CRIMINAL APPEAL No.79 OF 2003 Against the Judgment of conviction dated 11.2.2003 and order of sentence dated 14.2.2003 passed by Sri Syed Jafar Husain, 2nd Addl.Sessions Judge, Jehanabad in Sessions Trial No.221 of 2002 arising out of Makhdumpur P.S. Case No.31 of 1985, G.R.No.258 of 1985 . --------------- 1. RAMESHWAR JAMADAR 2. Ram Sakal Jamadar @ Sakal Jamadar 3. Horil Jamadar 4. Chamru Jamadar 5. Dil Chand Jamadar --------------------------------------(Appellants) Versus STATE OF BIHAR----------------------------------------(Respondents) CR. APP (DB) No.162 oF 2003 MUKHIYA JAMADAR----------------------------------(Appellant) Versus STATE OF BIHAR---------------------------------------(Respondents) For the Appellants : Sarva Sri Rana Pratap Singh, Sr.Advocate, Aaruni Singh and Shivendra Singh, Advocates. For the State : Sri Ashwini Kumar Singh, A.P.P. For the informant : Sri S.K.Yadav, Advocate. ------------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE RAKESH KUMAR Dharnidhar Jha & Rakesh Kumar,J.J. The two appeals arise out of the same Judgment which was rendered by the learned 2nd Addl. Sessions Judge, Jehanabad in Sessions - 2 - Trial No.221 of 2002 on 11th February, 2003. The appellants in the two appeals were tried for a composite charge under Section 302 read with Section 34 of the Penal Code, whereas the solitary appellant in Cr.Appeal No.162 of 2003, namely, Mukhiya Jamadar was tried for a specific charge under Section 302 of the Penal Code. Appellants Rameshwar Jamadar and.Mukhiya Jamadar were also tried together for offence under Section 27 of the Arms Act. There was seventh accused, namely, Mannu Jamadar, who was tried with the present set of the appellants, but he died during the course of trial and his name was expunged from the trial proceeding by an order passed by the learned trial Judge on 8th September, 2002 thus leaving the trial only against the present six appellants. 2. While recording the order of conviction the learned trial Judge held five appellants in Cr.Appeal No.79 of 2003 guilty of committing offence under Section 302/34 of the Indian Penal Code and directed each of them to suffer rigorous imprisonment for life . One of the above set of five appellants, namely, Rameshwar Jamadar was held guilty also of committing an offence under Section 27 of the Arms Act with solitary appellant of Cr.Appeal No.162 of 2003, namely, Mukhiya Jamadar and each of them was directed to suffer rigorous imprisonment for four years. Mukhiya Jamadar was held guilty of committing an offence under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. The findings and sentences are being questioned by the appellants in the present appeals. 3. The F.I.R.( Ext.4) lodged by Lal Bahadur Chauhan( P.W.5) is the basis of the Judgment in which it was alleged by P.W.5 that - 3 - at about 6 A.M. when he dusting ash-powder on his vegetable plants, he found his father had come back after attending to the call of nature and he was sitting at his Diesal Pump set. Accused Mannu Jamadar and appellant Sakal Jamadar @ Ram Sakal Jamadar came there and started assaulting the deceased with fists and slaps while abusing him. The deceased Ramashish Jamadar fled and entered inside the house of Rama Kahar (P.W.1). The two above named accused chased him, went into the Aangan of Rama Kahar (P.W.1) and dragged the deceased out of the house so as to assaulting him further. By that time, other accused persons, forming an unlawful assembly being armed with lathi and guns, came there. It is specifically alleged that appellant Horil Jamadar dealt two lathi blows on the deceased , whereafter appellant Mukhiya Jamadar, after snatching the gun from appellant Rameshwar Jamadar, fired two shots at the deceased and the deceased fell down on the ground. 4. The informant stated further that he ran from his field to the place of occurrence while raising hulla and at the same time a co- villager of the informant, namely, Ram Nandan Prasad (P.W.2) who was going to attend to the call of nature came to the place of occurrence. The informant came near his father and found that his father had received injuries by gun shot in his chest. By that time, many villagers had also arrived there. 