CRIMINAL APPEAL No.476 of 1988 Against the judgement of conviction and order of sentence dated 14.7.1988 passed by 7th Additional Sessions Judge, Bhojpur, Arrah in Sessions Trial No.274 of 1983. 1. RAMESHWAR YADAV 2. SHANKAR YADAV 3. RAJARAM YADAV 4. LAL BABU YADAV & 5. TIKHU YADAV-------------------------Appellants Versus THE STATE OF BIHAR------------------Respondent ------ For the appellants:- Sri Farooque Ahmad Khan & Sri Braj Ballabh Kumar, Advocates For the State:- Sushri Shashi Bala Verma,A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ. Eleven accused persons including the five appellants were put on trial jointly by framing charge against them under Section 302 read with 149 of the Penal Code. The five appellants before us were distinctly charged together under Section 302 of the Penal Code. While delivering the judgement on 14th of July, 1988 in Sessions Trial No.274 of 1983, The learned 7th Additional Sessions Judge, Bhojpur at Arrah acquitted the six accused persons except the five appellants before us of all the charges and found the five appellants guilty of committing offence under Sections 302 and 149 of the Penal Code and directed each of them to suffer rigorous - 2 - imprisonment for life. The appellants have preferred the present appeal to challenge the propriety of the said judgement. 2. P.W.1 Sheo Janam Ram, who was the Chaukidar of Pawana Bazar, made his fardbeyan stating therein that he was at his Khalihan and after having heard sounds of three gun shots, he rushed to the police camp located at village Pawana to make the statement. It was stated by him that while he was on the road of the Bazar, he gathered from various persons that deceased Ramchandra Singh had been shot and injured by seven accused persons named in Ext-1, except the appellants, by being fired from country made pistols as also after being assaulted with Fasuli and that his family members and villagers had taken him to Arrah hospital for treatment. 3. P.W.1 stated that there were two factions in the village and on that account the occurrence had taken place in the market place on the market day which was witnessed by persons having assembled there as also by the shopkeepers. 4. P.W.8 S.I. Uday Kant Jha was the officer deputed in the police camp along with a Magistrate as may appear from his evidence. He stated that he also heard the sounds of gun shot and he along with the Magistrate as also the police force deputed there, went into the - 3 - market place and recorded the statement of P.W.1 in front of the shop of one Jiut Sao. He took up the investigation himself and he inspected the place of occurrence which was on the main road of the market place and it was situated east of the road just by the side of the shop of Bhagwan Sao which was facing west. There were several other shops on either sides of the shop of the said Bhagwan Sao. P.W.8 found copious blood fallen on the ground and he seized the same in presence of two witnesses by preparing the seizure memo, Ext-2. He, thereafter, searched for the proprietors of the shops situated there, but no one was available as they had fled away after downing their shutters. The I.O. of the case also searched for the accused persons but found them absconding. It appears that after having found sufficient materials the investigating officer sent up the accused persons, 12 in number for trial out of whom 11 were tried which ultimately resulted in the impugned judgement. 5. The defence of the appellants which appears admitted in most of its parts, was that there was chronic litigation between the parties so much so that there had been murders on either sides of them besides some other offences and on that account the appellants have falsely been implicated in the case. 6. In support of the charges the prosecution - 4 - examined a total number of ten witnesses out of whom P.W.5 Sakal Singh was tendered for cross-examination. P.W.1 Sheo Janam Ram who is the informant was not an eye witness as may appear from his very fardbeyan and he claimed hearing about the incident as also about the names of the accused persons from persons who had assembled there at the time of the occurrence. P.W.2 Ramashish Singh, P.W.3 Rajbansh Singh, P.W.4 Satish Chandra Singh, P.W.6 Lal Babu Singh and P.W.7 Shivdhar Singh had given eye witness account to the occurrence while being examined in the court below, out of whom P.Ws. 3 and 4 were the sons of the deceased and P.W.7 was the son of P.W.2 Ramashish Singh who admitted in his evidence in paragraph 3 that the deceased was his grand father which was also the statement of P.W.6 Lal Babu Singh in paragraph-8. P.W.9 Dr. Bipat Ram had held postmortem examination on the dead body and had prepared postmortem examination report, Ext-3. P.W.10 Murat Ram was a witness to inquest, Ext-5. 