CRIMINAL APPEAL No.65 (DB) OF 1989 ----- Against the judgment of conviction and order of sentence dated 2nd of February, 1989 passed in Sessions Trial No. 343 of 1985 by Shri P.N. Yadav, 5th Additional Sessions Judge, Arrah. 1. KHALIFA RAI, SON OF RAM BACHAN RAI 2. JANARDAN RAI, SON OF SHEO NARAIN RAI 3. BASUDEO RAI, SON OF RAJA RAM RAI 4. RAMJI RAI, SON OF SHEO NARAIN RAI. ALL RESIDENTS OF VILLAGE SEMARA, P.O.-BANDHU CHAPRA, POLICE STATION-BARAHARA, DISTRICT-BHOJPUR. ----------(Appellants) Versus THE STATE OF BIHAR ---------(Respondent) For the Appellants : Dr. Uma Shankar Prasad, Senior Advocate Mr. Dipak Kumar Sinha, Advocate Mr. Ashok Kumar, Advocate Mr. Kamala Kant Tiwary, Advocate For the Respondent : Ms. Shashi Bala Verma (APP) 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, JJ. Khalifa Rai, Janardan Rai, Basudeo Rai and Ramji Rai are aggrieved against their judgment of conviction and sentence under various Sections of the Indian Penal Code. Initially, these four appellants were joined by three more persons. They were Kailash Rai, Dindayal Rai and Sheo Narain Rai. It was brought to the notice of this Court that Kailash Rai, Dindayal Rai and Sheo Narain Rai are dead. A report was called for and from the report of Superintendent of Police, Bhojpur 2 death of three appellants was confirmed so, proceeding against Appellant No. 1 Kailash Rai, Appellant No. 2 Dindayal Rai and Appellant No. 3 Sheo Narain Rai was ordered to abate on 29.06.2010. 2. Kailash Rai and Janardan Rai @ Chandradhan Rai @ Chandradeo Rai were convicted under Section 302 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for life, both of them were further convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years each. Sheo Narain Rai and Basudeo Rai were sentenced to undergo rigorous imprisonment for life each under Section 302/109 of the Indian Penal Code. Sheo Narain Rai has further been convicted under Section 307 of the Indian Penal Code and Section 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for five years and three years respectively. All the accused except Khalifa Rai and Janardan Rai @ Chandradhan Rai @ Chandradeo Rai were convicted under Section 302/149 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for life each. However, the 3 sentences of all the appellants were directed to run concurrently. 3. The fardbeyan of the occurrence was given at 2 p.m. on 18.03.1985 by P.W. 3 Shiv Jee Ray. It was alleged in the fardbeyan that on that day at about 9-10 a.m. the informant along with P.W. 2 Suraj Ray, P.W. 4 Rameshwar Ray, P.W. 1 Ambika Ray, Satya Ray and Sant Bilash Ray (both died) all resident of Village- Semra, police station-Barhara, District-Bhojpur were getting their Karela plant’s latti straightened in the field of the informant. Suddenly at that time the accused persons Kailash Rai, Sheo Narain Rai, Janardan Rai @ Chandradhan Rai @ Chandradeo Rai, Ramji Rai, Khalifa Rai, Dindayal Rai, Ram Adhar Rai and Basudeo Rai came. Kailash Rai and Janardan Rai @ Chandradhan Rai @ Chandradeo Rai armed with rifles, Sheo Narain Rai armed with country made pistol and other five having Bhala came. Allegation was that Sheo Narain Rai and Basudeo Rai asked the accused persons to kill upon which Sheo Narain Rai fired upon the informant but it caused no damage. When the informant and other prosecution witnesses tried to escape then Kailash Rai fired on Sant Bilash Ray who 4 fell down. When Sant Bilash Ray fell then his brother Satya Ray looked towards him but suddenly appellant Janardan Rai @ Chandradhan Rai @ Chandradeo Rai fired upon him with his rifle and he also fell down and the occurrence resulted into death of two persons - Satya Ray and Sant Bilash Ray. When the informant knew that the police was at the place of occurrence then he went and narrated the occurrence. The fardbeyan of Shiv Jee Ray resulted into Koilwar P.S. Case No. 052 of 1985 dated 18.03.1985 under Sections 147/148/149/307 and 302 of the Indian Penal Code and Section 27 of the Arms Act. The fardbeyan is Ext.3 and formal First Information Report Ext.4. The case was investigated into and after investigation the police found the case to be true and submitted charge sheet. Cognizance was taken and the case was committed to the court of Sessions where charge under Section 302/149 was framed against Sheo Narain Rai, Ramji Rai, Khalifa Rai, Dindayal Rai, Ram Adhar Rai, Basudeo Rai and Subash Rai, charge under Section 