CRIMINAL APPEAL No. 57 OF 1989 (DB) Against the judgment of conviction and order of sentence dated 18th January, 1989 passed by 1st Additional Sessions Judge, Aurangabad in Sessions Trial No. 53/1982/105/1981. 1. Kedar Singh, Son of Late Jati Singh 2. Ram Singhasan Yadav, Son of Late Sahdeo Yadav, Resident of Village Manjkher, P.S. Rafiganj, District Aurangabad. 3. Rajendra Yadav, Son of Kedar Singh 4. Ram Pravesh Singh, Son of Seo Narayan Singh 5. Rajendra Singh 6. Rama Ashraya Singh, Both Son of Late Sahdeo Yadav All Residents of Village Bhadwadih, P.S. Rafiganj, District Aurangabad. …………..Appellants Versus The State of Bihar ………….Respondent For the Appellants :- Sri Krishna Prasad Singh, Sr. Advocate Sri Manindra Kishore Singh, Advocate Sri Bhaskar Shankar, Advocate Sri Rakesh Singh, 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 AKHILESH CHANDRA * * * * * S.K.Sharma & Akhilesh Chandra J.J. The appellants, namely, Kedar Singh, Ram Singhasan Yadav, Rajendra Yadav, Ram Pravesh Singh, Rajendra Singh and Rama Ashraya Singh have preferred this appeal against the judgment of conviction and order of sentence dated 18th January, 1989 passed in Sessions Trial No. 53/1982/105/1981 whereby the learned 1st Additional Sessions Judge, Aurangabad held appellant no. 1 Kedar Singh, appellant no. 2 Ram Singhasan Yadav, appellant no. 3 Rajendra Yadav and appellant no. 5 Rajendra Singh guilty under Section 302 of the Indian Penal Code and they were sentenced 2 to undergo rigorous imprisonment for life. Appellant no. 4 Ram Pravesh Singh was convicted under Sections 302/149 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life, whereas appellant no. 6 Rama Ashraya Singh was convicted under Sections 109/302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. Appellant nos. 3, 5 & 6, namely, Rajendra Yadav, Rajendra Singh and Rama Ashraya Singh were further convicted under Section 147 of the Indian Penal Code and appellant nos. 1, 2 & 4, namely, Kedar Singh, Ram Singhasan Yadav and Ram Pravesh Singh were convicted under Section 148 of the Indian Penal Code but no separate sentence was passed against them. 2. The prosecution case is with regard to an occurrence at 8.00 P.M. on 28.09.1980 at a village Bhadwadih in the district of Aurangabad. The informant reached to the police station on the next morning on 29.09.1980 at 10.20 A.M. and the statement of P.W. 8 Bhagat Yadav was recorded by Sub-Inspector, Prasuray Jha. In his fardbeyan (Exhibit – 1) the informant Bhagat Yadav (P.W. 8) stated that in the preceding night i.e. on 28.09.1980 at about 8.00 P.M. his father Mahadeo Yadav (deceased), brother Jagat Yadav (P.W. 2) and brother-in-law Ram Lakhan Yadav (P.W. 6) were gossiping in his Baithka after taking their dinner. At that very time a lantern was available and it was lighting the place. Suddenly, 15/20 persons barged and asked the informant and others to keep mum. They tied the hands of informant (P.W. 8), his brother Jagat Yadav (P.W. 2) and relative Ram Lakhan Yadav (P.W. 6) and 3 dragged out the informant’s father Mahadeo Yadav. Accompanying others the informant followed his father. The accused persons were carrying different weapons, namely, pistol, dagger, gun, gandasa etc. When the informant went up to lane (gali) then he found 100 more persons standing there and informant and others were dragged to Madar river. The informant had identified villagers Kedar Singh (appellant no. 1), Ram Singhasan Yadav (appellant no. 2), Sahdeo Yadav (deceased), Rajendra Singh (appellant no. 5), Ram Pravesh Singh (appellant no. 4) and Rajendra Yadav (appellant no. 3). They started assaulting the informant’s father. Kedar Singh, Sahdeo Yadav and Ram Singhasan Yadav were having dagger, Rajendra Singh and Rajendra Yadav were having lathi and Ram Pravesh Singh was in possession of a pistol. Rama Ashraya Singh was standing there and was instigating other accused that the cutting of the leg should be retaliated and he was asking to annihilate. Kedar Singh (appellant no. 1) gave a dagger blow upon the neck of Mahadeo Yadav. Some unknown persons were shouting the name of extremists organization and they were using their lathis and daggers. Ram Singhasan Yadav (appellant no. 2) has given a dagger blow to Mahadeo Yadav on his forehead whereas Rajendra Singh and Rajendra Yadav (appellant nos. 5 & 3) were assaulting Mahadeo Yadav by means of lathi. At that very time Ram Pravesh Singh (appellant no. 4) was threatening the informant and others by showing his pistol and stated that the action was in retaliation of murder of Janeshwar Singh. Some