CRIMINAL APPEALS No. 226 and 256, BOTH OF 1988 Against the Judgment and Order dated 30th April, 1988 passed by the 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 144 of 1983. 1. Hardeo Rai 2. Sukhdeo Rai Sons of Rambriksh Rai. 3. Chandradeo Rai 4. Kishun Rai Both sons of Fal Rai 5. Wakil Rai, son of Husaini Rai. All of village Mathia, P.S. – Motipur, District – Muzaffarpur. (In Cr. Appeal No. 226/1988) 1. Ram Chandra Rai, son of Raghuni Rai 2. Ram Babu Rai, son of Ram Chandra Rai Both resident of village Bariyarpur Tole Nakta, P.S. – Baruraj (Motipur) District – Muzaffarpur. (In Cr. Appeal No. 256/1988) Versus THE STATE OF BIHAR ----------Respondents (In both Appeals). ******* (In Cr. App. (DB) 226/1988) For the Appellants : Shri Durgesh Nandan, Adv. For the State : Sushree Shashi Bala Verma, APP. (In Cr. App. (DB) 256/1988) For the Appellants : Shri Yogendra Pd. Sinha, Adv. Sushree Alka Verma, Adv. Shri Arun Kumar, Adv. For the State : Sushree 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 seven appellants of the two appeals were put on trial on Sessions Trial No. 144/1983 by framing charges under Sections 147 and 302 read with 149 of the Indian Penal Code by the learned 3rd Additional Sessions Judge, Muzaffarpur. Appellant Hardeo Rai was - 2 - distinctly charged also under Section 148 and 324 of the Indian Penal Code while being tried with other appellants by the learned judge. All the appellants except Hardeo Rai were found guilty under Section 147 of the Indian Penal Code and also Section 302/149 of the Indian Penal Code. While directing the appellants to suffer rigorous imprisonment for life for committing the offences under Section 302/149 of the Indian Penal Code the learned Judge did not inflict any sentence upon the six appellants except Hardeo Rai under Section 147 of the Penal Code. So far as appellant Hardeo Rai is concerned, he was found guilty also under Sections 148 and 324 of the Penal Code and while he was sentenced to suffer rigorous imprisonment for six months for his conviction under Section 324 Indian Penal Code, the learned Judge did not pass any sentence under Section 148 Indian Penal Code upon him. The two appeals question the above findings of guilt and sentences passed by the learned 3rd Additional Sessions Judge, Muzaffarpur in the above noted Sessions Trial. 2. Put briefly, the prosecution case is that the two deceased Raj Mangal Bhagat, brother of the informant Gandhi Bhagal (P.W. 10), and Ratan Bhagat, ‘Bahnoi’ of the informant, were accompanying the informant while coming back from Bariyarpur Bazar and when the three reached the ‘Bandh’ situated at village Bariyarpur Mathiya, it is alleged that 8 accused persons including the 7 appellants named in the First Information Report emerged there and caught hold of the two deceased. The informant attempted to intervene to rescue the deceased persons but he was given allegedly a Bhala blow by appellant Hardeo Rai and - 3 - also assaulted by others with Lathi. The informant fled away out of fear. The two deceased were thereafter taken away by the accused persons into the Angan of appellant Hardeo Rai and were killed there. The informant stated that he did not go into the said Angan out of fear. 3. As regards the reason for commission of the offence the informant stated that bamboo of plough-man of appellant Hardeo Rai had been cut and Hardeo Rai had complained to the informant about it and this was probably the reason that the incident had occurred. 4. P.W.14 Sub-Inspector Vishwanath Sharma, who on 12.07.1982 was the Officer-in-Charge of Motipur Police Station, came to the Darwaja of the informant P.W.10 and recorded Exhibit – 3, the Fardbeyan, and on that basis the First Information Report of the case was drawn up. P.W.14 stated that he recorded further statement of the informant and statements of other witnesses there. During the course of investigation he inspected the place of occurrence on 13.07.1982 itself on which date he had recorded the fardbeyan of the informant and the incident had taken place at 8 P.M. on 12.07.1982. It was the Bandh which was running North to South and a road branching off it to go in the North-East direction to Bariyarpur tola of Motipur village. The house of the appellant Hardeo Rai was situated East of Bandh and there were fields with standing paddy and maize crops. The investigating officer found the dead bodies of Raj Mangal Bhagat and Ratan Bhagat lying in the Angan of the appellant Hardeo Rai. The house was thatched and it was situated by the side of a ditch created by river ‘Gandak’ just by its side the copious blood was found there and there was no blood - 4 - anywhere found on the fencing of the Angan. P.W.14 held inquest upon the two dead bodies and prepared inquest report, Exhibits - 4 and 4/1 in presence of witnesses and sent the dead bodies for post mortem examination. 