CRIMINAL APPEALS (DB)No.224 & 234, BOTH OF 1988 ******* Against the judgment and order dated 8th April, 1988 Passed in S.T. no. 209 of 1984 and S.T. no. 40 of 1985 by 6th Additional Sessions Judge, Bhagalpur. ***** 1. KISHUN MANDAL 2. BHAGWAN MANDAL------------Appellants (In Cr.Appeal no.224/1988) ARJUN MANDAL-------------Appellant (In Cr.Appeal no.234/1988) Versus THE STATE OF BIHAR-------Respondent (In both the Appeals) ***** For the Appellants : S/Shri. Chittaranjan Sinha, Sr.Adv. & Prashant Kumar For the State : Sushri Shashi Bala Verma APP ***** P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ. The three appellants in the two Appeals were tried along with seven other accused persons for charges under Sections 302/149, 323/149 and 379/149 of the Indian Penal Code by the learned 6th Additional Sessions Judge, Bhagalpur, in two Sessions Trials bearing no.209 2 of 1984 and 40 of 1985 which arose out of Kharik (Naugachia) P.S. Case no. 192 dated 7th November, 1982, G.R. no. 544 of 1982 and 544A of 1982. By the judgment dated the 08th day of April, 1988 passed in the above noted Sessions Trials, the learned Judge held the three appellants guilty of committing the offences under Section 302/149 of the Indian Penal Code and acquitted the three appellants along with seven others for offences under Sections 323/149 and 379/149 of the Penal Code. The three appellants were directed to suffer rigorous imprisonment for life and, as such, they have challenged the above judgment by preferring the two appeals. We have heard the two appeals together and we are disposing them of by the present common judgment. 2. The prosecution case, in brief, is that one of the sons of the informant, namely, Kamleshwari Yadav along with one of his relatives had gone to sell banana fruits in Bhagalpur and both were coming back to their house. When they came to village Shankerpur some miscreants chased them and relieved them of some of their belongings. The son of the informant, Kamleshwari 3 Yadav, fled towards Bhagalpur. 3. It was stated by the informant that on 6th November, 1982 at 8.00 A.M. he along with his sons, named in the first information report, and some others set out to search the said son of the informant, Kamleshwari Yadav, and started towards Bhagalpur. One of his sons, Ram Bilas Yadav, had with him a licensed S.B.B.L. gun and others were having lathi, sticks, etc. in their hands. They roamed around their fields and were also gathering informations about his son and when they had reached at the Basa of accused Sonu Mandal, the accused persons named in the first information report along with others numbering 25 to 30, emerged with guns and started chasing the informant and others. The informant stated that he fled and concealed himself in the crop of a field and saw from there that his son and others were chased and assaulted. The mob of miscreants fired shots at the victims and, thus, killed six persons in that marauding incident. While the incident was still going on, the Police came and the accused persons fled away. 4. It was alleged that the reason for the incident 4 was that the informant had purchased 7 bighas of land in village Laxmipur which land was again purchased by accused Dhansu Mandal, Sonu Mandal and Hari Mandal by paying up the part of the consideration money and got an agreement to sale registered. The informant stated that inspite of having got an agreement to sale in their favour from the real proprietors of the land, the accused persons were attempting to drive away the informant from the possession of the same and as such his son, Kamleshwari Mandal, had been assaulted and the incident of killing six persons had taken place on that particular day. 5. On the basis of the fardbayan of P.W.7, Gorelal Yadav, which has been marked Exhibit-2 by the court below, the first information report of the case, Exhibit-3, was drawn up by Sub-Inspector of Police, Raj Nandan Singh (P.W.9) who held inquest upon the six dead bodies at two different places and also seized the empties of the cartridges besides blood stained soil from the place of occurrence. He prepared the seizure list for the seizure made by him and he also prepared the inquest report which has been marked Exhibit-4 series. He sent 5 the dead bodies for post mortem examination to Bhagalpur and after completing the investigation sent up the ten accused persons for trial. 6. The defence of the appellants and other accused persons was that they had falsely been implicated on account of the dispute for the land. It was suggested that none of the witnesses deposed in the court had really seen the occurrence and, in fact, the six deceased persons were bearing criminal antecedent and, in fact, were killed in a gang war by some unknown criminals. 7. In proof of the charges the prosecution examined nine witnesses. Out of whom, P.W.9, Sub- Inspector of Police, is the Investigating Officer of the case who has also proved the injury certificate granted to P.W.4, Bindeshwari Yadav. P.W.8, Dr. Om Prakash Singh, had held post mortem examination and he had tendered in evidence two post mortem reports which had been marked Exhibits-1 and 1/1. Out of the other witnesses, that is, P.Ws. 1 to 6, P.W.5, Fekan Yadav, was declared hostile while the remaining came out to support the prosecution case. 6 8. On consideration of the evidence, the impugned judgment was passed. 