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`Reportable'
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 716-717 OF 2008
Adalat Pandit & Anr. ... Appellants
Versus
State of Bihar ... Respondent
With
CRIMINAL APPEAL NOS. 119-122 of 2009
Thakur Singh & Ors. ... Appellants
Versus
State of Bihar ... Respondent
With
CRIMINAL APPEAL NO. 833 of 2008
Gorakh Nath Singh ...Appellant
Versus
State of Bihar ...Respondent
With
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CRIMINAL APPEAL NO. 1907 of 2009
Shri Thakur Ojha ...Appellant
Versus
The State of Bihar ...Respondent
JUDGMENT
V.S. SIRPURKAR, J.
1. This judgment will dispose of Criminal Appeal Nos. 716-717 of 2008,
Criminal Appeal Nos. 119-122 of 2009, Criminal Appeal No. 833 of 2008
and Criminal Appeal No. 1907 of 2009. All these appeals are against the
common judgment passed by the High Court, whereby the appeals filed by
the appellants herein came to be dismissed. Initially, as many as 10
accused persons came to be tried for the offences punishable under
Sections 147, 148, 302, 302 read with Section 34 as also read with
Sections 109 and 149 of the Indian Penal Code (“IPC” for short
hereinafter) and Section 27 of the Arms Act. The prosecution alleged that
on the fateful day, i.e. 5.7.1973, at about 7 a.m., the accused persons
formed an unlawful assembly and committed the murder of one Shambhu
Nath Singh and his brother Prabhu Nath Singh, both deceased persons, in
pursuance of their common object. The First Information Report (FIR) was
lodged by one Baijnath Singh and it was alleged therein that one Thakur
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Ojha (A-4), Patiram Ojha (now dead), Akhilesh Ojha (A-5), Jitendra Singh
(A-6), Raj Nath Singh (A-7), Gorakh Nath Singh (A-3), Keshav Singh (A-9),
Bachcha Singh (A-8), Adalat Pandit (A-10), Thakur Singh (A-1) and Ram
Pravesh Singh (A-2) went to his Mango orchard standing on Plot No. 4905,
situated in Mauza – Mohammadpur, P.S. Gorkha, Distt. Saran, which was
situated at a distance of about three furlong from village for forcibly
plucking mango fruits.
2. It was further stated by Baijnath Singh that he alongwith his two
sons namely Shambhu Nath Singh and Prabhu Nath Singh went to his
orchard and protested against the act of the accused persons in plucking
the mangoes. It was stated that Pati Ram Ojha (the dead accused)
ordered Thakur Ojha (A-4) to attack on those three persons, on which
Thakur Ojha (A-4) fired two shots aiming at Shambhu Nath Singh, who
was injured due to fire and tried to run away towards his house, but fell on
the ground at some distance in the nearby orchard of one Arjun Singh. It
was then contended that Gorakh Nath Singh (A-3) went after him and gave
spear blow on the back of Shambhu Nath Singh while Shambhu Nath
Singh was still lying on the ground. In the meantime, Thakur Ojha (A-4)
again fired two shots on the elder son of Baijnath namely Prabhu Nath
Singh, who also fell on the ground in the orchard of Arjun Singh. After he
fell down, Raj Nath Singh (A-7), Bachcha Singh (A-8) and Adalat Pandit
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(A-10) rushed to Prabhu Nath Singh and indiscriminately assaulted him by
means of spear and his body was dragged by Raj Nath Singh (A-7) and
Ram Pravesh Singh (A-2). It was further stated in the FIR that on seeing
this, Baijnath Singh asked himself to be killed; however, Patiram Ojha
(dead accused) said that it was useless to cause the death of an old
person like him and that he should better be left to flee. It was suggested
that one Laxman Singh (PW-8), Arjun Singh, Bhrigunath Singh (PW-7),
Ram Prasad Singh (PW-4) and others were present on the spot and had
seen the entire incident. There was a fierce enmity between the two sides
though they were related to each other, on account of ownership and
possession of the said orchard and a civil dispute was pending in the Court
of 3rd Additional District Judge, Saran.