5. P.W.14 has stated that on the statement of appellant Hardeo Rai, he registered a case against the deceased and others and also investigated the same but found the case not true and submitted prosecution report under Sections 182 and 211 of the Indian Penal Code. The accused persons were found absconding and he handed over the charge of the investigation to P.W.13 Sub-Inspector Brij Kishore Prasad and submitted charge sheet against the appellant. 6. It may be pertinent to note that during the course of the trial accused Fuldeo Rai named in the First Information Report died and the proceedings as against him, were dropped by the learned trial judge. As regards the accused who were not named in the First Information Report, namely, Jai Mangal Rai, Ishwar Rai and Hari Rai, they also sent up with 8 First Information Report-named-accused persons. The learned trial judge found the charges not established against above three and, accordingly, they were acquitted. 7. The defence of the appellants was in the form of Exhibit A, which is also a case registered in respect of the same occurrence resulting into double murder of Raj Mangal Bhagat and Ratan Bhagat. The case was registered under Section 304 etc. of the Indian Penal Code at the statement of appellant Hardeo Rai who stated that the two appellants were killed by the villagers when they had trespassed inside - 5 - his Angan with some motive to assault him. This may be necessary to point out that except exhibiting the First Information Report Exhibit – A, of Baruraj P.S. Case No. 138/1982, no attempt was made to adduce any evidence to support it. The defence appears giving up the plea as may appear from suggestion given to this. The defence did suggest to P.W.10 in paragraph 8 of his evidence that the instant case was lodged by him so as to get away from the case lodged by appellant Hardeo Rai. The facts of the version contained in Exhibit – A, were neither suggested to any of the witnesses nor were succinctly brought on record by making statement under Section 313 of the Criminal Procedure Code by any of the appellants, except that appellant Hardeo Rai in his statement under Section 313 of the Criminal Procedure Code made a general statement that none of the appellants had committed the twin murder and in fact the two deceased had been pulverized to death by villagers. 8. The prosecution examined as many as 14 witnesses, out of whom P.W. 7, Kirit Bhagat, and P.W. 9, Badri Bhagat, were tendered for cross examination. P.W.2, Bijali Pd. Shahi, was witness to inquest. P.W.12, Dr. Manoranjan Kumar Sharivastava, held the post mortem examination on the two dead bodies and prepared the reports in that behalf which have been marked Exhibits - 2 and 2/1. 9. As regards the other witnesses they have given evidence in support of the occurrence and have further stated that the two deceased persons were captured by the accused persons and were dragged after being caught to the Angan of the appellant Hardeo Rai - 6 - where they were killed as they have found the two dead bodies lying there the next morning. 10. It was contended by the learned counsel, appearing on behalf of the appellants, that the whole story appears concocted as no dragging mark or any trail of blood was found either at the Bandh or anywhere up to the Angan of appellant Hardeo Rai where the two deceased persons had allegedly been dragged. It was further contended that no sign of violence appears evidently found by P.W.14 either at the Bandh or anywhere on the pathway reaching the house of appellant Hardeo Rai. It was further contended that there are two class of witnesses, one stating to the story of Panchayati being convened and the two deceased persons being called to attend the same or rather being taken to the panchayati, while the other group of witnesses did not state anything about holding of any panchayati, but were rather stating the story as was the initial version of the informant in his fardbeyan. No one from the next class of PWs has come to say as to who were the Panches least to talk of the Panchayati being held and further that the two deceased persons were captured from the place of panchayati and were taken away to the house of the appellant Hardeo Rai. It was a cock and bull story which is further compounded by the fact that none stated as to what was the reason for which the two deceased persons could be caught and taken away. Every