CRIMINAL APPEAL (DB) No.125 OF 2001 With CRIMINAL APPEAL (DB) No. 365 OF 2003 With CRIMINAL APPEAL (DB) No. 373 OF 2003 ***** Against the judgment of conviction and order of sentence dated 16th January, 2001 passed in Sessions Trial No. 236 of 1998 / 34 of 1998 by Sri Om Prakash Pandey, 3rd Additional Sessions Judge, Nawadah, and judgment of conviction and order of sentence dated 27th June and 28th June, 2003 passed in Sessions Trial No. 256 of 2002 / 288 of 1997 by Sri Kamla Pd. Sinha, Presiding Officer, Additional Court of sessions, Fast Track, Nawadah respectively. ********** KAPIL MANJHI SON OF FAGUNI MANJHI, RESIDENT OF VILLAGE- SHRI RAMPUR, TOLA MAULA NAGAR, P.S.- MISUA, DISTRICT- NAWADAH …………………… … … … … ……………………..…………… …...........APPELLANT ( IN Cr. Appeal No. 125 of 2001) RAMBILASH MANJHI SON OF SAMAN MANJHI, RESIDENT OF VILLAGE- MAULANAGAR, P.S.- HASUA, DISTRICT- NAWADAH ………………………. … … .. … ………………………………………………….APPELLANT (IN Cr. Appeal No. 365 of 2003) 1. CHANDRA MANJHI SON OF DEOKI MANJHI 2. DEOKI MANJHI SON OF LATE KOMAL MANJHI BOTH RESIDENT OF VILLAGE- MAULA NAGAR, P.S.- HASUA, DISTRICT- NAWADA … ……………………………………………APPELLANTS (IN Cr. Appeal No. 373 of 2003) Versus STATE OF BIHAR ………………….RESPONDENT (IN ALL THE CRIMINAL APPEALS) **************** For the Appellant (Cr. Appl. 125/01) :- Mr. Nageshwar Pd. Sinha, Advocate For the Appellant (Cr. Appl. 365/03) (Cr. Appl. 373/03) :- Mr. Durgesh Nandan, Advocate Mr. Hirday Pd. Singh, Advocate Mr. Ram Nath Saran, Advocate Mr. Binod Kr. Yadav, Advocate Mr. Sudhansu Kumar, Advocate For the State (IN ALL THE APPEALS) :- Mr. Ashwani Kumar Sinha, Advocate **************************** 2 P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S. K. Sharma & D. K. Singh, JJ. Though the appellants of above noted appeals have been convicted and sentenced by two different trials and by two different Presiding Officers but the occurrence was one, so the above noted appeals have been heard together and are being disposed of by this common judgment. 2. The appellant Kapil Manjhi of Cr. Appeal No. 125 of 2001 was convicted on 16th January, 2001 in Sessions Trial No. 236 of 1998 / 34 of 1998 by the learned 3rd Additional Sessions Judge, Nawadah for offences under Sections 302 read with Section 34 and 449 of the Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 34 of the Indian Penal Code and further he has been sentenced to undergo rigorous imprisonment for seven years under Section 449 of the Indian Penal Code. Both the sentences were ordered to run concurrently. Appellants Rambilash Manjhi (Cr. Appl. No. 265 of 2003), Chandra Manjhi and Deoki Manjhi (Cr. Appl. No. 365 of 2003) have been convicted on 27th June, 2003 in Sessions Trial No. 256 of 2002 / 288 of 1997 by the Presiding Officer, Additional Court of Sessions, Fast Track Court, Nawadah for 3 offence under Section 302 of the Indian Penal Code and they have been sentenced on 28th June, 2003 to undergo rigorous imprisonment for life, appellant Rambilash Manjhi was further convicted under Sections 354 and 323 of the Indian Penal Code and has been further sentenced to undergo rigorous imprisonment for one year under Section 354 of the Indian Penal Code and further for a period of six months under Section 323 of the Indian Penal Code. It is ordered that sentences of Rambilash Manjhi under Sections 354 and 323 of the Indian Penal Code will run consequently i.e. after expiry of the period of sentence under Section 302 of the Indian Penal Code. 3. One occurrence has led to recording of a fardbeyan of Saro Devi on 8.9.1997 in village Srirampur Tola Maula Nagar in which she has stated that on the preceding night, she was sleeping inside her house. Her husband was sleeping in another portion of the house. By about mid night Kari Devi wife of Raj Kumar Manjhi cried. The informant and her husband rushed and saw appellant Rambilash Manjhi dragging Kari Devi forcibly with evil intention which was protested by Raj Kumar Manjhi on which Rambilash Manjhi gave a blow of Shaif on his head. On protest of Sakunma Devi, the mother of Raj Kumar Manjhi, she was assaulted by Saif on account of which her finger was cut and she was badly injured. When the people woke up then Rambilash Manjhi escaped. Thereafter, mother of Raj Kumar Manjhi went to village Srirampur and brought a rickshaw and 4 Raj Kumar Manjhi and his mother went to Hisua for treatment. After some time Rambilash Manjhi, Kapil Manjhi, Deoki Manhi and Chander Manjhi came. They were having traditional