CRIMINAL APPEAL No.457 OF 2002 --- Against the judgment and order dated 18.7.2002/ 22.7.2002 passed by Additional Sessions Judge, Presiding Officer of Additional Court No.II (F.T.C.) Saran at Chapra in Sessions Trial No.276 of 1990/ 237 of 2002. PUROSHOTTAM SINGH @ PARUSHOTAM KUMAR SINGH alias Pintu Singh son of Shri Shiv Ram Singh, resident of Village Rampur, Police Station Garkha District Saran at Chapra----(Appellant) Versus STATE OF BIHAR----------------------------(Respondents) CR. APP (DB) No.501 oF 2002 SATENDRA KUMAR SINGH @ SATENDRA SINGH @ BUTAN SINGH son of Shri Ram Singh resident of Village Rampur Police Station Garkha, District Saran at Chapra.-----(Appellant) Versus STATE OF BIHAR----------------------------(Respondents) CR. APP (DB) No.626 oF 2002 RAM SINGH son of Late Hira Singh resident of Village Rampur, Police Station Garkha District Saran at Chapra------------------------------------------ (Appellant) Versus STATE OF BIHAR------------------------(Respondents) --- For the Appellant:- Mr. Kanhaiya Prasad Singh,Sr.Advocate. For the State:- Mr. Lala Kailash Bihari Prasad,Sr.Advocate. P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM Appellants have preferred these three criminal appeals against the judgment and order of conviction dated 18.7.2002/ 22.7.2002 passed by the Additional Sessions Judge, Additional Court No.II(F.T.C.), Saran at Chapra in Sessions Trial no.276 of 1990/ 237 of 2002 whereby appellant Ram Singh (in Cr.Appeal No.626 of 2002) has been convicted under Sections 302 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life Mridula Mishra, J - 2 - and a fine of Rs.5,000/- for conviction under Section 302 of the Indian Penal Code, R.I. for one month under section 323 of the Indian Penal Code and rigorous imprisonment for two years and fine of Rs.1,000/- for conviction under Section 27 of the Arms Act. Appellant Satendra Kumar Singh (in Cr.Appeal no.501 of 2002) has been convicted under Sections 302/34 of the Indian Penal Code and sentenced rigorous imprisonment for life. For conviction under section 323 of the Indian Penal Code rigorous imprisonment for one month. For conviction under Section 307 of the Indian Penal Code rigorous imprisonment for seven years and a fine of Rs.1,000/-. He has further been convicted under Section 27 of the Arms Act and sentenced rigorous imprisonment for two years and a fine of Rs.1,000/-. Appellant Purushottam Singh alias Pintu Singh (in Cr.Appeal No.457 of 2002) has been convicted under Section 302/34 and 323 of the Indian Penal Code and sentenced rigorous imprisonment for life and rigorous imprisonment for one month respectively for committing offence under Section 302/34 and 323 of the Indian Penal Code. 2. Ramesh Singh P.W.5 is the informant. Garkha P.S.Case no.0208 of 1988 was instituted on the basis of statement of the informant recorded on 9.12.1988 at 1 P.M. at the police station in which he disclosed that his uncle Bajrang Bahadur Singh had purchased near about 2 ¾ bighas of land from Rajan Kuer, brother’s wife of Ram Singh through registered sale deed. Same land was transferred by Ram Singh to one Mewa Rai one week earlier. In the morning on the date of occurrence Bajrang Bahadur Singh told Mewa Rai that same land has been purchased by him from Rajan Kuer much earlier as such he should not go over the land in question. Mewa Rai thereafter went to Ram Singh and said that he is being restrained by Mukhia Jee from going over the land. Ram Singh asked him to go with his plaugh and bullocks over the land - 3 - and assured him that he will get him possession over the land. The informant, his uncle Bajrang Bahadur Singh along with his cousin Satish Kumar Singh thereafter went over ‘that land’ for irrigating it near about 12’ O’ clock noon. Other persons from the informant’s side namely Sarjug Mahto, Jatha Ram were also present in the field. After some time Ram Singh armed with his licensed D.B.B.L. gun and Satendra Singh with country made pistol, Puroshottam Singh alias Pintu Ssingh with Gupti and Nagina Ram with lathi came there. Bajran Bahadur Singh asked Ram Singh that why he is being disturbed when this land has been purchased by him much earlier. Ram Singh replied that today he will relieve him from all his problems. Ram Singh saying these words opened fire from his D.B.B.L. gun on Bajrang Bahadur Singh. He received gun shot injury on his temporal region and fell down. Baban Singh who was in his field came runningly and caught hold of the barrel of the gun of Ram Singh. Since Baban Singh