IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.157 of 1989 Against the judgment and order dated 5th April, 1989 passed by Additional District & Sessions Judge-I, Gaya in Sessions Trial No. 94 of 1987 / 6 of 1987. ================================================= 1. Krishna Bind, Son of Raghu Bind. 2. Mangaru Bind, Son of Raghu Bind. 3. Sudama Bind, Son of Mangaru Bind. All residents of village-Dehuri, P.S.-Kurtha, District-Jehanabad. .... .... Appellants Versus The State of Bihar ……..Respondent ================================================= Appearance : For the Appellant/s : Mr. Satya Deo Kumar, Adv. Mr. Bindeshwar Pd. Singh, Adv. Mr. Braj Kishore Singh, Adv. For the State : Miss. Shashi Bala Verma, APP. ================================================= CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH) ------------ The three appellants have challenged the judgment and order dated 5th April, 1989 passed in Sessions Trial No. 94 of 1987/ 6 of 1987 by the learned Additional District & Sessions Judge-I, Gaya, whereby and whereunder they have been held guilty and convicted under Section 302 read with Section 149 of the Indian Penal Code and have been sentenced to undergo R.I. for life. 2. The prosecution case is based on written statement of Ram Sewak Yadav, son of Keshwari Yadav addressed to the Officer-in- Charge Kurtha Police Station, Gaya. It is alleged in the written statement that on 31.10.1984 at 8:00 am while the informant was washing his face in front of his “Dalan” near a well accused Krishna 2 Bind armed with rifle, Ram Swaroop Bind armed with Gun, Lalan Bind and Sudama Bind armed with Pasuli, Mangaru Bind and Dhramdeo Bind armed with Garasa and Chinwa Bind armed with Sword together with 4-5 unknown persons came and they tried to forcibly enter into his house. It was protested by the informant. On protest, appellant Krishna Bind is alleged to have fired causing injury near informant’s navel and Ram Swaroop Bind fired causing injury on his buttock, as a result of which he fell down. Thereafter, they entered inside his house where no one was present. They took away a box containing 4 tola gold, 10 tola silver and Rs. 1,000/- in cash besides some food-grain. On hue and cry, being raised co-villagers, namely Musafir Singh son of Hanuman Singh, Hapu Saw, Musafir Singh, Son of Bishun Singh and others reached at the place who had witnessed the occurrence. The accused persons thereafter fled away. 3. It is to be noted here that the said oral statement of the informant has been scribed by one Muni Lal Singh, son of Dhodha Singh. The written statement is contained in two pages. The signature of the informant is on the 2nd page beneath which the scribe has put his signature. The first page of the written statement does not contain signature of Ram Sewak Yadav (informant). It is not stated in the written statement that the contents were read over and explained to the informant. The significance of this aspect would be dealt with later on. On the basis of aforesaid written statement, a formal F.I.R. was drawn on 31.10.1984 at 2:30 p.m. The case was initially registered on 31.10.1984 under Sections 147, 148, 149, 323, 324, 307, 380 of IPC 3 and Section 27 of the Arms Act and investigation was taken up. 4. It is worthy to mention it here that from perusal of the F.I.R., it does not appear as to how the written statement of the informant reached the police station. This question remains unanswered as to whether the informant himself submitted the written report or it was transmitted through someone else. It appears from the trend of deposition of prosecution witnesses that the injured was first taken to Jehanabad where initially he was provided with medical aid but, subsequently, he was referred to Patna Medical College Hospital, where in course of treatment he succumbed to the injury on 3.11.1984. On the same day postmortem examination was conducted on the dead body of the informant at about 3:00 p.m. in P.M.C.H. 5. The Investigating Officer on conclusion of investigation submitted charge sheet against all the named accused persons under Sections 147, 148, 149, 307, 302, 452, 379 IPC and Section 27 of the Arms Act. The learned Magistrate took cognizance of the offence and since the offence alleged was exclusively triable by Court of Sessions, the case was committed to the court of sessions. The trial court framed charge against the appellants for having committed an offence punishable under Section 302/149 of the Indian Penal Code. The appellants pleaded innocence. Their main defence was that the manner of occurrence and place of occurrence both were different. The informant (deceased) had sustained firearm injury caused by Malawar Yadav when the members of the prosecution party had attacked the house of Mangaru Bind (appellant no. 2) on 30.10.1984 in the night 4 and set his house on fire. 6. The prosecution in course of trial examined altogether 8 witnesses in order to prove it’s case. Out of them P.W. 2 Musafir Yadav, Son of Hanuman Yadav and Keshwari Yadav have been tendered for cross-examination. P.W.-7, Ganesh Prasad and P.W.-8, Ram Nandan Prasad are formal witnesses. P.W.