CRIMINAL APPEAL No.454 OF 1988 (DB) With CRIMINAL APPEAL No. 458 OF 1988 (DB) With CRIMINAL APPEAL No. 511 OF 1988 (DB) With CRIMINAL APPEAL No. 520 OF 1988 (DB) -------- Against the judgment of conviction and order of sentence dated 20th August, 1988 passed by Sri N. C. Lala, Additional Sessions Judge II, Patna in Sessions Trial No. 399 of 1983. ********* 1. MAHAVIR SINGH, SON OF LATE BUDHAN SINGH 2. ARJUN SINGH, SON OF MAHAVIR SINGH BOTH RESIDENT OF VILLAGE-PABHERA, P.S.- DHANARUA, DISTRICT-PATNA ………….APPELLANTS (IN Cr. Appl. No. 454/88) 3. PRABHAKAR SINGH SON OF NOKHU SINGH 4. AWADHESH SINGH SON OF NOKHU SINGH BOTH RESIDENT OF VILLAGE- PABHERA, P.S.- DHANARUA, DISTRICT-PATNA ………….APPELLANTS (IN Cr. Appl. No. 458/88) 5. SHRI SINGH SON OF LATE MUNSHI SINGH 6. BUTAI SINGH SON OF LATE MUNSHI SINGH BOTH RESIDENT OF VILLAGE- PABHERA, P.S.- DHANARUA, DISTRICT- PATNA …….. APPELLANTS (IN Cr. Appl. No. 511/88) 7. NOKHU SINGH SON OF LATE BHUP NARAIN SINGH, R/O VILLAGE- PABHERA, P.S.- DHANARUA, DISTRICT- PATNA ………………………………..… APPELLANT (IN Cr. Appl. No. 520/88) Versus THE STATE OF BIHAR (in all the four appeals) --- RESPONDENT *********** For the Appellants :- Mr. Shailendra Kumar Verma, Advocate For the State :- Ms. 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 appellants have challenged the order of conviction and sentence dated 20th August, 1988 passed in Sessions Trial No. 399 of 1983 by the learned Additional Sessions Judge II, Patna whereby and whereunder the appellant 2 Nokhu Singh has been convicted under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life and further he was convicted under Section 148 of the Indian Penal Code and Section 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for two years on each count. Appellants Butai Singh, Sri Singh, Mahavir Singh, Prabhakar Singh, Awadhesh Singh and Arjun Singh were convicted under Sections 302/149 of the Indian Penal Code and were sentenced to undergo imprisonment for life. Though appellants Butai Singh and Sri Singh have also been convicted under Section 148 of the Indian Penal Code and 27 of the Arms Act and were sentenced to undergo rigorous imprisonment for two years on each counts. Appellants Mahavir Singh, Prabhakar Singh, Arjun Singh and Awadhesh Singh have further been convicted under Section 147 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for one year. All the sentences were directed to run concurrently. 2. For appreciating the grounds of appeals, we feel inclined to trace the backgrounds in which the prosecution case has been initiated. 3. The prosecution case started with the fard-beyan of Bijendra Narayan Singh (PW 7) recorded on 28.11.1979 at about 6.30 P.M. by Niranjan Prasad Singh (PW 9) in presence of Ram Sudan Singh (PW 6), Chowkidar Ramchandra Ram (Not examined) and Dafadar Biswanath Pandey (PW 4) to the effect 3 that on the same day at 4.30 P.M. the informant and his father Sat Narayan Singh (deceased) went outside the village- Pavera to see the land. When they reached near Pavera Kutchery then they saw people standing at some distance, namely, Nokhu singh, Mahavir Singh, Butai Singh, Sri Singh, Awadhesh Singh, Prabhakar Singh and Rajdeo Singh, of which Nokhu Singh, Butai Singh and Sri Singh were armed with rifle and rest were armed with small danda. It is alleged that as soon as the father of the informant moved forward, Nokhu Singh said that this is the opportune moment then Mahavir Singh ordered to assault, upon which Nokhu Singh fired from his rifle which hit on the chest of the father of the informant. He also alleged that Sri Singh and Butai Singh also fired whereas rest accused persons chased the informant to assault. On seeing the assault, the informant fled away towards his house. The father of the informant fell down on the spot. On alarm the uncle (PW 6) of the deceased who was also going towards the field, Sibam Singh (PW 3), Yogendra Narayan Singh (PW 1), Brajdeo Mishra (not examined) and several people came at the place of occurrence. The accused persons fled away towards east. It is claimed by the informant that his father was alive even thereafter when he was brought home but the victim died as soon as he reached home. It is further claimed by the informant that altogether four firings were made. The Constables of Pavera Guard also reached the place of occurrence but by that time the accused persons fled away. The 4 constables tried