IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.61 of 1989 with Criminal Appeal (DB) No. 79 of 1989 Against the Judgment of conviction and order of sentence dated 4th of February, 1989 passed by the 3rd Additional Sessions Judge, Nawadah in Sessions Trial No.123 of 1987/96 of 1984. Criminal Appeal (DB) No.61 of 1989: 1. Vijay Singh, son of Shree Singh. 2. Rabindra Singh, son of Ayodhya Singh. Both are resident of village-Rebra, P.S. Warisliganj at present Kashichak, District-Nawadah. …………………………………………………………………….Appellants. Versus The State of Bihar………………………………………….Respondent. ----------- Criminal Appeal (DB) No. 79 of 1989: Rajo Singh, son of Shri Jagarnath Singh, resident of village-Rebra, Police Station-Kashichak, District-Nawadah. ……………………………………………………………………..Appellant. Versus The State of Bihar……………………………………………Respondent. ====================================================== Appearance : For the Appellants : Mr. Neeraj Kumar, Amicus Curiae. For the State : Mr. Shiwesh Chandra Mishra, A.P.P. (in both appeals). ====================================================== 2 CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ------- ORAL JUDGMENT ------- S.K. Sharma & R.K. Mishra, JJ. Criminal Appeal (DB) No.61 of 1989 filed on behalf of the appellants, Vijay Singh and Rabindra Singh and Criminal Appeal (DB) No.79 of 1989 filed on behalf of the appellant, Rajo Singh, have been taken up together as they arise out of the same judgment of conviction and order of sentence dated 4th of February, 1989 passed by the 3rd Additional Sessions Judge, Nawadah, in Sessions Trial No.123 of 1987/96 of 1984, whereby the appellant, Rajo Singh, was found guilty under Section 302 of the Indian Penal Code and the appellants, Vijay Singh and Rabindra Singh, have been found guilty under Section 302 read with Section 34 of the Indian Penal Code. The appellants, Rajo Singh and Rabindra Singh, were also found guilty under Section 27 of the Arms Act. The appellant, Rajo Singh, has been sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and the appellants, Vijay Singh and Rabindra Singh, have been sentenced to undergo rigorous 3 imprisonment for life under Section 302 read with Section 34 of the Indian Penal Code. The appellants, Rajo Singh and Rabindra Singh, have further been sentenced to undergo rigorous imprisonment for a term of four years under Section 27 of the Arms Act. However, the sentences have been ordered to run concurrently. Both the abovenoted appeals are being disposed of by this common judgment. 2. For the occurrence taking place on 16.11.1978 at about 9.00 A.M., on the basis of the written statement (Ext.5) of Ram Kishun Pandey, the informant, P.W.6, given at 2.30 P.M. on 16.11.1978 at Warisaliganj Police Station, Warisaliganj P.S. Case No.8 dated 16.11.1978, under Sections 148/149/302 of the Indian Penal Code besides Section 25/26 of the Arms Act, leading to the formal F.I.R. (Ext.3), was instituted in which these appellants alongwith seven others were shown as accused. 3. As per the written statement of Ram Kishun Pandey, the informant, P.W.6, on the alleged time and date of occurrence, he alongwith his nephew, Dinesh Pandey, P.W.2 and labourers were harvesting paddy crops in his plot situated at TANDA. When harvesting of paddy crops was started then the villagers, Shree Singh, Ayodhya Singh, Siya Singh and 4 Lakhan Singh having Saif, Garasa and Bhala came there and restrained them from harvesting the crops and also threatened for dire consequences. On being chased by the accused persons, the informant, P.W.6 and others, working in the field, ran towards village but in the way they were intercepted and overpowered by the appellants, Rajo Singh, Vijay Singh and Rabindra Singh and others from village side. The appellants, Rajo Singh, Vijay Singh and Rabindra Singh were having guns and others were having garasa and phalsa. Thereafter, the accused, Lakhan Singh, who was chasing, ordered to kill then at his behest, the appellant, Rabindra Singh, fired from his gun causing gun shot injury in the left arm of Dinesh Pandey, P.W.2. Sitaram Singh just tried to intervene but at the behest of the accused, Lakhan Singh, the appellant, Rajo Singh, fired from his gun causing injury on the waist of Sitaram Singh, who succumbed to the injury on the spot. P.W.3, Tanik Singh, P.W.4, Awadh Singh and Dinesh Singh (not examined), witnessed the occurrence. The injured Dinesh Pandey, P.W.2 was taken with the help of villagers Jagdish Jha (not examined), Lukhar Jha (not examined) and Rajendra Pandey (not examined), to Warisaliganj Hospital. Ram Kishun Pandey, P.W.6, went to Warisaliganj Police Station 5 and submitted the written report at 2.30 P.M. on the same day, i.e., 16.11.1978. On the basis of the written report of Ram Kishun Pandey, P.W.6, Warisaliganj P.S. Case No.8 dated 16.11.1978 was registered against the accused persons under Sections 148/149/302 of the Indian Penal Code and 25/26 of the Arms Act and the police started the investigation of the case. The inquest report of the deceased, Sitaram Singh, was prepared. The post-mortem report (Ext.2) of the deceased, Sitaram Singh, was received and the statements of the witnesses were recorded. The case was found to be true by the police in course of investigation and, accordingly, chargesheet was submitted. Thereafter cognizance of the offence was taken and the case was committed to the court of sessions for trial, where charges were framed and explained to the accused persons, who pleaded their innocence, so the trial proceeded. 