1 CRIMINAL APPEAL No.277 OF 1988 - - - - Against the judgment of conviction and order of sentence dated 12.5.1988 passed by the Ist Additional Sessions Judge, Begusarai, in Sessions Case No.146 of 1982/95 of 1985 - - - - 1. Brahamdeo Paswan son of Shri Munshi Paswan 2. Siri Narain Paswan 3. Chhathu Paswan, sons of Shri Santlal Paswan 4. Rajendra Paswan son of Shri Geno Paswan 5. Bhubneshwar Paswan @ Bhuna son of Bhopan Paswan 6. Sheo Narain Paswan @ Jhaksu Paswan son of Madho Paswan 7. Kishundeo Paswan 8. Bishundeo Paswan, sons of Gamjhu Paswan 9. Sanichar Sao alias Butal Paswan son of Budhu Paswan All residents of village MohabbaKalyanpur,Police Station Sahebpur Kamal, Districr Begusarai 10. Chandu Saahni alias Chalo Sahni son of Musahru Paswan, resident of Village Baku, Police Station Ballia, Districtr Begusarai 11. Banarsi Paswan son of Shri Halkhori Paswan resident of Village,Bhagatpur, Police Station Ballia,District Begusarai. … … Appellants Versus The State of Bihar … … Respdondent For the appellants: Shri Rai Mukesh Sharma, Advocate Shri Aruni Singh, Advocate For the State: Sushri Shashi Bala Verma, A.P.P. - - - - P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE AKHILESH CHANDRA - - - - Dharnidhar Jha & Akhilesh Chandra,JJ.- The present appeal questions the propriety of order of conviction and sentence passed by the learned Ist Additional Sessions Judge, Begusarai, in Sessions Case No.146 of 1982/95 of 1985 on 12.5.1988 holding each of the appellants guilty of 2 committing offences under Sections 307/149 and 302/149 of the Penal Code and by which the learned trial Judge directed each of the appellants to suffer R.I. for six years and for life respectively on the above noted counts. 2. The prosecution case, put briefly, is that on 26th of January, 1974 a band of 25-30 men armed with guns, pistols came to the Dera of Biranchi Mahto( P.W. 9) and started searching for him so as to killing him. Biranchi Mahto fled away. The accused persons started picking up properties of the said Biranchi Mahto which was objected to by the informant Rameshwar Mahto (P.W. 11), his father Ramrup Mahto(deceased), Bhuttu Thakur (P.W.2,declared hostile), Ram Balak Mahto(P.W. 7), Satya Narain Mahto (P.W. 10), Ram Kripal Sahni (P.W. 1,declared hostile) and others. The accused persons, finding some resistance being offered, started firing from their guns and pistols as a result of which Ramrup Mahto, the father of the informant, was hit and he died then and there. P.W. 2 Bhuttu Thakur, P.W. 7 Ram Balak Mahto and others also received injuries on account of indiscriminate firing resorted to by the accused persons as also on account of being hit by bhala and lathi. 3. The reason for the occurrence as alleged in the fardbeyan recorded on 27.1.1974 was the old enmity 3 between the said Biranchi Mahto, P.W. 9, and the accused persons. 4. The case was registered by drawing up of the F.I.R., (Ext.6), on the basis of Ext.1, the fardbeyan of P.W. 11. It appears that certain empty cartridges were recovered from a distance of abut 7-8feet from the Dera of Biranchi Mahto, as appears from Ext. 5, the seizure list prepared in that behalf. It further appears that the Investigating Officer of the case found the dead body kept on a cot which was kept in the sahan of the Dera of Biranchi Mahto. This fact could be found from the inquest report, Ext. 3. It also appears that some blood stains were seized by the Investigating Officer and those were sent to the Forensic Science Laboratory for chemical analysis and its report Ext.8 indicates that the seized article did not appear blood. As regards the five cartridges the report of the Forensic Science Laboratory indicated that those were real cartridges of the ammunitions which had been fired, as may appear from the report which appears tagged with the exhibited documents. 5. In absence of the evidence of the Investigating Officer, we do not find ourselves in a position to point out as to what was the description of the place of occurrence and what were further steps taken by him during the course of investigation, but 4 there appears sufficient materials before us to indicate that witnesses were examined during investigation and the dead body was sent for post- mortem examination which resulted in preparation of Ext.4, the post-mortem report, which indicated that the deceased Ramrup Mahto had died on account of having received a firearm injury. The police after close of the investigation sent up the accused persons for trial and, ultimately, that ended in the present impugned judgment. 6. The defence of the appellants was that they, on account of long standing previous enmity, had falsely been implicated and, in fact, no occurrence had taken place as was allegedly made out by the prosecution. 