Criminal Appeal (SJ) No.21 of 1997 Against the judgment, dated 16.01.1997, passed by Shri Ibrar Hassan, Additional Sessions Judge, III, Gaya, in S. Tr. No. 223 of 1991/27 of 1991 **** Balbhadra Singh @ Belbhadra Singh, son of late Rajdeo Singh, resident of village Oor Bishunpur, P.S. Tekari, district Gaya .. Appellant Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 33 of 1997 1. Awadh Singh, son of Nathun Singh 2. Sushil Singh, son of late Mathura Singh 3. Harihar Yadav, son of late Pitambar Yadav 4. Ram Sewak Yadav, son of late Chanak Yadav 5. Ram Nandan Thakur, son of late Ram Das Thakur 6. Pujan Thakur, son of late Brahamdeo Thakur All residents of village Nawadih, P.O. Aru Bishunpur, P.S. Tekhari, district Gaya .. Appellants Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 38 of 1997 Nanhak Yadav, son of Mosafir Yadav, aged about 72 years, resident of village Nawadih, P.S. Tekari, district Gaya .. Appellant Versus The State of Bihar .. Respondent With Criminal Appeal (SJ) No. 39 of 1997 1. Nagendra Singh, son of late Brijraj Singh 2 2. Ramanuj Singh @ Anirudh Singh, son of Nagendra Singh 3. Ramayad Singh, son of late Kailash Singh All residents of village Oor Bishunpur, P.S. Tekari, district Gaya .. Appellants Versus The State of Bihar .. Respondent **** For the appellants .. Mrs. Vimla Kumari, Adv. (in all the cases) as amicus curiae For the respondent .. Mr. Sujit Kr. Singh, APP (in all the cases) **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. All these four appeals are being heard together and are being disposed off by this common order as all are against the judgment and order passed by Mr. Ibrar Hassan, Additional Sessions Judge, II, Gaya, in S. Tr. No. 223 of 1991 arising out of Tekari P.S. Case No. 87 of 1990, dated 16th January, 1997. 2. The prosecution case is that the informant, Gayatri Singh, P.W. 10, in the intervening night of 17th-18th June, 1990, at about 12 in the night, he heard the sound barking dogs. He got up, along with his brother, and said that it appears that some one is coming. They saw about 100-150 persons of M.C.C. groups were coming enchanting M.C.C. zindabad. Thereafter, M.C.C. mob demanded rifle from the informant else threatened that they will demolish the house of the informant. They exploded the bomb at 3 darwaza. It is alleged that firing started from three sides and the informant also fired from is licensee rifle from the roof. It is, further, alleged that some of the persons told the informant to give his rifle otherwise they will set on fire of the house to kill all the family persons. The informant refused. It is, further, alleged that they started throwing the burning lookari on his roof by which the roof set on fire. Thereafter, the miscreant of 100-150 people set in fire in the poonj of straw (newari). It is, further, alleged that in the light of poonj the informant saw 100-150 persons armed with various arms like rifle and gun. Out of them informant identified Ramyad Singh, Balbhader Singh, Nagendra Singh, Ramanuj Singh @ Anirudh Singh, Sushil Singh, Awadh Singh, Nanhak Yadav, Harihar Yadav, Ramswak Yadav, Ram Nandan Thakur and Poojan Thakur and other were also armed with arms and ammunition in the said M.C.C. mob of 100-150 persons. 3. However, it has been alleged that there was firing from both the sides, but, none got injured and several peoples of the village has seen the occurrence. On the fardbeyan the first information report has been lodged and after investigation the charge sheet submitted. 4. During the trial eleven witnesses were examined out of which P.W. 10 is the informant, P.Ws. 2,3 and 5 are the brothers of the informant and P.W. 4 is the son of the informant, P.W. 6 is the sister of the informant, P.Ws. 7, 8 and 9 are tender and P.W. 11 is the investigating officer. 5. P.Ws. 2, 3, 4, 5 and 10 supported the prosecution case. 4 P.W. 11, the investigating officer, found the remains of burnt. The investigating officer, however, P.W. 1 stated that he found the dalan of the complainant is made of concrete and found the dalan to the extent of 3ft/3ft burnt, but, he did not collect or seize the burn remains nor he mentions about it in the case diary. He also not mentioned the length and width nor did he mention in case diary that he found any articles. He has also not mentioned in case diary about the burnt remain of newari poonj. Hence, whatever stated in the examination- in-chief whatever stated about the objective finding was not found mention in the case diary. 6. The defence has also adduced four witnesses. The case of the defence is that the accused persons have falsely been implicated in this case out of the enmity as the witnesses, P.Ws. 2 to 5, are accused in three cases of murder of Ajay Thakur, Vijay Thakur anb Kesra Devi in which they are facing trial being Tekari P.S. Case No. 210 of 1995 though in the said case a final form submitted by the police, but, subsequently the cognizance has been taken on the protest petition filed by accused 1 and after commitment the case is pending. 7. The trial Court, taking into consideration the evidence of the witnesses that P.Ws. 2, 3, 4 and 5 have supported prosecution case in the fardbeyan of the informant that they fired from the roof of gaushala (cowshed) and poonj and have identified the accused persons and the trial Court held that it found the evidence that actually the miscreants, including the accused persons, have attacked the house of the informant and they set on fire the gaushala and newari 5 and the evidence of the witnesses have been supported by the evidence of the investigating officer and, hence, convicted the appellants for offence under Sections 307, 436 and 149 of the Penal Code. 8. The learned amicus curiae have challenged the order of conviction and sentence that the prosecution has not been established by cogent, reliable and unimpeachable evidence. 