CRIMINAL APPEAL No.358 OF 1988 (DB) Against the judgment of conviction and order of sentence dated 24th June, 1988 passed in Sessions Trial No. 131 of 1980 by Sri Laxman Uraon, the 5th Additional Sessions Judge, Rohtas ******** 1. SHEOPUJAN RAM CHAMAR SON OF BIGAN RAM CHAMAR 2. SARJOO RAM CHAMAR SON OF BHAGARATI RAM CHAMAR 3. SOMARU RAM CHAMAR SON OF BIGAN RAM CHAMAR 4. GANGA RAM CHAMAR SON OF SARJOO RAM CHAMAR 5. TULSI RAM CHAMAR SON OF BHAGARATHI RAM CHAMAR ALL RESIDENT OF SIARUAN, P.S.- RAMGARH, DISTRICT- ROHTAS…………………………………………………….APPELLANTS Versus THE STATE OF BIHAR …………………………..RESPONDENT ************** For the Appellants:-Mr. Krishna Prasad Singh, Sr. Advocate Mr. Bhaskar Shankar, Advocate Mr. Rakesh Singh, Advocate For the State :-Mrs. Shashi Bala Verma, APP ************************ 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. The above named five appellants through this appeal have assailed the judgment of conviction and order of sentence dated 24th June, 1988 passed by the learned 5th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 131 of 1980 whereby all of them have been found guilty and convicted for the offences punishable under Sections 302/149 and 364 of the Indian Penal Code and were sentenced to undergo 2 Imprisonment for life and Rigorous Imprisonment for 10 years each, respectively. Appellant no. 1 Sheopujan Ram Chamar was also held guilty and convicted for the offence punishable under Section 27 of the Arms Act and sentenced to undergo Rigorous Imprisonment for three years. 2. Though six accused persons were put on trial but one of the accused Jamuna Ram Chamar was acquitted. 3. The prosecution case, initiated on the fard-beyan of Bira Chamar (PW 8) recorded on 2.4.1979 at the Ramgarh Police Station in presence of Nawrang Dushad (not examined), is to the effect that on 1.4.1979 at mid night the informant while sleeping, heard the screams of his brother’s wife (PW 3) that few persons are forcibly taking away Kumar Chamar (deceased), on which the informant came out and saw that his brother Kumar Chamar (deceased) was being carried away by Bhukhan Chamar @ Mukhan (dead), Tulsi Chamar (appellant no. 5), Sheopujan Chamar (appellant no. 1), Ganga Chamar (appellant no. 4), Jamuna Chamar (acquitted), Sarjoo Ram Chamar (appellant no. 2), Somaru Ram Chamar (appellant No. 3). They took the deceased in the house of Tulsi Chamar (appellant no. 5). The victim was raising alarm for saving his life on which the villagers Sheo Janam Chamar (PW 5), Mahim Chamar (PW 6), Sheo Pujan Ram (PW 9), Parsuram Harijan (PW 10) and Babu Lal Chamar (PW 7) also saw the victim being forcibly carried away by the accused persons. It is further alleged that the victim’s wife, PW 3 3 conveyed to the informant that when she resisted, Mukham Chamar (died during trial) assaulted on her head, as a result of which she fell down on receiving injury. It is further alleged that on alarm, the villagers gathered and tried to take out the victim from the house of Tulsi Chamar upon which Mukham Chamar (dead) and Sheo Pujan Chamar (appellant no. 1) started firing from the country made gun as a result of which villagers got scared and the victim could not be rescued from the house of Tulsi. It is alleged that Tulsi, Sarjoo, Somaru and Jamuna were armed with Garansa. It is stated by the informant that since the villagers and the informant was guarding the house of Tulsi, hence he could not reach the police station in the night. The reason behind the occurrence, as has been alleged by the informant in the First Information Report is that, long ago Bhagirath Chamar was killed in which the victim Kumar Chamar was accused and was sent to jail also and since then the enmity has been continuing between the parties. The other point of enmity canvassed by the informant is that in the campus of the informant there was a Neem tree which was cut by the accused persons for which there was dispute which aggravated the enmity between the parties. Hence, the informant claimed that due to the said enmity, the victim was kidnapped by the accused persons with an intention to kill him. On the basis of aforesaid statement of the informant, Ramgarh P.S. Case No. 2 of 1979 was registered on 2.4.1979 at 8.30 AM under Sections 147, 148, 149, 323 and 4 364 of the Indian Penal Code. On completion of investigation the police submitted charge sheet and consequently cognizance was taken and the case was committed to the Court of Sessions where charges were framed against all six accused persons under Section 302 read with Sections 149 and 364 of the Indian Penal Code and explained to them, to which they pleaded not guilty and claimed to be tried. Charges were also framed against Mukham Chamar (dead), Sheo Pujan Chamar (appellant no. 1) under Section 27 of the Arms Act. Further Mukham Chamar (since dead) was further charged under Section 324 of the Indian Penal Code. 4. The prosecution, in order to prove the charges, examined 10 witnesses, of which PW 1, Dr. B. D. Bhagat, has conducted post mortem on the dead