CRIMINAL APPEAL No.286 OF 1988 ******* Against the judgment of 1st Additional Sessions Judge, Vaishali at Hajipur, dated 12th May,1988, passed in Sessions Trial no.23 of 1983. ******* 1. Ranjit Singh, 2. Ram Kishun Singh, 3. Birla Prasad Singh, 4. Bhuneshwar Singh, 5. Guneshwar Singh, 6. Sunder Singh, 7. Shiv Chandra Singh, 8. Ravindra Singh ------------Appellants Versus The State of Bihar ---------Respondent ******* For the Appellants :S/Shri Rana Pratap Singh, Sr.Adv. & Janardan Prasad Singh For the State : Sushri Shashi Bala Verma, APP ******* P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ. Out of the eight appellants, as per affidavit filed today on behalf of the appellants, appellant no.4, Bhuneshwar Singh, died during the pendency of the present appeal on 12th December, 2006, as such his appeal abets. 2. The appellants were put on trial while 2 being jointly charged under Section 302/149 of the Indian Penal Code. Appellant Ranjit Singh was separately charged under Section 302/109 of the Penal Code and Section 27 of the Arms Act. Likewise, appellant Ram Kishun Singh was charged distinctly under Sections 148 and 302 of the Penal Code. 3. The case relates to an occurrence dated 14th April, 1980 which took place at village Juhawanpur Barari. It was alleged that the accused persons, armed variously with rifles, guns etc. came to the house of the deceased at about 9.00 A.M. They assembled at a particular place which was a bit lower in level than the Sahan or the Dalan of the informant. It was alleged that appellant Ranjit Singh ordered upon which appellant Ram Kishun Singh fired a shot from his country made gun on Nemdhari Rai, who was the son of the informant, which hit him on his left chest and as such he fell down dead there. The occurrence was witnessed by some of the villagers who were named in the first information report and it was stated that even though they did not protest to the high handedness of the accused persons out of fear. 3 4. While assigning the reason for the occurrence the informant stated that he own some landed properties at village Chak Singar which had been sown by him with Maize and about fifteen days prior to the occurrence there had been some hot exchange of words between the appellant Ranjit Singh and the deceased and, as such, in order to avenge the earlier incident, offence had been committed. 5. It appears that on the basis of the fardbayan of Brahmdeo Rai, who has not been examined on account of his death, the first information report of the case was drawn up and the Investigation was taken up by P.W.11, Sub-Inspector Raghu Nandan Sinha, who, after completing investigation, submitted the charge sheet forwarding the appellants for trial. First information report of the case has been marked as Exhibit-I whereas fardbayan has been marked Exhibit-6. 6. The defence of the appellants was that no occurrence in the manner alleged had ever taken place and the appellants have falsely been implicated in the case on account of some reasons. The prosecution 4 examined thirteen witnesses. Out of whom P.Ws 1 and 2 were witnesses of formal characters. P.W.3 Jagat Rai, P.W.4 Baleshwar Rai and P.W.5 Dharma Rai were the only witnesses who supported the allegations. P.W.6 Rudal Rai was tendered for cross-examination whereas P.W.7 Ram Briksh Rai was a witness to the inquest report. P.W.8 Bishundeo Rai was also a witness as P.W.7 of the same document, inquest report. P.W.9 Prahlad Prasad Chaurasia was a witness before whom the seizure list in respect of blood stained earth was prepared after seizing the same. P.W.10 Dr. R.P. Singh had held post mortem examination on the dead body of Nemdhari Rai. P.W.11 Raghu Nandan Sinha, as pointed out earlier, has investigated the case. P.W.12 Binda Tiwary had tendered in evidence the fardbayan, Exhibit-6, while P.W.13 Mohan Prasad had proved the writings and signatures on the first information report, Exhibit-7. 7. The defence examined a solitary witness, Anurag Paswan, who has stated that the occurrence had taken place at about 9.30 A.M. at Juhawanpur Barari and the dead body was lying at some distance from the 5 house of the deceased and the dead body was brought to his house. He has stated that he could not know as to how and for what reasons the occurrence had occurred. 8. Shri Rana Pratap Singh, learned senior counsel appearing on behalf of the appellants, has submitted that the conviction of appellant Ram kishun Singh and other appellants under Section 148 of the Indian Penal Code could not be sustained in view of the findings recorded by the learned trial Judge that the accused persons did not appear acting together to prosecute the common object as they did not appear sharing the common object. It was further contended that as regards the other aspects of the appellants the informant was not examined and so far as the claim of the informant that he own some immovable properties in village Chak Singar it has come on record that the informant did not have any land at village Chak Singar and as such the claim of the prosecution that maize crop was grown on any particular land in which field there was some exchange of hot and abusive words between the deceased and appellant Ranjit