to locate the accused persons but they concealed themselves somewhere. Thereafter, the informant along with Chowkidar (not examined), Dafadar (PW 4) and his uncle (PW 6) came at the police station and got recorded the fard-beyan. The motive behind the allegations levelled against the appellant Nokhu Singh is that one year prior to the occurrence, the deceased had misappropriated his twelve thousand rupees. The aforesaid fard-beyan ultimately culminated into registration of Dhanarua P.S. Case No. 25/ 79 dated 28.11.1979 (Ext.3) under Sections 147, 148, 149, 302 of the Indian Penal Code and Section 27 of the Arms Act. 4. After investigation the police submitted chargesheet and on cognizance having been taken against eight accused persons, namely, Nokhu Singh, Arjun Singh, Prabhakar Singh, Rajdeo, Butai, Sri Singh, Mahavir Singh and Awadhesh Singh the accused persons were put on trial. Charges were framed under Sections 302/149 Indian Penal Code against all the eight accused persons whereas Nokhu Singh was separately charged under Section 302 of the Indian Penal Code. Nokhu Singh, Butai Singh and Sri Singh were also charged under Section 27 of the Arms Act. Whereas Mahavir Singh, Arjun Singh, Awadhesh Singh, Prabhakar Singh and Rajdeo were charged under Sections 147 and 148 of the Indian Penal Code. 5. The prosecution, in order to substantiate its case, examined nine witnesses, of which PW 1 Yogendra Narayan 5 Singh is the son of the deceased and brother of the informant. He claims to have reached on the spot on hearing sound of gun shot and saw the accused persons fleeing away from the place of occurrence. 6. PW 2 Mithilesh Giri is an independent witness but he stated that his statement was not recorded by the police. Hence, he has been declared hostile. PW 3 Sibam Singh is the next door neighbour of the deceased and claims to be an eye witness to the occurrence. PW 4 Biswanath Pandey, Dafadar, is the witness to inquest report along with PW 6. 7. PW 5 Dr. R. P. Srivastava is the doctor who performed autopsy on the dead body of Satya Narayan Singh (deceased). PW 6 Ram Sundar Singh is the own brother of the deceased and was cited as eye witness but he has not supported the prosecution case as an eye witness and has been declared hostile. PW 7 Bijendra Narayan Singh is the son of the deceased and informant of the case who claims to be in the company of the deceased when the occurrence took place and has given an eye witness account of the occurrence. PW 8 Ram Nath Singh, A. S. I. who was posted at Dhanarua Police Station at the relevant time to whom the investigation was handed over by Niranjan Prasad Singh (PW 9) who initially recorded the fard-beyan, instituted the case and inspected the place of occurrence. 8. The defence has also examined Ram Nagina Prasad, the then A.S.P., who supervised the case but he has also been 6 cross-examined by the defence. 9. The learned Trial Court relying on the evidences of PWs 3, 7, 8 and 9 and DW 1 acquitted Rajdeo Singh whereas held seven accused persons to be guilty. Accordingly, judgment of conviction was passed. 10. The death of Satya Narayan Singh by firearm injury is an admitted fact. This Court has to see whether the prosecution has been able to prove the manner of occurrence and place of occurrence as claimed by the prosecution. Though initially the informant claimed that the occurrence was witnessed by PWs 1, 3 and 6 but during trial only PW 3 and 7 claimed to have witnessed the actual occurrence. As PW 1 in paragraph 1 of his evidence, has claimed that while he was sitting in his house, he went to the place of occurrence on hearing the gun shot firing where he saw eight accused persons fleeing away from the place of occurrence. PW 1, in paragraph 6 of his evidence, has stated that the distance between his house to the place of occurrence is 150-175 yards. As per the informant (PW 7), he raised alarm after the victim received gun shot injury and it is an admitted case that immediately after firing, the accused persons fled away. Hence, the claim of PW 1 having seen the accused persons fleeing away, appears to be unreasonable when he admits that his house was situated at the distance of 150-175 yards from the place of occurrence. 