IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.444 of 1989 ======================================================== Rahimuddin Shah, Son of Late Ismail Shah, resident of village-Rahuwa, P.S.-K. Nagar, District-Purnea .... .... Appellant Versus The State of Bihar ... .... Respondent with Criminal Appeal (DB) No. 86 of 1990 Abbas Shah, Son of Bhutuki Shah, resident of village-Sounsa, P.S.-K. Nagar, District-Purnea ... .... Appellant Versus The State of Bihar .... .... Respondent ==================================================== Appearance : (In CR. APP (DB) No. 444 of 1989) For the Appellant : Mr. A. K. Mallick, Advocate Mr. Kaushal Kumar, Advocate For the Respondent: Mr. S.C. Mishra, APP (In CR. APP (DB) No. 86 of 1990) For the Appellant : Mr. A. K. Mallick, Advocate Mr. Kaushal Kumar, Advocate For the Respondent: Miss Shashibala Verma, APP. ======================================================== CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH ********* (Per: HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH) *********** The two appellants through the aforesaid two appeals have challenged the judgment of conviction and order of sentence dated 26.7.1989 passed in Sessions Trial No. 260/1987 by the learned 6th Additional Sessions Judge, Purnea whereby they have been held guilty under Sections 148 and 302/149 of the Indian Penal Code and sentenced to undergo R.I. for life under Section 302/149 I.P.C. No separate sentence has 2 been awarded to them under Section 148 of the Indian Penal Code. 2. The prosecution case is based upon fardbeyan of the informant Sridhar Jha which was recorded at 7.30 a.m. on 9.4.1984 by Sri R.C. Singh, Sub-Inspector of Police of K. Nagar police station at Sausa. The informant has alleged that few days back his boring pipe had been extracted and taken away by some unknown person. On inquiry, he came to know that one Kanka Fakir, a resident of village Rahuwa had stolen the boring pipe. The informant and his family members had taken Kanka Fakir to task and had asked him to return the stolen boring pipe, as a result of which he got annoyed and had threatened to kill the informant. Due to aforesaid reason, in the night intervening between 8.4.1984 and 9.4.1984 at about 12.00 a.m. accused Abbas Shah, Kanka Fakir, Hakma Fakir, younger brother of Hakma Fakir (Rahimuddin Shah) and three other unknown persons being variously armed with axe, farsa, sword and revolver came at the door of the informant and surrounded the “chowki” on which two sons of the informant, namely, Shailendra Kumar Jha and Pushpendra Kumar Madhav were sleeping. They identified Shailendra Kumar Jha in torch-light after removing the “Chadar” (Sheet of Cloth) from his face. Thereafter, accused Hakma Fakir assaulted by axe causing injury near eye of Shailendra Kumar Jha and accused Kanka Fakir fired from country-made revolver hitting in the chest of Shailendra Kumar Jha. Shailendra Kumar Jha was seriously injured and died instantaneously. 3. The informant has further alleged in his fardbeyan that Shailendra Kumar Jha was keeping Rs. 300/- in cash, which the accused persons threw on the “chowki”. The informant has also alleged that the 3 accused persons assaulted his another son namely, Pushpendra Kumar Madhav by handle of „axe‟. An alarm was raised and large number of villagers rushed towards the house of the informant. The accused persons took to their heels towards west. The informant found some of the ornaments and other house-hold articles missing from the house which he alleged that the accused persons had taken away. The informant, thus, claimed that due to pervious enmity as stated above, the accused persons killed one of his son and committed theft in the house. 4. The fardbeyan with inquest report and seizure list was handed over by S.I., R.C. Singh of K. Nagar police station to S.I., Indrajit Singh, who was In-charge of Maranga O.P. and had reached subsequently at the place of occurrence. It appears from the forwarding note of Indrajit Singh, Sub-Inspector of Police and Incharge of Maranga O.P. which is noted beneath the fardbeyan that the said recorded statement was being forwarded to the Officer-in-Charge of K. Nagar police station for institution of F.I.R. under Section 302/380 IPC of which he had himself taken up the investigation. On receipt of the aforesaid fardbeyan, a formal F.I.R. was drawn on 9.4.1984 being K. Nagar P.S. Case No. 75 of 1984, under Sections 302 and 379 of the Indian Penal Code naming Abbas Shah, Kanka Fakir, Hakma Fakir, younger brother of Hakma Fakir and three others as accused and investigation was taken up. On conclusion of investigation, the Investigating Officer submitted charge sheet against the accused persons. The co-accused Kanka Fakir and Hakma Fakir absconded. The learned Magistrate took cognizance of the offence and after supplying the police papers, since the offence alleged was exclusively triable by the court of 4 sessions, the case of the appellants was committed to the court of sessions. The charges were framed against them under Sections 148, 302/149 and 380/149 IPC, to which the appellants did not plead guilty and claimed to be tried and thus the trial commenced. 