GOVT. APPEAL (DB) No.11 OF 1988 ------- Against the judgment and order dated 24.11.1987 passed by Shri Mahmood Alam Mohnavi, 2nd Additional Sessions Judge, Rohtas in Sessions Trial No. 441/275 of 1986. ---------- The State Of Bihar ………………..Appellant Versus 1. Muneshwar Singh (dead), son of Dhanusdhari Singh, 2. Ram Ashrey Singh, son of Surya Singh, 3. Brijendra Singh, 4. Nagendra Singh, sons of Ramasis Singh, 5. Ram Asis Singh, 6. Ram Ekbal Singh, 7. Rame Kant Singh, sons of Saryu Singh, all residents of village – Jaipur, P.S. – Sasaram Mufassil, District – Rohtas …………….Respondents ------------ For the Appellant : Shri Lala Kailash Bihari Prasad, Senior Advocate (A.P.P.) For the Respondents : S/s Ajay Kumar Thakur, Raghunandan Kumar Singh, Advocates. ------------ P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE BIRENDRA PRASAD VERMA ------------ Dharnidhar Jha & B.P. Verma, JJ. This Government Appeal questions the propriety of judgment and order of acquittal passed by the learned 2nd Additional Sessions Judge, Rohtas at Sasaram on the 24th day of November, 1986 in Sessions Trial No. 441/275 of 1986. The seven respondents were put on trial for a composite charge under section 201/34 of the IPC and also under section 307 IPC read with section 149 of the IPC. Some of them were charged individually also. Respondent Ram Ashrey Singh was 2 charged under section 307 IPC for having caused injuries by firing a gun shot upon the informant Mahendra Singh, P.W. 12. Besides, respondents Ram Ashish Singh, Ram Ashrey Singh and Ramakant Singh were charged jointly for committing the offence of rioting as also of murder as regards causing all four deaths of Ram Dulari Devi, Urmila Devi, Kumari Rita and Kumari Sangita. Similarly, respondents Muneshwar Singh, Bijendra Singh and Narendra Singh were charged under section 147 of the IPC on account of having committed the offence of rioting. 2. The prosecution case, in brief, was that P.W. 12 along with four deceased named above, was coming to his house situated at village Jaipur after having consulted a doctor. He alleged that when he had reached at a particular place described in the FIR along with his family members, the four deceased and also his cousin brother Baleshwar Singh, all accused persons emerged from hiding and at the orders of Muneshwar Singh, the first shot was allegedly fired by Ram Ashrey Singh, which hit P.W. 12 below his left knee joint. The two ladies, namely, the aunt and wife of the informant implored the accused persons not to kill the informant. In the meantime, the cousin brother of the informant, namely, Baleshwar Singh (P.W.1), who was moving ahead of the informant, shouted and asked the informant Mahendra Singh to run away upon which the informant ran towards his village. He heard the sound of gun shots and, on that, many of his villagers were also attracted to the scene of the occurrence and he after some times claimed to have come to the place of occurrence to find that none of the deceased were there but two slippers of his aunt and wife were lying on the place of occurrence which were completely soaked in 3 blood. The informant alleged that the dead bodies of the deceased were recovered from the canal and one of the dead bodies, i.e., of Kumari Rita was completely shorn of muscles and it was almost a skeleton. 3. The fardbeyan of P.W. 12 was recorded at village Jaipur by P.W. 13, Chandrashekhar Prasad Singh who also investigated the case and sent up the respondents for trial. 4. The defence of the respondents was of false implication on account of some land dispute as may appear from the discussion of the same in the impugned judgment as also from the cross-examination of P.W. 12 especially the last paragraph of his evidence in which some suggestions were given to him. P.W. 12 was also suggested that he himself killed his own aunt as also his wife because he wanted the properties to be given to him and further that he wanted to marry another lady. 5. The prosecution examined as many as 14 witnesses in the case which included the two doctors, namely, P.W. 8, Dr. Devendra Tripathi who had examined the informant and had issued the injury certificate, Ext. 3. P.W. 9, Dr. Naresh Prasad Roy had held postmortem examinations on the three dead bodies and had prepared the reports, Ext. 4 to 4/2. 6. Out of other witnesses, P.W. 5, Amarnath Singh who was a witness of formal character, had proved the writings on the formal FIR, Ext. 2. P.W. 6, Sheoraj Paswan was the chowkidar of the village and he gave evidence that when he heard the sound of gun shot, he rushed towards the place of occurrence and while so coming, he found that respondent Ramakant Singh, Ram Ekbal Singh and Ram Ashrey Singh, were running a thresher and Bhuneshwar Singh and others were present 4 there. After the incident had taken place, the Mukhia of the village had stopped the running of the thresher. The evidence of this witness P.W. 6 has been utilized by the learned trial judge to arrive at a finding about non-participation of the above three respondents in the occurrence. The other witnesses gave eye witness account to the incident except P.W. 11 Ram Bahadur Singh who has almost supported the evidence of P.W. 6. 