CRIMINAL APPEAL No.294(DB) OF 1988 ---- Against the judgment of conviction and order of sentence dated 26.04.1988 passed by Sri Mohan Krishna Verma, Ist Additional Sessions Judge, Begusarai in Sessions Case no. 117 of 1985/79 of 1985. ----- 1.Ram Pukar Mahto son of Ram Prasad Mahto 2.Bishwanath Mahto son of Charitar Mahto 3.Asho Chaudhary son of Kesho Pasi 4.Bhabichan Sahni son of Bholour Sahni 5.Sheikho Tanti son of Ajab Lal Tanti All resident of village Pakthaul, P.S.Teghra, District Begusarai ------ Appellants Versus The State of Bihar ----- Respondent ----- For the Appellants : M/s R.C.Sharma & Arun Kr.Singh For the State : Ms Shashi Bala Verma, Addl.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. Five appellants have challenged the judgment of conviction and order of sentence dated 26.04.1988 passed by learned Ist Additional Sessions Judge, Begusarai in Sessions Case No. 117 of 1985/79 of 1985 whereby and whereunder appellants have been convicted under Section 302/149 of the Indian Penal Code and have been sentenced to undergo life imprisonment. Appellants Bhabhichhan Sahni and Sheikho Tanti were further convicted under Section 148 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for one year whereas appellants Ram Pukar Mahto, Bishwanath Mahto and Asho Chaudhary have also been convicted under Section 147 of the Indian 2 Penal Code and have been sentenced to undergo rigorous imprisonment for one year. The sentences were directed to run concurrently. 2. The prosecution case begins with the fardbeyan of Sukhdeo Sahni (P.W.5) recorded by Sub-Inspector of Police, B.D.Pathak of Teghara Police Station on 8.7.1983 at 3.00 A.M. at Pakthaul Chowk, to the effect that on 7.7.1983 in the after noon, the supporters of C.P.I. and C.P.M. were fighting between themselves when the informant was working in his maize field adjacent to Pakthaul Chowk along with his son Modo Sahni (deceased) and the villagers Sonelal Sahni (P.W.3), Bhukal Sahni (P.W.4) and others. At about 5.00 P.M on 7.7.1983 the informant saw 15-20 people coming from the village Kirthaul armed with lathi, pistol, gun etc. The accused persons were coming from west to east from which the informant identified Ram Pukar Mahto (appellant no.1), Bishwanath Mahto (appellant no.2), middle son of Kesho Pasi (appellant no.3) Asho Chaudhary, Bhibhichhan Sahni (appellant no.4)and Sheikho Tanti (appellant no.5), all resident of village Pakthaul, P.S.Teghara whereas the informant claimed to 3 identify the others on seeing them, as all the accused persons were co-villagers of the informant. When the accused persons came near the informant, then one of them ordered to kill by addressing that “the enemy is present”. On the said order, Asho son of Kesho Pasi (appellant no.3) assaulted with danda, Bishwanath Mahto (appellant no.2) with lathi and Ram Pukar Mahto (appellant no.1) with sharp weapon on the informant’s son whereas Bhabhichhan Sahni (appellant no.4) and Sheikho Tanti (appellant no.5) resorted to firing as a result of which informant’s son, Modo Sahni, fell down and died at the spot. On seeing this the informant got scared and ran towards the village but subsequently heard that the accused persons also killed two passersby of village Bariyadi at Pakthaul Chowk. The informant expressed the reason for the occurrence as his deceased son, Modo Sahni, was a witness in a murder case of Shivjee Sahni of village Pakthaul, hence the accused persons targeted him. It is claimed by the informant that the occurrence was seen by persons who were working in the field along with the informant. On the 4 basis of the aforesaid fardbeyan (Ext.5), F.I.R. (Ext.6) was registered for offences under Sections 147,148,149,302 of the Indian Penal Code and 27 of the Arms Act. 3. The police after investigation, submitted chargesheet against 18 accused persons. Thereafter, cognizance was taken and the case was committed to the court of Sessions where accused Bhabhichhan Sahni and Sheikho Tanti have been charged under Sections 302, 148 of the Indian Penal Code and 27 of the Arms Act and all the 18 accused persons have been charged under Sections 302 read with Section 149 and 147 of the Indian Penal Code. The charges were explained to them to which they pleaded innocence. Hence trial proceeded. 