CR. APP(DB) No.523 OF 1988 With CR. APP(DB) No.524 of 1988 ********** (Against the judgment and order of conviction dated 19th of August, 1988 passed by 3rd Additional Sessions Judge, Gaya in Sessions Trial No. 44 of 1988/30 of 1987) UPENDRA SHARMA, son of Shri Pradip Narain Singh, resident of Guraru P.S. Guraru, District-Gaya. --------------(Appellant) (In Cr. App (DB) No. 523 of 1988) KAMLESH SINGH @ SADHUJI, son of late Ishwari Singh, resident of village-Dighi, Police Station- Konch, District-Gaya --------------(Appellant) (In Cr. App (DB) No. 524 of 1988) Versus The State of Bihar ------------(Respondents) (In both the 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. Through the aforesaid two appeals, two appellants, above named have challenged the judgment and order of conviction dated 19th of August, 1988 passed by learned 3rd Additional Sessions Judge, Gaya in Sessions Trial No. 44 of 1988/30 of 1987, whereby both the appellants were convicted under Section 302/34 of the I.P.C. and sentenced to undergo R.I. for life and further convicted under Section 27 of the Arms Act and sentenced 2 to undergo R.I. for seven years each. The prosecution case as per the statement (Ext-2) of the informant, Daya Shankar Singh (P.W.1) recorded by Jamadar of Guraru P.S. on 15.03.1986 at 7:15 P.M. is to the effect that at about 6:45 P.M., the informant was in his quarter situated inside the Guraru Sugar Mill, when he heard the sound of gunshot firing near the house of Kamla Sharma, upon which the informant came running on the road and found the dead body of Rambilash Singh on the road. The informant found bleeding injuries on the head and the legs of Rambilash Singh. It appeared to the informant that the victim received gunshot firing immediately before reaching of the informant. It was claimed by the informant that since the electricity supply was running at the time of the occurrence, hence many persons who were outside their residential quarters might have seen the culprits and could have identified them. On the basis of the aforesaid statement of the informant Guraru P.S. Case No. 10 of 1986 was registered on 15.03.1986 at 7:15 P.M, under Section 302/34 I.P.C. against unknown. The police after investigation submitted chargesheet against three persons namely 1. Upendra Sharma 2. Kamlesh Singh 3. Ram Sakal Singh in which Upendra Sharma and Kamlesh Singh are appellants before 3 this Court. The prosecution has examined 11 witnesses to substantiate the charge, of which P.W. 1 is Daya Shankar Singh, the informant, who used to work in Guraru Sugar Mill and resided within the campus of Guraru Sugar Mill. He has deposed only to the extent that on hearing the gunshot firing, he reached at the P.O. and found the victim dead. In para 1 of his evidence, this witness has stated that Jamadar Ram Pravesh Singh of Guraru P.S, immediately reached at the place of the occurrence. It is further stated by this witness that the inquest report was prepared in his presence. After scanning of the evidence of P.W. 1, it is found that P.W. 1 has not raised any suspicion against any of the accused persons and his role as a witness is limited only to the extent that he found the dead body with gunshot injuries and informed the police and on his statement the F.I.R. was registered. P.W. 2, is Kameshwar Singh whose evidence is only relevant to the effect that the victim took tea with him, prior to the occurrence and he is witness to the inquest report, hence the evidence of this witness does not also, in any manner, helps the prosecution in proving the case. P.W. 3, Naresh Singh is also a post 4 occurrence witness who reached the P.O. after hearing the gunshot firing and when he reached he found P.W. 1, Daya Shankar Singh, P.W. 8, Maheshwari Devi and P.W. 9, Sanjay Kumar at the place of the occurrence. But this witness, in para 3, has stated that the only witness who reached the place of occurrence prior to this witness, was P.W. 1, Daya Shankar Singh, while P.W. 8 and 9 reached the place of occurrence, after this witness reached to the P.O. The other fact which has been deposed by this witness is that the victim was the President of Guraru Sugar Mill Employees Union, whereas Ishwari Prasad, father of the appellant Kamlesh Singh @ Sadhujee was the leader of the Congress Union of the Mill. From scanning of the evidence of P.W. 3, it appears that he is not the witness to the actual occurrence but his evidence confirms this fact that prior to his reaching at the place of the occurrence, only one person had reached there, who was P.W. 1, Daya Shankar Singh and hence, the claim of P.Ws. 8 