IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.105 of 1990 =========================================================== Baleshwar Mahto, son of Duli Mahto, resident of village-Kathrahi, P.S.-Bind in the district of Nalanda. .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s with Criminal Appeal (DB) No. 153 of 1990 =========================================================== Khelawan Yadav, son of Late Duli Mahto, resident of village-Kathrahi, P.S.-Bind, District-Nalanda. .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance: For the Appellant : Mr. Anjani Kumar, Sr. Advocate. Mr. Sudhis Kumar Upadhyay, Advocate. For the State : Mr. Dilip Kumar Sinha, A.P.P. For the State : Mr. Dilip Kumar Sinha, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 13-03-2013 Appellant Khelawan Yadav who has been found guilty for an offence punishable under Section 302 Indian Penal Code as well as 27 of the Arms Act and has been directed to undergo R.I. for life under Section 302 of the Indian Penal Code while no separate sentence was passed under Section 27 of the Arms Act, appellant Baleshar Mahto who has been found guilty for an offence punishable under Section 307 Indian Penal Code and 27 of the Arms Act and sentenced to undergo R.I. for 7 years under both counts respectively with a direction to run the sentences concurrently have 2. filed two independent appeals which accordingly being heard together and are being disposed of by the common judgment. 2. Anandi Prasad, PW-7 had given his fardbeyan (Ext.9) at Bind Police Station along with his father Lala Mahto and brother Bindeshwar Prasad in injured condition alleging inter alia that on the same day at about 06:00 AM while he had gone to his field lying at Milki Khandha to sow paddy seed along with his father and brothers. During midst of ploughing the field, Khelawan Yadav armed with rifle, Dulli Mahto armed with Lathi, Rajendra Mahto armed with gun, Arun Yadav armed with gun, Umesh Prasad armed with Garasa, Subhash Prasad armed with Bhala, Baleshwar Mahto, Siwan Mahto armed with gun, Ram Bilas Yadav armed with Garasa, Surendra Yadav armed with gun, Ram Lagan Prasad armed with gun came. Khelawan Mahto said that why his filed is being ploughed which was retaliated by him (informant) claiming that the land belongs to him (informant). On this Dulli Mahto ordered to kill. Khelawan yadav shot at his father from his rifle causing injury over head of his father on account of which skull became fractured and he fell down in the field itself. Baleshwar Mahto fired from his gun causing injury at upper portion of his back (Pakhura) as well as over head. Ram Bilas Yadav assaulted with Garasa over his head. Umesh Yadav assaulted with Garasa over head of his brother Bindeshwari Yadav. Dulli Mahto assaulted him with lathi. Thereafter, all the accused persons began to fire indiscriminately to terrorize the persons. He named Brahamdeo Sao, Kameshwar Prasad, Ramu Sao as witness who saw the occurrence. 3. 3. On the basis of aforesaid fardbeyan Asthawa P.S. Case No. 116 of 1982 was registered and investigation accordingly commenced. After concluding the same charge sheet was submitted under Section 302 IPC along with other allied sections on account of death of Lala Mahto whereupon the accused persons were put on trial. After concluding the same save and except these two appellants, others have been acquitted. Hence this appeal. 4. The defence case as is evident from the mode of cross- examination as well as from the statement of the accused recorded under Section 313 of the Cr.P.C. is total denial of the occurrence. They have also pleaded that on account of long standing land dispute they have been falsely implicated in this case. Moreover, the defence had also suggested that on the alleged date and time of occurrence, the prosecution party assaulted them for which Asthawa P.S. Case No. 117 of 1982 was registered. To support the same, the injury report along with FIR of counter case had also been exhibited. 5. Learned counsel for the appellant while assailing the judgment of conviction and sentence argued that the finding recorded by the learned lower court is bad and erroneous on account of non-appreciation the materials available on the record in its right prospective. The first and foremost argument on this score happens to be that when evidence of PWs have been disbelieved with regard to other co-accused (since acquitted) then in that event there was no justification to accept its reliability with regard to these two appellants. It has further been submitted that there happens to be 4. inconsistency amongst the ocular as well as medical evidence. The medical evidence completely diffract the prosecution version so far factum of murder of Lala Mahto by means of rifle is concerned. Then in that event, as submitted the ocular evidence should have been rejected in toto. In likewise manner, it has been argued that so far injury of Anandi Prasad, informant is concerned, again the medical evidence demolishes the prosecution version. Hence, on both score alone, the sanctity of the prosecution witnesses is found to be at stake. 