CRIMINAL APPEAL (DB) No.273 OF 1989 Against the judgment of conviction and order of sentence dated 12.05.1989 passed by Sessions Judge, Begusarai, in Sessions Trial No. 171 of 1984 arising out of Bhagwanpur P.S. Case No. 72 of 1982. 1. Ram Jiwan Choudhary alias Mito Choudhary, son of Hari Narain Chaudhary. 2. Prem Kumar Chaudhary, son of Haribansh Chaudhary. 3. Dilip Kumar Sinha, son of Ram Pratap Lal. 4. Suresh Chaudhary alias Ram Suresh Chaudhary, son of Shri Ram Chaudhary, All residents of village Aghapur, P.S.- Bhagwanpur in the district of Begusarai. -----------------Appellants. Versus The State of Bihar. ------------Respondents. For the Appellants : Mr. Sakil Ahmad Khan, Sr. Adv. Mr. Sajid Shalim Khan, JC, Adv. Mr. Ram pravesh Nath Tiwari, Adv. For the Informant : Mr. Rai Mukesh Sharma, Adv. Mr. Rajendra Pd. Singh, Adv. 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 AKHILESH CHANDRA ****** Akhilesh Chandra, J. This appeal has been preferred against order dated 12.05.1989 passed by learned Sessions Judge, Begusarai, in Sessions Trial No. 171 of 1984 arising out of Bhagwanpur P.S. Case No. 72 of 1982. Wherein appellant no.1 has been held guilty for the offence under Section 302 of the Indian Penal Code, whereas remaining three have been held guilty for the offence under Section 302/34 of the Indian Penal Code and all the four appellants have been awarded sentence to undergo rigorous imprisonment for life giving rise to present appeal. 2. The prosecution case is based on Ext.5. The - 2 - fardbeyan of Basudeo Mahto (P.W.4) recorded by S.N. Jha, Investigating Officer (P.W.8) at 9.45 P.M. on 12.09.1982 at Manepur Gosarabaha (Place of occurrence) is that the deceased Doman Mahto brother of the informant had gone to Bhagwanpur Block at about 10 A.M. through bicycle and subsequently the informant also left the village at about 3 P.M. for village Manepur to meet his niece, during their return to home at about 7 P.M. both the brothers met each other at Manepur Chowk, for a while, they had a brief talk with each other and the deceased proceeded for the village on his bicycle instructing the informant to follow and when the informant reached opposite the house of Ganesh Rai (not examined) heard “Baap Re” immediately he along with Ramdehi Mahto (P.W.6) rushed towards the place and found the appellants overpowered his brother Doman Mahto (deceased) and when the duo arrived nearer, appellant no.1 Ram Jiwan Choudhary shot at Doman Mahto and all fled away towards west, on alarm Ramnihora Rai (not examined), Rameshwar Choudhary (P.W.5) and several others arrived who may say about the occurrence, if seen or heard. Doman Mahto lost his life soon. The reason behind the occurrence as stated in fardbeyan is political rivalry between one Laxman Singh owner of Aagapur Kothi with whom deceased an ex-Mukhiya had a contest for the post of Mukhiya, but lost, and appellant no.1 Ram Jiwan Choudhary is manager and muscle man of Laxman Singh (Mukhiya) and earlier also - 3 - appellants had once attacked upon the deceased about which he had narrated the informant. The occurrence took place at about 7 P.M. Fardbeyan was attested by one Subrat Choudhary (not examined) whose signature has been marked as Ext.1. The police instituted the case and after investigation submitted charge sheet, after taking cognizance, case was committed and trial commenced, after framing and explaining the charge against appellant no.1 for the offence under section 302 of the Indian Penal Code and rest for the offence under Section 302 read with Section 34 of the Indian Penal Code, which on consideration of materials on record found proved by the trial court who accordingly convicted and sentenced the appellants in the manner aforementioned giving rise to instant appeal. 3. The defence of appellants accused person is that of false implication due to previous enmity, taking undue advantage of the unnatural death of the deceased, in a otherwise manner by his unknown rivals, having grudge against the deceased, owing to his illicit connections with one trained Nurse Arti devi. It is also contended by learned counsel for the appellant that there is none to see the occurrence, witnesses examined are chance and interested witnesses whose presence at the place of occurrence is not established. Even their subsequent conduct also negatived their presence. Further the Investigating Officer has arrived at the alleged place of - 4 - occurrence on getting information about the murderous attempt upon the deceased. After recording Sanha Entry no. 174/1982 which is not on record and this brings Ext.5, the very fardbeyan and subsequent investigation etc. on that basis a nullity and barred under law. It is also argued that the appellants have been deprived off opportunity to explain the circumstances relied upon by the trial court against them during their examination under section 313 of the Code of Criminal Procedure. On this score alone, their conviction and sentence is not sustainable as under law, such circumstances are to be ignored but cannot be taken for consideration. 