JUDGMENT
M.P. Verma, J.
1. The conviction of these appellants named above, is based on the solitary statement of PW 13 Baldeo Yadav, the informant of this case. They were put on trial with ten other accused on the charge that they formed an unlawful assembly with the common object to cut the bamboos from the clump of PW 16 Kishun Pd. Mandal at village Chint Balua under Police Station Purnea, District Purnea and to commit the murder of Bishwanath Singh and Sk. Rafique and thereby they committed the offence of rioting and murder of Bishwanath Singh and of Sk. Rafique and also committed theft of bamboos. The trial Court, under the same judgment, discarding one part of the statements of the said witness PW 13, acquitted 10 of the accused and accepting the other part of his statements held the appellants guilty of the various charges, as detailed out in the judgment impugned against which this appeal arises.
2. All the appellants have been convicted under the charge under Section 302/149 of the Indian Penal Code (for brevity referred to as ‘the Code’) and sentenced to suffer imprisonment for life. Appellant No. 1 Laxmi Tanti, appellant No. 4 Akal Tanti and appellant No. 6 Sukhdeo Tanti have further been convicted under Section 302/34 of the Code and sentenced to suffer life imprisonment under this charge as well, but the sentences are to run concurrently. They have further convicted of the charge under Section 201 of the Code and sentenced to suffer rigorous imprisonment for two years and also under Section 379 of the Code and further rigorous imprisonment for two years under this charge as well. The so imposed are again to run concurrently. There was an independent charge under Section 148 of the Code against the appellant No. 2. Ramsewak Nonia and appellant No. 3 Sukhdeo Mandal. These two appellants have been convicted under this charge also and sentenced to suffer rigorous imprisonment for two years each. The sentences are again to run concurrently. The rest of the appellants have been further charged under Section 147 of the Code and under this charge each one of them has been sentenced to suffer rigorous imprisonment for two years with the same direction that their sentences so imposed are to run concurrently.
3. It transpires from the evidence that one Yuvraj Singh, an M.L.A. had sent a written report (marked Exh. 3) to the Inspector of Police stating therein that there was rumour in village Chint Balua that the houses of Musahar in Musahartoli were set on fire and there was possibility of breach of peace. A request was made to the Inspector of Police to take necessary action. It appears that the Inspector of Police contacted the Officer-in-charge of Sadar Police Station, Purnea, who in his turn, started for the village. This information was sent by Yuvraj Singh the some day of the incident, i.e., on 7-3-1971 at about 7.40 p.m. The occurrence of rioting and murder, as alleged by the prosecution took place at about 3 p. m. The Sub-Inspector of Police Deonarain Singh, who was then the Officer-in-charge at Sadar Police Station, Purnea has been examined as PW 20. He has said that on getting the message he came straight to the ‘Kamath’ of PW 16 Kishun Prasad Mandal. The deceased Biswanath Singh and Sk. Rafique and also one Munir were the Kamatias i.e. Sipahis and labourers of PW 16 Kishun Pd. Mandal. The case is that Munir was also brutally injured in the occurrence, but he has not been examined in court as a witness.
4. PW 20 recorded the fardbeyan of the informant PW 13 Baldeo Yadav, who was there in the Kamath. The recording of the fardbeyan was done at about 11 p.m. The Fardbeyan is: Ext. 6. Formal F.I.R. was drawn up on this basis and the first information report is Ext. 8. The case was thus, registered. PW 20 took up investigation. He inspected the place of occurrence i.e. the Kamath of PW 16 and then went up to Musahartoli, where case of arson was reported by Yuvraj Singh. There in the Musahartoli, the Police PW 20 found the dead-body of Biswanath Singh and also found Munir lying injured to the south of the house of one Singheshwar Musahar. Inquest report of the dead-body was prepared and the dead-body was sent for post-mortem examination.
5. Further case is that one tractor driver PW 6 named Durga Pd. Mehta was also assaulted when he had reached near the Kamath on the tractor. PW 20 found him there. Both Durga Pd. Mehta and the injured victim Munir were examined by PW 20. Their injury-reports were also prepared and they were sent for medical examination. PW 11 Dr. Satyendra Kumar Sinha had held post-mortem over the dead-body of Bishwanath Singh and the post-mortem report is Ext. 4.
