CRIMINAL APPEAL No.29 OF 1988 With CRIMINAL APPEAL NO.75 OF 1988 *** Against the judgment and order dated 19.12.1987 passed by Sri Agapit Toppo, 3rd Additional District & Sessions Judge, Gopalganj in Sessions Trial No. 27/1986 / 1/1986. *** (In Cr.Appeal No.29/1988) 1.Rama Singh 2.Bishwanath Singh 3.Binda Singh---------------------------------------Appellants Versus The State of Bihar----------------------------------Respondent *** (In Cr.Appeal No.75/1988) 1.Krishna Singh 2.Ramnath Singh-------------------------------------Appellants Versus The State of Bihar----------------------------------Respondent *** For the Appellants :- Mr. Kanhaiya Pd.Singh, Sr. Advocate with M/s Ganesh Pd. Singh, Nachiketa Jha and Atal Bihari, Advocate For the State :- Mr. Lal Kailash Biahri Prasad, Sr. Advocate *** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SYED MD.MAHFOOZ ALAM *** S.M.M.Alam, J. These two criminal appeals are directed against the judgment and order dated 19.12.1987, passed by the 3rd Additional District & Sessions Judge, Gopalganj, in Sessions Trial No.27/86 /1/86, whereby he has been pleased to convict appellants Krishna Singh and Ramnath Singh under Sections 302 of the Indian Penal Code, and Section 27 of the Arms Act, and sentenced each of them to undergo rigorous imprisonment for life under Section 302 of the I.P.C., and rigorous imprisonment for five years under Section 27 of the Arms Act. He has further been pleased to convict appellant Rama Singh for the offence under Sections 302/149 and 307 of the I.P.C., and sentenced him to undergo 2 rigorous imprisonment for ten years under Section 302/149 of the I.P.C., and further rigorous imprisonment for ten years under Section 307 of the I.P.C. Besides that, he has also been convicted under Section 27 of the Arms Act and sentenced to undergo R.I. for five years. Appellant Bishwanath Singh has been convicted under Section 302/149 of the I.P.C., and sentenced to undergo R.I. for eight years. He has further been convicted for the offence under Section 323 of the I.P.C., and sentenced to undergo R.I. for one year. Appellant Binda Singh has also been convicted for the offence under Section 302/149 of the I.P.C., and sentenced to undergo R.I. for seven years for the said offence. The learned Additional Sessions observed that all the sentences shall run concurrently. 2. The prosecution case, as per the fardbeyan of the informant, Vidya Singh (P.W.3), recorded by S.I. Sagar Das of Gopalganj Police Station on 8.6.1984, at 5 A.M., at Gopalganj Hospital, in brief, is that in between the night of 7/8.6.1984, he (informant) was sleeping at his Darwaja on a cot along with his mother. By the side of the said cot, his younger brother Yogendra Singh (P.W.1) was also sleeping on another cot. At about 1.15/1.30 A.M., he woke up on hearing a loud sound. Others also woke up. Thereafter he saw five persons surrounding him. On seeing them, his mother pushed him (informant) and he fell down in Dogaha. He flashed torch light and in the torch light he identified his co-villagers, namely, Krishna Singh son of Babu Ram Singh, Ramnath Singh son of Ambika Singh, Bishwanath Singh son of Vikrama Singh, Binda Singh son of Abhiram Singh, and Rama Singh of village Kararia. Amongst them, Krishna Singh, Ramnath Singh, and Rama Singh were armed with guns. Bishwanath Singh was armed with bhala. Binda Singh had Farsa in his hands. The informant and others started raising hulla. In the meantime, his mother caught hold 3 of Ramnath Singh whereupon appellant Krishna Singh started trying to release him and he succeeded in getting Ramnath Singh released. Thereafter Krishna Singh did three firings from his gun. Ramnath Singh also did firing. The first shot done by Krishna Singh missed. The second and third shots fired by Krishna Singh and Ramnath Singh hit the mother of the informant then Rama Singh opened fire which hit informant’s younger brother Yogendra Singh. While the informant was trying to flee away inside his house and wanted to drag away his mother, Bishwanath Singh attacked him with bhala fitted with lathi and the lathi portion caused injury on his waist. On hulla raised by the informant and others, Yadu Nath Mishra, Minister Tiwary, Kalam Mian, and several others reached there and then all the accused persons fled away. Having been injured, his mother succumbed to his injuries. Thereafter the informant took the dead body of his mother to Sadar Hospital on a bullock cart along with his injured brother. The informant and his brother were admitted to the hospital for treatment where his fardbeyan was recorded. The motive of the occurrence was old enmity and a day before the occurrence the appellants had given threat to kill the informant and informant’s brother Keshav Singh had informed Ramayan Bhagat and Sudarshan Bhagat with regard to the said threats. 