4. The prosecution, besides producing the documentary evidence vide exhibits: Ext.1. Signature on Fardbeyan of Basudeo Mahton (informant). Ext.1/1. Signature of Rameshwar Choudhary on Seizure list. Ext.1/2. Signature of Rameshwar Choudhary on death report. Ext.2. Endorsement and signature of Ramdehi Mahton on sizure list. Ext.3. Zimanama Ext.4. Post mortem report. Ext.5. Fardbayan Ext.6. Formal F.I.R. Ext.7. Inquest Report. Ext.8. Seizure list. has examined altogether 8 witnesses out of whom (P.W.1) Ram Jiwan Prasad Singh, (P.W.5) Rameshwar Choudhary have been declared hostile, since they have not supported the prosecution version. Though, P.W.5 has proved his signature (Ext.1/1) and (Ext.1/2) respectively on seizure list - 5 - Ext.8 and inquest report Ext.7. The defence has produced one witness besides following documentary evidence. Ext.A. C.C. of final report Ext.B. C.C. of order sheets u/s 107 Cr.P.C. Ext.C. Formal F.I.R. of Bhagwanpur P.S. Case No. 9(II)80. Ext.E. Destruction report on the back of requisition no. 6 Q 30.03.89. Ext. F. C.C. of F.I.R. of Bhagwanpur P.S. Case No. 4(8)79. Ext.G. C.C. of report of Mukhiya dated 27.02.79 in case no. 343m/79. 5. Now on the basis of materials available on record and rival contentions, it is to be seen in this appeal whether the prosecution has been able to substantiate the charges against the appellants beyond any shadow of any reasonable doubt or finding of the court below needs interference ? 6. Laxmi Paswan (P.W.2) has come to see that while he was returning after getting his wheat crushed in the flour mill at village Manepur, he heard sound of firing rushed towards the place of occurrence found the appellants standing there, where Doman Mahto had fallen and when he arrived near him found all the four appellants fleeing. Ram Jiwan Choudhary (P.W.1) having a pistol in his hand whereas rest had no weapon. Blood was oozing from the chest of Doman Mahto, prior to his arrival Basudeo Mahto and Ramdehi Mahto respectively (P.W.4) and (P.W.6) (the two eye-witnesses) have already arrived and after his arrival P.W. 7 and P.W.5 arrived, Doman Mahto succumbed to his injuries. In cross-examination, para 6, this witness had said that during alarm several persons - 6 - arrived there and out of those arrived after his arrival he could identity P.Ws. 3, 4, 5 and 6. Contrary to his earlier statement in examination in-chief that P.Ws. 4 and 6 had arrived at the place of occurrence prior to his arrival. Name of this witness does not figure as witness in fardbeyan (Ext.5) nor either of the witnesses examined had said about his presence at the relevant time. Though, as it is evident that Investigating Officer P.W.8 has recorded his statement wherein he had said that he could see the accused persons fleeing from the place of occurrence never said about their standing thereon (vide para 8 P.W.8). 7. Damodar Rai (P.W.3) is a witness not an eye- witness to the occurrence but said about the circumstances emerging before. He had said that at about 6.30 P.M. to 6.45 P.M. while he was going from „Dera‟ to his house could see all the appellants standing having a talk that “chalo ab nahi aaya” and when he arrived near the house of Ganesh Rai (not examined) found Doman Mahto (deceased) going on bicycle in north direction towards village and when he proceeded further found Basudeo Mahto (P.W.4) and Ramdehi Mahto (P.W.6) subsequently he heard sound of gun firing, on arrival to the place of occurrence, found Doman Mahto lying dead due to fire arm injury sustained by him on his chest and learnt through P.Ws. 4 and 6 that he has been killed by the appellants. About the presence of the appellants, prior to the occurrence there is - 7 - variation from the earlier the statement of this witness towards which his attention was drawn in para 4 of the cross- examination wherein earlier he had said that Dilip Kumar (A 3) was standing in the field where there was none, P.W.8 Investigating Officer in para 8 asserts that this witness had said that Dilip Kumar (A 3) was standing in the field. This witness is also silent about the presence of Dilip Kumar at the place of occurrence when he arrived. On the basis of statement of this witness, it was argued that there is nothing in the statement of this witness showing involvement of the appellants in the entire episode, even if it is assumed that this witness could see the appellants earlier standing and uttering that “chalo ab nahi aaya” that does not mean that these utterances were relating to the deceased and only on the basis of such statement, it cannot be said that the appellants had any pre-consultation with each other as regard to killing of Doman Mahto. 