27 of the Arms Act was framed against Kailash Rai, Janardan Rai @ Chandradhan Rai @ Chandradeo Rai and Sheo Narain Rai, charge under Section 307 of the 5 Indian Penal Code was framed against Sheo Narain Rai, charge under Section 302/109 of the Indian Penal Code was framed against Sheo Narain Rai and Basudeo Rai and charge under Section 302 of the Indian Penal Code against Janardan Rai @ Chandradhan Rai @ Chandradeo Rai and Kailash Rai. Charge against Kailash Rai was of causing death to Sant Bilash Rai whereas charge against Janardan Rai @ Chandradhan Rai @ Chandradeo Rai was of causing death to Satya Rai by rifle shots. Charges were explained to all the accused persons. All the accused persons pleaded innocence so the trial proceeded. 4. The defence of the appellants was of false implication on account of enmity and their further defence was that it was the prosecution party who had assaulted the accused persons for which a criminal case was instituted against some of the prosecution witnesses including the informant and as a matter of fact, the deceased Sant Bilash Rai and Satya Rai succumbed to the injuries. D.W. 2 Jag Narain Pandey has proved certain documents. 5. In order to prove its case the prosecution has examined P.W. 1 Ambika Ray, 6 P.W. 2 Suraj Ray, P.W. 3 Shiv Jee Ray, P.W. 4 Rameshwar Ray, P.W. 5 Dr. B.P. Yadav (Civil Assistant Surgeon who has conducted the post- mortem examination of both the deceased) and P.W. 6 Deoraj Singh (Retired S.I. of Police). The prosecution has exhibited signature of informant Ext. 1, inquest report of Satya Rai Ext. 2, inquest report of Sant Bilash Rai Ext. 2/1, fardbeyan Ext. 3, First Information Report Ext. 4, inquest reports Exts. 5 and 5/1, seizure list Ext. 6 and Khatiyan Ext. 7. 6. On behalf of the defence two witnesses were examined they were D.W. 1 Dr. Mahesh Kumar Sinha-Civil Assistant Surgeon and D.W. 2 Jag Narain Pandey. The defence has exhibited fardbeyan of Koilwar P.S. Case No. 53 of 1985 Ext. A, formal First Information Report of Koilwar P.S. Case No. 53 of 1985 Ext. B, chargesheet of Koilwar P.S. Case No. 53 of 1985 Ext. C, injury reports as Exts. D to D/2, rent receipt Ext. E, certified copy of Khatiyan Ext. F, protest complaint Ext. G, order sheet Ext. H, chargesheet of GR. 571/80 Ext. I, deposition of Dr. M.K. Sinha in Sessions Trial No. 493/86 Ext. J and Khatiyan Ext. F/1. 7. The trial court after analyzing the 7 oral as well as documentary evidence and after hearing the learned Counsels for the parties came to the opinion that the prosecution has been able to prove the charges against the appellants beyond shadow of all reasonable doubt. 8. Before proceeding further, it is relevant to mention that in course of trial Ram Adhar Rai died. Whereas one Subhash Rai who was also put on trial was acquitted. It is apt to quote the two post-mortem reports. P.W. 5 on 19.03.1985 was posted at Arrah Sadar Hospital as Civil Assistant Surgeon. On that date at 8.30 a.m. he performed post-mortem over the dead body of Satya Rai, son of Uma Ray of Village- Semra and found the following ante- mortem injuries: (i) Wound of entry on circular lacerated wound of 1/4” diameter with charred margin at trachetachya region of right upper thigh. The depth of wound communicated through exterior at inner side of the thigh. (ii) Wound of exit and one circular lacerated wound of 1” diameter on the inner aspect of upper thigh right 8 side. Fracture of upper one third of femur right side. On dissection lung, liver, spleen, kidney were, heart was empty, stomach and bladder were also empty. The ante-mortem injuries might have been caused by rifle. On the same date the doctor at 8.00 a.m. has performed the post-mortem over the dead body of Sant Bilash Rai, son of Uma Rai, and has found one external injury which was one longitudinal incised wound 1/2”x1/4”x chest cavity at the back of right side below angle of scapula. 9. On dissection chest cavity of right side was full of blood. The lung (middle low) was punctured through and through and was congested. Left lung was pale, heart was empty. Stomach contained four ounce of semi-digested particles. Liver, spleen and kidney were pale and bladder empty. The above mentioned injuries were ante-mortem. 10. At the time of post-mortem both the deceased were identified by Sakal Pandey (not examined), Chowkidar Surendra Paswan (not examined). 