Death Reference No. 3 of 2008 With CR. APPEAL (DB) No.72 of 2008 With CR. APPEAL (DB) No.77 of 2008 With CR. APPEAL (DB) No.79 of 2008 **** Against the judgment and order of conviction, dated 2nd January, 2008/4th January, 2008, passed by Sri Om Prakash, Additional Sessions Judge-cum- Fast Track Court, V, Patna, in Session's Trial No. 1074 of 2004 **** Death Reference No. 3 of 2008 The State of Bihar .. Appellant Versus 1. Lathi Singh @ Sujit Singh 2. Arbind Singh 3. Manoj Singh .. Respondents-Condemned Prisoners **** CR. APPEAL (DB) No.72 of 2008 Arbind Singh, s/o Kamta Singh, r/o Village Lahsuna, P.S. Masaurhi, district Patna .. Appellant CR. APPEAL (DB) No.77 of 2008 Manoj Singh, s/o late Jeev Singh, r/o Village Lahsuna, P.S. Masaurhi, district Patna .. Appellant CR. APPEAL (DB) No.79 of 2008 Lathi Singh @ Sujit Singh, s/o Sri Chotan Singh, r/o Village & P.O. Lahsuna, P.S. Masaurhi , district Patna .. Appellant Versus The State of Bihar .. Respondent (in all the Criminal Appeals) **** For the appellants .. M/S Devendra Kumar Singh, 2 Rana Pratap Singh and Kanhaiya Prasad Singh, Advs. with M/S Satyeshwar Prasad, Anil Kumar No. 1, Amit, Sumant Singh, Aaruni Singh, Ashutosh Kumar and Jyotsna Shankar, Advs. For the respondent .. Mr. Ashwani Kumar Sinha, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. The three appeals, along with death reference, are heard together and are being disposed off by this common judgment. 2. All the appellants in three Appeals have been convicted under Sections 302/149 of the Indian Penal Code as well as 17 of the Criminal Law Amendment Act and 27 of the Arms Act and have been sentenced to death for their conviction under Section 302/149 of the Indian Penal Code in Session's Trial No. 174 of 2004. Appellants, Arvind Singh and Manoj Singh have further been convicted under Section 148 of the Indian Penal Code. However, no sentence, for offence under Sections 148 of the Indian Penal Code, 27 of the Arms Act and 17 of the Criminal Law Amendment Act, in Session's Trial No. 1074 of 2004, has been awarded by the order, dated 01.02.2008, passed by Shri Om Prakash, Additional District Judge, Fast Track Court, V, Patna, as such, the learned Judge has submitted the proceeding to this Court for confirmation of death sentence of Court. The same has been registered as Death Reference No. 3 of 2008. All the convicts have preferred separate Appeal against the judgment of conviction 3 and sentence registered as Cr. Appeal (D.B.) No. 72, 77 and 79 of 2008 respectively and, hence, Death Reference and three Appeals have been heard together and disposed off by this common judgment. 3. The prosecution case, as alleged in the fardbeyan of the informant, Rajendra Paswan, P.W. 11, is that (i) while informant was sitting in the bamboo club (banswari) adjoining south of the village, along with Naseeb Paswan, P.W. 8, and Udai Paswan (deceased) then about 60-70 persons came armed with fire arms in a group forming unlawful assembly and surrounded Paswantola from it’s north and south forming two groups and the people of the village started fleeing away here and there on seeing the unlawful assembly armed with lethal weapons. (ii) Further, case of the informant in fardbeyan is that the informant saw co-villagers, Brinda Singh, Gajendra Singh, Sudhir Singh firing indiscriminately at Udai Paswan (deceased) informant (P.W. 11) and Naseeb Paswan (P.W. 8). Udai Paswan received fire arm injury, but, the informant (P.W. 11) and Naseeb Paswan (P.W. 8) anyhow managed to escape and conceal themselves in the house of Hardeo Paswan (P.W. 13). In the meantime, they heard the sound of 15-20 firings and shouts of slogans that “People’s War Zindabad” and “BHAKAPA Male Murdabad” by the members of unlawful assembly and even shouted that they have punished for casting votes in favour of JD(U) so they flee away. (iii) Further, case of the prosecution in the fardbeyan of the informant that after the activists receded then informant came out of hides, thereafter, Bhim Paswan, P.W. 10, son of Naga Paswan (deceased) came weeping and disclosed that in the Khalihan of Basant Paswan of the village, his father Naga Paswan has been done to death by Pappu Singh and Vijay 4 Singh by rifle shot and Arvind Singh, (appellant of Cr. Appeal (D.B.) No. 77 of 2008) son of Kamta Singh, hurled bomb on the person of his father. (iv) Further, case of informant in the fardbeyan is that thereafter he came out to take stock of fact in the village then saw Dilip Kumar, (P.W. 4) son of Vijay Paswan (deceased) is crying and disclosed that Vijay Paswan has been murdered by Lathi Singh (appellant of Cr. Appeal (D.B.) No. 79 of 2008) and Neeraj Singh (absconding) by rifle shot injury in the court yard of Rampratap Paswan (P.W. 60-70 persons) and further, Sanjay Paswan, P.W. 3, disclosed that Sharawan Paswan has been murdered by Ajay Singh and Mantu Singh (absconding) by rifle. (v) It has, further, been alleged in the first information report that with the help of other co-villagers the members of the People’s War Group in the unlawful assembly have been identified and it was learnt that the said unlawful assembly contained Amod Singh, Sahdeo Singh, Jogendra Singh, Manoj Singh (appellant in Cr. Appeal (D.B.) No. 77 of 2008) and other which include the names of 36 persons, including the appellants. The allegation that they have been formed unlawful assemble with lethal weapons and entered into the village and murdered the innocent villagers. 4. The date of occurrence is alleged to be 18.05.2004 at 01.00 p.m., the fardbeyan was recorded at 16.30 hours, i.e., 04.30 p.m. on same day and the first information report was lodged on 18.05.2004, itself. However, the said first information report was received to the Magistrate on 21.05.2004. After lodging of the first information report, investigation proceeded and after completion of investigation the charge sheet was submitted under Sections 302, 448, 148, 149 and 147 of the Indian Penal 5 Code, 27 of the Arms Act, 3 and 4 of Explosive Substances Act and 17 of the Criminal Law Amendment Act, consequently cognizance was taken and case was committed to the Court of sessions. After commitment, the charges were framed against the appellants, Lathi Singh under Section 302/149 and 448 of the Indian Penal Code, 27 of the Arms Act, 3 and 4 of the Explosive Substances Act and 17 of the Criminal Law Amendment Act on 14.08.2006 and against Manoj Singh and Arvind Singh for offence under Sections 302/149, 148 and 412 of the Indian Penal Code, 27 of the Arms Act and 3 and 4 of the Explosive Substances Act, along with co-accused, Sahdeo Singh, Joginder Singh and Umesh Singh, who have been acquitted. 5. After framing of the charge, the trial and during the trial, fourteen witnesses were examined as prosecution witnesses, P.W. 1, Hariballam Paswan, P.W. 2, Devendra Paswan, P.W. 3, Sanjay Paswan, P.W. 4, Dilip Paswan, P.W. 5, Rajan Paswan, P.W. 60-70 persons, Ram Pratap Paswan, P.W. 7, Lallan Paswan, P.W. 8, Naseeb Paswan, P.W. 9, Dr. Pankaj Kumar, P.W. 10, Bhim Paswan, P.W. 11, Rajendra Paswan, the informant, P.W. 12, Wakeel Paswan, P.W. 13, Hardeo Paswan, and P.W. 14, Tulsi Prasad, the investigating officer. 6. The documentary evidence adduced on behalf of the prosecution are Exhibit 1 to 1/3 is post mortem report, Exhibit 2 is the signature of the informant on the fardbeyan, Exhibit 2/1 signature of Vinit Kumar on the fardbeyan, Exhibit 3 signature of informant on carbon copy of the inquest report, Exhibit 4 is the signature of Rajendra Paswan on seizure list, Exhibit 5 is the fardbeyan, Exhibit 5/1 is the endorsement on the fardbeyan, Exhibit 6 is the signature of Parmanand Tisua on formal first 6 information report, Exhibit 7, 7/1, 7/2 and 7/3 is the inquest report, Exhibit 8 is the seizure list. 7. The defence has also adduced evidence, D.W. 1, Shitar Maniya Devi, and D.W. 2, Ram Prasad Paswan. 8. After the evidence of the prosecution closed, statement of the accused persons recorded under Section 313 of the Criminal Procedure Code. Subsequently, defence adduced evidence and evidence of defence was closed. 9. Thereafter hearing the learned counsel for the parties and considering the oral and documentary evidence, the judgment of conviction and sentence have been passed, as stated above, by the learned lower Court by it’s order, dated 02.01.2008, passed in Session's Trial No. 1074 of 1974 and submitted the proceeding for confirmation of death sentence and the appeal filed by the appellants as well as Death Reference is for consideration before this Court. 10. The learned counsel for the appellant, Arvind Singh, of Cr. Appeal (D.B.) No. 72 of 2008, contended that witnesses, P.Ws. 1 to 7 & 12 and 13 have been declared hostile and have not supported the prosecution version and witnesses no. 8, 9 and 11 though claimed to be eye witness of the occurrence, but, their evidence suffer from contradiction, development and embellishment as they are hearsay witnesses as apparent from fardbeyan, itself. Further, the first information report though lodged on 18.05.2004, but, the same was received by Magistrate on 21.05.2004, thus, there is delay in sending the first information report to the Magistrate and there is no plausible explanation and, hence, the first information report suffer from antedated and is not reliable and adverse inference required to be 7 drawn regarding the genuineness of the case. Hence, the order of conviction and sentence recorded by the learned lower Court is not sustainable. 