IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.599 of 2006 ***** Against the judgment of conviction and order of sentence dated 12th May, 2006 and sentence dated 16th May, 2006 passed in Sessions Trial No. 434 of 1990 passed by Additional Sessions Judge, Fast Track Court, IVth, Muzaffapur. ======================================================== 1. Bhagwat Rai, son of Late Dukhan Rai. 2. Mannu Rai, son of Late Ramlakhan Rai. Both residents of village- baji Usra, P.S.-Sakra, P.O.- Sunderpur, District- Muzaffarpur. 3. Parmeshwar Rai, son of Late Rampati Rai, resident of village – Lohargama, P.S.-Sakra, P.O.- Raja Pakar, District-Muzaffarpur. .... .... Appellants. Versus The State of Bihar .... .... Respondent. ========================================================== Appearance : For the Appellant/s : Mr. Aruni Singh Mr. Abhay Kumar Singh-1 Mr. Parmatma Singh Mr. Rajeev Ranjan Sinha Mr. Bela Singh For the Respondent/s : Mr. Awanish Nandan Sinha ========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT A.K. Trivedi, J. Challenge in this appeal is the judgment dated 12th May, 2006 and sentence dated 16th May, 2006 passed by Additional Sessions Judge, Fast Track Court, IVth, Muzaffapur in Sessions Trial No. 434 of 1990 whereby and where under appellant Bhagwat Rai has been found guilty for an offence punishable under Section 302 of the I.P.C. and 27 of the Arms Act and further been directed to undergo R.I. for life as well as fine of Rs.10,000/- in default thereof to undergo further imprisonment of one year under Section 302 of the I.P.C., R.I. for three year under Section 27 of the Arms Act. While the remaining two appellants, namely, Mannu Rai and Parmeshwar Rai have been found guilty for an offence 2 punishable under Section 302/149 of the I.P.C. and been directed to undergo each of them R.I. for life as well as fine of Rs.5000/- in default thereof to undergo further imprisonment for three months under Section 302/149 with a direction to run the sentences concurrently. There has been also a clause of set off as provided u/s 428 Cr.P.C. Ram Pukar Rai, (P.W. 7) gave his fardbeyan (Exhibit 4) on 30.09.1989 at Referral Hospital, Sakra at 10 P.M. disclosing therein that he along with his other family members Sonelal Rai, Mahesh Rai, Sipahi Rai, Satendra Rai, Upendra Rai, Gaya Rai, Ram Chandra Rai, Ram Nath Rai and others have come to Muzaffarpur to attend date of a 107 Cr.P.C. proceeding and during course of evidence, there was hot exchange of words in between them at one side with Bhagwat Rai and others at other side. During course of the return to their home, they reached at Sabha Chowk at 06:00 P.M. From there they came to Baji Chowk where they began to take tea, snacks at the refreshment shop of Rajendra Sah. Again Bhagwat Rai came and indulged in hot exchange. In midst thereof, Hawaldar has come and got the matter pacified. At that very time Permeshwar Rai of village Lohargama came over motorcycle over which Bhagwat Rai rode and then proceeded towards their house. At about 06:30 P.M., they proceeded towards their village and as soon as reached near “Malang Ashtan”, he saw 8/10 persons standing over which he flashed torch and identified Ram Lagan Rai, Bhagwat Rai, Channu Rai, Paras Rai, Jagannath Rai, Rajendra Rai, Lakhindra Rai, Jaddu Rai. Out of them Bhagwat Rai was armed with gun while remaining were armed with lathi and Bhala. No sooner than, on an order of Ram Lakhan Rai, Bhagwat Rai shot at Satan Rai as a result of which he sustained injury and fell down followed by another shot over Ram Chandra Rai who also sustained injury and fell down. He along with others ran away from there raising alarm. Then, thereafter, Bhagwat Rai and Mannu Rai 3 escape there from over motorcycle of Parmeshwar Rai while remaining escaped taking benefit of darkness. Thereafter, he along with others returned back and found the injured under grief of pain. On query, the injured have had narrated the event. Both the injured were taken to hospital and in midst of way they both died. Motive for occurrence has been shown as land dispute as well as social divergence. On the basis of the aforesaid fardbeyan, Sakra P.S. Case No.173/1989 was registered under Section 147/148/149/302/109 of the I.P.C. and 27 of the Arms Act followed with investigation and submission of charge sheet where upon cognizance was taken and consequent thereto the case was committed to the Court of Session and ultimately met with the conclusion which happens to be put under challenge. Here it looks pertinent to mention that one of the accused, who has been found guilty, namely Ram Lakhan Rai stood dead and thereafter the proceeding against him