Cr. Appeal (D.B.) No. 492 of 2004 With Cr. Appeal (D.B.) No. 563 of 2004 With Cr. Appeal (D.B.) No. 522 of 2004 With Cr. Appeal (D.B.) No. 500 of 2004 With Cr. Appeal (D.B.) No. 517 of 2004 **** Against the judgment, dated 30.06.2004, and sentence, dated 01.07.2004, passed by Sri Rajiv Shrivastava, Presiding Officer, Additional Court (Fast Track Court, II), Rohtas at Sasaram, in S.T. No. 261 of 1981/Trial No. 83 of 2003 **** 1.Narendra Deo Prasad @ Rampati Mahto 2.Surendra Mahto .. Appellants 3.Hira Mahto (in Cr. Appeal (D.B.) No. 492/04) Indradeo Mahto .. Appellant (in Cr. Appeal (D.B.) No. 563/04) 1.Ganesh Kahar .. Appellants 2. Naresh Kahar (in Cr. Appeal (D.B.) No. 522/04) 1.Jagdeep Mahto .. Appellants 2.Ganesh Mahto (in Cr. Appeal (D.B.) No. 500/04) Amresh Chaudhary .. Appellant (in Cr. Appeal (D.B.) No. 517/04) Versus The State of Bihar .. Respondent (in all the Appeals) **** For the appellants .. Mr. Krishna Prasad Singh, (in Cr. Appeal (D.B.) No. 492/04) Sr. Advocate with M/S Manindra Kishore Singh & Meena Singh, Advocates For the respondent .. Mr. Ashwani Kumar Sinha, A.P.P. 2 **** For the appellant .. Mr. Vindh Keshri Kr. Pd. Singh, (in Cr. Appeal (D.B.) No. 563/04) Sr. Advocate with M/S Ram Sagar Mahto & Kapildeo Singh, Advocates For the respondent .. Mr. D.K. Singh, A.P.P. **** For the appellants .. Mr. Baxi S.R.P. Sinha, (in Cr. Appeal (D.B.) No. 522/04) Sr. Advocate with M/S Rahul Nath & Sanjay Kumar, Advocates For the respondent .. Mr. Ashwani Kumar Sinha, A.P.P. **** For the appellants .. Mr. Narendra Kumar Singh, Adv. (in Cr. Appeal (D.B.) No. 500/04) For the respondent .. Mr. Ashwani Kumar Sinha, A.P.P. **** For the appellant .. Mr. Kanhaiya Prasad Singh, (in Cr. Appeal (D.B.) No. 517/04) Sr. Advocate with Mr. Ajay Kr. Tiwari, Adv. For the respondent .. Mr. Ashwani Kumar Sinha, A.P.P. **** P R E S E N T THE HON’BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. All the criminal appeals are being heard together and disposed off by common judgment and order as all the appeals arise out of the same order of conviction, dated 30.06.2004, passed in S.T. No. 261 of 3 1981/Tr. No. 83 of 2003 arising out of Dehri P.S. Case No. 22 of 1979, by which the appellant of Cr. Appeal (D.B.) No. 563 of 2004, Indradeo Mahto, under Section 302 of the Indian Penal Code sentenced to undergo rigorous imprisonment for life and, further convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years and, further, all the appellants have been convicted for offence under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and have, further, been convicted for offence under Section 307/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for the same and, further, appellant, Rampati Mahto @ Narendra Deo Prasad, convicted under Section 302 of the Indian Penal Code, but, no separate sentence has been awarded. However, it has been ordered that all the sentences shall run concurrently. 2. The prosecution story, as alleged in the fardbeyan by informant, Manki Mahto (P.W. 13), is that he purchased four katha of land from his brother, Janki Mahto about 7-8 years back, out of which one katha of land was remained to be sold, but, the said one katha of land was purchased by Sabir Kahar, which is surrounded by land and for which Panchayati organized and it was decided that Sabir will sell the land after taking consideration, but, Sabir under the influence of Indradeo Mahto, did not execute the sale deed. A case was filed by informant under Ceiling Act, which is pending. Further, case is that at about 08.30 a.m., Sabir Kahar, along with Indradeo Mahto armed with double barrel gun, Kapildeo Mahto (dead) armed with single barrel gun, Surendra Mahto 4 armed with sword, Rampati Mahto Amresh Choudhary armed with lathi, Lallan Kahar (dead) armed with lathi, Naresh Kahar armed with jhama, Sabir Kahar (dead) armed with brick, Ganesh Mahto, Jagdeep Mahto, Ganesh Kahar and Hira Mahto empty handed came and started preparation for digging the land, on which the informant went there and protested, but, they were not ready to accede to the protest and then his son, Dinesh (deceased), Ramsubhag Prasad (P.W. 8), Mutur Mahto (P.W. 9), Devraj Mahto (P.W. 7) and nephew Ramdeo Mahto (P.W. 4) came. Further, case is that Rampati, @ Overseer, Ganesh and Jagdeep abated on which Indradeo fired from his gun, which hit on the head of the son of the informant by which he received injury on back of head and fell down and died. Further, case is that Rampati Mahto assaulted informant by lathi by which he got injury on his arm and head, Kapideo firred by which Mutur and Ramsubhag got injury on ther left part and right shoulders respectively and Devraj Mahto and Ramdeo Mahto also received injuty by lathi and sword. Further, case is that there is prior litigation with Indradeo Mahto. 