5. The reason for the occurrence as stated by P.W.5 in the F.I.R. was that accused Mannu Jamadar and others had come back in the previous evening to the village after attending the court proceedings at Jehanabad and had threatened to kill the deceased, as in the opinion of the - 4 - accused persons the deceased was a very shrewed litigant . It was further alleged that a proceeding under Section 107 Cr.P.C. was also going on in court at Jehanabad and further that the deceased had helped out Ramji Jamadar who happened to be the full brother of accused Mannu Jamadar in partition of properties. 6. After drawing up the F.I.R.( Ext.4 ), the investigation of the case was taken up by P.W.7, S.I. Shiv Shankar Rai, who was the Officer Incharge at the relevant time of Makhdumpur Police Station. The evidence of P.W.7 indicates that he went to the place of occurrence and questioned some of the witnesses like P.W.2 and also recorded further statement of the informant and the statements of other witnesses. Thereafter, he inspected the place of occurrence which was found to be the house of Rama Kahar ( P.W.1) situate at village-Kafarpur. The evidence of P.W.7 further indicates that he held the inquest upon the dead body of the deceased and also seized blood-stained earth from near the dead body and prepared the seizure Memo which has been marked as Ext.5 on behalf of the prosecution. Inquest report has been marked as Ext.1/1 and the signatures of the witnesses to the inquest have been marked Exts. 6 and 6/1. The dead body was sent for postmortem examination to P.W.9 after preparing the dead body challan and the Investigating Officer received the postmortem report. P.W.7 has stated in para-8 of his evidence that he received the fardbeyan of accused Mannu Jamadar recorded in Magadh Medical College Hospital and on that basis, he instituted the F.I.R. of the counter case vide Makhdumpur P.S. Case No.34 of 1985 and found, as may appear from paragraph 15 of the case diary, that the place of occurrence of both the cases was the same,i.e. - 5 - Aangan of Rama Kahar (P.W.1). He further states that he found Mannu Jamadar admitted in Magadh Medical College Hospital as may appear from his evidence in paragraph 9 and further that the accused persons of the counter case were also sent up for trial . 7. The defence of the appellants was that in fact the deceased, P.W.1 and others had formed an unlawful assembly on the very day of the present occurrence and had seriously injured Mannu Jamadar on account of shots being fired by Narayan Yadav. It was stated in Ext.A , the F.I.R. of the counter case, that in fact while Narayan Yadav was firing at Mannu Jamadar, a short missed and hit the deceased Ramashish Jamadar as a result thereof he died. In support of the defence, not only the F.I.R., the fardbeyan of the case has been brought on the record in support of the defence, but the doctor who had examined the said Mannu Jamadar , has also been examined as one the defence witnesses as D.W.3 and injury report of Mannu Jamadar was brought on record, which was marked Ext.C as may appear from the evidence of the said witness D.W.3. 8. In support of the charges, prosecution examined a total number of 10 witnesses, out of whom P.Ws 1,2,4,5 and 6 are eye witnesses to the occurrence. As regards P.W.3, Matiya Devi, she was tendered for being cross-examined. P.W.7 as pointed just now is the Investigating Officer of the case and P.W.8 , Baij Nath Singh is another Police Officer, who had produced in the court below the material exhibits , which was probably the bullet , which was recovered during the course of postmortem examination .That material exhibit has been marked Ext.I. Dr.Ram Padarath Singh(P.W.9) was the Medical Officer who had conducted the postmortem - 6 - examination on the dead body and prepared the report ( Ext.7) and P.W.10 Sant Kumar Verma is an Advocate who has given evidence on the point that he was engaged by the deceased to file an application in the proceeding under Section 107 Cr.P.C. which was pending before Sri N.N.Sinha, Executive Magistrate and, accordingly, he drafted the petition and that petition has been marked Ext.8. 9. On consideration of the evidence for the prosecution and the defence , learned trial Judge came to the conclusion that the charges were established beyond shadow of reasonable doubt and held the appellants guilty and sentenced them as noted down at the very outset of the present Judgment . 