Criminal Appeal (DB) No.1042 of 2006 [Against judgment of conviction dated 17th October, 2006 and sentence dated 18.10.2006 delivered by Sri Narayan Prasad Singh, Additional Sessions Judge, Fast Track Court-IV, Sheikhpura in Sessions Trial No. 309 of 2002 / T.R. No.189 of 2006 arising out of Ariyari (Chewra) P.S. Case No.88/2007, G.R. No.290/2001] ========================================================== 1. Kapildeo Singh, S/o Late Mishri Singh. 2. Raj Kishore Singh, S/o Late Mishri Singh. 3. Ranjit Singh @ Ranjit Kumar, S/o Kapildeo Singh All resident of Village-Akarha, P.S.-Chewara, District-Sheikhpura. .... .... APPELLANTS. Versus The State of Bihar .... .... RESPONDENT. with Criminal Appeal (DB) No. 1044 of 2006 ========================================================== Shankar Singh, son of late Ram Raksha Singh, resident of village-Akhora, P.S.- Chabra, District- Sheikhpura. .... .... APPELLANT. Versus The State of Bihar .... .... RESPONDENT. with Criminal Appeal (DB) No. 1061 of 2006 ========================================================== 1. Awadhesh Singh, son of Sri Kishundeo Singh. 2. Guddu Singh, son of Awdhesh Singh. Both resident of village-Akhora, P.S.-Chabra, District- Sheikhpura. .... .... APPELLANTS. Versus The State of Bihar .... .... RESPONDENT. with Criminal Appeal (DB) No. 1073 of 2006 ========================================================== 1. Seth Singh, son of Late Ramji Singh. 2. Sanjay Kumar @ Sanjay Singh, S/o Kapildeo Singh. 3. Bholi Singh @ Rajiv Kumar, S/o Kapildeo Singh. All resident of village-Akarha, P.S.-Chewara, District-Sheikhpura. .... .... APPELLANTS. Versus The State of Bihar .... .... RESPONDENT. with Criminal Appeal (DB) No. 1109 of 2006 ========================================================== Santosh Singh, S/o Raj Kishore Singh, Resident of village-Akarha, P.S.-Chewara, District-Sheikhpura. .... .... APPELLANT. 2 Versus The State of Bihar .... .... RESPONDENT. ========================================================== Appearance : (In CR. APP (DB) No. 1042 of 2006) For the Appellants : Mr. Kanhaiya Prasad Singh, Sr. Advocate. Mr. Awanish Kumar Singh, Advocate. Mr. Santosh Kumar, Advocate. Mr. Arun Kumar For the Respondent : Mr. Dilip Kumar Sinha, A.P.P. (In CR. APP (DB) No. 1044 of 2006) For the Appellant : Mr. Awanish Kumar Sinha, Advocate. For the Respondent/s : Mr. Dilip Kumar Sinha, A.P.P. For the Informant : Mr. Md.Imteyaz Ahmad, Advocate. Mr. Ajay Kumar Thakur, Advocate. (In CR. APP (DB) No. 1061 of 2006) For the Appellants : Mr. Rana Pratap Singh, Sr. Advocate. Mr. Sanjeev Ranjan, Advocate. Mr. Sarvesh Kumar Singh, Advcoate. For the Respondent : Mr. Dilip Kumar Sinha, A.P.P For the Informant : Mr. Md.Imteyaz Ahmad, Advocate. Mr. Ajay Kumar Thakur, Advocate. (In CR. APP (DB) No. 1073 of 2006) For the Appellants : Mr. Arun Kumar, Advocate. Mr. Bipin Kumar, Advocate. For the Respondent/s :Mr. Dilip Kumar Sinha, A.P.P For the Informant : Mr. Md.Imteyaz Ahmad, Advocate. Mr. Ajay Kumar Thakur, Advocate. (In CR. APP (DB) No. 1109 of 2006) For the Appellant : Mr. Bipin Kumar, Advocate. Mr. Arun Kumar, Advocate. Mr. Avanish Kumar Singh 'Rana, Advocate. For the Respondent/s : Mr. Dilip Kumar Sinha, A.P.P For the Informant : Mr. Md.Imteyaz Ahmad, Advocate. Mr. Ajay Kumar Thakur, Advocate. ========================================================== PR E S E N T HON’BLE MR. JUSTICE SHAYAM KISHORE SHARMA AND HON’BLE MR. JUSTICE ADITYA KUMAR TRIVEDI A.K. Trivedi, J. Criminal Appeal No.1109 of 2006 wherein Santosh Singh happens to be the appellant, Criminal Appeal No.1073 of 2006 wherein Seth Singh, Sanjay Kumar @ Sanjay Singh, Bholi Singh @ Rajiv Kumar happen to be appellants, Criminal Appeal No.1042 of 2006 wherein Kapildeo Singh, Raj Kishore Singh, Ranjit Singh @ Ranjit Kumar happen to be the appellants and 3 Criminal Appeal No.1044 of 2006 wherein Shankar Singh happens to be the appellant commonly originate against judgment of conviction dated 17th October, 2006 and sentence dated 18.10.2006 delivered by Sri Narayan Prasad Singh, Additional Sessions Judge, Fast Track Court-IV, Sheikhpura in Sessions Trial No.309 of 2002 / T.R. No.189 of 2006 accordingly there has been analogous hearing and are being disposed of by a common judgment. Appellant, Santosh Singh has been found guilty for an offence punishable under Section 148, 302 I.P.C. and 27 of the Arms Act and been directed to undergo R.I. for life under Section 302 of the I.P.C., R.I. for five years under Section 27 of the Arms Act and the sentences have been directed to run concurrently. No separate sentence has been awarded for an offence punishable under Section 148 of the Indian Penal Code. Appellant, Awadhesh Singh, Shankar Singh, Guddu Kumar, Sanjay Singh, Ranjit Singh, Seth Singh, Bholi Singh, Kapildeo Singh, Raj Kishore Singh have been found guilty