3. S.I.Sri Sagar Das of Gopalganj Police station recorded the said fardbeyan in presence of two witnesses, namely, Ram Bishun Ram and Mohan Singh and both the witnesses put their signatures on the fardbeyan. The said fardbeyan was forwarded to the Officer Incharge of Gopalganj Police Station and on the spot, S.I. Sri Sagar Das took up investigation. On receipt of the said fardebyan in Gopalganj P.S., Gopalganj P.S. Case No.135 dated 8.6.1984, under Sections 302, 307, 324 and 323/34 of the Indian Penal Code and under Section 27 of the Arms Act was instituted and after investigation charge sheet was submitted against the appellants. Thereafter the appellants 4 were committed to the Court of Sessions. On 14th June, 1986, Charges under different heads were framed against the appellants by Additional District & Sessions Judge, Gopalganj. The appellants denied the charges and hence, they were tried and by the impugned judgment, they were convicted. 4. The learned Advocate of the appellants while arguing vehemently criticized the findings of the trial court and submitted that the findings of the trial court are not based upon judicious scrutiny of the evidence of the prosecution witnesses rather the same are based merely on conjectures and surmises. He submitted that the quantum of sentence awarded to appellant Rama Singh for ten years R.I. Bishwanath Singh for eight years and Binda Singh for seven years under Section 302/149 of the I.P.C. is not according to law. 5. At the very outset, I would like to state that the learned trial court has committed grave error of law by awarding sentence of ten years, eight years and seven years respectively to appellants Rama Singh, Bishwanath Singh and Binda Singh, under Section 302/149 of the I.P.C. and the learned Sessions Judge had no jurisdiction to award sentence less than life imprisonment under Section 302 read with Section 149 of the Indian Penal Code. In such view of the matter, I fully agree with the argument of the learned Advocate of the appellants that by awarding sentence of ten years, eight years and seven years to appellants,, Rama Singh, Bishwanath Singh and Binda Singh, the learned trial court has committed grave error of law. Now I will examine as to whether the findings of the trial court are based on the materials available on record and whether the prosecution had succeeded in proving its case beyond shadow of all reasonable doubts. 6. From perusal of the lower court records and the judgment of the trial court, it appears that in order to prove the case, the prosecution has examined altogether 11 witnesses, 5 namely, Yogendra Singh P.W.1, Keshav Singh P.W.2, Vidya Rai P.W.3. Ramashray Prasad P.W.4, Kalamuddin Mian P.W.5, Yadunath Mishra P.W.6, Manata Devi P.W.7, Ramayan Prasad P.W.8, Sagar Das P.W.9, Dr. R.B.Choudhary P.W.10, and Dr. H.P.Singh P.W.11. Besides oral evidence, fardbeyan of the informant Vidya Rai is Ext.1; Formal F.I.R. is Ext.2; inquest report of Mostt. Banmatto is Ext.3; Requisition slips with regard to injury of Yogendra Singh and Vidya Rai issued by Investigating Officer are Exts. 4 and 4/1; post mortem report of Banmatto Devi is Ext.5 and injury reports of Yogendra Singh and Vidya Rai are Exts. 6 and 6/1. 7. It appears that the defence has also examined four witnesses, namely, Bhoj Mishra D.W.1, Kapildeo Singh D.W.2, Keshwar Mishra D.W.3, and Raj Kishore Singh D.W.4. Besides oral evidence, the defence has also brought certain documentary evidence on record. Exts. A and A/1 are two certificates as well as prescription issued by Dr. Nand Kumar Singh in connection with the treatment of appellant Ram Nath Singh. The defence has taken the plea that appellant Ram Nath Singh, who was the Headmaster of Bala Prathmik Vidyalya, was ill on the alleged date and time of occurrence and was under the treatment of Dr. Nand Kumar Mishra. Ext.B is the service report of summons. Ext.C is the informatory petition, and Ext.D. is the true copy of the informatory petition filed by Dargo Rai in the year 1983. 