IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.104 of 2003 Against the judgment of conviction dated 25th February 2003 and the order of sentence dated 26th February 2003 passed in Sessions Trial No. 225 of 1998/277 of 2002 by Shri Bijendra Kumar Singh, Additional Sessions Judge, FTC-No.IV, Sitamarhi. ========================================================== Afzal Hussain aged about 42 years S/o Late Wazahat Hussain, R/o Village Bavdepur, (Mahanth Sah Chauk), Main Road, P.S. & Distt. Sitamarhi………………………..Appellant. Versus The State of Bihar……………………………………………….……………..Respondent. --------- For the Appellant: Mr. S.N.P. Sinha, Sr. Advocate. Mr. Jitendra Narain Sinha, Advocate. Ms. Rashmi Sinha, Advocate. For the State : Ms. Sashi Bala Verma, APP. With Criminal Appeal (DB) No. 105 of 2003 1. Rana Randhir Singh aged about 44 years, S/o Late Ram Narayan Singh. R/o Village Raghunathpuri, Sitamarhi, P.S. Sitamarhi, Distt. Sitamarhi. 2. Mangal Singh @ Brij Mangal Singh, aged about 40 years, S/o Ramanand Singh, R/o Village Nrakatia, P.S. Majorganj, Distt. Sitamarhi. ……..…Appellants. Versus The State of Bihar … ……………………………………………………..Respondent. ---------- For the Appellants Mr. Kanhaiya Prasad Singh, Sr. Advocate. Mr. Naresh Dikshit, Advocate. Mr. Ranjit Kumar Pandey, Advocate. Mr. Atal Bihari, Advocate. For the State : Ms. Sashi Bala Verma, APP. with Criminal Appeal (DB) No. 110 of 2003 2 ========================================================== Sharafat Hussain, aged about 38 years, S/o Late Wazahat Hussain, R/o Village Bavdepur (Mahanth Sah Chauk), Main Road, P.S. and Distt. Sitamarhi.…………………..Appellant. Versus The State of Bihar……………………………………………..……………….Respondent. ---------- For the Appellant : Mr. S.N.P. Sinha, Sr. Advocate. Mr. Jitendra Narain Sinha, Advocate. Ms. Rashmi Sinha, Advocate. For the State : Ms. Sashi Bala Verma, APP. with Criminal Appeal (DB) No. 134 of 2003 ========================================================== Asgar Hussain aged about 40 years, S/o Late Wazahat Hussain, R/o Village Bhabdepur, Main Road, Sitamarhi, P.S. & Distt. Sitamarhi………………………………………………………Appellant. Versus The State of Bihar……………………………………………………………..Respondent. For the Appellant : Mr. S.N.P. Sinha, Sr. Advocate. Mr. Jitendra Narain Sinha, Advocate Ms. Rashmi Sinha, Advocate. For the State : Ms. Sashi Bala Verma, APP. ========================================================== P R E S E N T THE HON’BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE DINESH KUMAR SINGH D.K.Singh,J. Through the aforesaid four appeals, five appellants have challenged the judgment and order of conviction and sentence dated 25.2.2003 and 26.2.2003, respectively, 3 passed by learned Additional Sessions Judge, FTC-IV, Sitamarhi, in Sessions Trial No. 225 of 1998/277 of 2002 whereby and whereunder all the five appellants have been held guilty for the charge under sections 302/149 of the IPC and sentenced to undergo imprisonment for life. 2. (i) Appellant Asgar Hussain has further been convicted under section 302 of the IPC and sentenced to undergo imprisonment for life. Rana Randhir Singh has further been convicted under sections 302/109 of the IPC and sentenced to undergo imprisonment for life. (ii) Sharafat Hussain and Asgar Hussain have also been convicted under section 27 of the Arms Act and sentenced to undergo R.I. for 3 years. (iii) Sharafat Hussain has further been convicted under section 307 of the IPC and sentenced to undergo R.I. for 5 years. All the sentences, of the respective convicts, were directed to run concurrently. Since all the four appeals arise out of one judgment passed in Sessions Trial No. 225 of 1998/277 of 2002, hence all the appeals were heard together and are being 4 disposed of by this common judgment. 