CRIMINAL APPEAL No. 348 OF 2003 CRIMINAL APPEAL No. 350 OF 2003 CRIMINAL APPEAL No. 364 OF 2003 CRIMINAL APPEAL No. 369 OF 2003 Against the judgment of conviction, dated 29.07.2003 and order of sentence, dated 30.07.2003, passed by Sri Mahatam Prasad, 2nd Additional District & Sessions Judge, Siwan in Sessions Trial No. 134 of 1986. 1. VIJAY KUMAR SINGH, SON OF SATYADEO SINGH. 2. PRABHUNATH SINGH, SON OF LATE JOGENDRA SINGH. 3. BIRENDRA CHOUBEY, SON OF LATE KISHUNDEO SINGH. 4. SATYADEO SINGH, SON OF LATE MAHASHERAY SINGH. ALL ARE RESIDENT OF VILLAGE BARHANA PACHPATIA, P.S. – JAMO BAZAR, DISTRICT – SIWAN. ……….. (Appellants in Criminal Appeal No.348 of 2003) 1. HANSHNATH SINGH, SON OF LATE JOGINDER SINGH. 2. TRIGUNA SINGH, SON OF LATE SUKHDEO SINGH. 3. TUNTUN SINGH, SON OF LATE VIDYA SINGH. NOS. 1 TO 3 ARE RESIDENTS OF VILLAGE BARHOGA (PACHPATIA) 4. RAMESHWAR DUBEY, SON OF LATE BINDESHWARI DUBEY, RESIDENT OF VILLAGE DUBEY TOLA BARHOGA. 5. BIDYA YADAV, SON OF GAJADHAR AHIR. 6. RAMDEO YADAV, SON OF DOMA YADAV. NOS 5 AND 6 ARE RESIDENT OF VILLAGE BARHAITOLA BARHOGA. 7. DAROGA YADAV, SON OF BHAGIRATH YADAV, RESIDENT OF VILLAGE CHAND TOLA, BARHOGA. ALL ARE POLICE STATION JAMO DISTRICT SIWAN. …….. (Appellants in Criminal Appeal No. 350 of 2003) GOPALJI SINGH, SON OF LATE BANKE SINGH, RESIDENT OF VILLAGE BARHOGA PACHPATIA, P.S. – JAMO BAZAR, DISTRICT – SIWAN. ……….. (Appellant in Criminal Appeal No. 364 of 2003) 2 RAM BACHAN DUBEY, SON OF LATE RADHA KISHUN DUBEY, RESIDENT OF BARHOGA PURSOTTAM DUBEY TOLA, P.S. – JAMU BAZAR, DISTRICT – SIWAN. ……….. (Appellant in Criminal Appeal No. 369 of 2003) Versus THE STATE OF BIHAR … (Respondents) in all the Criminal Appeals P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. The four criminals appeals Cr. Appeal No. 348 of 2003, 350 of 2003, 364 of 2003 and 369 of 2003 are being heard together and disposed of by this common judgment as all the four appeals arises out of the judgment and order dated 29th July, 2003 passed in Sessions Trial No. 134 of 1986 passed by Sri Mahatam Prasad, the then Second Additional District and Sessions Judge, Siwan by which the appellants have been convicted under Section 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and further the appellant Gopal Ji Singh of Cr. Appeal No. 364 of 2003 and Ram Bachan Dubey the appellant of Cr. Appeal No. 369 of 2003 has further been convicted under Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for three years each for offence under Section 27 of the Arms Act and further all the convicts have further been sentenced to pay fine of Rs.5,000/- each for offence 3 under Section 302/149 of the Indian Penal Code and in case of default in payment of fine they have to further undergo rigorous imprisonment for a period of one years each. There were eight appellants in Cr. Appeal No. 350 of 2003, however, one of the appellants Shiv Shankar Yadav, appellant no. 8 was reported to have died during the pendency of the appeal and by order dated 02.12.2009 the appeal against Shiv Shankar Yadav was ordered to have been abated. 2. The prosecution case as alleged in the ferdbeyan of informant Kedar Pandey P.W. 5 recorded by S.I Sri G.S. Pandey of Jamo Bazar P.S. at Sadar Hospital, Siwan on 02.09.1983 at 2:00 P.M alleging therein that on 02.09.1983 the informant was sitting in the Sahan in front of the Dalan of Rajbansi Singh (Deceased) and the servant of Rajbansi Singh, Kripal Mahto (P.W. 4) was also there and Amerika Yadav (not examined) and Jotiya Kuer were also there who had come for doing labourer works. At that time Rajbansi Singh came from the side of his field. After reaching of Rajbansi Singh reached at place of occurrence Gopal Ji Singh along with 15 named accused (who includes the appellants with their parentage mentioned in the ferdbeyan) along with 4-5 other persons came forming an unlawful assembly