CRIMINAL APPEAL No.429 OF 2003(DB) With CRIMINAL APPEAL NO. 460 OF 2003(DB) -------- Against the judgment and order of conviction and sentence dated 11.8.2003/18.8.2003 passed by Shri Paras Nath Sinha, Presiding Officer, Additional Court (FTC), Munger in Sessions Case No. 762 of 1988/ Trial No. 423 of 2002/ G.R. No. 1125 of 1988. ---------- Cr. Appeal No. 429 of 2003 (DB) 1. Suren Yadav alias Saukil Yadav, son of Darogi Yadav, resident of village – Harinmar, P.S. – Mufassil, District – Munger 2. Paglu Yadav, son of Dhanik Yadav, resident of village – Harinmar, P.S. – Mufassil, District – Munger ………Appellants Versus State Of Bihar …….Respondent Cr. Appeal No. 460 of 2003 (DB) Wakil Yadav, son of Darogi Yadav, resident of village – Harinmar, P.S. – Mufassil, District – Munger ….…Appellant Versus State Of Bihar …..….Respondent For the Appellants : S/s Rajiv Kumar Verma, Sr. Advocate Shiv Shankar Sharma, Arun Kumar Sinha, Rajneesh, Advocates For the State : Shri Ashwani Kumar Sinha, A.P.P. ---------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE RAKESH KUMAR ---------- Dharnidhar Jha & Rakesh Kumar, JJ. The two appeals arise out of the judgment passed by the learned Presiding Officer of Fast Track Court, Munger on the 11th August, 2003 in Sessions Case No. 762 of 1988 by which the 2 appellants Suren Yadav alias Saukil Yadav and Paglu Yadav were held guilty of committing offences under sections 302/34 of the Indian Penal Code whereas the third appellant Wakil Yadav was found guilty of committing offence under section 302 of the Indian Penal Code. The appellants were heard on sentence on the 18th August, 2003 and while appellant Wakil was directed to suffer rigorous imprisonment for life as also to pay a fine of Rs.2000/- for his conviction under section 302 of the Indian Penal Code, the remaining two appellants were directed to undergo rigorous imprisonment for life as also to pay a fine of Rs.500/-, in default of paying which, they had to undergo simple imprisonment for six months for their conviction under section 302/34 of the Indian Penal Code. The appellants have preferred the two appeals for questioning the propriety of findings recorded by the learned trial judge. 2. The facts of the case are very short. The informant, Biranchi Bind, examined as P.W. 12, stated that he along with three persons, namely, Jamadari Bind (not examined), Dano Bind (not examined) and Jago Singh, P.W. 1, was singing at his Baithka at about 12.30 A.M. in the night intervening 23rd and 24th of July, 1988. The deceased, namely, Kailash Bind, who happens to be the son of the informant, was sleeping there on the ground just by the side of the three singers. It is alleged that the three appellants came there armed with country made pistols and appellant Paglu Yadav commanded them not to move from their respective places. Appellant Wakil Yadav was, thereafter, alleged to have fired a shot upon the sleeping 3 Kailash Bind, the son of the informant, as a result of which, he died there on the spot. 3. It was stated by the informant that appellant Wakil Yadav and Paglu Yadav regularly visited the house of the informant from about five days of the occurrence to see the deceased but the informant could not gather as to what they discussed amongst themselves. As regards the cause for committing the murder, the informant alleged that there had been a marpit on account of some land dispute some seven – eight years ago in between the appellant Paglu Yadav and the informant, but the dispute had been resolved through Panchaiti and no case was lodged and, as such, the three appellants had shot dead his son. 4. On the basis of the fardbeyan of P.W. 12, the FIR of the case was instituted and the investigation was taken up. The I.O. has not been examined, so we do not have anything before us to show as to how the investigation was conducted. But, we could safely note that the materials would have been found sufficient by him so as to forwarding the three appellants for trial by submitting a final report to that effect. 5. The defence of the appellant was that they were innocent and had falsely been implicated. They further appeared suggesting and also succeeding in bringing on record some facts indicating that the deceased was a person of criminal antecedent and, as such, appears suggesting to the witnesses that he had been killed somewhere else and after retrieval of the dead body from the real place of occurrence, 4 the informant and others brought the same to his house and after weaving out a false story, implicated the three appellants. 6. During the course of the trial, the prosecution examined total number of twelve witnesses, out of whom P.W. 1 Jago Singh, who was named in the F.I.R., was declared hostile on account of expressing his lack of knowledge about any part of the occurrence. Likewise, P.W. 7 Shankar Singh, who was a witness to the inquest report, was also declared hostile, because he made a statement in court that the I.O. of the case had not held inquest upon the dead body in his presence and he was called to the Darwaja of the informant by the police officer when he was passing by in front of it to sign the document. Out of the remaining witnesses, P.W. 5, Bahadur Singh, P.W. 6 Gopal Singh and P.W. 8 Surendra Singh were tendered for cross examination. P.W. 2 Brahmdeo Singh was a witness to the seizure of an empty cartridge which was allegedly found at the darwaja of the informant. P.W. 3 Parvati Devi was wife of Jogi Singh who, from her evidence, appears being the wife of the younger brother of the informant and has given evidence as a hear say witness from P.W. 12. Likewise, P.W. 4, Rambati Devi is the mother of the deceased and wife of the informant and she had given evidence after being told about the incident by P.W. 12. P.W. 9, Prakash Singh, is the brother of the deceased and he has given an eye witness account to the occurrence as was done by P.W. 10 Ram Kumar Singh. P.W. 11 Sudhir Kumar had held postmortem examination and had 5 prepared the report, Ext. 2 in that behalf. P.W. 12 is the informant as has earlier been pointed out. 7. On consideration of the evidence of the witnesses, the learned trial judge rendered the impugned judgment and passed the order of sentence as indicated at the very outset of the present judgment. 