IN THE HIGH COURT OF JUDICATURE AT PATNA DEATH REFERANC No. 3 OF 2009 Appeals against the Judgment of Conviction and order of sentence dated 25.03.2009 & 27.03.2009 of the Addl. Sessions Judge, F.T.C. No.III, Supaul in Sessions Trial No. 237 of 2006/197 of 2007. THE STATE OF BIHAR--------------------------------(Appellant) Versus MD. SAHEBJAN---------------------------------(Respondent) WITH CR. APP (DB) No.312 oF 2009 1. MD. SAKIR, s/o. late Md Rajjaque, 2. Bhubneshwari Yadav, Appellant No.1 is r/o. Village-Nirmali, Tola- Ghuscaul, P.S. and Distt. Supaul and Appellant No.2 is r/o. Vill. Dumaria, P.S. + Distt. Supaul. -------------------------------(Appellant) WITH CR. APP (DB) No.329 oF 2009 MD. SAHEBJAN, S/o. late Md. Rajjaque, r/o. village- Nirmali, Tola-Ghuscaul, P.S. + Distt. Supaul. ---------------------------------(Appellant) Versus THE STATE OF BIHAR------------------------------(Respondents) Counsel for the Appellants:- Mr.Ajay, Advocate. Mr. Krishna Chandra, Advocate. Counsel for the State:- Mr. A.K. Sinha, Addl. P.P. P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD THE HON'BLE MR. JUSTICE RAKESH KUMAR ------------ C.M. Prasad & Rakesh Kumar,JJ. 1. The two appeals are against the judgment of conviction and sentence respectively dated 25.03.2009 & 27.03.2009 of the Addl. Sessions Judge, F.T.C. No.III, 2 Supaul in Sessions Trial No.237 of 2006/197 of 2007, whereby Md. Sahebjan has been convicted under Sections 302/34, 201/34 of I.P.C. and Section 27 of the Arms Act and respectively sentenced to death, R.I. for five years and R.I. for three years. The appellants Md. Sakir and Bhuneshwari have also been similarly convicted under Sections 302/34, 201/34 of I.P.C. and Section 27 of the Arms Act but they have been respectively sentenced to R.I. for life, R.I. for five years and R.I. for three years. 2. Death reference aforesaid is for confirmation of the death sentence passed to the convict Md. Sahebjan under Section 302/34 of I.P.C. 3. The prosecution case as set forth in the fardbeyan of the informant Vijay Yadav P.W.8, as recorded by S.I. Arun Kumar on 02.08.2004 at 2.00 P.M. near the bank of river Kosi at Balba Bahiyar is that on 31.07.2004 at 8.00 A.M. the deceased Nunulal Yadav, the father of the informant had gone to village Nipta across the river for the purpose of procuring paddy seedlings and that on the next day at about 12.00 noon when he was unable to procure paddy seedlings he had come to the other side of the river 3 for returning to his village and that after crossing the river on a boat when he alighted from the boat on the bank of the river for going to his village some criminals, who were ambushing nearby, chased him for capturing. The deceased fled away whereupon Md. Sahebjan (appellant) shouted and ordered to shot, whereupon Lakshman Sada (he is not amongst the appellants) fired his country-made pistol hitting on the back of the deceased and, thereafter, Satnarayan Kamat (he is not amongst appellants) fired his mascot hitting the deceased’s body, as a result of which the deceased fell down. Then it was further alleged that appellant Sahebjan went to the deceased and saying that he was then alive put his pistol touching the body of the deceased and fired a shot. The informant felt that the deceased had died as a result of assault. It was further alleged that Jakir and appellant Sakir as well as Bindeshwari Yadav, appellant Bhubneshwari Yadav and 6 to 7 other persons lifted the deceased and threw it in the river water. After throwing dead-body into the river the accused persons stayed there for sometime. The informant further alleged that at that time he was scraping grass at a distance of about 4 200 yards south of the P.O. and that due to fear he did not move towards the deceased during the occurrence. He further alleged that after the fleeing of the accused, he shouted and hearing his cry Lalan Yadav(P.W.3) and Siyaram Yadav, Siban Yadav, Deep Narayan Yadav and Vijay Yadav came there and that with their help he tried to search out the dead-body from the river water but he was unable to trace it out. It was further alleged that on the next day when the police personnel of the local P.S. came there he gave out his fardbeyan which was recorded by the I.O. About the cause and motive for the occurrence he alleged that about 8 months ago Mukhiya Tej Narayan Yadav had been killed and in that case the supporters of deceased Tej Narayan Yadav suspected that Nunulal Yadav, deceased and his family members were involved in his murder and out of that grudge the supporters of Tej Narayan Yadav killed the deceased. During trial the defence has examined D.W.1 Md. Badrujama who proved the F.I.R. of Supaul P.S. Case No.246 of 2003 relating to the murder of said Mukhiya Tej Narayan Yadav lodged by informant Bindeshwari Yadav, brother of appellant Bhubneshwar Yadav against Nunulal 5 Yadav deceased of his case and others. 