with preparation for assault and reached to the well which was in the Sahan of Rajbansi Singh. It is further alleged that the Gopal Ji Singh was armed with gun and other with Lathi, Bhala, Fersa and country made pistol. Gopal Ji 4 Singh Master asked Rajbansi Singh about the calling of Panchayati regarding assault on Ramayan Yadav and fired which hit Rajbansi Singh on his abdomen thereafter Gopal Ji Singh abetted thereafter Rambacchan Dubey and Gopal Ji Singh fired indiscriminately on which the informant made a cry then on Halla Dharamnath Singh (P.W. 2), Rajender Yadav (not examined), Surendra Pandey (P.W. 3) and Ravinder Singh (not examined) and others reached there then they were chased by the other accused persons. It has further been alleged that from the firing made by the accused persons the informant got Pellet injury on his right hand, back head and right leg and Kripal Mahto, America, Most Jotiya Kuar also got injured. Rajbansi Singh got serious injury and fall down on the earth and thereafter all the accused persons mentioned in the ferdbeyan fled away hither and thither. Further case of prosecution is that villager Bindeshbari Singh (not examined), Anurudh Singh (not examined, son of the deceased) brought all the five injured to the Jamo Hospital but there was no Doctor then brought them to Siwan Hospital. The motive of the occurrence alleged to be that on last day i.e. Thursday accused Satyadev Singh and Vijay Kumar has assaulted Ramayan Yadav a labourer Rajbansi Singh by slaps and fists without any rhyme and reason in which Rajbanshi Singh was to call a Panchayati and further Gopal Ji Singh and other accused persons are inimical with Rajbansi Singh since before the occurrence. 5 3. On the ferdbeyan the FIR was lodged on 02.09.1983 itself, however, the date of dispatch shown to be on 03.09.1983 but the FIR has been received by the CJM on 04.09.1983. After lodging of the FIR the investigation proceeded and after investigation the charge-sheet was submitted for offence under Sections 302, 307 and 324/34 of the Indian Penal Code and Section 27 of the Arms Act against all the named accused persons mentioned in the ferdbeyan and consequently cognizance was taken on 30.11.1984 for offence under Sections 302, 307 and 324/34 of the Indian Penal Code and Section 27 of the Arms Act and consequently the case of all the 15 accused persons was committed to the Court of Session by order dated 12.04.1986 and after commitment the charge was framed against accused Gopal Ji Singh and Rambacchan Dubey for offence under Section 302 and 27 of the Arms Act for alleged committing murder of Rajbansi Singh and further all the 15 accused persons named in the FIR for offence under Section 302/149 of the Indian Penal Code by order dated 04.04.1994 and subsequently all the 15 accused persons were further charged under Sections 302/34 of the Indian Penal Code by order dated 02.08.1996 and the trial proceeded. 4. During the trial seven witnesses were examined on behalf of the prosecution there are P.W. 1 Paras Pandey, P.W. 2 Dharamnath Singh, P.W. 3 Surender Pandey, P.W. 4 Kripal Mahto, P.W. 5 Kedar Pandey 6 (informant), P.W. 6 Rajendra Narayan Singh, ACJM, P.W. 7 Rambalak Pandey, P.W. 8 Dr. Ramkrishna Prasad Singh who recorded the dying declaration of the deceased who conducted the post mortem examination on the person of the deceased. 5. The documentary evidence adduced on behalf for the prosecution is Ext. 1 signature of informant on the ferdbeyan, Ext. 1/A signature of Satyender Singh and Rajmohan Yadav on the ferdbeyan, Ext. 2 is the dying declaration, Ext. 3 order of the CJM on requisition dated 02.09.1983, Ext. 4 the formal FIR, Ext. 5 the ferdbeyan, Ext. 6 carbon copy of the inquest report, Ext. 7 to 7/4 are the injury slip of Kedar Pandey, America Yadav, Kripal Mahto, Rajbansi Singh and Jyotiya Kuar respectively and Ext. 8 to 8/4 are the injury report of the Doctor of the above mentioned injured of Ext. 7 series, Ext. 9 is the post mortem report, Ext. 10 the letter written by the I.O. to the Forensic Science Laboratory, Ext. 11 the seizure list, Ext. 12 is the requisition sent to the CJM and Ext. 13 is the case diary. 