CRIMINAL APPEAL NO. 682 OF 2004 AGAINST THE JUDGEMENT AND ORDER OF CONVICTION DATED 31.07.2004, PASSED BY SHRI DILIP KUMAR JHA, ADDL. SESSIONS JUDGE, F.T.C.-V, PATNA IN SESSIONS TRIAL NO. 648 OF 1989, ARISING OUT OF DHANAURA P. S. CASE NO. 112 OF 1987 ANIL SINGH --------------------APPELLANT VERSUS STATE OF BIHAR ----------------RESPONDENT WITH CR. APP (DB) NO. 550 OF 2004 SUBHASH SINGH -----------------APPELLANT VERSUS STATE OF BIHAR ------------------RESPONDENT WITH CR. APP (DB) NO. 561 OF 2004 1. ABINASH SINGH @ ABINASH KUMAR SINGH @ TUNTUN SINGH @ DHOONU @ CHUNNU 2. RAJ KUMAR SINGH @ MUNNA SINGH - --------------APPELLANTS VERSUS STATE OF BIHAR --------------------RESPONDENT WITH CR. APP (DB) NO. 566 OF 2004 RAMESH SINGH -------------APPELLANT VERSUS STATE OF BIHAR ---------------RESPONDENT WITH CR. APP (DB) NO. 574 OF 2004 1. SANJAY SINGH 2. RANDHIR SINGH -----------------APPELLANTS VERSUS STATE OF BIHAR -----------------RESPONDENT WITH CR. APP (DB) NO. 647 OF 2004 PARAS SINGH -----------------APPELLANT VERSUS STATE OF BIHAR -------------RESPONDENT ****** For the Appellants: (For Cr. Appeal No. 682 of 2004 & Cr. Appeal No. 574 of 2004) Shri Rana Pratap Singh, Sr. Advocate Shri Ramakant Sharma 2 Sr. Advocate Shri Sumant Singh, Advocate Shri Aaruni Singh, Advocate Shri Narendra Kumar Singh, Advocate (For Cr. Appeal No. 561 of 2004) Shri Sachchidanand Choudhary, Advocate Shri Ajay Kumar Thakur, Advocate Shri Imteyaz Ahmad, Advocate (For Cr. Appeal No. 566 of 2004) Shri Sanjeev Ranjan, Advocate (For Cr. Appeal No. 647 of 2004) Shri Ramakant Sharma, Sr. Advocate Narendra Kumar Singh Advocate Counsel for State: Shri Ashwani Kumar Sinha, APP ------------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE JUSTICE SHRI DHARNIDHAR JHA ********** Mridula Mishra & Dharnidhar Jha, J.J.: All these appeals have been filed by the appellants against their conviction in Sessions Trial No. 648 of 1989 vide Judgement and Order dated 31.07.2004, passed by Additional Sessions Judge, Fast Track Court No. V, Patna. Appellant, Anil Singh, has been convicted for the offence under 3 Section 302 read with Sections 148, 149 and 323 IPC and also under Section 27 of the Arms Act. He has been sentenced to undergo the rigorous imprisonment for life with fine of Rs. 2000/- (two thousand) and in default thereof to undergo RI for three months, for the offence under Section 302/149. He is further sentenced to undergo rigorous imprisonment of three years for the offence committed under section 27 of the Arms Act. The other appellants, namely, Subhash Singh, Ramesh Singh @ Ramashish Singh, Abinash Singh @ Tuntun Singh, Raj Kumar Singh @ Munna Singh, and Paras Singh have been convicted under Section 302 / 149 IPC and sentenced to undergo rigorous imprisonment for life with fine and in default RI for three months. The appellants, Sanjay Kumar Singh @ Chhotan Singh and Ramesh Singh @ Ramashish Singh have further been convicted under Section 147 IPC and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years for the offence under Section 148 IPC. 4 2. All appellants have faced trial in connection with Dhanaura P. S. Case No. 112 of 1987, registered for the offence, punishable under Sections 302, 147, 148, 149, 307, 324, 323 IPC. The FIR was instituted on the basis of Fardbeyan of Ramnaresh Singh, P.W. 4, brother of the deceased (Shiv Shankar Singh) at Masaurhi Police Station on 01.10.1987 at 09.00 a.m. 3. The prosecution case, as disclosed in the Fardbeyan of Ramnaresh Singh is that Ganga Singh @ Shiv Prasad Singh by cutting the western ridge of his filed on 30.09.1987 had amalgamated the land of the informant with his land. This was done by the accused Ganga Singh @ Shiv Prasad Singh behind the back of the informant. On 01.10.1987 at 05.30 in the morning, he informed Radhey Singh, Ram Ekwal Singh, Shri Bhagwan Singh, Ragho Singh and his father Ram Bishun Singh about this incident and he along with them went to the field to inspect it. The informant, thereafter, along with his father Ram 5 Bishun Singh came at the Darwaja of Ram Lakhan Mahto and was discussing the cutting of ridge. The discussion was over- heard by Randhir Singh @ Pappu Singh. He left the place and went to call his elder brother Anil Singh. Immediately, thereafter, Randhir Singh @ Pappu Singh and Anil Singh came with Lathi and assaulted the informant and his father. Both of them received