3. The prosecution case emanates from the fardbeyan of Md. Tahsim Khan (P.W. 6) recorded by S.I., S.S. Rajhans at Emergency Ward of Sadar Hospital, Sitamarhi at 8 p.m. on 30.12.1997 to the effect that the informant’s brother Md. Tanveer Khan @ Pappu (deceased) used to run a shoe store, namely, M/s Grand Shoe Store, at 15 yards west to Gandhi Chowk. On 30.12.1997 at 7.15 p.m. the informant was with his younger brother Md. Tanveer Khan at his shop. In the meantime, Afazal Hussain (42), Asagar Hussain (38), Sharafat Hussain (37), Rana Randhir Singh (44), Mangal Singh (40) came to the shop of the informant and challenged in abusive language that the shop has not been vacated as yet and ordered to fire on the informant’s side in the following words: “esjs nqdku ij ,dk,d vk, vkSj cksys dh lkyk vHkh rd nqdku ugha [kkyh fd;k gS! bu yksxksa dks xksyh ekj nks!” On this, Asagar Hussain fired at Pappu from the place adjacent to the counter Screen glass, which hit on his right temple region after piercing through the counter 5 screen glass as a result of which Pappu fell down. Sharafat Hussain also fired from pistol but it mis-fired and on alarm being raised by the informant (P.W. 6), the accused persons fled away towards the west. Informant with the help of other people, immediately took the victim on a rickshaw to the hospital where during treatment the victim died. 4. The motive for the occurrence is alleged to be the dispute with Afazal Hussain, Sharafat Hussain and Asagar Hussain for vacating the shop, whereas, the allegation against Rana Randhir Singh and Mangal Singh is that they used to actively assist the three other convicts. On the basis of the aforesaid fardbeyan (Ext. 4), Sitamarhi P.S. Case No. 348 of 1997 was registered under section 302/34 of the IPC and 27 of the Arms Act (Ext. 5) on 30.12.1997 at 9 p.m. Police submitted charge sheet against the five appellants and thereafter, on cognizance being taken, the case was committed to the Court of Sessions where the charges were framed on 20.2.1999 under:- i) Section 302 IPC against 6 Asagar Hussain for causing death of Md. Tanveer Khan @ Pappu. ii) Section 307 IPC against Sharafat Hussain for attempting to commit murder of the informant (P.W. 6) by means of pistol, which mis- fired. iii) Section 27(1) Arms Act against Asagar Hussain and Sharafat Hussain for using pistol. iv) Section 302 read with Section 109 IPC against Rana Randhir Singh and Mangal Singh for abetting commission of the offence. v) Section 302 IPC read with Section 149 IPC against Afazal Hussain, Sharafat Hussain, Mangal Singh, Rana Randhir Singh and Asagar Hussain for committing murder of Tanveer Khan with a common object. 5. The prosecution examined 13 witnesses 7 of which only 7 figure as charge sheet witnesses: P.W. 1 - Helal Akhtar. P.W. 2 - Sayad Tanveer Hussain. P.W. 4 - Md. Nooruddin. P.W. 6 (Informant) – Md. Tahsim Khan, who claimed themselves to be eye witnesses. P.W. 3 - Dr. Abhay Kumar, conducted post-mortem on 31.12.1997 at 8.30 a.m. on the dead body of Tanveer Khan @ Pappu. P.W. 5 - Md. Mobin Khan is the relative of the informant and has been tendered for cross examination. P.W. 7- Suman Shekhar Rajhans is the SI of Sitamarhi P.S., who registered the case and himself became the IO to investigate the case. P.W. 8 - Bilat Paswan is the Advocate’s clerk, who has proved the FIR and signature of informant in Sitamarhi P.S. Case Nos. 322 of 1997 and 336 of 1997, marked as (Exts. 4/1, 4/2, 5/1 and 5/2). P.W. 9 is Ramdeo Rai, who was entrusted with dead body to get post-mortem examination of deceased Tanveer done. P.W. 10 is Abdul Annan @ Md. Anwar, Advocate’s clerk, who has identified the 8 signature of the Insurance official on the Insurance paper and the application filed in the Insurance Company by accused Afazal against the informant as well as the