CRIMINAL APPEAL No.568 OF 2004 Against the Judgment of conviction dated 8th July 2004 and order of sentence dated 10th July,2004 passed by the 5th Additional Sessions Judge, Bhojpur at Ara in Sessions Trial No.221 of 2001, arising out of Sahar P.S. Case No.15 of 2001 ------------ 1.ASHOK KUMAR SINGH 2. Bhola Prasad Singh 3. Ram Pravesh Singh 4. Manoj Kumar Singh--------------------------------------(Appellants) Versus STATE OF BIHAR-----------------------------------------(Respondents) WITH CR. APP (DB) No.604 oF 2004 BRIJ NANDAN SINGH--------------------------------------(Appellant) Versus STATE OF BIHAR------------------------------------------(Respondents) For the Appellants :M/S Rana Pratap Singh, Sr. Advocate, Sumant Singh, and Baxi S.R.P. Sinha, Advocates. For the Informant : M/S Kanhaiya Prasad Singh, Sr. Advocate Kamla Kant Singh, Atul Bihari, and Dhiraj Singh, Advocates. For the State : Mr.Ashwini Kumar Singh, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA THE HON'BLE MR. JUSTICE RAKESH KUMAR - 2 - Rakesh Kumar,J. Heard Sri Rana Pratap Singh, Senior Advocate and Sri Bakshi S.R.P. Sinha, Advocate appearing on behalf of the appellants and Sri Ashwini Kumar Sinha, Addl.Public Prosecutor for the Respondent. We have also heard Sri Kanhaiya Prasad Singh, learned Senior Counsel for the informant. 2. Both the appeals arise out of Judgment of conviction dated 8th July,2004 and order of sentence dated 10th July,2004 , and as such, both the appeals were heard together and ,accordingly, are being disposed of by this common Judgment. 3. The appellants have challenged their order of conviction and sentence passed in Sessions Trial No.221 of 2001 by 5th Addl.Sessions Judge, Bhojpur at Ara, whereby they were held guilty and convicted for the offences under Sections 302/34 ,307/34 of the Indian Penal Code and 27 of the Arms Act and all the appellants were sentenced to rigorous imprisonment for life for the offence under Section 302/34 of the Indian Penal Code . They were further sentenced to undergo rigorous imprisonment for 10 years for the offence under Section 307/34 of the Indian Penal Code and also to undergo rigorous imprisonment for four years for the offence under Section 27 of the Arms Act. All the sentences passed against the appellants were ordered to run concurrently. No sentence - 3 - of fine has been passed. 4. The prosecution case, in short, is that on 1st March,2001 at about 6.30 P.M. Sri Anil Kumar Singh ( P.W.1) gave his fardbeyan to Sri Ram Babu Mandal, Officer Incharge of Narayanpur Police Station on the Canal Road near Harkhen river, Baghi Market . In his fardbeyan ( Ext.1) , the informant disclosed that as usual after closing his shop, which runs in the name and style of “Kumar Machinery Stores” which deals with the Kirloskar Diesal Engine and its accessories at about 4.30 P.M. he along with his elder brother ,Bir Kumar Singh ( deceased) and cousin brother, namely, Rakesh Kumar Singh were returning to his village home, namely, Bargaon. As his brother Bir Kumar Singh reached near Baghi Badhar about 25 yards west on Canal road of Harken river, he saw his co-villager Nandu Chaurasiya coming from eastern side on a bicycle and on other cycle two unknown persons were going towards Narayanpur from eastern side. The informant disclosed that he was behind 25-30 yards back of his brother Bir Kumar Singh. He further disclosed that after noticing Nandu Chaurasiya his brother Bir Kumar Singh stopped his bicycle and both of them, i.e. Bir Kumar Singh and Nandu Chaurasiya started talking. In the meanwhile, the informant noticed that appellants Ashok Kumar - 4 - Singh, Manoj Singh, Ram Pravesh Singh, Brij Nandan Singh, all residents of Village-Bargaon, Police Station –Ajimabad in the district of Bhojpur, who were ambushing in the chart in the northern side of the Canal armed with rifle and pistol, suddenly came out and surrounded his brother Bir Kumar Singh and started firing from their respective arms on his brother , due to which his brother fell down . In the meanwhile , from the other side of the Canal , Bhola Singh ,resident of Village –Bargaon , Police Station-Ajimabad , District-Bhojpur along with two others , armed with pistol and rifle came and they also fired on his brother who was lying on the ground. The informant further stated that when his co-villager Nandu Chaurasiya asked the accused persons not to do so, then all the accused persons also opened fire on him through rifle and pistol. After noticing the said occurrence, the informant (P.W.1) and his cousin brother started fleeing away from the place of occurrence. Thereafter, accused persons started firing on him also. It was further disclosed