Criminal Appeal No. 491 of 2004 (D.B.) With Criminal Appeal No.521 of 2004 (D.B.) **** Against the judgment and order, dated 30th June, 2004, passed by Shri Nirmalesh Chandra Lala, Ad-hoc Session's Judge, Presiding Officer, Additional Court no. II, Patna, in Session’s Trial Case No. 197 of 1993/153 of 2001 **** 1. Raghubansh Rai 2. Bira Rai Both are sons of Sidhari Rai, residents of village Sabalpur Bengali Tola, P.S. Sonepur, district Saran .. Appellants (in Cr.Appeal (D.B.) No.491/04) 1. Kuldeep Rai @ Jalwa, S/O Benaras Rai, resident of village Mirjapur, P.S. Raghopur, District Vaishali 2. Deep Narain Rai, S/O Sheodhari Rai, resident of village Sabalpur Bengali Tola, P.S. Sonepur, District Saran at present Baripath, Patna 6 .. Appellants (in Cr.Appeal (D.B.) No.521/04) Versus The State of Bihar .. Respondent (in both the Criminal Appeals) **** For the appellants .. M/S Sanjay Singh & Md. (in both the Criminal Appeals) Waliur Rahman, Advs. For the State .. Mr. Ashwani Kr. Sinha, A.P.P. (in both the Criminal Appeals) **** 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. These two criminal appeals (Cr. Appeal (D.B.) No. 491 and 2004 and Cr. Appeal (D.B.) No. 521 of 2004) are being heard together and disposed of by this common judgment in view of the fact that both the 2 appeals arise out of the same judgment passed in Session's Trial No. 197/93 of 2001 by the Additional Fast Track Court, II, Patna, dated 30.06.2006. 2. The appellants, Raghubansh Rai and Bira Rai of Cr. Appeal (D.B.) No. 491 of 2004 and appellants Kuldeep Rai and Udit Narain Rai of Cr. Appeal (D.B.) No. 521 of 2004 have been convicted under Section 302/34 of the Penal Code and have been sentenced to undergo rigorous imprisonment for life. Accused Deep Narain Rai and Kuldeep Rai have further been convicted under Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for three years for offence under Section 27 of the Arms Act. However, it has been ordered that both the sentences, against the convicts, Deep Narain Rai and Kuldeep Rai, shall run concurrently. 3. The prosecution case, as alleged in the fardbeyan of the informant, Ram Bilas Rai, that on 25.09.1990 at about 05.30 p.m. his son, Laxman Kumar @ Nepali, went to bring his cloth from Supreme Tailor which was given for stitching. The said Supreme Tailor is beside the State Bank of India on Ashok Raj Path. The informant was at his shop, which is at Gandhi Chowk. In the meantime, accused, Deep Narain Rai, Bira Rai, Raghubansh Rai and Kuleep Yadav, were seen going towards the Bank and all were steering at him, this cast suspicion and then the informant also went after them. Further, case of the prosecution is that all the four went and stopped near Supreme Tailor, where Laxman Kumar, son of the informant was sitting in the shop of Tailor. In the meantime, Deep Narain Rai and Bira Rai commanded that he is Laxmanwa, who is sitting, kill him, and Deep Narain Rai and Kuldeep Rai took out country made pistol and fired which hit on the head of the son of the informant. It has further been alleged that all the four persons were armed with country made pistol and out of the firing 3 of Deep Narain and Kuldeep, his son got injured and succumbed to injury. The motive of the occurrence has been alleged as the prior enmity for the reason that on 06.10.1989 the accused persons have taken some clothes from his shop and when the money was demanded then they had threatened to kill and ultimately they killed. 4. However, after the occurrence in between 50.30 p.m. to 05.45 p.m. the fardbeyan was recorded at about 05.50 p.m. on 25.09.1990 near the said tailoring shop and the first information report was lodged at 06.45 p.m. on 25.09.1990 at Pirbahore Police Station and the investigation proceeded, but first information report was received at Chief Judicial Magistrate office on 27.09.1990 though after the investigation charge sheet was submitted, cognizance taken and subsequently the case was committed to the Court of sessions. After commitment the charge was framed under Section 302/34 of the Penal Code against Bira Rai and Raghubansh Rai and charge was framed under Sections 302 of the Penal Code and 27 of the Arms Act against Kuldeep Rai and Deep Narain Rai. 5. After the framing of the charge sheet the trial proceeded and during trial six witnesses were examined, who are P.W. 1, Munni Sao, P.W. 2, Ram Bilas Rai, the informant and father of the deceased, P.W. 3, Shiv Pujan Sao, the brother of the deceased, P.W. 4, Md. Hedayatullah, owner of the tailoring shop, P.W. 5, Dr. Arvind Kumar Singh, who has done autopsy on the person of the deceased, and P.W. 6, Ram Singh, the investigating officer. Documentary evidence adduced in this case is Exhibit 1, the signature of the informant on the fardbeyan, Exhibit 1/1, the signature of Shiv Pujan on the fardbeyan, Exhibit 1/2, the signature of Ram Bilas Sao on the inquest report, Exhibit 2, a purza (prescription), Exhibit 3, the signature on the seizure list, Exhibit 4, the post mortem report, Exhibit 5, the written 4 report, Exhibit 6, formal first information report, Exhibit 7, the inquest report, Exhibit 8, seizure list, Exhibit 9, the case diary, paragraphs 1 to 126. 