Criminal Appeal (DB) No.344 of 2004 With Criminal Appeal (DB) No. 365 of 2004 **** Against the judgment and order, dated 19.03.2004, passed by Sri B.K. Dikshit, Additional District Judge, Fast Track Court, IV, Arrah, in Session's Trial No. 130 of 1997 **** 1. Birendra Singh, s/o Ramadhar Singh 2. Umesh Singh s/o Gauri shankar Singh Both are residents of village Ghoradei, P.S. Ara, Muffasil, district Bhojpur .. Appellants (in Cr. Appeal (DB) No.344 OF 2004) 1. Ramadhar Singh, s/o Deo Narayan Singh 2. Gauri Shankar Singh, s/o Deo Narayan Singh Both are residents of village Ghoradei, P.S. Ara, Muffasil, district Bhojpur .. Appellants (in Cr. Appeal (DB) No.365 of 2004) Versus The State of Bihar .. Respondent (in both the Appeals) **** For the appellants .. Mr. Kanhaiya Prasad Singh, Sr. Adv. with M/S Rajesh Kumar & Mukesh Kumar, Advs. For the State .. Mr. Ashwini Kr. Sinha, A.P.P. For the informant .. Mr. Aditya Narayan Singh no.1, Adv. **** 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. Both the Criminal Appeals are being heard together and being disposed off by common order as the same arise out of the same 2 judgment, dated 19th March, 2004, passed by Shri B.K. Dikshit, Additional District and Sessions Judge, Fast Track Court, IV, Arrah, in Session's Trial No. 130 of 1997 by which the appellants of both the appeals have been convicted under Sections 302, 307 and 148 of the Penal Code and sentenced to undergo rigorous imprisonment for life for offence under Section 302 of the Penal Code. However, no separate punishment awarded for offence under Sections 148 and 307 of the Penal Code. 2. The prosecution case, as alleged in the fardbeyan of the informant Arun Singh (P.W. 10) is that on 15.10.1996 at about 09.00 a.m. he along with his brother Motilal Singh (deceased) went to see their field which they have purchased from Shobha Rani, Mohni Kuer and Shivjee Singh situated in village Ghoradei. When they reached in the said field they saw accused persons, namely, Ramadhar Singh, armed with farsa, Gaurishanker Singh, armed with bhala, Birendra Singh, armed with farsa, Umesh Singh, armed with garasa, Harendra Singh, armed with farsa, and Jhunnu Singh Singh, armed with lathi who were standing for ploughing the filed by tractor which they had purchased. The informant and his brother protested that why they have come to illegally plough the land pon which it is alleged that Ramadhar Singh abated to kill and he himself and gave farsa blow, Birendra Singh gave a farsa blow on the head of Motilal Singh followed with a farsa blow by Harendra by which Motilal Singh fell down on the land, thereafter, Gaurishanker Singh assaulted Motilal Singh by bhala on his arm and Umesh Singh assaulted the informant by garasa on his head by which the informant fell down and, thereafter, Jhunnu Singh assaulted 3 the informant by lathi. He has further stated that when the informant fell down he saw Umesh Singh and Jhunnu Singh Singh are assaulting Motilal Singh. On hulla, Bhola Singh (P.W. 4), Sanjay Singh (P.W. 2), Tribhuan Yadav (P.W. 9), Manlal Singh (P.W. 3), Braj Kishore (not examined) and many others came on seeing the occurrence and, thereafter, the accused persons seeing the arrival of villagers, fled away towards the village. Further, case of the prosecution is that during the treatment Motilal Singh succumbed to injury. The motive for the occurrence is that the land has been given to Raj Raushan Singh, cousin brother of the informant, by power of attorney executed by four sons of late Devdhari Singh and the accused persons are trying to take possession of the land. The fardbeyan was recorded in Sadar Hospital, Arrah, at about 12.30 p.m. in a injured state. On the fardbeyan the first information report was lodged at about 03.00 p.m. and after investigation the charge sheet was submitted. Subsequently, the cognizance was taken and the case was committed to the Court of sessions. 3. After commitment the case was transferred to the Court of Additional Sessions Judge and charge was framed under Sections 148, 302 and 307 of the Penal Code against all the appellants. After framing of the charge the trial proceeded during trial fifteen witnesses have been examined on behalf of the prosecution, who are P.W. 1, Raj Roshan Singh, P.W. 2, Sanjay Singh, P.W. 3, Mamlal Singh, P.W. 4. Bhola Singh, P.W. 5, Padamdeo Singh, P.W. 6, Saehida Nand Singh, P.W. 7 Ramadhar Singh, P.W. 8, Triloki Singh, P.W. 9, Tribhuwan Yadav, P.W. 10, Arun Singh, P.W. 11, Hwaldar Gurusaran Yadav, 4 P.W. 12, Srikant Upadhyaya, P.W. 13, Ganesh Paswan, P.W. 14, Pashupati Nath Upadhyaya, and P.W. 15, Tarkeshwar Prasad. 