Criminal Appeal (SJ) No. 314 of 1999 WITH Criminal Appeal (SJ) No. 169 of 2000 ~~~~~~ Against the judgment of conviction dated 28.09.1999 and order of sentence dated 29.09.1999 passed by Sri Balmiki Prasad Sinha, learned Additional Sessions Judge – VI, Aurangabad in Sessions Trial No. 52 / 1998 / 31 / 1999. ~~~~~~ 1. Mithilesh Kumar Yadav, Son of Late Raj Nandan Yadav, Resident of Village – Hansrajbagh, Police Station – Karpi, District – Jehanabad. 2. Upendra Paswan, Son of Ram Lagan Paswan, Resident of village – Bijhara, Police Station – Koch, District – Gaya. 3. Ram Prasad Mistry, Son of Panchu Mistry, Resident of Village – Akorha, Police Station – Obra, District – Aurangabad. 4. Surendra Singh, Son of Jagarnath Singh, Resident of Village – Ghantari, Police Station – Obra, District – Aurangabad. 5. Kapil Chaudhary, Son of Ramdas Chaudhary, Resident of Village – Koilawan, Police Station – Haspura, District – Aurangabad. 6. Surendra Kumar, Son of Ram Lakhan Sao, Resident of Village – Rampur, Police Station – Karpi, District – Jehanabad. 7. Phoolendra Sahu, Son of Bareman Sao, Resident of Village – Ankuri, Police Station – Goh, District – Aurangabad. 8. Basudeo Singh, Son of Late Prasad Singh, Resident of Village – Tarar, Police Station – Daudnagar, At present Residing at Village – Khudwan, Police Station – Obra, District – Aurangabad. .... .... Appellants (In Criminal Appeal (SJ) No. 314 of 1999). Ramesh Chandra Singh, Son of Late Narain Singh, resident of village – Rainath, P. S. – Karpi, in the District of Jehanabad. …. …. Appellant (In Criminal Appeal (SJ) No. 169 of 2000). Versus The State Of Bihar .... .... Respondents (In both the Appeals). ~~~~~~ For the Appellants : M/s. Prashant Vedasen, Advocate. Manik Vedasen, Advocate. Binod Kumar Ambastha, Advocate. Subhash Chandra Bose, Advocate. Abhimanyu Sharma, Advocate. Ashok Kumar Singh, Advocate. For the Respondents : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ 2 P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Cr. Appeal No. 314 of 1999 arises out of the judgment of conviction dated 28.09.1999 and order of sentence dated 29.09.199 recorded by the learned Additional Sessions Judge – 6th, Aurangabad in Sessions Trial No. 52/98/31/99 by which he has been convicted all the appellants for the offence under Section 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.1,000/- each and in default to undergo rigorous imprisonment for one year and convicted for the offence under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. The appellants have further been convicted for the offence under Section 353 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and convicted for the offence under Section 414 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. The appellants have further been convicted for the offence under Sections 25 (1-A) and 26 of the Arms Act and sentenced to undergo rigorous imprisonment for seven years under Section 25(1-A) of the Arms Act and to pay a fine of Rs.1,000/- each and in default to undergo rigorous imprisonment for one year. However, no separate sentence has been awarded under Section 26 of the Arms Act. All the appellants have also been convicted for the offence under Section 3, 4 and 5 of the Explosive Substance Act and sentenced to undergo rigorous imprisonment for ten years under Section 3 of the Explosive Substance Act. No separate sentence has been awarded under Sections 4 and 5 of the Explosive Substance Act. All the appellants have further been convicted for the offence under Section 17 of the Criminal Law Amendment Act and sentenced to undergo rigorous imprisonment for three months. 3 However, it has been ordered that all the sentences shall run concurrently. 3. The persecution case as alleged is that P. W. 2 Ram Babu Kapar, the then Officer-in-Charge, Haspura Police Station on 3.07.1995, he proceeded at 2:00 P.M. for arrest of warranty Nageshwar Yadav, Sona Yadav and Chaudhary Yadav of village Rampurkathi, Tola Guljar Bigha along with Sub-Inspector Ramakant Prasad (P. W. 1), Havildar Lal Bahadur Mishra (not examined) Commando Force of B.M.P and 13 Constable with Commando Force containing Constable Harendra Tiwary, Ramraj Prasad, Birendra Ojha, Ramakant Upadhaya, Nathuni Ram, Ram Naresh Kuar, Virendra Kumar Singh, Hararam Yadav, Ramdev Yadav, Md. Rijwan Ahmad, Shiv Shanker Chauhan, Ajay Kumar Singh, Ram Pravesh Tiwary and Chaukidar and reached Gulzarbigha at 4:00 A.M. He got up a man sleeping there out side the house to inquire about the warranty. In the mean time he heard the