CRIMINAL APPEAL No.507 OF 1988 With CRIMINAL APPEAL No. 508 OF 1988 --------- Against the judgment and order of conviction and sentence dated 30th July, 1988 passed in S.T. No. 136 of 1986 by Shri Bhawesh Kumar Derhgawen, Ist Additional Sessions Judge, Barh. ---------- Cr. Appeal No. 507 of 1988 Vijoy Ram, son of late Kameshwar Prasad alias Kameshwar Ram, resident of village Bhatgaon, P.S. – Barh, District – Patna ………. Appellant Cr. Appeal No. 508 of 1988 Sudhir Ram, son of Subedar Ram, resident of village – Bhetgaon, P.S. Barh, District – Patna ………… Appellant Versus The State of Bihar …….. Respondent (in both the appeals) ---------- For the Appellants : Shri Aruni Singh, Amicus Curiae For the State : Sushri Shashibala Verma, APP --------- P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ---------------- Dharnidhar Jha & Dinesh Kumar Singh, JJ. The two appeals arise out of the judgment dated 30th July, 1988 passed by the learned Ist Additional Sessions Judge, Barh in Sessions Trial No. 136 of 1986 in which the two appellants, one each in each of the appeals were tried for charges under sections 2 302, 323/34 of the Indian Penal Code and section 27 of the Arms Act. Appellant Sudhir Ram had distinctly been charged under sections 302 of the IPC and section 27 of the Arms Act. Appellant Vijoy Ram was found guilty of offence under section 302/34 and was directed to suffer R.I. for life, for two years and one year respectively under the above counts his conviction. Appellant Sudhir Ram was found guilty under section 302 of the IPC and 27 of the Arms Act and, accordingly, he was directed to suffer R.I. for life and also for two years under the two respective above counts. 2. The informant of the case Ram Pyari Devi was the wife of deceased Nand Kishore Prasad. She alleged that she along with the deceased and their three minor children were sleeping over the roof top of their house. At about 1.30 A.M. the informant woke up on hearing some sound and found that the two appellants had put their pistols upon the body of the deceased while the third unknown were standing with chhoora. The informant raised a halla upon which she was gagged with the help of her own sari. Her two daughters P.W. 2 Pushpa Kumari and Dharmsheela Kumari (reportedly dead) also woke up and started raising halla. They were also assaulted and put down on the ground. It is alleged that the informant was given a blow over her left eye by the butt of the pistol. Thereafter, all the accused persons turned towards the deceased and appellant Sudhir Ram fired a shot at him whereas the unknown accused dealt chhoora blows to the deceased. After having committed the offence the three 3 accused persons left the scene of the occurrence by getting down from the terrace of the house. 3. It was stated that P.W. 1 Madan Kumar, the son of the informant had hid himself on the roof itself and that the occurrence had been seen by her three children. It was further stated that some other persons also came there after the occurrence. 4. As regards the motive for the commission of the offence, it was stated that there was a well in front of Darwaja of the deceased and for that there was some dispute between the two appellants and her husband and Debar, P.W. 4 Brijnandan Mahto, and that dispute had resulted into a suit which was pending on the date of the incident. Appellant Sudhir Ram allegedly had threatened the informant that she or her daughter-in- law shall be rendered widow and had been seen on 22.4.1985 at around 4 P.M. loitering around her house on its western side by P.W. 4 and Dharmsheela Kumari, the daughter of the informant. 5. On the basis of Ext. 4, the fardbeyan of the informant, FIR of the case Ext. 5 was drawn up and investigation was taken up by P.W. 6 Krishnadeo Prasad who was, on that date, the S.I. of Barh Police station. He has stated in his evidence that he went to the village of occurrence on getting an information from the chowkidar and recorded the fardbeyan, Ext. 4 in presence of one Ravindra Prasad Sinha and, thereafter, took up the investigation himself. He inspected the place of occurrence, i.e., brick built house of the 4 deceased and found the dead body lying on the roof top. Accordingly, he held inquest upon the dead body by preparing inquest report Ext. 6. The house, at the roof of which dead body was found, was facing east and the staircase was in the western part of the house. There was a Jhopri like structure on the north eastern corner of the roof and it had been walled by simply stacking bricks on three sides of it. According to P.W. 6, he found the dead body inside the Jhopri and also found copious blood on bed which was spread inside it as also on the roof. Besides, he found blood splashed all over the roof as also on the adjoining structure besides the tiles of a roof of the neighbouring house. He seized the blood stained tiles, bed as also a piece of plaster of the roof by preparing seizure memo Ext. 7. He sent the dead body for postmortem examination and after completing investigation, submitted charge sheet sending up the accused for trial. 6. It may not be out of place to mention that it was not in dispute that the deceased Nand Kishore Prasad was shot and killed. That conclusion is enforced by the evidence of Dr. Shanker Prasad Deokuliar who found two gun shot injuries on the dead body while holding postmortem examination on it. One was oval lacerated wound of ½” in diameter, communicating with the chest inside, i.e., thorasic cavity and abdomen and was directed downwards, posteriously and to the right with vent in sternum of ½” in the middle of chest at the level of nipple. The doctor stated that the 5 margin of the wound was slightly charred. This evidence indicated that the shot was fired from a very close range. The other wound which was recorded by P.W. 5 was an elliptical lacerated wound ¾” x ½” deep communicating with the chest cavity on the back of right side at the upper part of the posterior axillary line. The doctor stated that the two wounds could be caused by a single shot as may appear from paragraph 13 of his evidence. Thus, it could be said that the wounds could be wound of entry and wound of exit caused by a single shot. 7. The support of the prosecution story comes from P.W. 1 and P.W. 2, namely, Madan Kumar and Pushpa Kumari who were the son and