that in the said firing one of the persons who were coming from the eastern side on bicycle sustained injury and fell down. Any how, the informant saved himself and ran towards village Muradpur and there he narrated about the occurrence to the villagers of the said village. Thereafter, the informant ( P.W.1) , his cousin brother - 5 - Rakesh Kumar Singh ( P.W.2) and one another persons who had fled away after leaving his bicycle who had subsequently disclosed his name as Ranjit Rai of Village- Jeneshar , Police Station Sandesh in the district of Bhojpur ( not examined) and villagers of village Muradpur came to the place of occurrence and saw that his brother Bir Kumar Singh , his co-villager Nandu Chaurasiya and one another person , regarding whome Ranjit Rai ( not examined) disclosed that his name was Hare Ram Rai Singh of village Jeneshar, Police Station Sandesh in the district of Bhojpur, were lying dead due to fire arm injury . The informant further disclosed that all the five named accused persons had earlier demanded Rs.25,000/- ( twenty-five thousand) as Rangdari and in this regard he had lodged the an F.I.R., bearing Ajimabad P.S. Case No.36 of 1999, on 23.12.1999 for offence under Section 387 of the Indian Penal Code. The accused persons were putting pressure and giving threatening for dire consequences for withdrawal of the said case. The informant claimed that due to said enmity accused persons, namely, Ashok Kumar Singh, Manoj Kumar Singh, Ram Pravesh Singh, Brij Nandan Singh and Bhola Singh (all appellants) and two others had committed the present occurrence. On the basis of the fardbeyan of the informant (P.W.1) a formal F.I.R. (Ext.6) was - 6 - drawn up on 1st March, 2001 at 11.30 P.M. After recording the fardbeyan, the police started investigation and finally after submission of the chargesheet , the aforesaid appellants were put on trial and they were charged for offences under Sections 302/34 , 307/34 of the Indian Penal Code and 27 of the Arms Act. 5. During the trial, to prove the case, the prosecution examined altogether 11 ( eleven ) witnesses ,out of them P.Ws 1 and 2 were examined as ocular witnesses to the occurrence, Arun Kumar Singh ( P.W.3) and Abhay Kumar Singh ( P.W.6) are hearsay witnesses. P.Ws 4 and 5 are witnesses on the inquest report. Baidyanath Singh Singh(P.W.7) is a seizure list witness , Dr. Arun Kumar Singh ( P.W.8) had conducted post-mortem examination on the dead bodies of the three deceased . Sri Ram Babu Mandal ( P.W.9) is the main Investigating Officer , Tarkeshwar Prasad ( P.W.10) is a formal witness who has identified writing and signature of Anil Kumar Singh over a written report, which has been marked as Ext.10, which was the basis of formal F.I.R. of Ajimabad P.S. Case No.36 of 1999. Sri Parmanand Bisna , Sub Inspector of Police(P.W.11) had partly investigated the case and submitted supplementary chargesheet in the case. 6. In the case, the appellants also examined altogether - 7 - 8(eight) witnesses in their defence. The defence of the appellants was complete denial and they have taken stand that they were falsely implicated in the case and some of them also took the plea of alibi. 7. Sri Rana Pratap Singh, Senior Counsel , appearing on behalf of the appellants has precisely formulated the following points: (i) Sri Anil Kumar Singh (P.W.1) and Sri Rakesh Kumar Singh (P.W.2) are not eye witnesses to the occurrence. (ii) The whole F.I.R. is anti-dated as it was belatedly prepared (iii) Inquest reports i.e.Ext.7-Inquest Report of Nandu Chaurasiya , Ext.7/1- Inquest Report of Bir Kumar Singh and Ext.7/2 – Inquest Report of Hare Ram Rai , were prepared on 1.3.2001 at 19.15 hours( i.e. 7.15 P.M.), 1.3.2001 at 19.30 hours ( i.e. 7.30 P.M) and 1.3.2001 at 19.45 hours( i.e. 7.45 P.M.) respectively and all the three Inquest Reports bear Sahar P.S. Case No.15 of 2001, whereas - 8 - formal F.I.R. in the case was drawn on 1.3.2001 at 23.30 hours( i.e. 11.30 P.M.) (iv) Four bicycles were not seized by the Investigating Officer from the place of occurrence. (v) Not even a single witness from village Muradpur has come forward to depose as prosecution witness. (vi) There is conflict in between medical evidence and ocular evidence , and (vii) All the witnesses who have supported the case, formal or eye witnesses, come from one family. 