4. During argument learned counsel for the appellant assailed the prosecution case on several points stating that the original fardbeyan of the case has not been brought on record and it has been substituted by a subsequently created fardbeyan. It was also submitted that the informant is not an eyewitness and that the P.Ws.2 & 3 who have claimed to have seen the appellants fleeing away are not at all believable. Further submission was that the injury found on the deceased are not inconsonance with the injury as found by the doctor during post mortem examination. It was also submitted that the appellants have been falsely implicated due to enmity and grudge arising out of the said F.I.R. under Supaul P.S. Case No.246 of 2003 against informant’s father Nunulal Yadav (deceased) by the informant Bindeshwari Yadav of that case, who happens to be the brother of appellant Bhuneshwar Yadav. The points raised by the learned counsel for the appellant will be considered on discussing the evidence of the prosecution witnesses. 5. As many as nine witnesses were examined by 6 prosecution. P.W.1 Birendra Yadav, deposed that he was scraping grass near the bank of river Kosi while he heard sound of firing and when he moved towards P.O. he saw that 14 to 15 persons were fleeing away and out of them he saw the appellants namely, Sahebjan, Bhubneshwari and Sakib as well as Jakir, Satnarayan, Lakshman Sada and Bindeshwari Yadav. He also deposed that deceased Nunulal Yadav was lying dead and one empty cartridge was also lying there. Thus, this witness claims to have seen the three appellants along with others fleeing away and to have seen the dead body lying there but he does not say about any arm or weapon carried by any of these persons. This witness says that he had seen one empty cartridge lying there but the I.O. whose evidence will be discussed later on has not said in his evidence about finding of any empty cartridge at the place of occurrence. 6. The P.W. 2 Raghunath Yadav @ Bauku Yadav has claimed in his evidence that while he, along with deceased Nunulal Yadav was returing he saw 14 to 15 persons who started chasing them in order to capture them. He further says that he and Lalan Yadav (P.W.3) fled away 7 but Nunu Lal Yadav was captured by those persons and thereafter, he heard sound of three shots. He has named the three appellants along with others stating to have identified them amongst the chasers. 7. The P.W.3 Lalan Yadav has deposed on similar line, stating that while he along with Bauku Yadav (P.W.2) and the deceased was coming they were chased by the appellants and others and that he and P.W.1 fled away by jumping and swimming in the river water but Nunulal Yadav, the deceased was captured by the accused persons. Thus, the P.Ws.2 & 3 both had claimed that they were returning with the deceased and in course of that when they reached near the bank of river they were chased by the appellants and others and that the deceased was captured by them and they also heard the sound of firing and thought that accused persons killed the deceased. 8. The P.W.4 Arun Kumar is the I.O. of the case who deposed that he had recorded the fardbeyan of the deceased on 2.08.2004 at 12.00 noon and thereafter he had read out the same to him and then he had signed it. The fardbeyan was proved as Ext-1. He also proved the F.I.R. 8 marked as Ext-4. He stated to have inspected the place of occurrence. He further stated that the dead-body of the deceased could not be traced till 02.08.2004 and it was traced out on 05.08.2004. He further stated that initially the F.I.R. was lodged under Section 364/34 I.P.C. but on 04.08.2004 he filed a petition in Court for adding Section 302 I.P.C. in the F.I.R. He also stated that he had received information on mobile phone that a dead body was floating in the river and then recovery was made. 9. P.W.5 Harinandan Prasad Yadav has stated in Para-3 of his evidence that he is the cousin of the deceased. This witness is a blind and he usually remains at his house. He has deposed that on 01.08.2004 at about 10.00 A.M. Vijay Yadav (P.W.8), Lalan Yadav (P.W.3), Raghunandan, Dipu