Criminal Appeal No. 981 Of 2007 Against the judgment and order dated 04.06.2007 and sentence dated 07.06.2007 passed by Sri Prodip Kumar Neogy, learned Additional Sessions Judge, Fast Tract Court No. – I, Sheohar at Sitamarhi in Sessions Trial No. 85 of 1996 / 100 of 2006. Chhuna Rai, Son of Late Chandeshwar Rai, resident of village – Tulsi Nagar, Police Station – Tariyani in the district of Sheohar. ------------------------ (Appellant) Versus THE STATE OF BIHAR ----------------------- (Respondent) With CR. APP (DB) No. 868 Of 2007 1. Snehi Rai, Son of Late Khelawan Rai. 2. Ram Faresh Rai, Son of Late Braj Nandan Rai. 3. Kishor Rai, Son of Snehi Rai. 4. Mauje Rai, Son of Late Shiwan Rai. All resident of village – Tulsi Nagar, Police Station – Tariyani, District – Sheohar. ------------------------ (Appellants) Versus THE STATE OF BIHAR --------------------- (Respondent) With CR. APP (DB) No. 992 Of 2007 Dharmendra Rai, Son of Ram Swarath Rai, resident of village – Tulsi Nagar, Police Station – Tariyani in the district of Sheohar. ---------------------- (Appellant) Versus The State Of Bihar --------------------- (Respondent) With CR. APP (DB) No. 994 Of 2007 Ramanand Mahto, Son of Late Nandu Mahto, resident of village – Tulsi Nagar, Police Station – Tariyari, District – Sheohar. ---------------- (Appellant) 2 Versus The State Of Bihar --------------- (Respondent) With CR. APP (DB) No. 802 Of 2007 Vishwanath Rai, Son of Late Banshidhar Rai, resident of village – Tulsi Nagar, Police Station – Tariyani, District – Sheohar. ------------------- (Appellant) Versus The State Of Bihar ------------------ (Respondent) With CR. APP (DB) No. 806 Of 2007 1. Ram Swarth Rai, Son of Late Baidyanath Rai. 2. Ram Lagan Rai, Son of Late Baidyanath Rai. Both are resident of village – Tulsinagar, P.S. – Tariyani, District – Sheohar. ------------------- (Appellants) Versus The State Of Bihar ------------------ (Respondent) With CR. APP (DB) No. 844 Of 2007 Jitendra Kumar Rai, Son of Kishori Prasad Yadav, resident of village – Tulsi Nagar, P.S. – Tariyani, District – Sheohar. ----------------- (Appellant) Versus The State Of Bihar --------------- (Respondent) With CR. APP (DB) No. 871 Of 2007 Shyam Nandan Rai, Son of Late Jai Mangal Rai, resident of village – Tulsi Nagar, Police Station – Tariyani, District – Sheohar. ------------------ (Appellant) Versus THE STATE OF BIHAR ----------------- (Respondent) 3 With CR. APP (DB) No. 893 Of 2007 1. Ram Binod Mahto, Son of Late Mandu Mahto. 2. Raja Ram Mahto, Son of Late Nandu Mahto. 3. Ajablal Rai, Son of Deeplal Rai. All resident of village – Tulsi Nagar, Police Station – Tariyari, District – Sheohar. ---------------- (Appellants) Versus The State Of Bihar ---------------- (Respondent) With CR. APP (DB) No. 945 Of 2007 Jitendra Rai, Son of Ram Lagan Rai, resident of Village – Tulsi Nagar, Police Station – Tariyani, District – Sheohar. --------------- (Appellant) Versus The State Of Bihar --------------- (Respondent) With CR. APP (DB) No. 902 Of 2007 Raj Kumar Rai, Son of Harbansh Rai, resident of Village – Tulsi Nagar, Police Station – Tariyani, District – Sheohar. -------------- (Appellant) Versus The State Of Bihar ------------ (Respondent) With CR. APP (DB) No. 995 Of 2007 Binda Rai, Son of Snehi Rai, resident of village – Tulsi Nagar, Police Station – Tariyani, District – Sheohar. ------------------- (Appellant) Versus THE STATE OF BIHAR ----------------- (Respondent) 4 For the Appellants :- Shri Rana Pratap Singh, Sr. Advocate. Shri Aruni Singh, Advocate. Shri Sumant Singh, Advocate. Shri Ashok Kumar Singh No. 3, Advocate. For the State :- Shri Ashwini Kumar Sinha, Advocate (APP). For the Informant :- Shri Manoj Kumar Ambastha, Advocate. Shri Udai Pratap Singh, Advocate. ----------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. All