8. We have heard Sri Rajiv Kumar Verma, learned senior counsel for the appellants Suren Yadav alias Saukil Yadav and Paglu Yadav and Sri Sheo Shankar Sharma, learned counsel for the sole appellant Wakil Yadav in the other appeal. They have submitted that there are many defects which afflicts the prosecution case and the learned trial judge appears either utilizing inadmissible evidence or giving wrong reasons for finding the appellants guilty of the offences besides indulging into conjectures and surmises so as to dispel the effects of the evidence which was brought on record through cross examination of the witnesses on record. It was contended that the attention of the witnesses was drawn to their respective statements and the non- examination of the I.O. appears prejudicially affecting the attempt of the defence to establish by evidence that the witnesses had made false statements or could not be the persons to be relied upon. It was further contended that there was admission of witnesses, like, the mother of the deceased, P.W. 4 and the informant, P.W. 12 as also P.W. 5 that the deceased was a person of criminal antecedent having visited jails on many occasions on account of being accused in four – five cases of murder and dacoity and the opinion of the doctor on the time of death may indicate that the deceased might have been 6 murdered at some other place by some other persons who could be attempting to settle their personal scores with the deceased. 9. Shri Sharma, learned counsel for the appellant Wakil Yadav has, besides the above argument, placed before us that the FIR was instituted in the very township of Munger as a Munger Mufassil police station case and the courts of magistrate were also located in the same township but in spite of the FIR being drawn up on 24.7.1988, the same could reach the magistrate on 26.7.1988. It was contended that the non-examination of the I.O. has again caused prejudice to the defence because it has been handicapped in not bringing on record the explanation or the relevant facts as to why there was a delayed receipt of the copy of the document by the magistrate. It was next contended by Shri Sharma that three persons were named in the FIR as witnesses, out of whom, two, namely Jamadari Bind and Dano Bind did not turn up for their evidence and the one Jago Singh, who was produced in court, did not support the prosecution case. Besides, the persons who accompanied the informant to the police station for lodging the FIR, also was not examined. It was contended that while the witnesses named in the FIR were either not produced or were declared hostile, a third person like P.W. 9, Prakash Singh, who was not named in the FIR was produced in court and examined as an eye witness after about ten years of the occurrence and the non examination of the IO all the more compounds the belated statement of the witness, P.W. 9. It was contended next by Shri Sharma that the motive was not established. It 7 was alleged in the fardbeyan that there was some land dispute and marpit between the appellant Paglu Yadav and the informant, who came for giving evidence in court as P.W. 12 for making statement that the real quarrel or, in other words, marpit had taken place with the appellant Wakil. Further, our attention was drawn to the assessment of age by the court of appellant Wakil Yadav while recording his statement under section 313 of the Code of Criminal Procedure which has been recorded as 33 years and it was contended that on the day of occurrence he could be just aged about eight years and would not be in a position to pick up a quarrel for any land. It was, as such, contended that the motive was not established. Besides, the attention of ours was drawn to paragraph 67 of the judgment and to other part of it on the motive or genesis of the occurrence. It was contended that the FIR stated that from 3-4 days prior to the occurrence, appellants Paglu and Wakil used to come to the deceased and used to discuss some thing with him. The informant has not stated as to what was that particular fact but, P.W. 10, Ram Kumar Singh has stated that the appellants used to come and used to request the deceased to go with them to some of their relatives‟ place. It was contended that the trial court has indulged into serious conjectures and surmises while recording this finding in paragraph 67 of the judgment by recording that might be, that the accused persons were asking the deceased to commit some crime and because he was not ready to do that, so the murder was committed. It was, lastly, contended by Sri Sharma that some of the most important documents 8 of the prosecution, like, fardbeyan, seizure memo and inquest report were not brought on record. 