sound of firing from Bhusauli to the north of the house of Sona Yadav. To avoid untoward evidence, asked the police party to take position. He also took position behind the wall. He gave his identification of being a police officer. The other side even then resorted to firing indiscriminately. The persons firing from Bhusauli disclosed that they were member of the “Sangram Parishad” and also fired at the door of Bhusauli with a direction to surrender and surrounding Bhusauli in which the extremist were concealed themselves. He informed the Higher Officer and sent messenger at the police station. The firing continued from both side. The extremist though threw bomb but it did not explode. On information Uday Nath Jha (P. W. 4) the Inspector of Police and A.S.I. Afroz Ahmad (P. W. 3) of Pachrukhiya Police Station also reached there and took position against the extremist. The extremist uprooted the roof of Bhusauli and fired at the police party. The firing continued from both the side and the police party commanded to surrender the extremist. However, since the police party had surrounded the extremist from all side learning no scope for the extremist to flee away. This exerted the pressure on the 4 extremist to surrender. The extremist realized that they have surrounded from all side the police force reached and being disappointed and this followed with trend of the police to explode the place of hiding. The extremist proposed for surrender on assurance of security to their life. The cry of some extremist of pain and agony indicate that some of the extremists have become injured. When the extremist agreed to surrender then some of the persons who were watching the occurrence were called and two persons Sunil Prasad Singh and Rajesh Prasad Singh of Tilakpur came at the place of occurrence. In the presence of these witnesses the extremist came out one by one and surrendered along with their arms and ammunitions. They disclosed their names and addresses which were recorded. The accused Mithilesh Kumar Yadav, who surrendered with double barrel gun bearing no. 124634 material Ext. I on verification the gun was found of the village Sarwa a looted article for offence under Section 395 of the Indian Penal Code in a case bearing Arwal P. S. Case No. 82 dated 24.04.1991, appellant Upendra Paswan surrendered with a regular rifle of .315 bore bearing no. 9632P (marked as material Ext. I/I) and 20 live cartridges of .315 bore from the upper pocket of the shirt (marked as material Ext. I/II) verified as looted articles in Karpi P. S. Case No. 106 dated 12.10.1987 for which the offence under Section 395 of the Indian Penal Code, Ram Prasad Mistry surrendered with a regular rifle of .315 bore bearing no. 83AB/1913 (marked as material Ext. I/III) and 17 live cartridges of .315 bore in Bindolia which is a rifle looted from village Rasidpur under Arbal P. S. for which Arbal P. S. Case No. 5 dated 15.01.1986 has been lodged for which the offence under Section 386 and allied Sections of the Indian Penal Code, Surendra Singh arrested with a double barrel gun bearing no. 4447-4167 which is looted from village Nadi and 15 live cartridges of .12 bore in Bindolia (marked as material Exts. IV and I/VI) for which Karpi P. S. Case No. 36 dated 29.04.1991 for the offence under Section 395 of the Indian Penal Code, Kapil Chaudhary was arrested with a regular double barrel gun 5 bearing no. 28521 and 20 live cartridges of .12 bore with Bindolia (marked as material Ext. I/VII and I/VIII) belong to Ram Naresh Singh which was looted from the village Khajuri for which Karpi P. S. Case No. 59 dated 01.02.1991 for the offence under Section 395 of the Indian Penal Code was lodged, Surendra Kumar arrested with double barrel gun bearing no. 4448 and 15 live cartridges of .12 bore along with Bindolia (marked as material Ext. I/IX and I/X) concerned with Kurtha P. S. Case No. 19 dated 25.07.1991 for the offence under Section 395 of the Indian Penal Code, Fulendra Sao surrendered with double barrel gun bearing no. 94996 could not be verified (marked as material Ext. I/XI) along with 11 live cartridges of .12 bore along with windolia (marked as material Ext. I/XII), Basudeo Singh surrendered with country made pistol along with misfire cartridge (marked as material Ext. I/XIII) after the surrendered of extremist Bhusauli house in which they were concealed themselves were searched in presence of the witnesses therein said Bhusauli house four persons were lying injured with arms and ammunitions. One deceased Surya Dev identified