for an offence punishable under Section 148, 302/149 of the IPC and were directed to undergo R.I. for life though no separate sentence has been awarded for Section 148 I.P.C. Tanik Lal Singh, P.W.4 gave his fardbeyan (Exhibit 4) on 14.5.2001 at about 05:15 P.M. at his Darwaja before officer-in-charge of Chewara P.S. alleging inter alia that on the same day at about 6 A.M. Awadhesh Singh along with Santosh Kumar, Shankar Singh, Guddu Kumar, Bholi Kumar, Sanjay Kumar, Ranjit Kumar, Kapildeo Singh, Raj Kishore Singh, Seth Singh along with 3-4 others armed with rifle, gun came and surrounded his house. Then thereafter they abused and said that why you have gave vote in favour of Shambhu Singh. Whole family will be eliminated. He begged and further disclosed that he happens to be an old and infirm and further is unable to move, 4 So he had not cast vote in favour of anybody. Then he sat in his Baithka. Hearing noise, his brother Uma Shankar, Janardhan, Vijay, Soni and others who were sleeping at the roof of his house, awakened and further forbidden then not to abuse. Inmates have shut the door. During course thereof, Awadhesh Singh, Shankar Singh, Santosh Kumar and Bholi singh began to fire. Awadhesh Singh disclosed that they will not open the door so anyhow we should manage to climb over roof. Raj Kumar Singh was repeatedly asking for opening of the door. In the midst thereof Seth Singh, Guddu Kumar, Sanjay Kumar, Ranjit Kumar, Bhola Kumar, Shankar Singh climbed over roof of Seth Singh. Within five minutes Santosh and Guddu began to raise alarm to slip there from as they have shot at the head of Uma Kant. His brother began to flounce. Thereafter, he was taken towards Ariyari but again the accused persons intercepted on account of which he was taken to Sheikhpura through Chewari. From there he has been forwarded to Patna where he died. The motive for occurrence has been suggested as during last Mukhiya Panchayat as they have supported Shambhu Singh so the accused persons have committed the offence. On the basis of the aforesaid fardbeyan Ariyari (Chewara) P.S. Case No.88 of 2001 was registered under Sections 147,148,149,341,324,307,302 of the I.P.C. and 27 of the Arms Act followed with investigation and submission of charge sheet under Sections 147, 148, 149, 342, 302, 120(B) I.P.C. and 27 Arms Act. Where under cognizance was also taken and accordingly, case was committed to the court of Session whereupon accused face trial which ultimately concluded in conviction. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that accused persons are innocent and they have been falsely implicated in this case on 5 account of previous animosity prevailing amongst the parties. Then submitted that the whole allegation whatever been levelled against the appellant / convict happens to be imaginary one and further is an afterthought story. In support of their defence, exhibit A, A/1, B has been brought up on record. Altogether five P.W.s have been examined on behalf of prosecution out of whom P.W.1 is Vijay Kumar, P.W.2 is Ashwini Kumar @ Soni, P.W.3 Sumitra Devi, P.W.4 Tanik Lal Singh and P.W.5 Dr. Ashok Kumar Yadav. Subsequently thereof, two police officials were examined as C.W.1 Ramesh Kumar Sharma, C.W.2, Rameshwar Singh. Side by side also exhibited Exhibit 1 Series signature of attesting witness, Exhibit 2 postmortem report, Exhibit 3 endorsement, Exhibit 4 fardbeyan, Exhibit 5 Series relevant page of case diary, Exhibit 6 formal F.I.R., Exhibit 6 F.I.R. of Chewara P.S. Case No.70 of 2001 and Exhibit 7 C.C. of order dated 12.07.2002. While assailing the judgment of conviction and sentence it has been submitted on behalf of appellant that the finding of the learned lower court with regard to guilt of accused is arbitrary and is not at all supported with the evidence on record as well as by circumstances. Then it has been submitted that from the ocular evidence whatsoever been deposed by P.W.1 to 4, they not only falsified their own testimony rather they have tried to change the manner, genesis of the occurrence. That means to say the prosecution had tried to suppress the actual mode of occurrence wherein deceased was done to death and that happens to be reason behind non-examination of important witnesses including the other family members. It has further been submitted that on 14.05.2001 Vijay Kumar had given fardbeyan at the P.M.C.H. itself and the aforesaid fardbeyan was suppressed by the prosecution. However, by examination of C.W.2, the defence has been able to exhibit the same and after 6 going through the same, it is evident that the same happens to be inconsistent with the version whatever came out from exhibit 4. Further submitted that on conjoint reading of both the documents, it is evident that two different kind of story has been flashed by the prosecution