the criminal appeals have been heard together and being disposed of by the common judgment and order as all the appellants have preferred appeals against the order of conviction and sentence recorded in Sessions Trial No. 85 of 1996 / 100 of 2006 arising out of Tariyani P.S. Case No. 16 of 1994 (G. R. No. 60 of 1994). [Originally there were 21 named accused persons in the First Information Report out of which one accused Chandeswar Rai, son of Jainandan Rai died during the course of investigation. The co-accused Dukhit Rai, son of Pyare Rai and Kishori Rai, son of Bishundayal Rai died during the course of sessions trial at the stage after recording their statements under Section 313 of the Cr.P.C and so the case abated against them. Rest 18 accused persons on trial convicted have preferred the appeals as aforesaid. However, during the pendency of the 5 appeal, the appellants, Ram Snehi Rai and Ram Faresh Rai of Cr. Appeal (DB) No. 868 of 2007 died and hence appeal preferred by them held to have been abated by order dated 31.03.2011 passed in analogous appeals in Cr. Appeal (DB) Nos. 981 of 2007.] 2. Appellants Binda Rai, Dharmendra Rai, Jitendra Rai, son of Ram Lagan Rai, Ramanand Mahto and Chunna Rai have been convicted under Section 302 of the Indian Penal Code for the alleged murder of deceased Buni Lal Rai and have been sentenced to undergo rigorous imprisonment for life. Accused Ram Binod Mahto @ Bittan Mahto, Ajablal Rai, Raj Kumar Rai, Ram Swarth Rai, Vishwanath Rai, Ram Lagan Rai, Shyam Nandan Rai, Mauje Rai, Kishore Rai, Jitendra Rai, son of Kishori Prasad Yadav, Raja Ram Rai have been convicted under Section 302/149 of the Indian Penal Code and have been sentence to undergo rigorous imprisonment for life and further Ram Binod Mahto, Ajablal Rai, Raj Kumar Rai, Ram Swarath Rai, Vishwanath Rai, Mauze Rai, Ram Lagan Rai, Binda Rai, Jitendra Rai, son of Kishori Prasad Rai, Dharmendra Rai, Ramanand Mahto, Chhuna Rai, Kishori Rai, Jitendra Rai, son of Ram Lagan Rai, Raja Ram Mahto have further been convicted under Section 148 of the Indian Penal Code and have been 6 sentences to undergo rigorous imprisonment for two years and further Shyam Nandan Rai has been convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Accused Ram Binod Mahto, Ajablal Rai, Raj Kumar Rai, Jitendra Rai, son of Ram Lagan Rai, Raja Ram Mahto have been convicted under Section 307 of the Indian Penal code and sentenced to undergo rigorous imprisonment for seven years and further Ram Binod Mahto @ Bittan Mahato, Ajablal Rai, Raj Kumar Rai, Mauje Rai, Binda Rai, Jintendra Rai, son of Ram Lagan Rai, Ramanand Mahto and Chhuna Rai have been convicted under Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for three years and further appellants, namely, Ram Binod Rai, Bittan Rai, Ajablal Rai, Raj Kumar Rai, Snehi Rai, Ram Swarath Rai, Viswanath Rai, Ram Faresh Rai, Mauje Rai, Ram Lagan Rai, Binda Rai, Jitendra Rai, Son of Kishori Rai, Dharmendra Rai, Jitendra Rai, Son of Ram Lagan Rai, Ramanand Mahto, Rajaram Mahto, Chunna Rai and Kishor Rai convicted under Section 148 of the Indian Penal Code and appellant, namely, Shyamnandan Rai convicted under Section 147 of the Indian Penal Code and sentence to undergo rigorous 7 imprisonment for two years and one year respectively. However, it has been ordered that sentences shall run concurrently. 