CRIMINAL APPEAL (DB)No.347 OF 2003 ---- Against the judgment and order dated 31.07.2003 Passed by Sri Nirmalesh Chanda Lala (Ad-hoc Sessions Judge), Presiding Officer, Additional Court No.2, Patna (Fast Track) in Sessions Trial Case No.432/1986/513 of 2001. ---- 1. BABU RAM TIWARY, S/O LATE RAM LAKHAN TIWARY 2. SUBHAS SINGH, S/O LATE KAMLA SINGH 3. SURESH SINGH, S/O RAJGIR SINGH 4. DEVENDRA SINGH S/O LATE KAMLA SINGH 5. RAMJI TIWARY, S/O LATE RAM LAKHAN TIWARY 6. JANARDAN TIWARY, SON OF LATE RAM PRAVESH TIWARY 7. VIJAY SINGH SON OF LATE CHANDESHWAR SINGH 8. DINESH TIWARY SON OF LATE RAM PRAVESH TIWARY ALL RESIDENTS OF VILLAGE MAKDUMPUR, POLICE STATION BIHTA, DISTRICT PATNA. ... ... APPELLANTS. Versus THE STATE OF BIHAR ... ... OPPOSITE PARTY. WITH CRIMINAL APPEAL (DB) No.353 OF 2003 ---- ARUN KUMAR @ ARUN KUMAR SINGH, SON OF LATE RAMANAND SINGH, RESIDENT OF VILLAGE MAKDUMPUR, POLICE STATION BIHTA, DISTRICT PATNA. ... ... APPELLANT. Versus THE STATE OF BIHAR ... ... OPPOSITE PARTY. ---- WITH CRIMINAL APPEAL (DB) No.368 OF 2003 ---- BIJENDRA SINGH SON OF LATE KAMLA SINGH, RESIDENT OF VILLAGE MAKDUMPUR, POLICE STATION BIHTA, DISTRICT PATNA. ... ... APPELLANT. Versus THE STATE OF BIHAR ... ... OPPOSITE PARTY. ---- For the Appellants : M/S Akhileshwar Prasad Singh,Advocate Ramesh Prasad Singh, Advocate For the Informant : Mr. Shiv Shankar Prasad Singh,Advocate For the State : Mr. Ashwini Kumar Sinha, A.P.P. ---- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- - 2 - Rakesh Kumar,J. All the three appeals arise out of the same judgment of conviction and sentence and as such all the three appeals were heard together and are being disposed of by this common judgment. 2. The aforesaid appeals have been preferred against judgment and conviction dated 31.7.2003 passed in Sessions Trial No.432/1986/513 of 2001 by Shri Nirmalesh Chandra Lala (Ad-hoc Sessions Judge), Presiding Officer, Additional Court No.2, Patna. 3. The appellant Bijendra Singh in Cr. Appeal No.368 of 2003 was convicted under Sections 302, 307 and 201 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code, rigorous imprisonment for five years for the offence under Section 307, rigorous imprisonment for five years under Section 307/34 of the Indian Penal Code and rigorous imprisonment for two years under Section 201 of the Indian Penal Code. It was directed that sentence would run concurrently. 4. All the appellants in rest of two appeals were convicted under Section 307/34 of the Indian Penal Code and sentenced to undergo - 3 - rigorous imprisonment for five years under Section 307/34 of the Indian Penal Code. 5. Short fact of the case as per the fardbeyan of Smt. Lalmati Devi (P.W.5) is that on 2.4.1985, the accused persons started to cut Mahua tree, which was standing on the land of informant through labourer. It was alleged that the occurrence regarding cutting of the tree started from 12.00 Noon on 2.4.1985. At the relevant time, as per informant, Murari (P.W.1) and Tungnath (not examined), both sons of the informant had gone to Bihta and Neora and informant had gone to Khagaul for bringing medicine for daughter-in-law. The informant at about 3.00 P.M. got down from a train at Neora Railway Station and thereafter, she started to move towards her house. In the meanwhile, she met her daughter Renuka Devi (P.W.2) and son Murari (P.W.1). She was informed by Murari that the tree was being cut by the accused persons and while Murari went there, he was chased by the accused persons. Thereafter, the informant along with her son and daughter proceeded towards their house and on way, they met Tungnath. Tungnath also informed the informant that their ancestral khatiyani tree was being cut by the accused - 4 - persons. However, all the four persons went to their house. It was further disclosed by the informant that at about 5.00 P.M., Tungnath proceeded towards the place of occurrence where the tree was being cut. He was followed by Murari and thereafter, the informant and Renuka Devi with her one month child also moved to the place of the occurrence. After their arrival, they saw accused Bijendra Singh (appellant in Cr. Appeal No.368 of 2003) armed with gransa. Arun Kumar @ Arun Kumar Singh (appellant in Cr. Appeal No.353 of 2003) armed with gransa, Sriram Tiwari armed with farsa, Babu Ram Tiwari, Janardan Tiwary armed with farsa, Ramanand Singh armed with gransa, Suresh Singh, Devendra Singh, Subhash Singh, all armed with gransa, Chandeshwar Singh armed with lathi, Bijay Singh armed with farsa along with Ram Ratan Singh and Ram Nagina Singh. After noticing the informant and her family members, accused Ram