CRIMINAL APPEAL No.487 of 1988 Against the judgement of conviction and order of sentence dated 18.8.1988 passed by 8th Additional Sessions Judge, Sasaram in Sessions Trial No.223/3 of 1987. 1. RAMNAGINA SINGH, 2. RANJIT SINGH, 3. LALJI SINGH & 4. SHYAMJI SINGH----------------------Appellants Versus THE STATE OF BIHAR-------------------Respondent ----- For the Appellants:- Sri Uma Kant Shukla & Sri Girish Chandra Sharma,Advocates For the State:- Sushri Shashi Bala Verma, A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ. The four appellants were put on trial in Sessions Trial No.233/3 of 1987 by the learned 8th Additional Sessions Judge, Sasaram by framing charges under Sections 302/34 and 323/34 of the Penal Code and by judgement delivered on the 18th day of August, 1988, were found guilty of committing both the offences. Each of the appellants was directed to suffer rigorous imprisonment for life and also for one year for his respective conviction under the above two counts. The learned trial Judge directed the sentences to run concurrently. The above judgement is being questioned before us by the four appellants by preferring the present appeal. - 2 - 2. The facts of the case may be noticed. The informant Kailash Singh(P.W.6)who happened to be the brother of the deceased Nanhak Singh, stated that when he was cutting Barseem grass for his cattles, he saw his brother Nanhak Singh coming with the buffalo. When the deceased had reached near the house of appellant Ramnagina Singh, all appellants armed with lathi and hurling abuses at the deceased came and started assaulting Nanhak Singh. Seeing the above incident of assault, P.W.6 and his father Girija Singh @ Yadav(P.W.1) rushed towards the scene of occurrence. The accused persons also assaulted the informant. The informant found that his brother was lying injured there with injuries on his head. He raised hullah which attracted Budhan Singh(P.W.4) Naujagir Yadav(not examined) and Ram Janam Yadav(P.W.3) and others who came and saw the occurrence. It was alleged that on account of the arrival of the witnesses and others, the accused persons ran way from the place of occurrence. As regards the motive for commission of the offence, it was alleged that it was due to previous land dispute between the two sides. 3. It may appear from the evidence of P.W.8 A.S.I., Ganga Prasad that on the basis of the fardbeyan(Ext-3) of P.W.6, the FIR of the case Ext-7 was drawn up by the officer-in-charge of Durgawati - 3 - police station and investigation was handed over to P.W.8. He recorded the further statement of P.W.6 and found deceased Nanhak Singh in a state of unconsciousness and, as such, could not record his evidence. He recorded the statements of appellant Lalji Singh and Shyamji Singh in the hospital. It may further appear from his evidence in paragraph-11 that the two appellants were arrested by him in the hospital itself where they were found admitted for the treatment of their injuries. Thereafter, he went to the place of occurrence, inspected it and found it situated south of the cattle-shed of appellant Ramnagina Singh in the form of a village path way which was surrounded by some fields, Khalihan and the cattle-shed of the appellants. P.W.8 recorded the statements of other witnesses and on close of the investigation, sent up the appellants for trial. 4. The evidence of P.W.7 A.S.I. Awadh Bihari Rai who was also posted in the same police station Durgawati indicates that in fact an out door slip was received from the hospital by the officer-in-charge of the police station on 17.3.1987, i.e., on the day of the occurrence and entry to that effect was made in the general diary vide entry no.304 dated 17.3.1987 and the same was handed over to P.W.8 for necessary action. The out door slip has been marked Ext-4 in the case. P.W.8 - 4 - proceeded to Durgawati hospital for the needful and on reaching there, he found that the dead body of Nanhak Singh was lying there and he held inquest upon it in presence of Ramashanker Singh (not examined) and Budhan Singh(P.W.4)and prepared the inquest report Ext-5. Thereafter, he forwarded the dead body after preparing the dead body challan with a constable for postmortem examination. 5. The defence of the appellants was that in fact the prosecution parties were aggressors and no occurrence as was alleged had taken place and that the informant and others had assaulted the appellants Shyamji Singh and Lalji Singh along with two of their women family members, namely, Dhanmani Devi and Paudhari Devi who were also admitted in the same hospital for treatment of their injuries from where appellants Shyamji Singh and Lalji Singh were arrested by the police. It was suggested that the deceased might have been hit during the course of that incident accidentally and the prosecution lodged a false case on false accusations. 6. In support of the charges, the prosecution examined as many as eight witnesses, out of whom P.Ws.7 and 8 are the two police officers, whose evidence we have just discussed in brief. The two doctors were also examined by the prosecution. Dr. Gyanendra Kr. - 5 - Singh(P.W.2) had examined the deceased when he was brought to the hospital along with his father and injured brother (P.W.6) and had issued the injury certificates Ext-1 to 1/2. P.W.2 was the doctor who had also examined the appellants and two of their female family members and had issued Ext-A to A/3 in that behalf. P.W.5 Dr. Radhika Mohan Sharan had held the postmortem examination on the dead body of the deceased Nanhak Singh and had issued the postmortem examination report Ext-2. Out of the remaining witnesses, P.W.1 Girija Singh @ Yadav (informant) was the father of the deceased. P.W.3 Ram Janam Yadav had given an eye witness account to the occurrence along with P.W.4 Budhan Singh. P.W.6 Kailash Singh was the informant of the case and he had supported the allegations. The learned trial Judge on consideration of the evidence on record passed the impugned judgement. 