weapons like Saif and Garansa. The informant’s husband Bhola Manjhi was dragged out from the house and he was mercilessly assaulted by Saif and Garansa as a result thereof he received injuries on his neck, shoulder and chest. On account of that injuries received by him he succumbed. The motive of the occurrence was that Rambilash Manjhi had tried to outrage the modesty of wife of Raj Kumar Manjhi which was protested. The fardbeyan resulted in Hisua P.S. Case No. 31 of 1997 dated 8.5.1997 under Sections 456, 302, 324/34 of the Indian Penal Code and the investigation was taken up. The Sub-Inspector of Police after investigation submitted Chargesheet and cognizance was taken. The case was committed to the Court of Sessions where the charges were framed and explained to the accused persons to which they pleaded not guilty and claimed to be tried. So trial proceeded. 4. One occurrence has led to initiation of two sets of trial in which the witnesses examined are more or less identical but they were examined on different dates. Appellant Kapil Manjhi has been charged on 6.3.1999 under Section 302 read with Section 34 of the Indian Penal Code, Sections 449 and 450 of the Indian Penal Code. Appellant Rambilash Manjhi was first charged on 20.1.1998 under Sections 354/323 of the Indian 5 Penal Code. Appellants Rambilash Manjh, Deoki Manjhi and Chander Manjhi were charged under Sections 302 and 456 of the Indian Penal Code. On 16.11.1998 charges were amended. Appellant Rambilash Manjhi was charged under Section 307 of the Indian Penal Code and further appellants Rambilash Manjhi, Deoki Manjhi and Chander Manjhi were charged under Sections 302/34 of the Indian Penal Code. The charges were explained to them to which they pleased not guilty and claimed to be tried. 5. Trial of appellant Kapil Manjhi was separated and in that case witnesses examined were Sakunma Devi (PW 1), Raj Kumar Manjhi (PW 2), Kailash Manjhi (PW 3), Vijay Manjhi (PW 4), Kari Devi (PW 5), Sari Devi (PW 6), Dr.Mukti Nath Singh, Civil Assistant Surgeon (PW 7) and Rakesh Raman (PW 8). With regard to other appellants, another trial has proceeded and in that case the witnesses examined were Saro Devi (PW 1), Sakunma Devi (PW 2), Vijay Manjhi (PW 3), Kari Devi (PW 4), Raj Kumar Manjhi (PW 5), Upendra Manjhi (PW 6), Kailash Manjhi (PW 7), Chandradeo Chaudhary (PW 8), Dr. Sandheya Prasad (PW 9), Rakesh Raman (PW 10) and Dr. Mukti Nath Singh, Civil Assistant Surgeon (PW 11). On behalf of defence one witness namely Bhagwan Singh was examined as DW 1. 6. The prosecution has exhibited post mortem report (Ext. 1), fard beyan (Ext. 2) and inquest report (Ext. 3) in Sessions Trial No. 236 of 98 / 34 of 1998. In Sessions Trial 27 of 1997 / 288 of 1997 injury report of Raj Kumar Manjhi (Ext.1), 6 injury report of Sakunma Devi (Ext. 1/1), fardbeyan (Ext.2), endorsement on fardbeyan (Ext.3), formal FIR (Ext.4), inquest report (Ext.5), injury reports of Raj Kumar Manjhi and Sakunma Devi (Ext. 6/1) and post mortem report of Bhola Manjhi (Ext.7) were exhibited. 7. Both the trial courts after taking into consideration the entire evidences on record, found the appellants guilty and sentenced them, as stated above. 8. This court has to see whether the prosecution was able to prove the charges in both the trials against the appellants beyond the shadow of all reasonable doubts or not. 9. Saro Devi is the informant. She has stated in her evidence in Sessions Trial No. 236 of 98 / 34 of 1998 that in the mid-night of Wednesday/Thursday she was sleeping in her house then her cousin daughter-in-law Kari Devi wife of Raj Kumar Manjhi cried for rescue. She woke up. At that very time, she along with her husband Bhola Manjhi, her son Vijay Manjhi, Kailash Manjhi, Gotini Sakunma Devi and her son Raj Kumar Manjhi and others rushed and saw Rambilash Manjhi was trying to drag Kari Devi which was protested then Rambilash Manjhi assaulted upon the head of Raj Kumar Manjhi by Saif which caused injury on his head. Sakunma Devi tried to save her son then Rambilash Manjhi assaulted her as a result thereof she has lost her ring finger, thereafter, Rambilash Manjhi escaped after leaving Kari Devi. This is the first part of the occurrence. The 7 second part of the occurrence as alleged by her is that after the initial occurrence she came in the process of taking rest then at that very time Rambilash Manjhi with Saif, Kapil Manjhi, Chander Manjhi and Deoki Manjhi with Garansa entered into her house and they started abusing her