CRIMINAL APPEAL No.713 (DB) OF 2004 With CRIMINAL APPEAL NO.809 (DB) OF 2004 ----- Against the judgment of conviction dated 22.09.2004 and order of sentence dated 23.09.2004 passed by Sri Arun Kumar Singh, Additional Sessions Judge, Fast Track Court No.V, Arrah in Sessions Trial No. 293 of 1993. ----- 1. BINDESHWARI SINGH SON OF BHAGIRATHI SINGH RESIDENT OF VILLAGE SINHA GHAT,P.S.KRISHNAGARH, DISTRICT BHOJPUR 2. JITENDRA SINGH SON OF BIRENDRA SINGH RESIDENT OF VILLAGE BHEL DUMARA,P.S.ARRAH MUFFASIL,DISTRICT BHOJPUR ---- APPELLANTS (in Cr.App.No.713(DB) of 2004) ---- HANUMAN SINGH ALIAS PAWAN KUMAR SINGH SON OF SHYAM NARAIN SINGH ALIAS BACHA SINGH, RESIDENT OF VILLAGE BHEL DUMARA,P.S. ARA(M),DISTRICT BHOJPUR ---- APPELLANT (in Cr.App.No. 809(DB) of 2004) VERSUS THE STATE OF BIHAR ---- RESPONDENT (in both the appeals) ------ For the appellants : M/s Kanhaiya Pd.Singh,Sr.Advocate Deepak Kumar Singh and B.J.Jha (in Cr.App.No.713(DB) of 2004) For the appellant : Mr. Vikram Deo Singh, Advocate (in Cr.App.No. 809(DB) of 2004) For the State : Mr. Ashwini Kumar Sinha, Addl.P.P. (in both the appeals) ------ P R E S E N T THE HON'BLE MR.JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR.JUSTICE AKHILESH CHANDRA ------ S.K.Sharma & Akhilesh Chandra,JJ. Both the above appeals have been heard together and are being disposed of by this judgment because they have arisen out of a common judgment dated 22.09.2004 passed by Additional Sessions Judge, Fast Track Court No.V, Arrah in Sessions Trial No. 293 of 1993 whereby the appellants of both 2 the appeals were found guilty for offences under Sections 302/34 of the Indian Penal Code and 25 of the Arms Act and were convicted and sentenced to undergo imprisonment for life under Section 302/34 of the Indian Penal Code and to undergo rigorous imprisonment for five years each under Section 25 of the Arms Act vide order dated 23.09.2004. The sentences were ordered to run concurrently. 2. The brief facts of the prosecution case is that on 05.11.1992 at 6.30 P.M. while the informant, Deo Kumar Singh (P.W.2) was on way to his house after purchasing provisions from the shop, he was surrounded by Bindeshwari Singh, Jitendra Singh and Hanuman Singh alias Pawan Kumar Singh. Bindeshwari Singh was having a DBBL gun whereas Hanuman Singh and Jitendra Singh were having country made pistols with them. The accused persons asked the informant as to why he has got the land fenced. The informant tried to escape making noise, upon which his Bhabhi Dhanamuni Devi (deceased) arrived there and at that very time, Jitendra Singh 3 shot at her which could not hit her but another shot of Hanuman Singh alias Pawan Kumar Singh caused injury on her upper arm (pakhura) and chest whereupon she fell down. Accused Bindeshwari Singh is also alleged to have fired at the informant but it could not hit him and he safed himself. Meanwhile, other accused Baban Singh alias Chandradeep Singh and Bacha Singh came and informed the accused persons about the death of Dhanamuni Devi. Thereafter, the accused persons fled away. The motive of the occurrence was that the informant was asked to remove the fencing which was put by him. The information to the police resulted in Arrah Mufassil P.S.Case No. 141 of 1992 for offences under Sections 147,148,149, 324 and 302 of the Indian Penal Code and 27 of the Arms Act. The matter was investigated into and after completion of investigation, chargesheet was submitted and cognizance was taken. Thereafter the case was committed to the court of sessions where charges under Sections 302 read with 149,147 and 148 of the Indian Penal Code were framed against accused Jitendra Singh, Bacha Singh, 4 Bindeshwari Singh and Baban Singh, charges under Section 302,147 and 148 of the Indian penal Code were framed against Hanuman Singh and charges under Section 27 of the Arms Act was framed against accused Bindeshwari Singh, Jitendra Singh and Hanuman Singh. Charges were explained to the accused persons. They pleaded innocence and preferred to face trial. 3. The defence of the accused persons was of false implication and also that nobody had seen the occurrence. The murder was committed by the other criminals. 4. In order to prove its case the prosecution has examined altogether 7 witnesses. They are: P.W.1 Sheo Kumar Singh, a cultivator and husband of the deceased, P.W.2 Deo Kumar Singh (informant of this case), P.W.3 Dr.Sushil Kumar Rungta who conducted the post mortem, P.W.4 Sanjay Singh, student, P.W.5 Garjan Singh, P.W.6 Ram Kishun Singh and P.W.7 Murat Ram. 5. The prosecution has exhibited the signature of informant Deo Kumar Singh (P.W.2) on the fardbeyan as Ext.1, post 5 mortem report as Ext.2, Fardbeyan as Ext.3, Formal F.I.R. as Ext.4 and case diary from paragraph 1 to 42 as Ext.5. 