Singh may not be 6 acceptable. The attention of the Court on the above was drawn to the evidence of P.W.4 in paragraph 8. It was contended that the genesis of the occurrence or the motive which was alleged for the commission of the offence also not proved and the witnesses have stated that they cannot say as to for what reason the occurrence had taken place. The next contention was that the witnesses have stated that shot was fired from a distance of 10 to 15 cubits but the doctor, P.W.10, who conducted the autopsy, found the margin of the solitary wound blacken and as such gave an opinion that the shot could have been fired from a very close range. The third contention of Shri Singh was that the place of occurrence also appears not established and the evidence of the witnesses indicates as if it might have occurred at a different place than claimed by the prosecution. We were taken through the evidence of the three witnesses in support of the above contentions. 9. Sushri Shashi Bala Verma, learned counsel appearing on behalf of the State, has very strenuously argued that there might not be any change in the place of occurrence and it is stated by all the 7 witnesses that the Sahan of the deceased had reasonably been filled up by earth and sand and it was the elevated place at the edge of which the deceased was standing when he was shot at by appellant Ram Kishun Singh. It was submitted that the witnesses have stated that he had tumbled down and came into the field lying below the filled up surface and the blood was found in the field of one Harihar Rai which was the field below the raised surface. It was contended that there is a story of single shot which creates corroboration from the evidence of P.W.10 and he stated that he found a single gun shot injury. Sushri Verma, as such, submitted that the appellants were rightly convicted. 10. We first take up the conviction of appellants under Section 148 of the Indian Penal Code. The finding of the learned Judge, who passed the impugned order, appears in paragraph 10 of the judgment and he found that the accused persons did not appear that they have come to the house of the informant with common object of killing anybody. If one goes to the relevant provisions of the Indian Penal Code defining an 8 unlawful assembly one could find that an assembly of five or more persons having the object of doing common acts which are enlisted in Section 141 of the Penal Code then such an assembly could be designated as unlawful assembly. So what is required under law is that the assembly of five persons must have the common object. In other words, mere assemblage of five or more persons cannot be said to be an unlawful assembly unless there is a common object which is shared or it is known to the prosecution by each and every member of such an assembly. The learned Judge has recorded that the accused persons other than Ram Kishun Singh and Ranjit Singh were not shared the common object of killing deceased Nemdhari Rai. However, inspite of recording its finding the learned trial Judge went on to hold the appellants, other than Ram Kishun Singh and Ramjit Singh, guilty of committing offence under Section 148 of the Penal Code and inflicted a sentence of rigorous imprisonment for two years upon each of them. The State has not preferred any appeal as the above finding of the learned trial Judge tantamount to an order of acquittal of 9 all the appellants except Ram Kishun Singh and Ranjit Singh. In the above light, we do not have any option than to say that the passing of the order of sentence was not legitimate in the light of his own findings that the appellants, other than Ram Kishun Singh and Ranjit Singh, were members of unlawful assembly. 11. If we acquit the other appellants which we propose to do then Ram Kishun Singh and Ranjit Singh the number of persons comes down to two. There is no evidence on record that there were other accused persons who could not be identified by the witnesses, whose number, if taken together for counting the heads with the two appellants Ram Kishun Singh and Ranjit Singh could bring it to five or more number of persons then only we could sustain the conviction of Ram Kishun Singh under Section 148 of the Penal Code. It may be noted that Ranjit Singh has not been found guilty under Section 148 of the Penal Code. A single accused Ram Kishun Singh can never be forming an unlawful assembly even if he could be said to have the object of committing the murder of Nemdhari Rai. In the above light of our 10 discussions, we find that all the appellants are entitled to be acquitted for their conviction under Section 148 of the Penal Code. 12. As regards the other part of the judgment, the appellant Ram Kishun Singh now stands convicted under Section 302 of the Penal Code whereas Ranjit Singh has been convicted under Section 302/149 of the Penal Code. The conviction of Ranjit Singh by virtue of Section 149 of the Penal Code has also to be set aside in the light of the earlier finding just recorded by us. It was simply reiterated of the finding recorded by the learned trial Judge that it was not an unlawful assembly with common object and as such there could not be any conviction of any