injury on their head and chest. The informant and his father out of fear went towards their Darwaja. The accused Ganga Singh @ Shiv Prasad Singh, Anil Singh, Sanjay Singh @ Chhotan, Randhir Singh @ Pappu Singh, Raj Kumar Singh @ Munna Singh, Abinash Singh @ Tuntun Singh, Ramesh Singh and Paras Singh thereafter came variously armed with gun and pistol at the Darwaja of the informant. Ganga Singh @ Shiv Prasad Singh ordered to kill and Anil Singh took the gun from the hand of Rajkumar Singh @ Munna Singh and fired, causing injuries to the younger brother of the informant, Shiv Shankar 6 Singh. The FIR disclosed that the incident was witnessed by several neighbours and villagers. 4. The dead body was taken to Masaurhi Police Station, where Fardbeyan of the informant was recorded, inquest was prepared and the dead body was sent for post mortem. Investigating Officer, on completion of the investigation, submitted the charge-sheet and the accused persons were, thereafter, committed to the Court of Sessions for facing the trial. 5. The prosecution examined six witnesses to prove the charges framed against the accused persons. Out of these witnesses, P.W. 1, Bhagwan Singh, P.W. 3, Ram Ekwal Singh have claimed that they accompanied the informant to see the cutting of the ridge and have witnessed the occurrence, which took place at Darwaja of the informant. P.W. 2, Nawlakhiya Devi is the mother of the informant and the deceased. In her deposition, there is nothing to show that she knew about the occurrence, which took place at the Darwaja of Ram Lakhan 7 Mahto and at the field. Her deposition is confined to the occurrence, which had taken place at her Darwaja. P.W. 4 is Ram Naresh Singh, brother of the deceased and the informant of the case as well as an eye witness to the occurrence, which took place at all three places. P. W. 5 is Dr. Nand Kishore Singh, who conducted the post-mortem on the dead body of the deceased and submitted post-mortem report. P. W. 6, Awadh Bihari Singh is a formal witness, who proved the Fardbeyan and FIR of the case as IO of the case was not examined. 6. It is pertinent to state here that Ganga Singh @ Shiv Prasad Singh, who is alleged to have cut the ridge of the field and also ordered to kill, was not sent up by the Investigating Officer to face the trial. However, summons were issued against him under Section 319 of the Cr.P.C. and thus he had to face trial. The Trial Court, however, acquitted him of the charges framed against him finding the evidence of alibi of this accused to be satisfactory. 8 7. The appellants have been represented by different sets of counsel and all of them have assailed the impugned judgement on almost identical grounds. 8. First submission made by appellants’ counsels is that the entire occurrence took place over amalgamation of the informant’s land by Ganga Singh @ Shiv Prasad Singh by cutting western ridge of the filed on 30.09.1987, behind the back of the informant. The informant, P.W. 4 in paragraph 1 and 2 of his evidence has stated that one day prior to the real occurrence, Ganga Singh @ Shiv Prasad Singh amalgamated his land with the land of informant by cutting the ridge. This incident, as per prosecution case, led to the first part of the occurrence, i.e., Anil Singh and Randhir Singh assaulted the informant and his father near the Dalan of Ram Lakhan Mahto. Counsels for the appellants further submits the genesis of the occurrence being cutting of ridge. It was the task of the prosecution to prove it. On perusal of evidence, it is clear that not a single witness has 9 claimed to have seen any accused persons, cutting the ridge in between the field of the informant and the accused. The IO has not been examined, who could have disclosed, whether during investigation he found the ridge in existence or removed by the accused. The deposition of witnesses disclosed that the land under the occupation of the accused persons was found with existing paddy crops and the land of the informant “Parti”. This has been admitted by P.W. 1, P.W. 2 and P.W. 4. This is proof of this fact that there was no occasion as on the part of the accused to cut the ridge. The IO of the case, if examined, would have proved that allegation of cutting of ridge either true or untrue. The cutting of ridge being genesis of all subsequent incidents, if that was not proved, the case of prosecution can