7. We have heard Sri Uma Kant Shukla, learned counsel appearing for the appellants who has taken us through the evidence of the witnesses and has submitted that the prosecution appears guilty of suppressing the truth and coming out with some false story which is not supported by medical evidence. It was further contended that the witnesses admitted that there was a counter case containing a different version in respect of the same incident which had occurred at the same place of - 6 - occurrence. They had further admitted that the appellants were also injured along with some of their wives and had been admitted in the same hospital for the treatment of their injuries, but how the appellants or their wives could happen to have those injuries, has not been explained by them. It was contended that P.W.6 Kailash Singh has, of course, stated in his evidence that he was brandishing his lathi, but what was the effect thereof, has not been stated by him. It was contended that the falsity of the prosecution story could be gauged from the fact that even a child aged about 14 years on the day of occurrence, like, appellant Shyamji Singh was not spared and he was falsely implicated by being charged of committing the murder of Nanhak Singh. The last contention was that the genesis was of the occurrence also appears not believable and in the light of the AIR 1976 SC 2263 Lakshmi Singh Vrs. State of Bihar, the prosecution evidence has to be rejected on account of the above defects of not explaining the injuries on the accused and suppressing the truth. 8. Sushri Shashi Bala Verma has contested the contentions in a very lukewarm manner and has submitted that it is very difficult in the factual background of the case to say that the judgement of conviction could be justifiably upheld. - 7 - 9. The witnesses who had come to support the charges are; P.W.1 Girija Singh @ Yadav who was the father of the informant and the deceased, P.W.3 Ram Janam Yadav and P.W.4 Budhan Singh. As regards the evidence of P.W.3 Ram Janam Singh, a single fact which was recorded by the learned trial Judge while recording his evidence may be sufficient to hold that it may not be safe to place reliance upon his evidence for sustaining the conviction of the appellants. The learned trial Judge has recorded in paragraph-3 at page 19 of the paper book that the witness said that he was finding it very difficult to see and identify the accused persons and it could be possible for him to do so only when he went near them standing in dock and that too appears a wrong identification. The learned trial Judge has recorded that he was identifying two persons in the dock as Lalji Singh and Ranjit Singh and was at the same time pointing out that he had extreme difficult in seeing whereas the witness claimed seeing the whole assault as has been described by him to be situated at a distance of 50 yards from the place of occurrence as may appear from his evidence in paragraph-4. If the witness could have difficulty in picking the correct features of a person from as close a vicinity as being just outside the dock then we could have no hesitation to record that his claim of - 8 - seeing the accused persons and identifying them correctly from a distance of about 50 yards, could not be accepted by any reasonable person. We, as such, have a inclination not to accept the evidence of P.W.3. 10. However, the purpose for which P.W.3 could be coming into the witness box in spite of the disability, could be had from his statement in pasragraph-9 of his evidence. He appears to be the full brother of P.W.1 Girija Singh @ Yadav as is admitted by him in the above paragraph. What appears further admitted by the witness is that there was land dispute between the parties and a case was already pending in some courts in Bhabhua. Thus, the reason for the assault or the counter assault by each of the sides could be understood and appreciated in the light of the above evidence of P.W.3. 11. P.Ws.1, 4 and 6 have given eye witness account to the occurrence they have given evidence that they came to the scene of occurrence when the deceased was being assaulted by the appellants and saw the occurrence while they were at different places. P.Ws.1 and 6 were present in the same field and both of them were cutting a particular grass for their cattle. P.W.1 has admitted in paragraph-12 that the accused persons had also lodged a case against him and others and that was a case of assault and it was a false case. P.W.6 - 9 - admitted in Paragraph-20 of his evidence that before his case was instituted, the accused persons had already reached the police station and had lodged a report there against the informant and others. P.W.6 has admitted in paragraph-20 that he had seen the accused persons also admitted in the same hospital, on the day he was admitted in the hospital and whether the accused persons had been injured in the same occurrence he could not see. But, he has admitted that some of the female family members of the accused persons had been injured in the same transaction, but he refused to name those female family members of the appellants. However, P.W.6 admitted that the female family members of the appellants, were also admitted in the hospital. P.W.4 Budhan Singh has stated in paragraph-11 that the accused persons had not been assaulted and injured on that particular day in the same occurrence. However, some of their female family members had received injuries in the same course. As against that P.W.1 Girija Singh, the father of the informant and the deceased has stated in paragraph-9 that the witnesses have come empty handed and they had not even chased the accused. Thus, what we find is that there is a clear admission coming from the witnesses that the accused persons were bearing some injuries along with some of their female family members. The evidence of witnesses, - 10 - like, the informant himself raises a probability of the female family members or the accused persons being assaulted and injured in the same incident in which the deceased had received injuries along with the informant and his father. But, still we find some hesitation in accepting a clear denial coming from the witnesses as to whether the accused persons had been assaulted either by the informant or others who had reached there along with the informant who now stand examined as witnesses. 