CRIMINAL APPEAL (DB) No.293 OF 1988 ---- Against the judgment of conviction and sentence dated 25.05.1988 passed by Shri Jai Kishore Narayan,Additional Sessions Judge 13, Munger in Sessions Case No. 271 of 1986. ---- 1.Bhojal Mandal son of late Ganu Mandal 2.Kadam Rasool Mian son of late Bochu Mian 3.Jakir Mian son of Kadam Rasool Main 4.Nuneshwar Mandal alias Nunelal Mandal son of Bhojal Mandal 5.Chando Mandal son of late Gano Mandal 6.Kanhai Mandal son of Chando Mandal, all residents of village Tarakura,P.S.Jhajha, District Munger --- Appellants Versus The State of Bihar ----- --- Respondent ----- For the appellants : M/s Amarnath Deo & Prakash Kumar For the State : Ms. Shashi Bala Verma, Addl.P.P. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ----- S.K.Sharma & D.K.Singh,JJ. Six appellants have challenged order of conviction and sentence dated 25th May,1988 passed by Additional Sessions Judge 13, Munger in Sessions Case No.271 of l986 whereby and whereunder all the appellants have been found guilty under Section 302 read with Section 149 of the Indian Penal Code and have been sentenced to undergo life imprisonment and fine of Rs.100/- each, in default of payment of fine they are supposed to undergo one month rigorous imprisonment. Appellant No.1 Bhojal Mandal is further convicted under Section 148 of the Indian Penal Code whereas rest five appellants are convicted under Section 147 of the Indian Penal Code but no separate sentence has been awarded for the conviction under Sections 148 and 147 of the Indian Penal Code. 2 All the appellants are also convicted under Section 342 of the Indian Penal Code and are sentenced to undergo rigorous imprisonment for one month each. All the sentences are directed to run concurrently. 2. The prosecution case starts with the fardbeyan of Shamshul Mian (P.W.4), son of the deceased Wali Mohammad Mian recorded on 10.10.1984 at 4.00 A.M. at Jhajha Police Station by Officer-in-charge Jhajha in presence of Kashi Mandal (P.W.2) and Tajjamul Mian (not examined) to the effect that at 10.00 P.M. on 9.10.1984, the informant’s father Wali Mohammad Mian was making rope out of jute fibre near jackfruit tree east to his house. Suddenly, the informant heard the sound of “ Maro Maro” near his door, when he came out from his house along with nephew Israel (not examined) and saw Bhojal Mandal appellant no.1, armed with axe, Kadam Rasool Mian appellant no.2, Jakir Mian appellant no.3, Muneshwar alias Munelal Mandal and Kanhai Mandal with lathi whereas Chando Mandal appellant no.5 alleged to be armed with spear (Bhala). In the meantime, Kadam Rasul Mian appellant no.2 ordered not to watch and finish, upon which Bhojal Mandal assaulted on the head of the informant’s father with blunt part of axe and then gave second blow with sharp edge part of the axe on the head itself, 3 as a result of which the axe pierced into the head and father of the informant died at the spot. On the alarm of assault being raised, informant’s co-villagers Kashi Mandal (P.W.2), Sahdeo Mandal (P.W.3), Md.Safir Ansari (P.W.1) came but they did not do anything due to apprehension of their life. The informant claimed to have seen the occurrence in the moon-lit light. After the death of father of the informant, the accused persons fled away. It is alleged that the litigation with regard to the land dispute was going on between the father of the informant and appellant no.1 Bhojal Mandal since last seven years. Due to enmity continuing since last 20 years father of the informant was killed. The delay in reaching the police station is explained by the informant by stating that since there was night and the area is hilly one, he could not reach to the police station earlier. The informant claims to hear the statement recorded in the fardbeyan in presence of Tajjamul Mian (not examined) and Kashi Mandal (P.W.2). Tajammul Mian has also been made attesting witness of the first information report but has not been examined. On the basis of the aforesaid allegation Jhajha P.S.Case No. 146 of 1984 was registered for offences under Sections 147,148,149,342 and 302 of the Indian Penal 4 Code. 3. On submission of chargesheet and cognizance being taken, the case was committed to the court of sessions where charges against all the six accused persons under Section 302/149 of the Indian Penal Code and 342 of the Indian Penal Code were framed whereas against appellant no.1 Bhojal Mandal charge under Section 148 of the Indian Penal was also framed and the rest five accused persons were also charged under Section 147 of the Indian Penal Code. They pleaded innocence and preferred to face the trial. 