CRIMINAL APPEAL(DB) No.448 OF 2007 1. Chhedi Singh , Son of Late Saukhi Mandal @ Saukhi Singh 2. Ramkhelawan Singh Son of Late Ramadhin Mandal, Both residents of Village- Mahgama ( Khajuriya) P.S. Dharhara, District-Munger ------------------ Appellants Versus THE STATE OF BIHAR ------------- Respondent WITH CR. APPEAL (DB) No.502 oF 2007 Chhotu @ Manohar Kumar @ Manohar Singh, Son of Chhedi Singh, resident of Village-Mahgama( Khajuriya), P.S. Dharhara, District-Munger --------------------- Appellant Versus THE STATE OF BIHAR ----------------- Respondent WITH CR. APPEAL (DB) No.550 oF 2007 Mahesh Prasad Singh, Son of Late Ramadhin Mandal, resident of Village- Mahgama ( Khajuriya), P.S. Dharhara, District, Munger ---- Appellant Versus THE STATE OF BIHAR ------------------------ Appellant --------------------- Against the Judgment of conviction and sentence dated 30.3.2007 passed by Sri Om Prakash Sinha-II, Addl.District & Sessions Judge, Fast Track Court V, Munger in Sessions Case No.674 of 2002 arising out of Dharhara P.S. Case No.40 of 2001. ----------------------- For the Appellants: S/Sri Kanhaiya Prasad Singh, Sr. Advocate Kamal Kishore Jha, Atal Bihar Raina Kumari and Mrs. Jyotsana, Advocates For the State : Sri Ashwani Kumar Sinha, A.P.P. ------------------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE RAKESH KUMAR 2 Rakesh Kumar, J. All the aforesaid three appeals arise out of the Judgment of conviction and sentence dated 30th March, 2007 passed in Sessions Trial No.674 of 2002 and, as such, all the aforesaid three appeals were heard together and are being disposed of by this common Judgment. 2. Appellant Mahesh Prasad Singh (in Cr.Appeal No.550 of 2007) was convicted in Sessions Trial No.674 of 2002 by Sri Om Prakash Sinha-II, Addl.District & Sessions Judge, F.T.C.V, Munger for the offence under Sections 302 and 307/34 of the Indian Penal Code. Under Section 302 of the Indian Penal Code, appellant Mahesh Prasad Singh was sentenced to undergo rigorous imprisonment for life and under Section 307/34 of the Indian Penal Code, he was sentenced to under rigorous imprisonment for five years. Both the sentences were directed to run concurrently. 3. Appellant Chhotu @ Manohar Kumar @ Manohar Kumar (in Cr. Appeal No.502 of 2007) was convicted in the same trial i.e. Sessions Trial No.674 of 2002 under Section 302 /34 and under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for five years under Section 307 of the Indian Penal Code. Both the sentences were directed to run concurrently. 4. Similarly, appellants Chhedi Singh and Ramkhelawan Singh (in Cr. Appeal No.448 of 2007) were convicted in the same trial, i.e. Sessions Trial No.674 of 2002 under Sections and 307/34 and 302/34 of the Indian Penal Code. Both the appellants were sentenced to undergo 3 rigorous imprisonment for life under Section 302/34 of the Indian Penal and rigorous imprisonment for five years under Section 307/34 of the Indian Penal Code. Both the sentences were directed to run concurrently. 5. Short fact of the case, as per fardbeyan of Sri Sanjay Kumar Son of Kameshwar Singh, which was recorded by the Sub Inspector of Police of Kotwali Police Station in Sadar Hospital, Munger on 10.3.2001 at about 22.45 hours, is that on the same day at about 7.30 P.M. while the informant was discussing at his house, situated at Village-Khajuria regarding the fact that in the election of Mukhiya, Barmeshwar Singh will certainly succeed, accused Chhedi Singh ( Appellant no.1 in Cr. Appeal No.448 of 2007), Ramkhelawan Singh ( appellant no.2 in Cr. Appeal No.448 of 2007), Mahesh Prasad Singh ( Cr. Appeal No.550 of 2007) carrying Sixer in his hand, Chhoto @ Manohar Kumar @ Manohar Singh carrying Musket and Rupesh Kumar ( his trial was separated ) carrying country made pistol in his hand forming an unlawful assembly armed with deadly weapons arrived there and appellants Chhedi Singh, Ramkhelawan Singh abusively ordered to kill younger brother of the informant , namely, Bablu and thereafter appellant Mahesh Prasad Singh fired on the head of Bablu and after receiving injury he became unconscious. The informant further disclosed that Chhotu @ Manohar fired on the back of his brother Viveka Nand , who too received injury and accused Rupesh Kumar fired on the informant , which hit in the left arm of the informant. The informant further disclosed that the occurrence was witnessed by Hajo Mandal , Ajay Singh, Sudhir Singh etc.. After recording fardbeyan, an F.I.R. vide Dharhara P.S. Case No.40 of 2001 was registered on 11.3.2001 for the offences under Sections 147/148/149/326/324/448/307/504 of the Indian 4 Penal Code and Section 27 of the Arms Act. Subsequently, after the death of injured Bablu , who was referred to Patna Medical College & Hospital from Munger , Section 302 of the Indian Penal Code was added. 