Ratan Singh and Nagina Singh instigated other accused persons for assaulting the informant. Thereafter, accused Bijendra Singh hurdled gransa blow on the informant. However, she saved herself from the blow but the gransa blow struck the one month baby, who was in the lap of informant. Thereafter, second blow of - 5 - gransa was given to the informant which hit her forehead as well as below her eye brow portion. It was alleged that after getting the farsa blow, one month old baby fell down from the lap of informant and she died. Thereafter, the informant lifted the child, but she was no more by that time. Subsequently, accused Bijendra snatched the dead child from her and fled away with her dead body. The informant further disclosed that in the said occurrence, accused Suresh Janardan Tiwari and others assaulted Tungnath and accused Babu Ram Tiwari, Sriram Tiwari and others assaulted Murari. As per in formant, the said occurrence continued for about one hour. In the meanwhile, hundreds of villagers assembled there and then accused persons fled towards western Badhar in the same direction to which accused Bijendra Singh had fled. The villagers took the injured sons and daughter of the informant to Neora hospital. It was disclosed by the informant that since in her house, there was no body, the informant could not go for her treatment at that time. On the same date at 20.45 hours fardbeyan of informant Lalmati Devi was recorded by Shri D.N. Raju, the Sub Inspector of Police-cum- Officer-in-charge, Bihta Police Station. The - 6 - fardbeyan was recorded in the house of the informant. On the basis of fardbeyan of Smt. Lalmati Devi, a formal first information report was drawn on 3.4.1985 at 00.30 hours. After registering the F.I.R., police investigated the same and thereafter, charge sheet was submitted. Subsequently, cognizance in a case was taken for the offence under Sections 307, 302, 324, 147, 148, 149, 323 and 201 of the Indian Penal Code. The case was committed to the court of Session by order dated 14.3.1986 passed by Judicial Magistrate, Danapur. Finally, the aforesaid appellants were put on trial. 6. In this case, against all the accused persons, charges were framed for the offence under Sections 307, 302 and 149 of the Indian Penal Code. However, in addition to aforesaid charges, the appellant Bijendra Singh was further charged for the offence under Sections 302, 201 and 307 of the Indian Penal Code. During the trial to prove the prosecution case, prosecution examined altogether ten witnesses. During the trial, the accused persons also got some witnesses examined as defence witnesses and altogether four witnesses were examined as defence witnesses. Out of ten P.Ws., P.Ws.1, 2, 4 - 7 - and 5 have been examined as eye witnesses to the occurrence. P.W.6 Bhagwan Singh and P.W.9 Lal Babu Singh were seizure witnesses. P.W.9 has turned hostile. P.W.7 Dr. B.N. Choudhary had examined the injuries of the witnesses. P.W.8 Shri Ramashish Raut is the Investigating Officer of the case and P.W.10 Rajdeo Singh has also turned hostile during the trial. 7. P.W.1 Murari Singh, who is son of the informant (P.W.5) stated during the trial that on the date of occurrence at 12.00 Noon, he noticed that in his orchard accused persons had surrounded his Mahua tree and some labourers were cutting the tree through axe. It was further stated that accused persons were armed with farsa, gransa and lathis. P.W.1, when enquired from accused persons then he was chased by the accused persons and thereafter, any how, he rushed to his house and from his sister Renuka Devi (P.W.2) about his mother and also disclosed regarding the occurrence to his sister. Subsequently, he along with his sister Renuka Devi went to railway station with an object to meet their mother i.e. informant and on way, they met with her mother and disclosed all the episode to her. Thereafter, they were returning to their - 8 - house and on way P.W.1 met with his brother Tungnath and he was also informed about the occurrence. On listening the said fact Tungnath said that he will ask the accused persons as to why they are cutting his tree. Again all the four persons came out from their house. At that very time, the sister of P.W.1 Renuka Devi was carrying her one month old female baby in her lap. However, on the way, the mother of P.W.1 took the baby from his sister’s lap and thereafter, they reached near his tree at about 5.00 P.M. The mother of P.W.1 when enquired from the accused persons as to why they were cutting the tree, immediately thereafter, the appellant Bijendra Singh picked up his gransa and inflicted the same on