8. Elaborating his argument on the aforesaid points , Sri Singh has emphasized that in the case, the prosecution has examined only two witnesses who had claimed to witness the actual occurrence and those witnesses are Sri Anil Kumar Singh ( P.W.1) who is none else but full brother of the deceased Bir Kumar Singh and Sri Rakesh Kumar Singh ( P.W.2) who is cousin of the informant. With a view to create doubt regarding the veracity of the - 9 - two witnesses , learned counsel has categorically stated that it is the specific case of the prosecution that accused persons firstly surrounded the deceased Bir Kumar Singh and thereafter fired from their respective weapon, due to which Bir Kumar Singh fell down and again thereafter Bhola Singh ( appellant no.2 in Cr.Appeal No.568 of 2004) along with two others appeared and they also fired from rifle and pistol on the body of Bir Kumar Singh. By referring the postmortem report of Bir Kumar Singh, the learned Senior Counsel argued that none of the injuries caused on the body of the deceased Bir Kumar Singh show charring/tattooing mark. It was argued that if from such a close range, firing is done, then certainly the injury will reflect charring/tattooing mark on the body. He further argued that since they had no such injury, a doubt is raised regarding the credibility of the witnesses who have claimed to be the eye witnesses to the occurrence. 9. Sri Singh has forcefully challenged and claimed that the F.I.R. was ante-dated and prepared in a planned manner to implicate the appellants who were already made accused by the informant in Ajimabad P.S. Case No.36 of 1999 for the offence under Section 387 of the Indian Penal Code. The plea which has been taken by the appellants is that though the inquest reports which - 10 - were claimed to be prepared on 1.3.2001 after the occurrence in between 7.15 P.M. and 7.45 P.M. and formal F.I.R. was lodged on the same day at 11.30 P.M. in a Police Station, which was about 10 Kilometer away from the place of occurrence , it was beyond the imagination that the said inquest reports would have contained the F.I.R. number before formal registration of the same. 10. Regarding non-seizure of bicycles by the Investigating Officer from the place of occurrence, it was argued that when there was specific case of the prosecution that the deceased persons were on bicycles at the time of occurrence, then seizure of bicycles at the place of occurrence by the Investigating Officer was necessary. However, bicycles were not seized by the police from the place of occurrence. Learned senior counsel emphasizing the non-seizure of bicycles by the Investigating Officer from the place of occurrence as a measure flaw in the investigation argued that this also creates serious doubt on the question of occurrence being seen and claimed by the two eye witnesses. 11. Sri Singh further argued that it was specific case of the informant that after the occurrence to save their lives the informant, his cousin brother and one another person, namely, - 11 - Ranjit Rai (not examined) had rushed to village Muradpur and thereafter along with villagers of Muradpur they arrived at the place of occurrence, where the police also arrived subsequently, but none of the villagers from village Muradpur were examined to prove the prosecution case. This also creates serious doubt on the prosecution case. 12. Sri Singh argued that all the witnesses except official witnesses are related to the informant and as such, the witnesses appears to be not truthful and all the witnesses are interested witnesses. 13. Now in the light of the argument on behalf of the appellants and with a view to test the veracity of the prosecution case, it is necessary to examine minutely the evidence of P.W 1 and P.W.2 who are the eye witnesses to the occurrence. P.W.1 Sri Anil Kumar Singh during the trial has categorically supported his fardbeyan. P.W. 1 has disclosed that at Narayanpur Bazar he had shop of Kirloskar Diesal Engine and its accessories in the name and style of “Kumar Machinery Stores” and he is resident of Bargon, which is 6 Kilometer in the eastern direction from village Narayanpur. He stated that he himself and his deceased brother Bir Kumar Singh were running the said shop. He stated that usually they - 12 - used to close the shop at about 4.30 P.M. and return to village Bargaon on cycle. On the date of occurrence i .e. 1.3.2001 , P.W., the deceased and his cousin brother Rakesh Kumar Singh ( P.W.2) after closing the shop at about 4.30 P.M. were returning to their village. P.W.1 and his cousin Rakesh Kumar were on one cycle and coming behind his deceased brother Bir Kumar Singh who was on another cycle . At about 5.00 P.M. they reached near Harkhen river in the western side of Canal road . At that time, Nandu Chaurasiya was coming from eastern side over a cycle. Thereafter, his deceased brother Bir Kumar Singh stopped Nandu Chaurasiya for talking. P.W.1 further disclosed that from behind Nandu Chaurasiya two persons were coming on a cycle while his