CRIMINAL APPEAL No.96 (DB) OF 1989 ----- Against the judgment of conviction and order of sentence dated 17.02.1989 passed by Shri R.C.Srivastava, 4th Addl. Sessions Judge, Muzaffarpur in Sessions Trial No. 207 of 1987. ----- 1. Rajendra Sahni son of Kishun Sahni 2. Jogendra Sahni son of Kishun Sahni 3. Ram Babu Rai son of Bindeshwar Rai 4. Harihar Rai son of Bindeshwar Rai 5. Radha Rai son of Basudeo Rai 6. Sohag Rai son Chatarbhuj Rai 7. Swarath Sahni son of Sone Lal Sahni 8. Raghunandan Sahni son of Nirsu Sahni 9. Sheonath Sahni son of Raghu Nandan Sahni 10. Singheshwar Sahni son of Gulam Sahni 11. Kailash Sahni son of Singheshwar Sahni 12. Jagdeo Sahni son of Singheshwar Sahni 13. Kapildeo Sahni son of Singheshwar Sahni 14. Bindeshwar Sahni son of Ramdeo Sahni 15. Jiya Sahni son of Ramdeo Sahni 16. Ram Sagar Sahni son of Ramdeo Sahni 17. Ram Chandra Sahni son of Pragas Sahni 18. Amiri Rai son of Jadu Rai 19. Ram Nandan Sahni son of Pragas Sahni 20. Bindeshwar Sahni son of Sant Sahni 21. Sudist Rai son of Bijai Rai 22. Rajju Sahni son of Bherakhi Sahni 23. Jai Mangal Sahni son of Bherakhi Sahni 24. Baidyanath Rai son of Ram Vilash Rai 25. Ram Sharan Rai son of Raj Nandan Rai 26. Sheo Sharan Rai son of Shyam Nandan Rai Appellant nos. 1 to 13, 15,16,20,24 to 26 are residents of village Tarajiwar, appellant nos. 14,17 and 19 are residents of village Dakrama, appellant no.21 is resident of village Paramjiwar, appellant no.18 is resident of village Jhaua and appellant nos. 22 and 23 are residents of village Pitaunjhia, all of Police Station Hathauri, District Muzaffarpur ----- Appellants Versus The State of Bihar ----- Respondent ----- For the Appellants : Mr.Sanjay Kumar Jha, Advocate (Amicus Curiae) 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 AKHILESH CHANDRA ----- S.K.Sharma & Akhilesh Chandra,JJ The appeal by the above 26 appellants is against the judgment of conviction and order of sentence dated 17th February, 1989 2 passed in Sessions Trial No. 207 of 1987 arising out of Aurai P.S.Case No. 39 of 1981 by learned 4th Additional Sessions Judge, Muzaffarpur convicting the appellants under Sections 302/149, 307/149, 323/149, 436/149 and 379/149 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for life, six years, six months, five years and one year respectively under each count. The sentences were directed to run concurrently. 2. On the basis of statement of Chulhai Singh (P.W.8), the Fardbeyan (Ext.3) was recorded by Sub-Inspector of Police, Yugeshwar Prasad Singh of Hathuari Police Station in connection with an occurrence of 9.5.1981 at 2.00 P.M. onwards. According to allegation at 2.00 P.M. on 9.5.1981 a Panchaiyati was being organized in the Middle School of village Tarajiwar, police station Hathauri, District Muzaffarpur to settle some dispute amongst some persons. At that time, the informant P.W.8 was standing outside the said school and there was assemblance of 500 persons on the eve of 3 Panchaiyati. The Panches were Dr.Harinandan Thakur, Batahu Sahni, Ram Bilas Rai, Sidheshwar Singh, Kishori Sah, Narain Singh, Ram Raji Singh, Mukhia and Parmeshwar Narain Singh. At that very time, accused Rajendra Sahni was standing outside the school and he suddenly started using vulgar words which was objected to by Ram Gopal Singh. This was not tolerated by the accused persons and one of the accused namely, Rajendra Sahni exhorted loudly to beat. Yogendra Sahni alias Ghutuk Sahni, Ram Babu Rai and Harihar Rai started wielding their lathis which caused injuries to Ram Gopal Singh and Mundrika Singh. This led to unruly scene and informant rushed towards his Bathan. At the Bathan of the informant about 50 persons reached and at the behest of Rajendra Sahni, the members of the mob looted clothes, utensils, plough, cattle etc. Harihar Rai and Radha Rai set fire in the starw and wheat bundles which were kept in the Bathan. Bathan of Braj Kishore Singh was also burnt. In course of occurrence, Ramashish Singh, Binod Singh, Surendra Missir, Bindeshwar Missir, Ram Pavitra Singh 4 and some others received injuries and it was alleged that after they received injuries, they were taken to Narma Hospital for treatment. The informant claimed identification of 22 persons out of the mob of 50. Their names are : Rajendra Sahni, Yogendra Sahni, Ram Babu Rai, Harihar Rai, Basudeo Rai, Sohag Rai, Sowarath Sahni, Raghunandan Sahni, Sheonath Sahni, Ramdeo Sahni, Singheswar Sahni, Kailash Sahni, Jagdeo Sahni, Kapildeo Sahni, Bindeshwar Sahni, Jiya Sahni, Ram Sagar Sahni, Ram Ashray Rai, Kunt Lal Rai, Bindeshwar Sahni and Ram Chandra Sahni. Besides them 28 unknown persons were also made accused. The fardbeyan resulted into a case under Sections 147, 436, 448, 380 and 323 of the Indian Penal Code and on that basis formal F.I.R. (Ext.6) was drawn up. In course of treatment, injured Ramashish Singh died. So section 302 of the Indian Penal Code was added. 