3. The FIR was recorded by A.S.I. Abdul Malik of Garkha Police Station
and the investigation ensued. The Investigating Officer arrested the dead
accused Patiram Ojha, Thakur Ojha (A-4), Jitendra Singh (A-6), Raj Nath
Singh (A-7), Keshav Singh (A-9), Bachcha Singh (A-8), Thakur Singh (A-1)
and Ram Pravesh Singh (A-2) from the house of Raj Nath Singh (A-7).
The Investigating Officer effected the search of the house and recovered a
double barrel gun kept on the cot under the bed. Two spears were also
recovered during the investigation, the blades of which were stained with
blood. The seizures were effected and arrests were made. In the
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meantime, one Shantruhan Singh (PW-15), the Officer-in-charge, Garkha
Police Station reached the spot and took charge of the investigation from
A.S.I. Abdul Malik. He carried out the further investigation; effected
Seizure Memo and Spot Panchnama etc. and recorded the statement of
the witnesses. On 21.9.1974, he made over the charge of investigation to
one S.D. Ghos, who made over the investigation to one Madhav Kant and
it was Madhav Kant who submitted the chargesheet against, in all, 11
accused persons (including the dead accused Patiram Ojha). The
accused persons were committed to Sessions Court. The Sessions Court
framed the charges. The accused having abjured the guilt, the trial
proceeded and after the trial was over, the accused persons came to be
convicted for the various offences i.e. offences punishable under Sections
147, 148, 302, 302 read with Section 34 as also read with Sections 109
and 149 IPC and Section 27 of the Arms Act. Patiram Ojha (the dead
accused) was not convicted as he died during the trial itself. Out of all
these accused persons, Thakur Singh (A-1) and Ram Pravesh Singh (A-2)
were held guilty by the Sessions Court for the offence punishable under
Section 147 while the remaining 8 accused persons were held guilty under
Section 148 IPC. Thakur Ojha (A-4) and Gorakh Nath Singh (A-3) were
convicted for the substantive offence under Section 302 IPC for committing
the murder of Shambhu Nath Singh while Thakur Ojha (A-4), Raj Nath
Singh (A-7), Bachcha Singh (A-8) and Adalat Pandit (A-10) were convicted
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for the offence punishable under Section 302 IPC for causing the death of
Prabhu Nath Singh. The remaining 5 accused persons namely Akhilesh
Ojha (A-5), Jitendra Singh (A-6), Keshav Singh (A-9), Ram Pravesh Singh
(A-2) and Thakur Singh (A-1) were booked under Section 302 read with
Section 149 IPC. Separate appeals were filed by these accused persons
before the High Court. While the appeals of the other accused persons
were dismissed, the appeal filed on behalf of Bachcha Singh (A-8) was
allowed, giving him the benefit of the provisions of Juvenile Justice Act.
The other appeals were dismissed and that is how 9 accused persons
have come up before us in the present appeals.
4. It is significant to note that Gorakh Nath Singh (A-3) had raised a
plea of alibi and examined as many as 11 defence witnesses in support of
that plea. That plea was of course rejected by the Trial Court. There were
some defence witnesses examined on behalf of Adalat Pandit (A-10) also,
raising the plea of alibi even in his case. But even that contention was
rejected by the Trial Court. The other accused persons had merely made
a plea of denial and their defence was also rejected. The High Court has
taken stock of evidence of all the witnesses in great details. In fact, the
evidence of practically each witness of the prosecution as well as the
defence was examined.
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5. Shri Nagendra Rai, Learned Senior Counsel has appeared for the
appellants Thakur Singh (A-1), Ram Pravesh Singh (A-2), Akhilesh Ojha
(A-5), Jitendra Singh (A-6) and Keshav Singh (A-9) in Criminal Appeal
Nos. 119-122 of 2009 and addressed on various aspects of the matter.