brother was talking with Nandu Chaurasiya . The appellants Ashok Kumar Singh, Manoj Kumar Singh, Ram Pravesh Singh and Brij Nandan Singh having rifles and pistols came out from the lower level of canal from northern side. P.W.1 stated that appellant Ashok Kumar Singh was carrying rifle and other three accused persons were carrying pistols in their hands. Thereafter, they surrounded his brother Bir Kumar Singh and fired by their arms on his brother. Thereafter, he fell down. In the meanwhile from the southern side of the canal, appellant Bhola Singh and two unknown accused persons came out - 13 - and fired through their respective fire arms on his brother who had already fallen down. Whereupon Nandu Chaurasiya protested and on said protest appellant Ashok Kumar Singh who was having rifle and others fired at him and he also fell down. Anil Kumar Singh ( P.W.1) further stated that he and Rakesh Kumar after throwing the cycle started fleeing away to save themselves .He claimed that accused persons also started firing on him with a view to kill . However, in the said firing one person out of two unknown who were coming on cycle got fire-arm injuries and the said unknown person also fell down. He further stated that he, Rakesh (P.W.2) and other unknown cyclist who hadescaped injury came to village- Muradpur. The said unknown person disclosed his name to P.W.1 as Ranjit Kumar Rai of village Janeshra, Police Station-Sandesh and he also told that Hare Ram was his co-villager and coming with him on a cycle has received gun-shot injury. Anil Kumar Singh (P.W.1) deposed before the court that he told the villagers of Muradpur about the occurrence and thereafter they returned to the place of occurrence and found that his brother Bir Kumar Singh, his co- villager Nandu Chaurasiya and Hare Ram of Village Jeneshra had died. In his deposition P.W.1. disclosed that prior to the said occurrence, appellants Ashok Kumar Singh, Ram Pravesh Singh and - 14 - Manoj Kumar Singh were demanding Rs.25,000/- as Rangdari from him and his brother Bir Kumar Singh, but they refused to give money , so they were threatening to kill them. Thereafter, he had filed a case vide Ajimabad P.S. Case No.36 of 1999 on 23.12.1999 against them, which was pending and chargesheet was already filed. P.W. 1 further stated that accused persons were threatening to withdraw or compromise the case otherwise they will be murdered. He also stated that police came and recorded his fardbeyan at about 6.30 P.M. in presence of Ranjit Rai (not examined) and Rakesh Kumar Singh (P.W.2). This witness has further stated that in his presence P.W.9- Sri Ram Babu Mandal, Sub -Inspector of Police prepared inquest reports of three dead bodies and seized blood- stained soil. Thereafter, the Officer Incharge , Pankaj Kumar Das (not examined ) came and seized three rifle empty cartridges and one empty cartridge of pistol from northern ditch in his presence and Baijnath Singh ( P.W.5). The said seizure list was marked as Ext.2. P.W.1 also stated that at the place of occurrence Arun Kumar Singh (P.W.3), Abhay Kumar Singh (P.W.6) of village Bargaon and villagers of Muradpur and Baghi had come. He further disclosed that one Sunildeo Singh (not examined) of Baghi had told him that he had seen the accused persons while fleeing away. This witness, - 15 - Anil Kumar Singh , has also deposed before the court that accused persons were threatening him and his family members . This indicates that even during the trial , the accused persons were threatening P.W.1. P.W.1 identified all the five appellants who were produced from custody in the dock. The examination-in-chief of this witness was complete on 2.3.2002 and thereafter on the same day P.W.1 was cross-examined and only one question was asked by the defence and cross-examination was deferred to 13.3.2002. However, on 13.3.2002, on repeated calls, none came on behalf of the defence to cross-examine P.W.1 and thereafter P.W.1 was discharged. Subsequently, after two months i.e. on 27.5.2002, P.W.1 was cross-examined on recall. In cross-examination at para-18 , P.W.1 disclosed that after the occurrence , all the cycles were left there. After his return, he saw the cycles were lying. He stated that on the cycle of his deceased brother, there was mark of blood. He could not see what happened to the cycle, but on the next date, villagers of Baghi returned the cycle. He stated that he was not in a position to show his cycle to the police. Even his cycle was also returned on the next date and even thereafter he never produced two cycles before the police. He further stated that he knew nothing about other two cycles. On perusal of cross-examination of P.W.2, - 16 - the Court is of the view that the defence has not extracted anything from the cross-examination of P.W.1 , which creates any doubt on the veracity of his evidence, and as such, the evidence of P.W.1 cannot be doubted , as argued on behalf of the appellants. 