3. The matter was investigated into and after completion of investigation, 30 persons were chargesheeted, cognizance was taken and thereafter the case was committed 5 to the court of sessions where charges under Sections 302/149, 307/149, 323/149, 436/149 and 380/149 were framed against only 26 accused persons as the rest four accused persons were reported to be dead and charges were explained to the accused persons. They pleaded innocence and hence trial proceeded. 4. The defence of the appellants was of false implication on account of enmity from before and also that Ramashish died in other way and taking the benefit of his death, the accused persons were roped in this serious case. It has also been submitted by learned counsel for the appellants that the case was registered under Section 323 of the Indian Penal Code and there is no explanation as to why Ramashish Singh died on account of injury which has resulted into a case under Section 323 of the Indian Penal Code. 5. In order to prove its case, the prosecution has examined altogether 15 witnesses. P.W.1 Surrendra Missir is a named witness of the firs information report and he is an injured witness. P.W.3 Maheshwar Singh, P.W.4 Ram Kishore Singh, P.W.5 Bindeshwar 6 Singh, P.W.6 Ram Bikhar Singh, P.W.9 Ram Bihari Singh, P.W.10 Ram Bilash Singh, P.W.11 Bindeshwar Mishra and P.W.13 Sita Ram Singh are named witnesses of the first information report. Besides P.W.1, another injured witness P.W.11 Bindeshwar Mishra has also been examined. P.W.7 is not named in the first information report, P.W.12 Devendra Prasad Singh has been tendered by the prosecution and the informant Chulhai Singh has been examined as P.W.8. P.W.14 is Dr.Umeshwar Prasad who examined the injured, P.W.2 is Dr.Manoranjan Kumar Srivastav who has held post mortem over the dead body of Ramashish Singh and P.W.15 Jugeshwar Prasad Singh is Investigating Officer of the case. 6. The trial court after analyzing the entire evidence brought on record came to the conclusion that the prosecution was able to prove its case beyond the shadow of all reasonable doubts and accordingly passed order of conviction and sentence, as stated above. 7. This court is required to see whether the prosecution has established its 7 case against these appellants beyond the shadow of all reasonable doubts. 8. Before discussing the oral evidences, it is appropriate to narrate the evidence of P.W.2 who has conducted the autopsy of the deceased Ramashish Singh. On 10.5.1981 at 3.00 P.M. the dead body of Ramashish Singh was brought and was identified by Constable No. 736 Bishundeo Paswan (not examined). Deceased Ramashish Singh was aged about 60 years. At the time of post-mortem, rigor mortis was present and the doctor has found the following ante-mortem injuries upon the person of the deceased: (i)Incised and punctured wound 1½” X ½” long deep on the back of the right chest just near the lower end of the right scapula. On further dissection right lung was found punctured and collapsed with 20 ounces of blood in thoraic cavity. (ii) Incised and punctured wound 2” x ¼” muscle deep near the upper border of the left scapular region. (iii) Bruise 4” x ½” on front of neck. 8 (iv) Bruise 2” x ½” near left shoulder joint. (v) Bruise 3” x ¼” on lumbar region. (vi) Bruise 6” x 2” on abdomen. (vii) Bruise 4” x ½” on right hip. (viii) Bruise 2” x ½” on back of left side of the chest. The death was caused due to haemorrhage and shock due to above mentioned injuries. Injury no.(i) might have been caused by pointed end of Kulhari whereas injury no.(ii) was caused by bhala and the rest injuries were caused by hard and blunt substance. Post mortem report (Ext.1) was brought on record. 