6. The defence has also adduced both oral and documentary. The evidence adduced on behalf of the defence is D.W. 1 Chandeshwar Prasad Ojha, D.W. 2 Salainder Kumar Sinha, D.W. 3 Srikant Singh, D.W. 4 Shashibhushan Prasad, P.W. 5 Bishwanath Singh, D.W. 6 Abdul Hamid, D.W. 7 Dr. Sri Prakash Tiwari, D.W. 8 Abadhnath Ram, D.W. 9 Manjur Ahmad, D.W. 10 Raghunath Ram as advocates clerk who has 7 fairly proved the case diary, Jamo Bazar P.S. Case No. 5283 marked as Ext. L as well as para 53 to 68 of the case diary marked as Ext. L/1, D.W. 11 is Sheochand Singh, D.W. 12 Ramadhar Singh proved initial of Vinay Kumar Singh on the attendance register of 02.09.1983, D.W. 13 is an advocate clerk who formally proved signature of one Rambalak Pandey S.I. marked as Ext. F/1, D.W. 14 proved the para 81 of the case diary of Jamo Bazar P.S. Case No. 5283 marked as Ext. N, D.W. 15 proved page 53 of the case diary of Jamo Bazar P.S Case No. 5283 marked as Ext. A. 7. In addition to the oral evidence the defence as also adduced several documentary evidence. The documentary evidence adduced by the defence is Ext. A the letter Principal of Narayan College, Goriyatoli, Ext. B order of Cr. Misc. No. 998 of 1983, Ext. B/1 is the certified copy of the order-sheet dated 12.08.1988 of Trial No. 40 of 1999, Ext. B 2 certified copy of the judgment of Complaint Case No. 217/60 Trial No. 39/61, Ext. B/3 certified copy of the judgment in G.R. Case No. 1504/78 passed by the Court of K.K. Srivastava, Ext. B/4 certified copy of the order dated 25.10.1976 by SDO, Ext. B/5 certified copy of the order dated 11.11.1998 from 08.01.1999 in Complaint Case No. 816 of 1997, Ext. B/6 certified copy of the order passed in Title Suit No. 339 of 1996, Ext. B/7 certified copy of the order passed in Complaint Case No. 808 of 1997, Ext. C, C/1, C/2, C/3, C/4, C/5 and C/6 certified copy of the 8 deposition of Sarla Choudhary, Rajbansi Singh, Gautam Chaubey, Paras Pandey, Ramchader Pandey and Dharamnath Singh in different cases and Ext. D to D/11 notice in order book dated 24.08.1983 05.09.1983, Ext. 2 to E/2 initial on notice Ext. F to F/8 College Leaving Certificate, Ext. G to G/1 is a Leave Application of Srikant Singh and C.P. Ojha, Ext. G 2 to G 3 leave petition of peon Prabhunath Singh and Ramayan Prasad, Ext. H to H/1 T.A Allowance of Ramayan Prasad, peon and Prabhunath Singh Ext. I the payment voucher of T.A. of Ramayan and Prabhunath, Ext. J Bank advance, Ext. K FIR with ferdbeyan along with the record of Trial No. 40/99 of G.R. No. 1592/83, Ext. E/2 signature of the Principal of Narayan School, Ext. L seizure list, photo copy of counterfoil and forwarding marked X 1 to X 5 for identification, Ext. E 4 and E5 signature of Shailendra on the letter, Narayan College, Ext. M letter of Government Hospital, Ext. N case diary, para of case diary N and N/1 the case diary M and M 1 signature of attendance register. 8. After considering the oral and documentary evidence the learned trial court convicted the appellants as stated above at the out set. 9. The defence of the accused persons that the witnesses has falsely deposed and no occurrence as alleged occurred and the witnesses has deposed falsely and the witnesses has falsely deposed to several themselves from the counter case and the witnesses has deposed out of 9 enmity and the dying declaration has wrongly been written and the certificate of Doctor on the dying declaration is forged. 