6. The defence has also adduced oral evidence on behalf of the defence. D.W. 1 is Manoj Kumar, D.W. 2 is Sona Lal Gupta, D.W. 3 is Bhagwan Singh and D.W. 4 is Ram Prasad Singh. 7. The defence of the appellants is that no occurrence, as alleged, occurred and the witnesses has deposed falsely and further that the deceased was a veteran criminal and was accused in several criminal cases or dacoity, murder or even sent to jail and may have been killed out of enmity by some unknown person and the witnesses had not seen the occurrence and no occurrence as alleged occurred at about the time, place and manner of occurrence and till the preparation of the inquest report the name of the assailants was not known and first information report is ante dated concocted after the post mortem examination and at the time of the occurrence the appellants were not at the place of occurrence and were at their village, indulged in agricultural operations and have falsely been implicated out of the enmity. 8. On considering the oral and documentary evidence and taking into consideration the submissions made by the learned counsel for the parties the learned Court below convicted and sentenced the appellants as stated above at the outset. 9. The learned counsel for the appellants, however, contends that P.W. 1 has been declared hostile as not supported the prosecution case. The story and the evidence propounded by P.Ws. 2 and 3 are of chance witness and the story propounded by them for their being at the place of occurrence as well as being the eye witness also does not appears to be probable and further there is contradiction that though both of them claim to 5 be present at the site of occurrence, but, none is saying about the presence of the other specifically at and about the time and place of occurrence and, hence, contends that their presence at the site of occurrence itself is doubtful and, hence, contends that their evidence is neither reliable nor trustworthy nor worthy of confidence and, hence, their evidence as an eye witness required to be out right rejected and further P.W. 4 has turned hostile and has not supported the prosecution case and is not the eye witness. It is further contended that delay in sending the first information report to Court cast s doubt on prosecution as first information report is ante dated and the name of the assailant not known and have been roped in the case after the post mortem examination and inquest report and till the name of assailants were not known and the accused persons were not present at the place of occurrence, but, were engaged in agriculture and, hence, contends that the prosecution has not been able to prove the charges beyond reasonable doubts. 10. The learned counsel for the State, however, contends that both the witnesses, P.Ws. 2 and 3, are natural witnesses and their presence at the place of occurrence is most probable and can not be doubted and have supported the prosecution case about the involvement of the accused persons and they are the residents of the vicinity and the shops are also in the vicinity and just after the occurrence the police was informed and police reached at the place of occurrence and the statement of this informant having been recorded at the place of occurrence itself and their is nothing in their evidence to cast doubt on their evidence and their evidence are reliable, trustworthy and worthy of confidence and, hence, contended the prosecution has to prove the charges beyond reasonable doubts. 6 11. Hence, taking into consideration the respective submissions of the parties the question for consideration whether the prosecution has been able to prove the charges beyond reasonable doubts. 