and 9 of having reached the place of occurrence, as well as the claim of P.W. 9 of having witnessed the occurrence, gets clouded from the evidence of this witness. The evidence of P.W. 3 further clarifies that there was no dispute between the leaders of the two Unions. The evidence of this witness further suggests that the name of any suspected accused persons 5 was not conveyed to him, when he reached to the P.O. P.W. 4 is Raju Kumar, who, in para 1 of his evidence, has stated that he did not see the occurrence, hence he was declared hostile. Though the I.O., P.W. 11 in his evidence has stated that this witness has conveyed to the I.O, about the commission of the occurrence by both the appellants, but in his cross-examination he has stated that he has not made any statement to the police. Moreover, he was appearing in the matriculation examination on the alleged date of the occurrence at Samastipur, hence the evidence of this witness also, in no way helps the prosecution in unfolding the actual version of the prosecution case. P.W. 5 is Sakaldeep Singh who has deposed that on the alleged date of the occurrence, he was going to his house from Guraru market, when he heard the gunshot firing on which he went forward towards the gate of Guraru Sugar Mill and saw Kamlesh Singh and one unidentified person armed with rifle and gun, fleeing away from the place of occurrence. In para 3 of his evidence he has stated that he did not go inside the Sugar Mill to see the dead body, rather he went to his house without stopping at the place of the occurrence and on the second day of the occurrence, he came to know that Rambilash Singh has been killed. Thereafter, he went to see the dead 6 body, when his statement was recorded by the police. The conduct of this witness slightly impeaches his credibility in view of the fact that at the time of gunshot firing, he was near the place of occurrence but he did not try to reach to the actual place of the occurrence and went home. Moreover he has not stated in his evidence that he conveyed, about having seen Kamlesh Singh and one unidentified person fleeing away with arms, to anyone. P.W. 7 is Nanhak Singh who has also stated that on the alleged date of the occurrence he was going from Guraru to his house and when he reached near the gate of Guraru Sugar Mill, he heard gunshot firing and also saw Kamlesh Singh and one other person fleeing away with arms. This witness, in para 2, has stated that after hearing the gunshot firing he also did not stop and went to his village home and on the next day he came to know that Rambilash Singh was killed and his statement was recorded by the police after 3 to 4 days of the occurrence. Hence, the conduct of this witness, of not reaching to the actual place of occurrence in spite of hearing the gunshot firing and giving a statement to the police after 3 to 4 days of the occurrence, completely impeaches the credibility of this witness. From the evidence of P.W. 5 and 7, it appears that they were known to the victim and at least to 7 one accused Kamlesh Singh and their act of non divulgence of what they had seen at the place of the occurrence, to anyone, further creates doubts on the bonafide of their evidences. P.W. 8 is Maheshwari Devi, the wife of the deceased who heard cracker sound and thereafter she heard two gunshot firing, whereupon her grand-son Sanjay Kumar(P.W.9) came and conveyed about the firing made by Kamlesh Singh and Upendra Sharma, on which she went outside and saw her husband in an injured condition. In para 3, she has stated that her statement was recorded by the police on the next day because she became unconscious. This witness, in para 1, has stated that at the time of the occurrence she had gone to her neighbor’s house namely Murli Babu who has not been examined. Though, explanation has been given in para 4 of her deposition, that Murli Babu had gone outside but none from the Murli Babu’s side has come to support the prosecution case. To a Court question, this witness replied that she had seen both appellants with gun moving at the said place of occurrence. From scanning the evidence of P.W. 8, it appears that she has also not seen the occurrence and whatever has been conveyed to her, by her grand-son, the same has been deposed by this witness. The evidence of 8 this witness gets clouded from the fact that, if P.W. 9 would have seen the occurrence and conveyed to her, then either P.W. 8 or P.W. 9 would have been the first informant of the case, because as per the informant (P.W.1), the Jamadar of the Guraru P.S. reached to the P.O., immediately after the