4. The defence of the appellants is of false implication and that they were dragged in this case on account of previous animosity. Their further defence is that the prosecution has failed to establish the manner of occurrence, place of occurrence and genesis of the occurrence. It has also been stated that the prosecution party had gone to harvest the paddy crops upon the land which belonged to the appellants 6 and in that connection they had received injuries and later on they falsely implicated the appellants and other accused persons in the present case. 5. In order to prove its case, the prosecution examined as many as ten witnesses. They are P.W.1, Ram Manjhi, P.W.2, Dinesh Pandey, (the injured), P.W.3, Tanik Singh, P.W.4, Awadh Singh, P.W.5, Ram Charitar Singh, P.W.6, Ram Kishun Pandey (informant), P.W.7, Dr. J. Lal, P.W.8, Kapil Kumar, P.W.9, Madan Singh and P.W.10 Baleshwar Singh. P.W.1, Ram Manjhi, is a witness on the first part of the occurrence regarding harvesting of the crops and coming of the first batch of the accused persons. P.W.2, Dinesh Pandey, P.W.4, Awadh Singh and P.W.6, Ram Kishun Pandey, the informant, are alleged to be eye witnesses. P.W.3, Tanik Singh, has been declared hostile and P.W.5, Ram Charitar Singh, has been tendered. P.W.7, Dr. J. Lal, is doctor, who conducted the post-mortem examination of the deceased and P.W.8, Kapil Kumar, is the Investigating Officer of this case. P.W.9, Madan Singh and P.W.10, Baleshwar Singh, are the formal witnesses. P.W.9, Madan Singh, who is typist, has proved the injury report of P.W.2, Dinesh Pandey and P.W.10, Baleshwar Singh, who is Advocate’s clerk, has proved the 7 written report (Ext.5), which led to the institution of the formal F.I.R. The doctor, who has treated the injured Dinesh Pandey, has not been examined in this case by the prosecution. 6. On the other hand, the defence has examined three witnesses on its behalf. They are D.W.1, Deonandan Sharma (Advocate’s Clerk), D.W.2, Jamuna Prasad (Advocate’s Clerk) and D.W.3, Ram Pati (M.M. Peon). D.W.1 and D.W.2 have proved the large number of documents with regard to the title and possession of the accused persons over the disputed land. D.W.1 has proved Ext.A series, which are rent receipts in the name of accused Siya Singh and Mosaheb Singh. D.W.2 has proved the certain documents and D.W.3 has proved Exts.B and C. Ext.B is the writing of Ram Prasad Ram, Station Superintendent, Kiul Railway Station and Ext.C is the writing of one Moortaza Hussain, Assistant Station Master, Kiul Railway Station. The defence has brought the aforesaid documents on record to show that the P.O. land, i.e., plot no.807 was of the accused persons. Certified copies of the orders dated 1.3.1975 and 28.4.1975 passed in a proceeding under Section 103(A) of the Bihar Tenancy Act by the Survey Settlement Officer have been brought on record by the defence to show that the authority 8 concerned after making inquiry resolved that the accused persons were in possession of the aforesaid land. Similarly, on the basis of the Parcha (Ext.I) issued in the name of accused Siya Singh in respect of the disputed land, i.e., plot no.807, it has been held that the accused persons were in exclusive possession of the disputed land. Therefore, it can be said that there were litigating terms between the parties. The accused persons have produced the copies of the entire survey khatiyan, cadastral and revisional survey to prove their claim. A proceeding under Section 145 of the Code of Criminal Procedure was also initiated for the possession of the land, which was also decided in favour of the accused persons. 7. Out of the aforesaid eye witnesses examined on behalf of the prosecution, P.W.1, Ram Manjhi, is not a witness on the point of assault, i.e., the second part of the occurrence. He has only stated that the accused Lakhan Singh, Ayodhya Singh and Shree Singh, came in the field and restrained to harvesting the crops and, thereafter, he and other labourers fled away towards the village and after half an hour the occurrence took place. P.W.4, Awadh Singh, has not supported the case of the prosecution and his evidence has been disbelieved by the 9 trial court. P.W.7, Dr. Jawahar Lal, has conducted the post- mortem examination of the deceased Sitaram Singh on 17.11.1978 at 11.15 A.M. and has found the following injuries on his person: (i) One circular lacerated wound of 1/4” diameter Opening into abdominal cavity with burnt margin on lower part of back on left side. (ii) Abrasion 3/4” X 1/2” on front of left knee. In the opinion of the doctor, the injury no.