his mother. However, the said blow hit the nephew of P.W.1 on her neck. The nephew of P.W.1 was in the lap of his mother (informant) and thereafter, the baby fell down. While his mother was going to lift the baby, the appellant Bijendra Singh again gave gransa blow which hit on left forehead of her mother and she received a cut injury and appellant Bijendra Singh snatched the nephew of P.W.1 from his mother (informant). In the said occurrence, his brother Tungnath was assaulted by Suresh Singh, Jagdeo, Sriram Tiwari, - 9 - Babu Ram Tiwari, Ravindra Prasad Singh through farsa and gransa and thereafter, they also assaulted P.W.1. It was specifically stated by P.W.1 that he was also brutally assaulted. He claimed that the accused persons were also assaulting his sister. He categorically stated that the accused persons brutally assaulted them and thereafter, they threw them, but none of the villagers, who had assembled there, saved him. After the accused persons had fled away, the villagers and Chaukidar carried them to Neora hospital. He stated that his nephew was taken away by appellant Bijendra Singh and thereafter, she become traceless. Almost in the same term, P.Ws.2, 4 and 5 have supported the prosecution case. 8. Shri Akhileshwar Prasad Singh, learned counsel appearing on behalf of appellants Bijendra Singh, Subhash Singh, Devendra Singh, Bijay Singh and Arun Kumar @ Arun Kumar Singh submitted that the appellants were falsely implicated in the case. It was submitted that the Mahua tree, which was the cause of the alleged occurrence, was actually appellants’ tree. The said tree was standing over a peace of land, which was purchased by the grand father of the - 10 - appellants long back in the year 1927 through a sale deed. He has also taken a defence that the entire prosecution case is liable to be set aside only on the ground that the prosecution has suppressed the fact regarding injuries caused on the person of the appellants. He submits that while the member of prosecution side were opposed by the appellants from cutting the Mahua tree, the occurrence had taken place and in the said occurrence, one of the appellants, namely, Ramji Tiwari received serious injuries. His fardbeyan was recorded, while he was admitted in a hospital at Patna City and on the basis of his fardbeyan, an F.I.R. vide Bihta P.S. Case No.76 of 1985 was registered. He submits that even injuries received by the appellants in the said occurrence were completely suppressed by the prosecution and on the ground of suppression of material fact, he submits that entire prosecution case has become doubtful. The F.I.R., which was registered as per instance of the appellants was got exhibited as Ext.F. He further submits that in view of evidences which have been brought on record in the present case, offence under Section 307 of the Indian Penal Code is not made out. He has taken the stand that it is the prosecution case - 11 - that about 13 accused persons variously armed with farsa, gransa and lathis had surrounded the prosecution parties, who were very less in number. Virtually, out of five prosecution witnesses, P.Ws.2 and 5 were female. P.W.3 was a child aged about 3 or 4 years and P.W.5 Phalendra Sharma was also of the age in between 12 and 14 years. He submits that had there been intention to kill any member of the prosecution party there was no hurdle to achieve their object. The prosecution witnesses have categorically stated that said occurrence continued for about one hour. Shri Singh submits that having such weapon in their hand in such a long duration, the appellants would have killed all the five members of the prosecution team, had there been any intention to commit murder in the case. He further submits that injury reports which have been brought on record, though not admissible, itself indicates that none of the injuries can be considered to be an injury given with intent to kill any of the injured person. So far as injury report, which has been brought on record in relation to injury sustained by Tungnath is concerned, he submits that in absence of Tungnath, his injury report has got no relevance. - 12 - He submits that with some oblique motive, the prosecution has intentionally with hold injured Tungnath and he was not produced to support the prosecution case. Shri Singh further submits that though the informant and other witnesses have claimed that the said occurrence was witnessed by several villagers, but during the trial, none has come forward to support the prosecution case. In the present case, P.Ws.1, 2, 4 and 5 are family members and as such they were interested witnesses. P.Ws.1 and 4 are sons of P.W.5 Lalmati Devi. Similarly, P.W.2 is daughter of P.W.5 Lalmati Devi. He further submits that only with a view to illegally grab the land of appellants, the prosecution has built up the present case against the appellants, who are real title holder of the land in question over which the Mahua tree was standing. 