4. The documentary evidence adduced in the case are Exhibit 4, signature on fardbeyan, Exhibit 2 injury report, Exhibit 3, post mortem report, Exhibit 4, signature on inquest report, Exhibit 1/1, signature on fardbeyan, Exhibit 4/1, Signature on inquest report, Exhibit 5, fardbeyan, Exhibit formal first information report, Exhibit, inquest report, Exhibit 8, injury report, Exhibit 9, seizure list, material Exhibit (i) sickle, Exhibit 10, letter, dated 22.07.1998, Exhibit 11, certified copy of the sale deed. 5. After hearing the oral and documentary evidence and taking into consideration the submission made by the parties the learned trial Court convicted the appellants and sentenced as above. 6. It is submitted that P.Ws. 1 to 5 claims to be the eye witness and P.W. 6 is the doctor, P.W. 7 is the uncle of the informant, who is not an eye witness, P.W. 9 is not an eye witness, P.W. 10 is the informant, P.Ws. 11, 14 and 15 are formal witnesses and P.Ws. 12 and 13 are investigating officers. The learned counsel for the appellants contends that the inquest report was prepared prior to recording of the fardbeyan and inquest report was singed by the informant, P.Ws. 8 and 10, but, it does not mention the name of the accused persons. He has, further, contended that at the time when police reached at the place of occurrence the witnesses did not give any statement and the witnesses deposed after long delay of 5 to 10 days and even more since the statement of the witnesses were taken after long delay these are not worthy of reliance. It has, further, been contended that the 5 investigating officer did not find any objective evidence like the blood and trampling mark at the place of occurrence and there is allegation that three blow were given by farsa, but, there is only two corresponding injuries by farsa and, hence, the manner of occurrence is not being corroborated and the explanation given that the two assault by farsa may be overlapping is not acceptable and further the statement under Section 313 of the Criminal Procedure Code recorded is not well defined that each part of the occurrence in evidence has not been asked separately, i.e., every part of the evidence has not been asked to the accused and the investigation is defective. 7. Learned counsel for the State, however, contended that the prosecution case has proved the charge sheet beyond reasonable doubt and defective investigation is not fatal to the prosecution when ocular evidence found credible and cogent and, hence, the accused can not be acquitted on account of defective investigation, hence, on the respective submissions of the parties the question for consideration whether the prosecution has proved the charge sheet beyond reasonable doubt. 8. Now, I proceed to consider the evidence in the light of the submissions of the parties. 9. Prosecution case, as stated in nut shell, is that the informant (P.W. 10) along with deceased, Motilal Singh, went to see their field at village Ghoradei, which they have purchased then saw Ramadhar, armed with farsa, Garu Shankar, armed with bhala, Birnedra, armed with farsa, Umesh Singh, armed with garasa, Harendra armed with farsa and Jhunnu Singh, armed with lathi were standing 6 with tractor to plough their land and on protest Ramadhar commanded and gave a farsa blow on the head of Motilal Singh and Birendra also gave a farsa blow on the head of Motilal and Harendra also gave a farsa blow on the head of Motilal Singh by which Motilal Singh fell down and, thereafter, it is alleged that Gauri Shankar gave a bhala blow on arm of Motilal Singh. It is further alleged that Umesh Singh gave garasa blow on the head and hand of the informant by which informant fell down, one Jhunnu Singh assaulted him by lathi and then he saw after having fallen that Umesh Singh and Jhunnu Singh are assaulting Motilal, hence, the assault by Umesh Singh and Jhunnu Singh on Motilal Singh is omni bus and neither mentioned that by what weapon and on which party they assaulted Motilal Singh. Thereafter, on hulla, Bhola Singh, Padamdeo Triloki, Sanjay, Tribhuvan, P.Ws. 4, 5, 8, 2, 9 and 3 respectively came. 10. P.W. 10 is the informant. He has stated in his evidence that he went near the land, along with his cousin brother, to cut the grass and when they reached near the field then saw Ramadhar Singh, armed with farsa, Harendra and Birendra armed with farsa, Gauri Shankar, armed with bhala, Umesh