6. The police after investigation submitted chargesheet and thereafter on 13.6.2001, cognizance for the offences under Sections 147,148,149,326, 448, 324, 307, 302 ,504 of the Indian Penal Code and Section 27 of the Arms Act was taken by the learned Chief Judicial Magistrate, Munger against all the five chargesheeted accused persons. After compliance of provision under Section 207 of the Code of Criminal Procedure on 24.10.2002, the case was committed to the court of Session. Due to non-appearance of one of the accused, namely, Rupesh Kumar, by order dated 3.9.2003, the case of Rupesh Kumar was separated from the present case and on the same date i.e. on 3.9.2003 charges were framed. Against appellant Chhotu @ Manohar Singh charge under Section 307 of the Indian Penal Code was framed. Charge against appellants Chhedi Singh and Ramkhelawan Singh was framed under Section 109 read with Section 307 of the Indian Penal Code. Charge under Section 307/34 of the Indian Penal Code. Charge under Section 307/34 of the Indian Penal Code against appellants Mahesh Prasad Singh, Chhedi Singh, Ramkhelawan Singh, Chhotu @ Manohar Singh was framed and charge under Section 307 of the Indian Penal Code was framed against appellant Mahesh Prasad Singh. However, during the trial, it was noticed that charges under Section 302, 302/34 were not framed and, as such, on 18.1.2005 charge was amended in respect of appellant Mahesh Prasad Singh. Charge under Section 302 of the Indian Penal Code was framed and against appellant Chhotu @ Manohar Kumar , Chhedi Singh and Ramkhelawan Singh, charge under Section 5 302/34 of the Indian Penal Code was framed on 18.1.2005. During the trial in support of the prosecution case, prosecution examined altogether seven witnesses. Out of seven witnesses, P.W.2 Viveka Nand (brother of the informant) and P.W.3 Sanjay Kumar (informant) were injured witness. P.W.1 Daya Nand Saraswati was examined as an eye witness and P.W.4 Shashi Bhushan Kuswaha is a hearsay witness. P.W.5 Dr. Anil Kumar Singh had examined injuries of P.Ws 2 and 3 and had also examined injury of brother of the informant, namely, Bablu (the deceased) and thereafter he was referred to Patna Medical College & Hospital. P.W.6 Dr. Ashok Kumar Yadav had conducted autopsy on the dead body of the deceased Bablu and P.W.7 Sri Kamakhya Narain Singh had conducted investigation of the case. 7. Formal F.I.R. was got exhibited as Ext.5, Fardbeyan as Ext.1/1, endorsement on the fardbeyan as Ext.1/2 and signature of the informant was marked as Ext.A. Injury report of deceased Bablu as Ext.3, Injury Reports of P.Ws 2 and 3 have been marked as Exts. 3/1 and 3/2 respectively. Postmortem Examination Report has been exhibited as Ext.4. During the trial, injured witnesses i.e. P.Ws 2 and 3 have consistently disclosed regarding the roles played by accused persons in the occurrence. P.W.4 Shashi Bhushan Kuswaha had seen the accused persons while fleeing away after committing the occurrence with various arms. P.W. 4 has further stated that thereafter he was informed by P.W.3 (the informant) regarding the occurrence. P.W.1 claiming himself to be an eye witness to the occurrence has corroborated the prosecution case. P.W.5, who was posted at the relevant time in Sadar Hospital, Munger has proved the injury report of deceased Bablu and injury reports of P.Ws 2 and 3 , which were 6 marked as Exts. 3, 3/1 and 3/2 respectively. P.W.5 Dr. Ashok Kumar Yadav has prepared postmortem examination report and has proved the same, which has been marked as Ext.4. The I.O. Sri Kamakhya Narain Singh (P.W.7) has proved the F.I.R. and also disclosed about the place of occurrence etc. 8. Sri Kanhaiya Prasad Singh, learned Senior Counsel appearing on behalf of the appellants has taken defence that the appellants were implicated falsely as per the instance of P.W.4 Shashi Bhushan Kuswaha , against whom appellants were in litigating term. In defence , the appellants had got a summon, issued in Misc. Appeal No.18 of 2004, which was issued to P.W.4 Shashi Bhushan Kuswaha exhibited as Ext.A . It was submitted that the appellants were falsely implicated as per the instance of P.W.4. 