6. The said Police officer PW 20 during the course of investigation took the fardbeyan of accused Kashi Rishideo (acquitted of the charge) and the said fardbeyan has been marked as Ext. 5. Formal F.I.R was drawn up on the basis of the same marked Ext. 6/1. PW 20 took up investigation of this case as well in which allegation was made that PW 16 Kishnu Prasad Mandal in the Company of others had formed an unlawful assembly and came to Musahartoli, set fire to the houses of the Musahar and that led to Marpit from both sides in which, the Sipahi of PW 16, namely Bishwanath Singh who was also in the mob was killed by someone in the Musahartoli. The police submitted final form in the counter case lodged by Keshi Risideo, who has been known and described as Keshi Musahar and was accused in the present case. He was acquitted by the trial Court. The police, however, submitted charge-sheet in the present case against 24 accused showing two of them as absconder. One absconder namely, Kadamlal Yadav subsequently appeared and his case too was committed to the court of session to stand trial with other accused and has been convicted of the charges as aforesaid. He also joined in the appeal and he is appellant No. 11.
7. The other charge-sheeted accused Puran Mandal against whom the allegation is that he shot an arrow hitting Sk. Rafique causing his death, is still absconding. Accused Fagu Bishwas, son of Sonali Tanti, who was on trial absconded at a stage when the case for the prosecution was closed and therefore, his case was separated from the trial.
8. At the trial stage the prosecution examined 20 witnesses, the last one being the Police Officer Deomanith Singh as discussed above. From the judgment impugned and also as pointed out by both the counsel for the appellants and as well as the respondents that PWs 1, 4, 5, 6, 7 and 8 are hostile to the prosecution. The trial Court has not placed reliance on their evidence. The other witnesses PWs 2, 3, 9, 10, 14, 15, 18 and 19 are all formal in character and their evidence needs no discussion. PW 16 Kishun Pd, Mandal was the Mallik of the Kamath. He is not an eyewitness to the occurrence. He has spoken about the enmity with the accused and that he could learn from others about the incident which took place at his Kamath. The two deceased and also the victim injured Munir, the informant PW 13, PW 6 the tractor driver Durga Pd. Mehta are labourers-of PW 16. PW 12 has been tendered. PW 17 is another Police Officer, who did part of the investigation and it was he who submitted charge-sheet against the accused appellants and others, who were, thus, put on trial. PW 11 is the doctor, who had conducted post-mortem examination over the dead-body of deceased Bishwanath Singh. He had found following ante-mortem injuries on the deceased.
1. Lacerated wound 11/2 X 1/3″ x bone over the upper part of the forehead on the left side.
2. Swelling 4” x 4” on both sides of chest.
3. Abrasion 1” x 1″ on doreum of left hand.
4. Abrasion 4” x 3″ on the outer side of the left fore-arm.
5. Lacerated wound 3″ x 2″ X bone deep on the left upper arm.
The doctor found left frontal bone fractured, he also found fracture on the left 6tb and 7th ribs and 6th right rib was also found fractured. Compound fracture of left humorous was found. Compound fracture of radius and ulna on right side was also found.
The doctor found abdominal cavity containing blood. The doctor has opined that the death occurred due to shock and haemorrhage caused by injuries on head, lever and spleen.
Thus, PW 13 is the lone witness to speak about the occurrence.
9. Synopsis of the case is as follows, as narrated by the prosecution. On the date and time of the occurrence he was on the Kamath of his Mallik sitting with deceased Bishwanath Singh on a Machan. Deceased Rafique and Munir and some other employees (who also figured as witnesses, but did not support the case of the prosecution and were declared hostile) were also sitting nearby the Nadcharan (space for feeding cattle). It was at about 3. p.m. that PW 13 Baldeo Yadav heard the sound of cutting of bamboos in the clump belonging to his Mallik. The bamboos clump is in the east of the Kamath. He and the deceased Bishwanath Singh went to that side. He saw one Fagu Tanti armed with a Kulhari, Laxmi (appellant No. 1) and Akal Tanti (appellant No. 4) armed with Lathi and Ramsevak Nonia (appellant No. 2) and Sukhdeo Mandal (appellant No. 3) armed with bows and arrows. They were engaged in cutting the bomboos. Baldeo Yadav intervened. But the accused Ramsevak and Sukdeo (appellant Nos. 2 and 3) remonstrated and said that even his Mallik, (meaning thereby PW 13 Kishun Pd. Mandal) would have to leave the village if he obstructed the bamboos. Altercation followed.