9. We were taken through the judgment passed by the learned trial Court, which is being questioned before us in the two appeals. It was contended by Sri Chittranjan Sinha, learned senior counsel appearing for the appellants, that by the very discussion of the merits of the witnesses as regards their testimony the learned trial Judge has recorded findings that except P.W.4 no one was an eye witness and the evidence of witnesses, other than P.W.4, could not be acted upon. The learned trial Judge thereafter went on to analyse the evidence of P.W.4 and then recorded the conviction of the appellants while acquitting seven accused persons in the light of the same evidence. It was contended that, in fact, the witnesses had not seen the occurrence and even P.W.4, whose evidence was found trustworthy by the learned trial court, appears not reliable witness. We were taken through the evidence of P.W.4 and by referring to his evidence in paragraph-10 it was attempted to impress upon us that P.W.4 may also not be an eye witness to the occurrence. 7 10. It was contended by Sushri Shashi Bala Verma that the Investigating Officer of the case has found blood at the place of occurrence and he had held inquest upon the six dead bodies, besides he had found empties of cartridges which were fired by the miscreants in killing the six deceased, besides seizing some parts of the earth. It was contended that the offence appears established by evidence available on record. However, she conceded that the analysis of the evidence of different witnesses which was made by the learned trial Judge may not appear unacceptable and when the whole case is looked from that angle it may be very difficult for her to support the judgment. 11. We have perused the judgment of the learned trial Judge and we find that from paragraph 17 to paragraph 21 he has taken up the discussion of each and every witness starting from P.W.2 up to P.W.7 and he has disbelieved each and every witness by properly appreciating the evidence. P.W.2 was disbelieved because of his own showing he was a hearsay witness as he said in paragraph 5 of his evidence that he heard from 8 others that six persons had been murdered. Besides, the evidence of P.W.2 was disbelieved because contradiction was found in his evidence as regards the time of occurrence. P.W.2 has stated in paragraph 3 that he had seen the appellants and other accused running away from the place of occurrence at about 3.00 P.M. whereas the time of occurrence was 8.00 A.M. On these two scores we also find that the evidence of P.W.2 could not be trusted so as to seek support to the charges. As regards P.W.5 the learned Judge has discussed the evidence of the witness and merit thereof in paragraph 18 of his judgment and has not acted upon the evidence of that witness for the reason that he was declared hostile and no part of his evidence was of any utility for the prosecution. The next witness P.W.6, Nageshwar Yadav, was also found not trustworthy as his evidence of identification of accused persons was found unsatisfactory. He was identifying two accused persons by two different names. Besides, he was found not amongst the persons who had gone with the informant into the fields in search of Kamleshwari Yadav, the son of the informant. The third reason upon 9 which the evidence of P.W.6 was rejected by the learned trial Judge also finds favour with us that the occurrence having taken place on 06th November, 1982, the witness inspite of knowing that he was required to give statement to the Police appears avoiding it till he was finally found by the Police to give his statement on 24th November, 1982, that is, after about eighteen days. The reason assigned by P.W.6 for not appearing before Police for giving his evidence was that he had been hit by gun shot in his hand as a result of which his ring finger of the left hand was blown off and further that he was also hit in his throat and he was referred to different hospitals up to that in Purnia. The learned trial Judge has rightly rejected his explanation of giving statement belatedly on account of no medical evidence either by examination of a doctor or through production of a document was produced in the court below indicating that he had been referred to Naugachia and from there to Purnia for being treated for the two injuries. Besides, the learned Judge has found that he had identified one of the appellants, Bhagwan Mandal, as one of members of the mob but he had not 10 named him before the Investigating Officer under Section 161 of the Code of Criminal Procedure. Thus, the learned trial Court appears fully justified in observing that P.W.6 was attempting to falsely implicate one innocent person, namely, Bhagwan Mandal and it was never safe for the Court to place reliance upon such a witness. P.W.1, Bauku Mandal, admitted to be an employee of the informant and as such he was found an interested witness. Besides the reason which was given by him showing his presence at and around the place of occurrence was that he was grazing some cattle there. This witness was found not acceptable by the learned trial Judge who has given reasons in that behalf in paragraph 20 of his judgment. Moreover, the witness was found implicating some innocent persons as well whom he has not named before the Investigating Officer while he was making his statement under Section 161 of the Code of Criminal Procedure. 