CRIMINAL APPEAL No.97 OF 1989 (DB) --------- Against the judgment of conviction and order of sentence dated 9th February, 1989 passed in Sessions Trial No. 318 of 1982 by Sri S.M.I.I.F. Alam, 4th Additional Sessions Judge, Arrah ********* BISHWANATH SINGH SON OF LATE HARI SHARAN SINGH RESIDENT OF VILLAGE BABURA, P.S.- BARAHRA, DISTRICT- BHOJPUR ………………………………………………………….. APPELLANT VERSUS THE STATE OF BIHAR ………………….RESPONDENT ******************** For the Appellants :- Mr. Shivaji Singh, Advocate Mr. Jagdish Prasad Bhagat, Adv. For the Respondent :- Ms. Shashi Bala Verma, APP ************************ P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ---------- S. K. Sharma. J. Initially the appeal was filed by two persons, namely, Bishwanath Singh and Ragho Singh @ Ragho Sharan Singh. The age of appellant Ragho Singh @ Ragho Sharan Singh was assessed to be 88 years under Section 313 Code of Criminal Procedure Code. Later on, a petition was filed informing about his death and so the appeal against appellant no. 2 was abated and now the appellant no. 1 namely, Bishwanath Singh is the sole appellant in this appeal who has been found guilty by the learned 4th Additional Sessions Judge, Bhojpur at Arrah in Sessions Trial No. 318 of 1982 vide judgment dated 9.2.1989 2 under Section 302 of the Indian Penal Code and under Section 27 of the Arms Act and he was sentenced to undergo rigorous imprisonment for life under Section 302 Indian Penal Code and rigorous imprisonment for one year under Section 27 of the Arms Act. The sentences were ordered to run concurrently. 2. Fard-beyan (Ext.-6) of PW 12 was recorded by the Officer In-charge of Barhara Police Station at the P.O. village- Sabalpur wherein the informant (PW 12) on 26.4.1988 at 11.30 AM stated that the land of Sabalpur has converted into a pond which belonged to Deo Prasad Pandey (PW 8), Hari Shankar Pandey (not examined), Dev Bansh Pandey (not examined) and others. The settlement of the pond was taken by Rameshwar Singh (not examined) and Rajeshwar Singh (not examined). At 9.00 AM on 26.4.1981 in the morning, Rajeshwar Singh (not examined) and Rameshwar Singh (not examined) came for fishing. At that very time, accused Ragho Singh, Basudeo Singh, Kishore Singh, Rajendra Singh, the appellant Biswanath Singh and others came and obstructed the fishing and altercation ensued and the accused persons returned soon thereafter. At that time, Ragho Singh, this appellant, Rameshwar Singh and others were carrying guns. The informant and others went to see, thereafter, all the accused persons started assaulting. At that time Rajendra Singh was also having gun. Due to firing the injured received injury on his leg. Sathurghan Pandey, Gorakh Chowkidar have received injury and the occurrence was 3 witnessed by Amir Pandey (PW 10), Gajadhar Pandey (PW 11), Barku Pandey (not examined) and Deo Prasad Pandey (PW 8). On account of firing Arbind Pandey died. This information resulted into registration of Barhara P.S. Case No. 62 of 1981 under Sections 147, 148, 149, 326, 302 of the Indian Penal Code and Section 27 of the Arms Act. After investigation chargesheet was submitted. Accordingly cognizance was taken and the case was committed to the Court of Sessions. 3. Ragho Singh @ Ragho Sharan Singh, Rajendra Singh, Bishwanath Singh, Basudeo Singh, Baldeo Siongh, Sukhdeo Singh, and Ram Kishore Singh and the appellant were charged under Sections 302/149 of the Indian Penal Code for sharing of common object to commit murder of Arbind Pandey and in furtherance of that object Biswanath Singh caused death to Arbind Pandey. The aforesaid persons were also charged under Sections 307/149 of the Indian Penal Code for trying to commit murder of Ramadhar Tiwary who has received gun shot injury. They were also charged under Sections 323/149 of the Indian Penal Code for sharing common object and causing voluntarily hurt to Gorakh Chowkidar. Rajednra Singh was charged under Section 307 of the Indian Penal Code for firing by gun at Ramadhar Tiwary with intention or knowledge to cause death. He was further charged under Section 27 of the Arms Act for holding firearms. Basudeo Singh,, Baldeo Singh and Sukhdeo Singh were charged under Section 148 of the Indian Penal Code for being 4 members of unlawful assembly on 26th April, 1981 at village Sabalpur. Appellant Bishwanath Singh was separately charged under Section 302 of the Indian Penal Code for committing murder of Arbind Pandey and under Section 27 of the Arms Act for holding and using arms for the purpose of killing of Arbind Pandey. 