11. PW 2 Mithilesh Giri has been declared hostile and 7 in chief he has stated that none came to meet him whereas the claim of PW 3 of witnessing the occurrence is that he went to the house of PW 2 when he saw the accused persons standing near Purani Kutchery. When he was returning from the house of PW 2 then he saw the actual occurrence. Hence, the evidence of PW 2 clouds the bona fide of PW 3. 12. PW 3 Sibam Singh in his evidence has admitted that he is the next door neighbour of the deceased. He claimed to have seen the accused persons near Purani Kutchery at 4 to 4.15 P.M. PW 3 was returning from the house of PW 2 then he saw Satya Narayan Singh (deceased) and PW 7 coming from the village in the mean time Nokhu Singh cited that this is the opportune moment. When Mahavir Singh ordered then Nokhu Singh fired causing injury to Satya Narayan Singh as a result of which he died. This witness went back in the eastern side and accused persons fled away towards the northern side. The claim of this witness is that he was going to the house of Mithilesh Giri (PW 2) at 4.15 P.M. whereas it has been claimed by the informant that the occurrence took place at about 4.30 P.M. appears to be unreasonable, particularly in view of the fact that the claim of PW 3 that the accused persons were standing with arms when he was going to the house of Mithilesh Giri (PW 2) whereas it has been claimed by the informant (PW 7) that the accused persons came variously armed from the eastern side when the informant and the deceased reached near the Purani 8 Kutchery. 13. PW 3 in paragraph 2 of his evidence has stated that he again reached the place of occurrence when the accused persons fled away. But in his evidence he does not suggest that initially he fled away from the place of occurrence and nor this claim of PW 3 is being supported by PW 7 either in his fard- beyan or in his evidence. The claim of PW 3 who has seen the occurrence further gets clouded with the evidence of PW 8 in paragraph 9 where PW 8 has specifically stated that PW 3 never stated, specifically about the assault. He has not stated about seeing the accused persons near the Purani Kutchery. 14. The evidence of PW 3 can also not be relied upon in view of the fact that he saw only one injury on the chest of the deceased whereas the doctor’s evidence suggests that two injuries apparent on the front part of the body. One is the entry wound and another is the exit wound but PWs 3 and 7 both talked only about only one injury. Hence, in view of the evidence of Investigating Officer, claim of PW 3 of witnessing the actual occurrence appears to be false. The evidence of PW 3 further becomes doubtful in view of the claim of PW 7 that the accused persons came from the eastern side of Kutchery whereas PW 3 in paragraph 8 has deposed that the accused persons came from the western side of Kutchery. 15. PW 4, Dafadar, is the signatory to the inquest report but this witness does not talk about injury of the victim. 9 The inquest report surprisingly, also speaks about only one injury to the victim. Column 8 of the inquest report reflects that the victim was wearing Lungi and Kameez but the inquest report does not talked about any clothes of the deceased. 16. PW 9 is the doctor who conducted post mortem and found two injuries on the dead body of the deceased Satya Narayan Singh which are as follows: “(i) Circular wound ¼” diameter x chest cavity deep with inverted charred margin on the front of left side of chest 2” above and inner side of nipple. No blackening or tattooing around the wound was found. (ii) Circular wound 1/3” diameter x abdominal cavity deep with averted charred margin on the lower portion of the right side of abdomen above groin.” In the opinion of the doctor injury no. 1 is the wound of entry whereas the injury no. 2 is the wound of exit. The injury was caused by one gun shot. PWs 3 and 7 do not talk about any injury in the back which clouds their claim of being eye witnesses. On dissection the doctor found under-neath injury no. 1 circular wound ¼” diameter with charred margin on left side of chest wall between 3rd and 4th ribs, lacerated wound ½” x ½” with charred margin over the anterior and posterior part of pericardium. Lacerated wound ½” x ½” with charred margin on the anterior and posterior part of right side of heart. Further 7th 10 thoracic vertibra ½” x ¼” x bone deep charred. One circular hole ¼” in diameter with charred margin over the upper and interior surface of the left lobe of the liver communicating to each other under-neath injury on the diaphragm. 