husband. They took her husband away from the house. He was carried on the road where he was assaulted by saif and Garansa as a result thereof her husband died. She and her son witnessed the occurrence. The motive was that Rambilash Manjhi was scolded for carrying of Kari Devi by her husband and so the informant’s husband was killed. The occurrence was of the night. The informant went to hospital and told the factum of murder of her husband to her Gotini Sakunma Devi, Raj Kumar Manjhi and Kari Devi. In the hospital the Officer- In- charge of the police station came and they asked the informant to return to her house and on the next morning the Officer- In- Charge came and recorded her statement. Her fardbeyan was recorded in the village in which she has stated that when Rambilash Manjhi was protested against dragging away Kari Devi then Raj Kumar Manjhi was assaulted by Rambilash Manjhi with Saif and mother of Raj Kumar Manjhi, namely, Sakunma Devi was assaulted by Saif as a result thereof she had to lose her ring finger. Thereafter, they went for treatment and in the mean time the appellants came with Saif and Gransa and took out her husband from the house and due to indiscriminate assault by Saif and Garansa her 8 husband died. 10. In Sessions Trial No. 27 of 1997/ 288 of 1997 Saro Devi was examined as PW 1 wherein she has stated that the accused persons came and destroyed the tiles of roof and at that time appellant Kapil Manjhi was having Garansa, Bilash was having Farsa, Chander Manhi was having Saif and Deoki Manjhi was having lathi in their hands. Fardbeyan of the informant is dated 8.5.1997 and her evidence in Sessions Trial No. 236 of 1998 /34 of 1998 was recorded on 4th December 1999 and in Sessions Trial No. 27 of 1997/ 288 of 1997 her evidence was recorded on 28.5.1998. The informant has tried to support the charge that on the date and time of occurrence the appellants came with traditional weapons and due to indiscriminate assault her husband was killed. But there are certain contradictions in her evidence because in Sessions Trial No. 236 of 1998 / 34 of 1998 she has stated that Rambilash Manjhi came with Saif whereas Kapil Manjhi, Chander Manjhi and Deoki Manjhi came with Garansa. Her evidence in Sessions Trial No. 27 of 1997/288 of 1997 she has stated that Kapil Manjhi was having Garansa whereas Bilash Manjhi was having Farsa. Chander Manjhi was having Saif and Deoki Manjhi was having lathi. There are two types of evidence of the same witness and the weapons of the appellants have been changed in both the evidences. In one of the evidences she has stated that the accused persons have destroyed the tiles of her roof but 9 that evidence is missing in another Sessions Trial. 11. According to the informant, the occurrence has been witnessed by three witnesses they are; PW 3 Kailash Manjhi, PW 4 Vijay Manjhi and the informant PW 5 in Sessions Trial No. 236 of 1998 / 34 of 1998. PW 3 Kailash Manjhi has stated that in the night of Wednesday/Thursday he was sleeping inside his house. He heard some cry from the house of Raj Kumar Manjhi. He went there and saw the head of Raj Kumar Manjhi broken and finger of Sakunma Devi was found cut. On query of this witness Raj Kumar Manjhi and Sakunma Devi told that they have been injured by the appellant Rambilash Manjhi with the assistance of Saif. Raj Kumar Manjhi further told that Bilash was trying to take away Kari Devi when he was restrained then he has caused such injuries. Thereafter, Sakunma Devi and Raj Kumar Manjhi were brought to Hisua for treatment. After the injured went to hospital then after sometimes Rambilash Manjhi, Kapil Manhi, Deoki Manjhi and Chander Manjhi went to the house of this witness. At that time Rambilash Manjhi was having Saif and others were having Garansa. All the four appellants pounced upon the father of this witness and dragged him towards south and he was carried on the road where he was murdered. According to him, Rambilash assaulted his father by Saif while others have assaulted him by Garansa. In cross-examination he stated that while his father was being carried away then this witness was hided by his mother, so he 10 was not over powered by the accused persons. According to this witness, the police came and seized the blood. This witness is witness no. 7 in Sessions Trial No. 27 of 1997/288 of 1997 in which he has stated that when he went to the house of Raj Kumar Manjhi then he found Raj Kumar Manjhi and Sakunma Devi injured and thereafter, he came to know that Rambilash Manjhi has caused injury by Saif. Rambilash Manjhi has committed high handedness with Raj Kumar Manjhi but the Court wanted to know that what type of high handedness was done then this witness has expressed his ignorance. In cross- examination this witness has stated that the occurrence was of midnight. He has not visited the place where his father was taken away because he was unwell. On some queries of the defence this witness has kept mum and this has been noted by the Presiding Officer. 