11. The learned counsel for appellant, Lathi Singh @ Sujit Singh, however, contended that taking into consideration the evidence of three witnesses, who have supported the prosecution case are not the eye witness to the occurrence and their evidence suffer from the contradiction and development regarding their statement before the police as well as their evidence is not reliable and worthy of confidence to secure conviction as it suffer from various infirmities. 12. The learned counsel for the appellant, Manoj Singh (in Cr. Appeal (D.B.) No. 77 of 2008) also contended the nature of the evidence regarding the identification of the accused is not at all reliable to warrant conviction as witness though claimed to be eye witness are, in fact, not eye witness and the prosecution has not been able to prove the charges beyond reasonable doubts. 13. The learned counsel for the State, in supporting the prosecution, contended that the prosecution has been able to prove the charges. 14. The prosecution case, as alleged in the fardbeyan, is that 60-70 persons armed with fire arm entered into the village, while the informant (P.W. 11) was sitting in the bamboo club (banswari) along with P.W. 8 and Udai Paswan, deceased and, thereafter, 60-70 persons he saw Brinda, Gajendra and Sudhir (not appellants here) firing indiscriminately causing injury to Udai Paswan and then the informant, P.W. 11 and P.W. 8, Naseeb Paswan, managed to flee away to save their lives and conceal themselves in the house of Hardeo Paswan (P.W. 13) and, thereafter, when 8 the accused persons receded then he came out and took the stock of situation and then Bhim Paswan disclosed about the death of Naga Paswan by Pappu and Vijay, in the Khalihan of Basant Paswant, death of Vijay Paswan in the court yard of Rampratap Paswan by Lathi Singh and Neeraj and death of Sharwan Paswan by fire arm injuries by Ajay and Mantu. 15. P.W. 14 is the investigating officer and in his evidence has proved that the fardbeyan, Exhibit 5, is in the writing of Officer-in- Charge, Parmanand Vijaa, on the basis of which Masaurhi P.S. Case No. 73 of 2004 was lodged and the investigation handed over to P.W. 14, Tulsi Prasad, the investigating officer, has proved the endorsement of the Officer- in-Charge, Parmanand Vijaa, on the fardbeyan and has also proved the four inquest reports by police, which have been marked as Exhibits 7, 7/1, 7/2 and 7/3, about the death of Vijay Paswan, Udai Paswan, Naga Paswan and Sharwan Paswan respectively at the place of occurrence from court yard of Ram Pratap Paswan, from Banswari, from Khalihan of Basant Paswan and court yard of Ram Pratap Paswan respectively. He (P.W. 14) inspected the place of occurrence and has stated in his evidence that the first place of occurrence is a tiled roof house of Rampratap Paswan, there he got the dead body of Vijay Paswan and Sharawan Paswan and also found the sign of blood and the said place of occurrence is stated to be bounded by the boundary wall having existed towards west with a door fitted there. The boundary wall as 4” high and there was two rooms inside without any door, both facing east. He has, further, stated that the second place of occurrence was in village Lasuna is the Khalihan of Basant Paswan where he found the dead body of Naga Paswan, which is a lonely place and to it’s north there is parti land of Manoj Singh and Jeev Lal Singh and also found the blood at the 9 place of occurrence. He has, further, stated that the third place of place of occurrence is bamboo club (banswari) of Sharwan Paswan, where the dead body of Udai Paswan was found and the blood was also found. The investigating officer also found empty cartridges near the dead body of Udai Paswan. The empty cartridges and blood stained earth was seized and seizure list was prepared and seized article marked as Exhibit 8. Hence, three places of occurrence found by the investigating officer as alleged in the fardbeyan from where bodies of deceased recovered and inquest report, Exhibit 7 series, suggest the fire arm injury on the deceased. 