7. During the course of trial, 16 witnesses were examined, out of whom, as just pointed out by us, P.Ws. 1 and 2 were declared hostile having not supported the prosecution story on any of its parts. P.W. 12 Gaya Prasad Sinha, P.W. 14 Jadu Nandan Mahto and P.W. 15 Bhola Prasad were witnesses of formal character having proved different writings on the documents which were prepared either in their presence or the writings of which documents were known to them on account of being acquainted with the writings of the authors of the documents. P.W. 16 Dharmadeo Mahto was a witness to the 5 seizure memo as also the seizure of the empty cartridges, besides holding of inquest and preparation of inquest report. 8. So far as the remaining witnesses are concerned, P.W. 3 Domi alias Domri Mahto, P.W. 2 Racho Mahto, P.W. 5 Punit Mahto, P.W. 6 Deo Narayan Mahto, P.W. 7 Ram Balak Mahto, P.W. 9 Biranchi Mahto P.W. 10 Satya Narain Mahto and P.W. 11 Rameshwar Mahto, the informant of the case, supported the charges as eye witnesses. However, P.W.7 Ram Balak Mahto appears not turning up for cross-examination after being found ill by the court on the first and only day of his examination in court and, as such, his evidence was not utilized by the trial court in rendering its judgment. We also thought it not proper to read the evidence of P.W. 7 because in absence of his full evidence in cross-examination, his evidence could not be said to be complete and admissible. 9. So far as the merits of the case are concerned, arguments were advanced by Shri Aruni Singh learned counsel for the appellants on various aspects of the matter. Shri Singh contended that the manner stated in the frardbeyan was completely changed by the prosecution through the witnesses while adducing evidence and the place of occurrence appears not properly fixed and proved. It was contended further 6 that the motive for the occurrence appears at all not established and that appears one of the incurable defects in the evidence. The witnesses were inimical and they had very acceptable reasons for deposing falsely and some of them appears doing that as may appear from the evidence of the star witness of the prosecution P.W. 10 Sataya Narain Mahto. It was contented, as such, that the accused persons were wrongly convicted by the learned trial Judge and deserve to be acquitted. 10. As regards the contention that the witnesses are interested on account of being inimical, we do not have any hesitation in recording our acceptance of the contention. Almost all the witnesses, like, P.Ws. 3,4,5,6,9 and 10 in various paragraphs of their depositions, have stated that they were inimically deposed towards the appellants since many past years. Either they had filed a case against the appellants or any of the appellants had filed a case against any of the witnesses. Not only that, there were substantial number of cases pending between the parties. There were proceedings under Section 107 of the Cr. P.C. on account of bad relationship between the parties on the day the witnesses were deposing in court. We were finding the above facts when we were being taken through the evidence of as many as six witnesses who 7 came forward to depose in support of the charges. Having found the witness of that class or category, we put ourselves on guard to look for some substantial proof of the facts as alleged. While so doing what struck us the most was that the initial prosecution document, the fardbeyan Ext. 1, did not contain any story that appellant Ram Bilash Paswan came to the Dera, which is described as the place of occurrence, of Biranchi Mahto and pressed for withdrawal of the case of dacoity which had been filed by P.W. 9 Biranchi Mahto against appellant Ram Bilash Paswan and others. A simple statement was made that on account of previous enmity between the parties the occurrence had taken place. As soon as we found that the prosecution is adding up a specific story of motive for the commission of the offence we look for substantial evidence in proof of the same. 11. Sushri Shashi Bala Verma, attempted to satisfy us that even if there was complete absence of the story which was subsequently built up by the prosecution, the court must uphold that the motive for committing the offence was substantiated. We would have upheld the contention of Sushri Veram had there not been any departure by it from the initial general story to subsequent particular specific fact for which the offence was allegedly committed. It was a genuine 8 grievance of the defence that after having departed from its original general stand so as to putting forth a specific story of motive, the legitimate demand of law was that the prosecution ought to have brought on record acceptable material to substantiate the motive. 