body of the deceased Kumar Chamar, PW 2 Sukham Singh is a formal witness and has proved the FIR (Ext. 2). PW 3, Sukhmania is the wife of the deceased and she claims to be the eye witness. PW 4, Ram Raj Ram is the son of the deceased and was seven years of age at the time of occurrence. PW 5- Sheo Janam Chamar and PW 6- Mohim Chamar are co-villagers and are own brothers and they also claim themselves to be the eye witness to the occurrence. PWs 7 and 8 are Babulal Chamar and Bira Chamar and are the own brothers of the deceased, whereas PW 8 is the informant and both have claimed themselves to be the eye witness to the occurrence. PW 9 is Sheo Pujan Ram and PW 10 is Parshuram Harijan- both are 5 co-villagers and have been declared hostile by the prosecution. 5. The defence has also examined 7 witnesses. They are Bhuwan Dushad (DW 1), Nathuni Sai (DW 2), L. B. Ram (DW 3), Raghubans Tiwary (DW 4), Ramayan Ram (DW 5), Girish Narayan Upadhyaya (DW 6) and Dr. Basant Kumar (DW 7) and all of them have been examined to prove ali-bi of Jamuna Chamar who has been acquitted. Sheo Balak Lal, the Advocate Clerk has been examined as a Court witness to prove the seizure list and the signature of Sri B. D. Singh, the then Officer Incharge of Ramgarh Police Station, as Ext. 4 and 4/1. This court witness has also proved the carbon copy of inquest report (Ext. 5) and the respective signatures of the police officer and the witnesses. The Investigating Officer has not been examined in this case. 6. Considering the evidence on record, the learned Trial Court held five accused persons guilty, out of six and passed the order of conviction accordingly. 7. Now this Court has to consider whether the prosecution has been able to prove the manner of occurrence as alleged by the prosecution beyond the shadow of all reasonable doubts or on the basis of the evidences available on record, whether the judgment and order of conviction and sentence can be up-held. 8. The death of Kumar Chamar is an admitted fact. The only question which is to be determined is whether he has been killed in the manner as alleged by the prosecution or not. So far 6 as the manner of occurrence is concerned, we have to be cautious while screening the evidence of the witnesses because most of the witnesses, on which the prosecution has relied are interested witnesses, as PW 3 is the wife of the deceased, PW 4 was a minor at the time of the occurrence and is the son of the deceased. PWs 7 and 8 are the own brothers of the deceased. Though there were four independent witnesses who are co-villagers, namely, PWs 5, 6, 9 and 10, out of which PWs 9 and 10 have been declared hostile. 9. So far as the manner of occurrence is concerned, it appears that the informant, PW 8, came outside on the alarm being raised by PW 3, the wife of the deceased, and saw the victim being taken away by several persons including the appellants and he also came to know about the occurrence through PW 3. 10. The occurrence took place in two parts. In the first part, it is alleged that the accused persons tied the victim in his house and thereafter, firstly he was carried to the house of Tulsi and then to the house of Sarjoo, where he was killed. Therefore, there were two places of occurrence as per the deposition of some P.Ws. First is the house of the victim and second is the house of Tulsi and Sarjoo. But the evidence of the witnesses is very inconsistent, on this aspect of the occurrence and while PWs 4, 7 and 8 have stated that the victim’s hand were tied with rope and then he was dragged from his house to the house of Tulsi and 7 then to the house of Sarjoo, PWs 5 and 6 have stated that the victim’s hands were tied and then was directly carried to the house of Sarjoo, whereas PW 3 has stated that the victim was first carried to the house of Mukhan and then to the house of Sarjoo, where he was killed. PWs 4, 7 and 8 have not stated whether anything happened at the house of Tusli, where the deceased was, allegedly, initially dragged by the accused persons, whereas PW 3 has not stated, in her evidence that any part of the occurrence took place at the house of Mukhan. 11. The FIR has been lodged by the informant (PW 8), who saw the victim being carried away after being tied and was also informed in this regard by PW 3, but the other witnesses do not talk about tying of the victim. So far as the first part of the occurrence is concerned, the same has been canvassed only by two witnesses, PW 3 ( in paragraph 3) and PW 8 (in paragraph 1), whereas other eye-witnesses have not supported this theory. This part of committing the offence further gets clouded by the evidence of PW 3 itself, as in paragraph 10, she came to depose that the accused persons took two hours in tying the victim and she woke up after the victim was tied. This part of manner of occurrence further gets demolished from the evidence of PW 1 who conducted the post mortem report and neither he found any sign of ligature mark on any part of the body nor the police found any such mark while