3. The fardbeyan of the informant, Manki Mahto, was recorded by Ganga Sharma (P.W. 16) at Dehri State Dispensary on 17.09.1979 at 09.45 a.m. on the basis of which the first information report was lodged on 17.09.1979 at 11.00 a.m. and the investigation proceeded. 4. After the investigation, charge sheet was submitted, cognizance was taken, case was committed to the Court of sessions and after the commitment charge was framed for offence under Sections 302 of the Penal Code and 27 of the Arms Act against the appellant, Indradeo 5 Mahto, whereas the charges were framed against the other appellants for offences under Sections 302/149 as well as 307 and 149 of the Penal Code and, further, charge against Rampati Mahto was also framed under Section 323 of the Penal Code. 5. After framing of the charge the trial proceeded and during the trial sixteen witnesses were examined on behalf of the prosecution. P.W. 1 is Tarkeshwar Prasad, P.W. 2 is Shivdayal Singh, P.W. 3 is Laxman Mahto, P.W. 4 is Ramdeo Mahto, P.W. 5 is Bhawani Mahto, P.W. 6 is Kanhaiya Prasad Singh, P.W. 7 is Devraj Mahto, P.W. 8 is Ramsubhag Mahto, P.W. 9 is Mutur Mahto, P.W. 10 is Ramchandra Jha, P.W. 11 is Gangajali Devi, P.W. 12 is Ram Kumar Singh, P.W. 13 is Manki Mahto (the informant), P.W. 14 is Dr. Brij Kishore Prasad Singh, P.W. 15 is Dr. Sarda Prasad Singh and P.W. 16 is Girja Sharma, the investigating officer of the case. 6. The documentary evidences adduced on behalf of the prosecution are Exhibit 1, the fardbeyan, Exhibit 2, the formal first information report, Exhibit 3, signature of Vyas on the first information report, Exhibits 3/1 and 3/2, signatures of Khosla Mahto on the inquest report, Exhibits 4 to 4/4 injury reports, Exhibit 5, post mortem report, Exhibit 6 the inquest report and Exhibit 7 the seizure list. 7. The defence has also adduced, both, oral and documentary evidence. The oral evidence adduced on behalf of the defence is D.W. 1, Shivjee Singh, D.W. 2, Laxmin Narain Singh, D.W. 3, Badri Narain Prasad, and D.W. 4, Ram Nandan Singh. The documentary evidences adduced on behalf of the defence are Exhibit „A‟, discharge slip, Exhibits 6 „B‟ and „B/1‟, two sale deeds, Exhibit „C‟, sale deed, bearing slip no. 6092, Exhibit „C/1‟, sale deed, bearing no. 1510, Exhibit „D‟ khesra panji of plots no. 552 and 555. 8. After considering the oral and documentary evidence and considering the submission of the parties the order of conviction was recorded by the trial Court. 9. The defence of the accused persons that accused Indradeo Mahto was not present at place of occurrence at about the time of occurrence nor was present in the village and he was hospitalized at Chenari Hospital and had undergone operation of hydrocele. The accused persons have falsely been implicated as the land purchased by Sabir surrounded by land of accused persons was not given to the accused persons by Sabir. The witnesses have not seen the occurrence and no occurrence at alleged time, place and manner have taken place and the appellants have falsely been implicated by the informant. 10. The learned counsel for the appellants, however, contended that the prosecution has not been able to prove the place of occurrence, time of occurrence and manner of occurrence. It has, further, been contended that Indradeo was not at the place of occurrence and was at Hospital and had undergone operation. It has, further, been contended that the genesis of occurrence has not been proved as the prosecution has not proved that they have purchased four katha of land as no sale deed has been adduced in evidence regarding the purchase of four katha of land from Janki Mahto and, further, there is statement of appellants under Section 313 of the Criminal Procedure Code as no question has been 7 asked regarding the genesis or about the materials evidence of the occurrence and, further, the pellet alleged to have been recovered from the person of the deceased was not sent to the serologist expert as to whether it is bullet or pellet and the blood found at the place of occurrence not sent for chemical examination. Further, even the charge sheet witnesses have not been examined. It has, further, been contended that the conviction has been maintained against the appellants other than Indradeo Mahto for offence under Section 302/34 of the Penal Code whereas the charge has been framed under Section 302/149 of the Penal Code. There is contradiction in the evidence of the witnesses regarding the weapons and their participation for the offence suffers from contradiction and the evidence, itself, does not suggests that they were member of unlawful assembly with a common object and the weapons alleged to have been used can not be based to have intention to achieve the common object of murder or attempt to murder and, hence, the prosecution has not been able to prove the charges beyond reasonable doubts. 