10. There are five sets of advocates on behalf of the appellants. Learned counsel for the appellant appearing on behalf of the Vijay Kumar Singh Appellant No. 1 and Satyadev Singh Appellant No. 4 of Cr. Appeal No. 348 of 2003 subsequent that except Gopal Ji Singh and Rambacchan Dubey there is neither in fardbeyan nor in evidence of the witnesses it has been stated that which appellant/accused was armed with which weapons and neither there is any reliable evidence that they came together nor reliable evidence that flee together and further that though the informant has named all the accused persons with parentage in the ferdbeyan but unable to give parentage of the accused during the evidence and hence the statement of the informant in the ferdbeyan are not voluntary and hence there is no evidence that the appellants had got the common object. It has further been contended that though motive have been alleged as assault on Ramayan and Panchayati for assault but the motive has not been established nor evidence about assault and further the family members of the deceased has also not been examined when the occurrence took place in the Dalan further the witness are interested and inimical and are related to each other and the Doctor and the I.O real investigation are started the investigation has not been examined and dying declaration is not reliable as none of the witnesses 10 deposed about any dying declaration though there were present in the hospital at the alleged time of recording dying declaration. 11. The counsel appearing on behalf of the appellants Prabhunath Singh, Birendra Choudhary in Cr. Appeal No. 348 of 2003 and the appellants Hansnad Singh, Triguna Singh, Tuntun Singh, Vidya Yadav, Ramdev Yadav of Cr. Appeal No. 350 of 2003 adopted the submission of Appellant No. 1 and 4 of Cr. Appeal No. 348 of 2003 further submitted that there is no evidence that the assembly was of common object nor the common object be inferred by dying declaration which is not reliable and no question has been put regarding the dying declaration during examination of the accused persons under Section 313 of the Cr.P.C. 12. Learned counsel for the appellant Gopal Ji Singh in Cr. Appeal No. 364 of 2003 further contended that the witnesses are at variance in evidence in material particular, witnesses mention in FIR has been withheld whose evidence worth disclosing the narrative without any explanation and motive alleged not proved and witnesses named are interested and inimical and independent witness has been withheld and motive has not been proved. 13. Learned counsel for the appellant on behalf of the Rameshwar Dubey and Daroga Yadav further adopted the argument and contended that no question was put to the accused regarding the dying declaration under 11 Section 313 of the Cr.P.C so dying declaration not required to be considered. 14. Learned counsel for the appellant Rambacchan Dubey further contended that the appellants were charged under Section 302, 302/34 and 302/149 of the Indian Penal Code but no convicts under Section 302 of the Indian Penal Code and charge under Section 34 of the Indian Penal Code held not applicable appellants are deemed to be acquitted under Section 302 of the Indian Penal Code. It has further been contended that the witnesses are at variance and the allegations are vague and there is no allegation in the fardbeyan that shot fired by Rambacchan hit the deceased and the licensed gun by which firing alleged had been deposited prior to the occurrence and even forensic report not served on appellant, dying declaration not reliable and firearm injury does not support occurrence and non examination of Doctor who made surgical interference and non examination of I.O has caused prejudice to accused and non examination of independent witnesses and withholding the witness who are family of deceased cast a serious doubt about prosecution case. 15. Learned counsel for the informant and the State, however, contended