(i) was caused by fire arm whereas the injury no.(ii) was caused by hard and blunt substance. Death was caused on account of shock and haemorrhage due to injury no.(i). In the opinion of the doctor, the death had occurred 6 to 36 hours prior to the occurrence. Therefore, in the opinion of the doctor, the death of the deceased, Sitaram Singh, was caused by fire arm which has been noted by the prosecution. P.W.2, Dinesh Pandey, is the nephew of the informant, P.W.6, Ram Kishun Pandey. In his deposition, he has stated that on the alleged date of occurrence at about 9.00 A.M., he was on his filed alongwith P.W.6, Ram Kishun Pandey for getting the paddy crops harvested whereas Ram 10 Manjhi, P.W.1, Ramphal Manjhi and Birja Manjhi, who were also with them, were harvesting the paddy crops. In the meantime, the accused, Lakhan Singh, Shree Singh, Ayodhya Singh and Siya Singh came there and started abusing them and also restrained them from harvesting the paddy crops. He has also stated that the accused, Shree Singh was having saif, Lakhan was having Garasa while others were having lathi. On being chased by the accused persons, he alongwith his uncle, P.W.6, Ramkishun Pandey, ran towards village but they were intercepted by Rajo Singh, Rabindra Singh, Vijay Singh, Surendra Singh and Krishna Singh, who were coming from the village. Thereafter, on the order of the accused, Lakhan Singh, the accused-appellant, Rabindra Singh, fired from his gun causing injury on his left arm. This witness has also stated that when Sitaram Singh, who was also coming behind him, tried to intervene in the matter, on the order of the accused, Shree Singh, the accused-appellant, Rajo Singh, fired from his gun, as a result of which he died. P.W.6, Ram Kishun Pandey, the informant, in his evidence has stated that on the alleged time and date of occurrence, he alongwith his nephew, Dinesh Pandey, P.W.2, were supervising the harvesting of the paddy crops being done 11 by Ram Manjhi, P.W.1, Birja Manjhi and Ramphal Manjhi. In the meantime, the accused, Lakhan Singh, Ayodhya Singh, Shree Singh and Siya Singh came there and restrained them to do so. When they protested the same, accused persons started abusing them. On being chased by the accused persons, labourers fled away but he and his nephew remained in the filed. Thereafter from the western side, the accused- appellants, Vijay Singh, Rabindra Singh and Rajo Singh having Garasa and Barchha, came there. As soon as they came, the accused, Lakhan Singh, told to kill, thereafter, the accused-appellant, Rabindra Singh, fired causing injury on the left arm of his nephew, Dinesh Pandey, P.W.2. Thereafter, Sitaram Singh came there and requested the accused persons not to do so but the accused-appellant, Rajo Singh, fired as a result of which Sitaram Singh, died. The dead body of the deceased, Sitaram Singh was brought to Police Station by Awadh Singh, Tanik Singh and Dinesh Pandey. He also went to the Police Station where his statement was written and he put his L.T.I. thereon. Attention has been drawn towards the evidence of the Investigating Officer, P.W.8, Kapil Kumar, with regard to the production of the documents regarding the title and 12 possession over the disputed land by the prosecution. In paragraph-5 of his cross examination, the Investigating Officer has categorically stated that though the same were shown to him by the defence but there is nothing to show that any document or paper either with regard to the title or possession was shown to him by the prosecution. 8. The place of occurrence, on the basis of the fardbeyan/written statement of the informant, is at two places. First place is the field where the paddy crops was being harvested and the second place is that where the informant and others were intercepted by the accused persons and the nephew of the informant, Dinesh Pandey P.W.2 sustained fire arm injury at the hands of the accused persons on his left arm and the deceased Sitaram Singh, was given a firearm shot by the accused persons. Therefore, the first place of the occurrence is where the paddy crops was being harvested and the second place is the place of assault. The Investigating Officer has noted the place of occurrence in paragraph-2 of his evidence in detail but he has stated in paragraph-3 of his deposition that they found only one or two drops of blood from the place where the deceased Sitaram Singh was killed but not seized it. The Investigating