CRIMINAL APPEAL No.291 OF 1988 Against the judgement of conviction and order of sentence dated 24.5.1988 passed by VIII Additional Sessions Judge, Sasaram in Sessions Trial No.192/117 of 1977/1983. 1. TARKESHWAR SINGH 2. BAHADUR RAM KAHAR ALIAS BAHADUR KAHAR 3. BIKARMA DUSADH & 4. NAGINA KOIRI ----------------------------Appellants Versus THE STATE OF BIHAR----------------------- Respondent ------ For the appellants:- Sri Rana Pratap Singh, Sr.Advocate Sri Pramod Kumar & Sri Aruni Singh, Advocates. For the State:-Susri Shashibala Verma, A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE DINESH KUMAR SINGH Dharnidhar Jha,J. The four appellants, namely, Tarkeshwar Singh Bahadur Ram Kahar alias Bahadur Kahar, Bikarma Dusadh and Nagina Koiri were put on trial by framing charges under Sections 302/149 and 201 of the Penal Code with deceased appellants, namely, Shesh Badan Singh, Kameshwar Singh and Rameshwar Singh whose appeals abated as per order dated 6.7.2010 on account of their death. The trial was held vide Sessions Trial No.192/177 of 1977/1983 by the learned 8th Additional Sessions Judge, Sasaram who delivered the judgement in the case on 24.5.1988 and found the seven accused persons on trial guilty of committing the two offences and accordingly, directed each of them to - 2 - suffer rigorous imprisonment for life under Section 302/149 IPC and further period of rigorous imprisonment for three years under Section 201 IPC. The four appellants along with the deceased appellants preferred the present appeal to assail the finding of guilt and sentences passed upon them. 2. The prosecution narration is in the form of the FIR, Ext-3, lodged by P.W.11 Surajbansi Kuer, the step mother of deceased Gupteshwar Singh on 16.10.1973 at about 4 A.M. at Kudra police station, then within the district of Rohtas at Sasaram. It was alleged that the deceased Gupteshwar Singh started from his house with P.W.6 Shambhu Singh with meals for his herds-boy at about 11 P.M. The herds body was in the pump house of the informant situated west of Pusauli railway station. The informant found that the deceased Gupteshwar Singh had missed taking his torch light with him. Because the pump house was located quite away from her house into the fields, as such she along with Muneshwar Singh(P.W.14), brother of the deceased, started with the torch light for handing the same over to the deceased Gupteshwar Singh. It was alleged by the informant that when she had reached into the lane situated east of the cattle shed of one Chhabi Koiri - 3 - she found that P.W.6 Shambhu Singh was coming running from south and he stated to her (P.W.11) that the seven accused persons named in the FIR including the four appellants had caught the deceased and after having put him down on the ground near south-eastern corner of the cattle shed of Chhabi Koiri, were pressing his neck at the place which was a shallow land. The informant stated that it was striking about 8.30 P.M. then, and further, that she heard the ‘Aah- Aah’(moaning sound) of the deceased Gupteshwar Singh. 3. The informant stated further that she along with P.W.14 Muneshwar Singh and P.W.6 Shambhu Singh proceeded a bit towards south and on flashing the torch light saw the seven accused persons including the four appellants catching hold of the deceased. The informant stated that the deceased appellant Shesh Badan Singh was armed with a gun and the remaining accused persons were having lathis. She raised a hullah that they were killing her son on which the deceased accused Shesh Badan Singh remonstrated the other accused persons to kill the informant and others as the deceased had already been killed. P.W.11 stated that the deceased stopped moaning, whereafter the accused persons lifted him and took him towards the railways situated to the - 4 - east of the place of occurrence. 4. The informant, thereafter, came to her village and raised a hullah about the incident and stated the names of the accused persons to Kalpnath Singh, Sriniwas Singh and others who were not examined in the case. 5. As regards the motive for commission of the offence by the accused, P.W.11 stated that the deceased was a witness in a case and had given statement against appellant Kameshwar Singh in that case of committing theft in the railway-yard which was registered by G.R.P.S., Dehri and further that the deceased had informed the police about the activities of appellant Kameshwar Singh regarding commission of theft in respect of the railway properties and in the evening of Sunday, i.e., on previous day of the occurrence, Kameshwar Singh had come to threaten the informant that she should caution her son and forbid him from deposing in the case against him, else, he would be killed and his dead body would be made traceless. It was stated that on account of that particular reason the occurrence had taken place. 