extinguished vide order dated 06.05.2006. Accused, Lakhindra Rai, Rajendra Rai, Machu Rai, Paras Rai were acquitted by the judgment impugned. The defence case as is evident from the mode of cross-examination as well as from the statement of the appellant convict recorded under Section 313 of the Cr.P.C. is of innocence as well as of false implication. It has further been submitted that the deceased were done to death by unknown criminals in different manner of occurrence and to probablise the same D.W.s have also been examined. On behalf of appellant-convict Bhagwat Rai, it has also been submitted that his gun became out of order therefore it was deposited at M/s Sushil Shastragar, Hajipur Vaishali since before occurrence and it was handed over on 17.08.2007 and to support the same, also examined D.W. While assailing the judgment of conviction and sentence, it has been 4 submitted on behalf of the appellant convict that the judgment is cryptic, perverse and without application judicial mind. Then submitted that there happens to be exaggeration as well as material contradictions are visible in the evidence of the P.W.s which affect right from root of the prosecution case which, the learned Lower Court bypassed and failed to consider. Then submitted that there happens to be inconsistency amongst the evidence on each and every material point much less over genesis of occurrence as well as manner of occurrence and that happens to be sufficient to belie the prosecution case as has been flashed. Then submitted that the learned lower court failed to consider that the prosecution witnesses claimed identification on the basis of the torch which never been produced during course of investigation and that happens to be major deficiency on the factum of identification. Then submitted that the objective finding of the I.O. remains inconsistent with the version of the eye witness and the cumulative effect happens to be that none of the prosecution witness should be accepted as an eye witness to occurrence. Furthermore, it has been argued that the prosecution knowingly and deliberately did not produce the shopkeeper Rajendra Sah before the court and for his non-examination, no explanation has been on behalf of the prosecution. It has also been submitted that the fardbeyan only speaks with regard to assault by firing over the person of Satan Rai as well as Ram Chandra Rai but during course of examination, the witnesses also brought P.W.8 Ram Swaroop Rai who claimed himself to be one of the injured who sustained firearm injury at the hands of accused but surprisingly enough, instead of examining him as material witness was tendered. In likewise manner, it has been submitted that P.W.4 and P.W.5 the brothers of informant have also been tendered whose name find in the fardbeyan. Also submitted that the prosecution was not satisfied over the materials whatever it has produced and to further strengthen the same, P.W.6, Raj Kumar Choudhary, 5 who happens to be on inimical term, has been brought up who apart from others, introduced a new theory over dying declaration which happens to be uncorroborated by the other witnesses. Also submitted that the postmortem report also rules out the manner of occurrence so flashed by the prosecution. It has also been submitted that in the background of aforesaid improbability, infirmity and deficiency persisting in the prosecution case, the defence narration appears to be more convincing with actually the deceased were done to death by other miscreants on account of their criminal activities jumping under fray amongst father and son, namely, Rajesh Agrawal @ Raju and his father Prahlad Agrawal on account of dispute over orchard followed with murder as well as on account of some sort of property dispute amongst one of the branches of forefather of the informant and deceased. To bring on fore, the defence had examined altogether 17 D.W.s whose evidence ought to have been considered by the learned lower court, wherein it failed. Last but not least it has been submitted that in the background of aforesaid unreliable evidence of interested, partisn and inimical witness, it cannot be said and held that the prosecution has been able to substantiate its case and consequent thereupon, the finding arrival at by the learned lower court is fit to be set aside. At the other hand the learned P.P. while sticking with the finding, refuted and submitted that from the judgment impugned it is evident that the learned lower court had capsuled each and every points and minutely scrutinized the evidence where from the innocence of others have been located whereas complicity of appellants have been found to be