6. After considering the evidence of the prosecution, the learned trial judge recorded that the prosecution had not succeeded in establishing the charges and the possibility of false implication of the respondents on account of enmity due to land dispute may not be ruled out. 7. We have heard Shri Lala Kailash Bihari Prasad, the senior counsel who represents the state and also Shri Ajay Kumar Thakur, learned counsel appearing on behalf of the respondents. 8. As has just been pointed out, the case consists of the evidence of twelve witnesses who have given the evidence on different aspects of the case. We have mainly confined ourselves to the findings recorded by the learned trial judge after considering the evidence of the informant and others. After having considered the evidence of the informant, P.W. 12, what we find is that he initially had not divulged that it were the respondents who had fired shots and had committed the murder of three persons. We may profitably refer to the evidence of P.W. 12, appearing at page 100 of the paper book, where he stated that he did not divulge the name of any accused persons to any one out of fear at the place of occurrence. He has further stated that before giving his fardbeyan, P.W. 12 had narrated the incident and names of the respondents to his mother 5 and uncle Ram Barat Singh, P.W. 2. The evidence of PW 2 indicates that he had been told about the incident and participation of the respondents by P.W. 12, but the mother of the informant has not been examined. P.W. 12 has further stated that besides the two, he did not state the facts, especially about the participation of the respondents, to any one else. On further reading of the evidence of P.W. 12 at page 101, we find that he had met P.W. 13, S.I. Chandrashekhar Prasad Singh in village Amra Talab and had given full details of the occurrence to him but when we come to the recorded statement of P.W. 12, it appears that it was not recorded at village Amra Talab rather it was recorded at village Jaipur. As such, we find the argument of the learned counsel for the respondents weighty that the original report was suppressed or replaced by the present one only because the earlier report did not have the name of any one as an accused. 9. As regards the manner of occurrence, the witness appears cross examined in paragraphs 22 and 23 of his evidence and we find the manner in which and the distance from which the shots were appear being fired. It appears that the accused persons could be at minimum distance of about 20 ft. from the targets. But, the evidence of doctor, P.W. 9, indicates that the injuries which were recorded by him on the dead bodies, could have been caused from almost a point blank range. The injuries were found bearing blackened skin as may appear in the case of Kumari Rita. As regards the time of death, the evidence of P.W. 9 improbabilized the time of occurrence as stated by P.W. 12. In all the two cases except that of Ram Dulari Devi, the doctor has stated that deaths could have 6 occurred within a period of 36 hours. The postmortem was held just within 24 hours of the occurrence. In case of Ram Dulari Devi, the doctor was of the opinion that she could have been killed in between one and three days. Thus, the evidence of P.W. 9, Dr. Naresh Prasad Roy gives a death blow as regards the claim of the prosecution that, firstly, the assailants were at a distance of 20 – 50 ft and that the death was caused on 12.4.1986 at around 6.45 P.M. 10. What we further find is that the informant claimed being hit by a gun shot on his left leg below his knee joint but, when we considered the evidence of P.W. 8, Dr. Devendra Tripathi, we find that it was an abrasion measuring ½” x ½” on the left knee joint medially. The doctor did not give the time at or around which the injury to P.W. 12 could have been caused. The doctor has given the time of injury as 24 hours, which on computation, improbabilizes the time of occurrence which was alleged by P.W. 12. More over, the evidence of P.W. 8 indicates that the injury was simple and was caused by some hard and blunt substance. 10. We have serious doubt that the informant had been hit by any gun shot and this is the reason that one of the witnesses, i.e., P.W. 2 in paragraph 9 at page 16 of the paper book, has stated that there was already an injury on the leg of P.W. 12, Mahendra Singh and he had gone to consult the doctor in Dehri. We have some good reasons to note that might be, that P.W. 12 had utilized the injury which already existed on his person for foisting a wrong and false charge. 11. After having gone through the discussion of evidence, we come to the conclusion that the view which was taken by the learned trial judge 7 was also a possible view. We could not be shown any element of perversity which could be afflicting the impugned judgment and in that light, we find the appeal of no merit, the same is dismissed. 12. All the respondents had executed bonds at the orders of this court. They shall stand discharged from their respective bail bonds. (Dharnidhar Jha, J.) (Birendra Prasad Verma,J.) Patna High Court, The 22nd February, 2010 NAFR/Anil/