6. The informant stated that she along with her villagers and relatives made a hectic search for - 5 - the dead body in the river and at other places and also made enquiries from different persons about it, but could not get any clue. It was alleged that the accused persons were mighty and dangerous persons and as such people were afraid of them and were not ready to depose against them. 7. As regards the delay in lodging the FIR on 16.10.1973 for the occurrence which had occurred on 14.10.1973, the informant stated in Ext-3 itself that she had come to the police station the last day, i.e., on 15.10.1973, but there was a big assembly of persons in connection with auction of cement which was being carried out by an Assistant Sub-Inspector of Police and as such she could not lodge the information. She was quite upset and disturbed after the occurrence and some one from the mob which was there advised her to go to Dehri and, accordingly, she went to Dehri on 15.10.1973 and as such could not lodge the report on that day. 8. As may appear from the evidence of P.W.15 S.I. Gopal Krishna Jha, who was the officer-in-charge of Kudra police station on 16.10.1973, Ext-3 was recorded by him at 4 A.M. at the police station on that date and the same was read over to her and was signed by her. P.W.15 recorded her further statement - 6 - and proceeded to the place of occurrence for inspecting it and reached there on the same day, i.e., on 16.10.1973. He found the ladies of the house of the deceased or house of the informant weeping and they were taking the names of Shesh Badan Singh and appellant Kameshwar Singh as culprits. He, thereafter, recorded the statement of P.W.6 and inspected the place of occurrence which was situated in south of village-Ghatao at a place which was about 50 yards north of the traction-office of Pusauli railway station. The pathway to the pump house of the informant passed through that particular place and by the Dalan of one Kashinath Singh and after passing through the lane it went up to the railway station. The lane was situated east of the cattle shed of Chhabi Koiri. There was yet another gali(lane) which was situated north of the Dalan of Chhabi Koiri and that led to his house. P.W.15 stated that the two lanes were quite dark but people used to pass through it on account of the distance being shortened. There was the third gali which was situated east of the cattle shed of appellant Nagina Koiri and it went into the village from the railway station. There was a barricade in south of the gali situated east of the cattle shed of appellant Nagina Koiri and it was of - 7 - thin iron wire and it was at the southern end of the gali passing by the side of cattle shed of Nagina Koiri. The I.O. found the barricading broken and some wires lying there. He further found the creepers and other vegetations trampled in the eastern corner of the barricaded place indicating as if there had been some struggle at that particular place. 9. P.W.15 seized the broken pieces of iron wire and the three-cell-torch-light which was produced before him by the informant by preparing a seizure memo which has been marked Ext-1 in the case. The torch light was found by P.W.15 in working condition. P.W.15 made a search of the cattle shed of appellant Nagina Koiri along with his house and Baithka and found a chaff-cutting-machine in the Baithka of the appellant Nagina which was facing east. There was a window fixed in the western wall of the Baithka and iron rods had been fitted in it. He found two rods recently removed from there and some blood-like mark on the brick of the window. Blood- like stain was also found on the southern wall of the Baithka and some green-fodder(Janera) was found cut into pieces. There was dry fodder stocked north of the chaff-cutter and the mixture of the green fodder along with the dry-fodder was found scattered on the - 8 - floor of the Baithka. The I.O. of the case also found blood stains on the wall and as such scrapped it from different places and seized it with green Janera fodder by preparing seizure list which appears tendered in evidence by P.W.15(paragraph-4). 