11. There were no pellet injury in any 9 part of the body and in cross-examination the doctor has explained that incised wound was caused by sharp cutting and sharp pointed weapon. In cross-examination question was put to the doctor as to whether he has mentioned that the deceased was having charred injuries or not then the doctor has replied that he has not mentioned. About injury of Satya Rai, he has stated that his injuries were charred meaning thereby that firing upon him was from close range. He has further clarified that charred injury were caused if the firing is from close range. 12. Now, the oral evidence is required to be discussed. P.W. 1 has stated that on Monday at about 10-11 a.m. he was in Semra Makhdumpur Diyara and was straightening his vegetables along with Sant Bilash Rai, Satya Rai, Suraj Rai, Rameshwar Rai and Sheo Jee Rai. At that very time Kailash Rai, Sheo Narain Rai, Janardan Rai @ Chandradhan Rai @ Chandradeo Rai, Ramji Rai, Khalifa Rai, Dindayal Rai, Ram Adhar Rai and Basudeo Rai and Subhash Rai came. Sheo Narain Rai and Ramji Rai were armed with pistols and Kailash Rai and Janardan Rai @ Chandradhan Rai @ Chandradeo Rai with rifles, 10 Basudeo Rai, Ram Adhar Rai, Dindayal Rai, and Khalifa Rai were having Bhala and Subhash was having Lathi. Suddenly, Sheo Narain Rai fired but it caused no damage. This witness and others tried to escape in the meanwhile Kailash Rai (now dead) fired which proved fatal for Sant Bilash Rai. When Satya Rai tried to rescue Sant Bilash Rai then he was fatally fired upon by Janardan Rai @ Chandradhan Rai @ Chandradeo Rai. The injury of Satya Rai was in his right thigh and that led to his killing. Litigation was going on between both the parties and on account of that the occurrence has resulted. In para-14 he has stated that he had gone to the field of the informant P.W. 3 to work as labourer and Rameshwar Rai P.W. 4 and Suraj Rai P.W. 2 were other labourers and they were working @ Rs. 12/- each per day. He has stated that his own brother Banarsi Rai was passing on his life by virtue of begging. Later on, in para-33 he has stated that he has not informed anyone about the occurrence before being examined by the investigating officer. Though, his name finds place in the fardbeyan as eye witness but it appears that he has not stated anything to anybody before his statement was 11 recorded by the investigating officer. 13. P.W. 2 Suraj Rai is an accused in the counter case brought by the accused Sheo Narain Rai against the informant Shiv Jee Ray and his father Rameshwar Ray and his two brothers Dilip Ray and Ramjit Ray and others were accused of a case under Section 307, 148, 147 of the Indian Penal Code and Section 27 of the Arms Act. The Sessions Trial No. 493 of 1986 was pending in the same court and the learned Counsel for the appellant has produced the judgment to show that accused of that case were also convicted on the same date itself by the same court. In the counter case Chandradip Rai and brother of P.W. 2 also figures as one of the accused and this fact has been admitted by P.W. 2 in his evidence. Though he has supported the occurrence but it is apparent that he was accused in the counter case which goes to show that he had strong motive to implicate. 14. P.W. 4 is son of Ram Jatan Ray and father of informant who has stated in his evidence that Satya Rai and Sant Bilash Rai were sons of Uma Rai and grand sons of Ramdin Rai and were jointly recorded with Satya Rai 12 and Ram Ashish Rai in the Khatiyan. P.W. 4 stated that his statement was recorded by police one day after the alleged occurrence and before that he has not stated anything to any person. P.W. 3 informant has supported the prosecution version of assault that this person is an accused of the counter case and he has admitted in para-15 of his deposition that before this case Brahmdeo Rai had filed a dacoity case against him and others and that case was also pending before the same court. On this basis of aforesaid discussions, it appears that all the witnesses are related with each other and there is lack of independent witness in the case. The occurrence was of a field and it is of common knowledge that in the morning time, which is the peak agricultural time, in the fields many persons remain present in the nearby field and they are also engaged in similar type of work. No doubt, this is not a rule but it is generally seen. In the present case, there is no averment that any independent witness was present. It has been stated by P.W. 1 in para-12 that there was no quarrel between the informant party and the accused persons for straightening the latti of Parwal and Karela. 