of the accused gave knife blows to the informant’s relative Ram Lakhan Yadav (P.W. 6) which 4 caused injury on his left hand. The informant’s father fell down. Thereafter, the accused persons took the informant and his persons and made them to cross the river and warned them that the name of the accused persons should not be divulged to anybody. The informant and others returned to his father and they found him dead. The informant claimed to identify the accused persons, if opportunity to identify was given. Some villagers have also witnessed the occurrence which was in consequence of previous enmity. After the fardbeyan was recorded, it was handed over to informant who put his signature on it (Exhibit – 1/1). The officer- in-charge forwarded the copy of fardbeyan to the police station and recorded formal F.I.R. (Exhibit – 2) vide Rafiganj P.S. Case No. 18 dated 29.09.1980 under Sections 148, 149, 324, 307 and 302 of the Indian Penal Code. Fardbeyan has no attesting witness. The matter was investigated into and after completion of investigation, the charge-sheet was submitted. It was received by the Court on 02.01.1981. On that date, statements of some of the witnesses were recorded under Section 164 of the Code of Criminal Procedure. Thereafter, the case was committed to the Court of Sessions where charge under Section 147 of the Indian Penal Code was framed against the accused Rajendra Singh, Rajendra Yadav and Rama Ashraya Singh, charge under Section 148 of the Indian Penal Code was framed against accused Kedar Singh, Ram Singhasan Singh and Ram Pravesh Singh, charge under Sections 109/302 of the Indian Penal Code was framed against accused Rama Ashraya Singh, charge under Sections 302/149 of the Indian Penal Code was 5 framed against accused Ram Pravesh Singh and charge under Section 302 of the Indian Penal Code was framed against accused Kedar Singh, Ram Singhasan Yadav, Rajendra Singh and Rajendra Yadav, charges were explained to the accused persons to which they pleaded not guilty and claimed to be tried. Hence trial proceeded. 3. In order to prove its case, prosecution has examined 10 witnesses, they are, P.W. 1 Siyawar Singh, P.W. 2 Jagat Yadav, P.W. 3 Jagnarayan Singh, P.W. 4 Deokali Devi, P.W. 5 Lalita Devi, P.W. 6 Ram Lakhan Yadav, P.W. 7 Dhan Rajo Devi, P.W. 8 Bhagat Yadav, P.W. 9 Dr. K.K.Singh who conducted postmortem examination over the dead-body of the deceased Mahadeo Yadav and P.W. 10 Ram Charitar Singh. P.Ws. 1, 3 & 10 were formal witnesses and they have proved some papers. P.W. 4 is wife of the deceased, whereas P.W. 5 is daughter of the deceased and P.W. 7 is wife of the informant and P.W. 6 is brother-in-law of P.W. 7 in this case. The Investigating Officer has not been examined. On behalf of defence also 4 witnesses were examined, they are, D.W. 1 Raghuni Dusadh, D.W. 2 Mahendra Singh, D.W. 3 Ashok Kumar Singh and D.W. 4 Madan Mohan Prasad. 4. Besides the oral witnesses some evidence by way of some documents have also been proved. The following Exhibits have been relied upon by the prosecution :- Exhibit – 1 :- Fardbeyan. Exhibit – 1/1:- Signature of Bhagat Yadav on the Fardbeyan. Exhibit – 2 :- Formal F.I.R. Exhibit – 3 :- Postmortem Report under the writing & signature of Dr. K.K.Singh, P.W. 9. Exhibit – 4 :- Inquest Report under the writing & signature of Prasuray Jha, officer-in- 6 charge. Exhibit – 4/1 & 4/2 :- Signature of Raghuni Dusadh & Mahendra Singh on the Inquest Report. Exhibit – 5 :- Seizure list under the writing & signature of Prasuray Jha. 5. On the other hand the writing and signature of Ram Swaroop Gupta on the formal F.I.R. had been relied upon by the defence and it has been marked as Exhibit – A. Similarly other fardbeyan in the writing of Aditya Prasad is marked as Exhibit – B. Statement of four persons, namely, Jagat Yadav, Ram Lakhan Yadav, Dhan Rajo Devi and Lalita Devi have been relied upon by the defence and it has been marked as Exhibit – C to C/3 by the defense. 6. The trial court after analyzing the entire evidence brought on record came to the conclusion that the prosecution was able to prove its case beyond the shadow of all reasonable doubts and accordingly passed order of conviction and sentence, as stated above. 7. The court is required to see whether the prosecution has established its case against these appellants beyond the shadow of all reasonable doubts. 