10. P.W.15 arrested appellant Shesh Badan Singh and found the other accused persons absconding. He recorded the statements of different witnesses including some of the railway employees and made a search of a well which was located at a deserted place and which belonged to one Ramashish Singh and found in it a gunny bag tied by iron wire. The same was brought out and it was opened in presence of the witnesses. A head was found inside it which was identified as that of deceased Gupteshwar Singh. There was a cement brick inside the bag and there was some chopped off pieces of Janera-fodder also inside it and it was tied by a thin iron wire. P.W.15 held inquest upon the dead body in presence of the witnesses. The inquest has been marked Ext-6. The gunny bag, the cement brick and the iron wire with the Jinera fodder were also seized by preparing seizure memo Ext-2. P.W.15 stated that the iron wire was of the same quality and was resembling with one which was found at the place of occurrence situated - 9 - near the cattle shed of Chhabi Koiri. 11. P.W.15 stated that Assistant Sub- Inspector R.P.Yadav of Gomo-G.R.Police station met him and pointed out to him that a headless body was found in Gomo in respect of which Gomo G.R.P.S.Case No.5(10)73 under Section 302 was registered and further pointed out that the Dhoti which was found on the dead body was lying in Gomo G.R.P.S. and that was sent to P.W.15 along with other clothes which was found on the headless dead body. The clothes included, besides a Dhoti, a white kurta of full sleeves bearing blood stains, an old blood stained Baniyan and a gunny bag as also a tobacco case. It was stated by P.W.15 that those articles had already been identified at the Gomo G.R.P.S. as belonging to Gupteshwar Singh. 12. P.W.15 stated that the Superintendent of Police, Rohtas supervised the case on 3.11.1973 and found a blood stained solid-cement-piece on the lower part of the western wall of the Baithka of appellant Nagina Koiri and that was seized by preparing seizure memo Ext-2. 13. In cross-examination P.W.15 stated that he did not send the scrapped blood like matter for chemical analysis nor his successor had done that. He - 10 - further stated in cross-examination that the place where he found marks of trampling and scuffle was just by the side of the cattle shed of Chhabi Koiri and that Chhabi Koiri, was the father of appellant Nagina Koiri. The traction office of the railways was situated at about 50 yards from the above place where trampling marks were found. 14. P.W.15 after close of the investigation submitted chargesheet sending up the accused persons for trial. 15. The defence of the appellants was that the deceased Gupteshwar Singh had not started from his house with meal for his servant, who was at his pump house and that no occurrence indeed occurred in the manner as alleged and further that on account of being persuaded by the enemies of the appellants the informant had implicated them falsely. The above defence appears suggested to P.W.11, the informant of the case, in paragraph-13 of her deposition. 16. The prosecution examined a total number of 16 witnesses out of whom P.W.1 Muni Lal and P.W.5 Rameshwar Singh were declared hostile. P.W.3 Mohan Singh was tendered for cross-examination. Eye witness account came from three witness, i.e., Shambhu Singh(P.W.6), Surajbansi Kuer(P.W.11), the informant - 11 - of the case and Muneshwar Singh(P.W.14). Out of the remaining witnesses P.W.2 Kapildeo Singh gave evidence on the recovery of the head from the well and preparation of the inquest report Ext-1. He also gave evidence on the search of the dead body and finding the head inside a bag in the well and preparation of the inquest report which was signed by him as one of the witnesses. P.W.4 Badri Narayan Pandey was a constable in the R.P.F. and he has given evidence that while he was on his duty in the night of 14.10.1973 at Pusauli railway station along with another constable Surendra Singh, he heard the moaning sound of ‘Aah-Aah’ at about 11.30 P.M. which was coming from Koiri-tola of village Baraon which was only 60-70 yards north of Pusauli railway station and the Koiri-tola was located in southern part of the village. He further stated that he heard someone’s voice twice that he was being killed, once in a loud volume and then in a low volume. It was further stated by P.W.4 Badri Narayan Pandey that Suresh (evidence has come that he is brother of appellant Nagina) and Chhabi Koiri(father of appellant Nagina Koiri)were residents of that particular Tola. P.W.7 Ram Barat Singh was the brother of P.W.6 Shambhu Singh and he was not an eye - 12 - witness to the occurrence and was only a witness to the seizure of blood from the Baithka of Nagaina Koiri as has been stated by P.W.15 and this witness also. He is also a witness to the FIR. P.W.9 Ravindra Nath Singh was the officer-in-charge of R.P.F.