saying that Jai Nandan Singh should be done to death. Other persons assembled there and the appellants left the place. They took Jai Nandan Singh to Biharsarif Hospital for treatment but died on way. The doctor at the hospital declared him dead. The Sub Inspector of Nalanda police station went to the hospital and recorded the Fardbeyan of Brij Nandan Singh. He also prepared the inquest report of the deceased. P.W.4 had put his signature on the inquest report marked Ext.2/2. He has stated in his cross-examination that Brij Nanadan Singh is his cousin (Phuphera Bhai). He has given description of the place of occurrence which is by the side of the road. The houses of Manjhi‟s are to the east of the road. A Marpit had taken place in front of the house of Nande Pasi, by the east of the road. He had seen Jai Nandan Singh driving away the cattle from his land which were about 10 in numbers. He has further stated that while driving away the cattle from his land, Jai Nandan Singh was not using abusive language against the appellants but was warning them. 13 He had noticed that the huts were in burnt condition only after 5-10 minutes of the occurrence while they were putting Jai Nandan Singh in the Jeep to be taken to Biharsharif Hospital. He had noticed the appellants using abusive language against Jai Nandan Singh and other persons present there. He had denied the suggestion that, on 29.5.1983, in the evening, Brij Nandan Singh, Jai Nandan Singh, Binay Singh, Karu Singh had taken toddy at the shop of Bundi Pasi, had refused to make payment of the same, and had started abusing them when payment was demanded and had equally denied the suggestion that the prosecution party had thereafter burnt their houses. He has affirmed the statement made in his examination-in-chief as to the mode and manner of the occurrence and the part played by the appellants. P.W.4 has substantially supported the prosecution case, no major contradiction has been noticed in his deposition except that he has stated that Jai Nandan Singh had not used abusive language against the appellants after driving away the cattle. This was not a mere omission his part in his examination-in-chief, but he asserts this position in cross-examination. 13. P.W.5 is Ghanshyam Singh, a co-villager and claims to be an eye witness. He has stated in his 14 examination-in-chief that on 29.5.1983, at 6.30 P.M., he was at Nalanda More. The cattle belonging to the appellants were grazing the onion fields of Jai Nandan Singh. He had seen Jai Nandan Singh driving away the cattle from his land towards the Harijan Toli situate at Nalanda More and was warning them, upon which the appellants armed with lathi, lautha, Hasuli came there and encircled him. The appellant Nande Pasi was armed with Hasuli, and Bundi Pasi with lautha. The remaining appellants were armed with lathis. He alongwith others approached the place where Jai Nandan Singh had been encircled. Krishna Pasi was holding the left hand of Jai Nandan Singh, Mahesh Pasi was holding his right hand, and Chote Lal Yadav was holding his hairs from behind. Bundi Choudhary ordered to chop off the head of jai Nandan Singh, whereupon Nande Pasi attacked him with Hasuli which landed on his left arm causing injuries. Nande Pasi then delivered a Hasuli blow which pierced his chest on the right side causing severe injuries. Jai Nandan Singh fell on the ground and was shaking. There was profuse bleeding from his chest. All the appellants then said in one voice that he should be done to death, whereupon Nande Pasi attacked him with his Hasuli which landed on his left wrist. All the appellants ran to their houses. Brij Nandan Singh took Jai Nandan Singh to the hospital. He then noticed that 15 the appellants had evacuated their houses of their belongings, and set the houses on fire. He had later on learnt that Jai Nandan Singh had passed away. He recognized all the appellants present in the dock except Jethan Manjhi who was absent and was representted through his counsel. He claimed to recognize Jethan Manjhi also. He has stated in his cross-examination that his father and that of Brij Nandan Singh are full brothers. He was taking tea at Nalanda More when the occurrence and taken place. The Mushar Toli was situate about 50 yards from there. He has given a description of surrounding areas. He was not aware as to whom the cattle belonged but he realised it after Jai Nandan Singh had started warning the appellants. Jai Nandan Singh was using abusive language against the appellants while moving forwards. He has affirmed his deposition made during the course of examination-in-chief. Bundi Pasi has a toddy shop in his house. He was not aware as to who was managing the same. He was not aware whether or not the same was being managed by the female inmates. He has also given description of the manner in which Nande Pasi had pierced the Hasuli in the chest of Jai Nandan Singh. He had seen Jai Nandan Singh shaking his body before Nande Pasi had pierced his Hasuli in