witness has equivocally stated that he or she had seen the two deceased persons being dragged to the house of appellant Hardeo Rai, but, everyone remained sleeping in his house throughout the night to woke up in the - 7 - morning to found the two dead bodies in the Angan of the appellant Hardeo Rai. No one took any trouble to report the matter to the police or to lodge even a simple protest to the high handed acts of the appellants, least to talk of creating a pandemonious situation which is expected in such a situation. On these premises, it was contended that the probability get more stronger that the incident occurred in the manner different from what has been claimed by the prosecution and on that account the accused persons deserve to be acquitted after being given benefit of doubt. 11. Sushri Shashi Bala Verma, Additional Public Prosecutor, has mainly contended upon the consistency of one fact in the evidence of the witnesses that the two deceased persons, in any view, were caught and captured at the Bandh and were dragged to the house of appellant Hardeo Rai. It was next contended that the two dead bodies were found there and there is no explanation coming from appellant Hardeo Rai as who were the persons, if it were not the appellants, who had committed the dastardly acts. Sushri Verma, further submitted that the fact that the two deceased were killed in the Angan of appellant Hardeo Rai was not disputed. There might be some conflict in the original story as regards the motive and one presented, but that can be matters on fringes which could be ignored. It was contended, as such, that the charges were truly established beyond any shadow of doubt requiring the appeals to be dismissed. 12. We have considered the evidence after being taken through it. As was rightly pointed out by the learned counsel for the - 8 - appellants that three witnesses come in the category who have stated that a panchayati was convened in the evening on 13.07.1982 because in the early morning a Bamboo of the plough-man of appellant Hardeo Rai had been cut allegedly by the two deceased or either of them. This class of witness is comprised of P.W.1, Daroga Bhagat, who was the father of deceased Ratan Bhagat. He stated about the Panchayati being held in the evening and he claimed being attracted to the scene of Panchayati, on hearing ‘Hulla’ at about 8 P.M. He reached there where he learnt from P.W.10 that P.W.10 has been assaulted with Bhala by appellant Hardeo Rai while accused had taken away the two deceased persons. P.W.1 has stated that villagers who had assembled there were stating that necessary inquiries be made on the next morning when the two dead bodies were found in the ‘Angan’ of appellant Hardeo Rai. 13. As regards the claim of the witness the same is supported by P.W.10 the informant and P.W.3 Champa Devi, wife of the deceased Ratan Bhagat. In fact, P.W.3 appears an eye witness to the main part of the occurrence when the two deceased were captured by the accused persons and were taken away by being dragged to the house of Hardeo Rai. However, the three witnesses and for that matter the remaining witnesses, who do not state on holding of Panchayati and the two deceased persons either being taken to attend the proceedings or being called to attend it, say that they were expectators to the whole incident and after the accused persons has succeeded in taking away the deceased they came back to their respective houses. Only one voice appears different and that is of Champa Devi P.W.3, when she - 9 - stated that she wanted to go to the house of the appellant Hardeo Rai but people assembled there obstructed her to go there. This appears natural conduct of the wife and this further appears natural that she would follow the persons who were dragging her husband to the house of appellant Hardeo Rai that she will follow them. But, she stated that she was assaulted by the accused persons who were dragging away and she also came back to the house. 