not be believed. In support of this contention, counsel for the appellants have referred to the deposition of P.W. 1, who in paragraph 14 of his evidence, admitted that ridge was not cut in his presence and in further statement, P.W. 1 has changed the 10 expression “cutting” and instead of it stated that ridge “disappeared” and fields were found amalgamated. P.W. 1 has admitted that he had knowledge about cutting of ridge on previous day itself, but without giving information at the Police Station or to the Sarpanch of Gram Panchayat, he went to Masaurhi. He did not inform any of the villagers regarding cutting of ridge. He admits that his land was Parti and in the field of accused, paddy crops were grown. 9. The point emphasized by the counsels is that once it is admitted by the informant that he had full knowledge about the cutting of ridge on the previous day, but he did not think it proper to raise any objection on that very day. There was no need to raise hue and cry on the next day in the morning and going over the field with Radhey Singh, Ram Ekwal Singh, Bhagwan Singh and Rambishun Singh and the informant himself. P.W. 1 in paragraph 10, P.W. 3 in paragraph 8 of their deposition have admitted that they have not seen anyone cutting the ridge 11 and there was no dispute in past in between the parties, relating to the said field. 10. Counsel for the appellants further submits that if out of four persons, who visited the place, two persons have not been examined and other two witnesses including the informant in their deposition did not support this incident emphatically, it only goes to show that genesis of occurrence, due to which the entire incident have taken place, is not correct and proved. Due to this reason, all subsequent events is shrouded with the clouds of doubt, as the base of the structure of the story has disappeared. The prosecution story must be disbelieved on this count itself. 11. Counsel for the appellants have further submitted that Ganga Singh @ Shiv Prasad Singh, who as per the prosecution case is main architect of cutting of ridge, led the mob to the house of the informant and exhorted the accused persons to kill the informant, in response to which Anil Singh opened fired and brother of the informant was killed Ganga Singh, was 12 subsequently acquitted by the trial court, as participation of Ganga Singh @ Shiv Prasad Singh was disbelieved by the trial court, believing his defence of alibi. In this circumstance, the entire prosecution case has fallen like a house of cards. When the part of prosecution story with regard to Ganga Singh @ Shiv Prasad Singh is disbelieved, whose act was the genesis of the occurrence and threshold of entire prosecution case, as a consequence entire prosecution story is also demolished. The acquittal of Ganga Singh @ Shiv Prasad Singh also makes the manner of occurrence, as disclosed by the prosecution doubtful and conviction of all appellants liable to be set aside. 12. We find substance in the submission of the appellants’ counsel. The acquittal of Ganga Singh @ Shiv Prasad Singh, the main architect of entire incident has raised a genuine question as to what would have been the other manner of occurrence in absence of Ganga Singh @ Shiv Prasad Singh. Since the accused persons were not given opportunity to defend themselves for a 13 new prosecution story, their participation in such occurrence, which have partially been disbelieved, is neither legal nor safe. 13. Counsel for the appellants, while placing evidence of P.W. 1, 2, 3 and 4, have submitted that the prosecution case, as disclosed in the Fardbeyan, has substantially been changed by the prosecution witnesses in the trial. In the Fardbeyan, the case of prosecution was that after inspecting the field and cutting of the ridge, while informant and his father were discussing the incident at Darwaja of Ram Lakhan Mahto, Randhir Singh over- heard the discussion and went to call his elder brother Anil Singh and thereafter, Randhir Singh and Anil Singh came with Lathi and started assaulting the informant and his father. The informant and his father received injury and out of fear they ran towards their Darwaja. Fardbeyan did not disclose that any other persons witnessed this occurrence. But, P.W. 1 and P.W. 3 in their deposition claimed to be a witness of this incident also. The prosecution witness further changed