4. The prosecution in order to substantiate its case examined 8 witnesses. P.Ws. 1 and 2 are Suraj Mahto and Kali Charan Yadav, respectively. They claimed to have witnessed the part of the occurrence. P.Ws. 3 and 4, Sone lal Sahni and Bhukhal Sahni, respectively, are the F.I.R. named witnesses whom the informant P.W.5 in the fardbeyan, suggests that they were working in the field 5 with the informant and the deceased but they have been declared hostile since they have stated that neither they have seen the occurrence nor their statements were recorded by the police under Section 161 of the Code of Criminal Procedure. P.W.6 is Dr.Purushottam Mishra who conducted the post mortem on the dead body of the informant’s son, Modo Sahni, alias Madan Sahani. P.W.7 is Dr.Shashi Bhushan Prasad Singh who conducted the post mortem on the dead body of Rajo Yadav. This witness has also proved the post mortem report of deceased Dorik Yadav (Ext.4) as the post mortem on the dead body of deceased Dorik Yadav was conducted by Dr.Rajendra Prasad Singh. P.W.8 is the Investigating Officer of the case who registered the F.I.R., prepared inquest report and conducted major portion of investigation, though chargesheet was submitted by one Rajdeo Singh who has not been examined. 5. The defence has not examined any witness. 6. It is a peculiar case in which, in a group war, four persons namely, Modo Sahni, Rajo Yadav, Dorik Yadav and Suraj Pahalwan were 6 killed in village Pakthaul. For the murder of Dorik Yadav and Rajo Yadav, Teghara P.S.Case No. 51 of 1983 was registered and during course of investigation of the said case, the fardbeyan of P.W.5 was recorded which resulted into institution of the present case i.e. Teghara P.S.Case No. 52 of l983 on 8.7.1983. In the present case, thirteen out of eighteen accused persons put on trial were acquitted by the trial court as the prosecution witnesses failed to prove the charges against them but the present 5 appellants were convicted on the basis of sole evidence of P.W.5 (informant). During trial, three witnesses came to support the prosecution case. They are P.Ws. 1, 2 and 5 but the learned trial court has disbelieved the evidence of P.Ws. 1 and 2 by holding that they have not seen the occurrence to the extent of murder of informant’s son, Modo Sahni. 7. Now this Court has to see whether the evidence of the solitary witness P.W.5 is credit worthy to the extent of warranting conviction of the present appellants, or the evidence on record needs any reappraisal to see whether the judgment of conviction requires any 7 interference. 8. So far as the manner of occurrence is concerned, the informant (P.W.5) in his fardbeyan only talks about the manner in which his son Modo Sahni was killed in a maize field of Nezam which was sown by the informant as under raiyat. In the fardbeyan P.W.5 has stated that 15-20 people came armed with lathi, pistol, gun etc. from the western side and on the order of unidentified criminals, appellant no.3 Asho Chaudhary assaulted Modo Sahni (deceased) with danda, appellant no.2 Bishwanath Mahto with lathi, appellant no.1 Ram Pukar Mahto with a sharp weapon whereas appellant no.4 Bhabhichhan Sahni and appellant no.5 Sheikho Tanti resorted to firing, as a result of which the informant’s son Modo Sahni fell down and died at the spot. P.W.5 during his evidence in paragraph 2 has stated that someone from the mob ordered to kill, then Bishwanath Mahto appellant no.2 and Asho Chaudhary appellant no.3 assaulted with lathi, Ram Pukar Mahto appellant no.1 assaulted with farsa whereas appellant no.5 Sheikho Tanti and appellant no.4 Bhabhichhan Sahni resorted to firings with gun and pistol, 8 respectively, and when the accused persons left the place, then the informant went near the dead body of his son. In paragraph 13 of his evidence, P.W.5 has stated that 20-25 accused persons chased the deceased whereas it is stated that first assault was made by appellant no.3 Asho Chaudhary with lathi and thereafter Bishwanath Mahto appellant no.2 also assaulted with lathi and after sustaining injuries the victim fell down in the maize field. P.W.5 in paragraph 14 has stated that he could not see whether the assault with sharp weapon had actually hit the deceased or not and further clarified that though two accused fired but he could not see whose firing actually hit the deceased. It appears that P.W.5 has tried to improve his version after seeing the post mortem report (Ext.2) which suggests only one fire arm injury. This inconsistency in the evidence of P.W.5 creates doubt about P.W.5’s claim of being an eye witness. 