9. Another doctor P.W.14 was posted on 10.5.1981 as Resident Surgical Officer in Shree Krihsna Medical College, Muzaffarpur and on that date he had examined P.W.1 Surendra Missir and P.W.11 Bindeshwar Mishra. On the person of Surendra Missir, the doctor has found following injuries: (i) One lacerated injury 1” x ½” x skin deep below chin. (ii) Sealed wound on right side of 9 frontal region. (iii) Bruise over front of chest 2 ½” x 1”. (iv) Lacerated wound on back of elbow left side 1” x ½” x skin deep. (v) Bruise multiple over left fore arm. (vi) Fracture of base of 1st phalynx on left index finger. (vii)Fracture of head of 1st phalynx of middle finger of left hand. (viii) Sealed wound on right side of the ear lobule. (ix) Multiple bruises over right shoulder right side of thigh and right fore arm. (x) Fracture of achromian process of clavicle. (xi) Fracture of right side of mandible. Injury Nos.(i),(ii), (iii), (iv),(v), (viii) and (ix) were simple and rest were grievous. Sealed wounds were bandaged from before. All the injuries were caused by hard and blunt substance such as lathi. 10 10. On the same day, P.W.14 has examined P.W.11 Bindeshwar Mishra and has found the following injuries: (i) Lacerated wound 3” x 1/2” x skin deep on right side of frontal region. (ii) Lacerated wound 1” x ¼” x skin deep on left side of temporal region. (iii) Bruise over left shoulder. (iv) Fracture of spine of scapula left side. Injury Nos. (i),(ii) and (iii) are simple in nature and injury no. (iv) is grievous in nature. All the injuries were caused by hard and blunt substance such as lathi. Injury reports have been brought on record and have been marked as Exts. 2 and 2/1. 11. P.W.8 Chulhai Singh is the informant of this case and his evidence is being discussed firstly. He has deposed in the month of May, 1988 and has stated that seven years earlier it was a day of Saturday and in the afternoon at about 2-2.30 P.M. he went to Middle School where panchaiyati was being held. In the midst of panchaiyati, 11 Rajendra Sahni exhorted to assault which was protested by Ram Gopal Singh (not examined). Thereafter accused Jogendra Sahni, Ram Babu Rai and Harihar Rai started wielding their lathis. This caused injury to Ram Gopal Singh (not examined) and Mundrika Singh (not examined). Many persons were present there and they dispersed towards north. The informant returned to his Bathan. This witness stated that 50-60-100 persons having lathi, bhala, farsa, kulhari (axe) followed him to the Bathan. One amongst them Harihar Rai alias Harihar Das was having Kulhari in his hand. The mob started looting at the Bathan of the informant and they plundered the Bathan. Harihar Rai put the wheat, straw and Bathan of the informant on fire. Radha Rai burnt the Bathan of Braj Kishore Singh who is co-parcener of the informant. Ram Ashray Rai untied the ox of the informant. A pair of oxen of Ramashish Singh were untied by Rajju Sahni and Jai Mangal Sahni. P.W.11 Bindeshwar Mishra and P.W.1 Surendra Missir were assaulted. The informant has identified Raghunandan Sahni, Sheo Nath Sahni, Swarath 12 Sahni, Singheshwar Sahni, Kailash Sahni, Jagdeo Sahni, Bindeshwar Sahni, Ram Chandra Sahni, Jiya Sahni, Sagar Sahni, Ram Babu Rai, Hari Das, Sohag Rai and Baijnath Rai. The Officer-in-Charge came to the village and fardbeyan of the informant was recorded. This witness is a witness of burning the houses and causing injuries to Surendra Missir (P.W.1) and Bindeshwar Mishra (P.W.11). 12. The most important witness in a criminal case is an injured witness. The prosecution has brought two injured witnesses who are P.W.1 and P.W.11. Their evidences are to be discussed. P.W.1 has stated that at about 4.30 P.M. on Saturday he was at his Bathan. The Bathan of Ramashish Singh is situated towards south from the Bathan of P.W.1. This witness heard the sound of noise from the Bathan of Ramashish Singh and saw that 60-70 persons having lathi, bhala, Garasa, Kulhari (axe) and Fattas were coming towards his Bathan and they came there and they started assaulting indiscriminately to his uncle Bindeshwar Mishra (P.W.11). The specific role of assault by Kulhari (axe) was 13 attributed to Harihar Rai. According to P.W.1, the injury to P.W.11 was caused on his head and blood started oozing. Thereafter, when Rajendra Sahni exhorted for assault, others namely, Basudeo Rai, Radha Rai, Harihar Rai, Ram Babu Rai, Jogindra Sahni, Baijnath Roy and Suhag Rai started assaulting Bindeshwar Mishra by means of farsa (gargasa), bhala, lathi and Fatta. Therefore, if the statement of this witness is read with the statement of P.W.11, then it appears that his injury which has been discussed above has not been corroborated by the doctor. The doctor is specific that all the injuries