9. However, P.W. 10, the informant, has come to support the prosecution case and it is stated that he got up on the sound of barking of the dogs and saw 200-250 persons and then he got up his brother. It is alleged hat they were shouting the slogans regarding M.C.C. and were firing and the prosecution party also resorted to firing from his rifle and it is asserted that part of his house and the roof was burnt and it is asserted that the accused persons were throwing the lookwari on the roof and the female inmates were setting off the lookwari and it is stated that when the accused persons raided and the villagers came then he got down from roof. Hence, from the evidence of the P.W. 10, the informant, it is apparent that he remained all along on his roof during the occurrence and came down only after the receding of the said mob. P.Ws. 2, 3, 4 and 5 have also supported the prosecution case to that effect. However, the witnesses stated that about 25 to 30 thousand bundles of newari poonj were set on fire, which burn to ashes. They have also stated that the fire brigade had come to set off the fire and there was indiscriminate firing from both the sides and P.W. 5 has stated that the activists remained at a 6 distance of abut 150 yards north east of his house and the activists remained for about 2(1/2) hours and, hence, from the evidence of the witnesses it is apparent that there was distance of 150 yards between the accused persons and the prosecution party. The investigating officer, in his evidence, has also said that he found three cartridges at the house of the informant and three cartridges at a distance of 150 yards from the house of the informant. However, the prosecution evidence mentioned that the house, gaushal and a heap of newari poonj were burnt. However, the investigating officer though in his evidence has come to support the prosecution case that he found the remains of lookwari and the remains of burnt gaushala and newari poonj bundles. The bundles were containing explosive. However, in his cross examination he has stated that he recorded sanha on the basis of information. During investigation 3ft/3ft burnt was found in the dalan of the complainant. However, he stated that the said dalan was made of concrete. He found bans-balli in burnt state, but, did not seize the burnt remains. He has, further, stated that he had not mentioned about the said burnt in the case diary. He also did not mention the burnt remains of newari poonj in the case diary nor has mentioned any remains of the lookwari in the case diary and, hence, whatever has come in evidence of the investigating officer in examination-in-chief about the objective finding about burnt remains has not been mentioned in the case diary and, hence, the evidence of the investigating officer about the objective finding suffers from infirmities and is not reliable for worth consideration. 7 10. However, to the contrary, the prosecution claims that they identified the accused persons. However, from the evidence of the prosecution witnesses it is apparent that there was indiscriminate firing and, hence, possibility of the prosecution party and the accused persons having come in close contact is very remote. From the evidence of P.W. 5 it is stated that the accused persons remained at a distance of abut 150 yards from the house. The daroga also found three empty cartridges at the house of the informant and three empty cartridges at a distance of 150 yards. However, having regard to the evidence it is apparent that the witnesses are only the family members of informant who remained on their roof and the M.C.C. mob remained at a distance of about 150 yards and it is difficult to identify the accused persons from a distance of 150 yards when the witnesses were at the roof of the house of informant. The, further, circumstance is that there was firing from both the sides and the villagers were collected. However, P.Ws. 2, 3 and 5 are full brothers of P.W. 10, the informant, and P.W. 4 is the son of informant, who has come to support the prosecution case. However, no independent witness has come to support the prosecution case that any occurrence took place in the intervening night and the evidence of the investigating officer is not well founded in the case diary. The evidence about objective finding of the investigating officer is not mentioned in the case diary, hence, the evidence of investigating officer regarding the objective finding of the manner of occurrence does not inspire confidence. Hence, the evidence of the investigating 8 officer is neither reliable nor worthy of prudence. It has, further, stated that though there was indiscriminate firing from both sides, but, none injured and there is no mention of burnt remains in the case diary, hence, taking into consideration the entire facts and circumstances neither the oral evidence nor the evidence of the investigating officer regarding the objective finding of the occurrence inspire confidence, hence, I find and hold that prosecution has not been able to prove the charge beyond reasonable doubts. Hence, the order of conviction, recorded under Sections 307 and 436 of the Penal Code is not sustainable and is hereby set aside as the prosecution has not been able to prove the charge beyond reasonable doubts. 11. The appeals are allowed. ( Gopal Prasad, J. ) The Patna High Court, The 12th day of December 2011, N.A.F.R., S.A.