9. Sri Singh, learned Senior Counsel appearing on behalf of the appellants further submits that the motive, which was alleged by the prosecution side was completely absurd. It was argued that only on the issue of discussing favourly thing against rival candidate cannot be considered as a motive for causing death of the brother of the informant as well as causing injury on him and one another brother (P.W.2). Sri Singh, learned counsel for the appellants has further argued that place of occurrence in the case is contrary to the prosecution case. The informant (P.W.3) had disclosed that while he was at his house, the occurrence had taken place, whereas blood-stain was found on the lane about 40 yards away from the house of the informant. It was also argued that actual place of occurrence was the field, from where arms and fired cartridges were recovered. It was argued that the occurrence had taken place on the Holi 7 festival and the manner of occurrence was not as alleged by the prosecution witnesses. 10. Sri Kanhaiya Prasad Singh, learned Senior Counsel has further argued that the prosecution has purposely not produced the witnesses, whose names were mentioned in the First Information Report. Even prosecution, to the reasons best known to them, had withheld the father of the informant, namely, Kameshwar Singh. It was submitted that withholding of important witness creates serious doubt on the prosecution case. It was also argued that the prosecution becomes more doubtful on the basis of deposition of P.W.3 (the informant), who himself had stated in paragraph 15 of his cross-examination that he had stated about the occurrence, which he had heard. It was submitted that the informant was himself a hearsay witness. He further submitted that the prosecution had purposely withheld the fardbeyan of P.W.1 Daya Nand Saraswati , whose fardbeyan was recorded by Pirbahore Police, while Bablu ( deceased ) was referred to Patna from Sadar Hospital Munger and where he died. In view of aforesaid facts, Sri Singh, learned Senior Counsel for the appellants has argued that withholding of important witnesses, motive being absurd and circumstances showing false implication as well as contradiction in respect of place of occurrence, creates serious doubt on the prosecution case and, as such, the appellants are entitled to be acquitted from all the charges and the Judgment of conviction and sentence passed by the learned Addl.Sessions Judge, F.T.C.No.V , Munger is liable to be set aside. 11. Sri Ashwani Kumar Sinha, learned Addl.Public Prosecutor appearing on behalf of the State has submitted that the prosecution has successfully proved all the charges and, as such, learned trial Judge has 8 rightly convicted and sentenced all the aforesaid appellants. On the point of absurd motive, which was alleged by Sri Kanhaiya Prasad Singh, learned Senior Counsel appearing on behalf of the appellants , it was submitted by Sri Ashwani Kumar Sinha , learned Addl.Public Prosecutor that in the entire case the prosecution has not at all alleged any motive , whereas it was disclosed by the prosecution that the injured, deceased and others were discussing for success of Barmeshwar Singh in the election of Mukhiya and immediately thereafter all the accused persons arrived and occurrence had taken place and, as such, in the present case there was no need to substantially prove the motive. It was also submitted that what was going in the mind of the deceased and accused persons, it is difficult to establish but fact remains that the occurrence in the present case had taken place, in which appellants have actively participated and due to fire-arm injury, caused by appellant Mahesh Prasad Singh, brother of the informant died while he was referred to Patna Medical College & Hospital. It was further submitted that non-examination of other important witness has got no much relevance in the present case since the case is otherwise proved. P.Ws 2 and 3 are injured witnesses and, as such, their presence at the place of occurrence cannot be doubted. It was further submitted that there was no apparent reason for false implication of the accused persons. 