CRIMINAL APPEAL No. 324 (DB) OF 2005 With CRIMINAL APPEAL NO. 333 (DB) OF 2005 With CRIMINAL APPEAL NO. 334 (DB) OF 2005 with CRIMINAL APPEAL NO. 296 (DB) OF 2005 ------- Against the judgment of conviction and sentence dated 22.03.2005 passed by Sri Prakash Chandra Gupta, 7th Addl.Sessions Judge, Gaya in Sessions Trial No. 106 of 2003/206 of 2003. ----- BIGU SINGH SON OF ALAKHDEV SINGH RESIDENT OF VILLAGE SAHIYA,P.S.WAZIRGANJ, DISTRICT GAYA ---- APPELLANT (In Cr.A.No.324 of 2005) ----- SUNIL KUMAR @ SUNIL KUMAR SINGH SON OF LATE RAMESH SINGH @ GUPPU SINGH RESIDENT OF VILLAGE MIRGANJ,P.S.WAZIRGANJ, DISTRICT GAYA - --- APPELLANT (In Cr.A.No.333 of 2005) ----- NEERAJ KUMAR SINGH SON OF LATE BADU SINGH RESIDENT OF VILLAGE SAHIYA,P.S.WAZIRGANJ, DISTRICT GAYA ---- APPELLANT (In Cr.A.No. 334 of 2005) ----- SANJAY SINGH ALIAS SANJAY KUAMR SINGH SON OF LATE KARU SINGH, RESIDENT OF VILLAGE KOLHNA,P.S.WAZIRGANJ, DISTRICT GAYA ---- APPELLANT (In Cr.A.No.296 of 2005) VERSUS THE STATE OF BIHAR ----- Respondents (In all the four appeals) ----- For the appellants : Mr.Kumar Dhirendra Pratap Singh (In Cr.A.Nos. 324 and 296 of 2005) For the appellant : Mr.Madan Mohan Pd.Singh (In Cr.A.No. 333 of 2005) For the appellant : Mr.Tej Narayan Singh (In Cr.A.No. 334 of 2005) For the State : Mr.Ashwini Kumar Sinha, Addl.P.P. (In all the four appeals) ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ------ S.K.Sharma & D.K.Singh,JJ. All the above four appeals have been heard together and are being disposed of by this common judgment because they have arisen out of 2 one judgment. 2. The appellants have been convicted for offences under Sections 302/34 and 201 of the Indian Penal Code by judgment dated 22.03.2005 passed by 7th Additional Sessions Judge, Gaya in Sessions Trial No. 106 of 2003/206 of 2003 and they have been sentenced to undergo rigorous imprisonment for life for offence under Section 302/34 of the Indian Penal Code and further sentenced to pay a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for further two years. They have been further sentenced to undergo rigorous imprisonment for three years for offence under Section 201 of the Indian Penal Code. The sentences have been ordered to run concurrently. 3. Indrajeet Mistri has given his farbeyan. He is a resident of village Khondi, P.S.Wazirganj, District Gaya. The fardbeyan was recorded by Sri K.P.Singh, the then Officer-in- charge of Wazirganj Police Station. According to fardbeyan, informant had gone to Wazirganj Block along with villagers Suresh Yadav and Kanhai Yadav, both the deceased of the case, on 2.3.2001. It has been alleged that while they 3 were returning in the evening at about 7.00 P.M. and when reached near Ahira Bridge near Sahiya village, they noticed all the four appellants with one unknown person. They were variously armed with deadly weapons like rifles and pistols. Appellant Bigu Singh asked the informant and the deceased about their identification. The deceased Suresh Yadav disclosed his identity and thereafter, appellant Bigu Singh asked them as to why his name was not settled in the scrutiny. It was not responded. Thereafter appellant Bigu Singh dragged Suresh Yadav and all the rest accused persons started assaulting him. In the meantime, another deceased Kanhai Yadav attempted to escape but he was over-powered and appellants Sanjay Singh and Neeraj Kumar Singh fired upon him. Accused Uday Kumar and Neeraj Kumar Singh over-powered the informant and they got him locked in a room and threatened him not to disclose anything, otherwise, he will face the similar consequences and it may result to elimination of his entire family. Later on, the informant was let off and allowed to go with threatening not to disclose anything about the occurrence anywhere. The informant narrated the 4 entire occurrence to one Ishlok Yadav. They tried to locate Suresh Yadav and Kanhai Yadav. The informant, later on, came to know about recovery of two beheaded dead bodies in Dharampur Badhar. The matter was reported to police and fardbeyan of the informant was recorded which resulted in Wazirganj P.S.Case No. 16 of 2001 dated 4.3.2001. The motive of the occurrence, as mentioned in the fardbeyan, was land dispute between the parties. The police was also there and the headless dead bodies were identified as that of deceased Suresh Yadav and Kanhai Yadav by Rameshwar Yadav, Nanhku Yadav, Jawahar Yadav and local Dafadar Rahman Mian. The inquest report was prepared and headless bodies were dispatched for their post mortem examination. On 8.3.2001, appellant Neeraj Kumar Singh apprehended in connection with Wazirganj P.S.Case No. 18 of 2001 and confessed his role in bus dacoity which was got recorded by the then Officer-in-charge K.P.Singh (Ext.8). He in that case made culpable confession that heads of Suresh Yadav and Kanhai Yadav were chopped off and on his confession on 9.3.2001, the chopped heads of both the deceased were recovered from a dried and unused well of appellant Bigu Singh 5 which was located by the side of his house. The seizure list (Ext.7) was prepared. The police after completing investigation submitted chargesheet. Cognizance was taken and the case was committed to the court of sessions. Thereafter charges were framed and explained to the accused persons who pleaded innocence and preferred to face the trial. Hence trial proceeded. 