sufficiently proved. Also submitted that there was no question of mistaken identity nor the defence had challenged nay it could be argued because of the fact that neither the time of occurrence has been challenged nor the appellant had challenged to the effect that 6 they are not known to the witnesses since before which cannot be, in the background of the fact that both the parties are co-villagers. Also submitted that enmity is a double edged sword. The appellant raised voice of their false implication in the aforesaid background while the prosecution shown casualty in the aforesaid background for which witnesses were adduced and the learned lower court after minutely observing and scrutinizing the evidence, concluded in a manner which, in the facts and circumstances of the case does not require interference. To appreciate the rival contention, it looks better to recapitulate the evidence available on the record. In order to substantiate its case the prosecution had examined altogether 16 P.W.s out of whom P.W.1 is Mahesh Rai, P.W.2 is Upendra Rai, P.W.3 is Sipahi Rai, P.W.4 is Gaya Rai, P.W.5 is Sonelal Rai, P.W.6 is Raj Kumar Choudhary, P.W.7 is Rem Pukar Rai, P.W.8 is Ram Swaroop Rai, P.W. 9 is Dr. Manoranjan Kumar Srivastava, P.W.10 Bhupesh Kumar Singh, P.W.11 is Pradeep Kumar Singh, P.W.12 is Yogendra Jha, P.W.13 is Dinanath Singh, P.W.14 is Ram Nath Singh, P.W.15 is Abhay Kant Jha, P.W.16 is Laxmi Narayan Mahto. Side by side also exhibited Exhibit 1- signature of Raj Kumar Choudhary, Exhibit 2, Exhibit -3 is postmortem report, Exhibit 4 -fardbeyan, Exhibit 5 -formal FIR, Exhibit 6 - seizure list, Exhibit 7 -station diary entry no.714, Exhibit 7/1 - the station diary entry no.716, Exhibit 8, Exhibit 9 - inquest report, Exhibit 10 – signature of Ram Nath Singh over 164 statement, Exhibit 11 -164 statement of Ram Nath Singh, Exhibit 12 – signature of Ram Nath Singh over order sheet. Exhibit 13- order sheet. Side by side the defence had also examined D.W.1 Abdul Azij, D.W.2 Guru Nandan Singh, D.W.3 Kameshwar Jha, D.W.4 Rajendra Singh, D.W.5 Harendra Singh, D.W.6 Saryug Rai, D.W.7 Umesh Prasad Singh, D.W.8 Uma 7 Shankar Prasad Singh, D.W.9 Nirsu Rai, D.W.10 bacchan Rai, D.W.11 Ganesh Rai, D.W.12 Ram Chandra Rai, D.W.13, Kishore Sah, D.W.14 Lal Bahadur Singh, D.W.15 Nand Kishore Thakur, D.W.16 Anjarul Haque, D.W. 17 Abdul Azij (reexamined formal) as well as exhibited Exhibit A - complaint petition of case no.171/85, Exhibit B- receipt no.119 dated 15-9-89, Exhibit C to C/4 – five sale deeds (certified copy), Exhibit D – Vakalatnama, Exhibit E – field book, Exhibit F , F/1 – Original as well as trace map, Exhibit G - Entry no.117 of the register kept by arms dealer, Exhibit G/1 – endorsement over exhibit G, Exhibit G/2 , G/B – verification dated 19-12-1987, 16-1-98 by the arms magistrate over the register, Exhibit H – plaint of title suit no.29/89, Exhibit H/1 – plaint of partition suit no.10/83, Exhibit I – C.C. of trial register (Sl. No.13690), Exhibit J – C.C. of FIR of Town P.S. Case No.262/88, Exhibit K – C.C. judgment of case no.1375/85. P.W.1 happens to be Mahesh Rai. He had deposed that on 30-09-1989 he along with 18 more persons have come to Muzaffarpur to appear before the SDM in a proceeding under Section 107 of the Cr.P.C. Thereafter, they return back and got down from bus at Sabha Chowk. From Sabha Chowk they all came to Bazi Ghat where he along with Ram Nath Singh, Ram Pukar Rai, Satan Rai, Ram Chandra Rai, Gaya Rai, Sarovar Rai, Sipahi Rai, Sonelal Rai, Upendra Rai stayed at the shop of Rajednra Sah for snack and tea. While they were staying there, Bhagwat came and indulged in hot exchange with Satan and Ram Chandra. One Hawaldar, Dinanath Singh came and got the matter pacified. Bhagwat left the place along with Dr. Parmeshwar Rai over motorcycle and at that very, time he had given alarm to all of them. Hawaldar had directed them to choose another way to go to their house but as no alternative way was available, therefore, they proceeded through the same path. When they came at “Malang Asthan” it was 8 dusk, they have seen 8-9 persons standing there. Ram Pukar Rai flashed torch and in the aforesaid light he had seen Bhagwat Rai, Ram Lakhan Rai, Jagannath Rai, Paras Rai, Mannu Rai, Rajendra Rai, Mucchu Rai, Parmeshwar Rai. Parmeshwar Rai was sitting over his motorcycle after having parked it. At that very time, Bhagwat Rai was armed with doubled barrel gun, rest were armed with Lathi and Bhala. As soon as they have seen them, Ram Lakhan Rai ordered Bhagwat to fire on account of which Bhagwat Rai fired. The first firing struck Satan Rai who felled down. Second firing was made over Ram