10. Further story as given out by the informant is that when there was some quarrel between him, deceased Bishwanath and the accused, a mob consisting of about 100 to 125 persons led by accused Bishundeo Mandal and Kadam Lall Yadv (appellant Nos. 5 and 11) carrying Lathis, Bhalla, bows and arrows came over and made an attack. Being frightened both Baldeo Yadav and deceased Bishwanath Singh ran towards the Kamath. The members of the mob chased them. Bishwanath Singh fell down near the heap of powal (straws) and accused Laxmi Tanti, Sukhdeo Tanti, and also Akal Tanti fell upon Bishwanath Singh and started assaulting with Lathis. Sk. Rafique and Munir and the other two employees of PW 16 were there. They rushed near the powal to save Bishwanath Singh. The absconding accused Puran Mandal shot his arrows which hit Rafique in his stomach. Further allegation is that Munir was also assaulted by the members of the mob. Then the story is that accused Bishundeo (appellant No. 5) and Kadam Lal (appellant No. 11) asked his men to pick up all the three injured i.e. Bishwanath, Rafique and Munir and to take them to the hut of Kosia Musahar (Kosia Musahar was also on trial as an accused, but was acquitted by the trial Judge). The Musahartoli is situated to the north west of the Kamath. It is the case of the prosecution that all the three injured were lifted and taken towards the hut of Kosia Musahar in the Musahartoli.
11. The informant Baldeo Yadav has further narrated that PW 6 Durga Pd. Mehta had brought a tractor for ploughing a field belonging to PW 16 which was in the south of the Kamath. It has been said that with the tractor he was earlier ploughing a field in the eastern Bazar. Looking at the mob, the driver suddenly left the tractor and ran away. The engine of the tractor was in operation and the tractor moved on unmanned and struck against a Sisum tree. Being hit, it stopped there. It is also the case of the prosecution as narrated by the informant PW 13 that some members of the mob tied the truck with a rope and dragged it also towards the north-west direction in the Musahartoli. It is said that a few witnesses living in the neighbourhood named Laxman Pd. Yadav (PW 5) and Raghunath Yadav (not examined) had seen the occurrence. There is further evidence that one Baldeo son of Dorik Yadav came running to the Kamath and said to PW 13, that the accused Bishundeo Mandal (appellant No. 5) had set fire to the hut of Kosia Musahar and also that a few men of the mob took away the dead-body of Sk. Rafique and that the condition of Bishwanath Singh and Munir was precarious. By that time evening had set in. The accused persons from Musahartoli ran away in some different direction. The informant in his statement in the F.I.R. besides the persons named above, had identified 15 others among the mob.
12. This informant has further said that when the mob retreated, he went to the bamboo clump and found three cut bamboos lying there. He could remove those three bamboos and brought them near the Kamath.
13. It was in the night at about 11 p.m. when the S.I. of Police arrived. He gave statement to the police which was recorded as Fardbeyan and finally the formal F.I.R. was drawn up and the case registered against the accused persons. It is on the statement of this very witness that the trial Court held the appellants guilty of the charge as aforesaid.
14. The accused in their defence have taken a short and simple plea that it was PW 16 Kishun Pd. Mandal who collected his men and made an attack to uproot the Musahars and others from that area. It has been said that these Musahars had settled on the land allegedly belonging to PW 16 Kishun Pd. Mandal. In other words, the counter F.I.R., lodged by accused Kesia Musahar (named as Kusia Risideo) is the sheet-anchor of the defence-plea. It has been stated therein that some one in the fight between the parties had killed Bishwanath Singh and caused injuries to Munir. The counter F.I.R. does not speak a word about assault on Rafique or whether he is dead or alive.
15. The case hinges on the solitary evidence of PW 13 the only eye-witness. Others have gone hostile. The trial Court has accepted his evidence. It is true that conviction can be based on the evidence of even one witness, if he succeeds on the touch-stone of credibility and satisfies the conscience of the court. If the witness fails to prove his credibility, the case must be rejected.
16. Now, coming to the evidence of PW 13, it cannot be denied that he was in the employment of PW 16. He is deeply interested in the case for the prosecution and his evidence therefore, needs deeper scrutiny, as interested witnesses are produced to concoct false case. Now, when I analyse the evidence of PW 13 taking all the situation into consideration I get suspicion about him. I feel hesitant to hold that he was present at the Kamath or if really he saw any such incident of assault and killing which took place at the Kamath or it all happened in a different manner, and the prosecution did not come out with clean version of the occurrence. The reason of my hesitancy are manifold, but to quote one I may state herein now that according to this witness the mob was so desperate that they took away the injured and finally removed Sk. Rafique from the scene to some unknown destination. Had he been present the mob would not have spared this man, but his skin was not even touched and he continued to remain a mute execrator at the Kamath witnessing the outrageous attack by 100 to 125 persons.