8. Before discussing the oral testimony, it is appropriate to discuss the postmortem report. P.W. 9 Dr. K.K. Singh has conducted the postmortem over the dead-body of Mahadeo Yadav on 30.09.1980 and found the following anti- mortem injuries :- i. Incised wound 2” x ¼” x skin deep in the middle of forehead placed transversely. ii. Incised wound 1” x ¼” x skin deep placed 7 transversely in middle of forehead just above the root of nose. iii. Incised wound 2 ½” x ¼” x 1” extending from the right side of chin to a point below and lateral to the right angle of the mouth lying over the lower jaw. On dissection lower jaw had comminuted fracture communicating to the oral cavity. iv. Incised punctured wound 1” ¼” x 1 ½” on the left side of neck 1” above the externo clavicular joint, inclination being downward medially and posteriolly. On dissection soft tissues of left side of neck were divided in the extent of the wound. On further dissection zugular vein was found to be completely divided. v. There was abrasion in front of middle of chest. On dissection the body of externum was found to be fractured in between 3rd and 4th ribs. vi. Incised wound 8” x 2 ½” in the middle of the wound communicating to the abdominal cavity extending from the lower margins of the chest to a point 1” below umbilicus. On further clearing and dissection the following injuries were detected:- (a). Incised wound 1 ½” x 1” communicating to stomach cavity. The stomach contents were found in the peritorial cavity. The abdomen was full of blood in an around the wound of the stomach. Anterior wall of the stomach was incised in extent described. (b). Incised wound 3” x 1” x 2” on the anterior surface of liver in the right lobe. (c). Incised wound 1” x ¼” x 1” in the lateral surface of right lobe of liver. (d). Incised wound 1 ½” x ¼” x cavity deep in the anterior wall of transverse colon placed in transverse direction of colon. vii. Defused swelling in the upper 3rd of right leg. On dissection there was comminuted fracture of upper 3rd of right tibia. viii. Incised wound ½” x ¼” x skin deep placed longitudinally 2” below the tibial tuberosity. ix. Incised wound ½” x ¼” x skin deep in the middle of right leg placed longitudinally in front of right leg. x. Incised wound ½” x ¼” x skin deep placed longitudinally in the outer surface of left leg just below the tibial tuberosity. 8 xi. Defused swelling in the upper 3rd of left leg. On dissection there was comminuted fracture of left tibia. In opinion of the doctor cause of death was due to massive haemorrhage leading to shock and cardiac arrest caused by above mentioned injuries which were sufficient to cause instantaneous death in ordinary course. Injuries nos. i, ii, iii, iv, vi, viii, ix and x were caused as a result of attack by sharp cutting weapons which may be dagger. Injury no. iii was caused on account of assault by sharp cutting heavy weapons such as gandasa. Injuries nos. v, vii and xi were caused on account of assault by hard and blunt substance which may be lathi. The time elapsed since death was within 48 hours of postmortem examination. 9. According to the prosecution case, the occurrence is of the night of 28th September, 1980 and the postmortem was done on 30.09.1980 at 6.45 A.M., so the time of assault as alleged by the prosecution stands corroborated by the Doctor and it has been proved that death was almost on the time as suggested by the prosecution and it was on account of severe attack by means of hard blunt and sharp cutting instruments. Therefore, murder was committed at the alleged time. 10. Now, the prosecution is required to establish the fact that it was assault on behalf of the appellants which caused death of deceased Mahadeo Yadav. 11. The defence from the beginning has tried to prove that all the accused persons/appellants were falsely implicated on account of protracted enmity. Further defence was that it was a 9 dark night and the identification of the accused persons was not possible at the time of occurrence. Further argument is that the witnesses have contradicted themselves with regard to means of identification and some of the witnesses have stated that it was a dark night and some have stated that it was a moonlit light and on this basis it has been argued that the accused persons were not consistent. So the sources of identification cannot be established. It has also been stated that burning lantern was also not seized by the Investigating Officer. The Investigating Officer has also not been examined, so it has been argued that the identification was not possible. The further defence of the accused persons was that on 02.01.1981, P.Ws. 2, 5, 6 & 7 have given their statements under Section 164 of the Code of Criminal Procedure in view of the direction of the learned Sessions Judge. The statements were recorded by the Judicial Magistrate and those witnesses, though have supported that the death was caused due to violent attack by many persons. It has been specially stated that none of the villagers of Bhadwadih were not involved in the commission of murder. 