6. The defence has also examined two D.Ws. They are : D.W.1 Tarkeshwar Prasad, an Advocate’s clerk and D.W.2 Dr.Anil Kumar Thakur. 7. The defence has also exhibited the hand writing of Arrah Muffasil P.S.Case No. 15 of 1976 of S.I.Nandlal Verma as Ext.A, signature of ASI on the above FIR as Ext.B, chargesheet of above case as Ext.C, formal F.I.R. of Arrah Muffasil P.S.Case No. 193 of 1995 as Ext.D, chargesheet of above case as Ext.E and injury report of Hanuman Singh as Ext.A1. 8. The trial court after taking into consideration the entire evidences on record found the appellants guilty and sentenced them as stated above but two accused namely, Baban Singh and Bacha Singh were given the benefit of doubt and they have been acquitted of the charges. 9. Firstly, the evidence of the doctor P.W.3 is being discussed. The doctor 6 has conducted the post mortem on the dead body of Dhanamuni Devi (wife of P.W.1) on 6.11.1992 and found following ante mortem injuries; (i) Fire arm wound of entry ½”x ½” with lacerated and blackened margin situated on front of left arm in about middle and trapped of projectile passed through muscle by the side of bone cavity laceration of muscles, vessels and nerves. Blood clots were present on that area. Projectile came out through fire arm wound of exit ¾” x ¾” situated 1” below exile on inner aspect of left arm. (ii ) Fire arm wound of entry ½”x ½” with lacerated and blackened margin with corresponding tea on clothes situated on upper part of chest. Left side situated 2 ½” above left nipple. Projectile passed into the chest cavity through 2nd I.C. space. Blood clots were presence in layers of chest wall there into the chest 7 cavity causing laceration of upper part of left lung. Blood clots present in left lung chest cavity. Projectile passed into cardiac and heart cavity laceration of heart 1”x 1” size, then projectile passed behind towards back and was ganged under the skin on right side in lower part of back. According to doctor, the cause of death was due to shock and haemorrhage and the time elapsed since death is between 6 to 24 hours of post mortem examination which was done on 6.11.1992. Suggestion was given to this witness as to what was the distance from which firing was made but the doctor has not replied as to from what proximity firing was resorted to. 10. P.W.4, Sanjay Singh, has not supported any part of the allegation. So he has been declared hostile. 11. P.W.5, Garjan Singh, has stated that when he was at his house, he heard that Dhanamuni Devi had been killed by Jitendra Singh. In his cross-examination, this witness 8 has stated that he has not seen Hanuman Singh at the time of occurrence. He is cousin of the informant. This witness is not an eye witness of the occurrence. 12. P.W.2, Deo Kumar Singh, is the informant of this case. He has stated that about one and half years earlier at 6.00 P.M. he had gone to a shop for purchasing some provisions and out side the shop he met with the appellants Bindeshwari Singh, Jitendra Singh and Hanuman Singh. All of them threatened him and asked him to remove the fencing of the land. At that time, Jitendra Singh and Hanuman Singh were having pistols and Bindeshwari Singh was having a gun. They started scuffles with this witness. This witness returned to his house. At that very time, Baban Singh (acquitted) came with bhala and Bacha Singh (acquitted) came with DBBL gun. Meanwhile, Jitendra Singh came and fired which caused injury to the informant on his right hand. Thereafter Hanuman Singh fired which caused injuries in the arms and lungs of informant’s bhabhi Dhanmuni Devi who died. The firing was resorted to by Bindeshwari 9 Singh on the informant but it did not hit him. On hulla, P.W.1 and other witnesses came and saw the occurrence. The informant came to the police station where his fardbeyan was recorded. 13. In paragraphs 16,17 and 18 of the cross-examination, the informant P.W.2 has stated that Ram Chola Singh told him that his bhabhi has been shot at by Hanuman Singh. No other villager had stated him that shot of Hanuman Singh had caused injury to informant’s bhabhi. Ram Chola Singh has given this information in the night of the occurrence. Soon after occurrence, the informant met his eldest brother Sheo Kumar Singh (P.W.1). Sheo Kumar Singh did not disclose that Hanuman Singh was one of the accused. 