8. Out of 11 witnesses examined on behalf of the prosecution, P.W.3 Vidya Rai is the informant of this case, P.W.1 Yogendra Singh is the own brother of the informant who is said to have received fire-arm injury at the time of the alleged occurrence; P.W.2 Keshav Singh is another brother of the informant; P.W.7 Manata Devi is own sister of the informant; P.W.9 Sagar Das is the Investigating Officer of this case, P.W.10 is Dr. R.B.Choudhary, who had examined injuries of P.W.1 Yogendra Singh and informant Vidya Rai. P.W.11 Dr. 6 H.P.Singh is another doctor who had conducted post mortem examination on the dead body of the deceased Banmatto Devi. The remaining witnesses i.e. P.Ws. 4, 5, 6 and 8 are the co-villagers of the informant but they have not stated anything in their deposition implicating these appellants which goes to establish that none of the independent witnesses has supported the prosecution case. Thus, the prosecution case is based upon the testimony of interested witnesses. 9. In order to come to the conclusion that the abvoesaid witnesses are trustworthy or not, I would like to reproduce the evidence of P.Ws.1, 2, 3 and 5 and I will scrutinize their evidence to conclude - whether the finding of the trial court is correct or not. 10. First of all, I would like to see – whether the death of Panmatto Devi was homicidal caused by firearm injuries ? In order to come to the conclusion that the death of Mostt. Panmatto Devi was homicidal, I find sufficient materials on record. In this regard, the post-mortem report (Ext.5), inquest report (Ext.3) and the evidence of P.W.11 Dr. H.P. Singh are relevant. I would like to reproduce the evidence of P.W.11 Dr. H.P. Singh. His evidence is that he had conducted post-mortem examination on the dead body of Panmato Devi and had found the following ante-mortem injuries on her body :- (i) Multiple pellets injuries on the right thigh medial and frontal parts below. The inguinal ligament with charred margin around the entrants of the pellets and simultaneously there were exits of the pellets wounds on the thigh lateral aspect. (ii) Multiple pellets wound on the lower part of the right side of abdomen with charred margin and there was no exit of the wound. 7 (iii) One pellet injury of the right deltoid muscle of the arm and the pellet was out through the wound. He has further deposed that on dissection he found that the liver was injured by the pellets and four pellets were recovered from the abdomen. The intestine was found perforated on three places. Abdominal cavity was full of blood and blood clot. Thigh right side was dissected and there was haemorrhage on the muscle and it was injured. He has further deposed that in his opinion the death was due to shock and haemorrage resulted from the pellet injuries on the abdomen which were sufficient to cause death in ordinary course of nature. He has proved the post mortem-report which has been marked as Ext.5. From perusal of the evidence of P.W.11, as well as the post-mortem report (Ext.5), it is established beyond doubt that the death of Mostt. Panmatto Devi was homicidal caused by pellet injury that is of fire-arm injury. Since it is established that the death of Panmatto Devi was homicidal caused by firearm injuries, so I would try to find out from the materials available on record as to whether the prosecution case that those injuries were caused by these appellants is correct or not. In this regard first of all, I would like to incorporate the evidence of P.W.3 Vidya Rai because he is the informant of this case. His evidence is as follows:- About more than two years ago at about 12/1.00 A.M. in the night, he was sleeping at his darwaja on a cot along with his mother. His brother Yogendra (P.W.1) was also sleeping on another cot at his west. His mother woke up on hearing the sound of explosion of bomb but he could not awake on the sound of explosion of bomb rather his mother awoke him and asked him to flee away inside the house. The informant started fleeing away in hurry then appellant Ram Nath tried to catch hold of him. In the meantime, his mother caught Ram Nath by 8 his waist and pushed him (P.W.3) as a result of which he fell down on Dogaha. He flashed torch whereupon the accused persons stared firing and in the torch light he identified Ram Nath Rai, Krishna Rai, Bishwanath Rai, Binda Rai and Rama Rai. Krishna Rai, Ramnath Rai and Rama Rai were armed with gun, Bishwanath Rai was armed with Bhala and Binda Rai was armed with farsa. Krishna opened first fire but nobody was injured from his firing. Second fire was done by Ram Nath which hit his mother. Krishna Singh again opened fire and the bullet hit his brother Yogendra. Bishwanath Rai assaulted him with lathi fitted with Bhala. P.W.3 has further deposed that his mother died on the spot. He has further deposed that the accused persons had come to kill him as Krishna had taken Rs.600/- as loan from him and about 15-20 days ago he (P.W.3) had asked him to return the loan whereupon he had threatened him to kill him by exploding