7. Sri Farooque Ahmad Khan, the learned counsel appearing for the appellants took us through the evidence of all material witness and submitted that no independent persons, who were available in plenty at the place of occurrence, have been examined by prosecution in support of the complicity of the present appellants. It was - 5 - contended that accused persons originally named in the FIR were also named by the witnesses and were also bearing some sort of allegations of committing one or the other overt-acts, but curiously enough the witnesses in spite of admitting the above fact, gave their names up so as to implicating the five appellants who were originally not named in the FIR. It was contended that there was apparent reasons assigned by the prosecution as to why the prosecution had departed from leading evidence from statements of witnesses which were initially made by each of them during investigation and why the five appellants who appeared not having taken part as seriously in the offence as presented by the witnesses, were roped in by it. It was contended that because the implication of the five appellants, was false so the evidence of P.Ws. was contradictory to each other. As regards the arrival or presence of other witnesses they appear excluding each other from being present and as such being eye witnesses to the occurrence. The Chaukidar is the first person who went to the place of occurrence, but he was not told by any one that any of the five appellants had participated in the commission of the offence. P.W.8 also reached the place of occurrence just immediately after it had taken place, but neither P.W.3 nor his other brother P.W.4 or any of his family members, who appeared as witnesses in - 6 - the present case, came forward to lodge a report as appear told by P.W.8 in paragraph 9 of his evidence. It was contended further that even P.W.3, one of the sons of the deceased has stated that he raised a cry and that attracted 25-30 persons and he narrated to them about the incidents. But, he has admitted in paragraph 12 of his evidence that he did not point out to any of the persons assembled as to who were the persons who had committed the offence, though he remained at the place of occurrence up to 15 minutes after the incident. Not only that no attempt appears made either by P.W.3 or by any of the witnesses who lodged a report about the incident though the police and the Magistrate were available at a distance of about 16 yards from the place of occurrence. It was contended that these circumstances amply signify that in fact no one had seen the occurrence taking place and as such was not approaching the authorities to lodge a report. 8. It was next contended that the motive for the occurrence was the village faction as narrated by P.W.1 in his report. But that apart, the witnesses have stated that one of the accused persons had set at fires one of the buses which was owned by P.W.3 and as such the occurrence had taken place. It was contended that if the bus was burnt by the appellants or by any of the accused, - 7 - P.W.3 or any of his family members or relatives could be the persons aggrieved and they could be yearning to avenge. It could not be the appellants who could further be acting in an atrocious manner. It was contended that the facts of the case indicate that it is a case in which the appellants have been implicated only on account of enmity and further, that no one had really seen the occurrence being committed and had identified any of the accused persons. It was, as such, contended that the leaned trial Judge fell in error in appreciating the evidence and that resulted in the erroneous judgement. 9. Sushri Shashi Bala Verma, the learned Additional Public Prosecutor has submitted that the animosity between the parties is almost admitted. The occurrence also appears taking place because the man was killed, the dead body was lying there and it was sent for postmortem examination during which P.W.9 found ante mortem fire arm and other injuries. It was contended that an incised wound was also found on the head and that corresponds to the allegation of giving a blow with KATTA on the head of the deceased by one of the appellants. It was further contended that it might be a fact that the witnesses may be wavering on their own presence or on appearance or presence at the place of occurrence of other witnesses, but taking a holistic view, it could not - 8 - be said that the judgement impugned herein was erroneous. 10. P.W.1 Sheo Janam Ram admittedly was not an eye witness to the occurrence. Hence, it could be legitimate for the prosecution that some important details might not be available in the fardbayan specially, when he had stated in it that when he arrived at the scene of occurrence, he gathered the information regarding the participation of the accused persons in committing the crime. It hardly requires to be emphasized that even a person who has heard from some one else, could be the informant of the case and he could initiate the criminal proceedings. When we have such a case in our hand, then it could be justifiably argued by the prosecution that witnesses who claimed themselves to be the eye witnesses, could not be disbelieved merely because their names were not mentioned in the FIR. The prosecution further could argue that their testimony could be tested independently of the evidence of the informant by looking for the circumstances which could justify their claim or which could in turn create some doubt about their competence. The contention was that the witnesses were all related to the deceased, and hence were related amongst themselves. This appears admitted by their own statements when they were giving their evidence in the court below. We have just pointed out that P.Ws. 3 - 9 - and 4 were the sons of the deceased and the remaining P.Ws., like, 2 and 6 have admitted in their testimony that they were grand sons of the deceased. The fifth witness P.W.7 was the son of P.W.2. Thus, their claim of being the eye witness to the occurrence has to be scrutinized with great care and caution with special reference to claim of everyone of them of being present on or about the scene of occurrence on account of a particular reason. We have proceeded to scrutinize the evidence of the witnesses from that particular angle as also by considering other features of the individual statements of the five witnesses. 