12. The claim of P.W.7, the informant of the case, of being an eye witness, appears also dismissed by the learned trial Judge by assigning reasons. One reason, 11 which we can not uphold, and which was assigned by the learned trial Judge, was considering the statement of the witness under Section 164 of the Code of Criminal Procedure for recording a fact that the witness had never said in his statement under Section 164 of the Code of Criminal Procedure that P.W.7, Gorelal Yadav, was accompanying them when they had gone out into the field in search of Kamleshwari Yadav, the son of P.W.7. We are of the opinion that the statement under Section 164 of the Code of Criminal Procedure, not being a substantive evidence, could never be utilized for recording any finding of fact. That does not mean that we place reliance upon P.W.7. As a matter of fact, we considered the evidence of P.W.7, Gorelal Yadav, and we find that after perusing his evidence we cannot place reliance upon his evidence. The witness has stated, right from the stage of his fardbayan, that the six deceased persons were shot and killed. The prosecution has not produced the post mortem report of all the deceased persons, only two reports have been brought on the record. They have been marked as Exhibit-1 and Exhibit-1/1. The evidence of 12 P.W.8, Dr. Om Prakash Singh, is available to us at page 40 of the paper book and we have considered that evidence. On consideration of the evidence we find that P.W.8 had not found any gun shot injury either on the dead body of Janardan Yadav or on the dead body of Dukhan Yadav. Thus, the story told by P.W.7 that the deceased were shot and killed appears not corroborated. Besides, we could take the view that the prosecution purposefully with-held the four remaining post mortem reports because those reports also could not have corroborated the manner of occurrence that the four deceased persons were shot and killed by the accused persons. In addition to the above, what we find further, as per P.W.7, is that the six deceased persons were shot and killed at one place and the dead bodies were lying at one particular place. Whereas the inquest reports, which have been brought on the record and which have been marked as Exhibit-4 series indicate that four dead bodies were found at one particular place whereas the two were found at another place which fact has also been stated by P.W.9, Sub-Inspector of Police, Raj Nandan Singh. 13 Thus, on these two reasons we can held that P.W.7 could also not be an eye-witness to the occurrence. We, as such uphold the finding of the learned trial Judge as regards the merit of the evidence of P.W.7. 13. So far as P.W.4, whose evidence has been relied upon by the learned trial Judge, is concerned, we could simply refer to his evidence in paragraph 10 at page 19 of the paper book. He has stated that he was concealing himself at the same place where the six deceased persons had been hit and had fallen down dead. He had further stated that finding the six persons fallen on the ground, he had fled away. We have just recorded as to what was the evidence of P.W.8, Dr. Om Prakash Singh, as regards injuries found on the two dead bodies of Janardan Yadav and Dukhan Yadav. The doctor did not find any gun shot injury. We have already recorded that the post mortem examination reports of those dead bodies were with-held and P.W.8 was not allowed to express his opinion as to what were the injuries which were found by him on those dead bodies. We fully agree that there was a purpose in with-holding the post mortem 14 examination reports and we have just noted in the preceding paragraph that the prosecution would have been in a disadvantageous position as those post mortem examination reports if produced in court would have corroborated the manner of occurrence. We could safely infer that may be that the four post mortem examination reports could also have contained a finding that there was no gun shot injuries on those four dead bodies. We have taken a view just now in the light of the fact that the dead bodies were found quite apart from each other in two groups. As such there does not appear any hesitation in us to record that P.W.4, Bindeshwari Yadav, may also not be an eye-witness as he has deposed in Court in complete contradiction of the opinion of doctor, Om Prakash Singh, P.W.8. 14. The other reason for not sustaining the judgment of conviction passed by the learned trial Judge is that some of the material evidences were not allowed to be brought on the record by the prosecution. Not only the injury reports of the informant or the other injured pesons like P.W.6, Nageshwar Yadav, were not brought on the 15 record but the doctor, who had examined those injured persons, was also not examined. We find that a hybrid procedure was adopted by the prosecution and that was allowed by the learned trial Judge when the Investigating Officer in the case was tendering the evidence in the form of medical reports indicating injuries on the person of one or the other injured persons. This is one aspect of the case which appears to us deeply affecting the prosecution case. The defect of the same class is that not only the four post mortem examination reports were not allowed to be brought on record but no attempt was made by the prosecution to summon and examine the doctor who had held post mortem examination on the four dead bodies. We have already referred to the evidence of the Investigating Officer who found the dead bodies at two different places. It was stated by P.W.7. We have also expressed our unhappiness on the procedure adopted for bringing on record the carbon copy of the post mortem reports through the Investigating Officer of the case, which have been marked as Exhibits-1/2 to 1/5. The above procedure and the manner of adducing evidence 16 could not find favour with us and we have no other option than to draw adverse inference against the prosecution for not bringing on record the post mortem examination reports as proper evidence. The learned trial Judge was expected to notice the above serious defects in the prosecution before he was proceeding to hold the charges proved. 15. For the reasons which we have just assigned, the convictions and sentences passed against the appellants are hereby set aside. The two appeals are allowed. The appellants, who are one bail, are discharged along with their bailors from the liabilities of their respective bonds. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 20th April, 2010. AAhmad/(NAFR). 17