is quite old Ram Singh again snatched gun from his hand and assaulted him with the butt of the gun. Ram Singh again fired at Bajrang Bahadur Singh who received injury on the right side of his chest and died at the spot. Satendra Singh alias Butan Singh fired from his country made pistol on the informant Ramesh Singh and he received pillet injury on his right hand and chest. Puroshattam Singh alias Pintu Singh ran towards the servant of the informant Sarjug Mahto with Gupti in his hand. The informant pushed the hand of Puroshattam Singh and Gupti fell on the ground. Purushottam Singh thereafter snatched away lathi from his servant Nagina Ram and assaulted the servant of the informant Sarjug Mahto and caused injury. At the time of fleeing away Ram Singh again tried to assault Baban Singh with the butt of the gun, and Babban Singh caught hold of the barrel of the gun. Some altercation took place in between Ram Singh and Babban Singh as a result the gun was - 4 - broken. The accused persons fled away towards their houses with broken pieces of gun.. The occurrence was witnessed by many villagers who will describe it on interrogation. 3. The case was investigated by the Officer-in-charge of Garkha police station and charge sheet was submitted against the accused persons under Sections 302/34 and 323 of the Indian Penal Code and Section 27 of the Arms Act. The cognizance was taken and the case was committed to the court of Sessions for trial. 4. The defence of the accused persons was of false implication and complete denial of the allegation made against them. The defence of the accused persons was also that Bajrang Bahadur Singh was killed at some other place in some other manner. The prosecution taking advantage of the murder of Bajrang Bahadur Singh has falsely implicated them for the reason that they lost their claim in the legal battle with regard to the land purchased by them from Rajan Kuer. The land is in the possession of Mewa Singh to whom it has been transferred by Ram Singh as such there was no reason to assure Mewa Rai that he will get possession over the land. F.I.R. is ante dated and interpolated. 5. The trial court framed charge against Ram Singh under Sections 302, 323 of the Indian Penal Code and 27 of the Arms Act. Appellant Satendra Kumar Singh was charged under Section 302/34, 307, 323 of the Indian Penal Code and 27 of the Arms Act. Purushottam Singh was charged under Sections 302/34 and 323 of the Indian Penal Code. 6. The prosecution in order to prove its case examined ten witnesses. P.W.1 Gorakhnath Singh, P.W.2 Sachitanand Singh, P.W.3 Baban Singh P.W.4 Saryug Mahto, and P.W.5 Ramesh Singh have been examined as eye witnesses. Out of these witnesses P.W.3 Baban Singh, P.W.4 Saryug Mahto and P.W.5 - 5 - Ramesh Singh have been examined as injured eye witnesses. P.W.6 Akhilesh Kumar Singh is hearsay witness. He is also a seizure list witness as in his presence broken pieces of gun alleged to have been used for firing were seized by the Investigating Officer from the room of residential house of accused Ram Singh. P.W.7 Dr. Sushil Kumar Singh was posted as Medical Officer at Primary Health Centre, Garkha on 9.12.1988. He had examined Ramesh Singh, Saryug Mahto and Baban Singh on the same day at different times. He has proved the injury reports of the injured witnesses. P.W.8 Shrawan Kumar is the formal witness and has proved signature of Investigating Officer on the seizure list. P.W.9 Dr. Sidheshwari Prasad was posted as Civil Assistant Surgeon in Sadar Hospital, Chapra and had conducted the post-mortem on the dead body of Bajrang Bahadur Singh on 10.12.1988. P.W.10 nawal Kishore was the Investigating Officer. 7. Defence has also examined two witnesses D.W.1 Dr. Jagdish Narain Nayak , who was Medial officer Incharge at Primary Health Centre, Murera. He has deposed that on the date of occurrence appellant Satendra Singh was admitted in injured condition as indoor patient in the hospital. This witness has been examined in support of alibi of Satendra Singh that he was not present at the place of occurrence. However at the time of hearing of the appeal ‘alibi’ was not pressed as such evidence of witness on this point needs no consideration. D.W.2 is Mangara Kuer. She has been examined, as P.W.6 Akhilesh Kumar Singh in his evidence had stated that the land of Khata no.,231 Plot no.5418 measuring 5 ¾ Kathas were purchased from Mangra Kumer which is the place of occurrence. It had also been stated that Mangra Kuer who executed sale deed in the year 1976 with