preparing the inquest report (Ext. 5). To this extent, the evidence of PWs 3 and 8 can not be relied upon. 8 The second part of occurrence is of carrying away the victim, as alleged in the First Information Report, to the house of Tulsi and then to the house of Sarjoo. In the First Information Report, it is alleged that the villagers kept guarding the house of Tulsi in the night which caused delay to the informant in going to the police Station but it is the consistent evidence of the witnesses that when the police came in the morning, the house of Sarjoo was opened and the dead body was found in the Aangan of the house of Sarjoo. So far as carrying away of the victim is concerned, it has been supported in an inconsistent manner by PWs 3, 5, 6, 7 and 8 but from their conduct, it does not appear that they saw the carrying of the victim because none of them resisted the accused persons which appears to be absolutely unreasonable. Though a plea has been taken by the prosecution witnesses that since firing was resorted to, they could not dare to resist the commission of the occurrence but no one came forward to prove that any firing was resorted to or that any firearm was seized and non-examination of the Investigating officer further creates hole in the prosecution case. PW 6, in paragraph 5, has stated that the victim was dragged from his door but the doctor has not found any ante-mortem injury on the dead body of the deceased which clouds the claim of the witnesses who saw the victim being carried away. 12. So far as the carrying away of the victim by the accused persons is concerned, this fact has not been supported 9 by PW 4 (minor son of the informant) as in paragraphs 3, 5, and 8, he stated that he came to know about the whole occurrence through PW 3 who also conveyed about the name of the accused persons. Hence, this part of the prosecution case appears not to be consistent in the evidence of the prosecution witnesses. With regard to the first part of the occurrence in the FIR, it is alleged by the informant that PW 3 conveyed to him that she has been assaulted by the accused persons, as a result of which she received injury, whereas PW 4, the son of the deceased in paragraph 2, has stated that Ganga assaulted PW 3 with knife which caused injury to her, but no such injury report has been brought on record. Hence, not only the inconsistent evidence with regard to receiving injury by PW 3 but also the non-examination of PW 3 by any doctor or any injury report made available on record, seriously clouds the credibility of the evidence of PW 3. 13. So far as second part of the occurrence is concerned, it has been deposed by some of the prosecution witnesses that the victim was taken to the house of Tulsi and from there, to the house of Sarjoo and it was stated that the house of Tulsi was being guarded by the villagers, whole night, whereas from the evidence of the prosecution witnesses, it does not appear that when the police came, they straightaway went to the house of Tulsi rather it is the consistent case that the police went to the house of Sarjoo where dead body was found. So far as the recovery of the dead body is concerned, the prosecution 10 witnesses are consistent that the dead body was recovered from the house of Sarjoo, with several injuries. But none of the witnesses have come forward to say that they saw any of the accused persons actually assaulting the deceased. Though PW 7, in paragraph 3, has stated that the victim received firearm injury, but the post mortem report does not reflect any firearm injury. PW 6 in paragraph 5, has also stated that the victim received firearm injury. But in view of the fact that no such firearm injury was found, the evidence of these prosecution witnesses not only gets demolished but also creates further question mark with regard to credibility of their evidences. 14. The seizure of the dead body has not been proved from the house of Sarjoo. Hence, it cannot be said beyond all reasonable doubt the prosecution has been able to prove this fact that the dead body was recovered from the Aangan of the house of Sarjoo, particularly, in view of the inconsistent evidences of the prosecution witnesses with regard to the manner of occurrence. Though the Court witness no. 1 has proved the seizure list (Ext. 4 and 4/1) which reflects the seizure of the blood-stained Halua (sharp cutting weapon) and blood- stained soil but this seizure in no way can prove the actual seizure of the dead body from the house of Sarjoo. Though the Court witness Sheo Balak Lal is an Advocate Clerk, who has proved the seizure as well as carbon copy of the inquest report but in the cross-examination, he has stated that he did not know the police officer who has prepared 11 and put signature on these documents. But these documents have been marked as Ext. 4, 4/1 and 5 with objection. But the very competency of this court witness to prove these documents is not above board. The inquest report, Ext. 5, though reflects that the same was prepared in the house of Sarjoo but it has not been proved by a competent person. More over, only the carbon copy of the inquest report has been brought on record and the same has been marked as Ext. 5. Here, once again non- examination of Investigating Officer has created loophole in the prosecution case and creates shadow of doubt on the prosecution case and the benefit of doubt certainly has to be conferred to the accused persons. 