contradictory to each other so far manner of occurrence is concerned. Further submitted that P.W.2 stood as an attesting witness of occurrence over Exhibit A and during cross-examination, when his attention was drawn towards the sanctity of the document, his answer is sufficient to construe that neither P.W.1 nor P.W.2 happens to be an eye- witness to occurrence, and if they are to be accepted as an eye witness, it ruins the whole prosecution version as flashed over manner of occurrence. It has further been submitted that from Exhibit 4, the fardbeyan, it is evident that the informant can‟t be an eye witness to occurrence. Certainly he cannot be, as according to fardbeyan he sat at his Baithaka while the accused gone to the roof of Seth Singh from there firing was made. He had not claimed that he had seen Santosh putting aim at deceased Uma Singh. Rather he had spoken that Santosh raised alarm that he had shot Uma Kant. When the evidence of informant as P.W.4 is taken together, there happens to be considerable improvement / development in his testimony and the same makes him a lier. In likewise manner, from the evidence of P.W.3 she cannot be a witness of occurrence. The aforesaid inconsistencies are bound to over shadow, the prosecution case and further, it put prosecution under such awkward situation by non-examination of FIR attesting witness Kariya Nand Prasad and Mritunjay Kumar intentionally and purposely so that the real occurrence should not unripped. The prosecution further masqueraded by keeping the other family members including Janardan, one of the brother away without any explanation. 7 Though there happens to be definite assertion that they have jointly slept at their roof where deceased Uma Kant sustained gun shot injury. Therefore evidence of all the persons who were at roof should have been examined to prove positively, conclusively that deceased had sustained gun shot injury in away as narrated in the fardbeyan (Exhibit 4) Then it has been submitted that there happens to be inconsistency amongst the ocular as well as medical evidence. As per prosecution version, the firing was made from the roof of Seth Singh which is a single story building while the deceased was over his roof, a double storied building so there should have been presence of gun shot injury projecting towards upward direction but, surprisingly enough, no such injury is available over the person of the deceased and this again goes to adversely affect upon the credibility of the prosecution version. Not only this, it has also been submitted that none of the boundary, independent witness come forward to support the case of the prosecution although these happens to be clear cut discloser by the witnesses regarding their presence after the occurrence at the spot. Prosecution also failed to put forward any cogent, plausible explanation for their non-examination. The other circumstance, as has been raised by the learned counsel for the appellant is that the FIR happens to be antedated. To support the plea, it has been submitted that as per Section 157 of the Cr.P.C., the FIR was to be sent to the Magistrate within 24 hours from registration of the case. The registration of the case was made on 15.5.2001 while the FIR was received at the office of CJM on 17.5.2001. So, in the background of long standing group rivalry, it could safely be said that prosecution party have become puppet at the hands of Shambhu Singh, the opponent of the appellant and at whose direction instant 8 case has been filed implicating the appellants. So, in sum and substance attracting attention towards different paras of the P.W.s as well as in the background of the infirmities whatever been argued, it has been submitted that prosecution could not be held to be able to substantiate its case and as such finding recorded by the learned lower court happens to be contrary to the materials available on the record and is accordingly fit to be set aside. Counter meeting with the submission raised on behalf of appellant, it has been submitted on behalf of learned counsel for the State that the prosecution has been able to substantiate its case as a result of which the finding of the learned lower court holding the appellants guilty for an offence of murder is fully justified. Further, elaborating his submission, the learned counsel for the State submitted that from the evidence available on the record the place of occurrence has been proved which happens to be roof of deceased where he along with other witnesses was sleeping since before and who, after hearing sound of noise, abuse, woke up and began to see standing by the side of railing where deceased was aimed and shot at by Santosh which proved fatal. Also submitted that presence of P.W.1, P.W.2 and the P.W.3 at the roof have been established and so they happens