Similarly, Shri S.B. Sanyal, Learned Senior Counsel has appeared for the
appellant Gorakh Nath Singh (A-3) in Criminal Appeal No. 833 of 2008 and
addressed on various aspects, while Shri M.P. Jha, Shri Ram Ekbal Roy,
Shri Harshvardhan Jha and Shri Bhattacharjee, Learned Counsel (acted
as Amicus Curiae) addressed on behalf of other appellants/accused
persons, namely Thakur Ojha (A-4), Raj Nath Singh (A-7) and Adalat
Pandit (A-10). Ms. Kumud Lata Das and Shri Gopal Singh, Learned
Counsel have appeared for the State in all the cases and supported the
conviction of the accused persons. We will, therefore, consider the matter
as per the appeals.
6. Shri Nagendra Rai, learned Senior Counsel, who represented the
appellants Thakur Singh (A-1), Ram Pravesh Singh (A-2), Akhilesh Ojha
(A-5), Jitendra Singh (A-6) and Keshav Singh (A-9) in Criminal Appeal
Nos. 119-122 of 2009, addressed firstly on behalf of Thakur Singh (A-1),
Akhilesh Ojha (A-5) and Keshav Singh (A-9). The learned Senior Counsel
was at pains to point out that no witness has attributed any overt act to any
of these accused persons and that they were mere mute bystanders. Shri
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Rai invited our attention to the evidence of the eye-witnesses, they being
Sukeshwar Singh (PW-2), Ram Prasad Singh (PW-4), Badrinath Singh
(PW-5), Bhrigunath Singh (PW-7) and Laxman Singh (PW-8). He was at
pains to point out that the High Court has specifically referred to each of
these witnesses individually considering their evidence who were almost
unanimous that they saw eleven accused persons when they came to the
orchard of the informant (Baijnath Singh). The witnesses stated that
Baijnath Singh alongwith his two sons Shambhu Nath Singh and Prabhu
Nath Singh had come a little later in the said orchard and the accused
persons who wanted to pluck the mangoes, were stopped from doing so by
Baijnath and in that the exchange of hot words took place. The witnesses
claimed that thereafter, on the orders of Patiram Ojha (the dead accused),
Thakur Ojha (A-4) fired two shots with his gun hitting Shambunath Singh
who ran towards the West and fell down in the orchard of Arjun Singh.
Thereafter, he was assaulted by Gorakh Nath Singh (A-3) on the back with
a spear. When Prabhu Nath Singh ran towards Shambhu Nath Singh,
Thakur Ojha (A-4) again fired two shots on Prabhu Nath Singh and he also
fell down in the orchard of Arjun Singh, whereafter, he was assaulted by
Raj Nath Singh (A-7), Bachcha Singh (A-8) and Adalat Pandit (A-10). It is
to be seen that beyond this version, nothing more has come in the
evidence. It is further to be seen that the witnesses Ram Prasad Singh
(PW-4), Badrinath Singh (PW-5), Bhrigunath Singh (PW-7) and Laxman
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Singh (PW-8) had seen the occurrence. The witnesses then saw the
accused persons running away from the spot towards the house of Raj
Nath Singh (A-7). Almost same story was repeated by Ram Prasad Singh
(PW-4) who claimed that he was present, as he had to cut bamboos from
the place which was near the orchard of the informant Baijnath Singh. He
also admitted about the litigation between the parties. There was omission
about Thakur Ojha (A-4) having ordered for dragging the dead body to the
orchard of the informant.