12. The prosecution, as alleged in the fardbeyan as well in the evidence of the witnesses that the four appellants while coming to Supreme Tailor, the way they were steering at the informant on his shop causing doubt to the informant and, thereafter, the informant went after them and then the four appellants reached at the tailoring shop and accused, Deep Narain and Kuldip Narain, fired at Laxman in shop of Supreme Tailor by which the deceased succumbed to injury. The motive for the occurrence alleged is about the prior enmity and the accused persons has taken clothes on credit from the shop of the informant and the deceased when demanded said money, the accused persons had threatened him for dire consequences. 13. The defence of the accused persons is that they have been falsely implicated and no occurrence, as alleged, occurred. The accused persons were not present at the place and time of occurrence and the deceased as a veteran criminal, several cases were against him and the accused persons have taken the plea of alibi that they were harvesting the paddy crop at that time. The learned counsel for the appellants, however, contended that the prosecution is that accused persons were steering at the informant while going towards Supreme Tailor compelled him to go behind the appellants. This story of the informant, itself, appears to be doubtful and further the witnesses are the relative and there is delay in sending the first information report to the Chief Judicial Magistrate and, hence, the prosecution story is not believable and ought to be rejected. 14. However, in this background, I proceed to consider the evidence as to whether the prosecution has been able to prove the charges 7 beyond reasonable doubts. I proceed to consider the evidence of Doctor first as the prosecution case is that the occurrence took place on 25.09.1990 and there is allegation that accused persons shot from few distance causing injury of the fire arm on the person of deceased by which the deceased succumbed to injury. 15. P.W. 5 is the doctor, who has conducted the post mortem examination on the person of the deceased on 26.09.1990 at about 10.15 a.m. He has stated that the dead body of Laxman Kumar @ Nepali, aged about twenty years, was identified by the Home Guard, Ramakant Sharma, and he found the following ante mortem injuries (i) one penetrating wound 2’x 1’x into brain deep on the back of right ear (wound of entry) and (ii) margin lacerated and blackened though one penetrating 1’x 1’x into brain deep on right temporal region just below ear lobule margin blackened and a laceration. 16. On dissection projectile of injury no. (i) passed through terminal bone and injury no. (ii) right master royal. Both the bullets were taken out and kept in a packet, sealed and handed over to the Constable. He has opined that the time elapsed since death within 12 to 36 hours and cause of death is haemorrhage and shock due to above mentioned injuries. The injury was caused by fire arm. The post mortem report has been marked as Exhibit 4. However, in cross examination he has stated that two injuries were possible by two shots may be of some fire arm. Hence, from the evidence of the doctor it is apparent that the time of occurrence is within 12 to 36 hours whereas the occurrence alleged to have been done on 25.09.1990 at 05.30 p.m. and the time of the post mortem is 26.09.1990 at 10.15 a.m., hence, according to the doctor the occurrence is in between 12 to 36 hours and, hence, doctor’s evidence confirm the time of occurrence as time of 8 occurrence falling within the stipulated period of death. The evidence of the doctor corroborates about the time of occurrence and further there is allegation that the accused fired at the deceased causing injury near the ear and the evidence of the doctor corroborated the prosecution case about the injuries fire arm shots from point blank range as the fire arm injury on deceased also found to be blackened. 17. P.W. 6 is the investigating officer and he has stated that on 25.09.1990 he was posted as Assistant Sub Inspector of Police in Pirbahor Police Station and on that date at 05.45 p.m. while he was mobile duty at Engineering College More then received a wireless message that one Laxman Kumar @ Nepali has been shot at Gandhi Chauraha by fire arm injury and on the said information he proceeded to Ashok Raj Path at Mahendru Mohalla and reached the Supreme Trailor shop for physical verification and he saw the dead body of Laxman Kumar @ Nepali lying by the side of the road in front of Supreme Tailor shop. The father of the deceased, Rambilas Sao, informant, identified the deceased there and disclosed his name and there he recorded the fardbeyan