17. The story is that PW 13 along with a few others were on Machan in the Kamath when some of the accused, as discussed above, came and started cutting the bamboos. There was a protest over the cutting by this witness and by Bishwanath Singh, the deceased. When the altercation developed a mob consisting of 100 to 125 persons joined the accused, who were cutting the bamboos and they all began chasing this witness PW 13, the deceased Bishwanath Singh and others. The story of cutting of the bamboos has been introduced as the immediate cause and motive or as a genesis for the occurrence. This introductory phase of the incident does not appear to be correct.
18. PW 20 has said that on inspection of the Banswari (Bamboo clump) he found signs of fresh cutting of atleast 15 bamboos. He further found that three of them removed from there and kept on the south of the Pagdandi leading to the Banswari from the Kamath. The distance between Banswari and the Kamath is about 118 yards. The area of the Banswari has been described as 84 yards x 62s and there were about 40 bamboos standing in all. Even the Kamath land was about 44 yards x 35 yards and he noticed some heaps of Powal on the’ south eastern corner of the clump. PW 20 says that from near the Banswari, he noticed the marks of dragging of the bamboos to the place where the three bamboos were kept. The prosecution has suggested that a few bamboos were taken away by the accused. No one has been named as carrier of the bamboos. PW 20 the Police Officer does not say that he found any other dragging marks indicating removal of other bamboos from the Banswari to any other place.
19. There is another feature of the case. The informant PW 13 and Bishwanath Singh went to the Banswari as soon as they heard the sound of cutting of the bamboos. They were on the Machan in the Kamath. They objected to the cutting by accused Fagu Tanti, accused Laxmi (appellant No. 1) and accused Akal Tanti (appellant No. 4). He does not say that others beyond these three accused were also engaged in cutting the bamboos. No sooner he objected to the cutting, a mob came and began assaulting. This witness does not say that cutting of the bamboos continued and it cannot be expected that 14 bamboos would be cut and removed by these three accused alone so shortly when the story is that they joined the mob in assaulting Bishwanath Singh and others and there was no further cutting and removal of the bamboos. Doubt further deepens about the cutting of the bamboos on the ground that only one Fagu has been named as being armed with a Kulhari an instrument used for cutting. But the other two Laxmi and Akal Tanti were armed with Lathis, whereas some appellants Ramsevak Monia (appellant No. 2) and Sukhdeo Mandal (appellant No. 3) were armed with bows and arrows. No one has said that any other accused had carried Kulhari and got busy in cutting the bamboos or any such weapon/instrument for cutting. In these circumstances, reasonable doubt creeps into my mind if there was any such cutting of the fourteen bamboos or more in that situation, as indicated by this witness PW 13. This objective finding of the Sub-Inspector i.e. PW 20 that he found signs of fresh cutting of 14 bamboos, only indicates that this witness PW 13 is wrongly introducing this fact, to suggest it as an immediate motive or cause for the occurrence. I therefore, feel that the very genesis of the occurrence, as narrated does not appear to be correct.
20. In the aforesaid context when I examined the conduct of PW 13, it becomes all the more suspicious. A big mob came, committed Marpit, removed the injured to Musahartoli and ran away. It all happened about 3 p.m. PW 13 was quite hale and hearty. What prevented him or any other employees going to the plice and why they all waited at the Kamath in expectation that police would corns. No one on the prosecution side, even the Mallik of the Kamath PW 16 made attempts to lodge information at the Police Station. It was one Yuvraj Singh, M.L.A. who sent some message to the police. The police arrived at 11 in the night. The learned Counsel for the appellant has commented upon the conduct of PW 20 also. It has been argued that on getting information of arson and of apprehension of breach of peace in Musahartoli, it was expected that the police would first visit Musahartoli to assess the situation. But for reasons best known to PW 20, he came straight to the Kamath and recorded the Fardbeyan of the informant PW 13 and it was in his company that he went to Musahartoli. If there was any arson and loot in the Musahartoli by the members of the prosecution party, as pleaded in the defence, there was sufficient opportunity for PW 13 to plant a story to divert the track of the police in the investigation of the case.