7. Badrinath Singh (PW-5) also claimed that he had accompanied Ram
Prasad Singh (PW-4) for cutting bamboos and he has also given almost
the same version. Bhrigunath Singh (PW-7) and Laxman Singh (PW-8)
also have repeated the same story but without attributing any overt act to
the aforementioned three accused persons, namely, Thakur Singh (A-1),
Akhilesh Ojha (A-5) and Keshav Singh (A-9). After appreciating the
evidence of these witnesses, the High Court recorded a finding in Para 20
of its judgment that the genesis of the incident lied only in the fact that
when the accused persons insisted on plucking the mangoes, the same
was objected to by the complainant and his sons. The High Court,
undoubtedly, is correct in recording the finding that it is on that point of
time when the exchange of words took place between the parties that the
seeds of the further incident were sown. Ultimately, the High Court
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recorded the finding that the identity of the accused persons was fully
established by the prosecution witnesses and that all the appellants had
gone to the place of occurrence alongwith their respective arms as
members of an unlawful assembly with a common object of asserting right
of harvesting the mango crops in the orchard of the informant and were
prepared for meeting any resistance with the help of arms carried by the
accused persons and that was the common object behind the firing on the
two deceased, who met their instantaneous death. It was on this basis
that the High Court proceeded to convict the accused persons against
whom there was specific evidence.
8. In our opinion, at least insofar as the aforementioned three accused
persons, namely Thakur Singh (A-1), Akhilesh Ojha (A-5) and Keshav
Singh (A-9) are concerned, it cannot be said that they had the intentions to
commit the murder and they cannot be said to be the members of the
unlawful assembly on account of their mere presence at the place of
occurrence and cannot be convicted of the offence under Section 302 read
with Section 149 IPC. We have closely seen the evidence of the
witnesses. These three accused persons were undoubtedly referred to
and all that has been stated by Sukeshwar Singh (PW-2) is that Akhilesh
Ojha (A-5) was carrying a lathi. The witness has not referred to even
Thakur Singh (A-1) and Keshav Singh (A-9) having any arms. As regards
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Ram Prasad Singh (PW-4), he has attributed Thakur Singh (A-1) and
Akhilesh Ojha (A-5) carrying a lathi while Keshav Singh (A-9) carrying a
bhala (spear). However, he has not referred to any overt act on part of
these accused persons or use of the same by them. Badrinath Singh (PW-
5) has mentioned about Thakur Singh (A-1) and Ram Pravesh Singh (A-2)
having lathi. He has made a general statement that all other accused
persons were holding a bhala. However, this witness also has not referred
to any overt act on the part of the above accused persons, namely Thakur
Singh (A-1), Akhilesh Ojha (A-5) and Keshav Singh (A-9). As regards
Ram Lakhan Singh (PW-6), he has turned hostile. Bhrigunath Singh (PW-
7) has also stated that these three accused persons were carrying lathi.
The story is no different in respect of Laxman Singh (PW-8). His evidence
is extremely general. Some of the witnesses have also not referred to the
exhortation given by Patiram Ojha (the dead accused). At least insofar as
the present accused persons are concerned, the role played by these
three accused persons, namely Thakur Singh (A-1), Akhilesh Ojha (A-5)
and Keshav Singh (A-9) appears to be that of the bystanders. There was
a dispute between the parties on account of the possession of the field.
Even the Court litigation was on between the parties. Therefore, merely
because the accused persons went to the field carrying lathis and arms, at
least till such time when the exchange of words started and the shot was
fired, it cannot be said that the whole assembly had become unlawful. The
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assembly would become unlawful when Patiram Ojha (the dead accused)
allegedly gave the firing orders to Thakur Ojha (A-4) and who in pursuance
of that, fired on Shambhu Nath Singh. Undoubtedly, these three accused
persons [Thakur Singh (A-1), Akhilesh Ojha (A-5) and Keshav Singh (A-9)]
acted as mere mute bystanders, as there is no evidence also that they
took part in the exchange of words. Under such circumstances, it would
be difficult to attribute a common object to these accused persons on
account of their presence even if they were armed with lathis. There is no
evidence about Akhilesh Ojha (A-5) carrying a spear. Under such
circumstances, benefit of doubt must go to these three accused persons.
They would be entitled to acquittal as the prosecution has failed to prove
that they had a common intention to commit murder.