bomb. He has further deposed that he had informed Sarpanch Ramashray Prasad with regard to the said incident. He has further deposed that on the day of occurrence also, Ram Nath had given threat that he would be killed. He has deposed that he was admitted to the hospital where his fardbeyan was recorded. In cross-examination he has admitted that one Swami Nath had instituted a case under Section 326 and 307 of the I.P.C. against him. He has also admitted that he was also an accused in the attempt to murder case of Islam Mian. He has also admitted that Abhiraj Rai of Ekderwa had instituted a criminal case against him for committing theft of sugarcane. At paragraph 25 of his cross-examination, he has admitted that one Devendra Prasad had also instituted the case of attempt to murder under Section 307 of the Indian penal Code and under the Arms Act. The above admission of P.W.3 shows that some other persons were also on inimical terms with the informant 9 and amongst them, Swami Nath, Islam Mian and Abhiraj Rai were the persons who were inimical to the informant. 11. The learned Advocate appearing on behalf of the appellants has argued that paragraphs 7, 8 and 9 of deposition of P.W.3 establishes beyond doubt that some other persons had also grudge against the informant and that the informant was not a man of clean antecedents, so there is every possibility that the crime was committed by some other persons and the appellants were falsely implicated. The argument of the learned Advocate of the appellants has got some weight specially when the independent witnesses of the locality have not supported this fact that the crime was committed by these appellants although they (P.Ws.4, 5, 6 and 8) have deposed that on the alleged night of occurrence they had gone to the house of the informant and had seen the dead body of his mother and had also seen the injury on the persons of the informant and his brother but they have not stated that the informant or any member of his family disclosed the names of appellants as the assailants. 12. P.W.3 has further deposed in his cross-examination that Dargo Singh of Kakarkund was his brother-in-law, being the husband of his sister Manata Devi (P.W.7). He has further admitted that his said brother-in-law had purchased some land in his village and although he has denied this suggestion that he wanted to grab the said land of Daroga Singh but his own sister Manata Devi who is the wife of the said Daroga Singh, admitted at paragraph 14 of her deposition that with the consent of all her Naihar people she had executed sale deed with respect to her land and house in favour of her brother. P.W.7 has admitted this fact when this question was put to her by the court:- whether she had sold the lands of her husband to her brother she gave the above reply. This admission of P.W.7 further establishes that her husband Dargo Singh was also on inimical terms with the informant as well as his 10 family members including P.W.7 Manata Devi. All these facts which are on record establish beyond doubt that the informant and his family members had enmity with several persons and not alone with the present appellants. 13. P.W.1 Yogendra Singh is the own brother of the informant. He is also one of the injured. He has supported the prosecution case in his evidence. He has deposed that in the night of occurrence at about 1.30 A.M. he was sleeping at his Darwaja on a cot. Besides him, his brother (Vidya) was also sleeping on another cot with his mother. His sister Manata Devi and his another brother Keshav Singh were sleeping in a Palani at a distance of about 20 to 25 yards. He woke up on hearing the sound of firing. He saw five persons at his Darwaja. They all had surrounded the cot of his brother. His brother and mother also woke up and then Krishna Singh opened fire but no one sustained injuries. Second fire was done by Ram Nath Singh which hit his mother. He again fired which again caused injury to his mother. Rama Singh also opened two firings as a result of which he (P.W.1) sustained injuries at his thigh and on his private part. Then Bishwanath Singh assaulted his brother Vidya Singh (informant) with lathi fitted with Bhala. He has further deposed that Vidya Singh flashed torch and in the torchlight he identified all the accused persons. His mother died at the spot. The injured were treated at Gopalganj Hospital. At paragraph 14 of his cross-examination he has deposed that he was on inimical terms with the appellant Krishna Singh due to difference in money transaction in between them. At paragraph 19 of his cross-examination, this witness has deposed that he was