as Surya Dev Paswan arrested with regular rifle bearing no. A45739 could not be verified (marked as material Ext. I/XVII) the cartridges in windolia (material Ext. I/XVIII) as the dead body of Dharmendra Singh identified with regular rifle of .315 bore bearing no. 81AB/0743 along with 25 live cartridges in windolia (marked as material Ext. I/XIX and I/XX) concerned with Kapri P. S. Case No. 51 dated 04.05.1987 for the offence under Section 395 of the Indian Penal Code, the injured Mansur @ Surendra Yadav armed with regular rifle of .303 bore bearing no. A10163 looted from village Salempur under Tekari P. S. Case No. 23 dated 07.02.1995 for which the offence under Section 395 of the Indian Penal Code and a live cartridge in windolia (marked as material Exts. I/XIV and I/XV), injured Sudhir Kumar with rifle bearing no. 15604/60181 a public rifle looted from village Thakuri from the possession of B.M.P. 10 (C) for which Paliganj P. S. Case No. 135 of 1991 lodged for the offence under 6 Section 395 of the Indian Penal Code. The accused Mansur and Sudhir were found to be alive were sent with A.S.I. Ram Babu Kapar P. W. 1 for treatment but they died in way at Daudnagar and the body was taken to Aurangabad. From Bhusauli one country made pistol (marked as material Ext. I/XXI), 16 empty cartridges of 12 bore (marked as material Ext. I/XXII) , 24 empty cartridges of .303 bore (marked as material Ext. I/XXIII), 15 empty cartridges of .315 bore (marked as material Ext. I/XXIV) and two empty cartridges of 7.62 (marked as material Ext. I/XXV), Bonet (marked as material Ext. I/XXVI), 7 Khahi Jhola (marked as material Ext. I/XXVII), a military colour shirt (marked as material Ext. I/XXVIII), 7 Khakhi full-paint (marked as material Ext. I/XXX), 2 Khakhi belt (marked as material Ext. I/XXXII), torch of two cell (marked as material Ext. I/XXXIV), torch of three cell (marked as material Ext. I/XXXIII), life saving drugs in bundle (marked as material Ext. I/XXXVII), literature of party unity (marked as material Ext. I/XXXIX). The Seizure list was prepared (marked as Exts. 1, 1/a and 1/b). After the occurrence the informant P. W. 2 brought the three fardbeyan marked as Exts. 2 to 2a and 2b on which the formal First Information Report was drawn marked as Exts. 2c, 2d and 2e. The inquest report of the deceased was prepared which is Ext. 7 to 7c and dead body was sent for post mortem post mortem report procured (Ext. 5 to 5/c). The arms was sent to the Sergeant Major and a report received marked as Ext. 3 and the report regarding the bomb seized from Bhusauli and on out side Bhusauli the seizure of the sample find mention in Ext. 1 and 1/b and report of the FSL. The prosecution sanction for the offence under Sections 3, 4 and 5 of the Explosive Substance Act and Sections 25 and 26 of the Arms Act which has been marked as Exts. 6 and 6/a and the police after the investigation of the place of occurrence submitted the charge-sheet, cognizance was taken and case committed to the court of Sessions. 4. However, with regard to the same occurrence three cases were lodged one for the offence under Sections 147, 148, 149 and 353/307 of the Indian Penal Code, 27 7 of the Arms Act and 17 of the C.L.A Act. Second is for the offence under Sections 414 of the Indian Penal Code and 25(1-B) and 26/27 of the Arms Act and third is for the offence under Section 3, 4 and 5 of the Explosive Substance Act. The third fardbeyan was filed by Ram Babu Kapar, Officer In Charge of Haspura Police Station. After lodging of the First Information Report the investigation proceeded and charge-sheet submitted. All the three cases i.e. Haspura P. S. Case Nos. 46, 47 and 48 of 1995 were committed to the court of Sessions bearing Sessions Trial Nos. 26 of 1996, 4 of 1996 and Sessions Trial No. 27 of 1996/09/1996 are amalgamated with S. Tr. No. 28/96/05/96 arising out of Haspura P. S. Case No. 46, 47 and 48 of 1995 and all the three cases were amalgamated for joint trial by order dated 15.04.1996. After amalgamation the charges were framed against the appellants under Sections 3, 4 and 5 of the Explosive Substance Act, 414 of the Indian Penal Code, 25 (1-B) and 26/27 of the Arms Act and Sections 147, 148, 149, 353/307 of the Indian Penal Code and 27 of the Arms Act. 5. During the trial ten witnesses were examined on behalf of the prosecution. Out of ten witnesses P. W. 1 Ramakant Prasad, Officer-In-Charge, Haspura, P. W. 2 Ram Babu Kapar, Officer-In-Charge, Haspura, P. W. 3 Afroz Alam, Sub-Inspector, Aurangabad, P. W. 4 Uday Nath