4. In order to prove its case the prosecution has examined altogether eight witnesses. They are : P.W.1 Rameshwar yadav, father of deceased Suresh Yadav, P.W.2 Deoki Yadav, P.W.3 Indrajeet Mistri, the informant, P.W.4 Ishlok Yadav, brother of deceased Kanhai Yadav, P.W.5 Kameshwar Singh, Investigating Officer of the case, P.W.6 Dr.Vijay Kumar who conducted the post mortem of those two headless dead bodies, P.W.7 Akhileshwar Singh, another Investigating Officer of the case and P.W.8 Chunni Singh, Advocate’s clerk who has proved the writing of Sri K.P.Singh on the alleged confessional statement made by appellant Neeraj Kumar Singh. 5. The defence of the appellants was of 6 false implication on account of land dispute. Further defence was that the appellants were made accused with a view to wrecking vengeance. 6. P.W.3 Indrajeet Mistri is the informant of this case. He is the sole eye witness of the murder of two persons. P.W.6 is a doctor who has conducted the post mortem examination of two headless bodies. P.Ws.5 and 7 are Sub-Inspector of Police and Investigating Officers of the case. P.W.1 is the father of deceased Suresh Yadav and P.W.4 is brother of deceased Kanhai Yadav. P.W.1 is a witness of preparation of inquest report of both the deceased. P.W.4 is a witness on the point of seizure of two chopped heads of the deceased which were alleged to have been recovered from the well of appellant Bigu Singh. Signatures of the informant and witnesses on the fardbeyan have been marked Ext.1 series whereas the fardbeyan has been marked as Ext.2. Formal F.I.R. has been marked as Ext.3. Ext.4 is the entry of the case diary claimed to have been written on the basis of confessional statement of appellant Neeraj Kumar Singh which was recorded by K.P.Singh, P.W.5. Ext.5 series are the post mortem reports 7 of both the deceased. Ext.6 series are the inquest reports of the deceased. Seizure list of two chopped heads are Ext.7 series. Original confessional statement of Neeraj Kumar Singh in Wazirganj P.S.Case No. 18 of 2001 is Ext.8. Certified copy of judgment passed in Sessions Trial No. 459/99/512/96 whereby appellant Bigu Singh and others were convicted and sentenced to undergo life imprisonment for offence under Section 302 of the Indian Penal Code has been marked as Ext.9. Ext.10 is certified copy of Chargesheet of Wazirganj P.S.Case No. 59 of 1998 corresponding to Sessions Trial No. 87 of 2003 under Section 307 of the Indian Penal Code. Certified copy of chargesheet of Wazirganj P.S.Case No. 185 of 2000 for offence under Section 396 of the Indian Penal Code has been marked as Ext.11. Ext.12 is certified copy of chargesheet in Wazirganj P.S.case No. 77 of 1999 for offence under Section 395 of the Indian Penal Code. In Exts. 10,11 and 12 appellant Bigu Singh is also accused. 7. The motive given in the fardbeyan was litigation between the parties with regard to some land dispute but, during whole trial, no 8 paper has been proved by either side to show that land litigation was pending or contested between the parties. Informant, P.W.3, has stated that Bigu Singh has some animosity with deceased because his name was rejected in course of scrutiny as he himself was a candidate for the post of Mukhiya. This witness has further stated that he was not a candidate for the post of Mukhiya but deceased Suresh Yadav was himself a candidate for the post of Mukhiya whereas deceased Kanhai Yadav was his seconder in the proposed election. P.W.3 Ishlok Yadav has given a new version and has stated in court that the accused persons had demanded ransom of Rs.8,000/- from the members of the prosecution party. This has come, for the first time, when this witness was deposing in trial. Therefore, the motive, according to us, was not proved by the prosecution. 8. The sole eye witness who is informant of this case has stated that the occurrence was of 2.3.2001 but the matter was reported to police on 4.3.2001. 