respect to the land in question is now dead. Mangra Kuer D.W.2 has denied that she had executed any sale deed - 6 - in favour of Bajrang Bahadur Singh. One court witness Shrawan Kumar C.W.1 is the same person who has been examined as P.W.8. He has proved the sale deed executed by mangra Kuer in favour of Bajrang Bahadur Singh which has been marked as Ext.11. This witness has proved the sale deed which was said to be executed in the year 1976 though he has admitted that he started working as Advocate clerk only three years earlier and prior to that he had never done any work relating to court and judiciary. He has also admitted that at the time of execution of sale deed his age must have been 8-9 years. 8. Mr. Kanhaiya Singh, Senior Advocate appearing on behalf of three appellants has stated that the prosecution has utterly failed in proving the place of occurrence, manner of occurrence as well as the genesis of occurrence. Evidence of prosecution witnesses regarding the manner of occurrence has not been corroborated by the Medical evidence as such the evidence of so called eye witnesses and the manner of occurrence as described by them has not been proved beyond reasonable doubts and benefit of this lacuna should go in favour of the accused appellants. 9. In order to scrutinize the submissions made on behalf of the counsel for the appellants the evidence of prosecution, oral as well as documentary is required to be examined. P.W.1 Gorakhnath Singh has been examined as eye witness. He has deposed that the occurrence took place at about 12 P.M. He was in his field which is situated about 100 to 115 metres south of the field which is the place of occurrence. He claims to have witnessed the occurrence from his own field. He has stated that the land of Bajrang Bahadur Singh was being irrigated at that time and Bajrang Bahadur Singh along with his nephew Ramesh Singh (P.W.5), servant Sarjug Mahto (P.W.4), Sachitanand Singh (P.W.2) and nephew Satish Singh (not examined) were present at the place of - 7 - occurrence. At that time Ram Singh armed with D.B.B.L. gun, Satendra Singh with country made pistol. Puroshotam Singh with Gupti and Nagina Ram armed with lathi came near the field of Bajrang Bahadur Singh. Some verval altercation took place in between Bajrang Bahadur Singh and Ram Singh and Ram Singh fired from his gun which hit at right temporal region of Bajrang Bahadur. Bajrang Bahadur fell down. Satendra Singh opened fire at Ramesh Singh which hit at right chest, head and forehead of Ramesh Singh. Ram Singh thereafter fled away from the place of occurrence. Baban Singh came and snatched away gun from Ram Singh. Ram Singh again snatched the gun from Baban Singh and assaulted him with the butt of the gun on his head. Ram Singh again fired at Bajrang Bahadur Singh which hit at the left side of his chest and he fell down and died thereafter. Baban Singh again caught hold of the barrel of the gun. Some altercation took place in between Baban Singh and Ram Ssingh. In this altercation the gun was broken. Thereafter all the accused persons fled away. P.W.1 has stated that during the entire course of occurrence accused persons did not enter into the field of Bajrang Bahadur Singh. Accused persons were standing at a distance of 20-25 ft. from the place where the Bajrang Bahadur Singh was standing. This witness has also stated that he could not hear the conversation going on in between Bajrang Bahadur Singh and Ram Singh as he never came in the field which is the place of occurrence. He has witnessed entire occurrence from his own field. In sum and substance the evidence of P.W.1 is that the firing was made by Ram Singh on the deceased, by Satendra Singh on Ramesh Singh from a distance of 20-25 ft. as they never entered into the field of Bajrang Bahadur. This witness has also stated that at the time of occurrence Baban Singh was aged about 70 years which fact has also been supported from the statement of the informant in the F.I.R. P.W.1 has - 8 - also stated that though Baban Singh twice tried to snatch away the gun from Ram Singh but no attempt was made to shoot him. Even Satendra Singh who was present with country made pistol made no attempt to fire at Baban Singh. In contradiction of the evidence of P.W.1 the medical evidence i.e injury report of P.W.5 proved by Dr. Sushil Kumar Singh P.W.7 and the post-mortem report of deceased Bajrang Bahadur proved by Dr. Sidheshwar Prasad P.W.9 indicate that the fire arm injury on the person of the deceased and the injured were with charred and inverted margin. 