11. P.W.2 Ramashish Singh besides being the grand son of the deceased has claimed in paragraph-3 of his evidence is presence at the scene of occurrence on account of going their into a medicine shop for purchasing a medicine. P.W.2 has stated that it was Sanjay Medical Hall where he had gone to purchase the medicine. As regards his claim of seeing the occurrence or part thereof, he has given the description of the place of occurrence and has pointed that the occurrence was taking place opposite the said Sanjay Medical Hall to the east of the road which was intervening in between the place where the deceased was assaulted and the said Sanjay Medical Hall. It is not that he has claimed - 10 - himself as an eye witness to the whole of the occurrence. He has simply claimed having seen the accused persons running away from the scene of occurrence after having assaulted the deceased Ramchandra Singh by dealing blows with their respective weapons. He has further stated as to what weapons were seen in the hands of each of the appellants. Thus, it could not be said that his evidence is altogether meaningless. This requires examination as to whether he really had come to purchase the medicine in the said Medical Hall. The witness was cross-examined in paragraph-6 and he has stated that he had gone to Sanjay Medical Hall all alone for purchasing medicine and the proprietor of that Medical Hall was Triveni Prasad who was also a resident of village Pawana. He has further stated in his evidence in the same paragraph that he had gone to purchase medicine without any prescription and that he had purchased a drug marketed as “Analgin” but he did not obtain any cash memo from the Medical Hall. We could have accepted the evidence of the witness, but for the reasons as indicated by him in the above lines of his evidence, we have some reservations in accepting the claim of the witness that he could be there at the Sanjay Medical Hall for purchasing the medicine without any prescription and without obtaining a cash memo from the Medical Hall. This reservation of ours gets compounded - 11 - further when we consider the evidence of P.W.2 in paragraph-8. He has stated therein that three shots were fired and he saw the accused persons but he did not see the deceased Ramchandra Singh there at the place of occurrence. The other aspect of his statement is that the police camp, as per his own evidence in paragraph-9, was situated at the distance of about 30 yards from where he was standing, but in spite of being the grand son of the deceased, he did not appear raising any alarms or rushing to the police for pooling up any assistance, least to talk of lodging a report. The worst was that he remained there for quite some times even after the accused persons had left the scene of occurrence and some other persons also reached there as may appear from the evidence of the witness in paragraph-8. The police appears reaching without any loss of time as may appear from the evidence of P.W.8. This witness remained there at the place of occurrence for 20 to 25 minutes(P.W.2 paragraph-9) but he did not make his statement to the police that he had seen the occurrence or had seen the accused persons running away from the scene of occurrence with weapons. He had admitted in paragraph-9 at page-18 of the paper book that he gave his statement before the police on the 3rd day of the occurrence, when the I.O. of the case came to his Darwaja for recording his statement. - 12 - We do not find any tangible reason or explanation as to why this witness was shying away from the police and was not forthright before the police to make a statement. These are some of the reasons which we have considered in examining the competence of P.W.2 and his claim of being the witness of the occurrence and on such scuritizations; we find that it would not be safe to place reliance upon P.w.2. 12. As regards P.W.3 and also P.W.4, namely, Rajwant Singh and Satish Chandra Singh, we may point out that the two are the sons of the deceased and they have also claimed their presence at the scene of occurrence. P.W.3 Rajwant Singh has stated that he was moving in the market place along with his father when appellants Shankar Yadav, Rameshwar Yadav and Lal Babu Yadav fired with their respective guns, as a result of which, his father fell down, whereafter appellant Rajaram Yadav dealt a blow with Katta on the head of the deceased. This witness has stated that seeing the assault being wielded on his father, he went behind the shop of one, Balram Sah and kept raising alarm from there. In cross-examination, P.W.3 has stated in paragraph-12 that being attracted to the alarms raised by him, some 25-30 persons reached there who belonged to his own village and those of the neighbouring villagers. P.W.3 claimed that he divulged - 13 - the details of the occurrence to such persons who had assembled there but he did not point out the names of any of the culprits, though he remained at the place of occurrence for 10-15 minutes. This conduct of P.W.3, in our opinion, could be sufficient to doubt his claim of being a witness and further a witness who had identified the accused persons while they were attacking his father. If he had seen the occurrence and identified the offenders, we do not see any reason as to why he could not name the offenders to all and sundry. His conduct appears completely inconsistent with that of a person whose father was being butchered in his presence. Not only that he remained at the place of occurrence for 10- 15 minutes but he did not give any information to anybody even to his family members or Pattidars (P.W.3 