the story that Randhir 14 Singh and Anil Singh present at Darwaja of Ram Lakhan Mahto, prior to coming of the informant and his father at Darwaja of Ram Lakhan Mahto. P.W. 1 in his evidence has stated that he asked from Anil Singh about the cutting of ridge and he denied his role in it and replied that if he has to ask anything he can go and ask his father, who has cut the ridge. The new story introduced during the trial is that the informant and his father while going to ask from Ganga Singh @ Shiv Prasad Singh, they were intercepted by Anil Singh and Randhir Singh and assaulted with Lathi. This change was intentional in order to explain non- examination of Ram Lakhan Mahto, at whose Darwaja this incident had taken place, as disclosed in Fardbeyan. 14. The counsels for the appellants submits that in fact no such occurrence had taken place. The prosecution, as per its own imagination, has fabricated a story and that story has been changed, as per their own convenience, right from the time of the institution of the case till their deposition in the court. 15 15. It has further been contended by the counsels for the appellants that the prosecution case is fit to be disbelieved for non-examination of eye-witnesses without showing any satisfactory reason for their non-examination. The relevant witnesses are, Radhey Singh, Krishnadeo Singh and Rambishun Singh, who accompanied the informant to his field and thus witnessed first part of the incident. 16. The further contention of the counsels for the appellants is that the entire prosecution case, as disclosed in Fardbeyan and deposition of witnesses, relates to three incidents, occurred at three different places. First incident took place in the filed where the ridge was cut. The informant was accompanied by his father Rambishun Singh, Ram Ekwal Singh, Shri Bhagwan Singh and Ragho Singh. Out of these persons, only Ramekbal Singh and the informant have not been examined. Other witnesses, including the father of the informant, have not been 16 examined and no reason has been assigned for it by the prosecution. 17. The second incident had taken place at Darwaja of Ram Lakhan Mahto, but Ram Lakhan Mahto or any of his family members have not been examined. No injury report has been produced. The Doctor, who if at all, would have been examined, the informant and his father has also not been examined. There is nothing on record to corroborate the statement of the informant regarding the second incident and injury received by him at the place of occurrence. 18. The counsel for the appellants submits that once the first and the second part of the incidents have not been found to be proved then the last part of the incident, on the basis of which, the appellants have been convicted, should have been disbelieved by the trial court, but that has not been done. The prosecution case, not proved beyond reasonable doubt, should not be resulted into their conviction. 17 19. All other appellants than Anil Singh, have been convicted under Section 302/149 IPC, for having common object, being member of unlawful assembly in killing of Shiv Shankar Singh. 20. Counsel for the appellants submits that the evidence brought by the prosecution, in order to prove this charge, indicates that there was no common object, so far these appellants are concerned. The trial court failed to appreciate that in order to prove charge under section 302/149 IPC, it must be shown that the accused persons formed unlawful assembly with a common object as envisaged under Section 149 IPC. There is absolutely no evidence, whatsoever, to attribute any common object or any such thing, which activated all of them to join in furtherance of common object either before arrival at the place of occurrence or during the course of occurrence. P.W. 1, 2, 3 and 4 all have deposed that the appellants have not entered into the Darwaja of the informant, rather they were standing either 18 at their own house at Darwaja or outside the Darwaja of the informant. There is nothing to show that any of them have used the weapon alleged to have been carried out by them in any moment. There is no evidence on record to show that they had acted in prosecution of the common object. 