9. P.W.6 who conducted the post mortem of deceased Modo Sahni found one fire arm wound ½” in diameter with inverted charred margin situated on the left side of the cheek, 1” below 9 the lower lid with fracture of maxila. So it appears that the evidence of P.W.5 (informant) is not only inconsistent with his fardbeyan wherein he specifically alleged that two persons assaulted with lathi, one person with sharp weapon which has further been specified in his evidence that farsa blow was given but during cross-examination he tried to dilute his initial version by saying that he cannot say that the earlier assault, made by sharp weapon, actually hit the victim or not and out of two firings whose firing hit the deceased but the medical evidence completely negates the version of the prosecution as no lathi injury except a bruise of marginal size or any injury caused by sharp weapon were found by the doctor which suggests that the informant either did not see the occurrence or has not unfolded the true version of the prosecution case. The presence of P.W.5 at the place of occurrence becomes doubtful in view of the fact that in paragraph 14 this witness has stated that the firing was resorted to from one lagga which is equivalent to not less than 10” (feet) whereas the doctor has found the margin of the injury as charred which 10 suggests that from very close range, firing was made, as the projectile made its exit, fracturing left side of the occipital bone whereas the doctor in his cross-examination has admitted that the firing must have been made from close range. Hence the nature of injury creates doubt about the manner of assault as suggested by P.W.5. The evidence of P.W.5 having seen the actual occurrence gets doubtful from his own evidence in paragraph 7 wherein he has stated that near the P.O. field as well as the surrounding area there was maize crops upto thigh level and in paragraph 13 the informant has deposed that he saw the occurrence from 20 yards. 10. So far as presence of informant P.W.5, in the maize field where occurrence took place is concerned, becomes doubtful, since in paragraph 6 of his evidence P.W.5 has stated that he took the P.O. field from Nizam, on crops share basis, as he had no land but the said Nizam has not been examined. Moreover, Investigating Officer (P.W.8) in paragraph 10 of his evidence has stated that the informant has not given any document to suggest that he was 11 under raiyat of Nizam. Hence on this score also the presence of informant P.W.5 at the place of occurrence becomes highly doubtful. The conduct of P.W.5 also suggests that he was not present at the place of occurrence as from his evidence it appears that he made no effort to protect the victim or watch the dead body as after occurrence he went to his house as stated in paragraph 15 of his evidence and next day he went near the dead body though he was aware that no one is in the field near the dead body. P.W.5 in paragraph 17 of his evidence has stated that he neither went to police station nor sent any one there to inform about the occurrence whereas he came to the place of occurrence on the next day when the Investigating Officer came near the dead body and called him. P.W.8, Investigating Officer, has stated in paragraph 9 that during investigation of Teghara P.S.Case No.51 of 1983, he recorded the fardbeyan of P.W.5. The aforesaid unreasonable behaviour of the informant being father of the deceased suggests that he was not present at the place of occurrence. 11. So far as the motive of the alleged 12 occurrence is concerned, P.W.5 is very inconsistent with regard to the same. In fardbeyan, P.W.5 has stated that since his deceased son, Modo Sahni, was a witness in the murder case of Shivji Sahni, hence he was killed, though this claim has been reiterated by P.W.5 in paragraph 3 of his evidence but this witness in paragraph 9 of his evidence has stated that another son Kari Sahni was the witness in the murder case of Shivji Sahni and there was no enmity with the accused of Shivji Sahni’s murder case which leads to create serious doubt about the motive as alleged by P.W.5. Hence by own evidence P.W.5 has created serious doubt about the alleged occurrence. P.W.5 in his fardbeyan has stated that the fighting was going on, on the alleged date of occurrence, between the supporters of CPI and CPM and the said fact has been reiterated by P.Ws. 1 and 2 as well as the informant in paragraph 3 of his evidence where he said that the accused who committed the occurrence belonged to CPM Party but from the evidence of the Investigating Officer it is not apparent that any investigation was made with regard to 13 the accused belonging to the CPM group. 