attendance filed by the accused persons in the court (Exts. 13, 14, 15, 15/1, 16, 16/1, 16/2). P.W. 11 is Shiv Kumar Lal Karna, clerk in the SDO Office, Sitamarhi, who has proved the order dated 11.12.1997 passed in Case No. 2438 of 1997 under Section 107 Cr.P.C. as well as the orders dated 19.12.1997, 30.12.1997, 9.2.1998 (Exts. 11/1, 11/2). P.W. 12 is Dr. Jawahar Lal, who examined accused Asagar Hussain on 26.11.1997 referred by Dr. Yogesh and admitted that on 29.11.1997 the patient was referred back to Dr. Yogesh. P.W. 13 is Devendra Paswan, the Advocate’s clerk, who deposed on 30.12.1997 to the effect that Asagar Hussain, Afazal Hussain and Sharafat Hussain went to SDO court at 12 p.m. for making pairvi in case. 6. Defence has examined 21 witnesses, of which D.W. 1 - Aftab Ahmad is the Assistant in the Labour Office, Samastipur, who has 9 proved the Service Card (Ext. Y/1) of P.W. 4 being the employee of the shop, Bharat Shoe, run by one Onkar Singh at Samastipur. D.W. 2 - Govind Kumar Das is Assistant in the Labour Office, Sitamarhi, who has proved the Service Card dated 09.08.1988 (A/6 and A/7) of D. Ws., 3 and 4 being the employees of the Grand Shoe Store of the deceased Tanveer. D.W. 3 - Md. Mustaque claimed himself to be the salesman of deceased’s shoe shop and has stated that some unidentified criminals fired from the road which hit the deceased and that the informant pressurised him to implicate the present appellants but he did not agree to it. D.W. 4 - Ishrafil claims himself to be the Manager of the deceased’s shop, who also does not support the prosecution version and he also refused the informant’s request for becoming witness against the present appellants. D.W. 5 - Deepak Kumar is the neighbouring shop keeper of the deceased, having a readymade garments shop and has deposed that D.Ws., 3 and 4 were the regular employees of the deceased and they were 10 chasing the unknown criminals when the occurrence took place. D.W. 6 - Om Prakash Gupta, the neighbouring shop keeper of Bengal Potteries has deposed that he saw unknown criminals, aged about 20 years, firing from the road and subsequently he was being chased by D. Ws., 3 and 4 and D. Ws., 3 and 4 took the victim to the hospital. He claims to have informed the Police from the shop of the deceased and his statement was recorded by the police under Section 161 of the Cr. P. C. This witness was also interrogated by the C.I.D. D.W. 7 - Rajendra Prasad has a shop, adjacent east to the shop of the deceased and he has also claimed that unknown criminal fired who was chased by D.Ws., 3 and 4 and, thereafter, they took the victim to hospital. His statement was recorded under Section 161 Cr. P. C. by the police and the CID also. D.W. 8 - Ram Kumar used to run the Sajni General Store situated opposite to the shop of the deceased, who after hearing the gun shot firing saw unknown criminal aged about 20 years running away from the place 11 of occurrence who was being chased by D. Ws., 3 and 4 and subsequently, D. Ws., 3 and 4 took the victim to the hospital. D.W. 9 - Awadhesh Kumar was the Reader in Sitamarhi Police Inspector’s Office, who deposed that the case diary of Sitamarhi P.S. Case No. 348 of 1997, from page 1 to 59 (Ext. T), was received in the Inspector’s office on 05.02.1998. D.W. 10 - Shri Shaligram Singh was the Principal of Raghunath Jha College and has proved that appellant Mangal Singh was Lecturer and Controller of Examination of the aforesaid College at the relevant time. Whereas appellant Rana Randhir Singh was the Founder Secretary of the College. D.W. 11 - Dr. Bharat Singh has examined the accused Asagar Hussain and found pain and stiffness in the Right elbow and in the X-Ray, found the fracture of lateral condyle of the right hand of Asagar Hussain. He has proved the