occurrence. Moreover, it has been disclosed by P.W. 3 that P.W. 8 reached to the place of the occurrence after the informant(P.W. 1) and arrival of P.W. 3, hence this contradiction alone clouds the evidence of P.W., 8 even to the extent of being a hearsay witness. P.W. 9, Sanjay Kumar, claims to be the sole eye witness of the occurrence alleged to have taken place on 15.03.1986, whereas his evidence was recorded by the Trial Court on 3rd of June, 1987 which reflects that his age was 14 years, meaning thereby on the alleged date of the occurrence he was slightly below the age of 13 years. Though this witness has claimed in para 1 of his deposition that Upendra Sharma fired from the rifle hitting on the leg of the deceased, as a result of which he fell down and thereafter Kamlesh Singh fired from his gun causing injury on the head of the deceased and subsequently thereafter, this witness went home and conveyed about the offence, committed by both the appellants, to her grand-mother. P.W. 9, in para 2 of his evidence, has stated that he made his statement before the Jamadar at the 9 place of the occurrence. In para 5, this witness has stated that the firing was resorted to from a distance of 10 yards and after his grand-father received injuries, he was the first person to reach the P.O., where nobody else had reached before him, where thereafter few people gathered and none asked him about the name of the accused, nor the grand- mother, while crying, named any accused person. Though the learned Trial Court has based his conviction solely on the ground of the evidence of sole eye witness P.W. 9 but to us, it appears that the evidence of P.W. 9 has to be considered keeping in view, his tender age. The conduct of this witness of not disclosing the name of the accused persons to anyone who reached at the P.O., raises doubt on his deposing bonafidely in para 2. The further contradiction in the evidence of P.W. 9 is that his statement was recorded at the P.O. by the Jamadar, whereas the case diary reflects that his statement was recorded on the next day of the occurrence as his statement under Section 161 Cr.P.C. was recorded in para 7 of the case diary and the same creates doubts on the bonafide of the evidence of P.W. 9. The credibility of this witness further comes under suspicion, on the ground that he was the best person who could have informed the police, because from his evidence it appears that he was the first person who witnessed the occurrence as well as the 10 consequences, but the lodging of the F.I.R. by P.W. 1 without naming any person reflects that either this witness did not reach to the place of the occurrence immediately after the occurrence or his evidence to the effect that he was an eye witness is an afterthought after lodging of the F.I.R., because had this witness disclosed the name of the appellants, the informant would have conveyed this fact even in his subsequent statement which was recorded on 16.03.1986. Although, no motive for the occurrence has been alleged, but it appears that few years prior to the occurrence, the father of the appellant Kamlesh Singh, who was also a Trade Union leader was killed, hence suspicion has been raised against the appellants. Hence to our view, the conviction can not be sustained on the basis of the evidence of P.W. 9, the sole eye witness, whose claim of being an eye witness gets clouded by the unreasonable conduct of P.W. 9 and if P.W. 9’s evidence can not be relied, then the evidence of P.W. 8 does not have any relevance, since she has deposed on the basis of evidence of P.W. 9. P.W. 10, Bhola Sharan Singh who claims to be the nephew of the deceased is the witness to the seizure. In para 2 of his evidence, this witness has stated that when he was passing-by from the place of the occurrence, he saw 11 that the police had caught one man and one leather suitcase was lying on the ground from which cartridges and rifle was recovered. Hence, the evidence of this witness, in no way proves this fact that the recovery has been made from Kamlesh Singh, as has been claimed by the I.O. This witness has not stated in para 2 of his deposition that the person who was arrested by the police was Kamlesh Singh and that the box which was lying on the ground was recovered from Upendra Sharma. P.W. 11, Ram Pravesh Singh is the Investigation Officer, who in para 2 of his evidence, has claimed to have arrested Upendra Sharma with a leather attaché, from which one country made rifle of 315 bore, four live cartridges and three live cartridges of 12 bore were recovered and the seizure list was prepared. In para 4 of his evidence, this