IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.320 of 1989 =========================================================== Siya Ram Singh son of Sri Jaikisun Singh, resident of village Naipokhar, P.S. Rajgir, District- Nalanda. .... .... Appellant/s Versus The State of Bihar. .... .... Respondent/s with Criminal Appeal (DB) No. 324 of 1989 =========================================================== Rabindra Singh son of Kapildeo Singh, resident of village- Naipokhar, P.S. Rajgir, District- Nalanda. .... .... Appellant/s Versus The State of Bihar. .... .... Respondent/s with Criminal Appeal (DB) No. 344 of 1989 =========================================================== Rajeshwar Singh, son of Sri Sheonath Singh, resident of village- Naipokhar, P.S. Rajgir, District- Nalanda. .... .... Appellant/s Versus The State of Bihar. .... .... Respondent/s with Criminal Appeal (DB) No. 363 of 1989 =========================================================== 1. Shivnandan Singh. 2. Abhiram Singh 3. Rajniti Singh @ Parshuram Singh Son of Karyanand Singh. 4. Raja Ram Singh Appellants no. 1,2 & 4 are sons of Ram Naresh Singh, residents of village- Naipokhar, P.S. Rajgir, District- Nalanda. .... .... Appellants Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 2 Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Shakil Ahmad Khan, Sr. Advocate With (In above four Cr. Appeals) :. Dr. Anjani Prasad Singh, Advocate. For the Respondent-State : Ms. Shashi Bala Verma, A.P.P. (In above four Appeals) For the Informant : Mr. Akhileshwar Prasad Singh, Sr. Advocate with (In above four Cr. Appeals) Mr. Pramod Kumar, Advocate. =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA CAV JUDGMENT Dated: 28th September 2011. (Per: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA) In this batch of Criminal Appeals, all the appellants, besides two others, have been con0victed under Sections 302/ 149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life by a common judgment and order dated 30th June 1989 passed by the learned 4th Additional District & Sessions Judge, Nalanda (Biharsharf) in Sessions Trial No. 284 of 1988/ 57 of 1988. However, by the aforesaid impugned judgment and order dated 30th June 1989, all of them, besides two others, have been acquitted for the charge under Section 302 of the Indian Penal Code. Appellants, Siyaram Singh and Rajeshwar Singh, besides Ram Naresh Singh and Ramashray Singh (who Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 3 are now dead), have further been acquitted for the charge under Section 27 of the Arms Act. 2. The prosecution case, as unfolded in the fardbeyan (Ext. 4) of P.W.7 Dharamshila Kumari, widow of the deceased Arbind Kumar Singh, is that on 25th December 1987 at about 10 a. m. her husband Arbind Kumar Singh went towards his „Khalihan‟ (barn) situate south of the village. After some time, someone reported to the informant (P.W. 7) that some persons have surrounded her husband near his barn (Khalihan). Informant claims to have rushed there and claims to have seen that the accused persons, named therein, variously armed with lethal weapons including firearms, had surrounded her husband. However, her husband Arbind Kumar Singh succeeded in fleeing away from there towards Rajgir. The prosecution story is further unfolded that at about 2 ½ -3 p.m. in the day, some of the villagers informed P.W.7 that the accused persons have again surrounded her husband. The informant claims to have rushed there and claims to have seen that at a distance of 1 mile from village Naipokhar the accused persons, variously armed with lethal weapons, had surrounded her husband Arbind Kumar Singh. Accused Ram Naresh Singh ordered to kill him, whereafter appellant Rajeshwar Singh fired from his licensed gun, which hit the deceased and he fell down. All other accused persons are said to have assaulted the deceased Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 4 by lathi, iron rod and butt end of the gun. Accused persons are said to have killed husband of the informant, but due to arrival of large number of the persons there, they fled away. Husband of the informant was taken to Rajgir Hospital, where the doctor declared him dead, whereafter the dead body was brought back to the village. 3. On the basis of the aforesaid fardbeyan (Ext. 4) of the informant Dharamshila Kumari ( P.W. 7), Silao ( Rajgir) P.S. Case No. 280 of 1987 dated 26.12.1987 under Sections 147, 148, 149, 302 of the Indian Penal Code as also under Section 27 of the Arms Act was instituted. On close of investigation, charge sheet was submitted. After cognizance, case was committed to the court of Sessions and altogether 9 accused persons including appellants in this batch of appeals as also one Ram Naresh Singh and Ramashray Singh, appellants in Cr. Appeal (D.B.) No. 296 of 1989, were put on trial. It may not be out of place to mention here that aforesaid Cr. Appeal (D.B.) No. 296 of 1989 has already been disposed of by us by an order dated 8th July 2011, as having abated due to death of aforesaid two appellants during the pendency of appeal. 