3. The prosecution case as alleged in the fardbeyan of the informant, Raj Kali Devi, wife of deceased Bunilal Rai is that she was sleeping in the night in between 03.03.1994 / 04.03.1994 at her Bathan where her husband Bunilal Rai (deceased) and her sons Upendra Rai (P.W. 4), Prabhu Rai (P.W. 2) and Kashi Kumar Rai (P.W. 1) were also sleeping. She got up on the sound of crying in the mid-night. She along with her son Upendra Rai came out of the house. In the moon-light as well as in the light of Lantern she identified Snehi Rai armed with Fersa, Binda Rai armed with gun, Chunna Rai armed with gun, Jitendra Rai, son of Kishori Rai armed with gun, Ram Lagan Rai, son of Baidyanath Rai armed with Fersa, Ram Swarath Rai armed with Fersa, Jitendra Rai, son of Ram Lagan Rai armed with gun, Shyam Nandan Rai, son of Jay Mangal Rai armed with Fatta, Dharmendra Rai, son of Ram Swarath Rai armed with pistol, Vishwanath Rai, son of Banshidhar Rai armed with Fersa, Rama Nand Mahto, Son of Nandu Mahto armed with gun, Raja Ram Mahto, son of Binod Mahto armed with gun, Kishori Rai, son of Bishun Dayal Rai armed with Fatta, Chandeshwar Rai 8 armed with gun, Raj Kumar Rai armed with gun, Ajab Lal Rai armed with gun, Mauje Rai armed with pistol, Dhukit Rai armed with Fersa, Kishore Rai armed with gun and Ram Faresh Rai armed with gun. Snehi Rai commanded to shoot at the old man as he does not transfer the land. On the command Vishwanath Rai entered into the house and started dragging Bunilal Rai the husband of the informant. Then Binda Rai, Chhuna Rai, Ramanand Mahto, Jitendra Rai and Dharmendra Rai fired one shot each at her husband causing injury to him. 4. The further case is that on receiving the gun shot injury by the five accused persons Bunilal Rai the husband of the informant fled away to adjoining room by the side of that room and there he fell down and died. 5. Further the case of the informant in the fardbeyan is that in the mean time Chandeshwar Rai caught the hand of the informant and dragged her and gave two slaps and got her seated near him. The son of the informant Upendra Rai (P.W. 4) ran to rescue his father (deceased) then accused Jitendra Rai, Raja Ram Mahto, Ram Binod Mahato, Raj Kumar Mahto and Ajablal Rai fired at Upendra Rai (P.W. 4) by which he got badly injured and fell down then Kishori Rai assaulted him by Farsa. 9 6. Further case of the informant in the fardbeyan is that her son Prabhu Rai (P.W. 2) was assaulted by Dhukit Rai with back of Farsa. On the sound of firing and Halla villagers rushed to the place of occurrence then the accused persons fled away towards the east. 7. The further case of the prosecution is that the motive for the occurrence is land dispute between the deceased Bunilal Rai and accused Shyam Nandan Rai, Chhuna Rai and others and litigations are going on between the parties. 8. The fardbeyan of the informant, Raj Kali Devi (P.W. 3) was recorded by the Investigating Officer, Bharat Kant Jha, S.I., P.W. 7, (Investigating Officer) on 04.03.1994 at about 3:30 A.M. at her Bathan at village Tulsi Nagar under Tariyani Police Station. The occurrence is alleged to have occurred on 04.03.1994 at 12:00 in the mid night. The said fardbeyan was forwarded to the Officer-In-Charge, Taryani to institute a case under Sections 302, 307, 324, 323 and 34 of the Indian Penal Code and 27 of the Arms Act on which First Information Report was lodged bearing Tariyani Police Station Case No. 16 of 1994 and Mr. B. K. Jha, S.I. took up the investigation of the case. 10 9. After investigation the charge-sheet was submitted, cognizance taken under various Sections under Sections 302, 302/149, 307, 323, 307, 148, 147 the Indian Penal Code and 27 of the Arms Act and case was committed to the court of Sessions. After hearing the parties the charges were framed against accused persons. 10. However, during trial 11 witnesses were examined by the prosecution. The witness examined are P.W. 1 Kashi Kumar Rai, P.W. 2 Prabhu Rai, both sons of the informant, P.W. 3 is Raj Kali Devi (informant) wife of the deceased Bunilal Rai, P.W. 4 Upendra Kumar, the son of the informant and the deceased, P.W. 5 Sia Devi a co-villager, P.W. 6 Dr. Vairo Singh who examined the injured P.W. 2, P.W. 7 is Bharat Kant Jha, the Investigating Officer, P.W. 8 Dr. Rajib Bhusan Sinha who proved the post- mortem report of deceased, P.W. 9 Yogendra Mahto who proved the post- mortem report of the dead body of Bunilal Rai deceased, P.W. 10 Dr. Basant Kumar Sinha who examined P.W. 4. 