CRIMINAL APPEAL No.187 OF 2006 Against the judgment and order of conviction dated 9.12.2005 passed by Additional Sessions Judge, Patna in Sessions Trial No.326/2001 arising out of Masaurhi P.S. Case No. 115/2000 ----------------- 1. JANANDI BIND 2. MITHLESH BIND-------------------------------------- Appellants Versus THE STATE OF BIHAR--------------------------------Respondent For appellants: Mr. Sadhu Saran Yadav, Mr. Durgesh Nandan, Sri Ram Nath Saran, Sri Kamlesh Pd. Yadav, Smt. Asha Kumari, Advocates. For State: Mr. Ashwani Kumar Sinha, APP 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 appellants before us were tried by learned Additional Sessions Judge, IX, Patna for charges under Sections 148, 302 read with Section 149 of the Indian Penal Code and 27 of the Arms Act and by his judgement and order of conviction dated 9.12.2005 passed in Sessions Trial No.326 of 2001 held the two appellants guilty of committing those offences. The learned trial judge directed each of the appellants to suffer rigorous imprisonment for life for being found guilty under Section 302/149 of the Penal Code in addition to 2 undergoing rigorous imprisonment for six months and two years each respectively for their respective conviction under Sections 148 of the Penal Code and 27 of the Indian Arms Act. The sentences were directed to run concurrently. The appellants have challenged the vires of the above noted judgement and order of conviction and sentence by preferring the present appeal. 2. The prosecution case emanates from Ext-3 which is the fardebyan of P.W.5, Sarvanand Singh, who happened to be the father of the deceased Suresh Singh. It was alleged that when he was proceeding towards Masaurhi market on 2.9.2000 at about 5.30 P.M. he found his son Suresh Singh coming running and being followed by the two appellants and 7-8 other unknown persons. The deceased reached the Mahavir temple situated there when the two appellants and his other unknown companions caught hold of the deceased, took him aside the temple and shot him dead and made good their escape from there. The informant raised a cry shouting that the accused persons were fleeing away after having committed the murder of his son which attracted, besides others, Anil Kumar(P.W.4), Upendra Prasad(P.W.1) and Birednra Prasad Singh(C.W.1) who had witnessed the occurrence. 3. It was alleged by P.W.5 that appellant Janaudi(Jainandi Bind) was pestering him for money and 3 his gun. The appellant Janaudi was a member of the MALE and probably on account of not getting the demand fulfilled, had committed the murder of his son. The informant further alleged that when the darkness had dawned there, he picked up the dead body to take it to his house, where the police personnel recorded Ext-3. 4. As may appear from the evidence of P.W.7 the FIR, Ext-5, was drawn up on the basis of Ext-3 by the officer-in-charge of the police station and the charge of investigation of Masaurhi P.S.Case No.115 of 2009 was entrusted to him. It is further revealed that it was P.W.7 who had recorded the fardbeyan of P.W.5. P.W.7 A.S.I., Naresh Pd. Mandal held inquest on the dead body of the deceased at the directions of the officer-in- charge and prepared the report by carbon process in three copies. Inquest report had been marked as Ext-6 by the learned trial Judge. He found, after taking over the investigation that, the dead body had been sent for postmortem examination to P.M.C.H. He, thereafter, came to the place of occurrence with P.W.5 Sarvanand Singh and inspected it and recorded the statement of witnesses and finding sufficient materials, sent up the two appellants for trial. 5. The defence of the appellants was that they had falsely been implicated in the case because there was 4 dispute between informant Sarvanand Singh and the appellants who belonged to the labourers-class on payment of some wages for the labour which had invested by the appellants at the request of the informant in cutting and removing earth from a particular place and the informant was not ready to pay the wages to the appellants and some hot discussions had taken place on non-payment of the wages and the acrimony created on account of the non- payment of the wages had resulted in the false implication of the appellants by the informant. 6. The prosecution examined, a total number of seven witnesses in support of its case. P.W.1 Upendra Kumar, P.W.4 Anil Kumar and P.W.5 Sarvanand Singh who is the informant of the case gave eye witness-account of the occurrence. P.Ws.2 and 3 claimed having learnt about the participation of the two appellants and others in commission of the murder of Suresh Singh from P.W.5 Sarvanand Singh and thus have been categorized as hearsay witnesses. A court witness was also examined by the court. He was Birendra Pd. @ Birnedra Singh who appears to be named in the FIR also, but he appears having said nothing in support of the charges or even in support of the defence. P.W.6 Dr. Arvind Kumar is the doctor who had held postmortem examination on the dead body of Surendra Singh and prepared Ext-2 the postmortem report, as 5 pointed out just now. A.S.I. Naresh Prasad Mandal is the I.O. of the case. 7. The defence of dispute for wages giving rise to an acrimonious situation of relationship has been tried to be substantiated by the defence by examining the three D.Ws. namely, Paramhans Paswan, Rabindra Prasad and Umesh Kumar. 8. On considering the evidence of the witnesses, both for prosecution and defence, and also considering the statement of the accused persons under section 313 of the Cr.P.C., the learned trial Judge went on to pass the judgement of conviction and order of sentence which is impugned herein. 