6. Now challenging the veracity of the ocular evidence, it has been submitted that on account of embellishment and contradictions apart from having inconsistency as well as variations amongst the PWs on each and every material aspect, completely make the evidence unreliable, un- creditworthy. 7. It has further been submitted that the version of the prosecution appears to be ridiculous in the background of the fact that appellants never claimed the land which was alleged under cultivation of the prosecution on the alleged date of occurrence. The disputed land happens to be different one. Then in that event there was no occasion for the appellant to go over the disputed land and indulge in criminal activity. Contrary to it, it has been submitted that the defence version appears to be more probabilized whereunder the prosecution party assaulted them for which substantial case was lodged. It has further been submitted that prosecution is duty bound to prove its case beyond all reasonable doubt while the plea of defence is to be adjudged on the theory of preponderance of probability. As 5. such, it has been pleaded that prosecution case is suffering from infirmity and on account thereof the appeal is fit to be allowed. Also pleaded that by suppressing the injuries found over person of Appellants, the prosecution case is found to be suffering from major defect relating to genesis as well as manner of occurrence. Further submitted that the whole prosecution version is found like castle in the air as they were never in possession over P.O. land on account of land being under possession of mortgage in whose favour deed of registered mortgage was executed since before the alleged occurrence. 8. On the other hand the learned Additional Public Prosecutor while supporting the finding recorded by the learned trial court has submitted that it is not the sound principle of law that the evidence of witnesses should be discarded in its entirety when the part thereof is found to be consistent in supporting the case of the prosecution. It has further been submitted that save and except minor contradiction nothing more is found in the evidence of the PWs to discredit their evidence. It has further been submitted that the learned Trial Court had minutely observed the medical evidence in consonance with the ocular evidence and came to definite conclusion that save and except some sort of discrepancy arisen on account of opinion of the respective witnesses, the evidence in its basic tune support the injuries sustained by the deceased as well as injured respectively. Hence the finding recorded by the learned trial court is found to be fully substantiated from the materials available on the record. 9. In order to substantiate its case, the prosecution had 6. examined altogether ten PWs out of whom PW-1 is Ramasish Paswan, PW- 2 is Dr. C.P. Sinha, PW-3 is Bhagwan Das Mahto, PW-4 is Jagarnath Yadav, PW-5 is Bindeshari Prasad, PW-6 is Brahmdeo Sah, PW-7 is Anandi Prasad, PW-8 is Dr. C.P. Sinha, PW-9 is Ramdeo Singh, PW-10 is Jai Narayan Singh. Also exhibited Ext.-1 Series with regard to injury report prepared by Dr. C.P. Sinha, Ext.-2 Series Injury Report prepared by police, Ext.-3 Signature of witnesses on production cum seizure list, Ext.-4 Signature of seizure list witness, Ext.-5 Formal FIR, Ext.-6 Signatrue of informant over fardbeyan, Ext.-7 postmortem report, Ext.-8 Chalan, Ext.-9 Fardbeyan, Ext.-10 endorsement over fardbeyan, Ext.-11 Seizure list, Ext.- 12 Inquest Report, Ext.-13 Production list, Ext.-14 Letter, Ext.- 15 FSL Report. But all has been made material Ext.-I, Ext.-II Bolt, Ext.-III live cartridge, Ext.-IV Series Blood stain earth, Ext.-V. Ext.-X Series bed head ticket as well as X-ray plate marked for identification. Two witnesses Kunj Bihar Prasad as well as Dr. Kailash Pati Yadav were also examined as court witness. Defence had also examined three DWs. DW-1 Mithilesh Kumar Mandal, DW-2 M.M. Rejwi, DW-3 Muhammad Mushilim as well as had also exhibited Ext.-A Series Two acknowledgement, Ext.-B Series Petition dated 11.11.1986, 25.11.1986 respectively. Ext.-C Series Signature of Bhagwan Das over above referred Ext.