14. In the case, the next important witness who has seen the occurrence is Sri Rakesh Kumar Singh ( P.W.2) who is cousin brother of the informant and deceased . In his deposition, he has stated that on the date of occurrence, he had gone to Narayanpur on his cycle for the purchase of Cement. He has stated that in Narayanpur Market, the informant and his deceased brother Bir Kumar Singh was running a shop of Machinery part. After purchasing cement and iron rod, he loaded the same on his bicycle . However, the bicycle developed some problem, and as such, he put his bicycle inside the shop of his brother at Narayanpur and he along with the informant Anil Singh on a bicycle and deceased Bir Kumar Singh on another bicycle started for his village after closing the shop at 4.30 P.M. on the date of occurrence. He stated that Bir Kumar Singh was moving ahead on his cycle and at about 5.00 P.M. in Baghi Market near Harkhen @ Kumhari river, Bir Kumar Singh was about 25-30 yards ahead of eastern side and P.W.2 along with P.W.1 was following him. P.W.2 saw that his villager Nandu - 17 - Chaurasiya was going towards Narayanpur and after seeing Bir Kumar Singh , Nandu Chaurasiya stopped his cycle and both of them started talking . In the meanwhile , from the northern side of the canal, appellants Manoj Singh, Ram Pravesh Singh , Brij Nandan Singh and Ashok Singh , armed with rifle and pistols came out on the road and started indiscriminate firing on Bir Kumar Singh, whereupon Bir kumar Singh fell down . P.W. 2 further stated that from the southern chard of the canal , appellant Bhola Prasad Singh along with two unknown persons armed with rifle and pistol came out and started firing on Bir Kumar Singh who was already fallen down. Thereafter, Nandu Chaurasiya tried to persuade the appellants not to do the thing, on which appellant Ashok Kumar Singh shot Nandu Chaurasiya from his rifle , which hit on his abdomen. Others were also firing. When Nandu Chaurasiya fell down after sustaining injury of fire arm , the accused persons with a view kill Anil Kumar Singh ( P.W.1) started firing . At that very time, P.W.2 noticed two persons going towards Narayanpur on one bicycle and among them one of the persons received fire arm injury. He stated that in the firing opened on Anil Kumar Singh (P.W.1), one person of the said cycle received fire arm injury and he also fell down. Thereafter, P.W.2, Anil Kumar Singh - 18 - (P.W.1) and one of the said cyclists to save their lives fled away towards village Muradpur . P.W.2 further stated that the said unknown persons disclosed his name as Ranjit Kumar Rai( not examined) who was resident of Village Jeneshra, P.S. Sandesh , District-Bhojpur and the person who was on cycle and received fire arm injury was Hare Ram Rai of his village. P.W.2 further deposed that subsequently with 10-15 villagers of Muradpur , he returned to the place of occurrence, where he found that all the three persons had already died at the place of occurrence itself. He stated that villagers of Bhaghi also arrived at the place of occurrence and he and his brother Anil Kumar Singh narrated the story to the villagers of Baghi village. In his presence, at the place of occurrence fardbeyan of Anil Kumar Singh ( P.W.1) was recorded and he and Ranjit Kumar also put their signatures as witnesses to the fardbeyan. In his cross-examination, P.W.2 has categorically explained regarding his visit to Narayanpur and the story regarding coming back to his village along with P.W.1 and deceased and also his presence at the time of occurrence. He was cross-examined at length by the defence, but from the examination nothing could emerge which can even suggest that the defence succeeded in creating doubt on his evidence. In para-6, during his cross-examination he - 19 - categorically stated that at the place of occurrence, the police arrived at about 6.30 P.M. He categorically stated that police after arrival at the place of occurrence has prepared several documents and police remained there for about two hours. In paragraph 8 of his cross- examination, P.W.2 has stated that at the place of occurrence after arrival of villagers of Muradpur and Baghi , his co-villagers also arrived and he narrated the story to his villagers also. He stated that Abhay Kumar Singh ( P.W.6), Arun Kumar Singh, Baijnath Singh and others were there. He also admitted that Abhay Kumar Singh ( P.W.6) is his brother