8. Basudeo Mahto (P.W.4) has come to say that on 12.09.1982 at 6.45 P.M., his brother Doman Mahto had been killed who had gone earlier at about 10 A.M. by bicycle to Circle Office and the informant had gone at 3 P.M. to village Manepur to meet his niece, during return he could met his brother Doman Mahto near Manepur Chowk who accompanied the informant and Ramdehi Mahto (P.W.6) for a short distance, but, subsequently requested them to follow and proceeded on his bicycle, when the duo arrived near the house of Ganesh Rai - 8 - heard the sound of “Baap Re Baap” coming from north side both rushed towards the Bandh and found all the appellants overpowered Doman Mahto and appellant Ram Jiwan Choudhary shot at him, soon thereafter all the appellants fled towards north west. Doman Mahto died instantly, he was ex- Mukhiya, but in previous contest with Laxman Babu lost the post and appellant Ram Jiwan Choudhary is manager of said Laxman Babu. He further said that at the place of occurrence P.Ws. 2 and 3 besides Nihora Rai (not examined) arrived out of whom Rameshwar Choudhary (P.W.5) has gone in collusion with accused persons. Police arrived, recorded his statement finding the same correct, put his signature marked Ext. 1 and he is specific in the last line of examination in-chief that prior to arrival of police, there had been some rainfall. During cross- examination, he has stated his ignorance about Arti Devi or any case filed by the deceased relating to her assault or cases under section 107 of the Code of Criminal Procedure with the appellants. He is specific that he met with the deceased at Manepur Chowk and he further followed him with Ramdehi Mahto (P.W.6) and immediately after 5-6 minutes he heard alarm, further said that after his arrival others arrived not before, he did not sent anyone to police station, the police arrived stayed for an hour recorded his statement besides statement of other witnesses. He has further denied the suggestion of false implication of the appellants due to previous enmity. In para 4 of - 9 - cross-examination, this witness has further said about other political activities and involvement of the deceased. In para 7 he has said about the time of occurrence that “Andhera Ho Gaya Tha”. It is argued by learned counsel for the appellants that this witness had no occasion to go to meet his niece rather just to bring himself as an eye-witness, he has come out with that case. He is chance and interested witness. Moreover. In the light of statement of P.W.2, this witness and P.W.6 both arrived after his arrival makes statement of this witness doubtful. 9. Ramdehi Mahto (P.W.6) has come to say that on the relevant day at about 4 P.M., P.W.4 had arrived at his home stayed for about two hours and left with him to return, this witness accompanied him up to Manepur Chowk, where Doman Mahto (deceased) also arrived subsequently on his bicycle after a brief conversation and proceeding for about 10 steps deceased proceeded further on his cycle requesting them to follow him. Both proceeded and when arrived near the house of Ganesh Rai this witness heard sound “Jaan Marlak - Jaan Marlak”. The duo rushed towards north arrived at the road near Gosala Bandh found Doman Mahto on the earth at road side and all the five appellants on his body. Doman Mahto was asking “kahe jaan marte hai” and then at the dictates of appellant Prem Kumar, appellant Ram Jiwan Choudhary shot at him and all fled away. Due to fire arm injury on the chest, Doman Mahto died. There was blood on his belongings. Further - 10 - before this witness empty cartridge besides some cash and envelop etc. of deceased was seized. He put his signature on the seizure list and also on the inquest report which was prepared there. He is specific that at the time of occurrence there was „Jhalfal‟ that means „Godhuli‟. He further executed on jimmanama. In cross-examination this witness has stated about relationship, he happens to be brother of Ram Vilas Mahto