5. In order to substantiate the charges the prosecution has examined altogether 8 witnesses. P.W.-1 Pushpendra Kumar Madhav, P.W.-2 Sridhar Jha, P.W.-3 Rajeev Ranjan Jha, P.W.-4 Jai Shankar Jha and P.W.-5 Anjani Kumar Jha claim to be eye-witness to the occurrence of offence. P.W.-6 Indrajit Singh is Investigating Officer of the case. P.W.-7, Dr. Srikant Jha, is the doctor, who conducted post mortem examination of the deceased, Shailendra Kumar Jha. P.W.-8, Manki Soren is a formal witness, who had proved the writing and signature of Sub-Inspector, R.C. Singh on the inquest report. The prosecution has proved the fardbeyan, which has been marked as exhibit-1, Formal F.I.R. marked as exhibit-2, the post mortem report marked as exhibit-3 and the inquest report marked as exhibit-4. 6. It is pertinent to note here that P.Ws. 1, 3, 4 & 5 are all sons of P.W.-2 Sridhar Jha (the informant). They also happen to be the brother of the deceased Shailendra Kumar Jha. P.W.-2 was sleeping in his “Ekchari” room which was situated in the western side of courtyard. Ekchari room was open from north, east and west i.e., three sides. P.W.-2 claims to have witnessed the entire occurrence which had taken place in the “Sahan” outside his house. He has stated that while he was sleeping, he woke up due to dog barking in the mid-night and saw 6-7 persons flashing torchlight near his sleeping sons, who were sleeping on a “chowki” in the “Sahan”. He 5 identified the accused persons amongst them. He has stated that the appellant Abbas Shah removed “Chadar” from their face. Co-accused Hakma Fakir spoke that Shailendra was there and he hurled his axe which injured his left eye-brow. The deceased got up, took out the available cash amount from his pocket, handed it over to them and requested them not to kill him. He has also alleged that the appellant Abbas Shah threw back the money at his face and told him that he would not be spared. Thereafter, co- accused Kanka Fakir fired from his country-made revolver and the shot hit him in his chest, as a result of which he fell down on the “chowki” and died instantly. P.W-2 has also stated that Hakma Fakir had also assaulted P.W.-1 Pushpendra Kumar Madhav by handle of the axe. According to him, one of the accused went towards the courtyard and came back immediately. On alarm being raised, the co-villagers came but, by that time, the accused persons had already fled away towards west. The accused persons allegedly took away some house-hold articles and ornaments. This witness has assigned the motive that on account of theft of their boring pipe from „Singhiadhar Bahiyar‟, the deceased had scolded Kanka Fakir and Kanka Fakir who had threatened him to kill. 7. In cross-examination, P.W.-2 has stated that he does not know as to who had informed the police regarding the incident but the Sub- Inspector of Police had come in the morning and recorded his statement. He has also stated that in the night of occurrence P.W.-3 Rajeev Ranjan Jha, P.W.-4 Jai Shankar Jha and P.W.-5 Anjani Kumar Jha were busy irrigating their field and the pumping set was running. He has admitted that the courtyard was in the middle and there were rooms in all the four sides of the 6 courtyard. He has admitted that the rooms cover the courtyard from all corners. He has also admitted that at the time of occurrence his wife, daughter and daughter-in-law were all present inside the house and they had also woke up. He has stated that three unknown accused persons came near him and threatened him to keep quiet. It is apparent that this witness had not stated name of the appellant Abbas Shah as the person who had removed the “Chadar” from the face of the deceased or who had threw the cash amount handed over by the deceased. This material improvement has been made in course of deposition of this witness during trial. The attention of P.W.-2 was drawn regarding his previous statement made before police which was recorded under Section 161 Cr. P.C., and it was asserted by the defence that he had not disclosed that appellant Abbas Shah had removed “Chadar” from the face of the deceased to which he denied. When the I.O. (PW-6) was examined in course of trial, he has admitted this fact that this witness had not stated before him name of the appellant Abbas Shah as the person who had removed the “Chadar” from the face of his son. 8. P.W.