4. The prosecution in order to prove its case examined altogether 8 witnesses, of which Md.Safir Ansari is P.W.1 who claims to be with the deceased at the time of occurrence. P.W.2 Kashi Mandal is a neighbour who happens to be a chance witness as he reached at the spot when occurrence took place and claims to see the occurrence. P.W.3 Sahdeo Mandal who has been cited as eye witness in the fardbeyan by the informant has not supported the assault part of the allegation against the appellants and has been declared hostile. P.W.4 Shamshul Mian is son of the deceased and is informant of the case who claims to see the occurrence after coming from his house on alarm being raised by P.Ws. 1 and 2. P.W.5 Indradeo Mandal is a 5 witness to inquest report (Ext.2) whereas other witness to inquest report Amin Mian has not been examined. P.W.6 Laxman Das is the Investigating Officer of the case who investigated the case after its registration and has proved formal F.I.R. as Ext.3, signature of the informant (P.W.4) on the fardbeyan as Ext.1, inquest report as Ext.2 and post mortem report as Ext.4. P.W.7 is Dr.Chandramaditya Singh who conducted post mortem on the dead body of the deceased Wali Mohammad Mian. P.W.8 is Kamal Hassan who conducted part of the investigation. 5. The defence has examined three witnesses. They are Azim Uddin (D.W.1), Awadhesh Kumar Malviya (D.W.2) and Shamshuddin (D.W.3). D.Ws. 1 and 3 have tried to prove that on the date of occurrence the informant was at village Dumra More under Borwa Gram Panchayat to attend “Milad” ceremony in the house of his brother-in-law (Sala) and there he received information about the murder of his father. D.W.2 has tried to prove that appellant no.3 Jakir Mian was Instructor and was imparting training at Training Camp of Adult Education, Gidhaura, Munger. 6. Learned trial court while disbelieving the credibility of D.Ws. being related to the accused persons has relied upon 6 the evidence of P.Ws. 1,2, 4 and 6 to hold the accused persons guilty and accordingly recorded the judgment of conviction. 7. This Court has to see whether the evidences of PWs.1,2,4 and 6 prove the prosecution case beyond the shadow of all reasonable doubt or the evidence on record appears to be credit worthy to the extent that the impugned judgment needs no interference. 8. The evidence of P.Ws.1, 2 and 4 is consistent on the point that appellant no.1 Bhojal Mandal assaulted the victim on his head with axe. The only inconsistency is with regard to manner of assault. The specific case of the informant in the fardbeyan is that first assault was made from the blunt portion of axe on the head and the second assault was made by the sharp edge portion of the axe but the informant (P.W.4) during trial has deserted his version as recorded in the fardbeyan and deposed in paragraph 1 of his deposition that accused Bhojal Mandal gave one blow with sharp edge portion of the axe on the head of the deceased. It has further been clarified by P.W.4 in paragraph 6 of his cross-examination that he saw only one assault being made by accused Bhojal Mandal with the sharp edge portion of the axe whereas first assault was made prior to his coming out of his house 7 which had been conveyed to him by Kashi Mandal (P.W.2). This part of the explanation of P.W.4 creates doubt about his credibility since he has specifically stated in the fardbeyan that two assaults by axe were made by appellant no.2 Bhojal Mandal and the explanation which has been offered by him in paragraph 6 of his cross-examination finds no place in the fardbeyan and furthermore, this part of evidence of P.W.4 gets contradicted by the evidence of P.W.2 Kashi Mandal who has stated in paragraph 1 of his evidence that Bhojal Mandal assaulted twice with axe on the head of the deceased. Moreover, P.W.2 in his entire evidence has not stated that he conveyed about the first blow given by Bhojal Mandal to the informant whereas P.W.1 in paragraph 1 has stated that Bhojal Mandal gave two axe blows on the head of the deceased. The evidence of the doctor P.W.7 clearly reflects that there was only one injury on the head of the deceased which is as follow: “Incised wound 3”x ½”x upper surface of bone over the left side of the skull (left side parietal area).” 9. In paragraph 2 P.W.7 has specifically stated that there was only one injury on the dead body though injuries have 8 been described as two in number in the post mortem report but second injury has been described as bleeding from left ear which is apparently not on external injury on the person of the deceased. It appears that the prosecution witnesses when they came to know that Doctor has found two injuries on the deceased then they deposed that victim was assaulted twice which clouds the credibility of P.Ws., particularly, to the extent of seeing the manner of occurrence. The presence of P.W.4 at the place of occurrence becomes doubtful from the contradictions cropping up between his fardbeyan and his evidence. His presence further becomes doubtful in view of evidence of P.W.2 in paragraph 1 where he specifically says that Bhojal Mandal made two axe blows and thereafter he raised alarm whereas the specific evidence of P.W.4 in paragraph 1 as well as his claim in the fardbeyan are that he was sleeping inside the house and he came outside when he heard the alarm. Hence the medical evidence not only completely negates the prosecution case but also discard the eye witness’s claim of seeing the manner of occurrence. 