4. Rajendra Singh and Sukhdeo Singh died in course of trial, so proceeding against Rajendra Singh was dropped on 27.2.1986 and against Sukhdeo Singh on 2.8.1985. The defence of the accused persons including this appellant was of false implication on account of enmity as alleged by the informant himself and also that though the initial version gave similar role to many persons but the prosecution has developed the story later on that it was the appellant alone who has caused fatal injury. Further evidence was that the accused persons in the capacity of Mortgager had served notice of redemption of their land against a number of persons of village Sabalpur and in consequence of the automatic redemption and the mortgaged deed due to new legislation which has come into being. 5. Now it has to be seen here as to whether the prosecution has been able to prove the charges against the appellant beyond the shadow of all reasonable doubts or not. 6. In order to prove the case, the prosecution has examined altogether 14 witnesses. They are Sudama Pandey (PW 1), Devnandan Padney (PW 2), Dr. Birendra Kumar (PW 3), 5 Mahendra Padney (PW 4), Dr. K. B. Sahay (PW 5), Rangnath Pandey (PW 6), Vidayasagar Pandey (PW 7), Deo Prasad Pandey (PW 8), Shatrughan Pandey (PW 9), Amir Pandey (PW 10), Gajadhar Pandey (PW 11), Ramadhar Tiwary (PW 12), Dr. Akhilesh Sharma ( PW 13) and Munmun Lal (PW 14). 7. PWs 1, 6, 8 10 and 12 are ocular witnesses of the occurrence. PW 3 Dr. Birendra Kumar has examined the injury of Gorakh Chowkidar. PW 5 Dr. K. B. Sahay has examined the injury of Ramadhar Tiwary and Sukhdev Pandey. PW 13 Dr. Akhilesh Sharma conducted post mortem examination on the dead body of Arbind Pandey. PW 2 has proved the signature on the inquest report (Ext. 1). PWs 7 and 9 were the seizure list witnesses. PW 4 is a hearsay witness. PW 11 was tendered for examination. PW 14 has proved the case diary written by S. I., Murari Prasad the Investigating Officer who was reported to be dead. 8. Initial version was recorded at 11.30 AM on 26.4.1981 when the Officer Incharge visited the place of occurrence. In that version the informant has given the role of assault to many persons including this appellant Biswanath Singh. This Biswanath Singh was bracketed with Rameshwar Singh who too was shown to be armed with gun. Later on, it appears that in course of evidence major variations were made. Against the Mukhiya Rameshwar Singh entire accusations were dropped and this accused namely, the appellant was singled out. 6 This was at variance with the initial version which has been recorded by the Investigating Officer. In course of hearing, the prosecution has tried to analyze the reasons for this variations but no explanation could be given as to why this important fact that the appellant alone was the shooter has not come and why he was bracketed with others. In course of investigation, story which was inconsistent with the fard-beyan was developed and accordingly, chargesheet was submitted and charges were framed. 9. PW 12 is the informant. He has stated that at about 9 to 10 AM on 26.4.1981 his cattles were grazing on the Bandh. At that time, Arbind Pandey (deceased of the case) was also with him. The informant saw 300 persons coming from the western side. They came upon Bandh. The informant saw that Ragho Singh was having a stick, Basudev Singh, Baldev Singh, Sukhdev Singh and Ram Kishore Singh were having Bhala whereas Biswanath Singh and Rajendra Singh were having rifles. In the fard-beyan the allegation was that this appellant was having gun but in evidence it has been stated that this appellant was having rifle. At the behest of Ragho Singh, Rabindra Singh tried to escape but he was fired upon by this appellant which caused injury on his chest. As a result of firing, Arbind Pandey fell down and died. Rajendra Singh also fired which caused injury upon the legs of the informant. Shatrughan Pandey also received Pilate injury on account of brick bats. On hulla villagers came and 7 witnessed the occurrence. When the police came on the place of occurrence this fard-beyan was recorded and read over to him and when the informant found that the fard-beyan was correctly recorded then he put his signature. The informant came to hospital for treatment where he was examined and his injury report was prepared. In cross-examination this witness has stated that firing was made from the rifle which has caused injury. PW 10 has stated that this appellant has come with gun and he has fired though that gun which has caused fatal injury to Arbind. He has not stated that the appellant was having the rifle. According to him also, the death was because of firing by the appellant. 