11. The documentary evidence adduced on behalf of the prosecution as Ext. 1 injury report of Prabhu Rai, Ext. 1/1 injury report of Upendra Rai, Ext. 1/2 is injury report of Upendra Rai dated 04.03.1994, Ext. 2 is the 11 fardbeyan of Raj Kali Devi informant, Ext. 3 is the carbon copy of the inquest report, Ext. 4 is the dead body challan, Ext. 5 is the seizure list of the blood stain earth and Ext. 6 is the post-mortem report. 12. The defence has also adduced both oral and documentary evidence. The oral evidence adduced on behalf of defence as D.W. 1 Ram Chandra Rai, Chaukidar and the documentary evidence adduced on behalf of the defence is Ext. A fardbeyan of Upendra Rai recorded by the S.I., B. K. Jha of Tariyani P.S. on 04.03.1994 at 3:00 A.M. at Narwara Hospital, Ext. B is para 81 of the case diary, Ext. C is page no. 75 of the case diary, Ext. D is the heading of the fardbeyan in English, Ext. E is the certified copy of the charge-sheet of Tariyani P.S. Case No. 221 of 1993 and Ext. 7 is the certified copy of the power of Tariyani P.S. Case No. 23 of 1993. 13. The defence of the accused persons as apparent from the suggestions made and the trend of cross-examination is that the appellants have falsely been implicated and the witnesses are tutored and have given false and fabricated statements due to the enmity or interestedness with the deceased and his son Upendra Rai. The further case of the defence is that the deceased and his son Upendra Rai (P.W. 4) were in company of the criminals 12 and the villagers used to protest the criminal activity of the deceased and Upendra Rai. There was a fight amongst the group of criminals in which the deceased and his son got injured. The informant has not seen the occurrence and her statement were not recorded at her Bathan. The fardbeyan has been recorded much after the occurrence. Upendra Rai has criminal antecedent and is serving sentence in jail on his conviction in a murder case and the accused persons have been falsely implicated out of the enmity due to the previous litigation between the parties. 14. After considering the oral and documentary evidence and considering the defence as well as submissions of the parties the trial court convicted and sentenced the appellants as stated above and hence this appeal. 15. Learned counsel for the appellants has challenged the judgment and order of conviction and sentence and has contended that the earliest version of the prosecution case has been withheld by the prosecution. The station diary entry on the statement of Chaukidar, on the basis whereof the police proceeded, has not been proved. Neither the Chaukidar has been examined during trial by the prosecution, nor the witness in the neighbourhood who came to the place of occurrence just after the occurrence 13 have been examined nor even the witnesses named in the charge-sheet having residence and Bathan adjacent to the place of occurrence have been examined. The prosecution case has been developed from stage to stage. According to the Chaukidar, the name of the accused was not disclosed by the prosecution just after the occurrence when he reached to the place of occurrence. Ext. A, the fardbeyan of Upendra Rai (P.W. 4) recorded at 3:00 A.M. mentions the name of 10 accused persons without any description of role attributed to accused where as the fardbeyan of Raj Kali Devi recorded at 3:30 A.M. mention the name of 21 accused persons in more detail. The First Information Report on the basis of fardbeyan