11. Hence, question for consideration whether prosecution has been able to prove the charges beyond reasonable doubt. 12. The prosecution case, as alleged, in sum and substance is that the accused persons came to dig the land of Sabir and on protest by the prosecution party, on abatement of accused persons Rampati @ Overseer, Ganesh and Jagdeep, the co-accused, Indradeo Mahto fired causing injury on the back side of head of Dinesh (deceased), who fell down and succumbed to injury. It is alleged that thereafter, Kapildeo fired from his single barrel gun by which Mutur (P.W. 9) and Ramsubhag 8 (P.W. 8) got injury. The, further, case that Rampati @ Overseer and Amresh Choudhary were armed with lathi, Sabir armed with brick, Surendra armed with sword Jagdeep and, further, allegation that Rampati gave lathi blow on the hand of informant, Kapildeo fired causing injury to Mutur and Ram Subhay. Devraj and Ramdeo were also assaulted. 13. However, sixteen witnesses examined by the prosecution, out of them P.Ws, 1, 2, 6, 10 and 12 are the formal witnesses, P.Ws. 14 and 15 are the doctors, and P.W. 16 is the investigating officer, hence, the only witnesses remain are P.Ws. 3, 4, 5, 7, 8, 9, 11 and 13, who are claimed to be the eye witnesses to the occurrence. P.W. 3 supported the prosecution case that Indradeo fired at Dinesh by which Dinesh got injured. However, in paragraph 16 of his evidence, he has stated that when he reached at the place of occurrence then he found the deceased fallen on the ground. P.W. 4 has supported the prosecution case that he saw Indradeo fired at Dinesh by which Dinesh got injury and fell down. However, there is nothing in the cross examination to disbelieve him. P.W. 5 though has supported the prosecution case about the firing by Indradeo causing injury to Dinesh. However, this witness has stated that he is unable to see from his one eye due to cataract though has asserted that his both eyes were well at the time of the occurrence. P.W. 7 has stated in his deposition that Indradeo fired from double barrel gun, which hit back of the head of Dinesh. P.W. 8 has supported the prosecution case that Indradeo fired causing injury to Dinesh, however, this witness has stated that though when he went to the place of occurrence he saw Indradeo with double barrel gun, but, in paragraph 9 he stated that when 9 he reached at the place of occurrence then he found Dinesh in fallen state. P.W. 9 supported the prosecution firing by Indradeo Mahto causing injury on the person of Dinesh by fire arm on the back portion of his head. P.W. 13 has also supported the prosecution case about the injury of Dinesh by the gun shot fired by Indradeo, hence, P.Ws. 3, 4, 7, 8, 9 and 13 have supported the prosecution case regarding the fact that they saw Indradeo fired causing injury on the back of the head of Dinesh. However, the evidence of P.Ws. 3, 7 and 8 in their cross examination stated that they found Dinesh lying when they reached to the place of occurrence, hence, it is contended that at least P.Ws. 3, 7 and 8 did not see the occurrence, who killed. However, these witnesses have claimed to have seen the occurrence and though in their evidence they have stated that when he reached the place of occurrence he found Dinesh fallen on earth. However, the occurrence took place in the field and the scene to have been seen from distance, their evidence can not be absolutely disbelieved. However, there is nothing in the evidence of P.Ws. 4, 9 and 13 to disbelieve the testimony of these witnesses regarding the firing from double barrel gun by Indradeo causing injury to Dinesh on the back of the head 1(1/2)” apart from ear, hence, these witnesses supported the prosecution case about the injury on the person of Dinesh by double barrel gun by Indradeo. 