IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.1422 of 2007 ================================================ Guddu Rai, Son of Gorakh Rai, resident of Village – Semraon, Police Station –Meerganj, District – Gopalganj. .... .... Appellant. Versus The State of Bihar .... .... Respondent. With Criminal Appeal (DB) No. 1362 of 2007 ================================================ Shambhu Rai, Son of Vakil Rai, resident of village – Gulaura, Police Station – Gopalpur, District – Gopalganj. .... .... Appellant. Versus The State of Bihar .... .... Respondent. With Criminal Appeal (DB) No. 1365 of 2007 ================================================ Dhananjay Rai, Son of late Gorakh Rai, resident of Village – Semraon, Police Station –Kateya, District – Gopalganj. .... .... Appellant. Versus The State of Bihar .... .... Respondent. With Criminal Appeal (DB) No. 1386 of 2007 ================================================ Chandrahash Rai @ Ajit Singh, S/o Raghow Singh, Resident of Village – Koyaladewa, Police Station Phulwariya, District – Gopalganj, .... .... Appellant. Versus The State of Bihar .... .... Respondent. With Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 2 Criminal Appeal (DB) No. 1400 of 2007 ================================================ Om Prakash Rai, Son of Ram Naresh Rai, Resident of Village – Sonhaula Gokhul, Police Station – Gopalpur, District – Gopalganj. .... .... Appellant. Versus The State of Bihar .... .... Respondent. With Criminal Appeal (DB) No. 940 of 2009 ================================================ Gautam Rai S/O Sajawal Rai Vill - Ahirauli Dubauli, P.S. Gopalpur ,Distt – Gopalganj .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ================================================ All the six appeals are against the order of conviction and sentence dated 6.10.2007/9.9.2009 and 12.10.2007/11.9.2009 passed in Sessions Trial No. 40 of 2004/53 of 2005 and 83 of 2006/192 of 2008 by 1st Additional Sessions Judge, Gopalganj and 3rd Additional Sessions Judge, Gogalganj, respectively. ---------------- Appearance : (In CR. APP (DB) No. 1422 of 2007) For the Appellant : Mr Surendra Singh, Sr. Advocate Mr. Sunil Kumar Pathak, Advocate For the Respondent. : Mr. Ashwani Kumar Sinha, APP For the Informant : Mr. Shakil Ahmad Khan, Sr. Advocate Mr. Harendra Prasad Singh, Advocate Mr. Shashi Chandra Pandey, Advocate (In CR. APP (DB) No. 1362 of 2007) For the Appellant : Mr. Kanhaiya Pd. Singh, Sr. Advocate For the Respondent : Mr. Ashwani Kumar Sinha, APP (In CR. APP (DB) No. 1365 of 2007) For the Appellant : Mr. Sudhir Singh, Advocate Mr. Raghwanand, Advocate For the Respondent : Mr. Ashwani Kumar Sinha, APP For the Informant : Mr. Shakil Ahmad Khan, Sr. Advocate Mr. Harendra Prasad Singh, Advocate Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 3 Mr. Shashi Chandra Pandey, Advocate (In CR. APP (DB) No. 1386 of 2007) For the Appellant : Mr. Ashok Kumar Singh, Advocate Mr. Akhilesh Kumar, Advocate For the Respondent : Mr. Ashwani Kumar Sinha, APP For the Informant : Mr. Shakil Ahmad Khan, Sr. Advocate Mr. Harendra Prasad Singh, Advocate Mr. Shashi Chandra Pandey, Advocate (In CR. APP (DB) No. 1400 of 2007) For the Appellant/s : Mr. Kanhaiya Pd. Singh, Sr. Advocate For the Respondent : Mr. Ashwani Kumar Sinha, APP For the Informant : Mr. Shakil Ahmad Khan, Sr. Advocate Mr. Harendra Prasad Singh, Advocate Mr. Shashi Chandra Pandey, Advocate (In CR. APP (DB) No. 940 of 2009) For the Appellant : Mr. Sudhir Singh, Advocate Mr. Raghwanand, Advocate For the Respondent : Mr. Ashwani Kumar Sinha, APP For the Informant : Mr. Shakil Ahmad Khan, Sr. Advocate Mr. Harendra Prasad Singh, Advocate Mr. Shashi Chandra Pandey, Advocate ================================================ CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA & HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR.DINESH KUMAR SINGH, J.) ************ S.K. Sharma & Dinesh Kumar Singh, JJ. The aforesaid appellants, except appellant Gautam Rai, have challenged the judgment and order of conviction and sentence dated 06.10.2007 and 12.10.2007, respectively, passed by learned 1st Additional District & Sessions Judge, Gopalganj in Sessions Trial No. 40 of 2004/53 of 2005, whereas appellant Gautam Rai of Criminal Appeal No. 940 of 2009 has challenged the judgment and order of conviction and sentence dated 9.9.2009 Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 4 and 11.9.2009, respectively, passed by learned 3rd Additional District & Sessions Judge, Gopalganj in Sessions Trial No. 83 of 2006/192 of 2008. The appellant Gautam Rai was