17. Learned counsel for the appellant relied on the judgment rendered in the case of Santa Singh V. State of Punjab reported in 1956 AIR SC 526 which suggests that if there are burnt edges of the wound, the distance between the muzzle and the victim would only be a few inches and not more than nine inches. Therefore, the said principle has been discussed in paragraph 5 of the said judgment which are as follows: “The circular wound of entry at the back of the deceased, ¼” in diameter, had burnt inverted margins according to the doctor who conducted the postmortem examination. The ballistic expert, Dr. Goyle, examined as P.W. 11, said that if there were burnt edges of the wound, the distance between the muzzle and the victim would only be a few inches and not more than nine inches. This opinion is in substantial accord with what is found in some of the text books on medical jurisprudence. For instance, it is stated in Taylor’s Principles and Practice of Medical Jurisprudence, Vol. I, 10th Edition, at page 441, under the heading “Burning of the Wound”. “It is impossible to state rules as to the precise distance from which it is possible to produce 11 marks of burning, for this depends on the quantity & nature of the powder, the method of charging, and the nature of the weapon. It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shot gun, or at more than half a yard with a revolver”. 18. It is the consistent case of the informant that after firing of Nokhu, Butai and Sri Singh also fired and this claim was not only mentioned in the fard-beyan but also in the protest petition dated 20.12.1979 and 27.2.1980 (Exts. D and D/1). It appears that PWs 3 and 7 have deserted the claim of firing by Butai and Sri Singh after seeing the post mortem report because during evidence they tried to improve their version by saying that the firings were made by others also. This creates doubt over the claim of PWs 3 and 7 to be eye witnesses. The injury no. 2 reflects that the wound of exit being in the nature of everted margin have also been described by the doctor as charred which creates doubt about the opinion given by the doctor (PW 5). 19. Though the doctor has found the wound of entry and wound of exit charred but has not found any blackening or tattooing whereas it is claimed by PW 3 in paragraph 10 of his evidence that the firing was resorted by Nokhu Singh from 5-6 yards. Though PW 7 in paragraph 22 of his evidence has stated that the firing has been made from 10-15 feet but the claim of PWs 3 and 7 of such a close distance firing ought to have caused 12 blackening and tattooing near the area of injury. PW 1 in paragraph 2 of his evidence has stated that PWs 1, 3, 6 and 7 have stated to him that the firing was resorted from the distance of 40-50 yards. But it appears that by seeing the charred margin of injury, PWs 3 and 7 have subsequently during trial improved their version by deposing that the firing was made from close range. It is surprising that the learned trial court though relied on the evidence of PW 1 and acquitted Rajdeo but has not considered the distance of firing which was specifically stated by PW 1. This discrepancy in the claim of PWs 3 and 7 and the medical evidence create severe doubt about the eye witnesses claimed to have seen the manner of occurrence. 20. It is true that the medical evidence being opinionative in nature cannot over ride the ocular evidence but when the medical evidence completely negates or creates serious doubt about the ocular evidence then the ocular evidence cannot be relied upon. In the present case, we find that the medical evidence creates serious doubt about the prosecution version as claimed by PWs 3 and 7. 21. PW 6 who is the brother of the deceased has not supported the manner of occurrence and has been declared hostile though he has been named by PW 7 the informant to have seen the occurrence. Hence, the evidence of PW 6 in no way helps the prosecution. 