-1 Pushpendra Kumar Madhav has stated that he was sleeping on the same “Chowki” by the side of the deceased when the accused persons arrived there and surrounded them. He has also stated that he had gone there to study in the night and ultimately slept there by the side of his brother. In the mid-night he woke up on account of dog barking. He could notice presence of 6-7 persons who had surrounded the “Chowki”. They were holding torch and weapons in their hands. In the flashlight he could identify the four accused persons. He has also repeated the prosecution case as narrated by the informant (PW.-2) with an addition that 7 Hakma Fakir hit twice near the left eye-brow of his deceased brother. He has also added the fact that one day prior to the date of occurrence, the appellant Abbas Shah had threatened the deceased at his door. This witness has stated that all the accused person are related to each other. P.W.-1 has also stated that he was examined by doctor for injury he had sustained due to assault by handle of axe. 9. P.W.-3, Rajeev Ranjan Jha in his deposition has stated that on the relevant date and time of occurrence, he was returning back to his house after handing over Chadar to his brother Jai Shankar Jha and Anjani Kumar Jha, who were near the pumping set which was at the distance of 50- 60 yards from the house of the witness. He heard dog barking and, thus, reached near the “Sahan”. He has also repeated the version of P.Ws.-1 & 2 with an addition that he could identify the accused persons in the torch-light flashed by them as also the torch light flashed by him. In cross-examination, he has stated that while he was 25-30 yards away in southern direction, he could hear dog barking. He has admitted that he did not raise any alarm and the accused persons stayed at the place of occurrence for about 4-5 minutes. The inmates of the house raised alarm and several co-villagers had come at the place of occurrence, but he could not disclose name of anyone. He has also stated that in the night, no one went to the police station and in the morning the Sub-Inspector of Police himself came. He could not state as to how and on whose information the police reached at the place of occurrence. He did not remember as to whether any one of the village had come with the Sub-Inspector of Police. He has stated that the Sub-Inspector of Police took the dead body with him at about 10.00 a.m. and 8 subsequently, the Police Officer had come again. However, he could not say as to how many days thereafter the police came in the P.O. village. When his attention was drawn towards his earlier statement before the police, he has stated that he had told the Investigating Officer regarding the fact of dog barking and flashing of torchlight by the accused persons. The Investigating Officer (PW-6) has denied the fact that P.W.-3 had ever stated before him in course of investigation that he heard dog barking or the accused persons flashed torchlight in the night of occurrence. 10. P.W.-4, Jai Shankar Jha also claims to be an eye-witness. His statement is also in line with other eye-witnesses. In his cross-examination, some important facts have emerged. He has stated that in the night of occurrence only he and his brother Anjani Kumar Jha were present at the Pumping Set. He has not taken name of P.W.-3 Rajeev Ranjan Jha as the person who had come near the boring in the night. He has also stated that the pumping set was running. He also claims to have rushed towards the place of occurrence on hearing dog barking and the occurrence took place immediately after he reached there. He claims that on alarm being raised, 25-30 co-villagers came near the place of occurrence. He told them about the occurrence and also disclosed them the name of accused persons. In cross-examination he has categorically stated that he did not inform police regarding the occurrence. He had also not sent any one to report to the police. He had no knowledge regarding the fact as to who had informed the police regarding the occurrence. When his attention was drawn towards his previous statement made before police, he asserted that he had disclosed the police that he rushed towards the place of occurrence on hearing the dog 9 barking. However, the I.O. (PW-6) in his cross-examination denied this fact. 11. P.W.-5 Anjani Kumar Jha has also made statement similar to that of P.W.