CRIMINAL APPEAL No.259 OF 1988 ----- Against the judgment of conviction and order Of sentence dated 25.04.1988 passed by the Learned Additional Sessions Judge-IX, Patna, in Sessions Trial No. 775/23 of 1986-88. ----- 1. Chandeshwar Singh, Son of Jangi Singh. 2. Shatrughan Singh, Son of Dina Nath Singh. All residents of Village- Mauri, P.S. Paliganj in the district of Patna. …………..Appellants. -Versus- The State of Bihar……………………………..Respondent. -With- CRIMINAL APPEAL NO. 288 OF 1988. ----- Udheshwar Singh, Son of Jagdeo Singh, resident of village-Mauri, P.S. Paliganj in the district of Patna…………………………………Appellant. -Versus- The State of Bihar…………………………………………Respondent. ----- For the appellants(in both : Mr.Shailendra Cases) : Kumar,Advocate, For the State : Ms. Shashi Bala Verma, A.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. The three appellants through the aforesaid two appeals have challenged the judgment of conviction and order of sentence dated 25.04.1988 in Sessions Trial No. 775/23 of 1986-88 passed by the learned Additional Sessions Judge-IX, Patna, whereby the 2 appellant Udheshwar Singh has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life whereas other two appellants Chandeshwar Singh and Shatrughan Singh have been found guilty under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years each. 2. The prosecution case, as per the fardbeyan of Banke Singh(P.W.7), recorded by S.I. Sri R.D. Mishra(P.W.9) of Paliganj P.S. on 17.05.1983 at 7.30 P.M. at the door of the informant (P.W.7),in an injured condition, is to the effect that the informant(P.W.7) alongwith Upendra Singh(P.W.3), his uncle Alakh Narayan Singh(P.W.4) were sitting at the door of his cousin brother at 4.00 P.M. on 17.05.1983, when, the accused persons wanted to take their tractor loaded with unbaked bricks to the brick-kiln through the lane adjacent to the land of informant’s side, which resulted into hot exchange between Rajeshwar Singh and Saroj Singh (both acquitted) and informant Upendra Singh and other (P.W.3). It is alleged that heap of straw of Upendra Singh and cattle feed pot 3 (Naad) were damaged by the accused persons one day prior to the occurrence, as a result of which Upendra Singh was objecting to the passing of tractor from that place. In the meantime, from eastern side Udheshwar Singh (appellant) Dina Nath(acquitted) and Shatrughan Singh (appellant)armed with Spear (Bhala), Bindeshwar Singh (acquitted) Rajeshwar Singh, Surendra Singh (acquitted), Kaushal Singh (acquitted), Nand Singh (acquitted), Mithilesh Singh (acquitted),Tuli Singh (acquitted), Jai Narayan Singh (acquitted), Subhash Singh (acquitted) came armed with Lathi when Rajeshwar Singh (acquitted) ordered, upon which Chandeshwar Singh gave spear (Bhala) blow on stomach of informant (P.W.7) whereas Shatrughan Singh gave Bhala blow on wrist of the informant. Udheshwar Singh gave Bhala blow to Saryug Singh on the side of the abdomen as a result of which he fell down, then the accused persons assaulted Saryug Singh with Lathi as a result of which he died on spot. The informant’s brother Tileshwar Singh has been assaulted by Dina Nath Singh by spear which hit on the left elbow and then Tileshwar Singh 4 was also assaulted by other accused persons by Lathi. On alarm being raised by the informant, villagers came at the place of occurrence. The informant claimed that occurrence was seen by Upendra Singh (P.W.3), Alakh Narayan Singh (P.W.4), Ram Prasad Singh(P.W.1), Radhey Singh (P.W.2) and others. 3. The reason for the occurrence is alleged to be that the accused persons forcibly tried to take the tractor through the land of uncle of informant by demolishing the heap of the straw. 4. On the aforesaid allegations, Paliganj P.S. Case No. 119 of 1983 was registered under Sections 147, 148, 149, 324,307 and 302 of the Indian Penal Code. 5. The police after investigation submitted charge sheet and consequently cognizance was taken. Fourteen accused were put on trial, of which thirteen were charged under Sections 302 and 149 of the Indian Penal Code whereas against accused Udheshwar Singh charges were framed under Section 302 of the Indian Penal Code. Against Chandeshwar Singh, Dina Nath Singh and Shatrughan Singh charges were also framed under Section 324 of the 5 Indian Penal Code. Charges were also framed under Section 323 against Surendra Singh and under Section 148 of the Indian Penal Code against accused Udheshwar Singh, Chandeshwar Singh, Shatrughan Singh, Dina Nath Singh whereas charges were also framed under Section 147 against Bindeshwari Singh, Nand Singh, Mithilesh Singh, Jai Narayan Singh, Rajeshwar Singh, Kaushal Singh, Surendra Singh, Subhash Singh, Saroj Singh and Tuli Singh. 