-Post, Dehri-on-Sone in the year 1972-73 and he had instituted R.P.F.post, Dehri-on-Sone Case No.2(10)1972 dated 12.10.1972 under Section 3 R.P.(U.P.) Act and also another case of the same post bearing no.4(9)73 under the same Section of the same Act and had investigated them. He has stated that appellant Kameshwar Singh was accused in both the cases along with other persons and the deceased Gupteshwar Singh was one of the witnesses for the prosecution and that the cases were pending in the courts. P.w.9 stated that he had recorded the statement of deceased Gupteshwar Singh in both the cases in Hindi but translated them into English and obtained the signature of deceased Gupteshwar Singh which has been marked Ext-4 and 4/1. It was stated that in one of the cases, bearing no.4(9) 73, one Suresh Koiri, son of Chhabi Koiri(i.e., the full brother of appellant Nagina Koiri), was also an accused. Thus, P.W.9 appears a witness on the motive part of the occurrence as to why Gupteshwar Singh was - 13 - murdered. P.W.12 J.B.Singh was the guard of a goods train and has stated that the train which he was taking, stopped at Hazaribagh railway station on account of some obstruction on the railway track and he alighted from the train to have a cup of tea. He was crossing the yard through the over bridge and he found that there was another goods train standing on the down line whose guard was Sri T.P.Sinha(P.W.13). He saw a bag lying in one of the open boxes of the goods train of guard Sri T.P.Sinha from which the legs of a dead body were peeping through. The goods train had started moving. He pointed out to T.P.Sinha(P.W.13) that there could be a man in a bag as a result of which the goods train was stopped. It appears from the evidence of P.W.12 that it was a dead body. It was packed inside the bag which was found in the bogey of the goods train and that was brought out which subsequently appeared to be the dead body of Gupteshwar Singh as may appear from the evidence of P.W.11. The said T.P.Sinha was examined as P.W.13 and he also stated the same facts as regards the recovery of the dead body from a bogey of the goods train which he was taking as its guard from Gaya railway junction to Gomo. The train was bearing no.E.C.184 and in its open box, a bag and - 14 - dead body was seen by P.W.12 J.B.Singh who shouted to tell him about it as a result of which the train was stopped and on inspection of the open box the dead body was found packed in a gunny bag and Assistant Station Master of Hazaribagh road station was informed who in turn informed the officer-in-charge of Gomo G.R.P.S. and, accordingly, the dead body was brought out of the open box of the goods train. It has been stated by P.W.13 Tapeshwar Prasad Sinha that it was a headless dead body but he could not say as to whose body it could be. 17. Out of the remaining witnesses P.W.8 Parmahans Singh has proved the writings of the FIR Ext-3 and P.W.16 Mahendra Tiwary has given evidence of formal character on the fact that whereabouts of doctor Ramsudip Prasad who was the professor of Forensic Medicine, Dhanbad was sought to be ascertained. Besides, through another correspondence the whereabouts of another doctor, who had held postmortem examination on the head of the deceased, i.e., Dr. Mirza Hussain, was also sought to be ascertained by the Public Prosecutor and those correspondences have been exhibited as Ext-7 and 7/1. He has also marked the reports received on the queries made by the Public Prosecutor which indicated - 15 - that the doctors who held postmortem examination on the headless part of the dead body as also the head could not be traced out on account of no clue about their addresses. 