separately convicted, since he absconded at the time of defence argument, but his appeal has also been heard along with appeals of other convicts, since the same evidence has been the basis of conviction in both the trials. The five appellants of Sessions Trial No. 40 of 2004/53 of 2005 were convicted under Sections 302/34 & 387/34 of the Indian Penal Code and 27 of the Arms Act and sentenced to undergo R.I. for life with fine of Rs.5,000/- each for charge under Section 302/34 of the IPC, R.I. for Seven years with fine of Rs.1,000/- each for charge under Section 387/34 of the IPC and R.I. for three years with fine of Rs.500/- each for charge under Section 27 of the Arms Act. Appellant Guddu Rai was further convicted under Section 379 of the IPC and sentenced to undergo R.I. for three years with fine of Rs.500/- and in default of making payment of fine, each appellant was directed to suffer simple imprisonment for three months. All the sentences were directed to run concurrently. 2. The appellant Gautam Rai was convicted under Sections 302/34 & 387/34 of the Indian Penal Code and 27 of the Arms Act and sentenced to undergo R.I. for life under Section 302/34 of the IPC, R.I. for Seven years under Section 387/34 of Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 5 the IPC and R.I. for Three years under Section 27 of the Arms Act. All the sentences were directed to run concurrently. 3. The prosecution case emanates from the fard- beyan of Ravindra Pandey (P.W.1) recorded on 13.7.2011 at 7.00 A.M. at Primary Health Centre, Kuchaikot by S.I. Mithilesh Kumar Das, Officer-in-charge of Kuchaikot Police Station (P.W.12), to the effect that apart from performing agricultural work, the informant‟s side used to run a brick kiln. Guddu Rai demanded fifty thousand bricks as extortion four months prior to the occurrence, which was refused by the informant, on which threatening was given by Guddu Rai. But the informant did not convey about the demand to anybody as it would cause fear within his family, but he became cautious. It has been admitted by the informant that there are three licensed arms in the family and on 13.7.2011, at 5.15 A.M., the informant had gone to the brick kiln which was situated 1000 yards north to his house and then at around 5.30 A.M., all of a sudden Guddu Rai, Hriday Rai, Gautam Rai, Dharmanath Rai and 7-8 unknown criminals came with automatic and ultra modern arms, on five motor cycles and conveyed to the informant that as he had not fulfilled the demand of fifty thousand bricks, hence, now he will have to give Rs. Two lacs in addition to the fifty thousand bricks or he should remain prepared to die, on which some hot exchange took place. Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 6 In the meantime, on hearing the alarm of the informant, the father of the informant, Durga Pandey (deceased), came to save informant with the licensed arm of the uncle of the informant. In the meantime, Hriday Rai, Gautam Rai hiding behind the sisam tree and the other accused hiding in the cane field, started firing indiscriminately on the father of the informant, while two unknown criminals caught hold of the informant and then Guddu Rai and Dharmanath Rai fired upon the father of the informant with AK-47 and semi rifle, respectively. On receiving the gun shot injuries the father of the informant fell down and then Guddu Rai came near the father of the informant, while firing upon him and snatched the rifle of the father of the informant and fled away along with his associates. In the meantime, the informant escaped, after getting himself released from the clutches of criminals, but in the course of freeing himself, the informant received injury on being assaulted by the criminals, with the butt of the rifle. The informant did not identify others, but claimed to identify, on seeing them. The criminals were in the age group of 30-35 and were speaking local language and some of them were not armed. After the criminals fled away, the informant brought his father to Primary Health Centre, Kuchaikot with the help of the villagers, where his father was declared dead. The informant also came to know that prior to the occurrence, Guddu Rai had tea in the house Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 7 of Dharmanath Rai and from there itself he traced about the activity of the informant and when they came to know about the informant‟s going to the brick kiln, the accused persons committed the offence. It was claimed by the informant that occurrence was seen by many villagers and by many people around the brick kiln, but these persons