15. So far as inconsistency in the prosecution version is concerned, PW 7 in paragraph 13 has stated that no villager went to house of Sarjoo until the police officers came and entered into the house, whereas the case of the prosecution right from the FIR and according to the evidence of prosecution witnesses 3, 8 and others that the villagers were guarding the house of Tulsi. PW 8 in paragraph 12 has also stated that neither this witness nor any villagers went to the house of Sarjoo. Hence the evidence of prosecution witnesses is not only inconsistent to each other but their evidences are inconsistent inter se. 16. The defence has tried to propagate the story that the victim had illicit relations with the wife of Jamuna (acquitted) and in pursuance to that the victim entered into the house of 12 Jamuna and there he was caught red-handed and then the villagers assaulted him badly. Suggestion to this effect that the victim had an impeached character and had illicit relations with the wife of Jamuna has been given to PW 5 in paragraph 11, PW 6 in paragraph 16, PW 7 in paragraph 18 and PW 8 in paragraph 24 but the same has not been proved beyond reasonable doubt. 17. Though contrary motives have been alleged by the accused persons and the prosecution side. As per the prosecution, the motive was to settle scores with regard to the previous litigation and cutting of Neem tree, as PW 8 in paragraph 23 has stated that the deceased was in jail for about 12-20 years whereas PW 5 in paragraph 11 has stated that the victim was an accused in the murder case of the father of Sarjoo but from their evidence it appears that the occurrence took place long ago for which the victim was convicted. PW 3, in paragraph 23, of her evidence has stated that the relationship between the victim and the accused persons had improved subsequently. Since no evidence has been led to prove the motive and the motive which has been referred is so remote that it does not appear that the prosecution has been able to even prove the same. 18. On examination of the evidences of the prosecution as well as the defence, the prosecution case appears to be unreasonable as if the accused persons were adamant to kill the victim, there was no occasion for taking the victim inside their 13 house and causing injuries as they had all opportunity to kill the victim in the victim’s house when they took two hours, as per PW 3, in tying the victim in his house itself. Hence, the death of the victim in the house of Sarjoo further creates doubt about the manner of the occurrence. 19. From the screening of the evidences as discussed above, we are of the view that the prosecution has neither been able to prove the manner of occurrence nor the fact that the present appellants are, in any way responsible for the killing of deceased Kumar Chamar. It is relevant to mention here that Jamuna Chamar was facing trial for the same charges as that of the appellants, except appellant no. 1 against whom there was a charge under the provisions of the Arms Act also. The Trial Court has accepted the ali-bi as proved and has acquitted Jamuna Chamar. Without expressing any opinion on accepting the ali-bi of Jamuna and simultaneously, accepting the evidence of prosecution witnesses, we are of the opinion that the mere acquittal of Jamuna somehow creates doubt about the prosecution version because the prosecution has specifically alleged the same accusation against Jamuna, as is alleged against others. Hence, on that account also the hole is created in the prosecution story. 20. It is submitted that appellant no. 4, namely, Ganga Ram Chamar was aged about 23 years when his statement under Section 313 Cr.P.C. was recorded i.e. 10.10.1985 whereas the 14 alleged date of occurrence is 1/2-4-1979 and hence this appellant was aged about 16 years on the date of occurrence. Since we find that the prosecution has not been able to prove its case beyond the shadow of reasonable doubt, hence, this contention of the learned counsel for the appellants is not being considered at this stage. 21. On the basis of aforesaid discussion, we hold that the prosecution has not been able to prove the charges against the appellants named above, beyond the shadow of all reasonable doubt. The judgment of conviction and order of sentence as stated above is set aside. Since the appellants are on bail, they are directed to be discharged from the liabilities of their bail bonds furnished earlier in this case. Accordingly, this appeal is allowed. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.) Patna High Court, Patna Dated 9th September, 2010 Avin/N.A.F.R.