that five witnesses examined who has supported the prosecution case and further their evidence finds corroboration with the dying declaration and medical evidence as there is no material contradiction in their 12 evidence and are reliable and trustworthy. It has further been contended that dying declaration cannot be discarded and rejected on the ground that the circumstance not placed under Section 313 of the Cr.P.C to the accused as appellant must show the prejudice has been caused for non compliance of the evidence and the learned counsel may give his explanation for consideration before court but no explanation has been given and when there is no material contradiction veracity of the witness proved the prosecution case of murder with common object. 16. On the respective submissions of the parties the question for consideration whether the prosecution has been able to prove the charges against the appellants beyond reasonable doubts and hence I proceed to consider the evidence of the witnesses in the light of the submission made by the parties. 17. The prosecution case as alleged in the fardbeyan that at the time of occurrence Rajbansi Singh (deceased) came from his field and thereafter the accused persons who are the appellant named along with 4-5 others came. Gopal Ji Singh asked Rajbansi (deceased) whether he is calling Panchayati against him and fired at Rajbansi Singh and on abetment Rambacchan Dubey fired along with Gopal Ji Singh indiscriminately and on Halla the witness Dharamnath Singh P.W. 2, Rajendra Yadav (not examined), Surendra Pandey (P.W. 3) and others reached and by the 13 said firing the deceased Rajbansi Singh and the witnesses and other got injured. 18. P.W. 5 is the informant and he has supported the prosecution case in his evidence and has stated that he was in front of the Dalan of Rajbansi Singh and Rajbansi Singh was also there and was washing the mouth at the well in the Sahan. Kripal Mahto P.W. 4, America Mahto, Most Jyotiya Kuar were also there in the Sahan then Gopal Ji Singh, Birender Chaubey, Jang Bahadur Singh, Vijay Kumar Singh, Tun Tun Singh, Prabhu Singh, Trigun Singh, Rambacchan Dubey, Rameshwar Dubey, Daroga Yadav, Shiv Shankar Yadav, Ramdev Yadav, Vidya Ahir and four five others came in unlawful assembly at a well in Sahan of Rajbansi from north and Gopal Ji Singh stated Rajbansi that he has such courage to convene Panchayati regarding Ramayan Yadav against him and fired which hit Rajbansi in his abdomen and on his command Rambacchan Dubey also fired by which Rajbansi, America (N.E.), Jotiya Kuar (NE), Kripal Mahto P.W. 4 also got injury. The villagers comes to rescue were also chased and the five injured were taken to the hospital since there was no Doctor to examin then they brought victim to Siwan Sadar Hospital. 19. P.W. 8 is the Doctor who has done the autopsy on the persons of the deceased and has stated that on 04.09.1982 at 11.00 A.M he performed the post mortem examination on the dead body of Rajbanshi Singh 14 identified by Constable No. 1990. Ganesh Singh has found the following injuries. i Left para-median surgical stitched wound 11-1/2 in length, drainage tube (rubber) coming out through and incised surgical wound 1/2” in length situated at left lower flank of abdomen. Intestine and mess entry were repaired at 12 places, Peritoneum inflamed at places, Peritoneal cavity contain 100 c.c. of blood and blood clots. One pillet was recovered from abdominal cavity. ii. Surgical stitched wound 2” in length, cavity deep on the left side of the chest, below the left axilla, left lung was lacerated. Left chest cavity contained 200 c.c blood and blood clots. One pillet was recovered from the substance of left lung. iii. Two pillet injuries mark on the upper part of right chest and 2nd on the right supra clavicular region. Both injuries were muscle deep. iv. Multiple pillet injuries and muscle deep involving the left arm, left elbow and left forearm, one pillet was recovered from substance of the left elbow region. v. Pillet injuries seven in number were found on the lateral aspect of left thigh and has opined that the time elapsed since death within 24 hours and death due to shock and hemorrhage and the nature of the weapon is firearm and has proved the post mortem report 15 marked as Ext. 9 and further stated that the injuries were sufficient in ordinary cause of nature to cause death. 