and Shailendar Yadav had come to him and had told him that while they were scraping grass near the bank of river the accused persons had killed the deceased. He further deposed that he along with others had gone to the P.O. and blood marks as well as marks of dragging of the deceased was there but the dead body was not found. At paras- 6 & 7 he has deposed that he, along with Vijay Yadav 9 (informant P.W.8) had gone to police station during night hours on that day and Vijay Yadav (informant) had instituted a case at the P.S. Thus, according to this witness the P.Ws.3 & 8 stated to him that they had seen the occurrence while they were scrapping grass near bank of the river and that in the night of date of occurrence (01.08.2004) he, along with informant Vijay Yadav (P.W.8) had gone to the police station, where the informant had instituted a case relating to the occurrence. 10. P.W.6 Bateshwar Nath Singh, S.I. is another I.O. of the case but he took up the charge of the investigation at the end of it and he formally submitted the charge sheet on 28.02.2006. 11. P.W. 7 Dr. Birendra Kumar Sharma is the doctor who conducted the post mortem examination on the dead body of the deceased Nunulal Yadav and found the following anti-mortem injuries:- I. The whole body of the deceased was swollen, foul smell coming out. Body was in the state of decomposition. The rigor mortis absent, skin peeled off over the abdomen, skull, thigh & upper area. 10 II. External Findings: (a). Incised wound on the left shoulder joint on the upper part 1.5”x 1/2” x 1/2”, margin sharp caused by sharp cutting weapon. (b). Incised wound in the right side of occipital area of skull 1.5” x 1/2” x scalp deep. III. Firearm injuries: (a). Entry wound on the right side of face ½” forward to the lower part of the ear. Size-1/2” in diameter. Margin everted. Corresponding exit wound on the left side of the face ¼” forward to the lower part of ear size- ¾” in diameter. Shape round Margin everted, blood soaked. (b). Injury caused fracture of corresponding auxiliary and temporal bone both the side and soft tissue. (c). Entry wound on the right arm about 2” below on the right shoulder joint on the lateral side. Size- 1/2” in diameter, shape round, margin inverted. Exit wound on the medial side of right arm 3” below from the right shoulder joint. Shape round. Size-3/4” in diameter. Margin everted. Blood soaked. The injury caused fracture of right humerous bone in shaft. 11 IV. Entry wound on the back on the right side 2” lateral to vertebral column in eight intercostals space area. Size ½” in diameter, shape- round. Margin inverted. Exit wound on the right upper part of the chest on the front in the corresponding to third inter Costal space. 2” lateral to external size ¾” in diameter. Margin everted. Blood and soil mixed on the margin. Injury caused fracture of corresponding rib, soft tissue, viscera and abdominal cavity. V. On dissection right lung damaged due to fire- arm injury. Heart intact but both the chambers empty. Intestine was intact containing digested food. VI. Peritoneum was punctured due to fire-arm injury. Liver damaged due to injury caused by fire-arm. Genital wall was intact and swollen. VII. The cause of death was cardio respiratory failure due to haemorrhage and shock. On dissection vital organ lung & liver found damaged by firearm injuries. VII. Time elapsed since death was between 4 to 6 days. 12. The post mortem examination in writing of the doctor was proved by him as Ext-5. 12 13. P.W.9 is the formal witness who has proved the writings and signature on the inquest report marked as Ext-7. 14. P.W.8 Vijay Yadav is the informant himself. He deposed that on the date of occurrence at about 2.00 P.M., he was scraping grass at a distance of 200 yards south of the P.O. He further deposed that one day ago his father (deceased Nunulal Yadav) had gone across the river to village Nipta for procuring paddy seedlings. That day when his father returned and got down from the boat appellant Sahebjan shouted to capture him. At this, Sahebjan, Jakir, Sakir (appellant), Bindeshwari Yadav, Kameshwari Yadav, Lakshman Sada, Satto Kamat and 6 to 7 others chased the deceased for capturing him. This has to be remembered here that the informant does not name the appellant Bhubneshwari Yadav amongst the criminals there. He further deposed that Lakshman Sada shot at the deceased hitting him on his back. Thereafter Sato Kamat fired shot hitting the deceased and then the deceased fell down. He further