6. The prosecution in order to substantiate the charges, examined 10 witnesses of which P.W.1-Ram Prasad Singh, P.W.2- Radhey Shyam Sharma, P.W.3- Upendra Sharma are F.I.R. named witnesses. P.W.4-Alakh Narayan Singh was sitting with informant at the time of occurrence but has been tendered. P.W.5 Dinesh Singh is a formal witness who has proved the signature on the inquest report (Ext.1). P.W.6 Tileshwar Singh, one of the injured, has been tendered. P.W.7 Bankey Singh is the informant. P.W.8 Dr. S.N. Barnwal conducted post mortem on the dead body of deceased Saryug Singh. P.W.9 Ramdin Mishra is the S.I. of Paliganj P.S. who recorded fardbeyan and subsequently investigated the 6 case. P.W.10 Dr. R. P. Sinha has examined the injuries of Tileshwar Singh (P.W.6) and informant Banke Singh (P.W.7). P.W.10 has also examined the injuries of the appellant Udheshwar Singh. 7. The defence has also examined five witnesses of which D.W.1 is Ravindra Sharma who has come to prove Ext-“A” gift deed executed by Nageshwari Kuar in favour of D.W.1’s mother, Shyam Sundari Devi. D.W.2 is Dineshwar Singh who is the witness to gift deed as contained in Ext. “A”. He is brother of Bindeshwar Singh and Udheshwar Singh. On instruction of Nageshwari Kuar he signed on the alleged gift deed as a witness. D.W.3 is formal witness who has deposed that Ram Chandra Singh of village Mauri had filed an informatory petition before the S.D.O., Danapur on 30.06.1982. D.W.4 is Ram Chandra Singh who has proved informatory petition dated 30.06.1982(Ext.B). D.W.5 is Bachhu Narayan Lal who has proved (Ext.C) the destruction report of record room. 7 8. The learned trial court convicted only three appellants out of fourteen accused relying on the evidences of P. Ws. 1,2,3 and 7 since there was specific allegation of assault against them. Though there was specific allegation against Dina Nath Singh to have assaulted Tileshwar but the injured Tileshwar Singh(P.W.6) has been tendered and failed to support the prosecution case leading to acquittal of Dina Nath whereas others were also acquitted on same set of evidences. P. Ws. 1, 2, 3 and 7 are claiming to be eye witnesses. So far as the manner of occurrence is concerned, P.W.1 in paragraph no.2 of his evidence has stated that on the order of Rajeshwar Singh and Saroj Singh, Jugeshwar assaulted with Bhala to Banke Singh (P.W.7) on the stomach. Dina Singh also assaulted Banke Singh(P.W.7) whereas Udheshwar Singh assaulted Saryug Singh with Bhala on the left side of abdomen, thereafter the accused persons assaulted Saryug with Danda. Hence P.W.1 talks about the assault by Jugeshwar Singh and Saroj Singh which is contrary to the informant’s case in the fardbeyan which specifically suggests that on the order of 8 Rajeshwar Singh, Chandeshwar Singh gave Bhala blow on the stomach of informant whereas Shatrughan Singh gave Bhala blow causing injury on the wrist of the informant and Udheshwar Singh gave spear blow on lower part of abdomen of Saryug Singh whereas Dina Nath Singh gave Bhala Blow to Tileshwar Singh. Hence, P.W.1 does not talk about any assault being made by Chandeshwar and Shatrughan or any assault made to Tileshwar Singh(P.W.6). 9. So far as P.W.2 is concerned, he narrates the manner of occurrence in paragraph no.2 of his evidence that on the order of Rajeshwar Singh, Udheshwar Singh gave Bhala blow on the left side of the abdomen of Saryug Singh who fell down and died whereas Chandeshwar Singh gave Bhala blow to Banke Singh (P.W.7) and Dina Nath gave Bhala blow to Tileshwar Singh. Hence, the manner of occurrence as suggested by P.W. 2 is not only inconsistent to that of the evidence of P.W.1 but also inconsistent with fardbeyan of informant. P.W.2 does not talk about any assault made by Saroj Singh and Jugeshwar Singh or any assault being made by Lathi. 