Chandra Rai who also sustained injury and felled down. He along with others escaped there from raising alarm attracting the villagers seeing whom Bhagwat Rai and Mannu Rai escaped along with Parmeshwar over motorcycle while remaining escaped hither and thither. He directed with others came near injured who were groaning. Hawaldar, Dina Nath also reached. He attracting to lift the injured to hospital and accordingly both the injured were lifted to hospital and in midst of way they both died. Further he disclosed the details of pendency of criminal case amongst the parties. Also identified the accused. During cross-examination from para 30 to 34 happens to be corroboration and contradiction. This witness has been cross-examined at length but the defence could not be able to extract anything adverse to the case of the prosecution. More particularly, there has not been cross-examination on the factum of occurrence. In para 63 and 64 had deposed that only nine persons have stayed at shop of Rajendra while remaining proceeded their home. From para -69 it relates with the means of identification and from para – 74 to 79, it happens to be with regard to location of both the deceased at the time of sustaining injury by them at the hands of Bhagwat. The prosecution had disclosed the motive as pendency of cases as well as property dispute which has been explained by this P.W. during course of cross-examination with certain variance as is evident from 9 para – 50, 51, 52, 59 of his cross-examination. P.W.2 happens to be Upendra Rai who had also joined the deceased to Muzaffarpur from his village and returned back including deceased along with others. He deposed that on 30.09.89 he along with 19 others persons have gone to appear in a 107 Cr.P.C. proceeding at SDO Court, Muzaffarpur. During return, they all got down at Sabha Chowk and proceeded towards their house. They reached at Baji Chowk where some of them stopped at the shop of Rajendra while remaining proceeded. After sometime Bhagwat came and had an altercation with deceased Ram Chandra and Satan. At that very moment Hawaldar came and got the matter pacified. Bhagwat then thereafter left the scene over motorcycle of Parmeshwar being driven by Parmeshwar giving a threat. After sometime, they all proceeded towards their house and as soon as they reached at “Malang Asthan”, they saw 9-10 persons having blocked the road. At that very time it was dusk. In the torch light flashed by Ram Pukar, he identified Bhagwat Rai, Lalkhan Rai, Mannu Rai, Paras Rai, Jaganath Rai, Lakhinder Rai, Rajendra Rai, Macchu Rai, Parmeshwar Rai. Parmeshwar Rai was sitting over his motorcycle after having it parked. Bhagwat Rai was armed with double barrel gun while remaining were armed with lathi and Bhala. As soon as they arrived, Ram Lakhan Rai exhorted over which Bhagwat Rai shot at firstly over Satan Rai and then over Ram Chandra Rai @ Chandra Rai. Both of them sustained injury and fell down. He along with others flee there from raising alarm attracting the villagers Bhagwat and Mannu escaped along with Parmeshwar on motorcycle while remaining scattered. Then thereafter they all lifted both of injured to hospital but in midst of way they both succumb. During cross-examination from para 21 to 27, the attention of the witness has been drawn towards contradiction. Para – 32 and 33 happens to be topography 10 of P.O. Para -34 discloses strain relationship in between prosecution as well as defence party. Para – 39 and 40, 41 happens to be presence of another witness Ram Chandra Rai who had also sustained injury. In para -55 of his cross- examination had categorically stated regarding manner of occurrence. P.W.3 had deposed that occurrence is about 2 years 9-10 months ago it was Saturday. It was dusk. He along with others were returning from Muzaffarpur. When they reached at shop of Rajendra Sah situated at Baji chowk ten of them continued there journey while remaining stop to have tea and snacks. As soon as they sat at shop, Bhagwat Rai came and indulged with Sattan Rai and Ram Chandra Rai. They were intervene by Hawaldar Dinanath Singh. Thereafter, Bhagwat left along with Parmeshwar over his motorcycle after giving an alarm. He further named the persons who were along with him as Satan Rai, Ram Chandra Rai, Ramnath Singh, Ram Saravar Rai, Upendra Rai, Mahesh Rai, Gaya Rai, Sone Lal Rai, Ram Pukar Rai. After sometime they all proceeded and as soon as reached at “Malang Asthan” they found 8-10 persons stainding over the road. Ram Pukar Rai flashed torch wherein they all identified Lakhan Rai, Bhagwat Rai, Mannu Rai, Jagannath Rai, Paras Rai, Rajendra Rai, Lakhindra Rai, Machhu