of Rambilas Sao at 05.50 p.m. He has proved the fardbeyan in his evidence and signature of Rambilas Sao on the fardbeyan, which has been marked as Exhibit 5. he has also stated that witness, Shivpujan Prasad, also signed on the fardbeyan and, thereafter, the fardbeyan was sent for lodging the first information report and has also proved the formal first information report in the writing of Assistant Sub Inspector of Police, Shreenivas Pandey, which has been marked as Annexure 6. He has further stated that the he inspected the place of occurrence, the shop of Supreme Tailor, which is adjacent north of Ashok Raj Path at a little distance from Gandhi Chauraha in Mahendru Mohalla, the dead body was found by the side of stairs of Supreme Tailor. A khokha 9 (empty cartridge) was found on the body of the deceased. The blood was seen flowing at the counter of Supreme Tailor up to the road continuously. The blood lying there was not in a position to be collected. The description of the place of occurrence having been established as to the south of the place of occurrence there is house of Nathuni Sao, the land owner. In the north there is Ashok Raj Path and, thereafter the shop of Hakim Etwari and Sons and Neel Ratan Jeweller’s, in the east shop of wielding of Sukhu Mistri and in west the grocery shop of Raghu. He has further stated that at a distance of about 30-40 feets there is a Branch of State Bank of India an about twenty feets east there is Prameshwari Dyer. He has further stated that at the place of occurrence three glasses of tea which contain small amount of tea were found. He has also proved carbon copy of the inquest report which was prepared in same carbon, which has been marked as Exhibit 7. The seizure list about the empty cartridge has been marked as Exhibit 8. He has also proved the empty cartridges, seized at the dead body, which has been marked as material Exhibit 1 and has also stated that after post mortem a Constable collected pellets and clothes which have been kept at the Malkhana of Police Station. He has further stated in cross examination that Patna Civil Court is at a distance of about 100 feets from Pirbahore Police Station. The fardbeyan was recorded on 25.09.1990 at 05.50 p.m., first information report drawn at 06.45 p.m., however, he denied the suggestion that the first information report was prepared on 27.09.1990 after having knowledge about the post mortem report on 27.09.1990. Hence, from the evidence, the place of occurrence has been stated to be the Supreme Tailor Shop, the blood was found at the counter and the dead body was lying near the stair of Supreme Tailor and a cartridge was also found which has been marked as Exhibit 1. 10 18. However, P.W. 1 has stated that the occurrence was about two days prior to Dussehra Puja and his shop is about two shops east of Supreme Tailor and has stated that Laxman Sao has order for three cups of tea on behalf of Supreme Tailor and he went along with tea and served three glasses of tea and after five minutes he heard the sound of firing and, thereafter, he closed the shop and went out. He has further stated that he had been to serve the tea then Laxman Kumar @ Nepali was sitting in the shop of Supreme Trailor and, hence, from the evidence of this witness it is apparent that prior to the time of occurrence Laxman Kumar was sitting in the shop of Supreme Tailor, he made an order for tea and it was served, just five minutes before the occurrence. Further, he stated that he heard the sound of firing just after five minutes when he served tea and, hence, from the evidence of this witness as well as from the evidence of the investigating officer the place of occurrence has been established and it is well settled that the occurrence took place at the shop of Supreme Tailor at about the time of occurrence. 19. P.W. 2 is the informant. However, in his evidence he stated that on 25.09.1990 at 05.30 p.m. he was at his shop near Gandhi Chauraha and Laxman Kumar had gone to the tailoring shop for bring his clothes. The said shop, Supreme Tailor, is by the side of the State Bank of India in Mahendru Mohalla then 3-4 persons were steering at him, they were Deep Narain Rai, Bira Rai, Raghubansh Rai and Kuldip Rai, residents of the same place and they were going from west to east towards the State Bank of India. He doubted their conduct and so followed them and when he reached near Supreme Tailor where his son was sitting, he saw Deep Narain Rain and Bira Rai said this is Laxmanwa, kill him and Deep Narain Rai