10. PW 8 who has stated that Rameshwar Singh and Rajeshwar Singh were having quarrel on account of fishing and there was altercation in which this appellant was also participating. Subsequently, this appellant and Rajendra Singh came with rifle and they started firing. Specific evidence was that the firing made by this appellant and Rajendra Singh has caused injury to Arbind Pandey. This version of PW 8 has come in paragraph 2. He stated that on account of that firing made by this appellant and Rajendra Singh, Arbind Pandey died. 11. Now the evidence of the doctor who has conducted post mortem examination is to be looked into. PW 13 has conducted the autopsy of Arbind Pandey on 26.4.1981 at 5.15 PM and has found following injuries:- 8 (i) Lacerated wound 1/2” diameter with inverting margin of the back of right side of chest. (ii) Lacerated wound 2”x1”x chest cavity deep in front of right side of the chest. 12. The injuries were caused by firearms. The post mortem report (Ext. 3) shows that the deceased was having two injuries. One was wound of entry and another was wound of exit. The specific case and evidence of the prosecution right from the beginning was that the firing was upon the chest of Arbind Pandey. This is the version of eye witnesses who have been examined on behalf of the prosecution. PW 13 who has conducted post mortem on the person of the deceased, in paragraph 7 of his evidence, has stated that injury no. 1 which was on the back right side of the chest was the wound of entry and injury no. 2 which was in front of right side of the chest was the wound of exit. The nature of injuries are such from which only inference come that the firing on Arbind Pandey (deceased) which has proved fatal was upon his back and this version has been stated by the doctor. The witnesses who have been examined by the prosecution have given only one version that the firing was upon the chest, therefore, injury according to the ocular witnesses, should have been such that entry wound would have been found on the chest. This version cannot be read together. The version of the doctor cannot be read with the 9 version of the eye witnesses because these are two quite contradictory versions and both are not reconcilable. 13. The post mortem examination report creates doubt about the truthfulness of the prosecution version because the ocular witnesses are in conflict with the medical evidence. 14. Another fact which has been taken into account is that as to from which place the firing was made. On this point the prosecution has examined witnesses. The evidence on this point is of two witnesses. PW 1, in paragraph 16, has stated that the firing was being made from a Sahan Jameen which was situated north of Bandh whereas PW 10, in paragraph 8, has stated that Biswanath Singh was making firing while he was at the Bandh. The prosecution has examined only two witnesses on this aspect as to what was the place from where the firing was made. One witness is saying that it was upon the Bandh from where firing was made whereas another witness has contradicted the same and stated that the firing was being made from a place which was north of Bandh. Here also it appears that there is a contradiction. The genesis of the case which is mentioned in the FIR (Ext. 6) was that there was a dispute with regard to ownership of the land covering the pond which was settled with Rameshwar Singh of village Bindhgama and Rajeshwar Singh of village Fhua and the settlees had come for fishing. They were stopped by the accused party which resulted in altercation between two sides. Thereafter, accused persons left the place and 10 they again reassembled with arms. The very genesis of the dispute was the ownership of the pond, therefore, it has been pointed that the owners who were the most important witnesses who could have stated about this fact but the prosecution has not brought any owners and so it has been argued that it was the lacunae on behalf of the prosecution which has failed in its duty. 15. Deo Prasad Singh was examined as PW 8, who has stated that all the ancestors of the accused had in the year 1916 mortgaged the part of land to Raghunath Pandey of Sabalpur and in paragraph 13 he averred that payment of Rs. 300/- was made to accused Ragho Sharan Singh by the lessee. Here this evidence has to be read with the evidence of informant given in paragraph 12 wherein he has stated that land of pond belonged to Babus of village Babura meaning thereby to the accused persons. 