12. There is no doubt that the conviction can rest even on the testimony of a solitary witness provided the solitary witness conclusively proves the charge and his testimony is credit worthy to the extent that the accused can be convicted on the basis of his testimony. Though the trial court has relied upon the testimony of P.W.5, we come to the conclusion that the testimony of P.W.5 is not only inconsistent with the fardbeyan but the inconsistency got crystalised during his evidence in trial. Moreover, the evidence of doctor P.W.6 completely negates the credibility of P.W.5 and thereby creates a hole in the prosecution case giving rise to serious doubt and the benefit flowing from the said doubt has to be conferred to the accused persons. 13. The evidence of P.W.5 is also inconsistent with the evidence of P.Ws. 1 and 2 who claim themselves to be eye witnesses as P.W.1 has stated that the firing was resorted to by Ali Mian and Wali Mian and the pellet also hit him whereas P.W.5 in paragraph 2 has suggested that Bhabhichhan Sahni appellant no.4 14 and Sheikho Tanti appellant no.5 resorted to firing at the deceased, Modo Sahni. The same fact has been reiterated in paragraph 8 in the evidence of P.W.1 whereas P.W.2 has not stated about the assault being made on the informant’s son. From perusal of evidence of P.Ws. 1 and 2 it appears that they deposed more with regard to manner of assault and the actual assault being made on the other deceased than the manner of assault made on the informant’s son, Modo Sahni. Moreover, the evidence of P.Ws.1 and 2 with regard to the manner of occurrence is absolutely inconsistent to that of the evidence of P.W.5. Hence, in our view, the learned trial court has rightly not relied on the evidence of P.Ws. 1 and 2 because it does not help the prosecution to prove its case. 14. So far as the place of occurrence is concerned, as per fardbeyan, the place of occurrence is the field of Nizam in which the informant with his son and Shukho Sahni (not examined), Bhukhal Sahni (P.W.4), Sone Lal Sahni (P.W.3) and others were working, whereas, from the evidence of P.W.1 it appears that the occurrence happened in the village near the 15 house of Gita Mahto. Evidence of P.W.1 in paragraph 1 suggests that the accused persons surrounded the entire Tola where they assaulted him and P.W.2 by taking him out from his house and thereafter, they entered into the maize field of the informant. P.W.2 has stated in paragraph 1, that when he reached home from his maize field, the accused persons surrounded his house, thereafter the accused persons entered into his house to drag out this witness and assaulted him. This witness has stated that Suraj Pahalwan was also assaulted. Hence P.W.1 and P.W.2 are unable to fix the exact place of assault. From the evidence it appears that the assault took place at two or three places in the village. P.W.5 has stated that the occurrence took place in the maize field of Nizam as P.W.5 tries to prove the case that in the occurrence only his son Modo Sahni was killed but since the Investigating Officer (PW.8) in his evidence in paragraph 10 has stated that the informant has not supplied any document with regard to the P.O. land nor its title was verified. Moreover, the Investigating Officer has found dead body of Rajo Yadav 16 about 10 yards east to Pakthaul Chowk whereas the dead body of Dorik Yadav was found adjacent east to Pakthaul Chowk and the dead body of informant’s son, Modo Sahni, was found about 100 yards west to Pakthaul Chowk in maize field. Hence it appears that even the Investigating Officer has found three places of occurrence and it appears that in the same transaction at different places four persons namely, Rajo Yadav, Dorik Yadav, Modo Sahni and Suraj Pahalwan were killed. Hence, after scanning the evidence of P.Ws. 1,2, 5 and 8 we come to the conclusion that the prosecution has failed to prove the exact place of occurrence. 