X-Ray plate as (Ext. Y/1). D.W. 12 - Sahid Ali Khan, MLA, being relative of the deceased was Chairman of Patna Industrial Development Authority from February 1996 to February 1998 has deposed that accused Sharafat Hussain was at his 12 official residence at Patna from 6.30 a.m. to 10.30 p.m. on 30.12.1997. D.W 13 - Rama Shankar Prasad was technician in Rama X-Ray Clinic, who conducted the X-Ray of Asagar on 29.12.1996. D.W. 14 - Jitendra Jha was clerk in Sitamarhi P.P. Office, who has proved Sanha No. 04 of 1987 dated 26.12.1996 (Ext. C/2). D.W. 15 - Mahrur Hasan was the land lord of accused Afazal at Patna, who has proved that Afazal was in training at the relevant time. Moreover, Afazal’s wife Farha Khatoon gave birth to a child at the relevant time. D.W. 16 - Nemchandra Lal proved the Sanha (Ext. E/2) lodged for bomb throwing near the petrol pump. D.W. 17 - Raj Kishore Kumar is a typist, who typed the petition of Afazal, which was given to the Insurance Company against the informant. D.W. 18 - Kamod Kumar, agent of National Insurance Company has proved the signature of the Surveyor of the Insurance Company, Engineer Ashok Kumar. D.W. 19 - Md. Abdus Salam Ansari, compounder of the Physiotherapist, Dr. Manoj 13 Kumar Mishra, who has proved the prescription (Ext. W) of accused Asagar Hussain. D.W. 20 - Manibhushan Kumar, Advocate’s clerk, has proved the application (Ext. X) of accused Sharafat Hussain submitted to Assistant Engineer of Electricity Department. D.W. 21 - Sheo Kumar Gope was the Branch Manager of National Insurance Company, who proved the Insurance Policy (Ext. 13) of deceased’s shop. 7. That the learned Trial Court relying upon the evidence of P. Ws., 1 to 4 and 6 and absolutely not relying on the evidence of D. Ws., has passed the judgment and order of conviction. Now this court has to see whether P.Ws. 1 to 4 and 6 have been able to prove the case beyond reasonable doubt by virtue of their claim to be the eye witnesses or the prosecution evidence and the defence evidence needs to be reappraised. 8. The death of Tanveer Khan @ Pappu at the shoe store on 30.12.1997 is an admitted fact. The dispute is with regard to the manner of the occurrence as the 14 independent neighbouring shop keepers, who have been examined as defence witnesses, claim an entirely different manner of occurrence then that claimed by the prosecution. The dispute is also with regard to the time of the occurrence. The prosecution claims that the occurrence took place at 7.15 p.m., whereas the defence witnesses claim the occurrence to have taken place at 7 p.m. 9. The evidence of P. Ws., 1 to 4 and 6 (who are relatives of the deceased), on the basis of which the prosecution claim to prove its case, requires to be scanned carefully and is relevant for discussion. 10. P.W. 6 being the informant, the pilot of the prosecution case, has got his fardbeyan recorded and has stated in the fardbyean that all the 5 accused persons came to the shop of the deceased and then some one ordered to kill. Thereupon, Asagar fired from outer side of the glass screen fixed on the counter, which hit the deceased after piercing the counter glass screen. P.W. 6 has claimed to have taken the victim to hospital with the assistance of other 15 people. The fardbeyan neither talks about the presence of P. Ws., 1, 2 or 4 at the shop nor the informant (P.W. 6) talks about any assistance being taken from them. The fardbeyan also does not disclose, the name of the person who ordered to fire. 11. The presence of P. Ws. 1 to 4 and 6, at the place of occurrence, has been seriously disputed by the defence by examining the defence witnesses. 