of P.W.1 and P.W.11 were caused by hard and blunt substance. Similarly, P.W.1 has described that his uncle has received injury by Kulhari but the doctor has stated that all the injuries of P.W.11 were caused by hard and blunt substance. Therefore, the evidence of P.W.1 has contradicted the manner of receiving injury with the evidence of P.W.14. Another injured witness P.W.11 has stated that a mob of 50-60 armed persons came. According to P.W.11, at the behest of by 14 Rajendra Sahni, Chhutuk Sahni alias Jogeshwar Sahni, Ram Babu Rai, Radha Rai and Harihar Rai assaulted him. Baijath Rai has also assaulted him. The evidence of P.W.11 is specific that Harihar Rai gave a kulhari blow upon his head. Again the evidence of P.W.11 is not supported from the evidence of P.W.14 who has not found any such injury which has been described by P.W.11. 13. Another feature from the evidence of doctor has come that he has found P.W.1 and P.W.11 having sealed wound on their persons. Though it has come in the oral testimony of the witnesses that initially those injured were treated by a doctor of Narma Hospital but no doctor of Narma Hospital has been brought to say as to whether any treatment was given either to P.W.1 or P.W.11 by the doctor or not. A doctor of Shree Krishna Medical College has been examined to prove the factum of injuries to P.W.1 and P.W.11 but the doctor has surprisingly found sealed wound and this has remained totally unexplained. The witnesses have also not stated as to how 15 their injuries were found sealed by the doctor and it was onus upon the prosecution to prove that these two injured witnesses were given first aid treatment or any treatment prior to the treatment was made available to them by P.W.12. It is unsafe to rely upon the testimony of this witnesses in view of the evidence of the doctor who has not found any injury of sharp edged or penetrating weapon though these two injured witnesses have stated that they have received injuries by sharp cutting and penetrating weapon also. Therefore, these two witnesses, though injured, cannot be said to be reliable and it is unsafe to rely upon their testimony. 13. The most valuable witnesses of the case on behalf of the prosecution are P.W.1 and P.W.11 but their evidence has created doubt in the manner of assault. According to prosecution case, five persons including Ramashish Singh were injured but only two persons namely, P.W.1 and P.W.11 have been examined and other injured namely, Binod Singh Ram Pavitra Singh who were 16 described by the prosecution have not been brought for examination and there is no explanation as to why the prosecution has withheld them. Though these injured witnesses have been examined as eye witnesses but they have not supported the manner of assault which has been found by the doctor. Therefore the conviction of the appellants under Section 307/149 of the Indian Penal Code is not justified. 14. Ramashish Singh is the deceased of the case. Initially, the case was registered under Section 323 of the Indian Penal Code. There is not even mention that Ramashish Singh had received any serious injury. The occurrence is of 4.00 P.M. on 9.5.1981 and the fardbeyan was given at about 7.00 P.M. in the P.O. village itself. It was a gape of about three hours between the occurrence of assault and fardbeyan. The informant was not an injured witness. Therefore, the informant had opportunity to describe roughly the manner of assault which was allegedly given to Ramashish Singh. In course of evidence, the witnesses have 17 improved the case and they have stated that Ramashish Singh was assaulted and he was carried to Hospital. The Investigating Officer has stated that prior to his death, Ramashish Singh had given his statement which was recorded in paragraph 6 of the case diary (Ext.4) and that has been treated by the prosecution as dying declaration of Ramashish Singh. The Investigating Officer has visited the place of occurrence. If a person was assaulted brutally which led to his death on the date of occurrence itself, then it was natural that blood must have come out. This question was put to P.W.15 in paragraph 6 and he has stated that he had found the trace of blood near Chauki but it was not worth collecting. Therefore, it crates doubt as to why the blood was not found at the place of occurrence which is being described by the prosecution and non-finding of the blood creates some doubt as to whether the prosecution has come with the clear version of the occurrence. The case was investigated up to 12.5.1981 by P.W.15 and the rest investigation was handed over to another I.O 18 but that Investigating Officer has not been examined. 