16. P.W. 9, Dr. Pankaj Kumar, who have done the post mortem examination on the person of the four deceased, Sharwan Paswan, Naga Paswan, Vijay Paswan and Udai Paswan, has stated that on 19.05.2004 did the post mortem examination of Sharwan Paswan and found the following ante mortem injuries : (i) one entry would ½” x ½” x ¾” from left ear over left temporal region with blackening of 1(1/2)” x 1(1/4)” x margin lacerated and inverted (ii) one exit would 1(1/2)” x ½” right upper part of neck lateral side ½” below right ear. Margin lacerated and everted. (iii) one entry wound 2(1/2)” x 1(1/2)” left lower part of neck 1” above left clavicle, 1” left from mid line with blackening 3” x 2(3/4)”, left 1st rib was found pierced. Margin inverted and lacerated. 10 (iv) one exit wound ¾” x ¾” on back of chest left side 2(1/2)” left from midline and 7(1/2)” below left shoulder tip. Margin lacerated and everted. Cause of death – head injury, haemorrhage and shock The nature of arm used was fire arm. On same day the doctor examined Naga Paswan and found following ante mortem injury on his person : (i) one entry wound ¾” x ¾” on right side mondibular region 1” below right mouth corner, s(1/4)” right from mind line margin lacerated and inverted blackening ½” x ½” mandible was found fractured. The metallic object like bullet after entering from injury no. 1 formed a track piercing mandible and tissues of neck region. Oesophagus and trachea and was found near tracheal region. (ii) one entry wound 1(1/2)” x 1(1/2)” left side front of chest ¾” left from mid line, 1(1/4)” below left chevicle with blackening 2” x 1” margin inverted and lacerated. (iii) one exit wound ½” x ½” left side back of chest 5(1/2)” from left shoulder hip 2(1/2)” left from mid line margin everted and lacerated. (iv) one entry would 1” x 1” on right thigh lateral aspect 6(1/2)” below right iliac crest with blackening of 1(1/2)” x 1”. The merelic object like bullet, after entering from injury no. (iv) Formed a track piercing the structures in like and was found embedded in muscles of 4th lumber vertebra at back. 11 (v) One entry would ½” x ½” one back of lower part of right side chest 1(1/2)” right from mid line, in blackening of 4(1/2)” x 4” margin inverted and lacerated. (vi) one exit wound 1(1/2)” x ½” , 5(1/2)” left from left nipple near left maxilla, margin lacerated and everted. Opinion – time since death 12 to 24 hours approximately. Cause of death – haemorrhage and shock. In the cross examination he has stated that no bomb injury was found on the body of Naga Paswan. On the same date also the doctor did post mortem of Udai Paswan and found following ante mortem external and internal injuries: (i) One entry wound 1” x 1” left side shoulder and neck region 2(1/2)” right from left shoulder tip with blackening 3” x 3”. Margin lacerated and inverted. Seventh cervical. Vertebra was found fractured. 6th right side rib was found fractured. Both lungs were pierced and blood and blood clot was present in chest cavity. The metallic object like bullet, after entering from entry wound fermed a track and found embedded in right side chest wall at the level of sixth rib. (ii) One entry wound ½” x ½” over right buttock, margin inverted and lacerated, 2(1/2)” from mid line, 3(1/2)” from illial crest with blackening 1” x ¾”. (iii) One exit wound ¾” x ¾” anterior abdominal wall right side 4” right from umbilicus 12” below right nipple. Margin lacerated and everted. 12 Opinion : Time since death 12 to 24 hours approximately. Cause of death : haemorrhage and shock Nature of violence : fire arm On the same date the doctor did post mortem examination of Vijai Paswan and found following ante mortem injuries : (i) One entry wound 1” x ¾” left side of chest 1” below left nipple 3(1/2)” left from mid line with ectooing of 7(1/2)” x 4(1/2)” left side of chest. Margin inverted and lacerated. (ii) One exit wound right side upper part of back of abdomen ¾” x ¾”, 4(1/2)” right from mid line, 7” below inferior angle of scapula. Margin lacerated and everred. Opinion : Time since death 12 to 24 hours approximately. Cause of death : haemorrhage and shock. Nature of violence : fire arm 17. The post mortem report, Exhibits 1 to 1/3 mentions the time of post mortem examination in between 11.00 a.m. to 12.35 p.m. on 19.05.2004 and, hence, the time of occurrence correspond and corroborate the time of death as alleged in fardbeyan 18. Hence, from the evidence of the doctor, it is apparent that the prosecution case, about the death of the deceased, Sharawan Paswan, Naga Paswan, Udai Paswan and Vijay Paswan, substantiated to have been caused by the fire arm injury which supports the prosecution case about death by fire arm and the time of occurrence. However, the doctor did not find any injury on the person of Naga Paswan by bomb. It is pertinent to mention that investigating officer (P.W. 14) has also not found any material 13 of bomb or explosion of bomb at three present places of occurrence though alleged in the fardbeyan of the informant. 