12. The presence of P. Ws. 1, 2 and 4 gets clouded, on the basis of the fact that they are not witness to the FIR. The only witness to the FIR is Shahanawaz, who has not been examined and about whom P.W. 6 in paragraph no. 180 of his evidence admits that he was not known to Shahnawaz, but he signed it because he was present at the time when the Fardbeyan was being recorded. This sounds not only unreasonable but also absurd, as P.W. 6 claims that P. Ws. 1 and 4 were present in the hospital when the fardbeyan was recorded, then in such circumstance there was no occasion for Shahnawaz becoming the attesting witness to the fardbeyan. The informant, in paragraph no. 181 of his evidence, clearly suggests 16 that he is not willing to examine Shahnawaz as witness, which creates doubt on the credibility of the informant (P.W. 6). P. Ws. 1 and 4 claim themselves to be the salesmen at the deceased’s shoe shop. Defence has examined D.W. 1, Assistant in the Labour Office, Samastipur, who has proved the service card of P.W. 4 dated 03.12.1997 (Exts. X/1 and Y/1) which clearly suggests that P.W. 4 was the employee of Bharat Shoe belonging to one Onkar Singh at Samastipur, but the learned trial court has not relied upon the same, because the father’s name of P.W. 4, in Service Card, has been recorded as Md. Jainuddin, whereas, while deposing in court, P.W. 4 got his father’s name recorded as Saifullah but D.W. 4 in paragraph no. 88 of his evidence has clearly stated that the father’s name of P.W. 4 is Jainuddin @ Saifullah. The Service Card of P.W. 4 (Ext. Y/1), depicts the parentage of P.W. 4 as Jainuddin, whereas the other service card, Ext., X/1 does not depict the parentage of P.W. 4. Moreover, both the Exhibits bear the signature of P.W. 4, which has not been denied by P.W. 4. D.W. 2, the Assistant in Sitamarhi 17 Labour Office has clearly stated that Exts. A/6 and A/7 are the service cards of D. Ws., 3 and 4 whereas paragraph no. 5 of his evidence clearly suggests that no document, with regard to removal of P. Ws. 1 and 4, are available in the record. 13. P.W. 1 in paragraph no. 30 has stated that he is not in possession of any document to suggest that he was the employee in the shop of the deceased. The evidence of P.W. 1 in paragraph no. 7 clears the mist when he further deposed that D. Ws., 3 and 4 were the registered Salesmen of the deceased, which was in following words: ”;g lp gS fd nqdku ds jftLVMZ lsYl eSu esa eqLrkd vkSj b’kjkQhy gSA” 14. P.W. 6 in paragraph no. 155 has admitted that D. Ws., 3 and 4 were regular employees of the deceased’s shop, but claims that they were terminated few months prior to the occurrence due to the theft committed by them but no document to that effect has been produced by the prosecution. 15. P.W. 6 in paragraph no. 90 of his evidence has stated that Labour Department used to be informed about the working staff. 18 In paragraph no. 104, P.W. 6 has stated that the deceased’s shop was registered in the Labour Department, but learned Trial court has disbelieved the registration of D. Ws., 3 and 4 as salesmen of the deceased’s shop, since there was cutting with regard to the registration number of the shop without any initial over it, but the registration of the shop of the deceased has been admitted by the informant and working of D. Ws., 3 and 4, as salesmen, has been proved by D.W. 2. 16. P.W. 7 in paragraph no. 48 of his evidence said that P.W. 6 never said that P. Ws., 1 and 4 are the salesmen of the deceased’s shop. 17. P.W. 7 in paragraph no. 24 and 25 of his evidence has stated that no witness was named by the informant in the fardbeyan and the informant’s contention that he conveyed to the IO about witnesses name is absolutely wrong. 