-4. He has also stated that he did not know as to how the Sub- Inspector of Police reached at the place of occurrence. He had neither informed the police nor had made any endeavour to get the matter reported through someone else. In his cross-examination, he has stated that the Chowkidar came after the arrival of Sub-Inspector of Police. The police did not record his statement at that point of time. The police took him and his brother Jai Shankar Jha to Purnea. The dead body was carried on a Jeep which belonged to his maternal uncle. His maternal uncle namely Binya Nand Mishra had come from Purnea on information being received by him. He could not state as to how his maternal uncle could come to know about the incident of occurrence. He has stated that his maternal uncle had come at about 9.00 a.m. just before arrival of the Sub-Inspector of Police. He has further stated that at about 11.00 a.m., he proceeded for Purnea together with a Constable along with the dead body of his brother for post mortem to be conducted in Purnea hospital. His statement was recorded by the police on the next day, when he returned from Purnea. P.W.-6 in his cross- examination has admitted the fact that this witness has not stated before him the fact of hearing dog-barking in the night of occurrence. 12. P.W.-7 Dr. Shashi Kant Jha had conducted the post mortem examination on 9.4.1984 at 12.25 p.m. on the dead body of the deceased Shailendra Kumar Jha and found the following ante mortem injuries on his person:- “(i) Two incised wounds on the left eye at the eye- 10 brow: (a)1 ½” x ¼” x bone deep (b) 1” x ¼” x deep bone. (ii) Wound of entry on the left side of the chest wall in the third intercostal space just by the side of externum-size ¼” in circular and the margin inverted. There was no scortching. Wound of exit on the left side of the back just by the side of vertebral column in the sixth intercostal space- size ½” in diameter margin inverted.” The doctor had opined that the time elapsed since death was about 24 hours and the cause of death was haemorrhage and shock due to injury no. (ii) He attributed that injury no. (i) might have been caused by sharp cutting weapon may be Kulhari and injury no. (ii) was caused by firearm. In cross-examination, the doctor has admitted that scortching mark appears if a shot is made from within 10 ft. but such mark may not appear if the injured has worn any cloth. He has categorically stated that he did not find any bullet in the injury and it was a case of single firing. 13. The inquest report was proved by a Constable (PW-8), who in his cross-examination has stated that the inquest was not prepared in his presence. 14. P.W.-6 Indrajit Singh has stated that on 9.4.1984 he was posted as Officer-in-Charge in Maranga O.P. which was within jurisdiction of K. Nagar police station. Mr. R.C. Singh, a Sub-Inspector of Police was posted in K. Nagar police station. The P.O. village Sausa was within the territorial jurisdiction of K. Nagar police station. He has stated that on 9.4.1984, he received the fardbeyan written in the hands of S.I., R.C. Singh. He also received the inquest report and seizure list which related to recovery of metal portion of cartridge from the place of occurrence from said R.C. 11 Singh. He forwarded the recorded fardbeyan to K. Nagar police station for institution of F.I.R. and started investigation of the case. He has categorically stated that said R.C. Singh had already sent the dead body for post mortem prior to his arrival. He recorded the subsequent statement of the informant and inspected the place of occurrence. He had found the house-hold articles intact. He also found blood stained „Tosak‟ and „Pillow‟ on the “Chowki”, on which the deceased as alleged was sleeping. The pages of book were also found there with blood-stains. Those articles were seized by him in presence of witnesses but he admitted that the seizure list was not available with him. 15. In cross-examination, P.W.-6 states that he reached at the place of occurrence at about 10.00 a.m. on rumour. He had come to know regarding the occurrence while he was in Purnea but, this fact was not mentioned in the case diary. According to him, the distance of Maranga O.P. was 3 kms., from Purnea. He went alone on motor-cycle. By that time, the dead body had already been taken away. He saw the Sub-Inspector of Police, R.C. Singh at the place of occurrence but he did not recollect the name of other police personnel who were accompanying R.C. Singh. He has stated that R.C. Singh handed over fardbeyan, seizure list and inquest report to him and proceeded to the Police Station. He could not say as to whether R.C. Singh recorded statement of any witness or not. P.W.