9. We have heard Sri Durgesh Nandan, the learned counsel appearing on behalf of the two appellants in support of the appeal. Sri Nandan took us through the evidence of the witnesses and submitted that the witnesses examined by the prosecution were all related and as such were interested in the ultimate result of the trial and as such their evidence could not be acted upon. It was contended in the above context that it was a market place and a common thoroughfare and it was expected, and that is admitted also, that so many persons could have assembled there. But, no independent person has come forward in support of the prosecution 6 allegations. Sri Nandan further contended, in the above context, that if the court reads the evidence of witnesses examined by the prosecution in support of the charges, it could find that their presence was improbable inasmuch as they had no good reasons to be around the place of occurrence and whatever reasons they have assigned to the court for showing their presence there, that is without any basis and as such not acceptable. As regards the manner of occurrence and its support from the evidence, it was contended that in cross-examination P.W.6 Dr. Arbind has stated that the injuries found by him on the dead body could be caused by a rifled weapon whereas the allegation is that the two appellants fired from pistols. It was submitted that no initiative was taken either by the informant or any of his family members to inform the police and it is strange as to why the dead body was brought to the residence of P.W.5 instead of being taken to the police station so as to lodging a report and it is further strange to find that the police claims coming to the house of P.W.5 to record the fardebeyan Ext.3. It was, lastly, contended that in the light of the evidence of D.Ws. pointing to the dispute and differences on account of non-payment of wages, the court below ought to have held that the appellants had falsely been implicated and as such ought 7 to have acquitted them. 10. Sri Ashwani Kumar Sinha, the learned Public Prosecutor appearing for the state in the present appeal has submitted that after all what could be the reason for the informant and his witnesses to depose falsely, has not been suggested to any of them and again why the informant would be implicating the two innocent persons like the two appellants by leaving out the real culprits, has also not been pointed out by the defence. It was contended that relatedness was not interestedness and as such was never a good ground to reject the evidence of witnesses. What the court was required under the obtained situation was to read the evidence of the witnesses cautiously and then appreciate it. It was contended that the evidence of witnesses appeared properly considered as there does not appear any contradiction in their evidence and further that they had assigned good and sound reason for their presence at or around the place of occurrence. Sri Sinha, as such supported the conviction recorded by the learned trial Judge. 11. The motive for the occurrence as alleged by the informant in his evidence in paragraph 1 appears challenged as not the real reason, rather as no reason for the commission of the offence. The appellants have 8 taken a plea that they did not participate in the commission of the murder of Surendra Singh and were falsely implicated because there was dispute between them and the informant on payment of wages. The learned counsel had branded the dispute as animosity existing between the parties so as to implicating the two appellants. Firstly, we must, at the very outset, make it very clear that enmity is completely a different thing from a mere dispute as appears stated by the D.Ws. on account of the non-payment of wages. Enmity could be said to be existing between the parties when they are really beholding on each other with a sense of vengeance and deceitful attempt to settle scores. In some class of cases the very ill-will which a person may be nurturing on account of some acts which could have been committed against him by his adversary putting him into a harm or loss. Disrepute may also create a situation of enmity. Here in the present case, the dispute as pleaded by the appellants was on account of non-payment of wages. Had it been an admitted fact we could have readily accepted it as the ultimate which could give rise to an ill-will in the mind of the informant for settling score with the appellants. But, that does not appear to us admitted rather the defence is deeply disputed. As such, we have to scrutinize as to whether the motive as alleged has 9 been proved. 12. No where in the cross-examination of witnesses it has been challenged that the appellants were not the members of the MALE. It has, of course, been suggested to some of the witnesses, like, P.W.2 Dhananjay Kumar and also to the informant, that the deceased was a member of the Peoples War Group and was at war with the worker-class of the society but that situation could hardly give any reason for the informant to implicate a particular caste leaving aside the major personality of the group who could be leading or attempting to lead a social upheaval. We are not inclined to take that view also and in that case we have no other option but to accept the motive assigned by the informant that the appellants were pestering him or his son for paying up money to them and also to hand over to them the gun belonging to the informant. We may point out that in the situation presently