his chest, but he could not get away from the hold of 16 the appellants. He did not make any attempt to save and protect Jai Nandan Singh because the appellants were variously armed. He was standing at a distance of about 10 Yards. He made attempts to go near Jai Nandan Singh but was frightened away by the display of lathis as a result of which he had withdrawn. None had approached Jai Nandan singh so long he was being assaulted. He had seen Jai Nandan Singh shaking after he had fallen on the ground and had not heard his voice. He had not accompanied Jai Nandan Singh to the hospital. He has denied the suggestion that he is falsely supporting the prosecution case because they are agnates. P.W.5 has fully supported the prosecution case and the defence has not been able to extract any contradiction in his examination-in-chief. He had not seen the appellant Bundi Pasi receiving any Marpit. He appears to be a trustworthy witness. 14. P.W.6 is Siya Saran Singh, is a co-villager, and claims to be an eye-witness. He was at Nalanda More on 29.5.1983, at about 6 P.M., and it was a Sunday. He had seen Jai Nandan Singh driving away the cattle from his onion fields which were 10-12 in number and included buffalo, cow, calf. He had brought the cattle near the Harijan Toli. Jai Nandan Singh was using abusive language against the appellants while he was driving away the cattle. He had not heard him naming 17 any person while warning the appellants. At this point of time, the appellants, Bundi Pasi, Nande Pasi, Krishna Pasi, Mahesh Pasi, Chote Lal Gope, Chandu Manjhi, Ganauri Manjhi, Jethan Manjhi, Sri Manjhi, Lalkeshwar Manjhi arrived there. Bundi Pasi had a Lautha in his hand, and Nande Pasi had a Fasuli in his hand. All of them encircled Jai Nandan Singh whereafter Mahesh Pasi had held the right hand of Jai Nandan Singh, Krishna Pasi had held his left hand and Chotelal Gope had held his hairs from behind. Bundi Pasi gave orders that “lkys dk eqM+h dkV yks”, whereupon Nande Pasi assaulted Jai Nandan Singh with his Hasuli on his neck. He was able to ward off the attack which landed on his left arm causing injuries and bleeding, and blood started flowing. Nande Pasi attacked him for the second time with his Hasuli which pierced his chest on the right side as a result of which he started shaking and fell down in an injured condition with bleeding injuries. All the appellants then said that he was still alive and he should be done to death, whereupon Nande Pasi delivered the third Hasuli blow which struck his left wrist. Many persons assembled there and the appellants fled away. He alongwith Brij Nandan Singh, Narayan Singh, and others took Jai Nandan Singh to the Biharsharif hospital. He died on way to the hospital and the Doctor at the hospital declared him brought 18 dead. The police Officer of Nalanda police station arrived some time thereafter. He had seized the full- sleeved Kurta from the body of the deceased and prepared the seizure list, and P.W.6 had put his signature on the same which has been marked Ext.3. He is conversant with the signature of Narayan Singh which he had recorded in his presence and marked Ext.3/1. He identified all the appellants present in the dock, and also said that Jethan Manjhi was not present. Jethan Manjhi was on representation and claims to identify him also. By the time the injured Jai Nandan Singh had left the place of occurrence by jeep for the hospital, the appellants had evacuated their houses of their belongings and set their houses on fire. He has stated in his cross-examination that he is the first cousin of Brij Nandan Singh. He was taking tea at Nalanda More at the time of the occurrence. The distance from where he was taking tea and the onion fields where the cattle were grazing were separated by only 150 Gaj. He had seen about 10-12 cattle. He has reiterated the version as stated by him during the course of the examination-in-chief. He has also given description of the area surrounding the place of occurrence. The appellants were wielding lathis so that nobody could come near them. He had not seen appellant Bundi Pasi sustaining any Marpit. 19 P.W. 6 has fully supported the prosecution case and no contradiction has emerged in the whole of his deposition. 15. P.W.7 is Narayan Singh and is a tendered witness. P.W.8 is Nandu Singh and has proved his signature on the inquest report marked Ext.2/3. He has stated that Jai Nandan Singh is his agnate. The defence declined to cross-examine him. P.W.9 is Bihari Singh and has been tendered. 16. P.w.10,Brij Nandan Singh, is the informant and the full brother of the deceased. He was, on 29.5.1983, which was a Sunday, at 6.30 P.M., at Nalanda More and noticed that his brother Jai Nandan Singh was driving away the cattle from his onion plantations. After Jai Nandan Singh had reached the house of Chotelal, he had heard the former (Jai Nandan Singh) using abusive language against the appellants and was also warning them. While he was so warning them, he had approached