Jhar, Inspector of Police, P. W. 5 Suresh Prasad Rai, Sergeant Major, P. W. 6 Dr. Ravi Ranjan, who conducted the post-mortem examination of the deceased, P. W. 7 Sidheshwar Prasad Sinha, Technical Officer FSL, Patna who examined the seized bomb, P. W. 8 Shravan Kumar, Head Clerk of the Office of the Public Prosecutor, Aurangabad to prove the sanction of D. M., Aurangabad the Arms Act and Explosive Substance Act., P. W. 9 Kumar Ravi Shankar, S. D. P. O. Daudnagar Sub-Division is the I. O. of the case, P. W. 10 Maheshwar Mahto, Dy. S. P., Daudnagar is the I. O. of the case. The documentary evidence adduced are seizure list of the hand grenade Ext. 1 and 1/A is the seizure list of blood stained soil and the 8 articles seized Ext. 2 series are the fardbeyan of Haspura and formal First Information Report of three cases lodged bearing Haspura P. S. Case Nos. 46, 47 and 48/95, Ext. 3 is the examination report, Ext. 4 is the signature on the record, Ext. 5 to 5/C are the four post-mortem report, Ext. 3 A and 3 B is the examination report, Ext. 6 and 6/A two sanction order, Ext. 7 to 7/C are the inquest report, Ext. 8 is the photo copy of the gazette, Ext. 9 is the photo copy of the notification of Bihar Gazette. 6. The defence of the accused persons is that there is no such occurrence as alleged and the police party picked up the four persons shot them at close range and the appellants were taken into custody and remanded them in the case. 7. The trial court taking into consideration the evidence adduced on behalf of the prosecution convicted the appellants as stated above. 8. Learned counsel for the appellants, however, contended that no independent witness has come to support the prosecution case neither the person in public. Learned counsel for the appellants, however, contended that the occurrence took place in open field but no witness of the locality or the independent witness of seizure list and inquest report has come to support the prosecution case. It has further been contended that the four persons said to have died by the gun shot injury with wound of entry and exit in the said Bhusauli which is the place of occurrence but neither sufficient amount of blood nor the bullet which pierced through their body were found at the place of occurrence. Hence, the objective evidence like the blood and bullet having not found at the place of occurrence casts a serious doubt about the prosecution case and the possibility of defence case set up by the defence that the appellants have been picked up and shot at close range and this false case has been instituted to show the false encounter by picking up the appellants from Mela showing them participated and caught with firearm. 9. Learned counsel for the State, however, contended that the witnesses who 9 have come to depose have supported the prosecution case and there is nothing in their evidence to disbelieve their testimony. It is required to notice of the fact that the place of occurrence is in the district of Aurangabad which is an extremist affected area and hence the possibility that the witness may not be willing to come to support the prosecution case particularly when it concerns with the extremist and hence the prosecution case may not be rejected on the ground that the independent witness has not come forward to support if the evidence of the witnesses come to depose inspire confidence. It has further been contended that the place of occurrence from where the dead body said to have been recovered the blood has been seized and a seizure list prepared and the I.O. has also found the blood. However, a large number of empty cartridges used by the extremist have been recovered from the said room which was hiding place of the extremist and the bullet has not been recovered. However, it has come in evidence that the said house also contained Bhusa and hence the possibility of the cartridges having been lost in the Bhusa cannot be ruled out and the prosecution case cannot be disbelieved for that reason and the defence set up by the appellants as vague and omnibus in general manner about their picking up from Mela and Bazar to falsely implicate with no specific assertion that who was picked up from where. 10. On rival contentions the question for consideration whether the prosecution has been able to prove and I proceed to consider the evidence in the light of the submissions. 