Singh, armed with garasa and Jhunnu Singh, armed with lathi were preparing for ploughing the land which they have purchased from Sohni Kuer and Shivjee Singh. Motilal Singh protested the accused persons that they are trying for ploughing the land in illegal manner on which Ramadhar abated and gave a farsa blow on the head of Motilal Singh and, thereafter, Birendra and Harendra gave farsa blow on the head of Motilal on which Motilal Singh fell down and, thereafter, Gauri Shankar assaulted Motilal Singh 7 by bhala on his right arm, thereafter, Umesh Singh assaulted the informant by garasa on his head and right arm on the middle finger and Jhunnu Singh assaulted by lathi on the shoulder of the informant then he fell down and when he fell down then he saw Umesh Singh and Jhunnu Singh are assaulting Motilal with lathi, however, the informant supported the prosecution case, but, with minor variation attributing the role on Umesh Singh and Jhunnu Singh of assaulting Motilal Singh by lathi whereas Gauri Shankar Singh has been attributed the role of assault by bhala and Umesh Singh has been attributed to have been armed with garasa, but, no corresponding injury by bhala on it’s stamp edge and no garasa injury on deceased by it’s blunt edge. 11. However, this witness has stated that after the occurrence the witness came and the accused persons fled away and the deceased, Motilal Singh, was taken to hospital and he died during the treatment. The police came in hospital, recorded the fardbeyan which was read over and singed. He has proved the signature on the fardbeyan Exhibit 1/1. He has, further, stated that while the fardbeyan was being read over by the informant, witness Manlal Singh was present there and he also signed on the fardbeyan before him and has proved the signature of Manlal Singh as Exhibit 1. He has also proved his signature on the inquest report prepared by the police marked as Exhibit 4/1. He has, further, stated that when they had gone to cut the grass at that time there was hasua in the hand of Motilal Singh. He has, further, stated that proceeding under Section 107 of the Criminal Procedure Code was going on between them and the accused persons with regard to that land. However, in the cross examination it has been 8 pointed out by the defence mentioning the boundary of disputed land which has been purchased by him and has stated that there is a ridge in between the land of the accused persons and the land which he has purchased and the said ridge is north-south direction. However, he has, further, stated that the land of the accused persons is in north and the land which he has purchased is in south and in between it there is no ridge and he has not filed any petition for mutation and he has paid the rent in the name of Shobha Rai. However, he has stated that the power of attorney was executed about a year back and the land for which the sale deed executed was in the share of Deodhari Rai. He has, further, stated that they had been to cut the grass, but, he has not taken anything, however, stated that he and Motilal used to cut grass in rotation, one-by-one and on that day whey were going to cut the grass and has stated that they had been to cut the grass and brought the grass by tying it in towel and has stated that before reaching the field they have not cut any grass. However, regarding the manner of occurrence he has stated that Ramadhar firstly assaulted Motilal by farsa, thereafter, Birendra and Harendra gave farsa blow simultaneously and then Gauri Shankar assaulted by bhala. He has, further, stated that bhala blow was given from the sharp portion and used as a lathi, but, it did not hit from the pointed portion of bhala rather the injury was from the lathi portion and up till that time he fell down. Further, he got injury while saving him. He has, further stated that he got injury during saving himself and injury was on his finger, head and right shoulder and the accused persons were assaulting and the assault was being given to Motilal Singh from the back portion of the garasa and a lathi 9 portion of bhala. It has, further, been stated that head of Motilal Singh was tied with towel, but, the blood was oozing. However, this witness has stated that it is not a fact that Deodhari was in possession of the land and he was not married with intention to grab the land of Deodhari, the paper has forged and fabricated and no occurrence, as alleged has occurred. However, from the evidence of this witness it is apparent that he along with Motilal Singh went with sickle and reached at the place of occurrence. However, so far the manner of occurrence is concerned, this witness stated that the assault by Umesh Singh by bhala has not been specifically stated, however, in cross examination he has stated that he remained saved at the time of assault on Motilal Singh and he only got injury while saving Motilal from assault. 