9 P.W.3 gives descriptions of manner of occurrence in paragraph no.2 of his deposition that on order of Rajeshwar Singh, Udheshwar Singh gave Bhala blow on lower portion of abdomen of Saryug Singh as a result of which he fell down. Chandeshwar Singh gave Bhala blow in abdomen of Banke Singh (P.W.7) whereas Shatrughan Singh also gave Bhala blow to P.W.7 while Dineshwar Singh was assaulted by Dina Singh with Bhala and thereafter the accused persons fled away. P.W.3 does not talk about any assault made to Tileshwar Singh (P.W.6) or any assault being made by Lathi to injured. P.W.7 describes the manner of occurrence in paragraph no.2 of his evidence that on order of Rajeshwar, Udheshwar Singh gave Bhala blow to Saryug Singh as a result of which Saryug Singh fell down and died on spot. Chandeshwar gave Bhala blow on the stomach of the informant and Shatrughan Singh gave Bhala blow to informant on the elbow and Dina Nath Singh assaulted Tileshwar Singh (P.W.6) whereas Surendra Singh assaulted with Lathi to informant and Tileshwar Singh, the uncle of informant. Hence, it appears that manner of 10 occurrence as deposed by eye witnesses is not only inconsistent inter-se but it is also inconsistent with the initial versions canvassed by the informant in the fardbeyan. In the first part of the fardbeyan, it has been alleged that accused Chandeshwar Singh was armed with Danda whereas in the latter part of the fardbeyan it is alleged that Chandeshwar Singh assaulted with Bhala to informant whereas the P. Ws. 1, 2, 3 and 7 during their depositions have specifically alleged that Chandeshwar Singh was armed with Bhala. Inconsistencies appearing in the evidences of eye witnesses impeach the credibility of these witnesses, which suggest that either they could not see the occurrence or they have not come before the court to depose the truth. The probability of P. Ws. 1, 2, 3 and 7 of seeing the occurrence gets doubtful on the ground that the informant in the fardbeyan has specifically got recorded that the occurrence took place at 4.00 P.M. on 17.05.1983 whereas P. Ws. 1, 2 and 3 in paragraph no.1 of their respective evidences have stated that they were present at their 11 houses at 5.00 P.M. when they heard some alarm thereafter they reached the place of occurrence. The fardbeyan was recorded three and half hours after the occurrence at 7.30 P.M. on same day which suggests that informant got the fardbeyan recorded after examining all pros and cons. When the informant (P.W.7) realized that the so-called eye witnesses have shifted the time of occurrence to 5.00 P.M., then in paragraph no.1 of his deposition he tried to improve his version by stating that occurrence took place in the evening of 17.05.1983. The aforesaid inconsistency not only leads to failure on the part of prosecution to prove time of occurrence but it also creates doubt about the credibility of the witnesses. 10. So far as the place of occurrence is concerned, it is the consistent case of prosecution that the accused persons were taking their tractor with unbaked brick to their brick-kiln from a lane(Gali) which was objected by informant because one day prior to the occurrence, the accused persons by taking tractor through the said lane(Gali) had 12 damaged the heap of straw of informant, where the occurrence is alleged to have taken place. P.W.1 in paragraph no.1 has specified that the scuffle or hot exchange was going on between the parties at the door of Upendra Singh but has not stated the exact place where the assault actually took place. P.W.2 in paragraph no.6 has stated that hot exchange was going on at the door of Upendra Singh whereas in paragraph no.7, P.W.2 has stated that the occurrence started at the door of Upendra but actual occurrence took place in the open field at the front of the door of Upendra whereas in paragraph no.11 he has specified that the place of occurrence is open land in front of the door of Upendra and the street. P.W.3 in paragraph no.1 has stated that the occurrence took place when he stopped the tractor but has not stated the specific place where the assault took place. P.W.7 has also not stated as to where the actual assault took place. P.W.9, the Investigating Officer in paragraph no.4 of his evidence has described the place of occurrence as the Verandah and 13 the open land in front of the door of Upendra and the street but has found the blood in the gali and has collected blood stained soil from the gali. Hence, by virtue of P.W.9’s evidence it is clear that the actual assault took place in the street and not at the door of Upendra as alleged by the prosecution. The evidence of P. Ws. 1, 2, 3 and 7, as well as the averment in the fardbeyan clearly suggest that it was the informant’s side who tried to stop the taking of the tractor by accused, through the lane