19. Now, I proceed to consider the evidence of the witness regarding the implication of the accused. P.W. 1 has stated that he heard the sound of firing at the place of occurrence and when came back then learnt that Vijay Paswan, Naga Paswan, Sharawan Paswan and Udai Paswan have been murdered and he does not know who murdered them. This witness has been declared hostile as has not supported the prosecution case regarding the implication of the accused. 20. P.W. 2 has also stated that he was not allowed to go out of the house by the female members of his family and when the position restored then he came out and saw the dead body of Naga Paswan, Udai Paswan, Sharawan Paswan and Vijay Paswan and he does not know who killed them. This witness has also been declared hostile by the prosecution and attention has been drawn regarding his earlier statement before police. 21. P.W. 3 has also stated that at the time of occurrence he was at Janipur, along with his father, and after information he came to village then saw the dead bodies of Vijay Paswan and Udai Paswan and he did not know who murdered them and, hence, this witness also not supported the prosecution case regarding the implication of the accused. 22. P.W. 4 has stated that his father, Vijay Paswan, was murdered on 18th May, 2004, but, he does not know who murdered him and at that time he was in Public School, Ballami, Phulwari, Patna, and on learning the murder of his father he came to Patna to attend his funeral at Patna and he does not know who murdered his father. 14 23. P.Ws. 5 and 6 also not supported the prosecution case and have stated that they learnt about the occurrence of murder of four persons, Naga Paswan, Vijay Paswan, Sharwan Paswan and Udai Paswan and they also do not know who murdered them. 24. P.Ws. 7, 12 and 13 have also stated that they do not know who murdered the deceased and have been declared hostile and attention drawn, however, not supported the prosecution case. 25. P.W. 8, in his evidence, stated that while he was in bamboo club (banswari) to the west of village Lahsuna, along with Rejendra Paswan (P.W. 11) and Udai Paswan (deceased) at 01.00 p.m. then 60-70 persons came from east and north armed with rifle out of whom Prince, Sudhir, Gajendra (not the appellants here) started firing from rifle in which Udai Paswan got injured. This witness, P.W. 8, and Rajendra Paswan (P.W. 11) managed to flee away and concealed themselves in the house of Hardeo Paswan (P.W. 13) and, thereafter 20-25 rounds of firings occurred. He has, further, stated in his evidence in paragraph 1 that he identified Manoj Singh, Jogendra Singh and Lathi Singh and Arvind Singh amongst the persons who were firing. He has, further, stated in paragraph 3 of his deposition that Manoj Singh, Jogendra Singh, Lathi Singh and Arvind Singh are present in Court were amongst the persons who were firing. However, in cross examination in paragraph 10 he has stated that Arvind Singh was armed with rifle and Lathi Singh, Manoj Singh and Jogendra Singh had nothing in their hands. Hence, this statement in paragraph 10 is submitted to be in contradiction to his evidence about firing by Manoj Singh, Jogendra Singh and Lathi Singh in examination-in-chief. However, the investigating officer, P.W. 14, in paragrarph 27 had stated that Naseeb Paswan, P.W. 8, has not 15 stated before him that he identified Manoj Singh, Jogendra Singh, Lathi Singh and Arvind Singh amongst the persons who were firing. 26. The learned counsel for the appellants, on this evidence, contended that since this part of the evidence of P.W. 8 that he identified Manoj Singh, Jogendra Singh, Lathi Singh and Arvind Singh amongst unlawful assembly were firing has not been stated before the investigating officer (P.W. 14), as per his evidence in paragraph 27 during statement under Section 161 of the Criminal Procedure Code, hence, it may be deemed to be an omission amounting to contradiction or development or embellishment in prosecution case as this fact has also not been mentioned in the first information report. 27. It is true that contradiction is a mode of discrediting a witness making inconsistent statement in witness box with his previous statement made before police, under Section 161 of the Criminal Procedure Code. 28. However, Section 161 of the Criminal Procedure Code gives wide discretion to the police officer to record or not to record any statement made by the witness to him during the investigation. However, if a statement is recorded or reduced into writing by