4. On 5th January 1989 charge under Section 302 of the Indian Penal Code for intentionally or knowingly causing death of the deceased Arbind Kumar Singh, was framed against all the 9 accused persons. They all were further charged under Sections 302/149 of the Indian Penal Code Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 5 for being the members of an unlawful assembly and in furtherance of their common object for causing death of the deceased Arvind Kumar Singh. Appellants, Siyaram Singh and Rajeshwar Singh, besides Ram Naresh Singh and Ramashray Singh were further charged under Section 27 of the Arms Act for possessing the firearms and using the same for an unlawful purpose. 5. In order to prove its case, the prosecution examined P.W. 1 Chandramani Singh, P.W. 2 Umesh Prasad Singh, P.W. 3 Sarjug Rajbanshi, P.W. 5 Yogendra Prasad Singh and P.W. 8 Paramshila Devi, besides P.W. 7 Dharamshila Kumari (informant), who all claim to be eye witnesses of the occurrence in question. P.W. 6 Kailash Prasad Singh, P.W. 9 Manu Kumar and P.W. 10 Bangali Rajbanshi have been tendered by the prosecution. P.W. 4 Awadhesh Kumar Singh, P.W. 13 Sachidanand Singh and P.W. 15 Ram Briksh Prasad are formal witnesses. P.W. 14 Anil Kumar Jha is the Sergeant Major, who claims to have examined the seized gun and P.W. 12 Dr. Birchand Patel claims to have conducted postmortem on the dead body of the deceased. P.W. 11 Kumar Amar Singh, the Officer-in-charge of Rajgir P.S. at the relevant time, was the Investigating Officer of the present case. 6. Mr. Shakil Ahmad Khan, learned Senior Counsel, appearing on behalf of the appellants, has strenuously argued that on the basis of the materials available on record the impugned judgment of conviction Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 6 and order of sentence inflicted upon the appellants are not sustainable in the eye of law. According to him, neither the place of occurrence nor the manner of assault has been proved by the prosecution beyond all reasonable doubts. He has further contended that the evidence of material witnesses, namely, mother of the deceased, the rickshaw-wala, who allegedly brought the dead body from the alleged place of occurrence to Rajgir Hospital and again took back the dead body to the village home, the persons who allegedly gave information to the informant about surrounding of her husband by the accused persons as also the Doctor, who examined the deceased at Rajgir Hospital, besides others, whose evidence was essential for unfolding the truth of the present case, have been deliberately withheld by the prosecution. He next contended that in view of the evidence of P.W. 1, Chandramani Singh, that his statement as also statement of other witnesses, were recorded by the police at Rajgir Hospital itself, Fardbeyan (Ext. 4) of P.W. 7 is hit by Section 162 of the Code of Criminal Procedure and is inadmissible in evidence and legally it could not have been the basis of formal F.I.R. (Ext. 10). In support of his contention Mr. Khan has placed reliance on the following judgments:- (1) Habeeb Mohammad v. State of Hyderabad [A.I.R. 1954 SC 51(para-11)]. (2) Aher Raja Khima v. State of Saurashtra [A.I.R. 1956 SC 217 ( Para-9)]. Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 7 (3) Ishwar Singh v. The State of Uttar Pradesh [A.I.R. 1976 SC 2423 ( Para-6)]. (4) Somappa Vamanappa Madar Shankarapaa Ravanappa Khaddi v. The State of Mysore [A. I. R. 1979 SC 1831(Para-12]. 7. Miss Shashi Bala Verma, learned Additional Public Prosecutor and Mr. Akhileshwar Prasad Singh, learned Senior Counsel appearing on behalf of the informant, in one voice, have supported the impugned judgment of conviction and order of sentence inflicted upon the appellants. According to them, each and every witnesses are not required to be produced in a criminal trial rather only those witnesses are required to be examined, whose evidence is essential for proving the prosecution case. According to them, cryptic informations received by the police through some unconnected person about the commission of a crime, cannot be the basis of the F.I.R. They further contended that P.W. 7, being the widow of the deceased, and her fardbeyan (Ext. 4) disclosing the commission of a cognizable crime, has rightly been treated to be the basis of the F.I.R. (Ext. 10). In support of their contention, they have placed reliance on the following judgments:- (1) Dhananjoy Chatterjee alias Dhana vs. State of W.B. [ (1994) 2 SCC 220 (Para 9)]. (2) Ramsinh Bavaji Jadeja vs. State of Gujarat [(1994) 2 SCC 685 (Para- 7 & 9) ]. (3) Sheikh Ishaque and others vs. State of Bihar [(1995) 3 SCC 392 (Para 7]. Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 8 (4) Binay Kumar Singh v. State of Bihar [(1997)1 SCC 283 ( para-9)] (5) Dharmendrasinh Alias Mansing Ratansinh vs. State of Gujarat [(2002)4 SCC 679 (Para 12 and 17) ]. 