10. P.W.2 Sachitanand Singh has stated that he was present at his feld situated at north west corner of the place of occurrence land. The land of P.W.2 is situated after two plots from the place of occurrence land. P.W.2 went in the field of Bajrang Bahadur hearing alarm as verbal altercation was going on in between Ram Singh and Bajrang Bahadur Singh. P.W.2 has also stated that he was at a distance of 15 yards at the time of occurrence. Other persons present at the place of occurrence were Jataha, Shilanath, Deep Narain, and Lagan Ram . P.W.2 in paragraph 9 of his evidence has stated that Shila Nath , Deep Narain and Lagan Ram were operating boring for irrigating the field. These persons have not been examined by the prosecution and no explanation has been given for their non examination. P.W.2 has also stated that he could not hear the conversation going on in between the deceased and accused Ram Singh as he was at a distance of 150 yards. P.W.7 has also admitted in paragraph 11 of his evidence that the accused and the deceased never came close to each other during entire occurrence. They always remained at a distance of 10-12 steps. P.W.2 has also claimed to be the eye witness of the occurrence but his evidence is different from the evidence of other eye witnesses and also the prosecution case. In the F.I.R. no other witness except - 9 - P.W.2 has stated that after receiving first gun shot injury Bajrang Bahadur fell down but he again stood up and thereafter in the standing position he received second gun shot injury. P.W.2 has stated that he met the Investigating Officer at the door of Bajrang Singh but he could not say that after how many days he met the Investigating Officer. The evidence of P.W.2 also indicate that the deceased and the accused appellant Ram Singh never came close to each other as such there is no explanation that how the injury on the person of the deceased was found to be charred with inverted margin. 11. P.W.3 Baban Singh is said to be 70 years of age at the time of occurrence. No other person than this old man had courage to go and restrain Ram Singh from firing at Bajrang Bahadur Singh. P.W.3 has stated that he was in his field which was being ploughed. His field is situated after one plot of the field of Bajrang Bahadur Singh P.W.3 has admitted in his evidence that Rajan Kuer had executed one sale deed in his favour also on 26.12.1981 i.e the date on which Bajrang Bahadur also got executed the sale deed from Rajan Kuer. P.W.3 has admitted that the accused persons did not enter the place of occurrence land. They were at a distance of 10 steps from the field in which Bajrang Bahadur was standing. P.W.3 has also admitted that the land over which the occurrence took place is not the land which Bajrang Bahadur had purchased from Rajan kuer i.e. the disputed land. This witness has received injury caused by hard and blunt substance on his head which is alleged to have been caused by Ram Singh with the butt of his gun. 12. P.W.4 Saryug Mahto is the servant of deceased. His presence is admitted in the F.I.R. as well as in the evidence of P.W.1,2 and 3. He has stated that he was irrigating the field when the occurrence took place. P.W.4 has admitted that the field which is the place of occurrence has an area of 5 - 10 - Kathas and it is not the subject matter of dispute in between the accused and the prosecution party. The subject matter of dispute is the land with respect to which sale deed was executed by the sister-in-law of accused Ram Singh, ten years earlier in favour of Bajrang Bahadur. This witness in paragraph 10 of his evidence has admitted that son of Ramjit Singh namely Vijay and Umesh, were killed and in connection with that licensed gun of Bajrang Bahadur was seized as he was also an accused in that case. Bajrang Bahadur had been taken into custody and enlarged on bail by the 1st Additional Sessions Judge, Chapra . P.W.4, has also admitted in paragraph 14 of his evidence that the accused persons never entered into the field in which Bajrang and Ramesh were standing. It has also been admitted that except Baban Singh no other person came closure to the accused persons. This witness has deposed that the firing from gun and pistol were made from same distance. P.W.4 has stated that after being assaulted he became unconscious and gained consciousness only in hospital though this part of his evidence has not been supported by any other witness. 