sleeping on the cot just at a distance of 2-3 steps west from her mother and all the five accused persons surrounded the cot of his mother on which his brother was also sleeping, from all sides and then they opened fire. At paragraph 27 he has 11 deposed that the night was dark. At paragraph 32, P.W.1 has deposed that on hearing hulla his sister Manata Devi, and his brother Kesho Singh, fled away from Bathan to Palani of accused Ram Nath which is situated adjacent east to the house of Ram Nath. At paragraph 25 he has admitted that accused Ram Nath Singh had constructed his Palani on 3 ½ dhurs of land belonging to him. He has further deposed that he had asked him to hand over the possession of 3 ½ dhurs of land belonging to him but Ram Nath Singh constructed bungalow over the same about 10-15 years back for which Panchayati was also convened but Ram Nath Singh was not ready to hand over the possession. This goes to show that the informant and his family members were inimical to Ram Nath Singh as according to P.W.2, Ram Nath Singh had grabbed his land. At paragraph 36 this witness has deposed that a 144 Cr.P.C. proceeding was going on between the father of appellant Binda, namely, Abhiraj Singh and his brother Vidya Singh (informant). This admission has come to show that the informant as well as his family members were inimical with another accused, namely, Binda Singh. 14. P.W.2 Kesho Singh is another brother of the informant. He has also come to depose as an eye-witness of the occurrence. According to him, at the time of occurrence he was sleeping at his Bathan situated at a distance of 20 to 25 steps from the place of occurrence. At that place his sister Manata Devi was also sleeping but Manata Devi (P.W.7) has denied this fact. According to the statement of Manata Devi, she was sleeping inside her house. P.W.2 has further deposed that on hearing the sound of explosion of bomb he woke up. His sister Manata Devi also woke up and then both the persons fled away in the Palani of Ram Nath Singh (accused) and from there he saw the entire occurrence. He has further deposed that he saw all the five appellants surrounding his brother Vidya Singh. Ramnath Singh, Krishna Singh and Rama Singh were armed with gun, Bishwanath Singh was armed with Bhala and Binda had Farsa in 12 his hand. His mother and his brothers, namely, Yogendra Singh and Vidya Singh woke up and his mother caught hold of Ram Nath Singh and simultaneously she pushed Vidya Singh who fell down in the corner. He has further deposed that he also heard Ramnath Singh exhorting Krishna Singh to open fire quickly whereupon Krishna Singh opened fire which did not hit anybody then Ram Nath opened fire which hit his mother. Krishna Singh again opened fire which also hit his mother. Thereafter Rama Singh opened fire and due to firing done by Rama Singh, his brother Yogendra (P.W.1) sustained injuries. He has further deposed that Bishwanath Singh assaulted Vidya Singh with lathi portion of Bhala. He has further deposed that he had identified all the accused persons in the torchlight. He has further deposed that after the occurrence all the accused persons fled away then he took his mother and other injured persons to Hospital on a bullock-cart. At paragraph 14 of his cross-examination, this witness has deposed that he has got Pucca house with cemented roof and there are altogether seven rooms in his house with one courtyard. The Darwaja of the house faces north. At paragraph 21 this witness has deposed that when first firing was done at that time his mother and his brother Vidya Singh were sleeping on the same cot and at that time he (P.W.2) was in the Palani of Ram Nath Singh (appellant). He has again stated that the second and third firings were done simultaneously and when second and third firings were done at that time Vidya Singh was very much present near the cot. At paragraph 23 he reiterated that he identified accused persons in the torch light flashed by Vidya Singh. At paragraph 27 of the cross-examination the defence has given suggestion to this witness that there was illicit relation of Vidya Singh with his own sister Manata which was not liked by her mother, and due to that Vidya along with his other brothers killed their mother and thereafter they falsely 13 implicated the appellants. At an appropriate stage, I would like to consider this aspect of the case also. At paragraph 29 this witness has stated that he had seen the entire occurrence from Palani of appellant Ram Nath Singh which is situated at a distance about 50 yards. 15. P.W.7 Manata Devi is the own sister of the informant. She has also deposed like an