18. The evidence of D. Ws., 5 to 8, the neighbouring shop keepers of the deceased clearly suggests that D.Ws., 3 and 4 were the salesmen of the deceased and not P. Ws., 1 and 4. The cross examination of P. Ws., 1 and 4 clearly suggests that they 19 had no knowledge about the working pattern of the shop in question or about the stocks of the shop, or they ever issued any cash memo to any customer, or they had any business expertise with regard to the shoe business. Moreover, they were not acquainted with any neighbouring shop keepers. P. Ws., 1 and 4 have admitted that when they reached hospital they failed to identify any person and P.W. 1 went to the house of the informant from hospital. 19. P.W. 1 in paragraph no. 5, P.W. 2 in paragraph no. 11, P.W. 6 in paragraph no. 70 of their respective evidences have admitted that P. Ws., 1 and 2 are maternal (MAUSERA) brothers of the deceased and informant. Hence, P. Ws., 1 and 2 being the interested witnesses cannot be ruled out. Moreover, it has been suggested by the defence that P. Ws., 1 and 4 are residents of Samastipur and they were working in the market of maternal uncle of the deceased Manjar Zafri at the Zafri Market and they were brought by the maternal uncle of the deceased after the occurrence. P.W. 2, who claims himself to be a chance witness, went to purchase shoe from 20 the deceased’s shop and has admitted that he is a resident of Muzaffarpur, and was having a business of supplying dresses to the schools at Muzaffarpur but subsequently shifted his business to Sitamarhi. However, P.W. 2 has failed to depose the name of the school to which he used to make supply or any document to suggest that he was running the business at Sitamarhi at the relevant time. Hence, in the background of the serious inconsistencies in the evidence of P. Ws., 1, 2 and 4, their presence at the P.O. becomes doubtful. 20. P.W. 6, the informant, in paragraph no. 130 of his evidence has admitted that in the protest petition filed by him, he had not mentioned the presence of P. Ws., 1, 2 and 4 at the P.O. as salesmen or customer. So far as the presence of P.W. 6 at the P.O. is concerned, he himself makes his presence doubtful as in the fardbeyan P.W. 6 says that he was talking with the deceased about the business, which has been supported by P.W. 1, whereas, P.W. 4 in paragraph nos. 35 and 36 of his evidence has stated that both brothers were not talking. P.W. 6 in the protest petition has stated 21 that he went to deceased’s shop to help the deceased since there was rush of customers. The further conduct of P.W. 6 makes his presence doubtful due to his inimical relationship with the deceased in view of the deceased having illicit relation with the informant’s wife, which was also found by CID. The informant neither bothered to inform the police nor did he convey about the occurrence to any one and he admits in paragraph no. 189 of his evidence that blood stains were there on his clothes but it was never seized by the police. Whereas P.W. 7, (the I.O.) in paragraph no. 31 has stated that he neither saw the blood stained clothes nor it was given to him, P.W. 1 in paragraph no. 17 and P.W. 2 in paragraph no. 41 have shown ignorance as to whether there was any blood stain on their clothes or not and P.W. 4 in paragraph no. 38 of his evidence has stated that there was no blood stain on his clothes, which impeaches the credibility of the prosecution witnesses in view of the injury caused to the deceased. 21. The variations in the statement of P. W. 6 from fardbeyan to 164 Cr. P. C. statement as well as in protest petition 22 further clouds his credibility. P.W. 6 in paragraph no. 112 of his evidence admits that he got the 164 Cr. P. C. statement recorded whereas he admits about signing the protest petition in paragraph no. 113 of his evidence but subsequently tried not to take the help of 164 statement and protest petition due to the variance in the two versions which resulted into withholding of those two documents by the prosecution side,