10. P.W. 4 Ramawati Devi in paragraph 2, P.W. 5 in paragraph 2 and, lastly, P.W. 12, the informant himself, at page 31 of his deposition in the paper book, admitted that the deceased was accused in some criminal cases. P.W. 4 has stated that the deceased had visited jails on a couple of occasions and was accused in four – five cases of murder and dacoity and that he never feared the police and always remained at home. P.W. 5, in his solitary paragraph 2 of his evidence, on account of being tendered for cross-examination, has admitted that the deceased was a person of criminal antecedent. P.W. 12, as indicated above, has though admitted that the deceased being accused in criminal cases of murder and dacoity, but has not divulged any number of such cases. This clearly indicates that the deceased was a person who could be an eyesore to many persons. As such, there could be a probability that many persons could be out to settle their personal scores with the deceased. 11. The contention of the learned counsel was that the deceased was murdered at some other place and not at his Baithka in the manner alleged and his dead body was brought by the informant and others and thereafter a story was cooked up for implicating the present set of appellants. So as to buttressing this argument, our attention was drawn to the copy of the inquest report which forms part of the record and which appears at page 37 of the paper book. It was contended that the deceased was alleged to be sleeping on the 9 ground while the informant and others were singing. Our attention was drawn to column no. 4 of the document which is in respect of the position of the dead body in which it was found by the officer while holding inquest upon it. The officer who prepared the document has recorded that the dead body was lying on a chowki by its belly. It has further been noted that some bed material was also placed there. As has already been indicated, the initial story is that the deceased was sleeping on earth in the Baithka while his father and others were singing. He was shot and killed in that very position. There is no reason found by us in the evidence of witness as to on what account the dead body was placed on the chowki before the arrival of the police officer. We could have sought clarifications or we could have obtained clarity in recording some other findings also had we had the advantage of reading the evidence of the investigating officer who could have been the only person to tell us as to whether any blood was found on the ground in the Baithka of the informant. We are handicapped by the non-examination of the I.O. In absence of any evidence on record, because none of the witnesses has stated that any blood was found by the police on the earth or on the surface of the Baithka, we have to presume that there was no blood there. Thus, we find the argument of the learned counsel for the appellants weighty that it might be a probability that the deceased was shot and killed at some other place and his dead body was brought to the Baithka for filing a case. 10 12. The above probability appears emerging from the medical evidence also. On consideration of the evidence of doctor Sudhir Kumar, what we find is that he conducted the postmortem examination on 25.7.1988 at 12.30 P.M. When he was performing the autopsy, he found the dead body decomposed so much so that blisters had also appeared all over it. Not only that, digestive track of the deceased was empty, nothing was found present in the stomach. The story, as narrated by P.W. 12 was that the occurrence had taken place at 12.30 in the night when the deceased was sleeping on the ground in his Baithka and the informant and two others were singing some songs there. It was an ordinary expectation that the doctor could have found some residuary food particles either in semi digested form or partially digested form in the intestine. Non-finding of any food particles or any quantity of digested or semi digested food in the stomach or in the intestine rules out the possibility that the occurrence could have taken place in the very night of the occurrence as is claimed by the prosecution. 13. The other reason upon which we derive the above conclusion, comes again out of the same document, Ext. 2, the postmortem examination report and the evidence of P.W. 11, Dr. Sudhir Kumar. He had found the dead body decomposed and blisters present all over the body. He has stated in his evidence at page 27 of the paper book that red coloured fluid was found coming out from the mouth of the deceased and the decomposition starts after 36 hours of death in the month of July, which is generally hot and saltry. As we have just 11 pointed out, the post mortem examination started on 25.7.1988 at 12.30 P.M. and in the opinion of the doctor the time elapsed since death was 48 hours. The time of occurrence was at 12.30 A.M. in the night intervening 23rd and 24th July, 1988. If we compute the time from the time that had elapsed since death, the time of occurrence could be coming to 12.30 P.M. on 23rd July, 1988. Thus, the medical evidence indicates a probability that the occurrence might not have occurred at the time as was claimed by the prosecution. 