accused under Section 302/149 of the Penal Code. It is unfortunate that Ranjit Singh has been charged under Section 302/109 of the Penal Code but the learned trial Judge appears could not awry in reading the evidence and recording his finding on the guilt of that individual appellant Ranjit Singh. His conviction, as such, under law may not be sustainable under Section 302/149 of the Penal Code. 11 13. However, we find many other reasons for not sustaining the judgment in its entirety. The genesis of the occurrence as alleged by the prosecution was that the informant owned some land at village Chak Singar and had swon maize in the field. Appellant Ranjit Singh had entered the maize field and for that there has been abusive exchange of words, as the witnesses would say, between the deceased and the above named appellants. This was for the above reason that the accused persons came fully armed up to the Sahan of the dalan of the deceased and indulged in the offence. The evidence of the Investigating Officer, P.W.11, was purely recorded in chief and the public prosecutor obtained an adjournment on 15th December, 1986. Thereafter, that witness did not turn up for giving his further evidence. We are not concerned that his examination in chief could not be completed. What concerned us the most is that there was no opportunity availed of by the defence to cross examine P.W.11 even on facts which were stated by him in four paragraphs of his examination in chief. The non-cross examination of P.W.11, in our considered 12 view renders the evidence non-est. So it remains the thing for our enquiry as to whether there was any maize crop standing in the field or indeed the informant or the deceased had owned any land at village Chak Singar. P.W.4 in paragraph 8, page 27 of the paper book, has stated that the informant did not own any land in that particular village. Thus, a doubt appears lingering in our mind that the appellants could be entering into a field must be a truth. The other aspect is that P.W.3 in paragraph 6 has stated that he did not know that there was any difference or animosity between the two sides and further as to for what reasons the occurrence had taken place. P.W.5 Dharma Rai has not stated a single line on the above fact as regards the genesis of the occurrence so what we find is that the fact that there had been some hot exchange of abusive words between the appellant Ranjit Singh and deceased Nemdhari Rai has not been proved. It is not always necessary in a case of direct evidence that genesis or motive, which is alleged by the prosecution, should be established to the hilt. But, in a case when the prosecution alleges that a particular fact had impelled 13 the accused to commit the offence then the court has to enquire about it whether that particular fact has been established as any another ordinary fact. In case the court finds that the guilt has not found established to the hilt then the Court has to reject the story of the prosecution as regards its genesis and that creates a dent in its story. 14. The other two contentions forwarded for re-consideration were on the manner of occurrence and the proof thereof. It was contended that the manner of occurrence appears not established on account of two defects which appear in the prosecution case. First was that the place where the deceased was shot and killed does not appear established by the evidence by witnesses who were examined in the case. In this regard our attention was drawn to the evidence of P.W.3 in paragraphs 1, 4 and 5 and that of P.W.4 in paragraphs 1, 3 and 4, in addition to those witnesses the evidence of P.W.5 in paragraphs 1 and 6 was also brought to our notice and it was contended that it could be very difficult for any reasonable man to say with any amount of 14 certainty that a particular place was the place of occurrence where the deceased had been shot and killed. The first information report states that the accused persons came and assembled on the land which was lying below the lifted Sahan of the informant. It is further indicated by the statement made in Exhibit-6, the fardbayan that the shot was fired by appellant Ram Kishun Singh from that very plot where the accused persons were standing since the deceased appeared at the scene of the occurrence. As regards the topographical situation of the place, the witnesses, P.Ws 3, 4 and 5 have made statements during their evidence. It has been stated by P.W.4 in paragraph 4 that the filled up Sahan of the informant / deceased was raised by a man’s height. The same statement has been made by P.W.5 in paragraph 6. It also appears from the evidence of P.W.3 that the level of Sahan of the deceased was raised by filling earth and sand. The description of the place of occurrence which had been given by the witnesses indicates that there was a Marai which has been described as Dalan by them which was standing in the south-northern corner of the plot and 15 the major part of the filled up land was lying on the south and east of that particular Marai. It is indicated by the evidence of the witness that as soon as appellant Ranjit Singh remonstrated the appellants he came out and no sooner than deceased Nemdhari had come