12. P.W. 6 is the doctor, who has examined the informant, Arun Singh and has found abrasion on the vertex skull and nature of injury was shown to be simple by hard and blunt substance may be from the blunt side of farsa. Injury no. (ii) is incised wound of lateral sharp of right middle finger terminal phalanx size 1(1/2)” long 1/6” wide skin deep nature of injury simple caused by sharp cutting weapon may be by farsa, injury no. (iii) abrasion on the frontal skull size ½” x ½” the nature of injury shown to be simple by hard and blunt substance, injury no. (iv) two lineal bruises on right shoulder each measuring 4” long and ½” wide nature simple, the time of injury within six hours. However, the informant, Arun Kumar Singh, was examined by the doctor at 12.25 p.m. and, hence, from the injury report it is apparent that the injury is found within six hours whereas the allegation of the occurrence is at 09.00 a.m. well fall within six hours from the time of 10 examination. However, this witness stated in examination-in-chief that Umesh Singh assaulted him by garasa on his head and finger and Jhunnu Singh assaulted him by lathi on his shoulder, but, in cross examination has stated that he received injury while he was attempting to save Motilal Singh though he has stated that he was assaulted by garasa from the back portion. 13. The learned counsel for the accused persons, however, contended that if the witnesses alleged that he was assaulted by garasa and Gauri Shankar assaulted the deceased by bhala then it shall deem that the injury caused by bhala and garasa was made by sharp portion and any explanation about the assault by blunt portion is not acceptable and it touches the credibility of the witness. However, though the injury had been found, but, sharp cutting on the finger as well as both the bruises and sharp cutting on the head of the informant which are though of sharp cutting, but, of minor nature as only skin deep injury on the middle finger and other injuries have been found as bruises on shoulder and abrasion on the skull found by the hard and blunt substance by lathi and there is no injury by the farsa or sharp cutting weapon on the skull whereas in the fardbeyan the informant has alleged that he was assaulted by garasa on head and hand, but, there is no sharp cutting injury on the head and the injuries found on the informant are all simple or superficial and none of the injuries either single or cumulative effect of all the injuries taken together can not be said to have been inflicted with intention to kill. 14. P.W. 6, has also conducted the autopsy on the person of the deceased, Motilal Singh, and has stated that on 15.10.1996 at 11 02.00 p.m. he conducted the post mortem report examination on the body of the deceased, Motilal Singh, aged about 35 years, identified by Havildar, Guru Sharan Yadav and Chowkidar, Ram Ishwar Yadav, and found the following injuries on external examination: (i) On head – two sharp cut injury on left parietal scalp of head measuring both separately as 3” long 1/5” wide up to bone deep caused by sharp cutting instrument, may be by farsa (in three strokes if two strokes over-lapped) (ii) Right upper limb – swelling of right arm and elbow joint, swelling encircling the limb and spread over 4”-5” caused by hard and blunt weapon, may be by lathi. (iii) Five or six linear bruises each 5” long and 1” wide n lateral aspect of chest, right side cause by hard and blunt substance may be by lathi etc. 15. In cross examination he has stated that over lapping means two blows of one size. He has, further, stated that he can not say which of the injuries is over lapping injury. The size of both the injuries is same. He has not given the side and the size of the broken parietal bone which was found fractured though he has not mentioned the position of the rib which was found fractured. However, from the injury report it is apparent that there is no injury of bhala or a sharp cutting weapon on the person of the deceased on his arm as alleged to have been given by Umesh Singh. However, an explanation has been given by the informant (P.W. 10) that though bhala injury was inflicted, but, which does not hit by the pointed portion of bhala, but, it was hit by blunt portion. 