10. The prosecution witnesses are also inconsistent with regard to the accused persons being armed with different weapons as all of them differed in describing the arms of the 9 different accused persons. Appellants P.W.1’s P.W.2’s P.W.4’s described version version version having Armed in fardbeyan armed with armed with armed with Appellant No.1- Tangi Tangi Tangi Tangi Appellant No.2- Lathi Lathi Danda Lathi Appellant No.3- Lathi Lathi Rod Rod Appellant No.4- Bhala Kudal Kudal Bhala Appellant No.5- Lathi Bhala Bhala Lathi Appellant No.6- Lathi Lathi Danda Lathi 11. Hence the aforesaid inconsistency with regard to accused armed with different weapon also suggests improbabilities of P.Ws.1, 2 and 4 having seen the occurrence in the manner alleged. 12. So far as the presence of the informant at the place of occurrence is concerned, the inconsistency in the evidence of P.W.4 (informant) viz-a-viz the fardbeyan creates doubts about presence of the informant at the place of occurrence, particularly, the inconsistency appearing with regard to the manner of assault in the evidence of P.Ws.1 and 2 which lends credence to the suggestion given by the defence side with regard to presence of P.W.4 at village Dumra More, which is at a distance of 6 to 7 miles from the place of occurrence, in “Milad” ceremony at the house of informant’s brother-in-law (sala) on the occasion of birth of his daughter. 13. The evidence of P.Ws. 2 and 4 also gets clouded with regard to manner of assault 10 with the evidence of P.W.1 in paragraph 6 that he raised alarm after assault. He further stated that after assault, the accused persons fled away immediately. P.W.2 in paragraph 8 of his evidence has stated that the victim received injury on the head and at the side of abdomen which is not only inconsistent with the evidence of P.Ws.1 and 4 but also completely inconsistent with the evidence of P.W.7, the doctor, who did not find any injury on the side of the abdomen of the deceased. P.W.4 in paragraph 13 has specifically stated that he reached to the place of occurrence after assault in following words “Bahar se hamne “maro maro” ki awaz suna tha, tab ghar se nikle. Tangi marne ke baad aya tha” which creates complete doubt about the claim of P.W.4 as an eye witness. 14. P.W.6 (Investigating Officer) in paragraph 12 of his evidence has specifically stated that in the subsequent statement P.W.4 has not stated about giving a blow from the butt portion of the axe to the deceased which proves the fact that the informant deserted his version right at the stage of subsequent statement. The evidence of P.W.6 further clarified in paragraph 8 that P.W.1 never stated to him that he was sitting with the deceased at the time of occurrence and was 11 helping the deceased in making the rope out of jute fibre. The Investigating Officer has further stated in paragraph 8 that P.W.1 has never named Kadam Rasool Mian, Jakir Mian and Kanhai Mandal as participants in the occurrence. P.W.6 in paragraph 9 has stated that P.W.2 never stated about two assault being made by Bhojal Mandal. 15. The evidence of P.W.6 (Investigating Officer) further impeaches the credibility of P.Ws. 1,2 and 4. Right from the fardbeyan to the evidences of P.Ws.1, 2 and 4 the case of the prosecution is that Bhojal Mandal assaulted the deceased on the order of accused Kadam Rasool Mian, appellant no.2 but since this fact was not stated by the witnesses to the Investigating Officer whose attention has been drawn in the cross-examination, particularly, in paragraph 8. Hence we come to the conclusion that the allegation of order giver against appellant no.2 Kadam Rasool Mian has not been proved by the prosecution. 16. From the evidence of P.Ws. and also considering the fardbeyan it appears that no overt act has been alleged against any other accused except Bhojal Mandal. This fact has been specifically admitted by P.W 1 in paragraph 1 by saying that none of the accused made any overt act in following words: “Bhojal 12 Mandal Ne Hamare Baba Ali Mohammad Ke Matha Par Tanga Chala Diya Aur Kisi Mudaleh ne kuchh nahin kiya”. 