9. Shri Singh has also questioned the prosecution case on the ground that at the place of occurrence, blood stain was not found in the quantity as it was expected from the alleged place of occurrence. It was the case of prosecution that one month old baby, who was in the lap of informant, received gransa blow and thereafter, she fell down from the lap. It was - 13 - expected that on the place of occurrence, a huge quantity of blood stain would have been found, but same was not found during the investigation. In the said occurrence, besides killing of one month old baby, it was also alleged that almost all the family members of the informant, who were present at the place of occurrence, had received serious injuries, but no such blood mark was found at the place of occurrence. 10. While challenging the judgment of conviction and sentence, Shri Akhileshwar Prasad Singh has further submitted that the story built up by prosecution regarding the killing of one month old baby in the occurrence is completely doubtful and not believable. By referring to the evidence of P.W.5 and particularly P.W.2, he has argued that it is not probable that in case of forcefully snatching of a baby of one month from the lap of her mother or her grand mother, the mother or grand mother will not behave in a manner as has been noticed during the investigation as well as during the trial of the present case. Though, the mother of said deceased baby had received injuries, which were simple in nature, instead of rushing to the police for the search/recovery of the dead body of her baby, she - 14 - preferred to go to the hospital. Similarly, grand mother (P.W.5) of the deceased baby has also returned to her house on the plea that she remained at her house since there were no other family members at her house. 11. Shri Singh has also referred to paragraph-23 of the deposition of P.W.2, Renuka Devi and stated that P.W.2, who was mother of the deceased baby herself, has admitted that no one tried to kill the baby. Of course, she had taken the plea that in the occurrence, all the members of the prosecution party were being assaulted. P.W.2 has also stated in paragraph-23 of her deposition that her mother was not given even a single blow from the gransa. However, P.W.5 and other witnesses have stated regarding blow being inflicted on P.W.5 by gransa. 12. Shri Singh, learned counsel for the appellants has further referred to paragraph- 3 of deposition of P.W.5 and submits that p.W.5 herself had admitted that after the occurrence, co-villagers and Chaukidar carried her son and daughter to Neora Hospital. However, she remained at her house since there were none in her house. He submits that in a situation where a one month old baby had received injuries from farsa in the - 15 - occurrence and thereafter, the accused forcibly took the baby and fled away from the occurrence in a natural course, the conduct of mother of the baby i.e. P.W.2 as well as grand mother of the baby (P.W.5) shows that the story of false killing of so-called one month old baby was concocted by the prosecution with an evil eye to grab the land of the appellants. 13. Learned counsel for the appellants has also taken a plea that the entire prosecution case becomes doubtful only on the ground that the prosecution side has suppressed the fact that on the alleged date of occurrence, son of P.W.5, namely, Tungnath and P.W.1, Murari were forcibly cutting the Mahua tree, which was standing over the land of the appellants side and while Appellant No.4 in Cr. Appeal No.347 of 2003 objected, he was brutally assaulted by Tungnath and P.W.1 and he received serious injuries on his person along with Ramji Tiwary, his servant, Sri Pandit was also assaulted in the said occurrence and thereafter, he was admitted in a hospital where his fardbeyan was recorded and on the basis of his fardbeyan, an F.I.R. vide Bihta P.S. Case No.76 of 1985 was registered. The copy of F.I.R. was got exhibited at the defence stage vide - 16 - Ext.E. In Ext.E, Tungnath and P.W.1 were named along with 10-15 unknown accused persons by the appellant Ramji Tiwary. The said F.I.R. was registered for the offences under Sections 147, 148, 149, 307 and 323 of the Indian Penal Code. 14. Shri Singh, learned counsel appearing on behalf of the