12. P.W.3 Sanjay Kumar, who is the informant and also injured, in his deposition has categorically stated that while he along with others including his brother, Viveka Nand (P.W.2) and Bablu (deceased) were sitting outside his house and they were discussing regarding election of Barmeshwar Singh, who had contested the Mukhiya election, in the meanwhile appellants Chhedi Singh, Ramkhelawan Singh, Mahesh Prasad 9 Singh, Chhotu @ Manohar Singh and Rupesh Kumar Singh (whose trial was separated from the present case) arrived there. Appellant Mahesh Prasad Singh was carrying Sixer in his hand, appellant Chhotu @ Manohar Singh was carrying Musket in his hand and Rupesh Kumar was carrying country-made pistol . Thereafter, appellants Chhedi Singh and Ramkhelawan Singh ordered to kill all the members of anti-party. Appellant Mahesh Prasad Singh fired, which hit the head of brother (deceased Bablu) of P.W.3. Thereafter Viveka Nand (P.W.2) tried to lift Bablu (deceased), then appellant Chhotu @ Manohar Singh fired on the back of Viveka Nand, which hit him. Accused Rupesh Kumar fired on the informant, which hit in his left arm. The informant (P.W.3) further disclosed that the occurrence was witnessed by Khambhari Singh, Radha Raman Singh, Ajay Yadav and others. After the occurrence through a tractor, he was carried to Sadar Hospital, Munger and at 10.45 P.M., his fardbeyan was recorded in the hospital. Bablu Kumar (deceased) was referred to Patna Medical College & Hospital and the informant (P.W.3) was examined at Munger Hospital. His brother Bablu died on 11.3.2001, while he was under treatement. He was cross-examined at length. However, nothing could be extracted from him to create any doubt on the prosecution case. However, in paragraph 15 of his cross-examination, he has stated that on 11.3.2001 and 12.3.2001 he was in Munger Sadar Hospital. He further stated that whatever he had stated regarding the occurrence was heard by him. Taking clue from the statement of P.W.3 in paragraph 15 of his cross- examination learned Senior Counsel for the appellants had tried to create a situation, as if the informant himself was a hearsay witness. Such argument is fit to be rejected due to the simple reason that in the said occurrence, 10 P.W.3 had also received fire-arm injury and, as such, his presence at the place of occurrence cannot be doubted that too on bare statement, which has been cult out in his cross-examination at paragraph 15. 13. Similarly, P.W.2, an injured witness has also corroborated the prosecution case. Regarding the place of occurrence, P.W.7, namely, Kamakhya Narain Singh, who had conducted investigation, has categorically stated regarding the place of occurrence. The place of occurrence has been described by P.W.7 in detail, which shows that from actual place of occurrence blood-stain was found about 40 yards away. It is the prosecution case that after he received fire-arm injury, brother of the informant (deceased Bablu) had tried to flee away and thereafter it is quite natural that blood-stain was found at some distance. The Investigating Officer has further stated that pistol and fire-cartridges were also recovered from the field, which was just near the door of the informant. In view of deposition of P.W.7 and materials found at the place of occurrence, no doubt can be raised regarding the place of occurrence. The doctor, who has conducted postmortem examination, has found rigor mortis all over the body in general and he found 1.25” long stitched wound on the mid of forehead surrounded by tattooing mark on the forehead and face and directed into the skull cavity and after removal of stitches underlying blood clots and fracture of the frontal and right temporal bone were found. P.W.6 Dr. Anil Kumar Singh has further stated that after opening the cranial cavity brain including the maninges and blood vessels were found lacerated and infiltrated with blood and blood clots and a bullet was found lodged in the fractured right temporal bone . The said bullet was collected and sealed. He stated that injury was caused by fire arm. Similarly injuries, 11 which were found by P.W.5 in respect of injured P.Ws 2 and 3 further, corroborate the prosecution case. 14. After hearing learned counsel for the parties and going through the materials on record, I am of the opinion that the prosecution has successfully proved the case and the learned trial Judge has not committed any error in convicting and sentencing the appellants, as stated above. Accordingly, there is no ground for interference with the Judgment of conviction and sentence dated 30.3. 2007 passed by Sri Om Prakash Sinha-II, Addl.District & Sessions Judge, F.T.C.V, Munger. 15. Accordingly, all the aforesaid three appeals fail. Bail bond of appellant Chhedi Singh, Ramkhelawan Singh( both in Cr.Appeal No.448 of 2007) and bail bond of appellant Chhotu @ Manhor Kumar @ Manhor Singh ( in Cr. Appeal No. 502 of 2007) are hereby cancelled. Dharnidhar Jha,J- I agree Patna High Court, Patna Dated : the 3rd March,2011 Nawal Kishore Singh/ N.A.F.R. Sd/- (Rakesh Kumar, J.) Sd/- (Dharnidhar Jha, J.)