12. It is stated that it was the dark night when the alleged occurrence took place. PW 4 Vijay Manjhi of Sessions Trial No. 236 of 1998 / 34 of 1998 has supported the deposition of the informant and Kailash Manjhi. He stated about the assault. It is stated that it was a dark night and there was no source of light at any place. The same witness is PW 3 in Sessions Trial No. 27 of 1997/288 of 1997 wherein he has stated that he went to the house of Raj Kumar Manjhi and found his head broken and finger of Sakunma Devi was found cut. This witness has stated that his father was assaulted by Saif, 11 Bhala and LATHI. Other witnesses have not stated about the factum of lathi but this witness has introduced this as another means of weapon of assault. He has not seen the assault. He has stated that his father was assaulted by lathi by Deoki Manjhi whereas assault by other was by Saif and Garansa. According to him, that time was 1.10 AM. The occurrence was of night which was dark. 13. Kari Devi PW 5 of Sessions Trial No. 236 of 1998 /34 of 1998 has stated that Bilash was dragging her out of house. She cried and thereafter, her husband and other family members woke up and they tried to rescue her. Thereafter, Rambilash Manjhi assaulted her husband by Saif which caused injury on his head. Rambilash Manjhi also assaulted her mother- in-law as a result of which her finger was cut. This witness has been examined as PW 4 in Sessions Trial No. 27 of 1997 / 288 of 1997 in which she has stated that accused Rambilash is her nephew. From the evidence of this witness it appears that she had gone to the police station where she has put her LTI, meaning thereby she has given some information to the police which was incorporating in writing. She stayed at the police station for three days and came to know in the hospital regarding murder of Bhola Manjhi. This witness has received injury on her neck. 14. Other occular witnesses are not very important. Dr. Mukti Nath Singh PW 7 of Sessions Trial No. 236 of 1998 / 12 34 of 1998 is witness no. 11 of Sessions Trial No. 27 of 1997 / 288 of 1997. He has conducted autopsy of deceased Bhola Manjhi at 4 P.M. on 8.5.1997 and found the following ante- mortem injuries: (1) Incised wound in the left side of the neck, cutting skin, Fascia, muscles, vessels and trachea etc. measuring 6” x 1” x 1/2” (2) Incised wound on the back of left shoulder 5” x 1/2” muscle deep (3) Incised wound above injury no. 2 of size 1” x 1/3” x 1/2”. (4) Incised wound on the right side of the chest laterally 4” x 1/3” x bone deep. On dissection- All viscera of the body found intact and pale. All chambers of the heart found empty, stomach contained two ounce of fluid material and the bladder was empty. All the injuries were ante mortem in nature and caused by sharp cutting substance such as Saif and Garansa. The cause of death was shock and haemorrhage due to aforementioned injuries. Time elapsed since death was 6 to 36 hours. 15. PW 9 Sandhya Prasad- the Medical Officer in Sessions Trial No. 27 of 1997 / 228 of 1997 was posted in Hisua as Medical officer on 8.5.1997. On that date he examined Raj Kumar Manjhi at about 4.20 AM and found following lacerated wound on mid parietal region of scalp 1 1/2” x 1/4” x 1/4”. It was 13 caused by hard and blunt substance and simple in nature caused within 12 hours. On the same day at 4.25 AM he examined Sakunma Devi and found (i) swelling on mid parietal region of scalp, (ii) lacerated wound on dorsal surface of terminal phalange of left middle finger 1” x 1/4” x 1/4”, (iii) Abrasion above upper lips 1/4” x 1/4” and (iv) Abrasion on nose 1/4” x 1/4’. No incised wound was found on Sakunma Devi according to the evidence of the doctor. 16. The prosecution case is consistent that the injury of Sakunma Devi was caused on account of attack by Saif which is a sharp cutting weapon. The witnesses have stated that the finger of Sakunma Devi was cut on account of the attack of Saif but the doctor who has examined Sakunma Devi found that there was no incised wound and her injuries were caused by hard and blunt substance not by sharp cutting weapon which is attributed in the first information report. 