13 P.W. 3 has stated that there was no altercation on that date. He has further stated that there was no case pending between the parties and only one case of dacoity was pending against him. On this basis manner of occurrence has also been doubted by the learned Counsel for the appellants. 15. Regarding nature of injuries of deceased Sant Bilash Rai, it has been alleged in the First Information Report that accused Kailash Rai (now dead) fired at Sant Bilash Rai who fell down and died. P.W. 1 in para-3, P.W. 4 in para-3 and P.W. 3 have seen Kailash Rai firing with his rifle at Sant Bilash Rai. P.W. 4 has stated in para-19 that Sant Bilash Rai did not get any injury from any other weapon except the gun fire and in para-20 has stated that it is not a fact that Sant Bilash Rai did not get gun shot injury. P.W. 3 has stated that he has seen the gun shot injury on Sant Bilash Rai. Doctor P.W. 5 has stated in para-5 of his deposition that he has found one longitudinal incised wound 1/2”x1/4”xchest cavity deep and the lung was punctured through and through and congested. In para-14, P.W. 5 has explained that incised wound is caused by sharp cutting 14 weapon and sharp pointed weapon. In para-10 he has stated that there was pillet in the dead body and it was extracted and sent to the police and in para-12 he has explained that no pellet was taken out from the body of the Sant Bilash Rai. In para-13 he has stated that injuries caused by bullet and pellet are or different nature. If the evidence of the doctor is considered independently then it appears that he has not supported the prosecution version of assault rather he has given some other version and according to him the death was on account of incised wound which was possibly by sharp cutting weapon or sharp pointed weapon. The case of the prosecution was that the death was on account of firearm injury by rifle. Here the manner of death becomes doubtful and the prosecution has not been able to explain this contradiction between the evidence of eyewitnesses and medical evidence. No doubt, medical evidence is only opinion but when the expert view differs from the ocular evidence then a doubt is created and it is for the prosecution to explain the ambiguity. 16. So far as Satya Rai is concerned, it has been stated that 8 accused persons came 15 and out of whom one Janardan Rai @ Chandradhan Rai @ Chandradeo Rai was armed with rifle and he fired. There is no where mention about any accused in the name of Janardan Rai @ Chandradhan Rai @ Chandradeo Rai. It has been stated that Janardan Rai @ Chandradhan Rai @ Chandradeo Rai fired at Satya Rai and others proved fatal. P.W. 1 in para-31 stated that Janardan Rai @ Chandradhan Rai @ Chandradeo Rai fired from at a distance of 20-22 steps and P.W. 2 has stated in para-2 of his evidence that the firing at Satya Rai was from a distance of about 15 steps. Another evidence on this is of P.W. 4 who has stated in para-15 that firing was made from a distance of four Laggas which hit the deceased. Now, the evidence of the doctor has to be read along with oral testimony of the witnesses. P.W. 5 has found two wounds of entry (I) Wound of entry on circular lacerated wound of 1/4” diameter with charred margin in right upper thigh. (II) Wound of exit and one circular lacerated wound of 1” diameter in right inner thigh. He has pointed that charred and blackening were found and the injuries were caused from a close range. In the present case, 16 most of the witnesses have stated that firing was made at deceased from a distance between 15-20 steps or courtyards and it has been argued by the learned Counsel for the appellants that charred injury can be caused if firing is of not more than four feet. It has further been argued that none of the witnesses has stated that firing was made from the close range not even one witness has said that firing was within four feet or from nearby. So it appears that none of the witnesses has seen the occurrence and they have fabricated the case. 17. Oral witnesses examined by the prosecution as eye witnesses have narrated about the distance from which firing was resorted to upon Satya Rai. They all have stated that the firing was from a distance of 15-20 Laggas, steps or courtyards. None have stated that the firing was made from a close range. The doctor has found the injury of charring and blackening so no charring or blackening injury is visible if firing is made from a distance above four feet. It appears that the witnesses have not seen the place from where firing was resorted to. This creates a doubt in the prosecution version of the 17 occurrence. 