15. The witnesses have stated that the death was on account of the fact that Ramashish Singh had received Kulhari injury at the hands of Harihar Rai. The doctor who has conducted the autopsy has stated that injury was caused by bhala and may be by pointed end of Kulhari. This is not a case of any of the witnesses of the prosecution that the injury of Ramashish Singh, who was aged about 60, was caused by pointed end of Kulhari, rather the witnesses have stated that the injury was caused due to direct attack of Kulhari. Here also the prosecution has not been able to prove the death of Ramashish Singh on account of that assault which was caused allegedly by the accused persons. The enmity is admitted in the first information report itself. The panchaiyati was being organized to settle out the enmity. Therefore, the enmity is the basis of entire case. The enmity is double-edged weapon and it can go either way. In such a case, the witnesses are to be looked into in the right 19 perspective. If the witnesses make out a case which is consistent with their evidence then it is apparent that they are truthful witnesses and they can be relied upon but if the witnesses contradict themselves on vital aspect of the case, they cannot be relied upon. If the important witnesses are withheld, then a doubt is created in the mind as to whether the prosecution has tried to withhold something which should have come. The onus in such case lies upon the prosecution to prove its case in its entirety. No witness is perfect and minor contradictions are to be ignored. If the contradictions go to the root of the matter, then the entire foundation of the case is disturbed. In the present case, two injured witnesses have given fetal flaws to the prosecution because the manner of injury, as stated by two injured witnesses, has not been corroborated by the doctor. Other injured witnesses have not been brought and there is no reason at all as to why the case was registered under Section 323 of the Indian Penal Code and in that very case one alleged 20 injured Ramashish Singh died in the same night. These are the vital inconsistencies which have shaken the prosecution version. Not only that, the occurrence is of the year 1981. Appellant Harihar Rai was examined under Section 313 Cr.P.C. in the year 1988 and his age was assessed to be 25 years meaning thereby that he was about 18 years of age on the date of occurrence according to assessment of the court though he has stated that he was only 22 years in the year 1988. If version of the appellant Harihar Rai was considered, then he was aged about 14 years on the date of occurrence. Similarly, age of Ram Babu Rai was assessed to be 25 years in the year 1989. According to assessment of the court he was aged about 17 years on the date of occurrence but appellant Ram Babu Raio has stated that he was of 20 years in the year 1989 and if his version is accepted, then he was of 14 years of age on the date of occurrence. 16. In view of the fact that this court has found no direct or linking evidence against the appellants, the question of 21 juvenility is not being discussed. The prosecution has not come with the true picture of the occurrence and it has withheld many important witnesses. The witnesses have contradicted themselves. The medical evidence has given another twist of the occurrence. These are the vital deficiencies of the prosecution case, as such, the prosecution case cannot stand because a genuine doubt is created. 17. After analyzing the entire evidences on record, we are of the view that the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts. As such, the appellants deserve to be acquitted. 18. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are acquitted of the charges and they are discharged from the liabilities of their respective bail bonds. 19. We appreciate the assistance given by Mar. Sanjay Kumar Jha, Advocate as Amicus Curiae on behalf of the appellants. 22 20. Let first page and last page of the judgment be given to Mr.Sanjay Kumar Jha, Advocate so that he may get his prescribed fee from the High Court Legal Services Committee, Patna. Patna High Court,Patna The 28th January, 2011 Tahir/-(NAFR) ( Shyam Kishore Sharma, J. ) ( Akhilesh Chandra, J.)