Officer also did not find any harvested 13 paddy crops there. Manner of assault has been described by the P.W.6 in paragraph-5 and 6 of his evidence, wherein he has stated that the accused-appellant, Rabindra Singh, had fired from his gun causing injury on the left arm of his nephew and he has also stated the firing made by the accused, Rajo Singh, was fatal to Sitaram Singh. P.W.2, Dinesh Pandey, an injured eye witness, in paragraphs-24 and 25 of his evidence has stated about the distance from where the firing was made and he has received injuries. As per his evidence, firing was made by the accused persons at him from the distance of 60 yards and thereafter firing was made at Sitaram Singh from the distance of about 10 yards east. The doctor, P.W.7, conducting the post-mortem examination of the deceased, Sitaram Singh, has found burnt margin in the lower part of back and no metallic ball was found on the dead body of the deceased. If the evidence of the P.W.2 with regard to the distance of firing is to be believed, it is apparent that the same was made at least from the distance of 30 fts. and not from the close range. Therefore, there is vital contradiction in the evidence of the P.W.2 and the doctor. It also appears from the evidence of P.W.2 that the firing was made from the front of the deceased but the doctor evidence is that the deceased received injury on the back. This 14 is another vital contradiction between the ocular evidence and medical evidence of the doctor. The evidence of P.W.2, Dinesh Pandey, is that he received injury which prevented him from giving the statement before the police soon after the occurrence. The evidence of the injured witness and eye witness is most important and their evidence must be taken care of and without delay and the purpose of earlier taking statement is that correct version may come at the earliest. The occurrence has taken place on 16.11.1978 at 9.00 A.M., the formal F.I.R. was registered on 16.11.1978 at 2.30 P.M. and the Statement of the witnesses under Section 161 Cr.P.C. was taken by the Investigating Officer on 24.11.1978, after a complete week. The evidence of the alleged eye witnesses, P.W.2 and P.W.6 have been relied upon whereas the evidence of P.W.4 has been disbelieved by the trial court but P.W.2 and P.W.6 have deferred with their versions with regard to the manner of occurrence and place of occurrence. The major part of the occurrence has been disbelieved by the trial court. In his written statement the informant, P.W.6, has stated that on being chased by the accused persons, they were intercepted by the appellants and they made firing resulting into the death of Sitaram Singh whereas in his evidence he has stated that the 15 appellants were having Garasa and Barchcha. This creates a great suspicion with regard to the manner of occurrence of the prosecution case. P.W.2 in his evidence has stated that on being chased by the accused persons they fled away towards village whereas P.W.6 has stated in his evidence that he and P.W.2 remained there on being chased by the accused persons and the labourers fled away. This is also inconsistencies in the evidence. Besides above, it is also apparent from the record that the case has been instituted on the basis of the written statement of the informant, P.W.6, in which he put his L.T.I. but in course of evidence he has stated that he did not remember as to who had written the same. This also creates a great suspicion with regard to the genesis of the lodging of the First Information Report. 9. In a criminal case, the prosecution has to prove the place of occurrence, manner of occurrence and other facts which led the Court that the accused -appellants were responsible for the occurrence in the manner as alleged and if it fails to do so, it can be said that the prosecution has not been able to prove the case beyond reasonable doubts and the benefit of doubt should be given to the appellants. In the present case, in view of the aforesaid discussions, the 16 prosecution has not been able to prove its case beyond all reasonable doubts. Therefore, the appellants are given the benefit of doubt. 10. In the result, the judgment of conviction and order of sentence passed against the appellants are set aside and the appeals are allowed and the appellants are acquitted of the charges. The appellants are on bail, so they are discharged from the liabilities of their bail bonds. 11. Mr. Neeraj Kumar, Advocate, has assisted this Court as Amicus Curiae and, as such, he is entitled to get one fee of hearing payable by the Patna High Court Legal Services Committee and for that purpose, let a copy of the first and last page of this judgment be supplied to Mr. Neeraj Kumar, Advocate. (Shyam Kishore Sharma, J) (Rajendra Kumar Mishra, J) Patna High Court, Patna. Dated: The 21st of July, 2011. Pradeep Srivastava/N.A.F.R.