son- in-law of Parmeshwar who is full brother of the deceased and the informant. He further said that there was no specific occasion for arrival of P.W.4 at his house and he was the only male member there. Though, he said that P.W.4 was working outside. In para 4 this witness has said that for a few minutes (5-6) stayed with him and P.W.4. Doman Mahto who had arrived just 1 ½ minute before but went ahead, just 4-5 minutes prior to 6.45 P.M. and only about 10 minutes after his leaving he heard alarm raised by Doman Mahto. In para 6, he said that he found Doman Mahto lying on earth and all the appellants were on his body right from his leg to chest, though, they were not using slaps and fists. Further he said that bicycle of Doman Mahto was one Atlas. He did not remember the number. He denies the suggestion of having a litigation under section 107 of the Code of Criminal Procedure with appellant no. 1. Though, he admits that such proceeding between the deceased and between appellant no.1. He also denied any allegation of wheat capturing by the appellant against him. - 11 - 10. On the basis of statement of these two witnesses P.W.4 and P.W.6 (claiming themselves to be an eye-witnesses) meeting with the deceased soon before such occurrence arriving at the place of occurrence on alarm. It is argued that there is conflict between them as regard to actual timing of occurrence. As per P.W.4 he left village Manepur at about 7 P.M. whereas as per P.W.6 he left village with P.W.4 at about 6 P.M. But in fact, P.W.4 as stated earlier in his fardbeyan about 7 P.M., the time when occurrence took place while he was returning from village Manepur. It does not mean that he left the village itself at about 7 P.M. No doubt, P.W.6 speaks about leaving his house at about 6 A.M. but he is further specific that he along with P.W.4 was at Manepur Chowk till before 6.45 P.M. and met with the deceased Doman Mahto who left the Chowk short while before 6.45 P.M. and P.W.4 is further specific that the occurrence took place at 6.45 P.M. apart from other two witnesses P.Ws. 2 and 3 that apart in rural areas it is difficult to pinpoint the witnesses with the watch. The timing given by the witnesses is nothing but approximate margin of 15 minutes to ½ hour from both ends is always reasonably available for appreciation of other materials. 11. The doctor B.C. Choubey (P.W.7) hold autopsy of deceased Doman Mahto on 13.09.1983 at 10.10 A.M. i.e. roughly 15 hours after the occurrence of death of Doman Mahto and found the following ante mortem injury. - 12 - Fire arm injury on the chest in the mid sternum at the level of fifth rib circular mark on the sternum blackish fragmentation on the skin ½” in diameter. Injury deep to chest cavity, skin inverted margin. On dissection, both chest cavity was full of blood, sternum had circular hole, upper chamber of the heart punctured, right lung is penetrated by pellets. Five pellets were recovered and cork also recovered (handed over to the constable). In the opinion of the doctor, death was caused due to the injury no.1 leading to penetration of heart and lung. And opined the death was caused due to above injury within 18-24 hours his report was marked as Ext. 4. In cross- examination he admits that injured would have sustained the injury in sleeping, standing and sitting positing and further confines timing of death between 10 A.M. to 4 P.M. that means as per opinion of the doctor instead of occurrence taking place at about 6.45 P.M. As stated by the prosecution, the death might have caused roughly three hours before by 4 P.M. giving room to learned counsel for the appellants to submit that prosecution has failed to prove the time of the occurrence as alleged consequently everything goes away. 12. P.W.8 is the Investigating Officer, according to him, on the relevant date on getting an information about - 13 - murderous attempt on Doman Mahto (deceased) he had recorded sanha entry no. 194 dated 12.09.1982 proceeded and arrived at Manepur recorded statement of informant Ext.5. On the basis whereof formal First Information Report (Ext.6) was instituted, inspected the dead body, prepared inquest report (Ext.7). He has further specific that due to rains, the earth was wet, he could not found blood there, though in a radius of 1-2 feet grass was crushed, he seized the belongings of the deceased including blood stained cloths, currency notes etc. prepared Ext.8 and subsequently submitted the charge sheet. During cross-examination, his attention was drawn towards some earlier cases relating with the deceased, instituted