-7 Ganesh Prasad has proved postmortem report, which has been marked as exhibit-2. It is to be noted here that the doctor, who conducted the postmortem, was not examined in course of trial. P.W.-7 has also proved the writing and signature of one Dr. Vijay Kumar, who had noted on the back of the summons sent to Dr. R.B. Choudhary, who had conducted the postmortem to the effect that Dr. R.B. Choudhary had died. The writing and signature on summons issued to Dr. R.B. Choudhary has been marked as exhibit-1. P.W.-8 has proved the writing of Muni Lal Singh, who scribed the written statement and signature of the informant Ram Sewak Yadav over the written statement. The written statement has been marked as exhibit-3. P.W.-8 has also proved the formal F.I.R. and has stated that the same was drawn by the then Officer-in-Charge of Kurtha Police Station, namely, Sant Bilash Singh. The formal F.I.R. has been marked as exhibit-4. Both P.W.-7 and P.W.-8 are advocate clerk. P.W.-1 Musafir Yadav son of Bisun Yadav, P.W.-3 Kamdeo yadav, P.W.-4 Muni Lal Yadav and P.W.5 Kali Yadav are eye-witnesses of the occurrence. 7. P.W.-1, 3, 4 and 5 have almost reiterated the prosecution case as narrated in the F.I.R. In their examination-in-chief P.W.-1 has 5 also stated in his Chief that one day prior to the occurrence a quarrel had taken place between Bhukhal Yadav, son of Muni Lal Yadav and Sudama Bind, son of Mangaru Bind and that was the motive behind the occurrence. In cross-examination, he has stated that his statement was recorded by the police probably after two days of the occurrence. He has also admitted that the informant, Ram Sewak Yadav was his nephew and that appellant no. 2 Mangaru Bind had instituted a criminal case of setting his house on fire against two of his sons, namely Malawar and Budhu. He has stated that the informant was conscious till he was at Jehanabad. It is to be noted that this witness (P.W.1) has not stated anything regarding treatment or death of the informant in his deposition. He also justified his presence at the place of occurrence by saying that he had disclosed to the I.O. that he was operating pump set at the time when the occurrence took place and at the time he was 40 yards away in south-west direction from the well of the informant. He has also stated that the firearm injury was caused upon the informant from a distance of 10-15 yards. It is to be noted here that P.W.-5 Kali Yadav another eye-witness is son of this witness. 8. P.W.-3 Kamdeo Yadav, has stated in cross-examination that at the time of occurrence he was taking bath at pump set. The said pump-set was 30-40 yards away in western direction from the village. He initially said that he reached at the place of the occurrence after the firing had taken place but, subsequently, he modified it by saying that when he reached, firing was still continuing. He has categorically stated that the informant sustained injuries while he was in standing 6 position and after second shot no one fired. On hue and cry, several persons had reached at the place of occurrence. As a result of injury bleeding had taken place at the place of occurrence but the accused persons scrapped the soil and threw it. He has also stated that the informant was wearing Lungi, Gangi and underwear and his clothes were stained with blood. He has also admitted in cross-examination that for an occurrence which took place in the night intervening between 30-31.10.1984, the accused persons had instituted a case in which this witness, the informant Ram Sewak Yadav and Malawar were made accused and charge sheet was submitted in that case. In cross-examination, he has also stated that informant was carried to the police station by him, Muni Lal Yadav, Kishori Yadav and Musafir Yadav, son of Hanuman Yadav on a cot. He has further admitted that the informant was treated initially at Jehanabad Hospital and from there the deceased was carried to P.M.C.H., Patna where on 3.11.1984 he died. He has also admitted that the informant was his nephew and village Sarpanch, Choukidar and Dafadar had reached at the place of occurrence subsequently. 9. P.W.-4, Muni Lal Yadav, son of Dhodha Yadav, in his chief has stated that a quarrel had taken place between his son and son of appellant no. 2 in Dehri School and it was because of this, the occurrence took place. In cross-examination, this witness has stated that his statement was never recorded by the police in course of investigation. The firearm injury was caused from a distance of 10-15 yards. He has also admitted that he was also accused in the case lodged 7 by the accused persons. This witness has denied the suggestion that since he had not named any one in his statement before police and only to conceal this fact he has deposed that his statement was never recorded by the police. 10. As stated above, P.W.-5 Kali Yadav is son of P.W.-1 Musafir Singh. He has also assigned the motive behind the occurrence to be a quarrel which had taken place between the appellant No. 3 Sudama Bind and son of P.W.-4 Muni Lal Yadav. In cross- examination, this witness has stated that when the occurrence took place, the informant was sitting beside the well. The police had reached in the village after 2-3 days of the occurrence. He has admitted that Malawar is his elder brother and Budhu is also his brother and Mangaru Bind had instituted a false case after the present case was instituted. 