-B Series. Ext.-D C.C. of sale deed No.17657, Ext.-E Order dated 16.07.1986 as well as 06.08.1986 passed in Sessions Trial No.46/84. There happens to be some sort of discrepancy in recording the exhibit number and on account thereof again Ext.-A Series has been numbered with regard to Injury report relating to Umesh, Ram 7. Khelawan and Dalli Mahto. Ext.-B fardbeyan, Ext.-C Formal FIR. 10. Lala Mahto (since deceased) was initially examined by Dr. C.P. Sinha (PW-2) who had found following injuries on his person. One incised wound 4 ½” x 1” x skull bone deep on the right side of head injuring the right parietal lobe of brain (laceration of the cortex cell) leading to unconsciousness and paralysis of the left side of body) In the opinion of the doctor injury was caused on account of sharp cutting weapon and was grievous in nature. Age of injury was determined within four hours. On account of critical condition of Lala Mahto, he was brought to PMCH on 23.06.1982 itself and was attempted and treated there and during course thereof he succumb to his injury. During said course, he was examined by C.W.2 who found following injury on his person:- 1) Lacerated wound on the scalp. 2) Fracture of the skull bone. 3) Brain matter was protruding. 4) Patient unconscious 5) Pupil dilated on right side. 6) Fracture of the skull bone was seen in X-ray plate no.4535. 7) No foreign body was found. Age of the injury could not determined. He further accepted that in case Bullet is found passes grazing the skull, the injury no.1 and 2 could be produced. 8. The doctor PW-2 though was not declared hostile on this score but his finding was challenged by the prosecution and further was suggested to the extent that the aforesaid injury was caused by rifle which he denied. During cross-examination he had deposed that rifle is not a sharp cutting weapon so it will not cause sharp cutting injury. However is found contradicted by C.W.2 on this score. The aforesaid doctor though should have been recalled by the prosecution if his presence was so necessitated but instead thereof, was again examined as an independent witness PW-8 and during said course he had exhibited the postmortem report scribe by Dr. R.B. Choudhary who conducted postmortem over the dead body of Lala Mahto on the ground that aforesaid Dr. R.B. Choudhary had died. Postmortem report happens to be Ext.-7 and on account of death of R.B. Choudhary now the same could be taken into consideration with the aid of Section 32(1) of the Evidence Act. During course of postmortem, the doctor had found following ante mortem injury. (1) Incised wound 4 ½” x 1” x brain deep on the vault of head (slightly on right side). (2) On dissection skull was cut and fractured corresponding to the level of injury no.1. Brain was lacerated by pieces of bone. There was sub dural heumotoma found over the surface of brain. The time elapsed since death was within 36 hours. The doctor had opined that the injury was caused by sharp 9. cutting heavy weapon cause of death was shown as on account of head injury. So there happens to be consistent evidence of the doctor with regard to presence of single injury over head of deceased which, in the opinion of the doctor has been on account of sharp cutting weapon. 11. PW-2 had also examined injured Bindeshwari Prasad as well as Anandi Prasad and found the following: (A) Bindeshwari Prasad:- 1) One lacerated wound 1” x ¼” x ¼” on the head arterially. 2) Three lacerated wounds of various sizes ranging from 2 ½” x ¼” x ¼” to 1” x ¼” x ¼” on the back. (B) Anandi Prasad:- 1) Multiple pea sized gun shots wounds (Pilate) on the left on the left scapular region of the back. All were superficial. 2) One pea size wound was on the left side of head posterially and it was superficial. So in the opinion of doctor the injury sustained by Bindeshwari Prasad was caused by hard and blunt substance and were simple in nature while the injuries found over the persons of Anandi, the informant it was a gun shot injury. They were also examined at PMCH by CW-2 who had found following injury:- (A) Anandi Prasad:- 10. 1. Lacerated wound on scalp 2” long. 2. Pellet like injury mask on left shoulder. On the same date and time he had examined Bindeshwari Prasad found following injury:- 1. A stitched wound on the scalp. 2. The patient was unconscious. 3. On X-ray showed nothing abnormal. 