8. In the light of rival submissions and on the basis of materials available on record, it is required to be considered as to whether the prosecution has been able to establish the charge against the appellants beyond all shadow of doubts? Admittedly, the charge under Section 302 of the Indian Penal Code against all the appellants, besides others, has been held to have not been proved and they have been acquitted on that count by the learned trial court. Charge under Section 27 of the Arms Act has also been disbelieved by the learned trial court. The appellants have been convicted under Section 302 with the aid of Section 149 of the Indian Penal Code. 9. On close scrutiny of the fardbeyan (Ext. 4), it is apparent that occurrence took place in two parts, firstly on 25.12.1987 at about 10 a.m. When the deceased Arbind Kumar Singh went to his Khalihan, the appellants, being armed with lethal weapons, are said to have surrounded him. P.W. 7 claims to have arrived there on information given by some persons (name not disclosed) and claims to have seen the said occurrence, but at that time Arbind Kumar Singh (deceased) succeeded in fleeing away towards Rajgir. Admittedly, at that time he was not assaulted or chased by the accused persons including the appellants. This Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 9 part of occurrence has not been supported during the trial by any other witness, except P.W. 7. A question arises, if the appellants had formed an unlawful assembly with a common object of killing the deceased, then why he was not assaulted at all by the accused persons and why he was not even chased by the accused persons to catch hold of him for achieving the common object. It is also very surprising that if all the accused persons were armed with lethal weapons including firearms then how Arbind Kumar Singh (deceased) could manage to escape from there. Second part of the occurrence is said to have taken place on the same day i.e. 25.12.1987 at about 2 ½- 3 p.m. At that time also accused persons, being armed with lethal weapons, are said to have surrounded the husband of the informant. Once again the informant claims to have arrived there on the information given by some villagers (name not disclosed), and claims to have seen the occurrence. On the order of accused Ram Naresh Singh, appellant Rajeshwar Singh is said to have fired by his licensed gun, whereafter Arbind Kumar Singh allegedly fell down and rest of the accused persons allegedly assaulted him by lathi, iron rod and butt end of the gun. Though four of the appellants were allegedly having firearms, but except the appellant Rajeshwar Singh, none else is alleged to have resorted to firing. If common object were to Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 10 commit the murder, then one fails to understand why other persons did not fire upon the deceased. 10. P.W. 7 Dharamshila Kumari has categorically stated in paragraph-16 of her deposition that she is not a „Pardanasin‟ lady and she goes out from the village for her education. P.W. 7, being an educated lady, has disclosed the names of the accused persons with full details with respective weapons in their hand, but surprisingly she has not disclosed the name of persons, who gave her information about the first part of the occurrence having taken place at about 10 a.m. on 25.12.1987 or the name of the persons, who gave her information about the second part of the occurrence said to have taken place on the same day at 2 ½- 3 p.m. in the day. In paragraph-14 of her deposition, she has stated that she did not touch the body of her husband. She does not claim to have gone to Rajgir Hospital, while her husband was being taken for treatment in a critical condition. In paragraph-20 of her deposition she has admitted that her mother-in-law had gone to Rajgir Hospital. If the husband of P.W. 7 were assaulted in the manner as disclosed in the fardbeyan (Ext.-4) and if he were in critical condition and were taken to Rajgir Hospital, then conduct of P.W. 7 of neither touching the body of her husband nor accompanying him to Rajgir Hospital, appears to be highly unnatural. Her evidence does not appear to be believable. Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 11 11. P.W. 11 Kumar Amar Singh, who investigated the case, has given description of the place of occurrence in paragraph-7 of his deposition. In paragraph-22 of his deposition, he has clearly deposed that no blood mark was found on the place of occurrence. He has also stated that certain standing crops were there near the place of occurrence, but he did not find any trampling marks. In paragraph-8 of his deposition, he claims to have collected soil from the place of occurrence, but he does not claim that it was blood stained soil. Furthermore, there is no material on record to show that soil sample was ever sent for its chemical examination to Forensic Science Laboratory. The witnesses have stated that blood was coming out from the wounds of the deceased. However, in paragraph-20 of his deposition, the Investigating Officer has stated that at the time of preparation of inquest report, he did not find any blood stains either on the T. shirt or white „Dhoti‟ or on any part of the clothing of the deceased. Absence of blood marks or trampling marks on the place of occurrence and absence of blood stains on the cloths of the deceased create grave doubts about the veracity of the prosecution version. 12. The Doctor (P.W. 12), who held autopsy and has prepared the post mortem report (Ext. 12) of the deceased, has noted 15 injuries on the person of the deceased. He has categorically deposed that injury nos. 2 and 3 caused by firearms may be by gun, and other injuries were caused Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 12 by hard and blunt substance. Injury nos. 2 and 3 sustained by the deceased are quoted herein below: “ Injury No.2: Wound lacerated with inverted margin and blackened edge on back of left elbow region ½ ” x 1/3 ” x depth continuous with injury no. 3. This is wound of entry. Injury No. 3: Wound lacerated with inverted edges 3/4” x ½”x depth continuous with injury no.2. (wound of exit) situated on back and outer aspect of lower third of left arm. Signs of injury nos. 2 and 3 wounds being ante- mortem not fully clear”. 