11. The postmortem report reads as follows:- “P.M. done on 3.11.1984 at 3 P.M. The following antemortem injuries were found (i) Round Punctured wound of ¼” diameter on the left buttock (ii) Right paramedian stitched wound 4” x ½” on the abdomen. On dissection there was perforating fracture of left hip bone. All the abdominal viscera were adhered with each other. Pus was also found in abdomen. No F.B. found. Injury No. 2 was surgical. Injury No. 1 was caused by firearm fired from distant range as there was no charring-No tattoing. Time elapsed since death was within 24 hrs but 8 more than 6 hrs. The injury No. 1 was wound of entrance. Cause of death was abdominal injury as detailed above.” 12. Learned counsel for the appellant has submitted that all the witnesses who have been examined on behalf of the prosecution in order to support the allegation of assault are highly interested and related witnesses. P.W.-1 and P.W.-3 are uncle of the deceased whereas P.W.-5 is cousin of deceased. P.W.-4 is also a related witness. They all have been made accused in the counter case, which was filed by appellant no. 2. The counter case was registered as Kurtha P.S. Case No. 164 dated 1.11.1984. In that case, Malawar Yadav, Budhu Yadav and Alakh Yadav all sons of P.W.-1 Muni Lal Yadav (PW-4), Kamdeo Yadav (PW-3) and others were arrested and charge sheeted for having committed an offence punishable under Sections 144, 436 of the IPC and Section 27 of the Arms Act. 13. It is also submitted that the F.I.R. of counter case was drawn by the Officer-in-Charge of the Police Station, Sant Bilash Singh and that case was also investigated by the same I.O. He has drawn our attention towards exhibit-A, which was proved on behalf of the defence. Exhibit-A is a charge sheet submitted by police in Kurtha P.S. Case No. 164 dated 1.11.1984. It is apparent from perusal of the said chargesheet that in the night of 30.10.1984 the accused persons named in the F.I.R. came to the house of appellant no. 2, Mangaru Bind and set the same on fire. At that time, accused Malawar Yadav, son of P.W.-1 Musafir Yadav was firing indiscriminately, one of the shot hit Ram Sewak Yadav, the informant (deceased) of the present 9 case. Thereafter they fled away with injured Ram Sewak Yadav. 14. Learned counsel for the appellant submits that the police on conclusion of investigation found the counter case to be true under Section 144, 436 of the IPC and Section 27 of the Arms Act and against 8 accused persons, namely, 1. Malawar Yadav, 2. Muni Lal Yadav, 3. Budhu Yadav, 4. Alakh Yadav, 5. Kamdeo Yadav, 6. Doman Yadav, 7. Bindesar Yadav and 8. Chhekan Yadav were sent up for trial. The informant Ram Sewak Yadav was also made accused in the counter case. He was shown as deceased accused in the said chargesheet. 15. Learned counsel for the appellant further submits that trial court has erroneously considered the written statement of the informant in this case as a dying declaration. As stated above, the written statement was neither recorded by police nor by the doctor nor by the Magistrate. The same was scribed by one Muni Lal Singh. The prosecution has not examined said Muni Lal Singh as a witness. 16. At this stage, learned counsel for the State submits that the scribe Muni Lal Singh, son of Dhodha Singh may be P.W.-4, Muni Lal Yadav son of Dhodha Yadav. 17. I am of the view that even if it is accepted that the scribe was P.W.-4, Muni Lal Yadav, it is of no help to the prosecution because Muni Lal Yadav, P.W.-4 has not proved the written statement. In his deposition he has not uttered a word to the effect that he scribed the written statement (exhibit-3). This witness in his cross-examination has gone to the extent of saying that his statement was never recorded 10 by Police under Section 161 Cr. P.C. P.W.-8, who has proved the written statement (exhibit-3) and the formal F.I.R. (exhibit-4) is admittedly an advocate clerk who has categorically stated in his cross- examination that neither the written statement nor the formal F.I.R. was drawn in his presence and he had no knowledge of the facts stated in the written statement. 18. Learned counsel for the appellant submits that the documents upon which reliance is sought to be placed must be brought on record of the case legally. Documents do not prove themselves. He further submits that the Officer-in-Charge, who has formally drawn F.I.R., namely Sant Bilash Singh has also not been examined on behalf of the prosecution. The Investigating Officer who conducted the investigation has also not been examined in course of trial. No explanation has been given for non-examination of the Officer-in- Charge of the case and the scribe of the written statement. Had they been examined, they would have thrown some light on the bona fide of the written statement. Though P.W.-3 has stated in his cross- examination that he together with Muni Lal Yadav, Keshwari Yadav and Musafir Yadav son of Hanuman Yadav had taken informant Ram Sewak Yadav to the police station on a cot but their name has not been given in the F.I.R. They are not even witness to the F.I.R. Thus, we are of the view that the written statement of the informant can not be treated to be dying declaration. 