appellants aforesaid has also submitted that in view of the evidences, which have been brought on record besides the case under Section 302 of I.P.C. relating to murder of one month old alleged baby of P.W.2 has become suspicious and doubtful. Injuries, which were received by the members of prosecution party, does not make out a case warranting application of Section 307 of the Indian Penal Code. Learned counsel has referred to injury reports, which have been marked as Ext.1 relating to injuries of Smt. Lalmati Devi (P.W.5), Ext.1/1, injury report of Krishna Murari (P.W.2) and Ext.1/3, injury report of Renuka Devi (P.W.2). He submits that the injuries, which were noticed by the doctor i.e. P.W.7, is itself sufficient to prove that the appellants never intended to kill any one in the occurrence. Referring to injury report of P.W.2, learned counsel has submitted that the injuries were - 17 - found as simple in nature. Similarly, injury report of P.w.1 makes it clear that he had received only two injuries, one of which was incised wound and second was swelling. The injury report of P.W.5 further makes it clear that all the injuries, which were found on the person of P.W.5, were simple in nature. So far as injury report of one Tungnath, which has been marked as Ext.1/2 is concerned, learned counsel for the appellants has argued that in absence of evidence of Tungnath, the injury report of Tungnath has got no relevance in the present case. Moreover, he submits that the prosecution has purposely with hold the evidence of Tungnath. Accordingly, on the basis of nature of injuries, which were found on the person of members of prosecution party, learned counsel has submitted that all the appellants have been incorrectly and wrongly convicted and sentenced for the offence under Section 307/34 of the Indian Penal Code. In the present case Section 307 of I.P.C. is not applicable. 15. Shri Akhileshwar Prasad Singh, on the basis of evidence brought on record, has argued that the appellant Bijendra Singh was incorrectly held guilty for the offence under - 18 - Sections 302 and 201 of the Indian Penal Code. He has argued that none of the witnesses have come out with reliable evidence regarding the existence of so-called one month old baby at the time of occurrence. He submits that D.W.3, Mewalal pandit, who was Compounder of Dr. Rameshwar Lal had specifically deposed that in the clinic of Dr. Rameshwar Lal, the P.W.2, Renuka Devi never delivered any child. However, in her cross examination, P.W.2 had taken a plea that she had delivered a female child in the clinic of Dr. Rameshwar Lal. 16. Shri Ramesh Prasad Singh, learned counsel appearing on behalf of the appellants Babu Ram Tiwary, Janardan Tiwary and Dinesh Tiwary in Cr. Appeal No.347 of 2003, while challenging the impugned judgment and conviction has taken the following defence : (i) No occurrence has taken place in the present case as has been alleged by the prosecution, (ii) The prosecution has miserably failed to prove the genesis of the case, (iii) The injury reports which have been brought on record by the prosecution side are indicative of the fact that it was not even a case for offence under Section 307 of the Indian Penal Code, (iv) In absence of - 19 - evidence of local witnesses, the trial court was required to refrain from relying on the evidence of only family members of informant i.e. P.W.5, (v) The story, which has been built up by the prosecution in the present case, is completely absurd and it cannot be reasonably believed as true, (vi) The prosecution purposely with hold the blood stain cloth during the trial and (vii) The conduct of Investigating Officer, who has been examined as P.W.8, was not fair. 17. Shri Ramesh Prasad Singh, while creating doubt in respect of conduct of P.W.8 i.e. Investigating Officer, has mainly referred to paragraphs 28, 29, 34, 35, 36 and 37 of the evidence of P.W.8. He has argued that the distance, which was covered by the Investigating Officer within the time mentioned in the case diary after receiving the information and arriving at the place of occurrence, creates a reasonable doubt on the conduct of P.W.8. He has doubted that it was not possible for the Investigating Officer to reach the place of occurrence which was not motorable and was at very long distance from the police station. He further submits that injury report makes it clear that it was not a case of an attempt to murder - 20 - any member of the prosecution party. He has argued that since Tungnath was with hold by the prosecution and he was not examined as a witness, on the basis of his injury report i.e. Ext.1/2,