10. Sri Rana Pratap Singh, learned Senior Counsel in both the appeals, has firstly pointed out to us the importance of the F.I.R. in a criminal case by citing the Judgment before us, rendered in Thanedar Singh Vs. State of Madhya Pradesh, reported in AIR 2002 SC 175. Our attention was drawn , especially to the observations of the Supreme Court at paragraph-5.2 and especially that part of the paragraph , which appears at page-177 on the left side column which reads as follows: “FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon ; prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed , including the names of the actual culprits and the parts played by them , the weapons , if any, as also the names of the eye-witnesses, if any.” It was contended in the above context that the F.I.R. - 7 - does not contain any story of deceased accused Mannu Jamadar being hit by one of the two shots which was fired by the appellant Mukhiya Jamadar which story now appears introduced by all the witnesses who have been examined in support of the charge in the trial court. Sri Singh took us to the relevant part of the Judgment and submitted that witnesses, like, P.Ws 1, 2, 4 and 5 state that indeed two shots were fired but the first shot hit Mannu Jamadar and the second injured the deceased. It was contended that this is a vital deviation from the initial prosecution version and at the same time it is also an admission of the fact that co-accused Mannu Jamadar was injured in the course of same transaction. It was contended, as such, that the Court has now to reject the prosecution evidence and has to act upon the admission and held that the version of occurrence which initially appeared in Ext.4 now appears given a complete go bye and, as such, should reject the prosecution story in its entirety. It was further contended that it is very difficult for this Court in the light of evidence available to it to hold as to who were aggressors and if it was not going to uphold the prosecution story as the correct story, then the only course left to it was to hold that the prosecution is guilty of suppressing the truth and the benefit thereof has to accrue to the appellants. It was contended next that the evidence of doctor (P.W.9) gives a final dealt blow to the prosecution when it is pointed out by the witness that it could be a case, in which the deceased had received two fatal shots, which is contradictory to the changed version of the prosecution, which is now presented before the court through the evidence of its witnesses examined in the trial court. It was contended, as such that the medical evidence does not support the prosecution story, rather - 8 - improbablises the very story and on this score also the charges have to be held as not proved. Our attention was drawn to the statements of the appellants recorded under Section 313 Cr.P.C. and by citing the Judgment of Sharad Birdhichand Sarda Vs. State of Maharashtra ,AIR 1984 SC 1622 as also (2009)4 SCC 200, State of Punjab Vrs. Hari Singh ,it was contended that the circumstance of showing common intention and acting in furtherance thereof to cause the death of Ramashish Jamadar was not put to any of the appellants, who have been convicted by virtue of Section 34 of the Penal Code, and as such, their conviction cannot be sustained. 11. Sri S.K.Yadav as also Sri Ashwini Kumar Sinha, learned A.P.P. appearing for the State have submitted that the initial story of two shots being fired at the deceased got support by the medical evidence and it appears established that the accused persons were the aggressors, and as such, the Judgment of conviction appears properly passed. 12. We have given our serious and anxious consideration to the submissions. As regards the prosecution case, the importance of the F.I.R. could never be minimize. Likewise, the importance of the medical evidence is immense in as much as the defence could argue by showing to the Court as to what departure and deviation had been made by the prosecution while producing its evidence before the trial court. It could draw the attention of the Court towards the evidence of the doctor to argue that the manner of occurrence or the very story which was initially presented by the prosecution through the F.I.R. does not get the support from the evidence of the medical man and, thus, raises a probability that the occurrence might not have taken place in the manner as - 9 - alleged or might have occurred in a manner other than alleged. This is the reason that we have taken a consistent view that in spite of the fact that the F.I.R. in itself could not be a substantive piece of evidence, nonetheless it remains the most potent weapon in the hands of the defence to challenge the veracity of the prosecution case by showing the deviation or improvement which has been made in leading evidence in support of the charges. 