14. P.W. 15 is the doctor, who had conducted the post mortem examination on the person of the deceased, Dinesh Prasad, and has stated that on 17.09.1979 he conducted the post mortem examination as team leader and found one lacerated bleeding of entry on the back of 10 head of the right side 1(1/2)” x 1/3” x scalp x occipital bone and communicated fracture of intra cavity and the brain matter was found to be lacerated and irregular flattened pellets were also recovered from the brain substance. Hence, the corresponding injury, as alleged, has been found by doctor, hence, the prosecution case about injury received by deceased, Dinesh, corroborated by the doctor‟s evidence. The pellet recovered was forwarded in sealed cover and the time elapsed since death within 12 hours. However, in cross examination he has stated that time elapsed between death and post mortem examination is beyond 6 hours and could be approaching 12 hours, hence, from the evidence of this witness that the time elapsed since death is 6 hours corresponds to the time of occurrence as the time of occurrence alleged to have 08.30 a.m. whereas the post mortem examination has done at about 02.15 p.m. 15. P.W. 16 is the investigating officer and he stated in his evidence that he recorded the fardbeyan, thereafter, he conducted the investigation. He has, further, stated that occurrence took place in the field of Manki Mahto and length and width of the said land is north to south is 28 steps and east to west is about 21 steps. The land having khata no. 43, plot no. 20 and the dead body of the deceased was found in the north east portion. The northern ridge is at the six steps and he found the blood beneath the body of the deceased. He has, further, stated that he did not find any spade and found radish grown in the field and to the adjoining east, north and south there is field of Janki Mahto, hence, the investigating officer has established the place of occurrence. He has, further, stated that he prepared the inquest report of the dead body and has 11 proved the same as Exhibit “6” and the signature of the witnesses on the said inquest report marked as Exhibits “3” and “3/1”. He has stated that he found a spade there and prepared the seizure list of the said spade and the blood stained earth. He has proved the seizure list, which has been marked as Exhibit “7”. 16. Hence, taking into consideration the evidence that the prosecution witnesses supported the prosecution. Indradeo Mahto fired causing injury to Dinesh, by which he got injured and succumbed to injury. The witnesses supported the prosecution case about firing by Indradeo causing injury to Dinesh on back of his head and doctor found corresponding injury on the head of deceased by fire arm and, hence, his part of prosecution story finds support from prosecution witnesses and, further, finds corroboration by the evidence of doctor regarding the manner and time of occurrence and the investigating officer has established the place of occurrence and dead body found at place of occurrence. 17. However, so far the other part of allegation against the appellant, Amresh Choudhary (Cr. Appeal (D.B.) No. 517 of 2004) is concerned, there is allegation in fardbeyan that he was armed with lathi. However, no role has been attributed to Amresh Choudhary at all that what act of commission and omission has been done by him. Though P.W. 4, Ramdeo Mahto, named this appellant in paragraph 1 of his deposition that he (Amresh Choudhary) was armed with lathi, but, no role has been attributed and the attention of this witness has been drawn to paragraph 8 that he has not named Amresh Choudhary before police and 12 P.W. 16 in paragraph 14 of his deposition stated that P.W.4, Ramdeo Mahto, has not stated before him the name of Amresh Choudhary. However, P.W. 7 in his evidence has stated the name of this appellant that Amresh Choudhary armed with lathi. In paragraph 2 of his deposition P.W. 7 has stated that Amresh Choudhary assaulted him and Ramdeo Mahto by lathi, however, the attention of this witness has been drawn with regard to the statement before police and this witness stated that he has stated before Daroga that Amresh Choudhary assaulted him and Ramdeo Mahto by lathi. P.W. 16, the investigating officer, in paragraph 18 has stated that P.W. 7, Devraj Mahto, has not stated before him that Amresh Choudhary assaulted Ramdeo Mahto and Devraj Mahto. Hence, the evidence about participating of Amresh Choudhary during occurrence suffers from contradiction and development in prosecution story. The evidence of P.W. 9 is only about presence of Amresh with lathi without any overt act and whatever evidence alleged by P.Ws. 4 and 7, it suffers from contradiction and, hence, the participation of this appellant is doubtful. 