11. P. W. 2 Ram Babu Kapar has come to support the prosecution case. He came to the village Gulzar Bigha, Rampur Kathi to execute a warrant and while he was enquiring the person firing resorted from a hut to the north of the house and then he asked the police party to take position informed the Superior Officer and which led to the firing from both side, sent message for force. 12. P. W. 3 Afroz Alam and P. W. 4 Uday Nath Jha also came to rescue and 10 they surrounded the extremist. The extremist surrendered along with their arms, seizure list prepared. 13. P. Ws. 2 and 3 have also supported the prosecution case that on the sound of firing they rushed and surrounded from all sides. They surrendered with firearm and thereafter the seizure was prepared with regard to the articles having been surrendered and found in Bhusauli and in Bhusauli four persons found injured out of them two found dead and two were sent for treatment but they also succumbed to injury and there inquest report was prepared. 14. P. W. 5 is Suresh Prasad Rai who examined the arms seized from the possession of the extremist and found those arms effective and though having used. He has proved his report which has been marked as Ext. 3 and has also proved the letter of inquest sent for examination the arms which has been marked as Ext. 4. 15. P. W. 6 is the doctor who has conducted the examination on the person of the four persons two found dead and two died during taking to Aurangabad and has found the four persons died out of the firearm injury having received two sets of injury and found the death within 24 hours. 16. P. W. 7 is a Technical Officer, FSL who has proved and has come to depose that he deactivated the three bombs found and has also proved the Ext. 3A and 3B that the said bomb were found effective. 17. P. W. 8 is the Head Clerk of the Office of the Public Prosecutor, who has proved the prosecution under the Arms Act as well as Explosive Substance Act which has been marked as Ext. 6 and 6/A. 18. P. W. 9 the S.D.P.O. has explained the topography of the place of occurrence Bhusauli in village Gulzar Bigha. He has given the description of the place of occurrence in which the extremist were hiding. The said room was built of mud and Phush with thatched roof, the door of the said room was towards the eastern side with 11 wooden door and a whole of 6”x 6” long and width and the hole was at the height of 2- 1/2” from the surface. He has also found fodder (Bhusha and piece of Pual) in the said room in an area of 3”. 19. P. W. 10 is another I.O. who has given description that the arm seized from the extremist looted from the place as well as from persons in different cases and where the subject matter of the property looted in the case instituted under Section 395 of the Indian Penal Code and other Sections. 20. Hence, taking into consideration the entire evidence the prosecution has supported the prosecution case that while executing the warrant of arrest there was firing from the side of the appellants and the police resorted to firing and then the place of occurrence was surrounded by the police personnel as well as the member of the Commando Force and the extremist surrendered under pressure. 21. However, the defence has been set up by way of suggestion that they have been picked up from Mela or from house and the four persons have been killed near Punchrukhi and having been picked up have falsely been implicated. 22. Learned counsel for the appellants, however, contended that the material witnesses are examined are only P. Ws. 1 to 4 but no independent witnesses have been examined to support the prosecution case and the objective evidence that they required to have been sufficient blood and the bullet which pierced on the four persons. 23. However, taking into consideration the submissions by the learned counsel for the State that the District having been prone area to the extremist activity and the possibility of the independent witnesses having not turned up cannot be ruled out. However, under the fact and circumstance since the independent witnesses having not been turned up to support the prosecution case, the evidence of the police witness cannot be rejected on this ground alone rather the evidence of the police witness is required to be strictly scrutinized and after the evidence of the witnesses found to be 12 true and trustworthy and inspire confidence then the evidence of the police witness or interested witnesses or even inimical witness can be believed and their evidence cannot be rejected on the ground that they are interested or inimical or they are police witnesses. However, four witnesses have been examined in this case who is material witnesses P. Ws. 1,