which led to the occurrence which makes the defence version more plausible that the informant side were the aggressors. P.W.1 in paragraph no.8 of his evidence has clearly stated that there was only one lane(Gali) in the village through which the tractor was passing. Hence it can not be said that the accused persons were taking the tractor through the land of the informant. Though the plea has been taken in the fardbeyan as well as in the evidences of P. Ws. that one day prior to the occurrence the accused persons had driven the tractor from the same lane and had damaged the heap of straw of informant’s side. 14 P.W.7 in paragraph no.2 of his evidence has clearly stated that for previous occurrence no complaint was made to Choukidar or in the Panchayat. Moreover, it has clearly been admitted by informant in paragraph no. 21 of his evidence that he did not convey about the previous occurrence to any one. This fact proves that the genesis of the occurrence has not been proved by the prosecution side which lends credence to the defence version that due to the gift deed executed by Nageshwari Kuar in favour of the mother of appellant, Udheshwar Singh, the informant’s side were furious. It appears that both sides are close agnates and there was land dispute between the parties, as suggestion to that effect, with regard to the litigations have been given by all the eye witnesses. The post mortem report and the injury report also creates doubt about the manner of occurrence. The post mortem report of deceased Saryug Singh reflects five injuries, out of which only injuries nos. I and II appear to be external injuries. The specific case of the informant in the fardbeyan and his evidence is that Saryug Singh was given Bhala blow by 15 Udheshwar Singh whereas others assaulted with Lathi but it appears that apart from one penetrative injury, the other injury is abrasion which has been suggested by the doctor that it might have been caused due to fall of victim. Hence, the injuries of victim also clouds the manner of the occurrence as suggested by the prosecution witnesses, particularly by the informant. Though the informant has tried to improve his version by stating, during his evidence, in paragraph no. 17 that Saryug Singh was not assaulted with Lathi when he fell down receiving Bhala injury. Hence, it appears that the deceased received no Lathi injury as alleged by the informant and other eye witnesses. The manner of occurrence further gets clouded in view of the evidence of the informant in paragraph no.17 of his evidence where he has stated that the accused persons pierced Bhala several times in the abdomen of the victim, Saryug Singh whereas the post mortem report reflects only one piercing injury. Hence, the learned trial court wrongly came to conclusion that post mortem corroborates the injury alleged by the 16 prosecution. 11. The prosecution witnesses have admitted that the appellant Udheshwar Singh also received injury, as P.W.1 in paragraph no.13 has stated that he saw the injuries of Udheshwar Singh though he could not see the manner of his assault. In the similar manner, P.W.2 in paragraph no.10 has stated that he saw Udheshwar Singh in injured condition but he also could not see how he got assaulted. P.w.9 the Investigating Officer in paragraph no.8 has stated that he found Udheshwar Singh in injured condition admitted in the hospital and took his statement in the hospital. P.W. 10 in paragraph no.4 of his evidence has admitted this fact that he examined the injuries of Udheshwar Singh alongwith injuries of informant and Tileshwar Singh and found lacerated wound 3”X 1/2” X 2” bone deep on the right side of the frontal side above the right eye. The bone was cut to the extent of 1”X 1/4” and there was swelling 3 ½ X 3” around the wound and Udheshwar Singh was examined on 17.05.1983 at 7.45 P.M. when the age of the injuries of Udheshwar Singh was 17 given by doctor within 06 hours and the injury was found grievous in nature caused by hard and blunt substance. 12. The learned trial court has not relied on the injuries of Udheshwar Singh on the ground that in the counter case, which has been brought on record as Ext.”H”, it was alleged by Udheshwar Singh that Mahendra Sharma gave Garasa blow but the injuries have been found to be caused by hard and blunt substance by the doctor (P.W.10). 