9. Insofar as the rest of the accused persons are concerned, Shri
Nagendra Rai, learned Senior Counsel insisted that admittedly Ram
Pravesh Singh (A-2) and Jitendra Singh (A-6) had only dragged the body
of Prabhu Nath Singh. That would certainly amount to the active
participation of these two accused persons. Their continuance even after
the firing in doing overt act of dragging the body from the field would
certainly make them the part of the unlawful assembly, which had the
common object of eliminating Shambhu Nath Singh and Prabhu Nath
Singh. The part played by these two accused persons of dragging the
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body of Prabhu Nath Singh is clearly referred to by the witnesses. We,
therefore, reject the contention raised by Shri Rai, learned Senior Counsel
that these two accused persons would also be entitled to be acquitted for
the same reasons as we have acquitted Thakur Singh (A-1), Akhilesh Ojha
(A-5) and Keshav Singh (A-9) for. The appeals of these two accused
persons would be liable to be dismissed as we are satisfied on the point
that they were the members of the unlawful assembly.
10. Similar is the case as regards Thakur Ojha (A-4) who had actually
fired the guns, Raj Nath Singh (A-7) and Adalat Pandit (A-10). The
evidence is against them as accepted by both the Courts below. They
were certainly the members of the unlawful assembly and specific overt
acts have been attributed to them by almost all the witnesses. As regards
Thakur Ojha (A-4), all the witnesses are unanimous that he was the one
who had fired. His appeal will, therefore, have to be dismissed.
11. Insofar as Raj Nath Singh (A-7) and Adalat Pandit (A-10) are
concerned, they took active part in assaulting Prabhu Nath Singh while the
body of Prabhu Nath Singh was dragged by Ram Pravesh Singh (A-2) and
Jitendra Singh (A-6). The witnesses have specifically attributed the overt
acts regarding assaulting of Prabhu Nath Singh to these accused persons.
We are satisfied with the evidence led on behalf of the prosecution in
respect of these accused persons, which has been accepted by both the
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Courts below and we have no reason to disbelieve the witnesses who
have attributed specific overt acts as regards the assault on Prabhu Nath
Singh to these accused persons. Insofar as Adalat Pandit (A-10) is
concerned, the plea was that of alibi, which plea has been rejected by the
Trial Court and the High Court. Very heavy reliance was placed on the
evidence of Rajiv Ranjan Shrivastava (DW-20), Praduman Dubey (DW-
21), A.B. Prasad (DW-22), Col. Pritam Singh (DW-25) and Col. Amrik
Singh (DW-26) for his alibi. Rajiv Ranjan Shrivastava (DW-20) was a
handwriting expert for proving the signatures of Adalat Pandit (A-10) over
the postal receipt Exhibit-6. His evidence has rightly been disbelieved on
the ground that he had prepared his report on the previous evening after
taking fees. Praduman Dubey (DW-21) was a Head Clerk in the Sainik
Office, Danapur and he proved the leave register of Adalat Pandit (A-10)
as Exhibit O. A.B. Prasad (DW-22) was also an employee in the Pay &
Accounts Office, Sainik Office, Danapur. He proved the pay book of
Adalat Pandit (A-10) as Exhibit P and his acquittance roll as Exhibit Q. It
was suggested that Adalat Pandit (A-10) was on leave from 11.6.1973 till
2.7.1973 and that he received the payment on 26.5.1973 as also on
3.7.1973. The High Court has disbelieved this evidence on the ground that
the document did not show the date 3.7.1973. Col. Pritam Singh (DW-25)
was a commanding officer of 10, Bihar Regiment at the relevant time and
he had admitted that he had no personal knowledge regarding actual
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presence of Adalat Pandit (A-10) on the said date. Similarly, Col. Amrik
Singh (DW-26) had claimed that by an order dated 26.1.1973, the leave of
Adalat Pandit (A-10) was extended for 14 days from 6.4.1973 to 19.4.1973
because Adalat Pandit (A-10) did not resume his duty on 6.4.1973. The
High Court has rejected his evidence and for good reasons. The assertion
of Col. Amrik Singh (DW-26) that Adalat Pandit (A-10) was present in the
unit on 3.7.1973 was only on the basis of Exhibits P and Q being the pay
book and acquittance roll of Adalat Pandit (A-10) respectively. Exhibits P
and Q have rightly been disbelieved by the High Court giving good
reasons. The High Court has rightly held that Exhibits P and Q were
casually maintained by the Havildar and a poor attempt had been made to
show that Adalat Pandit (A-10) had reported for duty on 3.7.1973. We are
convinced that the plea of alibi by Adalat Pandit (A-10) cannot be accepted
and has to be disbelieved as has been done by the Trial Court and the
appellate Court. We would accept the evidence of the prosecution
witnesses, more particularly the eye-witnesses, who had specifically
attributed an active role to this accused person. The appeals of Raj Nath
Singh (A-7) and Adalat Pandit (A-10) will, therefore, have to be dismissed
holding that they were members of the unlawful assembly. We, therefore,
confirm the judgments of the Trial Court and the appellate Court convicting
Raj Nath Singh (A-7) and Adalat Pandit (A-10) with the aid of Section 149
IPC.