did not come forward to say anything, out of fear. The whole occurrence took place within five minutes. It is also claimed by the informant that his father was killed, as he did not pay the extortion money. Gyanendra Pandey (P.W.4) was the attesting witness to the fard-beyan, when ultimately Kuchaikot P.S. Case No. 71 of 2001 was registered on 13.7.2001, at 9.00 A.M. under Sections 384, 386, 387, 302, 379/34 of the Indian Penal Code and 27 of the Arms Act, against four accused namely Guddu Rai, Dharmanath Rai, Hriday Rai and Gautam Rai. 4. The police, after investigation, submitted charge sheet and on cognizance being taken, the case was committed to the Court of Sessions. Charges were framed against all the appellants under Sections 302/34 of the IPC. Appellants Dhananjay Rai, Gautam Rai, Shambhu Rai, Chandrahash Rai @ Ajit Singh and Guddu Rai were further charged under Sections 387/34, 379/34 of the IPC. Appellants Dhananjay Rai, Gautam Rai, Guddu Rai and Om Prakash Rai were further charged under Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 8 Section 27A of the Arms Act. Appellants Shambhu Rai and Chandrahash Rai @ Ajit Singh were further charged under Sections 386/34 of the IPC and 27/34 of the Arms Act and appellant Om Prakash Rai was further charged under Sections 387 & 379 of the IPC. 5. The prosecution, in order to prove its case, examined altogether 14 witnesses, of which P.W. 1 and 2, Rabindra Pandey and Amod Pandey are the sons of the deceased, of which P.W. 2 is a hearsay witness. P.W. 3 is Surendra Singh, though a resident of different village but he is an eye witness to the occurrence and claims his presence at the place of the occurrence. P.W. 4 - Gyanendra Pandey is another son of the deceased and also a hearsay witness. P.W. 5, Lal Babu Pandey is also a resident of different village, but has claimed to be an eye witness. P.W. 6 is Dr. Vishwanath Agrawal, who has conducted the post-mortem examination on the dead body of late Durga Pandey. P.W. 7 - Arbind Dixit is also a resident of different village but claims himself to be the eye witness. P.W. 8 is Rabindra Singh, Judicial Magistrate, who recorded 164 Cr.P.C. statement of P.W. 5 and 7. P.W. 9 - Sunil Kumar Rai is a Clerk in the P.P. office and has proved the handwriting and signature of Wasir Ahmad, in whose handwriting F.I.R. of Kataiya P.S. Case No. 94 of 2001 was registered. He has also identified the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 9 handwriting and signature of the informant Baleshwar Choudhary of Kataiya P.S. Case No. 94 of 2001. P.W. 10 - Yogendra Prasad Singh is the Constable, who has proved the handwriting of Baleshwar Choudhary, the then Officer-in-charge, on Sanha Entry no. 36 dated 3.6.2001 and Sanha entry no. 168 dated 11.6.2001, which have been marked as Ext. 9 & 9/1. P.W. 11 is Hari Kishore Singh, another Clerk in the P.P. office and has proved the signature and handwriting of Baleshwar Choudhary (P.W.14) on the seizure list of Kataiya P.S. Case No. 94 of 2001. P.W. 12 is Mithilesh Kumar Das, the then Officer-in-charge of Kuchaikot Police Station and the I.O. of the case. P.W. 13 is Arjun Yadav, who is the second I.O. of the present case and P.W. 14 is Baleshwar Choudhary, the 3rd I.O. of the present case, who also submitted one of the charge sheets in the case. 6. The defence has not examined any witness. 7. The convicts can be placed in two categories i.e. named and not named. Initially four persons were made accused in the first information report, they were Guddu Rai, Gautam Rai, Dharmanath Rai and Hriday Rai. Out of them only two have been convicted by the impugned judgments, namely, Guddu Rai and Gautam Rai. Rest of the four convicts, namely, Dhananjay Rai, Shambhu Rai, Chandrahash Rai @ Ajit Singh and Om Prakash Rai were not named in the FIR, nor they were ever put on T.I. Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 10 Parade, but they have been convicted along with FIR named accused persons. 8. P.Ws. 1, 3, 5 and 7 have claimed themselves to be the eye witnesses of the occurrence. P.Ws. 2 and 4 though are sons of the deceased but they admit to have reached the place of occurrence, after the occurrence took place. P.W. 2 specifically admits that he came to know about the entire occurrence from P.W. 1. Though P.W. 4 claims to have seen the accused persons fleeing away from the place of occurrence, but his claim becomes doubtful from his own admission, in para 1 of his evidence, that he was sleeping in his house at the time of the occurrence and on the gun shot firing he woke up and went to the place of the occurrence, which according to him was about 300 yards north to his house and as per the evidence of P.W. 1, the entire occurrence took place within five minutes and immediately after the occurrence, the accused persons fled away from the place of occurrence on motor cycle. Hence, P.W. 4‟s claim, to have seen the accused persons fleeing away from the scene, appears to be doubtful. Hence, we are not deliberating much upon the evidence of P.Ws. 2 and 4. 