22. PW 7 is the informant whose case from the very 13 inception is that he was accompanying the deceased when the occurrence took place. In the fard-beyan PW 7 has stated that when his father received the gun shot injury he ran away towards the village but during the evidence he retracted from the said version by saying that he only moved ten steps backward and remained at the place of occurrence. The second inconsistency in the evidence of PW 7 is that in the fard-beyan his specific case is that first Nokhu fired, thereafter, Butai and Sri Singh also fired on the deceased and that contention perpetuated in the protest petition also. But during evidence PW 7 talks about the firing by other accused persons in the air. PW 7in his fard-beyan has stated that as soon as the victim was brought home, he died. Whereas in paragraph 3 of his evidence he has stated that on way home, the victim died. The evidence of PW 5 suggests that there was hole in the pericardium, and heart by the gunshot firing which suggests that the victim would have died instantaneously. The other inconsistencies in the evidence of PW 7 is that he did not see any blood coming out from the body of the victim which makes the presence of PW 7 at the place of occurrence absolutely improbable because the nature of injury on the chest suggests that the maximum blood would have pumped out immediately. Moreover, the doctor has found only 150 CC blood in the pericardium. Moreover, PW 7 does not talk about the second injury which is below the abdomen near the Groin. The aforesaid inconsistencies in the evidence of PW 7 14 create doubt about his claim of being an eye witness. Moreover, improvements made in his evidence compel us not to rely on his evidence. The unnatural conduct of PW 7 further impeaches his credibility in view of the fact that when the victim received such injury and they found the victim to be alive then it was not reasonable to bring the victim home rather take him to hospital. This conduct of PW 7 lends credit to the suggestion of defence that the victim was killed in some manner and at some other place and subsequently the dead body was brought home. Hence, we come to the conclusion that the prosecution has failed to prove the manner of occurrence. 23. So far as place of occurrence is concerned, it has been stated by PWs 1, 3 and 7 that the occurrence took place near Purani Kutchery. PW 1, in paragraph 1 of his evidence, has stated that he found his father in injured condition near Kutchery whereas PW 3 in paragraph 8 has stated that the place of occurrence is west to the Kutchery. PW 7 in paragraph 1 has stated that the occurrence took place at the east to Purani Kutchery and PW 9 in paragraph 4 has found the place of occurrence the mud road in front of Kutchery in village Pavera from where the blood stained earth was seized. Though the defence has suggested the place of occurrence in the eastern field of the victim but has not brought anything on record to prove the same. Though the Investigating Officer has not sent the blood stained earth for chemical examination nor found any 15 blood from the place of occurrence to the house of the informant where the dead body was kept which creates doubt about the prosecution version but in absence of any evidence to the fact that the occurrence did not take place at the place claimed by the prosecution, we have no option but to accept that the prosecution has been able to prove the place of occurrence. Though for non-dropping of the blood the prosecution has claimed that the injuries were tied with some clothes but neither the inquest report nor the Investigating Officer has found any such cloth on the body of the victim. Moreover, the amount of blood found by the Investigating Officer gets reflected from the evidence recorded in paragraph 4 of his evidence which suggests that it was very small amount of blood which creates doubt about the Investigating Officer. Though PW 9 in paragraph 6 found the body soaked in blood but has deposed in paragraph 8 that he could not remember whether he found any blood at the door of the informant where the dead body was kept. All these things certainly creates doubt about the perfunctory investigation made by the Investigating Officer. 24. So far as the motive is concerned, it is alleged in the fard-beyan that it was claimed by the appellant Nokhu that the victim misappropriated Nokhu’s twelve thousand rupees, but the prosecution has not brought on record any thing given to the police with regard the occurrence to prove the motive. It is true that when the prosecution gives the eye witness account then 16 the motive takes the back seat but when the eye witness account itself is doubtful then the motive takes the prime role in proving the prosecution case. The motive as alleged by the informant has been denied by the own brother of the deceased,