13. Coming to the facts of the present case and reverting back to its basic document, the F.I.R., we find it is stated by the informant in it that the appellant Mukhiya Jamadar after having snatched the gun from appellant Rameshwar Jamadar fired two shots at his father ( deceased) , as a result of which he fell down . If we consider the evidence of P.W.9 , we could find that he recorded the following ante- mortem injuries on the dead bodies: (i) Lacerated injury with inverted singed margin ¼” x ¼”x chest cavity in the fourth left inter costal space with fracture of bone adjoining the fourth space( sic). The wound was situated 3” below the left nipple. (ii) Lacerated injury with inverted singed margin in the fourth inter costal surface. Size ¼” x ¼” x Chest cavity. The wound is 4” below and lateral to the left nipple. It was recorded by P.W.9 that the two injuries were 2” apart from each other. (iii) Lacerated injury with inverted margin ¼” x ½” x chest cavity in the right fifth intercostals space with fracture of fifth right rib. It was opined by P.W.9 that injury nos.(i) and (ii) were the injuries of entry while Injury No.(iii) may be the exit of injury no (i). - 10 - Besides the above three injuries P.W.9 found an abrasion 1” x ¼” on the back of left elbow and also multiple ecchymosis with swelling on the right thigh. These two injuries were, in the opinion of the doctor, caused by hard and blunt substance. Thus, we find that the two injuries, which were wounds of entry, were separate wounds. The evidence of P.W.9 at paragraph 7 is that two injuries may be caused by a single shot if the ammunition breaks into two pieces on fire. We could not persuade ourselves to accept this opinion as a reason for existence of two wounds, because P.W.9 has stated in his opinion part in paragraph 3 of the evidence that he had extracted a metallic bullet which was adhering to the inter crystal materials. There is no evidence of P.W.9 that there was any fragmentation of the recovered bullet, therefore, take only one view in the light of evidence of P.W. 9 that two shots were definitely fired and two entry wounds were definitely caused on account of those two shots. 14. On the basis of the evidence of P.W.9, we also come to the conclusion that the shots were fired from a very close range. P.W.9 has found both the injuries (i) and (ii) singed , meaning thereby that it was almost from a dead length .When we consider that finding of P.W.9 in the light of the oral evidence of P.W.1 in para 11 of his evidence, we find that the manner of occurrence as alleged by the witnesses may not be acceptable. P.W.1 has stated that no shot was fired from close range, rather the shots were fired from a distance of 10-20 feet. When the shots were really fired from such a distance, as stated by P.W.1, then there could not have been any singing around the wounds. This is the other major defect which the prosecution case suffers from. - 11 - 15. We have already referred to Ext.4, F.I.R that speaks of two shots being fired by the appellant Mukhiya Jamadar targeting the deceased. It is true that it does not speak in clear terms that the two shots really hit the deceased and he fell down. There is a general statement made in Ext.4 that the deceased fell down. Subsequently, while giving evidence the informant (P.W.5) and other witnesses like P.Ws 1, 2 and 4, have all stated that the appellant Mukhiya Jamadar fired two shots, the first hit accused Mannu Jamadar and the second hit the deceased. It is true that there is no evidence on the record to indicate that this story was never told by the witnesses earlier to their evidence. We , rather, find there may be possibility that the witnesses have made the same statements during the course of investigation, which they appear making about firing of shots in their evidence. But, we find it difficult to accept the evidence on the same reason as we have discussed while considering the evidence of P.W.9 that there were two injuries found by P.W.9 which were fired definitely from a very close range upon the decease and thus, the story of single shot which is now stated by the witnesses appears not true. 16. The second angle by which we reach the improbability of the version is that it is diametrically opposed to the very initial version contained in Ext.4 .It is a very vital statement which we accept put in by the informant while making a statement before the police while lodging a report. There was no reason for him to miss mentioning that the first shot fired by the appellant Mukhiya Jamadar had hit accused Mannu Jamadar as was subsequently stated by him in evidence. We are constrained to accept the contention that the prosecution appears suppressing one of the most - 12 - vital parts of the prosecution story or, in other words, it appears guilty of making the most vital deviation or departure from its initial version and this is by way of explaining away the injury on accused Mannu Jamadar which they had never attempted to do at the very initial stage. 