prevailing in the society very complex situations have cropped up on account of the advent of some complex characters who had different agenda on who had their own agenda or the agenda of a particular group to which they subscribe to, claiming it as an ideological subscription. It is not unknown to us that different groups of extremists pester peace loving persons who are affluent and well off in comparison to 10 their other brethren in the society. They are pestered by the so-called ideologues for making payments of money or delivering materials to them so that they continue in their so-called fight for equality. This could be one of such cases that the appellants on behalf of the group they had been, were demanding the payment of money or transfer of the weapon. This view we are not inclined to take simply because of the reason that there is no perceptible instance of enmity or ill-will between the parties. There was no reason assigned even by throwing a suggestion to a witnesses as to why the informant would go to such an extent as to leave aside the real culprit who had murdered one of his two sons and implicate the two appellants falsely. 13. The above finding could be found supported by the evidence of P.W.1 in paras 1 and 2(page-12 of paper book), P.W.2 in para-1 and para-3, P.W.3 in para-1, P.W.4 in para-1 and the informant P.W.5 in para-1 and para-4 at page-29 of the paper book. The above witnesses have stated that the two appellants had asked P.W.5 to pay up money and deliver his rifle to them and the non- compliance to their command by P.W.5 had resulted in the murder of his son. There appears a ring of truth in their evidence and as such we do not see any reason not to act upon their evidence on the motive part of the occurrence. 11 14. As regards the presence of witness, P.W.5 the informant has stated that he was heading to Masaurhi market at about 5.30 P.M. and he found his son coming running from the opposite direction towards the temple. P.Ws.2 and 3 are not the eye witnesses on account of their own evidence. Both P.Ws.2 and 3 have stated that they reached the place of occurrence after hearing some hulla and found that P.W.5 was already there by the side of the dead body. P.W.3 has stated that his father was raising a hulla. Such is the evidence of other witnesses also that P.W.5 was shouting. That evidence comes from P.W.5 as well that he was shouting after his son had been shot and killed. The distance between the place of occurrence and the residences of the witnesses is hardly one kilometer as may appear from the evidence of P.W.5 in paragraph 3 and P.W.2 paragraph 2. As regards P.W.4, he has stated that he was working in a field near the temple from where the deceased was dragged out to a near by place and was shot and killed. His presence was criticized on the ground that he has claimed working in the field which he had taken on Patta for cultivation but no Patta has been produced. If we consider the evidence of P.W.4 we do not find that any cross-examination was made to show that there was any document executed by the owner of the land in favour of P.W.4 so as to leasing 12 out the land to him. It is not unknown to us that most of such transactions in the village-side are oral and people maintain the relationship under deep confidence that the terms and conditions shall be honoured by the parties and they are really honoured and respected. The surroundings appear well within the knowledge of P.W.4 and in his evidence he has given good reasons for his presence and has made some acceptable statements which do not go counter to the evidence of other witnesses. Thus, the presence of the witnesses on or around the scene of occurrence also appears acceptable to us. Moreover, we must not forget that we are living in a society which does not have any fixed mode of behaviour nor we live in our houses unconcerned with the affairs of others. We are known to stroll out of our houses purposelessly. It may be true that a recent trend has developed that we seldom come out to support the charges in a criminal trial on account of various reasons, but that does not mean that one had not seen the occurrence or one was not attracted to the scene of occurrence. They have given the reasons for being attracted to or for remaining present at the scene of occurrence as indicated above. The reasons are accepted to us. 15. As regards the quality of evidence of P.Ws.1, 4 and 5, the two witnesses P.W.1 and 4 lend 13 support to the evidence of P.W.5 on all material aspects of the case. As regards the evidence of P.Ws.2 and 3, it is true that they are not eye witnesses to the occurrence but on considering their evidence, we find that the evidence of these two witnesses who claim having learnt about the incident from P.W.5, two facts are established, that Surendra Singh had been murdered on the date of occurrence and his dead body was lying at the place of occurrence and further that P.W.5 was present there. These two witnesses have further stated that he found the two appellants and other accused persons running away from the place of occurrence. Thus, the evidence of these two witnesses may not be exactly on the manner of occurrence or the participation of the appellants in committing the murder but their evidence could not be said worthless either. They have deposed to the facts as noticed by us and they lend quite some support to the prosecution version. We, as such, do not find any merit in the contention that the witnesses had not given any good reasons for their presence at the place of occurrence, we hold that the reasons