deposed that appellant Sahebjan went to the deceased and saying that the deceased was alive he took out his pistol 13 and touching the pistol to the ear of the deceased fired a shot killing the deceased there. He also deposed that thereafter the accused persons lifted the deceased and threw him in the river water. He also deposed that after that the accused remained there for a considerable time and, thereafter, they fled away. After fleeing of the accused he shouted and hearing his cry Siban Yadav, Siyaram Yadav, Bijan Yadav (P.W.1), Virendra Yadav, Deep Narayan Yadav, Lalan Yadav (P.W.3) and Bauku Yadav (P.W.2) who were scraping grass nearby came there and that with their help he tried to trace out the body from the river water but it could not be found. He also stated that he, along with others had again gone to the river in the morning for searching the dead-body. At Para-3 of his evidence he further deposed that next day the police of local P.S. had come and he had given his fardbeyan which was recorded there in presence of witness Binod Kumar Yadav. This has to be remembered here that the witness Binod Kumar Yadav in whose presence the fardbeyan is said to have been recorded has not been examined by the prosecution. In para-6 of his cross- examination he has categorically stated that he P.W.1 Vijan 14 Yadav, P.W.2 Bauku Yadav and P.W.3 Lalan Yadav and others were scraping grass. 15. In para-9 of his cross-examination he made a categorical admission that he had stated before the I.O. that on 31.07.2004 in morning at 8.00 A.M. he had gone to village Nipta across Kosi river for procuring paddy seedlings but it was not available, hence, on the next day he was returning and he had reached the other side of the river at 12 ‘O’ Clock and after crossing the river he had come to that side of the river. This statement appears to have been made with a view to purporting to say that he (informant) was also returning with the deceased when they were unable to procure paddy seedlings in village Nipta across Kosi river. At para-16 he further gave a categorical statement that the P.W.1 Vijay Yadav, P.W.2 Bauku Yadav and P.W.3 Lalan Yadav were also scraping grass with him. At para-13 of his evidence he further deposed that he had not found any incised wound on the head and shoulder of the body of the deceased. 16. Now we have to scrutinize the evidence of the prosecution witnesses in order to test their veracity and 15 testimony in the light of the infirmities as pointed out in the argument of the learned counsel for the appellants. 17. P.W.1, has claimed that he was scraping grass and at that time he heard the sound of firing and rushed to the P.O. and saw the accused persons were fleeing. This witness has also claimed to identify the appellants amongst the fleeing accused persons. Besides this the informant (P.W.8) claims to be an eyewitness to the occurrence of assault stating about the manner of assault as caused by the appellants saying that he saw the occurrence of assault when he was scraping grass at a distance of 200 yards from the P.O. P.Ws. 2 & 3 have claimed that they were coming with the deceased and when they came down from the boat on the bank of the river with the deceased they all were chased but they fled away by jumping and swimming in the river water and that the deceased was captured by the accused and they heard sound of firing and then they thought that accused had killed the deceased. 18. P.Ws.2 & 3 have simply stated that when they came down from the boat they were chased but they managed to escape and the deceased was captured by the 16 accused and thereafter, they heard the sound of firing. These witnesses do not say about the actual occurrence of assault at the hands of the accused persons. The claim of these two witnesses as a witness to that part of the occurrence of capturing of the deceased by the appellant and others is made at a time when they say that they were returning from the other side of the river with the deceased. But the evidence of the informant at paras-2, 6 & 16 states in categorical terms that P.W.1 Vijan Yadav, P.W.2 Bauku Yadav and P.W.3 Lalan Yadav were scraping grass with him and that they had rushed to the P.O. on his cry after the fleeing of the accused persons from the P.O. Thus, when the P.Ws.2 & 3 were scraping grass with the informant and they had rushed to the P.O. from that place after shouting of the informant, these two witnesses (P.Ws.2 & 3) are totally discredited in their claim that they were with the deceased in course of his returning from across the river and that they were chased when they got down from the boat when the deceased was captured by the appellants and others. In such view of the matters, the P.Ws.2 & 3 do not appear to be reliable and trustworthy witnesses over the evidence they 17 have adduced and their evidence is not at all reliable. 