17. Besides the above two serious defects, what we find is that P.W.1 Rama Kahar has definitely named only three accused, namely, Mannu Jamadar , Mukhiya Jamadar and Horil Jamadar. It is true that he has stated that some more persons were standing by the side of his house, but he could not identify any one of them, whereas P.W.2 Ram Nandan Prasad appears not initially naming the two appellants, namely, Dilchand Jamadar and Chamru Jamadar. Rama Kahar (P.W.1) is the witness who claims seeing the part of the incident except the initial part, which took place allegedly at the site of the Diesel Pump set. It was expected of him that he could have named all the accused persons as initially the prosecution alleged that all of them entered inside the Aangan of Rama Kahar (P.W.1) but it is not stated that P.W.1 was not present at the house . His evidence in para-1 states that he was present at his house. When we consider the evidence of other witnesses on this point, we find that they have indeed named each accused persons but have attributed specific overt acts against some of them like Mukhiya Jamadar firing the shot and injuring the deceased or the co-accused Mannu Jamadar. Other witnesses like Rama Kahar ( P.W.1) , Ramnandan Prasad ( P.W.2) have not stated anything that the deceased was assaulted initially by the accused persons with fists and slaps or by lathi in the Aangan of P.W.1. This goes to indicate that the charge of acting in furtherance of common intention was not established - 13 - beyond the shadow of reasonable doubt. When we also consider the statement of accused persons recorded under Section 313 of the Code of Criminal Procedure in the light of the charges framed we find that all the accused persons were charged of having acted in furtherance of common intention and thereby intentionally causing the death of Ramashish Jamadar, but this fact does not appear against any of them except Mukhiya Jamadar, still they stood convicted under Section 302/34 of the Indian Penal Code which does not appear justifiable in the light of the decision cited before us by the learned Senior Counsel appearing for the appellants. Besides, there is no circumstance put to appellant Rameshwar Jamadar that he was possessed of a fire arm with an intention to use it illegally in commission of an offence. This is one of the most important ingredients of the offence under Section 27 of the Arms Act while recording his statement under Section 313 Cr.P.C. 18. After having considered the evidence of the witnesses, we find it very difficult to come to a conclusion as to how the occurrence had taken place. The prosecution witnesses appears improving upon the prosecution evidence and adding the story which was never the part of the original story . Thus, the prosecution appears guilty of suppressing the true facts. It is true that the injury of Mannu Jamadar was attempted to be explained but the whole prosecution case appears shrouded with doubt making it impossible to hold that the charges have been established to the hilt. We do not feel it advisable to consider the defence of the appellants when the prosecution has failed in discharging its onus of proving the charges by satisfactory evidence. We find that the prosecution has failed in - 14 - establishing the charges entitling the appellants to acquittal. In the result we allow the above two appeals by setting aside the order of conviction and sentences passed against each of the appellants. Appellant Mukhiya Jamadar is in custody, He shall be released from custody forthwith, if not wanted in connection with any other case. As regards five appellants of Cr.Appeal No.79 of 2003, they are on bail. They shall stand discharged from the liabilities of their respective bonds. Patna High Court,Patna Dated the 28th January,2010 Nawal Kishore Singh/N.A.F.R. ( Dharnidhar Jha, J) ( Rakesh Kumar, J)