18. With regard to appellants, Narendra Deo Prasad @ Rampati Mahto, Surendra Mahto and Hira Mahto (Cr. Appeal (D.B.) No. 492 of 2004), the allegation is that Rampati armed with lathi along with Ganesh and Jagdeep abated and ordered and, further, allegation is that they abated to assault. However, Surendra Mahto has been alleged to be armed with sword and Hira Mahto alleged to be empty handed. However, in fardbeyan Rampati @ Overseer alleged to have assaulted the informant on, both, hand and head, but, no role attributed to Surendra Mahto and 13 Hira Mahto. However, P.W. 4 has deposed, as alleged, against Rampati about abatement, but, the attention has been drawn and the contradiction recorded by the investigating officer in paragraph 14 of his deposition and investigating officer has stated that Ramdeo has not stated before him that Rampati abated. P.W. 5 though also has supported in his evidence about the abatement, but, this witness in his deposition has stated that he is suffering from cataract and, hence, his identification is not reliable. P.W. 13 has stated that Rampati gave a lathi blow on Ramdeo on his hand. However, the contradiction has been taken in the evidence of P.W. 4 Ramdeo though P.W. 13 has stated that Rampati assaulted him on his both hand by which his right hand was fractured. However, the doctor, who has examined P.W. 14, has opined the injury nos. 1 and 2 tenderness, left ridge and mid forearm are grievous in nature, but, in cross examination the doctor, P.W. 14 has stated that it is not mentioned in his report why he has described injuries no. 1 and 2 as grievous. There is no x-ray report on the record nor x-ray been suggested by doctor, hence, the evidence of doctor about the grievous nature of injury is without any basis and, hence, not reliable to be relied upon. So far the allegation against Surendra Mahto is concerned, he has been attributed to be armed with sword and Hira Mahto was empty handed as alleged in the fardbeyan. However, P.W. 3 in his evidence stated that Hira Mahto was armed with sword. But, P.W. 3 has not named Surendra Mahto in his evidence. P.W. 3, however, in his evidence stated that Hira Mahto assaulted Devraj Mahto (P.W. 7) by sword though this witness in his evidence at paragraph 5 identified an accused standing in dock as Hira Mahto, but, the said 14 accused disclosed his name as Amresh Choudahry, hence, identification of Hira by this witness is wrong. Further, this witness in his evidence in paragraph 18 has stated that his statement was recorded by Daroga at the place of occurrence at about 10.30 a.m., on the date of occurrence, and Daroga also recorded the statement of accused, Kapil, Manki, Hira Mahto and Rampati Mahto. It is apparent that accused, appellant, Hira and Rampati were appearing before police during investigation just after the occurrence and this conduct goes against the prosecution case about their participation. Further, P.W. 4 in his evidence has stated that Surendra Mahto was armed with sword and Hira Mahto was empty handed, but Hira Mahto assaulted Devraj by taking sword from Surendra Mahto. However, P.W. 5 has stated that Hira Mahto was armed with sword, but, not named Surendra Mahto. However, attention of this witness has been drawn and this witness stated that he has not stated before Daroga that Hira Mahto was empty handed. However, P.W. 16 in paragraph 18 has stated in his statement before him that Hira was empty handed and, hence, the evidence of this witness attributed Hira Mahto armed with sword suffers from contradiction. P.W. 8 though stated that Surendra was armed with sword, but, has stated in his evidence in paragraph 3 that Hira Mahto assaulted Devraj by sword. P.W. 13 has also stated that Hira Mahto assaulted Devraj (P.W. 7) by taking sword from Surendra Mahto. However, the doctor, P.W. 14, who examined Devraj Mahto (P.W. 7), had found abrasion ¾” x ¼” x skin deep in has left finger and has opined that the injury on Devraj was simple in nature caused by hard and blunt substance. Hence, from the evidence of the witness, as discussed above, 15 with regard to the weapon alleged to hold by Surendra Mahto and Hira Mahto suffers from contradiction, both inherent in the witness as well as amongst the witnesses themselves and though initially Surendra Mahto attributed holding sword and Hira Mahto empty handed, but, some of the witnesses, during trial, deposed that Hira Mahto was armed with sword and some has stated that Hira Mahto took sword from Surendra Mahto and assaulted Devraj Mahto, but, no corresponding injury of sword was found on the person of Devraj Mahto and the only injury found in the finger of Devraj by hard and blunt substance, hence, evidence of the witness suffers from contradiction about the arm and injury alleged to have