witness has stated that the bullet which was recovered from the body of the deceased, as well as the seized rifle were not sent to the ballistic expert. Hence, the evidence of this witness, in no way proves this fact that the firing was actually made from the rifle which was seized. Moreover, as already discussed above, the seizure itself has not been proved to have been made from the possession of appellant, Upendra Sharma, in view of the evidence of P.W. 10, who in his evidence, does not name Upendra Sharma. Though this witness has stated in para 2, that P.W. 4 12 conveyed to him about having witnessed the occurrence, but, since P.W. 4 has been declared hostile, as P.W. 4 stated that he made no statement before the police and has not seen the occurrence, the deposition of P.W. 11 to this effect, loses its relevance and does not help the prosecution in proving the case. Though the defence has examined one witness, namely, Krishna Kumar who tried to produce the attendance register of Guraru Sugar Mill, to the effect that Ram Sakal Singh was on duty at the relevant point of time, hence Ram Sakal Singh has been acquitted and therefore the evidence of D.W. 1 is of no help. P.W. 6 is the Doctor who conducted the post-mortem and found three firearm injuries on the body of the deceased which are as follows:- (i) One circular wound of entry with blackened inverted margin with circumference 1” with open lacerated wound over frontal portion of scalp. Frontal bone missing and scalp open. Brain and meninges lacerated, filled with blood and blood clots. There was presence of wad into the substance of brain which had been preserved and was being sent. (ii) Two wounds of entry size ½” x 1/2” over postero lateral aspect of left leg on upper part with inverted margin and blackish discolouration of margin. Two wounds 13 of exit over antero-medical aspect of left leg. There was fracture of left tibia and fibula bones. There were pellets into the substance of bone which had been presented in sealed container and was sent through the constable. P.W. 6, the Doctor, opined that all injuries were antemortem in nature, grievous and dangerous to life and that both the injuries were caused by fire arms. He further opined that death occurred due to shock, haemorrhage and the time elapsed since death was within 18 to 24 hours from the time of post mortem examination. It was further suggested by P.W. 6, that injury No. (i) could have been caused from a very close range, might be 1 to 3(inch), while so far as the injury No. (ii) is concerned, the two wounds of entry clearly indicates that two shots were fired. It were also fired from close range. All the injuries reflects that there was blackened inverted injuries, around the wound and in para 5, the doctor has specifically suggested that the injuries were made from a very close range approximately from one to three inch, whereas the specific case of P.W. 9 is that the firing was made from 10 yards, hence this contradiction between the evidence of P.W. 9 and the Doctor (P.W. 6) further clouds the credibility of P.W. 9, who claims to be an eye witness to the occurrence. 14 From scanning of the evidence, it appears that prosecution has claimed that P.W. 9 is the eye witness, but to us, it appears that none have seen the actual occurrence and merely on suspicion the three persons were named by P.W. 9 to have participated in the occurrence and disclosure of this fact by P.W. 9, led to the deposition of P.W. 8 to that effect. Hence, in view of the inconsistencies between the evidence of other ocular witness to that of the evidence of P.W. 8 and 9 with regard to their presence at the place of the occurrence and the contradictions of the evidence of ocular witness to that of the medical evidence, lead us to the conclusion that actually none has seen the occurrence and merely on suspicion, the evidence has been recorded, particularly by P.W. 9, who is the sole claimant of being an eye witness to the occurrence. In view of the aforesaid discussions, we hold that the prosecution has failed to prove the case beyond the shadow of reasonable doubt, hence it is difficult for us to uphold the judgment and order of conviction dated 19th of August, 1988 passed by the 3rd Additional Sessions Judge, Gaya in Sessions Trial No. 44 of 1988/30 of 1987 and the same is set aside. The appellants are acquitted and are directed to be discharged from the liabilities of their respective bail bonds. 15 Both the appeals are accordingly allowed. Patna High Court Dated 27th of August, 2010 Shageer/NAFR (Shyam Kishore Sharma, J.) ( Dinesh Kumar Singh, J.)