14. The most unnatural conduct which did not find our appreciation and favour is that all the witnesses had stated that the two deceased persons were captured by the accused were dragged away to the house of appellant Hardeo Rai after being beaten up, but they went to their respective houses to spend the night without raising any hue and cry or without raising a voice of protest against the high handed acts of the appellants. This could have been appreciated by us had the prosecution pointed out convincingly to us that the witnesses were persons belonging to families or affiliations otherwise of the deceased persons. The record of evidence of witnesses indicated that they belong to branches of a single ancestor as may appear from P.W.5, Gaja Bhagat, in cross examination (para-3). If the witnesses were the descendents of one ancestor, it was expected that they could assemble in one group and solicit other persons of the village to create a situation so as to get the deceased freed or to have acted in the manner as to ensure the safety of deceased persons. It was expected that they at least had rushed to the police station which was only 6 K.M. away from village Mathiya to lodge a report and thus to solicit the protection of law. - 10 - 15. We have really found ourselves at a loss in appreciating this indifferent conduct of the witnesses which clearly appears to us an act of aloofness which under the circumstances could not be comprehended by us. 16. The occurrence took place at 8 P.M. in the night of 12.07.1982. As we have just pointed out none of the witnesses or their family members who were closely related to the deceased including the informant who was the full brother of the deceased Raj Mangal Bhagat took any steps for putting the law in motion. Not only that they remained sitting in their respective abodes till 11.30 A.M. the next day when P.W. 14 reached the village to record the statement of P.W.10. The version which was put forth by the appellant Hardeo Rai was recorded earlier to that as such the defence case was also registered earlier than the present case. We could not find any reason as to why the PWs and family members of the deceased including his father, brother (the informant) and other remained closeted inside their houses and did come forward either in defence of the deceased or to seek the help of the police. What we could speculate is that probably the informant and other witnesses were still not certain as to what story be put forth before the police as regards the two deaths. 17. This further appears the probability because P.W.10 Gandhi Bhagat, the informant stated that he had been given a Bhala blow by appellant Hardeo Rai and that Bhala as per his evidence in court appears piercing in his cheek. P.W.3 Champa Devi stated that she was also assaulted by the accused persons when she was following - 11 - them while the two deceased persons were being taken away by them. None of the two appear going to any doctor to get themselves checked up for their injuries so that the evidence in support of their story was produced in court. The other circumstance which appears convincing us is that the appellants might not have taken away the deceased in the manner as alleged as there is a complete lack of evidence as regards the dragging marks or any marks of violence. P.W.14 has stated that he did not find any such marks either on the Bandh or on the pathway which was running through fields up to the house of Hardeo Rai. 18. It was not that only the handful of witnesses who came forward to depose in court were only persons seeing the occurrence. P.W.4 Raja Bhagat who appears related to the deceased as per the evidence of P.W.5 his full brother Gaja Bhagat has stated in paragraph 4 that there were quite a good number of villagers assembled there and he has also stated to many of them about the two deceased persons being captured, taken away and that there was quite a ha and hoopla in the village. But, none of the villagers was seen by him moving towards the house of appellant Hardeo Rai, and he also remained at his own house and did not take any pains to inform the police. We could not understand the indifferent behaviour either of the villagers or family members of the deceased like P.W.4 and others. 19. It is true that there is definite prosecution story as regards the two deceased persons being killed and there was also one put forth by the defence. The prosecution has to prove the story which is propounded by it. The defence could be asked to explain the - 12 - circumstances appearing against the accused but only when the prosecution has succeeded in proving the charges to the hilt. If the charges appeared not brought home satisfactorily in the present case, we cannot shift the onus of the prosecution upon the defence to explain the probabilities of its version. 20. We find that there are many infirmities and circumstances raising grave doubt in the veracity of the prosecution story and its manner, as a result of which we set aside the conviction and sentence passed upon the appellants by allowing the two appeals. The appellants are on bail they shall stand discharged from their respective bonds. Patna High Court The 23rd June, 2010 Rajeev/ N.A.F.R. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.)