12. Now adverting to the ocular evidence, PW-1 is found to be declared hostile but had admitted murder of Lala Mahto was committed about three years ago. PW-2 (PW-8) is the doctor, who had proved injury reports relating to Lala Mahto (deceased) as well as Anandi & Bindeshwari as well as exhibited PM report. The same status happens to be with regard to C.W.2, Dr. K.P. Yadav. So far evidence of C.W. 1 is concerned, he happens to be formal in nature as placed relevant document. So far PW-9 is concerned he also happens to be formal as brought material exhibit. In like wise manner evidence of PW-3 remains. 13. The remaining witnesses happen to be material witness. PW-4 had deposed that on the day and time of occurrence while he was going to ease himself towards south to his village he found Lala Mahto ploughing the field while Anandi was sowing the seed. At that time Dulli Mahto armed with lathi, Ram Khelawan armed with rifle, Siwan Mahto, Baleshwar Mahto, Ram Lagan Prasad, Surendra, Rajendra, Arun armed with gun, Ram Bilas and Umesh armed with Garasa and Subhash armed with Bhala came and said that they will not allow to plough the field. Lala Mahto 11. retaliated by saying that land belongs to him, hence he will plough. On this Dulli Mahto ordered. Khelawan fired causing injury over head of Lala Mahto who fell down. Blood began to ooze. Thereafter, Baleshwar had fired causing injury over left upper portion of back as well as over head. Ram Bilash assaulted with Garasa over head of Anandi. Umesh and Dulli assaulted Bindeshwar with Paina which was corrected as Dulli had assaulted with Lathi and Umesh with Garasa then thereafter all of them left the place. They have taken dead body to P.S. along with Anandi and Bindeshwar. During cross-examination he had narrated that the total area of the disputed land happens to be six decimal having boundary North Dulli Mahto, South Harnath Sah, West Lala Mahto and East Prabhu Mahto. He had not seen quarreling Dulli Mahto with Lala Mahto with regard to the disputed land. However, the dispute was going on amongst them with regard to other plot lying in the same vicinity. A 144 and 145 Cr.P.C. proceeding had already been fought in between. In para-5 he had deposed that he was going towards pond lying South to the village and during said course he had seen mob present at the disputed land who were only accused persons. He heard sound of firing from that place only. He became afraid of and remained there. The persons who were engaged in nearby field witness the same. In para-6 had said that the villagers came after half an hour. Accused persons had already escaped there from before arrival of the villagers. Then thereafter he had gone to the place of occurrence and had seen the injured. In para-10 there happens to be contradiction. In para-11 had denied with regard to counter case. He had further denied having Dulli Mahto in injured condition. 12. 14. P.W.-5 is one of the injured who had deposed that on the alleged date and time of occurrence he along with his father Lala Mahto brother Anandi and Indu had gone to the P.O. land and were engaged in agriculture work. At that very time Dulli armed with lathi, Ram Khelawan armed with rifle, Sheo Nandan, Baleshwar, Ram Lagan, Arun, Surendra and Rajendra armed with gun, Subhash armed with Bhala, Ram Bilas and Umesh armed with Garasa came there out of whom Khelawan had forbidden his brother Anandi to plough the field. He claimed the land belongs to him. The same was retaliated over which Dulli ordered to kill. Ram Khelawan fired causing injury over head of his father. Baleshwar fired causing injury over upper portion of back Anandi as well as head. Ram Bilas had assauled with Garasa over his head. Umesh and Dulli had assaulted him with Garasa and lathi respectively. Other accused were terrorizing the villagers by making indiscriminate firing. Then thereafter all the accused persons left therefrom. Brahamdeo Sah, Jagarnath Yadav, Kameshwar Yadav and Biseshwar Sah along with others have witnessed the occurrence out of whom Biseshwar had gone in camp of accused. Thereafter, the villagers lifted his father to P.S. along with them where his brother Anandi gave his fardbeyan. Thereafter they were sent to hospital from where they were referred to PMCH during course of which his father died. On 20.07.1982 he had produced blood stain cloth before the police. During cross-examination at para-2 had admitted that both the persons are on litigating term since before the occurrence. In para-4 he had disclosed that his father had ploughed the aforesaid land about three or four days ago. As he was not present so he could say whether any sort of 13. litigation had taken place or not. At the time of occurrence paddy seed was being sown. Then said that at that very time the field was being ploughed as well as they were also engaged in putting seed. He had given