12. Evidence of P.W. 8 shows that on Sunday at 8.00 P.M. the informant was gossiping alongwith his father (deceased), brother Jagat Yadav (P.W. 2) and brother-in-law Ram Lakhan Yadav (P.W. 6) at their Baithka where lantern was burning. Suddenly 15/20 persons entered into the Baithka of the informant and told them to keep quiet. The informant has identified appellants Kedar Singh with dagger, Ram Singhasan Yadav with dagger, Sahdeo Yadav (later on murdered) with dagger, Rajendra Singh and 10 Rajendra Yadav with a stick and Ram Pravesh Singh with pistol. Others were having guns, gandasas, lathis etc. The accused persons forcibly took the informant’s father outside from the Baithka. The informant, P.W. 2 and P.W. 6 were also taken out and their hands were tied from behind. The informant’s father cried and thereafter his mother (P.W. 4) and sister (P.W. 5) came. About 100 murderous were there and they were shouting. They carried away the informant’s father towards the river. Rama Ashraya Singh was extorting other accused persons to do away with the life of the informant’s father. Thereafter, Kedar Singh assaulted upon the neck of father of the informant, Ram Singhasan Yadav assaulted on the head of the informant’s father and other accused, namely, Rajendra Singh and Rajendra Yadav assaulted by means of their sticks. The informant’s father died on receiving such assault. The accused persons asked the informant and others not to cry and they stated that the consequence was in response to the murder of Janeshwar Singh. According to the informant, it was a dark night and the accused persons were flashing torch. The informant came to the house and opened the chain of the house and told his mother (P.W. 4), sister (P.W. 5) and wife of the informant about the occurrence. Next day at about 10.00 P.M., the police came and the fardbeyan was given. The learned counsel for the appellants has argued that the informant and other witnesses have improved their case in course of the evidence. The informant has not stated anything about the presence of his mother, sister and wife when the informant, deceased and others had been caught hold by the criminals but in 11 course of his statement the informant for the first time says in paragraph 1 that his mother, sister and others had come to Darwaja. 13. The occurrence is at two places, the first place of occurrence is the place from where the informant’s father was caught and taken away and the second place of occurrence is the river where the killing was done. Three lady witnesses, namely, Deokali Devi (P.W. 4), Lalita Devi (P.W. 5) and Dhan Rajo Devi (P.W. 7) are to the extent of seeing the accused persons taking away the victim. P.W. 4 in paragraph 12 of her deposition states that she did not say which accused caught which part of the body of her husband Mahadeo Yadav (deceased) and whether the accused persons had concealed their identity. P.W. 5 in paragraph 10 says that she has seen the dead-body of her father in the river, but she did not say anything about the position of the dead-body. In paragraph 8 of her deposition, she says that she has no concern with Kedar Singh and his family members. She has not disclosed about the age of Kedar Singh and did not know about any family member of accused kedar Singh. In paragraph 10 of her deposition, she says that she heard about the killing of her father from her brother. P.W. 5 in paragraph 1 says that when the dog was barking, her father was taking meal and after taking meal he had gone to Darwaja. But the informant in paragraph 3 has stated that he had told about the occurrence to his brother, sister and wife. 14. P.W. 2, namely, Jagat Yadav is an eye-witness, who has been relied upon by the prosecution. He has supported the occurrence but has not stated about the presence of P.Ws. 4, 5 & 7. 