of Raj Kali Devi lost its significance in view of Ext. A, as hit by Section 161 of the Cr.P.C. It has further been contended that the witnesses are interested and inimical and their evidence suffer from inherent improbabilities, contradiction and development from stage to stage. There is no corroboration to the prosecution story either about manner of occurrence or about implication of accused persons and no independent witness has come forward to support the prosecution case on any part of the prosecution story. Hence the prosecution has not been able to 14 prove the charges beyond reasonable doubts by cogent, reliable, reasonable and unimpeachable evidence. 16. Learned counsel for the State and the learned counsel for the informant, however, contended that the witnesses has supported the prosecution case in material particular and merely because the witnesses are interested and inimical their evidence cannot be outright rejected and Ext. A itself appears to be doubtful in view of the evidence of Investigating Officer and 3:00 A.M as mentioned in recording Ext. A may be a mistake for 8:00 A.M. Subsequent evidence of the Investigating Officer on recall rectified the mistake that 3:00 A.M. wrongly mentioned in Ext. A for 8:00 A.M. and hence the prosecution has proved the charges beyond reasonable doubts. 17. Hence, on the respective submissions of the parties, the question for consideration is whether the prosecution has proved the charges beyond reasonable doubts. 18. P.W. 3 is the informant and in her evidence has stated that the occurrence took place on 04.03.1994 at 12:00 P.M. in the mid-night. She was sleeping in a house at her Bathan along with her son Upendra Rai (P.W. 4), Prabhu Rai (P.W. 2) and Kashi Rai (P.W. 1). Her husband Bunilal Rai was 15 sleeping in the adjoining room. On the sound of firing and cry she got up. At that time the lantern was lighting at her house and it was a full moon night. All the four persons (informant and her sons) ran to the room of her husband. She saw Chhuna Rai armed with gun, Binda Rai armed with gun, Ramanand Mahto armed with gun, Jitendra Rai, son of Kishori Prasad Yadav armed with gun, Raja Ram Mahto armed with gun, Binod Mahto armed with gun, Mauje Rai armed with pistol, Dharmendra Rai armed with pistol, Jitendra Rai, son of Ram Lagan Rai armed with gun, Ajablal Rai armed with gun, Kishori Rai armed with gun, Ram Faresh Rai armed with gun, Snehi Rai armed with Farsa, Ram Lagan Rai armed with Farsa, Ram Swarth Rai armed with Farsa, Kishori Rai armed with Farsa, Vishwanath Rai armed with Farsa, Chandeshwar Rai armed with Garasa, Dhukhit Rai armed with Farsa. Snehi commanded to kill Bunilal Rai by firing as he does not execute deed with regard to the land. On the command, Vishwanath Rai caught hold of the husband of the informant to drag then the husband of the informant caught hold of pillar in the room. Then Chandeshwar Rai gave a Garasa blow on the nose of the husband of the informant due to which his hold on the pillar was lost. Thereafter, Chhuna Rai, Binda Rai, Ramanand Mahto, Dharmendra Rai, 16 Jitendra Rai son of Kishori Prasad Yadav at once fired at her husband by which he got injury and then he ran from that room to the adjoining room and fell down. When the informant rushed to save her husband then Chandeshwar Rai caught hold of her hand and got her seated and commanded not to make Hulla. When her son Upendra Rai rushed to save his father then accused Ram Binod Mahto, Raja Ram Mahto, Jitendra Rai, son of Ram Lagan Rai, Ajablal Rai, Raj Kumar Rai fired at Upendra Rai by which Upendra Rai got injured and fell down and thereafter Kishore Rai gave a Farsa blow on the left ear of Upendra Rai and Shyam Nandan Rai assaulted Upendra Rai by Farsa on his head and further Shyam Nandan Rai injured the abdomen of Upendra Rai by dagger and Dhukhit Rai assaulted her son Prabhu Rai with the back of the Farsa below his knee and when on the sound of firing the villagers rushed to the place of occurrence then the accused persons fled away towards the east and she claims to have identified in the moon-light as well as the light of lantern. 