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12. That leaves us with the case of Gorakh Nath Singh (A-3). It must be
appreciated that Gorakh Nath Singh (A-3) has been mentioned practically
by all the witnesses. All the eye-witnesses have also referred to the
specific overt act of this accused of following Shambhu and hitting him with
spear on his back. Sukeshwar Singh (PW-2) is very specific in his
evidence insofar as the said act of the accused was concerned. Some
cross-examination was directed to suggest that Gorakh Nath Singh (A-3)
would have no reason or motive to take part in the assault. However, the
main claim in the evidence of this witness regarding the overt act remained
unshaken. Similar is the story of Ram Prasad Singh (PW-4). The cross-
examination of Ram Prasad Singh (PW-4) is also of no consequence
insofar as the main incident is concerned. Badrinath Singh (PW-5) also
repeated the same story without any substantial challenge to this version
in the cross-examination. A typical suggestion was given to all the
witnesses as if Gorakh Nath Singh had issued a warrant for lagan (tax) on
these witnesses. Bhrigunath Singh (PW-7) also repeated the same story
and there is very little or no cross-examination on the main incident. In the
cross-examination of this witness itself, the same stereotyped suggestion
was given that Gorakh Nath had issued a lagaan against the father of this
witness, thereby suggesting an enmity. Laxman Singh (PW-8) is the only
exception, who though referred to the presence of this accused duly
armed, has not referred to the overt act of this accused of piercing
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Shambhu with a spear. We will not attach much importance to the
evidence of this witness in view of the evidence of the other eye-witnesses.
It is again to be seen that the evidence of the eye-witnesses in respect of
the spear injuries on Shambhu Nath Singh and Prabhu Nath Singh is
further corroborated by the medical evidence inasmuch as both Shambhu
Nath Singh and Prabhu Nath Singh had suffered penetrating wounds and
incised wounds in addition to the wounds caused by pellets. The Post
Mortem Report was prepared by Dr. B.M. Srivastava (dead) as proved by
Dr. J.C. Brahmo, who has proved all the injuries which are to be found in
the Post Mortem Report (Exhibits 5 and 5/1). Therefore, there is very little
scope for the argument that Gorakh Nath Singh (A-3) was not a part of the
unlawful assembly and had not caused the wound to Shambhu Nath Singh
with spear after he was fired at. The argument of Shri S.B. Sanyal,
Learned Senior Counsel, appearing on behalf of the appellant/accused
Gorakh Nath Singh (A-3) that this accused was not concerned and has
been falsely implicated, cannot, therefore, be accepted. Finding this, the
learned Senior Counsel heavily relied on the evidence of defence
witnesses, who were examined in support of the plea of alibi of this
accused as also the evidence of Sultan Ahmad (PW-14).
13. Sultan Ahmad (PW-14) was a Block Development Officer (BDO) of
the said area. He deposed that Gorakh Nath Singh was a Gram Sewak in
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his block and was working in Devariya Panchpariya village Panchayat.