to be the eye-witness of occurrence. Then it has been submitted that P.W.4, informant, an old fellow right from the fardbeyan did not claim to be an eye witness to occurrence, rather whatever he stated in the fardbeyan to the extent of hearing call by Santosh that deceased Umakant was shot at, narrated in court. So this witness also corroborated the story without any embellishment. Now, coming to medical evidence, apart from examination-in- chief, there happens to be nothing adverse to prosecution in his cross- examination which could discredit the testimony of eye witnesses. It happens to 9 be mere submission that having the firing made from lower level to upper level, the position of injury will be in upward direction. So many factors are responsible which could not support the argument raised on behalf of defence on this score because of the fact that in so many cases, the pellet gets reflected after striking upon the bony surface. Not only this, the doctor had also negated the aforesaid suggestion flashed by the defence during cross-examination. It has also been submitted that when the presence of family member appears to be probable then in that course presence of only family members excluding an independent witness is not going to give any adverse impact upon the prosecution case. It was a morning hour. All the family members were sleeping at the roof. Being awakened on hearing uproar put their presence near railing where under one of them sustained injury at the hands of accused, really rules out presence of other independent witnesses. Also submitted that there happens to be no justification at the score of prosecution to exonerate the real culprit and involve others, which at least family members would not do. Further submitted that having the incidence of murder at earlier count in the village, for which documents have already been brought up on record, might have restrained the independent witness to come forward. Then coming to non-examination of Janardan, whose name figures in the fardbeyan as well as Karyanand Prasad and Mritunjay Kumar who happens to be the FIR attesting witness including other charge sheet named witness, it has been submitted that Soni Kumar is dead. The non-examination of Janardan was as a result of his non-examination by the I.O. on account of his slackness. It is not the sound principle of law that for want of non-examination of other witnesses, prosecution story should be disbelieved rather the preposition happens to be the prosecution version should be scrutinized from the evidence of 10 the witness who have been examined to the extent whether it happens to be credible, trustworthy. With regard to presence of exhibit B, it has been submitted that save and except certain variance at first part of occurrence regarding presence of accused, the manner of occurrence, place of occurrence remains in tact and firm. Even taking into account the minor inconsistency as is visualizing from Exhibit B, it cannot be said that it has changed the prosecution version as well as it puts mark of interrogation over authenticity of the prosecution version. Even accepting for an argument sake, it is bounded duty of the court to separate the grain from the chaff that means to say the court is under obligation to separate the truth from falsehood because the “falsious in uno falsious in omnibus” is not at all applicable. Therefore, it has been submitted that in sum and substance after taking into account the totality of the materials adduced by prosecution, guilt of the appellant is found to be fully proved. Consequent thereupon appeal is fit to be dismissed. To appreciate the rival contention, it looks pertinent to go through the evidence first. P.W.1 happens to be Bijay Kumar. He had deposed that it was 14.5.2001 at about 5-6 A.M. At that very time he along with his uncle and two others was sleeping over roof. His uncle was Umakant Singh and Janardan Singh and brother was Ashwini Kumar. At that very time he heard sound of abuse as well as noise coming from ground. After hearing sound all of them awakened and began to see after standing near railing and found Awadhesh Singh, Santosh Kumar, Guddu Kumar, Raj Kishore Singh, Seth Singh, Shankar Singh who were abusing his whole family. They forbidden them over which they began to fire. Thereafter, Awadhesh Singh ordered to climb over roof over 11 which they all gone to the roof of Seth Singh and named Santosh, Guddu, Shankar, Sanjay, Bholi, Ranjeet, Seth, Santosh Kumar shot at his uncle, Umakant Singh there from causing injury at his left temporal region. His uncle fell down. Santosh and Guddu after raising alarm that they have shot at Umakant, fled away. Then, thereafter, they tried to carry his uncle to Sheikhpura through Ariyari but the accused persons intercepted. However, the villagers