9. So far P.Ws. 3, 5 and 7 are concerned, they claimed themselves to be the eye witnesses to the occurrence. P.W. 5 has claimed to have gone to the brick kiln of the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 11 informant (P.W. 1) to collect the consideration amount for the soil supplied by him at the brick kiln, whereas P.W. 7 claims himself to have gone at the brick kiln to collect the burnt coal from the brick kiln. All these three witnesses have claimed that they were talking to the informant when the accused persons came, being variously armed, when Guddu Rai first threatened P.W. 1 for not supplying fifty thousand bricks and demanded Rs. Two lacs. along with fifty thousand bricks and threatened P.W.1 to get ready for being killed, if the demand would not be fulfilled. In the meantime, father of P.W. 1 (deceased), heard about the occurrence, on which he proceeded for the brick kiln from his house, along with the licensed rifle of his brother and resorted to firing. P.W. 3, in para 4 of his evidence, has admitted that his house is 2 k.m. west to the brick kiln. Similarly P.W. 5, in para 5, has admitted the distance of his house to be 2 k.m. from the brick kiln and P.W. 7, in para 28, has admitted that the distance of the brick kiln of P.W. 1 is about 10 miles from his village. The non- examination of any independent witness in the background of the examination of P.Ws. 3, 5 and 7, who were non-residents of the village and who claimed themselves to be present at 5.30 in the morning, at the place of the occurrence, prima facie creates doubt about their claim. This doubt further gets consolidated from the own admissions of these witnesses. Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 12 10. Firstly, all three witnesses have claimed that they were talking to P.W. 1 at the brick kiln, when the accused persons arrived, but in the first information report their names have not been mentioned. Though, it is a trite law that the FIR cannot stipulate everything, but non-mentioning of the basic elements appertaining to the occurrence, creates doubt about the bonafide of the prosecution case. If the extortion demand was being made from the informant while he was talking with P.Ws. 3, 5 and 7, then the non-mentioning of their names in the FIR, appears questionable, as they have not even been made witness to the fard-beyan, while, P.W. 4 Gyanendra Pandey, has been made witness in the FIR, who admits that he reached the place of the occurrence subsequently, after hearing the sound of gun firing. 11. Secondly, P.Ws. 3, 5 and 7, have consistently admitted that their 161 Cr.P.C. statements were recorded after three days and 164 Cr.P.C. statements after one and half months. Hence, the claim of the appellants, that the presence of such P.Ws. at the place of occurrence is doubtful, appears to have substance, in view of the fact that the names of these P.Ws. are neither mentioned in the FIR, nor in the inquest report, nor they have been cited as seizure list witnesses. Moreover, their 161 Cr.P.C. statements have been taken after three days of the occurrence, coupled with the claim that immediately after the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 13 occurrence they went to their village, which appears to be very absurd. Their conduct appears not to be only unreasonable but highly improbable. Hence, the credibility of these witnesses with regard to their claim of being present at the place of occurrence, is definitely questionable. 12. Moreover, the presence of P.Ws. 3, 5 and 7, at the place of occurrence also becomes doubtful, in the light fact that it has nowhere been mentioned or stated as to what was the reaction of P.Ws. 3 and 7, when the occurrence took place, as it would have been very natural and probable that P.Ws. 3, 5 and 7 would also have been captivated or caught hold of by the accused persons, when the occurrence took place. The silence of P.Ws. 1, 3 and 7, on this aspect creates doubt with regard to their presence at the place of occurrence along with P.W. 5 and it appears that the names of P.Ws. 3, 5 and 7 has only been added as a witness for proving the case against the accused. Though, P.W. 5 has stated in his deposition, that he along with P.Ws. 3 and 7 stopped back and witnessed the occurrence, which seems very absurd and improbable. 