9. It has been submitted on behalf of the appellants that the informant himself was 9 involved in commission of murder because the Investigating Officer, P.W.7, in paragraph 10 has stated that at the initial stage of investigation the informant himself remained in the circle of doubt and his complicity was to be thoroughly investigated but during investigation on this point no help of any secret agent was taken and reliance was placed only upon P.Ws. 1,2 and 4 and Nand kishore Yadav and Fuleshwar Yadav (not examined). P.W.3 in paragraph 6 has also found the role of the informant to be doubtful in connection with murder because, according to him, Kith and keen of the deceased had asked him about the missing persons with whom the informant had gone. He has not narrated anything to them but only after recovery of the beheaded dead bodies, the farbeyan was given though murder was committed in his presence two days earlier. The informant in his evidence has admitted in paragraph 16 of his evidence that during whole occurrence, he was even not slapped by any of the accused. The informant has been further doubted because the chopped heads were found wrapped in his shirt for which the informant has stated in his examination-in-chief that he has to untie his 10 shirt at the dictate of the appellants. 10. The alleged confessional statement of appellant Neeraj Kumar Singh (Ext.8) has led to recovery of two heads. Neeraj Kumar Singh figures as an accused in the fardbeyan. On 8.3.2001, i.e., after a week of the occurrence, appellant Neeraj Kumar Singh was apprehended while looting articles of the Bus at Gaya-Nawada road and his confession in the case of that loot was recorded. In that case, he has made confessional Statement (Ext.8) regarding murder of two persons of this case. The said confessional statement of Neeraj Kumar Singh was not recorded in this case but the same was referred to in this case. 11. So far as recovery of two chopped heads on the basis of confession Ext.8 is concerned, it cannot be said to be a good evidence because the confession was not recorded by the Investigating Officer of the present case in connection with the this case, rather it was in connection with another case and that too was not brought on record. Therefore, the conviction of appellant Neeraj Kumar Singh leading to recovery cannot be upheld. 11 12. P.W.3, the informant, has stated that in the night of 2.3.2001 while he was returning along with the two deceased, the appellants have committed the murder. Deceased Kanhai Yadav had tried to escape but he was fired upon by appellant Sanjay Singh and Uday Singh by their arms. The informant has also stated that appellant Bigu Singh has ordered for his murder but he requested by all means and surrendered his life, thereafter he was ordered to loose his shirt and other accused persons locked him in a room. Thereafter he was got locked in the house of appellant Bigu Singh and he was made free only after threatening not to disclose about the occurrence to anybody. So the informant kept mum and became active after two days of the occurrence and started narrating the happenings to P.W.4 Ishlok Yadav, brother of deceased Kanhai Yadav. The role of the informant himself was doubtful and was to be thoroughly investigated by the Investigating officer but the evidence of the Investigating Officer is mum as to why the informant was let off. The recovered two heads from the well of appellant Bigu Singh were wrapped in the shirt which the informant was 12 wearing at the time of occurrence. It was a very strong circumstance against the informant himself. The Investigating Officer instead of investigating the role of the informant has tried to cover up the missing link of the case by relying upon one confessional statement of accused which was recorded by another Investigating officer in another case. That confession cannot be relied upon in view of the fact that there is no explanation of the prosecution at all as to why the matter of recovery of two heads wrapped in the shirt of the informant was not considered and this was not thoroughly investigated. Further the delay of two days in lodging the case creates another doubt. The informant is an eye witness of the occurrence and how he got courage only after two days in disclosing about the occurrence is not clear. There are a lot of inconsistencies in the prosecution version. So, we are of the view that prosecution was not able to prove the charges beyond the shadow of all reasonable doubts. As such, the appellants of all the above four appeals deserve to be acquitted. 13. In the result, the above four appeals 13 are allowed and the judgment of conviction and order of sentence are set aside. All the appellants of above four appeals are acquitted of the charges leveled against them. Appellants Neeraj Kumar Singh (Cr.Appeal No. 334 of 2005) and Sanjay Singh alias Sanjay Kumar Singh (Cr.Appeal No. 296 of 2005) are discharged from liabilities of their bail bonds. Appellants Bigu Singh (Cr.Appeal No. 324 of 2005) and Sunil Kumar alias Sunil Kumar Singh (Cr.Appeal No. 333 of 2005), who are reported to be in custody, are directed to be released forthwith if they are not required in any other case. ( Shyam Kishore Sharma, J.) ( Dinesh Kumar Singh,J.) Patna High Court,Patna The 25th February,2010 Tahir/-(NAFR).