18. Sri Rana Pratap Singh, the learned senior counsel appearing on behalf of the appellants has submitted that the explanation on the delay in lodging of the report was given by the informant in her FIR and it has been reiterated by her in her deposition in court which does not inspire confidence as there were persons like P.Ws.6 and 14 who had seen the deceased being put down on the ground and then being gagged and thereafter being lifted to be taken away. But none rushed to the police station promptly to lodge a report. It was further contended that the evidence of P.W.11 in paragraph-6 indicates that prior to the lodging of Ext-3, the FIR, the real mother of the deceased, Purushottama, had gone to the police station and had lodged a report and as such the present FIR was hit by Section 162 of the Cr.P.C. and was not admissible. Besides, it was contended that the report which was lodged by Purushottama has not been produced by the prosecution and as such the prosecution appears guilty of withholding one of the most important documents and in its place offered an - 16 - explanation which was simply flimsy and not acceptable. Sri Singh has highlighted the importance of the FIR and in that connection cited before us three Supreme Court decisions, like, (1972)3 SCC 393, 1995 Criminal Law Journal 457 and 2005 SCC(Criminal)73 and submitted that it was a fact to be investigated into as to whether there was any substance in the claim of P.W.11 that in spite of her efforts her report could not be lodged in time. 19. It was contended in the above connection that the FIR was an ante-dated and fabricated document as some other evidence on record like that of P.W.7 Ram Barat Singh in paragraph-2 and P.W.6 in paragraphs-43 to 46 indicated as if the report could have been fabricated by the police so as to implicating the appellants. It was further contended by reading out to us the evidence of P.W.11 in paragraphs-4 and 5 that the conduct of the informant was suspicious and it could be said that she was made to make a statement as per the need of the hour and she had not seen anything. Besides, our attention was also drawn to evidence of P.W.14 Muneshwar Singh in paragraph-1 in the above connection to convince us that the FIR was a fabricated, collusive report. Sri Singh further cited before us AIR 2006 SC 3376 in - 17 - which it has been held that registering of a FIR is a must even if the case may be false so that the police could investigate the allegations. Some other decisions like those reported in (2003)3 SCC 377 and (2004) 10 SCC 141 were also cited before us in that connection. It was next contended by Sri Singh that there was a complete lack of evidence that Gupteshwar Singh was butchered by accused persons and that too at the Bathan of appellant Nagina Koiri as the blood which was scrapped by the I.O. was not sent for chemical analysis so as to confirming that it was human blood which was found there. It was also submitted that the identity of the dead body, especially that of the headless trunk recovered from the goods train, was also not established and as such the evidence on murder of the deceased was very scant, not warranting the conviction of the appellants. 20. It was submitted by Sushri Shashibala Verma, the learned Additional Public Prosecutor, that the three witnesses P.Ws.6, 11 and 14 might have faltered on one fact or the other, but if their evidence is carefully considered, there is no reason to reject their evidence and also their claim of having seen the main part of the occurrence. It was - 18 - further submitted that the torch light was flashed and the accused persons were duly identified by three P.Ws and that torch light was produced by the P.W.11 before P.W.15. The investigating officer found the trampling marks at that particular place from where the deceased was lifted and taken away towards the railway station. The motive has been established and there is circumstantial evidence in abundance to support and establish the participation of the appellants and other accused persons in commission of the offence. It was, as such, submitted that the judgement passed by the learned trial court did not deserve to be disturbed. 21. Before I proceed to scrutinize the arguments of both the sides, I want to have a glance of the evidence of three eye-witnesses conjointly so that it could be useful in assessing the merits of the contentions of the parties. 22. P.W.11 Surajbansi Kuer, the informant of the case and P.W.14 Muneshwar Singh have stated that the deceased Gupteshwar Singh had left his house for the pump house with the meal for the servant. P.W.11 has stated that she found his torch light lying on a cot and she thought that it should be given to him. As such, he went with the torch light to the house of - 19 - P.W.14. The two houses were intervened by 5-6 other houses. She requested him to accompany her so that the torch light could be given to the deceased. P.W.14 says that P.W.11 came to his house and asked her to accompany and, accordingly, both of them went together and when they were near the house of