12. Shri Singh while criticizing the prosecution witnesses by referring to us the evidence of as many as four witnesses, like, P.Ws. 3,5,6 and 9 who on the other hand stated a fact which might indicate as if the dacoity case had cropped up against some of the appellants at the instance of P.W. 9 Biranchi Mahto which might have ended in acquittal of the accused. We still could have upheld the motive had we been shown that indeed on the day of occurrence that case was pending. Sushri Verma attempted to shift the onus of the prosecution on the appellants but we were not ready to accept her submission that the accused ought to have produced an order of acquittal or any other evidence to dislodge the claim of the prosecution that the present offence was committed for one particular reason as stated by the witnesses, that’s to say, the pressure for withdrawal of the dacoity case. We have the evidence on record which may raise a probability that the dacoity case might have ended in acquittal, may be prior to the date of occurrence. This we record simply for the reason that had that been the motive for the 9 occurrence the informant who was giving the statement one day after the incident without approaching the police or without sending any of the injured to the hospital, must not have missed stating that fact in his report. This, to us, appears one of the deficiencies and defects in the prosecution case. 13. The next deficiency or defect which has come into our notice in the evidence of P.W. 10 Satya Narayan Mahto. As per the witness he appears running away from the scene of the occurrence as soon as the appellant Ram Bilash Paswan and other appellants came at the Dera of P.W. 9 Biranchi Mahto seeking withdrawal of the dacoity case. Witnesses state that there was some harsh exchange of words leading to an apprehension and running away of both P.Ws 9 and 10 simultaneously from the place of occurrence and both had concealed themselves behind a wall so as to seeing the occurrence. When we were being referred to the evidence of P.W. 10, we were taken to the part of evidence of the witness which contains the drawl of attention of the witness to the statement previously made by him before the police. He has in most part of his statement to police had not stated that he had made certain statements before the police and if we consider paragraph 3 of P.W. 10 then what comes out is that he was not present at the scene of occurrence and further 10 he had not seen any part of it and, lastly, he came after the occurrence was over to find his father Ramrup Mahto lying dead and a few others lying injured. This witness had, in fact, stated to the police in his statement under Section 161 Cr. P.C. that firing was resorted to by a band of dacoits not identified by him and as such we could conclude that the persons constituting the band of dacoits had not been identified by any of the witnesses who claimed identifying the appellants as those persons. 14. Consistency appears in the evidence of P.Ws. 3,4,6,7 and 9. We want to note that mere consistency or incongruity could not be the hallmark of truth. When the witnesses are inimically disposed towards the appellants, when the enmity is chronically existing and they have fought the present litigation tooth and nail, it does not appear unusual that the persons flock together so as to heaping ignominy upon and thus seeing their adversaries convicted and sent to prison. Most of the witnesses are cited as eye witnesses. Some of them who were injured could not prove to our satisfaction that they were really hit by firearm because the prosecution failed in brining on record their respective medical reports. Besides, there is no record before us as to whether they approached any medical man to get themselves treated or examined for the injuries 11 they claimed having received at the hands of the appellants. Those who are named in the F.I.R., like, P.Ws.1 and 2, they did not support the prosecution case, rather, they went on to state that they had not identified any of the miscreants. 15. As regards the main evidence of killing Ramrup Mahto, the story propounded in the fardbeyan was unspecific which was specified through evidence right from the stage of examination of P.W. 3 who alleged that appellant Ram Bilash Paswan had fired shots. P.W. 3, Domi alias Domri Mahto was examined on 5.8.1987 after about one year eight months of framing of the charges. We assume that the prosecution felt necessity of introducing the story of two shots only because of the post-mortem report Ext.4, in which the Doctor found two gun shot injuries, else, why the Investigating Officer of the case or the informant or any of its witnesses, specially, Biranchi Mahto and informant P.W.1 could miss stating that Ram Bilash Paswan had fired two shots repeatedly and had killed Ramlrup Mahto. 16. The above are some of the reasons which have broadly influenced ourselves to hold that the judgment of conviction and sentence passed upon the appellants deserve to be set aside and they are, accordingly, set aside. 12 17. In the result, the appeal is allowed and the appellants are acquitted of the charges. The appellants who are on bail, stand discharged from the liabilities of their respective bonds. ( Dharnidhar Jha, J.) ( Akhilesh Chandra, J.) Patna High Court The 21st June, 2010 Kanth/N.A.F.R.