daughter respectively of the informant and who, as per her evidence, were sleeping with the deceased and the informant along with the other daughter of the informant Dharmsheela Kumari in the fateful night on the very roof which is the place of occurrence. The two witnesses have given eye witness account but, at the same time, they have stated that out of fright, they concealed themselves at two different places. P.W. 1 has stated that she concealed himself behind a pillar whereas P.W. 2 Pushpa Kumari has stated that she, after hearing the first gun shot, rushed behind a cot which was kept in standing position on the southern side of the Jhopri. The description of the place of occurrence which has been given by the I.O., P.W. 6, may indicate that there was neither a pillar nor a cot which could be found by him existing or kept at that particular roof top. He has 6 simply stated that three sides of the Jhopri had been walled by stacking the bricks. The witness P.W. 1 was cross examined extensively on the existence of the pillar and its dimensions and he has given some dimension which may also make it impossible to accept that there could be a pillar of the size which could be 2 – 3 ft. in height and 4 – 5 ft. in width. We cannot accept that story as propounded by P.W. 1 regarding the existence of a pillar. We might have considered it as one of the side of the story due to the stacking of bricks but, if we do it, then again keeping in mind that the dead body was found inside the Jhopri, the boy could never have seen as to who had done what acts inside the Jhopri while hiding as it could have created obstruction in his vision in a dark night by stacking of the bricks. 8. The other inherent improbability in the version of the two witnesses which we have confronted, is that the FIR which is the foundation of the prosecution case, does not contain any whisper as to there could be any source of light at that particular time on the roof top, rather, P.W. 2 has stated in the first line of her cross examination at page 15 that it was a dark night. Finding this difficulty in its case, the prosecution invented a story which was put on record through P.W. 4 Brijnandan Mahto. That story was initially introduced by P.W. 1 Madan Kumar when he stated that his uncle, who was also sleeping on the adjoining roof top, heard the cries of his mother or his sister, stood up to falsh a torch light as also to fling 7 a heavy stone article (Lorha) so as to frightening and scaring away the accused persons. This was an important part of the prosecution story and any reasonable person could have accepted it to be stated by the informant in the very initial version, i.e., the FIR, that Brijnandan Mahto had flashed the torch and that the informant or her children could have seen and identified the culprits in the flash of that particular light. That not being stated in the FIR and that being an improvement, as may appear from drawal of the attention of the witnesses to that particular fact which has been proved by P.W. 6, we find ourselves completely disinclined to believe that part of the story. 9. In addition to the above, what we find further is that the manner of occurrence which is stated by P.W. 1 or P.W. 2 or P.W. 4 may not be compatible to the objective findings of P.W. 6. P.W. 6 had, of course, found the dead body lying inside the Jhopri but the findings recorded by him while describing the place of occurrence gives an impression as if the deceased had been assaulted at a place which could be outside the Jhopri as there was copious blood outside the Jhopri which was splashed over the plastered surface of the roof. Besides, the wall of the roof and adjoining building and the tiles of the roof of the adjoining building were also found bearing splatters of blood. The description which has been given by P.W. 6 while describing the place of occurrence, gave an impression to our mind that may be, that the deceased was being chased and 8 assaulted and thereafter he fell down in the Jhopri in order to securing himself where he breathed his last. The other aspect is that the dead body was not bearing a choora injury. It was only bearing a single gun shot injury, as we have pointed out the same by making reference to the evidence of P.W. 5. That evidence of the doctor further belies the credibility of P.W. 1 and P.W. 2, the two eye witnesses when they stated that two shots were fired by the appellant Sudhir Ram. 10. It is true that Nand Kishore Prasad was murdered. The probability arises that there could be some other hands or some other person who could have done it. As such, there was a direction by superior police officer to investigate the conduct of other persons also. There was enmity between the father of Sudhir Ram and P.W. 4. He has admitted it in paragraph 5 of his evidence and that gives an inkling as to why the appellants could be roped in the present case. That appears more so, in view of the fact that motive of the occurrence which was alleged in the FIR, i.e., the dispute for the well between the two appellants and the deceased appears not established rather it stands falsified. P.W. 4 Brijnandan Mahto who, according to the FIR, was also a party to the above dispute, deposed in paragraph 6 that for the dispute for the well there was a title suit bearing T.S. No. 51 of 1983 which was pending before the Munsif, Barh and that suit was between Radhe Mahto and ors. Vs. Subebar Ram and ors. He has categorically stated that neither he nor his 9 deceased brother Nand Kishore Prasad was a party. If that could be a position on the litigation or dispute for the well, then it could be safely said that the motive stands disproved on the very evidence of the prosecution witness, Brijnandan Mahto. 11. Having said the above, we find that the conviction and sentence passed upon the two appellants of the two appeals were not sustainable in law. The same is hereby set aside. The two appeals are allowed. The two appellants are on bail, they shall be discharged from the liability of bail bonds. 12. We appreciate the efforts of Shri Aruni Singh, learned Amicus Curiae appearing for the appellants. He shall be entitled to a fee of hearing to be paid by the High Court Legal Services Committee. (Dharnidhar Jha, J.) (Dinesh Kumar Singh, J.) Patna High Court, The 19th July, 2010, N.A.F.R./Anil/