19. Learned counsel for the appellant has further submitted that though there is evidence that several independent witnesses had 11 assembled at the place of occurrence. The Sarpanch, Dafadar and Choukidar had also reached at the place of occurrence subsequently but no independent witness was examined on behalf of the prosecution in course of trial. 20. It is also submitted that the prosecution has suppressed the evidence relating to the deceased’s treatment initially received at Jehanabad Hospital. No chit of paper has been filed to show the nature of injury found on the person of the deceased initially when he first received treatment at Jehanabad hospital. The prosecution has also not explained as to when the patient was admitted in Jehanabad Hospital, when he was referred to P.M.C.H., when he was admitted in P.M.C.H. and what sort of treatment he received at PMCH, Patna. 21. It is next submitted that P.W.-7 who has proved the postmortem report is also an advocate clerk. In cross-examination, he has clearly stated that he has no personal knowledge that the doctor who conducted the postmortem had died and he knew nothing about the contents of the postmortem report. 22. I am of the view that once a document is marked as exhibit on admission, contents thereof are also to be admitted. However, although contents are admitted, truth is not. Truth or correctness is to be ascertained from the evidence. The person who has proved the postmortem report was not even competent to explain the contents of the postmortem report and thus, the defence would not have cross- examined him on material points. 23. A bare perusal of the postmortem report would suggest 12 that injury no. 1 was wound of entrance caused by firearm injury whereas injury no. 2 was a surgical injury. It was a stitched wound. No opinion regarding the weapon used has been given by the doctor. It was for the prosecution to establish its case beyond reasonable doubt and to establish the fact that both the injuries were caused by firearm. The prosecution has failed to do so. 24. What remains to be seen now is that what credit is to be given to the ocular evidence of P.W.-1, P.W.-3, P.W.-4 and P.W.-5 in the background of the facts stated above. Firstly, it has to be seen as to whether said witnesses are only related witnesses or interested witnesses too. It is well-established that related is not equivalent to interested. A witness may be called interested only when he or she so would derive some benefit from the result of a litigation. The fact that the witnesses are related to each other stands admitted. As stated above, there was a counter case in which P.W.-1, 3, 4 and 5 are all interested as they either themselves or their relatives are accused in that case. The prosecution version in counter case was also to the effect that the informant had sustained gun shot injury by firing made by Malawar Yadav, son of Musafir Yadav (P.W..-1) in the said case. In this background of fact it can safely be assumed that the witnesses are not only related but interested too. It is well established that evidence of interested witness should be appreciated keeping enmity in mind. In such case, a duty is cast upon the court to guard itself against danger of convicting innocent persons and scrutinize evidence carefully, and if doubt arises, benefit should be given to the accused. Keeping this in 13 mind when I analyze the deposition of said four witnesses, I find that they have not thrown any light on the point of treatment rendered to the deceased at Jehanabad and P.M.C.H., Patna, though, they claim to have carried the victim to the police station on a cot. Their name does not figure as witness to the F.I.R. and they have not put their signature on the written statement. P.W.-4 has admitted in his cross-examination that his statement was never recorded by the police. None of them have stated a word against accused persons other than Krishna Bind and Ram Swaroop Bind, who are alleged to have fired. 25. Thus, so far as appellant nos. 2 and 3 are concerned, they are not alleged to have committed any overt act. They have been convicted under Section 302 IPC with aid of Section 149 of the Indian Penal Code. 26. Section 149 reads as follows:- “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object-If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” 27. In Bhudeo Mandal vs. State of Bihar, (1998) 2 SCC 775 the Apex Court has held that before convicting the accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any over at on the part of the accused persons, mere fact that they were 14 armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established. 28. In Ranbir Yadav v. State of Bihar (1995) 4 SCC 392, the Apex Court highlighted that where there are party factions, there is a tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. It was pointed out that the only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court. 29. In Allauddin Mian v. State of Bihar, (1989) 3 SCC 5, the Apex Court held: “8……..Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that 15 assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to