15. So far as the time of occurrence is concerned, P.W.5 in his fardbeyan and evidence has stated that the occurrence took place at about 5.P.M. whereas P.W.1 in paragraph 1 has stated the time of occurrence at 3 to 3.30 P.M. and P.W.2 in paragraph 1 has stated that the occurrence took place at 3.00 P.M. on 7.7.1983 though the Investigating officer has not suggested anything with regard to time of occurrence since he reached the P.O. village at 1 A.M. on 8.7.1983 to know about the death of 17 Modo Sahni and then the inquest of Modo Sahni was prepared at 4.50 A.M. on 8.7.1983 and the fardbeyan was registered on 8.7.1983 but the Investigating Officer has not tried to prove the exact time of occurrence during his evidence. Hence the prosecution has miserably failed to prove the exact time of occurrence as there is inconsistency with regard to the time of occurrence in the evidences of P.Ws.1,2 and 5. 16. So far as the number of accused persons is concerned, the informant (P.W.5) in his fardbeyan has stated in paragraph 13 that accused persons were 15 to 20 in numbers whereas P.W.1 in paragraph 1 of his evidence has suggested that a mob surrounded the house of Gita Mahto. P.W.2 in paragraph 1 has stated that the accused persons were 50 in numbers. These evidences also create serious doubt with regard to claim of P.Ws.1,2 and 5 of seeing the actual assault. 17. The evidences of P.Ws. 1 and 2 suggest that in the same transaction four persons were killed in the same village,though, at different places. This fact gets confirmed with paragraphs 2,3 and 4 of the evidence of 18 P.W.8. P.W.8 admits in his evidence that when he reached the village in the midnight, one after another he recovered the dead bodies of Rajo Yadav, Dorik Yadav and Modo Sahni. The inquest reports of the aforesaid three deceased have been marked as Exts. 7 to 7/2 which suggest that the inquest reports were prepared at 4.30 A.M., 5.00 A.M. and 4.15 P.M. respectively on 8.7.1983. It appears that Teghara P.S.case No. 51 of 1983 was registered for commission of murder of other persons in same transaction, then there was no need of registering the present case since P.W.8 in paragraph 2 of his evidence has stated that the recovery of dead body of Modo Sahni was made during the investigation of Teghara P.S.Case No. 51 of 1983, after recording the fardbeyan of P.W.5. In our view, when a case was registered and all the four persons were killed in same transaction, the registration of present case being Teghara P.S.Case No. 52 of 1983 is completely hit by Section 162 of the Code of Criminal Procedure which reads as follows: ”162: Statements to police not to be signed: Use of statements in 19 evidence:- (1) No statement made by any person to a Police Officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so 20 used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872) or to affect the provisions of section 27 of that Act. Explanation:- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.” 18. Even condoning the aforesaid lapses 21 on the part of the Investigating Officer by registering another case, the prosecution ought to have amalgamated both the cases so that all the accused persons should be tried together, as from the evidence on record it appears that the witnesses were not knowing that they were deposing in which case, as from the evidences of P.Ws. 1 and 2 it appear that their depositions are more about the assault made to Suraj Pahalwan and other deceased than the assault made to the informant’s son, Modo Sahni, whereas the present case has been registered only with regard to murder of informant’s son, Modo Sahni. This confusion becomes apparent at the time of examination of P.W.7 who conducted the post mortem of Rajo Yadav and also proved the post mortem of Dorik Yadav as Ext.4 for which the informant has neither brought his case nor deposed about them. The confusion started at inception when the learned trial court framed charges for committing murder of Modo Sahni, Rajo Yadav and Dorik Yadav for which neither the informant brought the case nor the prosecution witnesses came to depose. Hence on this score also, the charges absolutely fail. 22 19. The