18. Regarding place of occurrence, P.W. 1 in para-11 has stated that the occurrence has taken place in the field of the informant. The Lattis of Parwal and Karela were planted in the field. In para-20 P.W. 1 has stated that blood was found in the north-west corner of the field at two places – 10 steps apart and in para-24 he states that the dead body was not removed in his presence. P.W. 2 has stated that place of occurrence field is of 22 Katthas and in para-13 he has described that both the deceased we found in the field of north-west corner and north-east corner - two to three steps apart and in para-10 he explained that blood has fallen at a place where they had fallen. There is no evidence that blood was available at the place from where they were removed and no witness has come to say about the distance from where the deceased persons were removed. P.W. 4 in para- 10 has described that though there was Karela latti in the field but he has not described the length of the field where Karela latti were planted. P.W. 3 had explained that the place of occurrence was in the field at Village 18 Makhdumpur Thana No. 100, Khata No. 209, area 68 decimals under Semara Diyara. P.W. 6 has stated that on the date of occurrence he was in the same vicinity and that there was at great distance from the place of occurrence. There was suggestion to the witness P.W. 3 that there was no latti of Karela and Parwal because he has not stated as such before police. Prosecution story about the place of occurrence as stated by the prosecution witnesses has varied extensively. Investigating officer P.W. 6 has described that Ramnath Bind P.W. 4 of counter case has cultivated the field of occurrence and that Ramnath Bind was present at the time of local inspection of the field. The feature described about the place of occurrence is quite different from the feature of the land of place of occurrence as given by P.W. 1 in para-24 of his evidence. The investigating officer has stated that place of occurrence is a field of Plot No. 1440, measuring 26 decimals which was registered in the name of Ram Briksha Rai, father of the accused Sheo Narain Rai. The investigating officer has further clarified that place of occurrence is in the south-east corner field, south-west corner where blood was 19 found. In the field of place of occurrence at south east there was Karela latti and was found in the area of 1½ Kattha. In major part of the field of place of occurrence Lattis of Karela were found trampled and if the evidence of investigating officer is scrutinized then it is apparent that occurrence has taken place in the field of accused Sheo Narain Rai and not in the field of P.W.3. Hence, the place of occurrence itself has not been proved by the prosecution. 19. The aforesaid contradictions between the eye witnesses and medical officer has varried extensively because the evidences of eye witnesses do not get support from medical evidence which are contradicted from the evidence of the doctor. Not only that, it has come in evidence that there was injury to the accused persons also. Dr. Mahesh Kumar Sinha has been examined as D.W. 1. He has examined Radha Rai, Lalit Rai, Subhash Rai and Sheo Narain Rai. According to the doctor Janardan Rai @ Chandradhan Rai @ Chandradeo Rai who is also an accused has stated that he went to Arrah Hospital and he found accused Sheo Narain Rai and Subhash Rai lying seriously injured and according to D.W. 1 injury no. II 20 of accused Sheo Narain Rai was grievous in nature. This fact has come on the evidence that they were injured. The injury was caused almost on the same time which has been described by the prosecution in this case. The fardbeyan of counter case relating to Koilwar P.S. Case No. 53 of 1985 has been exhibited. It is well settled that trifle injuries of another side is not to be explained but when the injuries were grievous in nature and when it has come in evidence that the injuries was on the same time and same place then onus is have upon the prosecution to prove that the injuries were caused in what manner and by