16. Four eye witnesses were cited in the FIR. Out of whom PWs 8 and 10 have been examined and two others were withheld. PW 10 stated that he has not given any statement before the Investigating officer rather he has given his statement only before the Dy. S.P. and PW 8 in paragraph 23 has stated that the S.I. of the area has reached at the spot when the firing had commenced. 17. If the entire evidence is scanned in proper perspective then it appears that this appellant was subsequently shown as shooter and the fard-beyan which was recorded much after the occurrence, he was bracketed along with others. 11 According to the FIR, the firing was by this appellant and others but in course of evidence the allegation of giving fatal injury was attributed solely to this appellant. When the informant has given his fard-beyan in conscious state and if he was the witness of the occurrence then it was natural for him that he would have mentioned this appellant alone as shooter of the deceased but this fact has not come rather this appellant was shown as shooter along with others who later on were absolved from this allegation. According to the fard-beyan, the firing was by gun whereas the ocular eye witnesses have stated that firing was from rifle. Not only that the eye witnesses have stated that the firing was upon the chest whereas the doctor has contradicted this and he has stated that the wound of entry was upon the back. This also lends doubt as to whether the witnesses have seen the occurrence at all or not. 18. Now the other aspect is the place from which firing was resorted to. One witness has stated that the firing was made by the appellant while he was on the Bandh whereas another witness says that firing was made by the appellant while he was north of Bandh in Sahan Jameen which was situated north of Bandh. Here also there is a great variation and these variations are not of minor nature rather these variations are of major nature which clouds the prosecution version considering that the enmity was from before and if in these backgrounds the entire evidence is scanned then it appears that the witnesses have 12 either not seen the occurrence or have not stated the correct version. There is no explanation of grave variations between the fard-beyan and the deposition of the witnesses. Another point of the defence is that the appellant was more than aged about 55 years on the date of occurrence because his age was assessed to be 63 years in the month of April, 1988, so it has been submitted that he was not in a fit position to use any firearm. 19. This argument does not appear to be correct because age of 55 is not so, which can prevent a person from using firearm. His age was assessed to be 63 years in April 1988 meaning thereby that he must be aged about 88 years now. This will not give benefit to the accused. 20. It has been stated by the learned counsel for the defence that the nature of evidence is quite contradictory with the post mortem examination report and the witnesses have contradicted this on many points. Regarding the place from where firing was made, regarding the weapon which was used by which firing was made and there is no explanation as to why this appellant alone was singled out leaving others though initial allegation was identical against others. A grave doubt is created as to whether prosecution has come with clean version or true version of the occurrence. Once a doubt is created then settled principle of law is that benefit goes to the accused. 21. Accordingly, we hold that the prosecution has not been able to prove its charges beyond the shadow of all 13 reasonable doubts against the appellant. 22. In the result, the judgment of conviction and order of sentence is set aside and this appeal is allowed. The appellant is acquitted of the charges and is discharged from the liabilities of his bail bonds. Akhilesh Chandra, J. (Shyam Kishore Sharma, J.) I agree. (Akhilesh Chandra, J.) Patna High Court, Patna Dated the 25th January, 2011 N.A.F.R./Avin