20. Hence from the evidence of the Doctor above mentioned injuries were found by firearm the evidence of the Doctor has corroborated the evidence of P.W. 5 about the injury received by firearm and the injury was sufficient in ordinary course of nature to cause death. The injury was found in intestine and peritoneum and further one pillet was recovered from the substance of left lung and hence the injuries by firearm have been substantiated and corroborated by the medical evidence. In cross-examination stated that he cannot say the type of firearm used against the deceased. 21. P.W. 4 in his evidence supported the prosecution case that while Rajbansi washing his mouth then Gopal Ji Singh armed with gun came Satyadev Singh, Prabhu Singh, Vijay Singh, Aansnath Singh Vidya Singh, Virender Chaubey, Jangi Singh, Bhrigu Singh, Rameshwar Dubey, Shivshankar Yadav, Daroga Yadav and Ramdev Yadav came armed with various weapons near the well in the Sahan of Rajbansi and Gopal Ji Singh asked that he his Panchayati of Ramayan and fired at Rajbansi and Rambacchan Dubey also fired at the instance of Gopal Ji by which Rajbansi and when this witness proceeded to rescue then he also got to injury. It has been pointed out that in cross examination P.W. 3 then he has stated that he did not see anyone at well before after or at 16 the time of occurrence, however, occurrence took place near the well and this evidence cannot be a ground to disbelieve. There is nothing against this witness to disbelieve his testimony regarding the occurrence and only material that he was the ploughman of the deceased Rajbansi and hence his presence at the place of occurrence and merely because he was a ploughman his evidence cannot be discarded for being interested witness. 22. P. W. 2 is also a witness named in the ferdbeyan itself and he is also supported the prosecution case that on the date of occurrence at 10.00 A.M Gopal Ji Singh, Rambacchan Dubey armed with gun Rameshwar Dubey, Vidya Yadav, Daroga Yadav, Shivshandar Yadav, Birendra Chaubey, Gangi Singh, Tribhuban Singh, Satyadev Singh, Prabhu Singh, Vijay Singh, Tun Tun Singh, Hans Singh and Ramdev Yadav armed with pipe gun, Lathi and Bhala came to the Darbaja of Rajbansi Singh. Gopal Ji Singh abused Rajbansi Singh in context of going to convene a Panchayati and fired from his gun causing injury in the stomach of Rajbansi Singh and Rambacchan Dubey also fired causing injury to Rajbansi Singh which also injured Kedar Pandit, Ambica and Most. Jyotiya. None came from your village but later says that the villager come and flee away and thereafter there was slogan of Jay Bajrang and all flee away and hence this witness also supported the prosecution case regarding the firing by the Gopal Ji Singh and Rajbansi 17 Singh. However, there is nothing to disbelieve his evidence regarding the firing and injury in cross-examination has specifically stated about the place of occurrence the Sahan in front of the Dalan of Rajbansi. 23. P.W. 3 Surender Pandey as also supported the prosecution case and as also the witness of the ferdbeyan and as supported the prosecution case that at the time of occurrence Gopal Ji Singh and Rambacchan armed with licensee gun along with Jang Bahadur, Trigun Singh, Birendra, Satyadev Singh, Prabhu Singh, Hans Singh, Tun Tun Singh, Vijay