19. The P.W.1, who was also scraping grass with the informant (P.W.8) claims in his evidence that hearing the sound of firing he moved towards the place of occurrence and he saw the appellants and other accused persons fleeing away from the place of occurrence. This witness claims to have seen the accused persons fleeing away but he does not mention about any kind of arm or weapon carried by them. P.W.1 also says that going to the place of occurrence he saw that the dead body of the deceased was lying there and one empty cartridge was also lying at that place. In this context the evidence of the informant (P.W.8 para-2) is very important, where he says that after killing the deceased accused persons threw the dead body in the river water and thereafter they had remained at P.O. for a considerable time and then they fled away and after fleeing of them he began shouting and hearing his cry the P.W.1 had come to the P.O. Thus, according to the informant (P.W.8) who was scraping the grass with the P.W.1, P.W.1 comes to the P.O. on hearing his cry and at that time the dead body had already been 18 thrown away into the river and the accused persons had already fled away from that place. In such condition, when the accused persons had already fled away and the P.ws. having come to the P.O. on hearing the cry of the informant, the P.W.1 had no occasion to see the dead body lying at the P.O. The P.W.1 also claims that he had seen an empty cartridge lying at the P.O. but the I.O. has not found any such cartridge there. Thus, considering the infirmities as would appear in the claim of P.W.1 through the above discussed evidence of the informant (P.W.8), and also considering that the P.W.1 does not say about any kind of weapon carried by any of the accused whom he has claimed seen fleeing away, we feel that the testimony of P.W.1 is also full of doubts and it is not safe to place reliance his evidence. 20. The informant is the only eyewitness to the occurrence of the assault. He has claimed that while he was scraping grass at a distance of 200 yards from the P.O. he saw the appellants assaulting the deceased. He states in categorical terms that Lakshman Sada had shot at the deceased hitting on his back, Satto Kamat had shot at the 19 deceased hitting on his body and thereafter, appellant Sahebjan took out his pistol and touching the pistol on the ear of the deceased shot at the deceased and thus killed him there. Thus, according to the informant the appellant Sahebjan had shot at the deceased by touching or putting the pistol on his ear. In such a case when a shot is fired from such a point blank distance the fire-arm injury will definitely cause charring, tattooing or singing of the margins of the wound. In this context when we refer to the evidence of the doctor P.W.7, we find that the doctor found the wound of entry on right side of face and also on shoulder and back but none of the wounds showed any charring, tattooing or singing of the inverted margins of the wound. Due to this defect we entertain a reasonable doubt over the claim of the informant that he had seen the appellant Sahebjan shooting at the deceased on his ear just touching the pistol to his ear. 21. Besides this, there are other infirmities also inasmuch as informant says that he had seen the occurrence with his eyes and he also mentions about three fire-arm injuries caused by three persons but he does not say about any other injury having been caused to the deceased at the 20 hands of the accused persons. The post mortem examination report mentions two incised wounds, one on the left shoulder joint on the upper part size 1.5” x ½” x ½” and another incised wound in the right side of occipital area of skull 1.5” x ½” x scalp deep. There cannot be any dispute that two incised injuries were also caused in course of the same occurrence. Here the learned Addl. P.P. tried to explain that such incised wounds may also be possible to be caused to the dead body when the dead body had been thrown in water and had remained in water for two days before its recovery and that while in water the body might have dashed against some sharp object may be the blade