13. P.W.5 is the informant. He is nephew of deceased. He has stated that on 9.12.1988 at 10.30 he along with his uncle Bajrang Bahadur Singh, Saryu Mahto and Jatha Ram had gone to irrigate their field which is situated in Chowr of Khaki Baba tola having an area of 4 ½ or 4 ¾ Katha. Prior to going over the field in the morning itself Mewa Ram had come to their house. Mewa Rai had conversation with Bajrang Bahadur. Mewa Rai had said that with respect to land in question Ram Singh had executed a sale deed in his favour. His uncle restrained Mewa Rai from going over the ‘land in question’ as much earlier a sale deed with respect to the ‘land in question’ has been executed in his favour by Rajan Kuer. P.W.5 has developed the prosecution case at this juncture as in - 11 - the F.I.R. it has not been stated that after conversation in the morning Mewa Rai agaian came to the house of the informant and informed about his conversation with Ram Singh. In his deposition P.W.5 has developed the story and stated that Mewa Rai again came after he had talk with Ram Singh and informed that Ram Singh had asked him to go over that land with bullocks and plough. Ram Singh assured him that possession of the land will be given to him. P.W.5 has further deposed that after receiving this information they went over the ‘land in question’ for irrigating it. They went over the ‘land in question’ and started irrigating the land. Accused Ram Singh with his gun, Satendra Singh with country made pistol Purushottam Singh with Gupti and Nagina Rai with lathi came at the south west corner of ‘that land’. His uncle Bajrang Bahadur Singh at that time was sitting on the ridge of the field. The uncle of the informant had some verbal altercation with Ram Singh. His uncle said to Ram Singh that this land has been purchased by him much earlier and now he should not be disturbed and troubled. Ram Singh replied that today he will relieve him from all his anxieties and problems. Ram Singh thereafter opened fire on his uncle which hit near the temporal region and his uncle rolled on the right side. At this very time Baban Singh came near accused Ram Singh and snatched away the gun from his hand. Ram Singh snatched it from the hand of Baban Singh. Baban Singh was assaulted on his head with the butt of the gun and Babban Singh fell on the ground receiving the injury. Accused Ram Singh again opened fire which hit Bajrang Singh near left side of his chest. He fell on the ground and died. Satendra Singh opened fire from his country made pistol which hit the informant at right side of his hand chest, abdomen and fore head. Purushottam Singh had gupti in his hand which fell on the ground as such he got lathi from the hand of Nagina Ram and assaulted - 12 - Sarjug Mahto who received injury on his fingers. Babban Singh again stood up and caught hold of the barrel of the gun. In altercation the gun was broken. Baban Singh was again assaulted with broken piece of barrel of the gun. P.W.5 in paragraph 9 of his evidence has tried to explain his statement in the fard beyan where he has stated that gun shot injury was received by the deceased on his right temporal region and right side of the chest, though injury was found on the left side. He has stated that by mistake he mentioned right side in place of left side and for that he had filed an application for making correction. In paragraph 11 he has explained the reason for non examination of Satish Kumar Singh and Jatha Rai whose presence has been admitted in the F.I.R. as well as in the evidence of other prosecution witnesses. It has been stated that they having now been gained over by the accused persons and not willing to depose in favour of the prosecution. Satish Kumar Singh is the nephew of deceased. He has witnessed the F.I.R., inquest report and also accompanied dead body for post-mortem. 14. P.W.7 is Medical Officer posted at Garkha Primary Health Centre. On 9.12.1988 he examined three injured persons on requisition of Investigating Officer at three different times. He examined Baban Singh at 2.15 P.M. and found one lacerated wound in the middle of the scalp causing bleeding injury. One bruise on lower arm of right hand and swelling on the left knee. All the injuries were caused by hard blunt substance. Except injury no.1 rest were simple in nature. Regarding injury no.1 it has been stated that bone chip of injury no.1 and two X-ray plates and report were sent by him to the police station but those X-ray reports were not produced in court. On same day at 4.50 P.M. P.W.7 examined Saryu Mahto and found lacerated wound at middle finger