21. One thing more appears to be very much peculiar. Munir another employee of PW 16 was injured and the PW 20 found him lying near the Musahartoli. He has not been examined by the prosecution in court. PW 20 does not say that he had any grievous injury making him incapable of movement. Rather he had minor injury on his body. Why should Munir remain lying at Musahartoli near the house of Kusoha Musahar. After the retreat of the accused, he could have very well run away and come to Kamath. But probably he is made to sit till the arrival of the police to support the informant’s statement that injured were dragged to Musahartoli and to falsify the defence plea that prosecution party had made an attack on the Musabars. In reply to this aspect of the argument the learned Counsel for the State has argued that the police found the counter case lodged by Kusoha Musahar as false and therefore, no reliance can be placed on the defence plea. The argument is misconceived. The submission of the final form by the police is not a decisive factor. The truth or falsity of a case is not to be judged on the police report alone. Investigation is done by the police to collect evidence to catch up the criminals. Allegations in the case, therefore, must be proved by cogent evidence and at the same time, if the counter version is reported to be false by the police, that itself does not preclude, the accused in pleading the same in defence at the trial stage in court and an obligation is cast on the court to find out how far the defence suggestion appears to be probable and if prosecution succeeded in proving its case.
22. In the F.I.R. one Baldeo, son of Dorik has been introduced, who stated to PW 13 Baldeo Yadav that the Musahars had set fire to his house and the deceased Rafique has been removed to some unknown destination. I could not understand why this Baldeo again has been kept away from the court. Prosecution did not choose to examine him. Another Baldeo PW 7 has been examined, who has stated that he did not see any occurrence as alleged by the PW 13. This part of the incident, as narrated by the PW 13, apart from being inadmissible does not get support from any other witness. Fact remains that the dead-body of Bishwanath Singh was lying near the house of Kusaha Musahar. It was not removed. The tractor was also found there. It has been said that the tractor was dragged with the help of a rope upto the house of Kusaha Kusahar. The hut was also found burnt. PW 13 does not name the accused, who dragged the truck. It is no body’s case that the accused had come prepared with long rope for tying the tractor and dragging it to the Musahartoli. Tractor was brought at the scene by PW 5 Durga Pd. Mehta all of a sudden for the purpose of spading the field. This witness PW 6 does not support the story of Marpit in the manner, as alleged by PW 13. He says that he had come with a tractor, he saw the mob. He was assaulted. He left the tractor and fled away. He does not speak about the identification of any one of the accused not even about any assault and Marpit of Bishwanath Singh or Sk. Rafique or others, nor does he say that he found PW 13 present there in the Kamath. The tractor has been stolen away. According to prosecution it was simply removed to some distance nearing Musahartoli. Why should it be removed? If, Durga Prasad Mehta PW 6 the driver of the tractor was at all caught and assaulted, he could have been threatened to take the tractor up to Musahartoli if the Musahars were out to create some false evidence of any incident at their place. But it was not done and a story has been introduced that the tractor was also dragged with a rope. There is further statement of PW 13 that Baldeo son of Dorik told him that the accused took away Sk. Rafique some where else. No one from the family of Sk. Rafique has come to state that he is either dead or. alive or atleast not heard since after the occurrence. Prosecution has taken from the Police Officer PW 70 that a week after the incident in the course of investigation on 15-3-1971, he found a human skull with two teeth attached thereto. PW 20 has attempted to say that it was almost fresh in look. Prosecution has made an attempt to argue that this finding of the skull indicates that it was of Sk. Rafique killed at the spot. It is simply a far fetched imagination. No one of the family of Sk. Rafique has been examined to identify the skull in any form and as I have said no one of the family of Sk. Rafique has said that he is dead or has become traceless. In other words, I am inclined to state that I could not get positive evidence to hold that Rafique was killed in the incident. The skull was beyond recognition which does not improve the case of the prosecution I have already said that his name is missing from the counter F.I.R. lodged by the accused as discussed above.
23. The bone of contention was the portion of the land on which the Musahars had settled down and constructed their hut belonging to PW 16. There were litigations in the past between PW 16 Kishun Prasad Mandal and the accused that they had fought cases even under Section 48-E of the B.T. Act. These circumstances give sufficient inkling that the occurrence took place in a manner altogether different and the defence version cannot wholly be brushed aside and in such a situation, it would be quite unsafe to rely on the uncorroborated testimony of PW 13. His statements appear to be suspicious all through and it would be unsafe to uphold the conviction on such a witness who is not worthy of credence.
24. In the result, the appeal succeeds. The orders of conviction and sentence are set aside.