at the police station but since he was not attached with the police station at the relevant time, expressed his ignorance. During inspection of place of occurrence in para 3 he found one bicycle standing 6 yards north of the dead body, on the basis whereof it was submitted that the cycle has been planted just to implicate the appellants in the false case. 13. So far timing of occurrence and death of deceased is concerned, the prosecution witnesses are consistent that it was around 6.45 P.M. Of course, in the medical evidence, it is confined to be held by 4 P.M. i.e. roughly three hours before the time stated by the prosecution. But, it is to be noticed that medical evidence is also nothing but an opinion and Modi‟s 23rd Edition of its Medical Jurisprudence and - 14 - Toxicology at page 432 and 433 is specific that “In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. There is also some atmospheric effect upon rigor mortis commences slowly, but lasts for a long time in dry, cold air. On other hand, its commencement is rapid, and duration short, in warm, moist air. ” 14. The doctor in his post mortem examination report clearly mentioned that at the time of post mortem examination, Rigor Mortis was present over all the limbs. No doubt, these circumstances were not put before the doctor in his examination/cross-examination, but at the same time, for considering the time of death and some conflict between occular and medical evidence, this aspect cannot be ignored and only on basis of opinion of the doctor which also has some margin, consistent occular evidence as regard to time of death of deceased Doman Mahto cannot be discarded. The other argument about the transplantation of a bicycle roughly 6 feet away of the dead body in absence of any specific evidence as to its being in standing position without aid of either of the witnesses coming forward is concerned, also appears explained by the medical evidence itself. In post mortem examination report (Ext.4), the doctor has found urinary bladder of deceased empty and this is a circumstance which without any if and but suggests that soon before death the deceased must have - 15 - urinated. The only possibility on the basis of the above evidence that after leaving P.W.4 and P.W.6 at Manepur Chowk, the deceased after standing his bicycle near road side was meeting his natural call of urination. At this stage, he was overpowered, raised alarm, the witnesses arrived, meanwhile he fell down and shot at to die. 15. Much argument was advanced by learned counsel for the appellants that the witnesses examined on behalf of the prosecution are chance and interested witnesses. No independent witness had been examined to support the prosecution version. Learned counsel placed reliance on the several decisions of the Apex Court including decision in a case Harjinder Singh alias Bhola Vs. State of Punjab reported in 2004(11) SCC 253, wherein reliance has been placed in a case Satbir Vs. Surat Singh reported in 1997(4) SCC 192. But on careful examination of the decision of the Apex Court in aforesaid two cases besides others, it is evident that as per principle of law enunciated, evidence of chance or related witnesses is not to be discarded, on this ground alone rather their testimony is to be tested with extra care and caution. Similar view has been taken by the Apex Court in earlier decision of Bahal Singh Vs. State of Haryana reported in AIR 1976 SC 2032, wherein also in para 10 it is held “If by coincidence or chance a person happens to be at the place of occurrence at the time - 16 - it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny.” 16. Almost similar view has been taken by the Apex Court in subsequent decision in a case Acharaparambath Pradeepan and another Vs. State of Kerala reported in 2006(13) SCC 643 and Jarnail Singh and others Vs. State of Punjab reported in 2009(9) SCC 719. 17. This court is well in agreement with the view enunciated by the Apex Court on the above and evidence of the witnesses examined have been tested with due care and caution. 18. Damodar Rai (P.W.3) is a witness stating about the meeting of the appellants prior to occurrence, but, his evidence appears not sufficient but indicate that the persons assembled were talking about non-arrival of the deceased Doman Mahto at the relevant time and other two witnesses P.W.4 and P.W.6 namely, Basudeo Mahto and Ramdehi Mahto respectively are only on the point that the three appellants Prem Kumar Choudhary, Dilip Kumar Sinha and Suresh Choudhary had assembled, overpowered Doman Mahto and on arrival of