Regarding the fateful day, the witness deposed that he went on that day to
Devariya to collect levy of wheat crops and reached Devariya at about 1 o’
clock in the afternoon. He stated that Gorakh Nath Singh reached after
half an hour later when he reached there. He also suggested that there
was a Special Planning for levying wheat in those days. The witness
suggested that one Umashankar was Block Agriculture Officer and he
alongwith Gorakh Nath Singh (A-3) and other witnesses like one Kuldeep
Singh, Karamchari (DW-8), Ram Sewak, Jan Sewak and Mukhiya and
Sarpanch of the Panchyat (DW-7) were levying wheat at that time. Shri
Sanyal, learned Senior Counsel, while trying to taking advantage of the
evidence of this witness, also asserted that his claim that Gorakh Nath
Singh (A-3) reached there at about 1 o’ clock, was not correct. The
learned Senior Counsel relied on an omission in that behalf. The learned
Senior Counsel also heavily relied on the evidence of Kapil Narayan Sinha
(DW-1), a Deputy Superintendent of Police, who proved the carbon copy of
a report which he had prepared in pursuance of the orders passed by the
Superintendent of Police. This was on account of an application having
been made by Gorakh Nath Singh (A-3), claiming that he was in fact not
present at the spot and was busy in the activity of wheat levy in the other
village. The witness also proved the application of Gorakh Nath Singh at
Exhibit C. It is to be seen that he had to admit that even after preparing
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the said so-called report, the Superintendent of Police had ordered to file
the chargesheet against Gorakh Nath Singh (A-3).
14. The other witness relied on by the learned Senior Counsel was
Kailash Singh (DW-2), who deposed that the levy was being collected from
6 o’ clock in the morning at the door of Mukhiya Ram Barai Singh and the
payment of the levied wheat was being paid after taking its weight there.
According to him, other witness namely Ram Sewak Roy was weighing the
wheat. According to him, the weight of his wheat was also taken and the
receipt for that was written and signed by Gorakh Nath Singh (A-3) and the
payment was also made to him after obtaining his signatures on the
receipt. He produced Exhibit D being a receipt written and signed by
Gorakh Nath Singh (A-3) on that day. In his cross-examination, however,
he was unable to show any notice having been given by BDO to him and
had to admit that BDO had never asked for levy to him. Similar was the
evidence of Munshilal Roy (DW-3), who spoke about his reaching the spot
at about 6 o’ clock in the morning to the house of Ram Barai, Mukhiya with
wheat of levy. He also spoke that Ram Sewak Roy was weighing the
wheat and Gorakh Nath Singh (A-3) was writing on the receipts (Exhibit D-
1) for that. He could not produce the notice which was allegedly given to
him by the Department for levy. He did not even know how much levy
wheat was required to be given by him. The witness also could not show
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anything to suggest that the levy was being collected from a particular
house. He frankly admitted that he never met BDO.
15. To the same effect was the evidence of Ram Pravesh Singh (DW-4),
who generally spoke about the levy activity and asserted that it was
Gorakh Nath Singh (A-3) who was writing the receipts and was distributing
the amounts on that day and that the levy work was started at 6 o’ clock in
the morning and Gorakh Nath Singh was with the Group of levy since that
time. Similar was the evidence of Fulkan Manjhi (DW-5), who was a
Chowkidar at Madhupur, P.S. Gorkha, District Saran. He also spoke about
the said activity of levy and the fact that Gorakh Nath Singh (A-3) was
present writing the receipt and paying money to the farmers. Ram Barai
Singh (DW-7) was Mukhiya of Devariya, Panchpariya Gram Pranchayat,
who asserted that it was at his door that the special levy collection was
going on, which exercise started at 6 o’ clock in the morning. The witness
further asserted that Gorakh Nath Singh (A-3) was paying the cost of levy
wheat after making receipts of that and he had done this work from 6 o’
clock in the morning to 11 o’ clock in day time on that day. The witness,
however, could not produce any documentary evidence to show that the
levy work was done at his place. The evidence of Kuldeep Narayan Singh
(DW-8) was to the same effect. He was a Karamchari and said that there
was a levy going on on 5.7.1973. He also suggested that Gorakh Nath
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Singh (A-3) was present for the levy and was continuously working from 6
o’ clock in the morning till 12 o’ clock in the day time on that day. The
evidence of Ram Lal Manjhi (DW-9) was to the same effect, so also the
evidence of the landlord of Gorakh Nath Singh (A-3), namely Vidya
Narayan Singh, who as DW-10 claimed that Gorakh Nath Singh (A-3) had
taken room in his house and had gone for the levy work at 5.45 a.m. The
evidence of Adya Narayan Singh (DW-11), who was a Panchayat Sewak
in the Gorkha Block, was also to the same effect. He proved a document
as Exhibit DF, which was a carbon copy of the slip (receipt), as also
Exhibits 3/2 and 3/3 being the registers bearing the signatures of Gorakh
Nath Singh (A-3). Ram Nagina Singh (DW-16) and Sona Lal Sah (DW-17)
also asserted about the levy. Both the Courts had chosen to accept the
evidence of the eye-witnesses and have rejected the evidence led on
behalf of the defence.