12 16. P.W. 1 is Raj Raushan Singh and he has stated that at the time of occurrence he was sitting on the boring of Barbansh Singh as he has got a land by the side of the said boring which he has got by power of attorney and his cousin brother, Arun Kumar Singh, has taken on sale deed and then the accused persons have come armed with weapons as stated in the fardbeyan to plough the land with tractor and on protest Ramadhar gave a farsa blow on Motilal on his head and, thereafter, Harendra and Birendra simultaneously gave farsa blow on the head of Motilal by which he fell down and when Motilal fell down then Gauri Shanker Singh assaulted Motilal from lathi portion of bhala and, thereafter, Jhunnu Singh and Umesh Singh assaulted Motilal by lathi and garsa on his chest and back. However, in his cross examination he has stated that Brindra and Harendra assaulted the deceased only once and has stated that blood was oozing from the head of Motilal Singh and from the finger of Arun Kumar Singh. However, it is stated that he went along with Motilal to hospital, but, thereafter, he went to Court. He claims to be an Advocate and has stated that he remained in Court till 04.00 p.m. and, thereafter, he come to hospital, but, he did not meet the police there and has stated that he did not disclose about the occurrence in Court and at the time of occurrence the tractor was in the field, hence, he supported the prosecution case about assault by bhala by Gauri Shanker Singh who has stated that it was an assault by lathi portion of bhala by Gauri Shanker Singh. 17. The learned counsel for the appellants, however, contended that in the first information report the informant has stated the assault by bhala, there is no mention of lathi portion of bhala and 13 now this witness changed the stand regarding the assault by lathi portion of bhala, however, six witness in examination-in-chief has stated that Umesh Singh Singh assaulted Arun Kumar Singh by garasa on his head and while Arun Kumar Singh was trying to managed the said assault by hand then he got injury of his finger and, thereafter, Umesh Singh Singh gave a blow by garasa from it’s back side. Hence, the witness has supported the prosecution case, but, there is some variation about assault by bhala and explanation for variation is that it was blunt portion and further assault by farsa by Umesh Singh on head resisted on hand, but injury is as wound at hand which is skin deep and does not indicate a corresponding injury by assault. 18. P.W. 2, Sanjay Singh, also supported the prosecution case as alleged in the fardbeyan about the assault by farsa and then by lathi portion of bhala on the person of Motilal Singh and, thereafter, assault by farsa and danda by Umesh Singh and Jhunnu Singh on the chest of the deceased. However, in the cross examination he has stated that the tractor came from the west where he was cutting the grass and the accused persons were coming ahead of the tractor, however, stated that accused persons after coming in the field were preparing for ploughing the land and were filling the diesel in the tractor and, in the meantime, the prosecution party, Arun Kumar Singh and Motilal Singh reached there. However, there is no mention about the filling of the diesel in tractor in preparation in the fardbeyan, however, this variation is a minor thing of minute details. However, there is nothing in the evidence of this witness to disbelieve the prosecution case about the 14 occurrence. However, this witness has stated that his statement was recorded by Daroga after 10-15 days. 19. P.W. 3 is Sanjay Singh. He has also supported the prosecution case about the occurrence and assault by farsa by Ramadhar followed with Birendra and Harendra and assault by Umesh Singh Singh by farsa on Arun causing injury on his head and assault by Gauri Shanker Singh on Motilal causing injury by blunt portion of bhala. However, it is stated in his cross examination that at the time when Arun and Motilal reached near the field by that time diesel had been filled in the tractor and at the time of occurrence the driver was there, but, after the occurrence the driver fled away along with the tractor. However, it is stated that he does not know the number of the tractor or the make of the tractor nor can disclose that where is the container from which the diesel was being filled in the tractor and what is the capacity of the container. However, he stated