12. We find that P.W.6 Kailash Singh attempted to explain the presence of the injuries on the accused which attempt was also carried forward by P.W.4 Budhan Singh when both of them stated that Kailash Singh was wielding lathi during the course of incident but in our considered view that could not be accepted as a valid explanation as regards the presence of injuries on the persons of the appellants or their female family members. In absence of any statement directly pointing out that any of the witnesses in exercise of their right of their private defence, had wielded any weapon and thereby had caused injuries to the appellants or to their female family members, we have to take a view that there is a clear attempt by the prosecution to suppress the manner in which the appellants had received the injuries in the same occurrence. - 11 - 13. Injuries were present on the two appellants along with two of their female family members appears from the evidence of P.W.2 Dr. Gyanendra Kumar Singh when he was stating to the court that on examination of Ranjit Singh and Lalji Singh, he had found injuries on their persons. He had also found injuries on the person of Dhanmani Devi wife of Bashista Singh as also Paudhari Devi wife of appellant Ram Nagina Singh. P.W.2 found the following injuries on Shyamji Singh:- (i)Lacerated wound 1”x1/4”x scalp deep over left parietal region one inch lateral to the mid-line. The surrounding area was swollen and tender. Blooding was present. (ii)Contusion 3”x1” left calf region. (iii)Contusion with swelling one inch in diameter right calf region. In the opinion of P.W.2 the above injuries were within six hours of the above injured being examined by him. The examination was held on 17.3.1987 at 10.30 A.M., the occurrence having taken place on the same day at 7 A.M. As regards appellant Lalji Singh he had following injuries on his person:- (i)Abrasion 1”x1/4” on the root of the nose. - 12 - (ii)Lacerated wound 1/2”x1/4”x1/4” on left middle finger-distal phalanx (iii)Contusion 4”x1” on right shoulder region. (iv)Contusion 3”x1” on left shoulder blade. (v)Contusion 4”x1” left arm on middle one third. The injuries were caused within six hours by hard and blunt substance. 14. In addition to the above two appellants Paudhari Devi wife of appellant Ram Nagina Singh had one contusion with swelling 2”x1” on right side front of chest in anterior axillary line. The injury was caused within six hours of the examination of the injured and was caused by hard and blunt substance. 15. The other female member of the appellants, namely, Dhanmani Devi wife of Bashista Singh had as many as four injuries in the form of three contusions and one laceration out of which injury no.4 was found grievous on being X-rayed as may appear from the opinion of P.W.2. Thus, what we find is that not only the number of injuries on the two appellants and two of their female family members were quite substantial but one of the injuries on one of the ladies was found grievous. The most important fact of the case is that the appellants were named in the FIR, they had also - 13 - been alleged to have assaulted the deceased and, subsequently, the informant and his father in spite of admitting the presence of the ladies from the house of the defence side and also admitting that they had been hit and injured and were found hospitalized in the same hospital who were being treated by the same doctor. The prosecution was not alleging any accusations against either of them or attempting to explain as to how did they have injuries on their persons. This appears to us quite a substantial issue and after considering it we find that what the prosecution attempted to do was not to allow the court to have before it the true picture of the incident as it had really occurred. The prosecution appears suppressing the important facts of the case. Their conduct of not explaining the injuries either on the accused or on the two family members of the accused convinces us to note that the occurrence could have taken place in a manner otherwise than what has been alleged by the prosecution. These aspects of the matter were considered in the above decision cited by the learned counsel appearing for the appellants which is reported in AIR 1976 SC 2263. The decision in Lakshmi Singh Vrs. State of Bihar was rendered after having noticed the earlier decision of the Apex Court in Mohar Rai Vrs. State of Bihar AIR 1968 SC 1281 and Puran Singh Vs. The State of Punjab reported in A.I.R. - 14 - 1975 SC 1674. The Supreme Court laid down the guidelines in such a situation in the following terms:- “It seems to us that 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 a 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. We have already pointed out that the prosecution appears guilty of suppressing the true facts and specially the fact as regards the genesis of the occurrence. The prosecution further appears to us guilty of making the false statements through its witnesses when they were attempting to deny the presences of the injuries on the person of the accused in spite of having admitted that the accused with some others had been admitted in the hospital on the same day for being treated for the injuries which were appearing on their persons. This is the reason that we are inclined to hold that the defence of the accused persons that they have been falsely implicated in the case on account of previous land dispute by alleging - 15 - false facts against them, appears substantial. 17. What we find in the light of the above discussions is that the appeal has to succeed as the conviction of the appellants was wrongly recorded under the facts of the case. They deserve to be acquitted on account of being given benefit of doubt. They are accordingly acquitted by us by setting aside the order of conviction and the sentences passed on each of them. The appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. The appeal is allowed. Patna High Court, Dated, the 3rd May, 2010/Brajesh Kumar/AFR ( Dharnidhar Jha, J. ) ( Akhilesh Chandra,J. )