17. In view of the discussion made above, this Court is of the opinion that appellants were not sharing common object. For proving the charge under Section 149 of the Indian Penal Code it is not necessary that other accused must act in pursuance to the sharing of the common object but the court on the basis of evidence on record has to gather the sharing of common object which is ascertained from the conduct of the accused. If other accused were armed with weapons, there was nothing to prevent them to make assault or even to assist the main accused Bhojal Mandal. Hence on this score we come to the conclusion that the prosecution has failed to prove the charge under Section 302/149 of the Indian Penal Code against the accused persons. 18. Since the charge against the main accused Bhojal Mandal has not been proved by the prosecution witnesses as their credibility is not as such that they can be relied. 19. The credibility of the prosecution witnesses further gets clouded in view of the fact that the specific suggestions have been made with regard to the enmity and litigation between the parties which has broadly been 13 denied by the prosecution witnesses, particularly, the informant P.W.4. Exts. 5 and 6 of the prosecution and Exts. D,E to E/2, F to F/3, G and H of the defence have been brought on record which are various certified copies of orders and judgments of the court to suggest that there were litigations in which the informant’s father and others were parties. In paragraph 8 of the judgment, the learned trial court on perusal of the exhibits (page 11 of the judgment) admitted the enmity between the parties but has not conferred the benefit of doubt to the appellants and has relied upon the inconsistent evidences of P.Ws. 20. The conduct of accused Bhojal Mandal also creates doubt about the prosecution version as P.W.6 in paragraph 6 has stated that he arrested Bhojal Mandal from his house on the next day of the occurrence. It appears unreasonable that a person, who alleged to have assaulted and fled away from the place of occurrence after ascertaining the death of the victim as stated by P.Ws. 1 and 2, will allow himself to stay in the neighbouring house allowing the police to come and arrest. Hence on this score also the adverse inference is drawn with regard to the prosecution version. 21. Learned counsel for the appellants Mr.Amarnath Deo submits that the blood stained 14 shawl, jute fibre and other articles which were seized from the place of occurrence were neither sent for chemical examination nor they have been produced as Material exhibits during trial. The aforesaid submission gets confirmed with the deposition of P.W.6 in paragraph 6 that the seized articles were not sent for chemical examination. This was deliberate laches on the part of the Investigating Officer. 22. It has further been submitted that the source of identification was not there as it was the 9th October, a dark night as the winter starts in villages a bit early. This contention of the appellants’ counsel has no force in view of the consistent evidence of P.Ws. 1,2 and 4 that it was moon lit night and the occurrence took place near a jackfruit tree outside the house. This part of evidence of P.Ws. has not been controverted by the defence. 23. So far as the place of occurrence is concerned, it is consistent case of P.Ws. 1,2, 4 and 6 in paragraph 1 and 4 respectively that the occurrence took place near the jackfruit tree outside the house and the defence has not disputed the place of occurrence. Hence the place of occurrence has been proved by the prosecution. 24. It is lastly submitted by the 15 learned counsel for the appellants that important material witnesses have been withheld, particularly, the attesting witness of the fardbeyan, Tajmul Mian and the witness to the inquest, Amin Mian. 25. Learned counsel for the State Ms Shashi Bala Verma submits that the inquest has been proved by P.W.5 which has not been challenged. Moreover, it is not necessary for the prosecution to examine all the prosecution witnesses. It is not the quantity but quality of evidence matter in criminal trial and none examination of two witnesses namely, Tajjamul Mian and Amin Mian has not prejudiced the case of the accused persons. We find substance in the submission of the learned counsel for the State. Hence on these points the submission of the learned counsel for the appellants is not acceptable. 26. On scanning the entire evidence on record, we come to the conclusion that the prosecution has not been able to prove the manner of assault and the credibility of prosecution witnesses is not above board. Hence we are unable to sustain the judgment and order of conviction and sentence. 27. In the result, the judgment of conviction and order of sentences are set aside. The appellants are acquitted. The 16 appellants are discharged from the liabilities of their respective bail bonds. 28. The appeal is allowed. Patna High Court,Patna The 16th September,2010 Tahir/-(NAFR) ( Shyam Kishore Sharma, J.) ( Dinesh Kumar Singh, J.)