19. P.Ws. 1, 2 and 4 have also deposed verbatim, as P.W. 3 stated in her evidence, in a parrot like manner, to support the prosecution case. They also claims to be the eye witness with specific details as deposed by the 17 informant P.W. 3. In the cross-examination of these witnesses it is admitted that there was prior enmity between the prosecution and accused persons as both civil and criminal litigations are going on. Hence, the enmity is admitted. 20. The attention of P.W. 1 has been drawn for taking contradiction with regard to his earlier statement before the police. He has denied to have stated before the police that one person told to kill the old man then someone fired which hit his father and when his elder brother Upendra Rai was going to his father then someone fired at him by which he got injury and the contradiction has been taken from the Investigating Officer (P.W. 7) in para 21 that P.W. 1 Kashi Kumar stated before him that one person told to fire at the old man then someone fired by which his father received injury and died and had also stated before him that his elder brother Upendra Rai was going to his father then he was also injured by firearm by some one. Hence, the evidence of P.W. 1 is contradictory in material particulars about the involvement of accused persons. It is well settled the contradiction is a mode of discrediting a witness by drawing his attention with regard to his earlier statement before the police. Hence the evidence of P.W. 1 suffers from contradiction and hence evidence suffers in credibility. 18 21. P.W. 4 has also supported the prosecution case in parrot like statement as deposed by the P.W. 3. This witness has also stated that he was taken to Narwara Hospital but at Narwara Hospital he was not fully conscious and at that time police wanted to record his statement by force but he was not in a position to give his statement but the police got his signature by catching hold of his hand. He has further deposed that he found himself in full consciousness at S.K.M.C.H. His statement was recorded under Section 164 of the Cr.P.C. when he got full consciousness. However, the attention of this witness has been drawn in para 17 of his deposition with regard to his earlier statement before the police and the contradiction has been taken from the Investigating Officer in para 31 of the evidence of the Investigating Officer, P.W. 7. His evidence is found to be in contradiction of his earlier statement before the police. The claim of this witness that he was unconscious at Narwara Hospital stands falsified in view of Ext. A. However, this witness reluctantly admits in his evidence that he gave some statement to police and police got his signature by catching hold of his hand. However, the Investigating Officer has proved Ext. A his signature as well as the signature 19 of witnesses including the brother of P.W. 4 but that witness of Ext. A has been withhold by the prosecution. 22. In Ext. A it has been stated that he is giving his statement in injured state before the Daroga of Tariyani Police Station that today in the night he along with his two brothers Prabhu Rai and Kashi Rai was sleeping in the eastern room of the Bathan and his father was sleeping at another room of the Bathan then he got up as 12:15 A.M on the sound of firing and then heard the cry of his father “Upendra Rai get up someone has shot me” on which he came out of the house and identified Ramanand Mahto who