21. Attention of P.W. 1 was drawn that he had stated before the IO that at the time of the occurrence, Ganga Singh @ Shiv Prasad Singh was standing at his own Darwaja. Raj Kumar Singh and Abinash Singh were standing at their own Darwaja. P.W. 2 has not stated anything about other appellants’ participation or coming at the Darwaja, which is the place of occurrence. P.W. 3 has stated that Raj Kumar Singh and Abinash Singh were standing at the south of Ramashish’s house and it has also been stated that the house of the Raj Kumar Singh and Abinash Singh is situated south of Ram Naresh Singh. It has also been stated that all were standing at their own houses. It has also been stated by the P.W. 4 that the house of other appellants 19 are adjacent to his house at north, south, east and west directions. This indicates that all these appellants were standing at their own houses, not entered the Darwaja of informant, not used the weapon, they were alleged to have been holding. Rightly, it has been submitted that there is no evidence on record to show that they have formed an unlawful assembly for common object to kill the brother of the informant. 22. In this circumstance, the conviction of the other appellants, under Section 302/149 IPC is not sustainable and it is being set aside. 23. So far conviction of Anil Singh under Section 302 IPC is concerned, the counsel for the appellant submits that it is fit to be set aside in view of the evidence brought by the prosecution on record. 24. The case of the prosecution as disclosed in the Fardbeyan is that Anil Singh when came at the Darwaja of the informant was armed with Lathi and on being ordered by Ganga 20 Singh @ Shiv Prasad Singh, he snatched away the double barrel gun from the hands of Rajkumar Singh and fired at the deceased. The evidence of P.W. 1, 2 and 3 indicates that Rajkumar Singh was not present near Darwaja of the informant rather he was at his own Darwaja, situated south of the house of the informant. If that is the evidence, then there was no occasion for Anil Singh to snatch the gun from the hands of Rajkumar Singh and fire at the deceased. It has been submitted that the prosecution when became aware of the lacuna in their story, tried to improve it in course of the trial. The informant has tried to ignore that part of the story where Anil Singh is said to have snatched the gun from the hands of Rajkumar Singh. He flatly stated that Anil Singh started firing from the gun, but it is not the story of the prosecution that Anil Singh was armed with gun. 25. The counsel for the appellant submits that the prosecution has not come with the correct story and the correct manner of occurrence, which is indicated from the medical 21 evidence and the deposition of P.W. 5. Counsel for the appellants submits that the blackening of the wound indicates that firing was made from a closer range, but evidence is completely contrary to the nature of injury received by the deceased. Evidence is that all accused were standing at distance, not even at the Darwaza of informant. This also indicates that the prosecution has not come with true story and has not disclosed the correct manner of occurrence. 26. In sum and substance, the argument, which has been advanced by the counsels appearing for the appellants is that the prosecution has falsely implicated all these appellants on account of some enmity, which has been indicated in the evidence of P.W. 1 and P.W. 4. The incidence took place in some other manner for some other cause, but the prosecution case has been concocted for implicating these appellants. 27. Considering the fact that the genesis of the prosecution story has been disbelieved by the Trial Court itself, 22 due to which the Ganga Singh @ Shiv Prasad has been acquitted and also that the prosecution has not been able to prove the prosecution story so far the involvement of all the appellants, including Anil Singh is concerned and also for the reason, stated above, we find that it is a fit case in which the impugned judgement of conviction passed by the Trial Court be set aside. 28. Accordingly, the appeals are allowed and the impugned judgement and Order of conviction and sentence are set aside. 29. Except, the accused Anil Singh, all other appellants are on bail, they are discharged from the liabilities of their bail bond. Anil Singh is directed to be released forthwith, if not required to remain in custody in connection with any other case. (Mridula Mishra, J.) (Dharnidhar Jha, J.) Patna High Court, Dated: August 09, 2010 NAFR / Shashi Kant Mishra