13. In our view, grievous injury was caused to Udheshwar Singh in the same transaction as P. Ws. 1,2, 3 and 7 noticed the injuries of Udheshwar Singh during the occurrence. Substantive case was lodged being Paliganj P.S. Case No. 120 of 1983 by Udheshwar Singh which was in the knowledge of P. Ws., as P.W.7 in paragraph no.13, P.W.3 in paragraph no.9 of their evidences have admitted the knowledge of counter case but deliberately this fact has been suppressed in the fardbeyan as well as in the evidences of eye witnesses and the very non-explanation by the prosecution of the grievous injury of Udheshwar Singh also clouds the credibility of 18 prosecution witnesses. 14. The law is very well settled that where the prosecution has failed to explain the injuries of the accused person then probability of prosecution version being untrue can not be ruled out. This proposition was agitated in the case of Mohar Rai Vs. The State of Bihar reported in A.I.R. 1968 S.C. 1281 paragraph no. 6 where the apex court observed as such: “ 6. The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants. ……………In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.” In case of Lakshmi Singh Vs. The State of Bihar reported in 1976 (4) S.C.C. 394(para 12) stipulates that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) 19 that the injuries probabilise the plea taken by the appellants.’ 15. The Apex Court held in the case of Mohar Rai Vs. The State of Bihar, A.I.R. 1968 S.C. 1281. “ In a murder case, the non- explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on the most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” 16. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by 20 aforequoted judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and are protected by the right of private defence or if the prosecution does not explain the injuries on the person of the accused the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. It is admitted fact that grievous injuries were found on the person of the accused hence the burden is on the prosecution to explain the injuries so as to satisfy the court as to the circumstance under which the occurrence had taken place. The only pre- condition for creating doubt on the prosecution case in view of injuries to the accused are, that the injury of the accused must be serious and the injuries has been received in the same transaction. So far as present case is concerned, P.W.10’s opinion suggests that the injuries were grievous. Moreover, the nature of injuries being bone deep on the face of Udheshwar Singh suggests that the injury was grievous and P. Ws. 1, 2, 21 3 and 7 have admitted this fact as referred above that the injuries to Udheshwar Singh were seen during the occurrence but deliberately they suppressed this fact by deposing that they have no knowledge how the injuries were caused. Hence in our view, the suppression of the injuries of accused Udheshwar as well as the counter case suggest that the prosecution has not come with clean hands. The evidences of P. Ws. 1, 2, 3 and 7 can not be held to be reliable since they are related to each other, and hence are interested witnesses whereas vital witnesses like Bhushan Tiwari and Dr. Surendra Kumar Singh have been withheld by the prosecution. Moreover, the occurrence took place in the street naturally it must have been witnessed by several villagers because the evidence of Investigating Officer suggests that there were several houses near the place of occurrence but no independent witnesses have come forward to depose before the court. 17. In the circumstances and discussions made above, we are of the view that the prosecution has absolutely failed to prove the manner of occurrence though the 22 death of Saryug Singh is an admitted fact but in a melee when free fight was going on it is difficult to say that whose overt act caused injury to Saryug Singh. Moreover, in view of grievous injury of Udheshwar Singh it is difficult to presume that Udheshwar Singh was in a condition to assault the deceased. 18. On the discussions made above it is apparent that prosecution has failed to prove its case beyond shadow of reasonable doubt, hence the judgment of conviction and order of sentences dated 25.04.1988 passed against the appellants are set aside. The appellants are acquitted and they are directed to be discharged from the liabilities of their respective bail bonds. 19. Both the appeals are allowed. Patna High Court Dated 27th September, 2010. U.K./N.A.F.R. (Shyam Kishore Sharma,J.) (Dinesh Kumar Singh,j)