out from Marai or Dalan he was shot at by Ram Kishun Singh. P.W.3 has stated that as soon as he had come out he was shot at by Ram Kishun and he was hit in his chest and he fell down in the field from the Sahan. He has stated in paragraph 5 that no mar-pit has taken place on the ridge of the field of Harihar Rai and no blood had been seized by the Investigating Officer of the case from that field of Harihar Rai. As against the above evidence P.Ws.4 and 5 have stated that as soon deceased was hit by shot fired by Ram Kishun he tumbled down on the ground of the raised level land into low lying field which is contiguous to it and remain there. From where blood and dead body were seized. P.W.4 has stated the above fact in paragraph 1 and in that course he has stated Nemdhari tumbuled down the raised ground level of Sahan and came near the tree which has been described by P.W.4 as that of Nesor. He 16 has further explained the above fact in paragraph 3 by stating that the blood have been found in the filled up Sahan of the deceased by Superintendent of Police and it was at a distance of 25 to 30 yards from the northern part of the filled up land from where the blood was seized. P.W.5 in paragraph 1 has stated that deceased tumbled down the raised level of Sahan and came down into a field. However, paragraph 6 of the evidence of P.W.5 indicates as if mar-pit had taken place in the field of Sahan with the deceased and when he had been shot he tumbled down the raised level. Thus, from the consideration of the above evidence of the three eye- witnesses one could not come to any conclusion as to what was the place at which the occurrence had really taken place. It may also be very difficult to find out as to from where blood had been seized or at which place the dead body was found lying. As such, we find that the manner of occurrence and the place where it had really occurred appears not really established with acceptable evidence. The evidence of eye witnesses appears confusing and they appear giving contradictory 17 descriptions of the place where the occurrence had taken place and the manner as well as to where and how the deceased was shot and killed. 15. The above submission gets the above position of a hazy factual situation appears compounded more by the evidence of the doctor who found and oval wound measured 1” x 1 ½ ” into chest cavity deep on the left side of chest. In the second left inter costal spot 1” away from the lateral border of sternum on the left side. According to P.W.10 the margin of the wound was inverted and blackened. This opinion has again been reiterated by P.W.10 in paragraphs 10 and 11 of his evidence with the margin of the wound was blackened and he further stated that the blackening of the margin suggested that the shot was fired from a very close range. When we consider the evidence of P.W.10 in the light of the evidence of witnesses we find that the oral evidence completely negates the finding recorded by the doctor. P.W.4 in paragraph 6 has stated that the shot was fired from a distance of 10 to 15 cubits. Likewise, P.W.5 in his evidence in paragraph 8 has stated that the shot was fired 18 from a distance of about 10 cubits. Thus, we find from the evidence of the two witnesses that the shot could have been fired from at least a distance of 10 cubits. If we convert 10 cubits into feet it can come to about 15 ’. The medical science says that the blackening around the margin of the wound or charring or scratching of the wound caused by fire arm could be possible as close a range or from a distance maximum of 3’. The evidence of the doctor, thus, improbabilises the statement of the witnesses that the shot was fired from as distant a place as stated by them and that could be 10 cubits away from the deceased. The above conflict from the medical evidence and oral evidence appears on account of the fact that the witnesses might not have seen the occurrence. We do not have any reason to reject the evidence of P.W.10, the doctor, because there was no reason for him to make a false report. No motive was even suggested remotely by prosecution to him that he could be fabricating the false report in favour of the defence. Thus, what we find is that the manner of occurrence, as told by the witnesses, appears not supported. This is the reason that they appear 19 giving variant statements on the place of occurrence. 16. In addition to the above defects what we find that the informant of the case was not examined. Some other witnesses who were cited, either in the first information report or in the charge sheet, were also submitted to be not examined. The defects, in our opinion, is such that it could have resulted in giving benefit of doubt to the appellants by the trial court. We, on consideration of the evidence of the prosecution which is available on the record, find that it was a case in which the appeal be allowed by setting aside the conviction and sentence passed against the appellants by giving them benefit of doubt. The appellants are on bail. They shall stand discharged from the liabilities of their respective bonds. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High court, The 11th May, 2010, AAhmad/(N.A.F.R.). 20