13. In our opinion, the value of a document, like, the postmortem report and, as such, the evidentiary value of the same is not that it lends corroboration to the manner of the occurrence, it is equally valuable a document and evidence for the defence also. The defence could rely upon the medical evidence and point out to the court that either the manner of occurrence or the time of occurrence as is claimed by the prosecution may not be possible or probable. That appears the value of the medical evidence and Ext. 2, the postmortem examination report also in the case in our hand. 14. In the above background, the argument on the belated receipt of the FIR by the magistrate assumes significance. On perusal of the copy of the FIR which appears at page 1 of the paper book, we find that it had been registered by the Officer Incharge of Munger Mufassil police station on 24.7.1988 as may appear from the signature and the description by designation of the officer at the foot of the document. It hardly requires to be noted that the Mufassil police station in Munger is located in the very township of Munger 12 where are also located the headquarters of the judgeship of Munger. It could be the simple inference that the magistrates sit there who are empowered to receive the copies of the documents, the FIR. The FIR was drawn up on 24th July, 1988 by Munger Mufassil police station but the copy of the document appears received by the magistrate on 26.7.1988. The I.O. has not been produced. It would have been legitimate both for the prosecution and the defence to elicit from the I.O. as to what was the reason on account of which the document was received belatedly by the magistrate. As regards the document itself, column 3 thereof indicates that it was dispatched to the court by a special messenger. But, still it could reach the magisterial court two days after its dispatch as we could safely presume that the day of dispatch in absence of the evidence to the contrary, was the 24th of July, 1988. Could not it be a probability that some thing was being cooked in between so as to implicating the accused persons falsely? 15. As regards the motive for commission of the offence, the informant stated that from 3-4 days prior to the occurrence the appellants used to visit his house and discussed something with his deceased son, which he could not know. The other reason for the commission of the offence was that there was a land dispute of the informant some seven – eight years back with the appellant Paglu Yadav and there had been some marpit as well. But the very document, fardbeyan, contains the fact that that dispute was resolved by intervention of the Panches and the parties appeared carrying on well with each other thereafter. One could very well argue that there 13 might not be any reason after settlement of the dispute and that the peace was prevailing between the parties so as to taking the extreme step as to killing a man by shooting him dead. But, we grant that much of latitude to the prosecution by noting that sometimes animosity is hidden or covered with the friendly relationship and at times some minor things give a gush to the anger which come out and results in a barbaric action which may not be acceptable in the prevailing relationship. Assuming that it may be the reason for commission of offence, what we find is that P.W. 12 also stated that the quarrel for the land was with the appellant Wakil Yadav. On perusal of the statement of Wakil, recorded under section 313 of the Code of Criminal Procedure, we find that he was found aged about 33 years on the 24th of May, 2003. The date of occurrence is the night intervening 23rd and 24th July, 1988. Thus, the appellant Wakil Yadav may be just about 18 years on the date of occurrence. The land dispute had occurred some 7-8 years prior to the present occurrence which could be bringing his age down to some where around 10 years. 16. We have great difficulty in persuading ourselves to concede to the prosecution case that Wakil Yadav, a child of ten years, could pick up quarrel with the informant and, as such, would conspire and commit the murder of the deceased Kailash Bind. As regards other motive or genesis of the occurrence that the appellants were visiting the house of the informant and discussing something with the deceased‟s son, we find that the learned trial judge has indulged in 14 conjectures of the class which is not expected from a court of as higher a class as of Additional Sessions Judge. The learned judge, in his judgment in paragraph 67 has discussed the evidence on the point and we are constrained to note that the inference which he has drawn, does not appear coming out of the evidence. The learned judge has recorded that the accused persons might have discussed with the deceased some plan for committing some offence or crime and finding that Kailash was not agreeable to their proposal, the accused shot him dead in furtherance of their common intention. The learned judge went a step further in noting that “this was the motive for the murder of Kailash Bind by the accused persons.” We are simply distressed to note that this could not be the manner in which we appreciate evidence while trying such serious offence. We must keep in our mind that the prosecution must prove the charges. The Supreme Court was pointing out in Shivaji Sahebrao Bobade Vs. State of Maharashtra reported in AIR 1973 Supreme Court 2622 that there is distance between „may‟ and „must‟ and that distance has to be traversed by the prosecution with admissible acceptable evidence. The learned judge, unfortunately, appears entering into the field of conjectures so as to holding that the motive stood proved which, in our considered view, was not established. 17. In the light of the above discussion and the evidence adduced by the prosecution, we come to a conclusion that the prosecution has not succeeded in proving the charges to the hilt. There were many slips in the prosecution case and those loopholes appear not plugged 15 properly by admissible and acceptable evidence. We find that the trial judge committed grave error in recording the guilt of the present set of appellants and passing a sentence upon them. They really deserve to be acquitted