13. From perusal of injury nos. 2 and 3, it appears that the injury was found on the left elbow region, which were contiguous to each other. Both the injuries have been found to be on non-vital part of the body. Apparently, other three appellants, except the appellant Rajeshwar Singh, are not alleged to have used their firearms. If the appellants had common object of killing the deceased, then one fails to understand as to why firearm injury was caused on left arm, not being the cause of the death and why other three appellants did not resort to firing causing injury on the vital part of the body of the deceased. 14. According to the prosecution case, deceased was taken to Rajgir Hospital on a Rickshaw and he was declared dead before any treatment could have started. This fact has been admitted by P.W. 1 in paragraph- 8 of his deposition. The question arises if he were not treated by the doctor at Rajgir Hospital, then how a bandage on the left elbow of Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 13 the deceased was found by the Investigating Officer, while preparing the inquest report (Ext. 5). Admittedly, ballistics report of the seized gun was not obtained by the Investigating Officer. There is no legal material to conclusively prove that two firearm injuries sustained by the deceased on his left arm were caused by the seized gun of the appellant Rajeshwar Singh. 15. P.W. 1 Chandramani Singh has claimed to be an eye witness of the occurrence and claims to have accompanied the deceased upto Rajgir Hospital. In paragraph-8 of his deposition he has stated that after seeing the deceased, the doctor sent information to the local police, whereafter one Police Officer came to the Hospital, but he did not interrogate either to P.W. 1 or any other person present there. However, in paragraph 9 of his deposition he has categorically stated that in the Hospital, the Officer-in-charge recorded his statement as also the statement of P.W. 2, P.W. 5, P.W. 6, P.W. 9 besides others. P.W. 11, who was posted as Officer-in-charge at the Rajgir P.S. claims to have arrived at Rajgir Hospital at about 6 p.m. on 25.12.1987 and on coming to know that the dead body has been taken back to village Naipokhar, he claims to have gone there and recorded the fardbeyan of P.W. 7 at 6.30 p.m. on that day. If the statement of P.W. 1 has to be accepted, then it appears that the investigation started prior to recording the fardbeyan (Ext. 4) of P.W. 7. Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 14 16. At this place, it may not be out of place to mention here that on behalf of the accused persons Dr. Janardan Prasad was examined as D.W. 1. He claims that while he was on duty at Referal Hospital, Rajgir on 25.12.1987 at about 3 p.m. a dead body was brought on a Rickshaw. He claims to have issued O.D. slip and sent information to the Rajgir P.S. at 3.15 p.m. The aforesaid O.D. slip has been marked as Ext. A. The dead body was taken away from there by some unknown persons including a lady, who claimed to be the mother of the deceased. 17. On the basis of discussion made above, it appears that the place of occurrence as also manner of occurrence have not been proved by the prosecution beyond all reasonable doubts. Conduct of the informant, the widow of the deceased, does not appear to be natural. Her claim of having seen the occurrence is not believable. In the background of the prosecution case, statement of the mother of the deceased, statement of Rickshaw-wala, and statement of persons who gave information to the informant about both part of the occurrence, were essential for unfolding the truth. Absence of blood mark or trampling mark on the alleged place of occurrence, absence of blood stains on the clothings of the deceased and presence of bandage on the left elbow of the deceased create grave doubts about the genuineness of the prosecution case. It appears that occurrence has taken place in some other manner, not known to the prosecution witnesses, but because of Patna High Court CR. APP (DB) No.320 of 1989 dt.28-09-2011 15 previous enmity between the parties, accused persons have been roped in the present case. Entire prosecution case against the appellants becomes doubtful. In the aforesaid background, the appellants are entitled to the benefit of doubt. 18. The appellants, who have already been acquitted for the charge under section 302 of the Indian Penal Code as also under section 27 of the Arms Act by the learned trial court, are entitled to be acquitted for the charge under Section 302/149 of the Indian Penal Code as well. 19. For the reasons recorded above, this batch of appeals are allowed. Impugned judgment of conviction and order of sentence passed against the appellants are set aside. The appellants are acquitted for the charge under section 302/149 of the Indian Penal Code. As all the appellants are released on bail by virtue of the orders passed by this Court, they are discharged from the liability of their bail bonds. (R. M. Doshit, C.J.) (Birendra Prasad Verma, J) BTiwary/ N A F R