14. It has been submitted by learned counsel for the appellants that above version of the informant is contrary to the entire case and from this version it appears that the informant himself has not seen the occurrence. He came to know about the occurrence through Ram Chola Singh who has 10 not been examined. Investigating Officer of this case has also not been examined. So the question could not be put to him whether Ram Chola Singh has given any statement about the occurrence or not. 15. With regard to motive of occurrence, learned counsel for the appellants has pointed out that in paragraph 21, P.W.2 (informant) has stated that the accused persons were encroaching his 5 or 6 decimals of lands. Attention has been drawn towards the evidence of P.W.1, according to his evidence, scuffle started at the shop of Shyam Bihari Singh but he has not been examined. The prosecution has deliberately withheld examination of Shyam Bihari Singh. It has been argued that the presence of P.W.1 at the place of occurrence becomes doubtful as from his evidence, his presence has not been established because he in his own evidence has stated that he came to know about the occurrence through another person who has not been examined. 16. It has been argued that on the date and time as given by the prosecution 11 show that the occurrence took place in the evening, so it was dark and it was not possible to identify any person without any means of identification. No means of identification has been given by any of the prosecution witness. According to defence, nobody has seen the firing which has caused death of Dhanamuni Devi and only due to suspicion and enmity, false implication has been made. 17. Next it has been argued that the major portion of the prosecution version has been disbelieved by the trial court. The trial court has doubted the presence of accused Bacha Singh and Baban Singh at the place and at the time of occurrence and it has been held that they did not participate in the occurrence. Accordingly both of them have been acquitted. 18. The presence of some witnesses at the place and at the time of occurrence has also been disbelieved by the trial court itself. So on this basis it has been argued that as the major portion of the prosecution case has been disbelieved, the appellants 12 should have also been given the benefit of doubt. 19. Learned counsel appearing on behalf of the State has submitted that there are some contradictions in the evidence of the witnesses and definitely the witnesses are not consistent. It has been pointed out by learned Addl.P.P. that the prosecution should have examined more witnesses to support the prosecution version. 20. Considering every aspect of the matters, we are of the view that prosecution has not been able to prove the presence of some of the named accused at the place and at the time of occurrence, no means of identification has been given because occurrence occurred at 6.30 P.M. on 5.11.1992, there was no intention at all to cause death of a lady because the occurrence took place in the way of the village where informant was returning after purchasing some articles, presence of the informant and husband of the deceased has not been established because the materials produced by the prosecution it appears that they were 13 chance witnesses and most important witness Ram Chela Singh has not been examined as he is the person who had given information to the informant about the death of Dhanumati Devi from the shot of Hanuman Singh. Considering inconsistency in the evidence of the prosecution witnesses, we find doubt in the prosecution version and once the doubt is created, in our view, the benefit of that should be given to the appellants as has been given to other two accused namely, Baban Singh and Bacha Singh by the trial court. On the basis of doubtful evidence it will not be proper to upheld the conviction and sentence of the appellants. Accordingly, the appellants deserve to be acquitted. 21. In the result, both the appeals are allowed. The conviction and sentence of the appellants of both the appeals are set aside. They are acquitted of the charges. Appellants of Cr.Appeal No. 713 (DB) of 2004 namely, Bindeshwari Singh and Jitendra Singh, are discharged from liabilities of their bail bonds. Appellant of Cr.Appeal No. 809 (DB) of 2004 namely, Hanuman Singh alias Pawan Kumar 14 Singh, who is reported to be in custody, is directed to be released forthwith if not required in any other case. ( Shyam Kishore Sharma, J.) ( Akhilesh Chandra, J.) Patna High Court, Patna Dated,the 22nd March,2010 Tahir/-(NAFR).