para-13). He remained there at the place of occurrence which was just in the vicinity of the police camp and was fully aware that a Magistrate along with a police officer with a section of force, was deployed there. But, in spite of this, he did not choose to lodge a report. These are the circumstances which probably prompted the learned counsel appearing for the appellants to make a submission that the witness P.w.3 was never around the place of occurrence and he was making a statement out of his imagination as per the requirement of the prosecution so - 14 - as to suite its desire in that connection. The learned counsel for the appellants drew our attention to paragraph-7 of P.W.3 which probabilised more the fact that P.W.3 might not have been present on the day of occurrence at the village itself. In paragraph-7, Rajwant Singh has stated that he was residing permanently at village Koswa along with his family and that village was situated three miles away from village Pawana. He has claimed that on that particular day he was with his father. But, no special or even an ordinary reason has been assigned by him as to why it was necessary for him to abandon his wife and children at village-Koswa and to come down to village Pawana in that fateful evening. Probably the murders and counter murders, a huge number of cases between the parties which facts appear admitted in paragraphs-8 and 9 of P.W.3, was the catalyst for him to foist himself as a witness to render support to the prosecution charges. Under the above circumstances we have great difficulty in accepting the evidence of P.W.3 Rajwant Singh so as to sustaining conviction. To us, he does not appear a trustworthy witness. 13. As regards P.W.4, he also appears a witness who was in the market place for purchasing vegetables. On the purchase of vegetables, he has stated that he paid for purchasing the same. He does not appear to us the - 15 - witness to the real part of the occurrence when his father was being assaulted by the accused persons. He claimed seeing the occurrence by standing at a betel shop where P.W.6 Lal Babu Singh was also standing for taking betel. Witnesses have stated that while the occurrence was being either committed or while the accused persons were running away from the scene of occurrence, they saw either the incident or part of it. Both P.Ws.4 and 6 are in the later category of witnesses who claimed seeing the part of the occurrence in which the accused persons were running away after committing the offence. If we consider the evidence of both the witnesses, P.Ws.4 and 6, what we find is that their evidence rules out the presence of other witnesses, like, P.Ws.2, 3, 5, 6 and 7. It appears from paragraph 6 of P.W.4. As regards P.W.6 his evidence at page 42 of the paper book rules out the claim of P.Ws.2, 3 and 4 being witnesses to the occurrence as P.W.6 has stated that when the deceased was assaulted and injured and when he was lying on the ground alive, P.W.6 went near him and thereafter Ramashish Singh, Rajwant Singh and Satish Chandra Singh saw him there. Thus, it appears a complete conglomerate of facts which were mismatch to each other. While one witness was over ruling the presence of other witnesses, the other witness was not lagging behind such a witness and was appearing - 16 - making statement in the same vein. This is the reason that the contention of the learned counsel was being framed before us that the witnesses could not be relied upon as they themselves overrule the presence of others at the scene of occurrence. 14. The other circumstance which we find deeply affecting merits of the prosecution charge is that P.W.8 S.I. Uday Kant Jha reached the place of occurrence as per his evidence just after he heard the sounds of three gun shots. He found the deceased lying in the pool of blood and some of the witnesses or all of them were seen by him present at the place of occurrence. The witnesses have stated that they remained there for a period which may range up to 20 minutes from the occurrence. P.W.8 would point out to us that in spite of arrival at the scene of occurrence of the Magistrate and the police force, none of the witnesses ever appeared eager to make a statement to him. This appears probabilizing more the fact as appears told by P.W.3 in paragraph-12 that he did not disclose the name of any of the culprits who had assembled there. 15. It is true that Ramchandra Singh was murdered. He was murdered in a market place and that market place was working on a market day. The evidences of witnesses point out that it was a huge gathering at - 17 - the market place of persons who could have come there for marketing purposes. It was a village market. There could not have been dearth of persons who could be independent and who could have really seen the occurrence. Those persons did not come forward to support the charges against any of the appellants during trial or during investigation as well. The most disturbing aspect of the prosecution was that persons who had been named in the FIR and who appeared also named by some of the witnesses during their statements before police appears being exonerated during the course of the trial. Each and every witness was put a question at the end of his examination- in-chief that he had named and had assigned a particular weapon to a particular accused who was initially named in the FIR, during investigation and, further that, he was not naming him during the evidence. No particular convincing reason appears coming from any of the witnesses. The prosecution appears sleeping over the matter as none of the witnesses