13. P.W. 1, being the son of the deceased is the informant of the case, who claims that Guddu Rai and others, demanded fifty thousand bricks, as extortion, four months prior to the occurrence, which was refused by the informant, but the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 14 informant not only admits in his fard-beyan but also in his evidence that he neither lodged any case, nor any complaint before any authority about the demand of extortion. On the date of occurrence on 13.7.2001, this witness went to his brick kiln from his house at about 5.15 A.M., which is situated 1000 yards north to his house and at about 5.30 A.M. Guddu Rai, Gautam Rai, Dharmanath Rai, Hriday Rai and 7-8 unknown criminals came along with automatic and ultra modern arms on five motor cycles and conveyed the informant that, by not conceding to their demand of fifty thousand bricks, he will now have to pay Rs. Two lacs in cash also, or else he should be ready to be killed. On hearing the alarm, the father of the informant, deceased Durga Pandey, in order to save the informant ran along with the licensed rifle of the uncle of the informant and when he was 200 yards away from the brick kiln, Hriday Rai and Gautam Rai sitting near the Sisam tree and other accused, hiding in the cane fields resorted to indiscriminate firing. Two accused persons caught hold of the informant. It is also claimed that Guddu Rai and Dharmanath Rai went to the cane field and fired from AK-47 and semi automatic rifle, respectively. The firing made by the accused persons hit the father of the informant, when after few minutes the father of the informant died and after being released by the criminals the informant reached near his father and found Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 15 him dead. As per the fard-beyan of P.W. 1, it was recorded on 13.7.2011 at Primary Health Centre, Kuchaikot at about 7.00 A.M. but P.W. 1, in para 1 of his evidence, has stated that the victim was taken to Primary Health Centre, Kuchaikot, where he was declared dead and thereafter, the dead body was taken to the police station, where the informant‟s statement was recorded and then he signed the papers and his brother (P.W. 4) also signed as a witness on the fard-beyan. P.W. 1 has further improved his version in para 46 of his evidence appearing at page 32 of the paper book, that he took his father‟s dead body, on his own, to the police station, where his statement was first taken in presence of several witnesses and thereafter the dead body was sent by police officer for conducting post-mortem. This evidence of P.W. 1 gets contradicted with the evidence of the I.O. (P.W. 12), that the fard-beyan was recorded at the Primary Health Centre. This inconsistency between the fard-beyan and the evidence of P.W. 1 vis-à-vis P.W. 12, not only contradicts the evidence of P.W. 1, who is virtually the sole eye witness, but it also creates doubt about the credibility of P.W. 1 as an eye witness to the occurrence. 14. So far as the manner of the occurrence is concerned, it is the consistent evidence of P.Ws. 1, 3, 5 and 7 that at the first instance four FIR named accused persons and 7-8 Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 16 unknown persons came to the brick kiln of the informant and threatened for not supplying fifty thousand bricks and further demanded fifty thousand bricks along with Rs. Two lacs, otherwise threatened to get ready for being killed and when the father of the informant heard about the occurrence, then he came from his house, armed with rifle, which as per the fard-beyan was situated 1000 yards south from the brick kiln, and he started firing in order to save P.W.1, but when he was about 200 yards from the brick kiln, then Hriday Rai and Gautam Rai, hiding behind the sisam tree and other accused persons from the cane field, began firing indiscriminately. No doubt, the informant alleged that Guddu Rai was armed with AK-47 and Dharmanath Rai and others were armed with semi automatic rifle and that the father of the informant received 3-4 fire arm injury, but from the medical evidence of P.W. 6 it appears that only one injury was found, which was 8” x 2 ½” x extending from upper part and right side of face including right ear, right side of neck up to right shoulder, which is was described in the following words:- “Fire arm lacerated wound with inverted and blacken margin of size 8” x