-6 has also admitted that he has not mentioned anywhere as to how the fardbeyan was transmitted to the Police Station. He recorded statement of wife of informant, namely, Lilawati Devi, daughter of the informant, namely, Renu Devi and daughter-in-law of the informant, namely, Aruna Devi on 12 9.4.1984 itself. Apart from them, he recorded statement of Ramanand Jha, Digamber Jha, Rishikesh Mishra, Kapileshwar Jha and Chiranjiv Jha on 9.4.1984. He has admitted that neither the seizure list nor the material exhibit was available with him. He has categorically denied the fact that any of the witness disclosed in their statement recorded by him in course of investigation regarding dog-barking in the night of occurrence. 16. Learned counsel for the appellant while making his submission has contended that the witnesses examined on behalf of the prosecution are not consistent. The Investigating Officer has denied the fact that they stated before him to have reached the place of occurrence on hearing dog-barking. The occurrence took place in the mid-night. P.Ws.- 3, 4 & 5 are chance witnesses. Their presence at the place of occurrence is highly unbelievable. No independent witness has come forward to support the prosecution case though, the witnesses claim that several co-villagers had reached at the place of occurrence immediately after the occurrence took place on alarm being raised. 17. It is further contended that though the I.O. took statement of the wife, daughter, daughter-in-law and several co-villagers on 9.4.1984 itself, but, deliberately they have not been examined by the prosecution in course of trial. In other words, they have been withheld by the prosecution, for which adverse inference shall be drawn against the prosecution. 18. It is further contended that though the informant (PW-2) claims to have seen the occurrence from inside the house, but, the manner in which he narrated the vivid description makes his statement to be highly suspicious, especially, under the circumstance when the “chowki” in 13 question, on which the deceased was sleeping, is alleged to have been surrounded from all sides. 19. It is further contended that P.W.-1 also seems to be not truthful. Though, he claims to be sleeping along with the deceased on the same “Chowki” but, it is surprising that the accused persons left him unhurt. P.W.-1 claims to have sustained some injury due to assault made upon him by handle of axe. He has also stated that the doctor had examined him but no injury report relating to the injury sustained by him has been brought on record in course of trial. Even the name of doctor, who examined him, has not been given. The prosecution has not examined the doctor, who examined P.W.-1. In this situation, it becomes highly unbelievable that P.W.-1 had received any injury. 20. Learned counsel for the appellant submits that had the occurrence taken place in the manner alleged by the witnesses, the accused persons who were variously armed in all probability might not have spared P.W.-1 unhurt. The ante mortem injury sustained by the deceased is not in conformity with the ocular statement of witnesses. 21. It is also contended that the conduct of witnesses in not trying to save the life of deceased, who was none else but a family member, is unnatural and, thus, also they make themselves unbelievable/unreliable. 22. It is further contended on behalf of the appellant that the Investigating Officer has failed to produce the seizure list which he is said to have prepared at the place of occurrence. He has also failed to produce the material exhibit like, blood-stained „Tosak‟, „Pillow‟ and pages of book. The I.O. has also not produced the material exhibit, alleged to have been 14 seized by the Sub-Inspector of Police, who recorded the fardbeyan i.e., metallic part of empty cartridge said to have been seized from the place of occurrence. The Police Officer, who recorded the fardbeyan has not been examined on behalf of the prosecution. His non-examination has caused serious prejudice to the defence. The Officer-in-Charge, who received the fardbeyan at K. Nagar police station, has also not been examined as a witness on behalf of the prosecution. The witnesses to the inquest, namely, Kumodanand Jha and Nageshwar Jha have also not been examined in course of trial. 23. Learned counsel for the appellant submits that the witnesses examined on behalf of the prosecution are all related and interested witnesses. The accused persons are also admittedly related to each other. There was admitted enmity existing between the parties and, thus, they have falsely been implicated in this case. The fact that statement of P.Ws. 1, 3, 4 and 5 was not recorded on 9.4.1984 by the I.O. makes their presence