assigned by them were sound and acceptable to us. 16. The doctor, P.W.6, has stated that on holding postmortem examination on the dead body of Surendra Singh, he found the following ante-mortem 14 injuries:- (a) A wound of entry ½” in diameter over upper lateral side of right elbow. The margin was abraded and tattooing was present around 2” of the wound. A wound of exit measuring 1/3” in diameter was also found by P.W.6 on the medial aspect of upper right elbow. (b)A wound of entry ½” in diameter over back of lower chest on mid line close to right(sic). Tattooing 8” x 8” around the wound was found. One wound of exit 1/3” in diameter over front of right chest in the flank 3” below and lateral to right nipple was also found by P.W.6. (c)One lacerated wound 2”x1 ½”, scalp deep was found on the left fronto-parietal region showing fracture but the projectile failed to enter into skull cavity. The fracture was 1¼”x ½” in dimension. On dissection P.W.6 found that the projectile in of injury no.2 had gone through and through the right lungs and came out through exit wound creating a track. 17. As regards the oral evidence of P.W.5, he was cross-examined on the manner of occurrence in paragraph 4 of his evidence and the relevant part appears at page 29 of the paper book. The deceased as per P.W.5 in para-4 had received three injuries one in his chest and the other in his arm and the third in the right side 15 of his head. If we compare this statement of P.W.5 with inquest report a copy of which is available to us at pages 67 and 68 of the paper book we could find that the evidence of P.W.5 is corroborated almost completely by the entries made by the I.O. in column no.5 of Ext-6, the inquest report. The evidence of the doctor was utilized to criticize the prosecution version only because he had said that the shots were fired by a rifled weapon. We have indicated the dimensions of the injuries and we find that diameter of the wound of entry was bigger than that of the wound of exit. The science of ballistics tells us that if a shot is fired by a weapon with rifled barrel, then the wound of entry could be lesser and the wound of exit could be quite big. In some cases it could be many a times bigger than the wound of entry. Here, in the present case, the diameter of wound of entry in all three cases was ½” whereas the exit wound had the diameter in almost all the cases of 1/3” which is lesser than the wound of entry and as such the evidence of P.W.6 in cross-examination in paragraph 3 at page 33 of the paper book that the shots could have been fired by a rifled weapon does not find favour with us and we could say that it was contrary to his earlier opinion which he rendered while being examined-in-chief when he stated that the injuries might be possible by firing by a pistol which is 16 consistent with the prosecution version. In the light of the present discussion, we find that there is no infirmity in the prosecution story or its case on account as was pointed out by the learned counsel for the appellants. 18. The case has been reported from Masaurhi which is one of the subdivisions as also a police station within the district of Patna. We, the residents of Bihar, very well known as to what social conditions are prevailing all around us. Some of the areas of most of the districts are extremist infested. We could take judicial notice of the prevailing social conditions. That particular part of the state which is covered by the subdivision and police station Masaurhi is one of the most extremist infested areas. This could be one reason that independent persons, who could have been attracted at the time of occurrence or just thereafter, might not have mustered courage to come either to the police or to the court for supporting the prosecution charges. The same remains the reason to us for the informant not approaching the police immediately after the occurrence. The state of mind of the informant could be gauged from this fact alone that after having seen his son being shot and killed in the very presence of his, having not done much about it, he could not have picked up the dead body 17 of his son till darkness had dawned. P.W.5 has stated in his evidence which, appears at page 26 of the paper book, that when it was dark, he brought a cot and put the dead body of his son to bring it to his Darwaja. The same statement had appeared in the fardbeyan. This could probably sum up the mental state of the informant and his companions who were the witnesses in the present case in mustering courage to approach the police for lodging a report. It is not easy in those areas to trade with an accusation against any extremist group or persons belonging to a group. The same could be the reason for the informant to retreat to the safety of his house with the dead body and to make a report only when the police had reached his doors. We do not see anything unusual about the report not being instantly made. However, there does not appear much delay in lodging of the report if we consider that under the prevailing conditions at the place where the occurrence had taken place, it was lodged at 8.45 P.M. in about three hours time when the police had reached the informant’s house. 19. During the course of argument of the present appeal Sri Durgesh Nandan, the learned counsel appearing for the appellants, was also submitting that no blood was found at the place of occurrence and that the place of occurrence also does not appear established 18 by the evidence of I.O. We were taken through the evidence of the I.O. on description of the place of occurrence as it appears in