12 P.Ws. 4, 5 & 7 have stated that they have witnessed the occurrence at their Darwaja and the criminals have locked them in their house but the very fardbeyan or the statement of Jagat Yadav (P.W. 2) are not to that extent. Missing of this fact in the fardbeyan which was recorded after more than fourteen hours of the occurrence makes the prosecution case doubtful as to whether the occurrence was witnessed by the lady members or not. 15. According to the fardbeyan, the informant had witnessed the entire occurrence and all the accused persons at the bank of Madar river. P.W. 2 has also stated this fact in paragraph 1 of his evidence and has stated that his hands and legs as well as the hands and legs of his brother and relative Ram Lakhan Yadav were tied by Gamcha at the Darwaja . If feet of the person are gagged then the movement of that person would become very difficult. It was for the prosecution to explain as to under what circumstances the persons went to the river when they were already tied upon. No dragging mark between 1st and 2nd place of occurrence has been found. P.Ws. 4, 5, 7 and 8 have claimed the identification of the criminals in the light of the lantern, but it is unexplained as to what happened to the lantern. The lantern was not seized or at least this matter was not stated before the Investigating Officer. The Investigating Officer has not appeared for his evidence and no explanation has been given as to why the Investigating Officer could not appear. The existence of lantern itself has been doubted. In paragraph 3 of P.W. 8, it has been stated that occurrence was of a dark night. P.W. 2 stated that his father was surrounded by 30 13 persons and P.Ws. 2, 3 & 8 were also surrounded by other persons. It becomes doubtful as to whether from such a distance the culprits could be identified. 16. With regard to assault, the version has been given by P.Ws. 2 and 8 and it has been stated that the accused persons have been assaulted, but if the postmortem report is perused then it appears that the dead-body had a number of anti-mortem injury and there is no allegation as to whether there was repetition of blow by any person. Here also the manner of assault has not been proved. 17. Statements under Section 164 of the Code of Criminal Procedure of P.Ws. 2, 4, 5, 6 & 7 were recorded by the Judicial Magistrate by order of learned Sessions Judge and all the witnesses in their statements have stated that these accused persons were not involved in commission of the occurrence. Statements of four witnesses under Section 164 of the Code of Criminal Procedure have been marked as Exhibit – C to C/3. It has been argued that there is no explanation as to why the informant and witnesses after long lapse of several years have concocted the story that statement under Section 164 of the Code of Criminal Procedure was given under compulsion or threat. The informant P.W. 8 in paragraph 13 has stated that he has not met with the accused persons and had no talked at all with them since the occurrence. Therefore, it has been argued that there was no opportunity for the accused persons to threaten the witnesses and hence the statement of the witnesses under Section 164 of the Code of Criminal Procedure is reliable 14 evidence and these statements fully exonerate all the accused persons. 18. The statements under Section 164 of the Code of Criminal Procedure of the witnesses are on the record and they have clearly stated in their statements that they have not identified any of the accused persons. This statement under Section 164 of the Code of Criminal Procedure was recorded on 02.01.1981 and on that very date charge-sheet was submitted and cognizance was taken. Therefore, this statement under Section 164 of the Code of Criminal Procedure was recorded soon after the occurrence and there appears no evidence at all that the accused persons have ever asked any of the witness to depose in their favour. 19. The trial court has relied extensively on the case diary where there is noting of the contradictions of the evidence. 20. In absence of the examination of Investigating Officer the contradictions could not be brought on the record and the defence has been prejudiced to a great extent. 21. Considering the entire evidences on the record, it appears that the prosecution has been able to prove that the death was in the manner as alleged but the implication of the accused persons beyond the shadow of all reasonable doubts has not been established. The statement under Section 164 of the Code of Criminal Procedure of the witnesses has fully exonerated all the accused persons and there is no evidence at all as to whether any external force or any undue inference was given to them over 15 making their statements. Not only this, there are other contradictions; the Investigating Officer has not been examined, the source of identification has also not been proved, the injured witness, P.W. 6, who happens to be relative of the informant has not supported the allegation.