Rai, Parmeshwar Rai wherein Bhagwat was armed with gun while remaining armed with lathi and Bhala. Parmeshwar was sitting over his motorcycle. On an order of Lakhan Rai, Bhagwat Rai shot firstly, at Satan Rai followed by Chandra Rai. They both sustained injury and felledd down. Then, thereafter, they ran raising alarm attracting the villagers as well as arrival of the Hawaldar Dinanath Singh. Both injured were lifted to hospital but unfortunately died in midst of way. Identified the accused. During cross-examination at para -29 he has been cross-examined on the point of presence of one of the witness Ram Swaroop Rai. At para 31 had said that 11 others were also present by the side of Chandar Rai and Sattan Rai. In para 32, 33, 34, he had categorically stated the location of accused Bhagwat Rai from the deceased at the time of firing. Paragraph 35 discloses location of Chandar Rai and Sattan Rai at the time of occurrence. In para 37 had said that Ram Swaroop had also sustained injury during aforesaid course of occurrence. At para – 38 had said that torch was flashed by Ram Pukar which was of three shell. In para 39, 40 had said that more than 200-250 persons have assembled whom had narrated the incident. In para 44 had said that torch which Ram Pukar Rai was carrying missed at the “Malang Asthan” In para – 49 had said that I.O. had demanded the torch over which Ram Pukar Rai had disclosed that it felled down. He also had disclosed like so. Para – 58 to 63 happens to be questionnaire which was put to him by way of contradiction. P.W.4 Gaya Rai has been tendered for cross-examination. In likewise manner P.W.5 happens to be. But even then defence could not tried to explicit anything adverse to prosecution. P.W. 6 happens to be Raj Kumar Choudhary. Admittedly, he does not happens to be an eye witness to occurrence. He deposed that on the alleged date and time of occurrence he was at Baji chowk. At that very time he had heard an altercation which was going on in between Bhagwat Rai at one side and Chandar Rai, Sattan Rai, Ram Pukar Rai, Gaya Rai at other side. The same was intervened by the Hawaldar who was deputed at Baji chowk. At the time of departure along with Parmeshwar Rai over motorcycle, Bhagwat Rai had threatened his adversary. After sometime, Chandar Rai along with others also proceeded. After sometime he heard two firing sound. He rushed towards the direction and in midst of way he found Parmeshwar Rai driving the motorcycle while Bhagwat Rai armed with gun and Mannu Rai were pillion rider. When he reached at “Malang Asthan” he found 12 injured Sattan Rai who was lying in middle road and Ram Chandra Rai who was lying at the juncture, in injured condition and were groaning. He first of all had gone to Satan Ran and inquired there from over which Satan Rai disclosed that on an order of Ram Lakhan Rai, Bhagwat Rai shot at. The same narration was also given by Ram Chandra Rai. Till then so many persons including Hawaldar and the persons who were along with Satan and Ram Chandra came and lifted both of injured to hospital in midst of way both succumb. Darogaji had come at hospital where he took fardbeyan of Ram Pukar Rai in his presence over which he also put signature (exhibited). Also exhibited his signature over inquest report. On the next day while he was at the place of occurrence, the I.O. had inspected the P.O. and seized blood stained earth for which seizure list was prepared in carbon process having his signature. In cross-examination at para 22 to 26, it appears that this witness is on inimical term with the accused. Then at para 29 had disclosed that his house lies just infront of shop of Rajendra Sah. In para 35 had said that while he was proceeding towards place of occurrence, he had seen Parmeshwar Rai driving the motorcycle and Bhagwat Rai, Mannu Rai at back. In para 36 had said that so many persons have arrived at the place of occurrence after hearing sound of firing including Hawaldar but he arrived first of all. In para 38 he had disclosed that when he reached at the place of occurrence, he had not found anybody else. In para 39 had said that at the time of disclosure made by deceased Satan Rai and Ram Chandra on his query none others were present. In para 40 had said that he had not pened it down. In para 41 had said that whatever disclosure was made by deceased Satan Rai and Ram Chandra Rai , he had already divulged the same to Hawaldar and others. He cannot say whether others have also inquired from Satan and Ram Chandra on account of assemblage of huge crowd. In para 47 had said that he had reached at the place of occurrence after 10 to 15 minute of hearing 13 sound of firing. In para