the boundary of the land North Dulli Mahto, South Harnath Sah, East and West Lala Mahto (Prosecution party). Then had disclosed that the Khesra number of P.O. land happens to be 3497. He is not aware with the fact whether there was any sort of dispute with regard to P.O. land. In para -9 had said that he had gone to P.O. land along with his father and brother. They have not met with accused in midst of way. He had not seen the accused persons in the vicinity of the P.O. land. In para-11 had said that for the first time he had seen accused persons at some distance from his field approximately four lagga west who were variously armed. They came and said to shoot over which firing was made. His brother Indu fled away while they remained in the field. Firing was made which cause injury to his father. At that very time his father was east to him at a distance of 4-5 hands. He has seen his father sustaining firearm injury at Southern-Western corner of the field. He fell down over which he along with Anandi rushed and tried to lift. No firing was made at that very time. Then said that they had already sustained injury. He further said that Anandi had sustained injury just after falling of his father. The whole occurrence was over within 5 to 10 minutes. He had said that even after sustaining gun shot injury his brother rushed to his father. He also gone there and during course thereof, he was assaulted. In para-14 had said that he had not found any injury over the person of Umesh and Ram Khelawan at the P.O. He himself volunteered in course of fleeing there was 14. confrontation with villagers during course of which they sustained injury. He had also heard with regard to Dulli Mahto. In para-12 had disclosed that he had seen blood at Southern-Western corner of his field. 15. PW-6 is Brahamdeo Sah. He had said that on the alleged date and time of occurrence while he was going to plough his own field, he had seen Lala Mahto sowing seed in his field while Anandi Mahto was ploughing the filed. Bindu and Indu both were present there. He had seen Dulli Mahto, Khelawan Mahto, Siwan Mahto, Baleshwar Mahto, Rajendra Mahto, Surendra Mahto, Arun, Ram Bilas, Ram Lagan and Subhash came there out of whom Dulli was armed with lathi, Ram Khelawan was armed with rifle, Siwan, Baleshwar, Rajendra, Surendra, Ram Lagan and Arun were armed with Gun, Subhash was armed with Bhala, Umesh and Ram Bilas were armed with Garasa. They, after coming to the field, directed them not to plough but they (prosecution party) did not accede over which on an order of Dulli Mahto, Khelawan fired from his rifle which strruck over head of Lala, causing injury. Thereafter he fell down. Baleshwar and Ram Bilas assaulted with gun as well as Garasa respectively. Umesh and Arun again corrected Umesh and Dulli assaulted Bindeshwari with Garasa and Lathi respectively. Then thereafter they all escape there from. Villagers have come who took away Lala Mahto. After arrival of I.O. he had shown P.O. I.O. had seized live cartridges, empty cartridges there from for which seizure list was prepared over which he put his signature. During cross-examination in para- 3 had admitted that he was on litigating term with Dulli Mahto since long and had detailed the same. In para-6 further disclosed that he had got five or 15. six plots in the vicinity of the P.O. land. In para-7 he had disclosed that he had not met with accused persons during midst of way. When he reached at the place of occurrence, he had not found mob. He had not heard sound of firing. Then had disclosed that when he proceeded South after crossing canal, he heard 10 to 15 rounds of firing over which he gave his attention. He had not seen commotion rather the persons were present at the place where they were. He had seen about fifty persons East to the village near Khalihan. In para-9 had disclosed that he had not identified any of them on account of commotion. In para-11 he had disclosed that there was hue and cry after ten minutes of occurrence. He had also reached at the P.O. where 50 to 100 persons also came wherein he named Radhe Sah, Hirdaya Sah, Jagmohan Sah, Tanik Sah, Sukhuru Sah and Jagarnath Yadav. In para-12 had disclosed that he had found all the three injured at three different places in the P.O. field. Lala was unconscious while two others were groaning. He had no talk with them regarding occurrence. Then thereafter he came back to his own plot. He had seen the accused persons coming from East to West and going towards P.O. just adjacent to his field and so he had identified them. In para-13 had said that he had seen whole occurrence from his own filed.