got on ‘ota’ and pointed pistol, Kuldip Rai also took out his pistol and, thereafter, Deep 11 Narain Rai and Kuldip Rai, both, fired, which hit at or near the ear of his son by which the son of the informant fell down then he made hulla, in the meantime, his son, Shivpujan Prasad, reached near him and the accused persons fled away after making firing. He has proved his signature on the fardbeyan. He has further stated that the police reached there and recorded his statement and has proved his signature, which has been marked as Exhibit 1 and has also proved his signature of Shivpujan Prasad on the fardbeyan which has been marked as Exhibit 1/1. He has further stated that Deep Narain Rai has taken clothes from his shop on credit and he and Laxman Kumar used to demand money and the accused persons had threatened and this is the reason for the occurrence. He has further stated that at the time of firing the shop was opened and he was at a distance of 1 to 2 bamboos (bans). He has further stated that after firing there was stampede and the people started fleeing away after closing the shops and at the time of firing the owner of the shop, his son and employees of the shop were there. He has further stated that abut 150-200 yards east of Supreme Tailor the accused persons reside and the accused persons always used to visit Mahendru and, hence, there is nothing in his evidence to disbelieve his testimony either about the time, place and manner of occurrence. He has stated that time of occurrence is 05.30 p.m., just after the occurrence the police came and recorded his statement and he has named the accused persons and has stated that two firing caused the injury of the deceased by which the deceased succumbed to injury. 20. P.W. 3 is Shivpujan Sah. He stated that on 25.09.1990 it about 05.30 to 06.00 p.m., his brother Laxman Kumar had come to the shop for taking the clothes which he has given for stitching, in the meantime, he saw four persons, Deep Narain Rai, Kuldip Rai, Bira Rai and Raghubansh 12 Rai, coming from the side of the State Bank of India and all the four stopped there and Bira and Deep Narain stated that this is Laxmanwa and, thereafter Deep Narain Rai and Kuldip Rai went on Supreme Tailor, pointed pistol and both fired, which hit at the ear. Deep Narain Rail unloaded his pistol and the empty cartridge fell and again he reloaded and fired and the accused persons fled away chasing him. He said that he hid himself in the ‘gali’ near Devi Asthan and, thereafter, he came back to Supreme Tailor. He has proved the purza in the writing of Deep Narain, which has been marked as Exhibit 2. He has further stated that accused persons used to sell milk earlier. He has also stated that adjacent east of the State Bank of India there is Supreme Tailor and to the west there is Suli Tola at a distance of 100-150 years and they have got his shop at Suli Tola. He has stated that he has stated before the police that four accused persons stopped near the shop and Deep Narain Rai and Bira Rai said that this is Laxmanwa, kill him and, thereafter, pointed the pistol and even disclosed before the police that Deep Narain unleaded the pistol and the empty cartridge fell down and when he was fleeing away Deep Narain fired at him. However, the attention drawn regarding these facts to this witness for taking contradiction. 21. P.W. 6 is the investigating officer and for taking contradiction in paragraph 25 of the evidence and investigating officer has stated that all the persons stopped near his shop and Bira Rai and Deep Narain said to surround and Kuldip Rai got over the shop and pointed the pistol, however, in the evidence the investigating officer has specifically stated that Shivpujan (P.W. 3) has stated that Kuldip Rai and Deep Narain Rai fired and Deep Narain unloaded the pistol by which empty cartridge fell. However, the question for consideration is whether these evidence amounts to contradiction. However, the investigating officer in his evidence stated 13 that this witness had stated that Kuldip Rai and Deep Narain Rai fired. However, attention has been drawn regarding the fact which this witness stated in Court about the occurrence, however, his attention has been drawn that witness has not stated before the police certain fact. However, the investigating officer has stated that this witness stated about the firing by Kuldip Rai and Deep Narain Rai. However, when this witness has stated the material fact that who were the assailants and which weapon used by the assailants and