assembled and then they have gone to Sheikhpura through Chewara . From Sheikhpura his uncle was referred to Patna and midst of way, his uncle died which was declared at PMCH. Postmortem was conducted at Patna and thereafter they conducted funeral at Patna and then returned. He identified the accused. Further had disclosed that during Mukhiya election they have supported Shambhu Singh, therefore, the accused persons have committed the offence. In course of cross-examination at para-5 had said that he along with Janardan Singh, Ashwini Kumar, Anjani Kumar, Shambhu Singh, Subodh Kumar, Amod Singh, Dani Singh, Sulo Kumar, Mritunjay Kumar have gone up to Chewara and from there he along with Janardan Singh, Ashwini Kumar, Shambhu Singh, Amod Singh have gone to Sheikhpura and from there to Patna. In para-6 had said that Sheikhpura Thana lies 3 K.M. away from Sheikhpura Hospital. He had not informed at Sheikhpura P.S. At para-7 had disclosed that at Chewara he had met with Barababu who had instructed him firstly to go to Sheikhpura Hospital however the aforesaid Barababu did not accompany. At para-10 had exhibited his signature over his fardbeyan as well as signature of Ashwini Kumar which he had given at PMCH. At para-11 had said that protest petition was filed in this case. Firstly, he denied to have read the fardbeyan but later on admitted that he had gone through the same. Then he had denied the suggestion of the defence that as there happens to be consistency in between the 12 fardbeyan of informant Tanik Lal Singh as well as in the fardbeyan given by him, therefore, he has denied. Then para-12, 13 and 14 happens to be the contradiction put to him with regard to the fardbeyan given by him at Pirbahore P.S. Exhibit „C‟. In para-15 had said that when he returned back from Patna, he came to know that Tanik Lal had already instituted a case. In para-17 was cross- examined over last Mukhiya Election. At para-19 had said that he happens to be son of Tanik Lal. Tanik Lal happens to be three brother Tanik Lal, Janardan and Umakant. In para-20 had said that they have slept at night 09.30 P.M. They have taken meal bread, vegetable and milk. None had gone to ease. When Umakant was coming from latrine then the occurrence was committed. Further said that they have awakened after hearing noise. Then had said that he had not seen Umakant going to latrine but had seen while he was coming out. At that very time there was noise. Latrine is situated at the roof itself. In para-21 had said that his house happens to be double storied. The ground floor happens to be about 9 feet height, while upper floor 8 feet height. They were sleeping over roof of upper house. Railing is about two and half feet height. One latrine is at the roof. Aforesaid latrine was shown to the investigating authority. In para-22 had said that height of Seth Singh building happens to be about 10 feet. No room is presnt at his roof. Then had denied the suggestion, that no occurrence as alleged had taken place. He had further denied that he is not an eye witness to occurrence. Also denied that all these persons are not at all responsible for committing the occurrence. Further denied that, that happens to be reason behind inconsistency in the statement. P.W.2 happens to be Ashwini Kumar @ Soni son of deceased. He had deposed that deceased Umakant happens to be his father. Occurrence is of dated 14.5.2001 at about 5-6 A.M. At that very time he along with his father 13 Umakant Singh, Janardan Singh, Vijay Singh along with other family members was sleeping at the roof of double storied house. After hearing noise they awakened. At that moment his mother Sumitra Devi came and disclosed that Awadhesh Singh, Raj Kishore Singh, Bholi Kumar, Raj Kumar, Sanjay Kumar, Santosh Kumar, Guddu Kumar, Seth Singh all have surrounded the house and are abusing. When his father and Janardan Singh protested all began to fire. Thereafter, on an order of Awadhesh Singh, Seth Singh took all of them to his roof whose house lies adjacent west to his house. On an order of Awadhesh Singh, Santosh fired causing injury over left temporal region of his father. His father fell down. Then thereafter all the accused fled there from raising alarm. Subsequent to that, they have lifted his father for treatment but the accused persons intercepted them in the midst of way which was prevented by presence of villagers. Then, thereafter, they took injured Umakant to Sheikhpura Hospital through Chewara from where doctor referred him to PMCH where doctor had declared him dead. The previous Mukhiya election wherein they have supported Shambhu Singh is the cause for commission of the occurrence. Further he exhibited inquest report as well as also identified accused persons. During cross- examination he had accepted his signature over fardbeyan given by Vijay