17. Learned counsel appearing on behalf of the appellants submitted that there is no evidence in this case at all against the accused persons. So the accused persons should have been released under the provision of Section 232 of the Code of Criminal Procedure. It has been submitted that the charges were framed on 20.1.1998 but subsequently charges were amended on 16.11.1998. By that time all the witnesses were examined. The defence was not afforded an opportunity to cross-examine the witnesses after amendment of the charges. 14 18. We have perused the records and it appears that after amendment of the charge no witness was examined which is a vital lacuna in the prosecution. The prosecution has not been able to meet the reply as to why the witnesses were not examined after the charges were altered. Once charge was framed or altered then the witness must be examined, so non- examination of the witness after amendment of the charge makes the evidence of such witness redundant. 19. Some of the witnesses have stated that blood was seized from the place of occurrence but the Investigating Officer in his evidence has denied that any blood was seized from the place of occurrence. 20. One witness has stated that the police came in the night itself and her LTI was taken upon her statement but from the fardbeyan it appears that the police has come to the place of occurrence in the next morning and informant’s fardbeyan was recorded so it is difficult to rely on the testimony of that witness who has stated that the fardbeyan was recorded in the hospital itself in the night. 21. Learned APP submitted that the three witnesses have supported the prosecution case that Bhola Manjhi was done to death by Kapil Manjhi and his three other associates and there is consistent evidence, so the judgments of conviction and sentence require no interference by this Court. 22. On the other hand, learned counsel for the 15 appellants argued that the deceased Bhola Manjhi was the member of the extremist organization and he has been done away in rivalry of two groups of the extremists. Saro Devi the informant had been to Hisua but it is not clear that what prevented her from reporting the matter in the night itself. So it appears that the original information lodged by Saro Devi might have been changed by another report prepared after Bhola Manjhi was killed because the occurrence is in two parts. It is also argued that the occurrence is of a village but there is no independent witness. One witness examined in another trial has given a lot of contradictory evidence and the court has erred by relying upon the testimony of that witness. According to the prosecution, it was a dark night and no source of light was there, so it is difficult to identify the accused. There was some possibility of mistaken identity. 23. If the entire evidence sum-up then it appears that there was dark night which was stated by all the witnesses. The witnesses have also stated that at that time there was no source of light. It will be very unsafe to rely about the identity of the accused persons in the mid night without any source of light. The occurrence is of a village and only family members have been examined. No doubt even upon the statement of the family members the order of conviction can be passed but when the prosecution case is that a number of persons were present then their non-examination creates doubt on the prosecution version. 16 One witness has stated that her statement was given in the night but from the fardbeyan it appears that her statement was recorded in the next morning. 24. The witnesses have attributed different weapons to the accused persons when they were examined at different stages. It creates doubt upon their depositions because if a person has witnessed the occurrence then he will definitely say as to what weapon a person was holding at the time of assault. It is the case of the prosecution that the witnesses have seen some persons holding weapons of what type but witnesses have contradicted themselves on this score also. From the place of occurrence no blood was seized. Though the witnesses have stated that the blood was seized. There is no explanation of the prosecution as to why the blood was not seized. The most important lacuna of the case is that the defence