16. It is to be noted that these witnesses were all interested witnesses in
the sense that they were the colleagues of Gorakh Nath Singh (A-3).
Before we venture to appreciate this evidence, it must be noted that the
distance between the spot where the incident took place and the place
where the accused Gorakh Nath Singh claimed to have been present is
extremely short. Admittedly, it is 3 or 4 kilometers. When all the witnesses
claimed that the work of levy began from 6 o’ clock in the morning, it is a
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very difficult claim to be accepted. In the first place, there is nothing
proved by way of documentary evidence to show that the levy of wheat
was to be collected at the house of Ram Barai Singh, Mukhiya (DW-7) or
that the levy was proposed to be held at village Devariya Panchpariya on
that day. We cannot accept that there would be no documentary evidence,
particularly if it was an exercise of levy. There is bound to be some
records somewhere. We are not much impressed by the receipts, which
have been filed by the witnesses because there is nothing on those
receipts as to when they were actually prepared. In fact, the evidence of
Sultan Ahmad (PW-14) could not be demolished when he said that he had
reached the place where the levy work was going on and it was at about 1
o’ clock that Gorakh Nath Singh (A-3) arrived there alongwith others. The
Trial Court thoroughly discussed this evidence and held it to be not
reliable. In view of the very short distance of 4 kilometers between the two
places i.e. the place of incident Mauza – Mohammadpur and the village
Devariya Panchpariya, the evidence appears to be extremely doubtful. We
are also not impressed by the evidence of Kapil Narayan Sinha (DW-1),
Deputy Superintendent of Police, as nothing would turn open the so-called
report prepared by him in view of the direct evidence led by the
prosecution. In our opinion, the Trial Court and the appellate Court were
right in rejecting the defence of alibi.
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17. A few decisions were referred to during the debate, which are as
follows:-
(i) Satbir Singh & Ors. Vs. State of Uttar Pradesh [2009 (13)
SCC 790]. This decision was relied upon to show that the
non-examination of the concerned medical officer would affect
the prosecution case. This was probably in order to show that
the original Doctor (Dr. B.M. Srivastava) who had done the
Post Mortem, had expired and the Post Mortem Report had to
be proved by another Doctor namely Dr. J.C. Brahmo. We do
not find anything wrong with the Report having been proved
by the other Doctor.
(ii) Maranadu & Anr. Vs. State by Inspector of Police, Tamil
Nadu [2008 (16) SCC 529]. This decision is on the question
of law under Section 149 IPC. This Court has cautioned
against the acceptance of the evidence of the partisan
witnesses, particularly in case involving Section 149 IPC. We
do not find this case to be of any support to the prosecution.
However, while stating the principles of appreciation of
evidence, this Court relied on the decision in Masalti Vs.
State of U.P. [AIR 1965 SC 202], wherein it was observed
that:-
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“it would be unreasonable to contend that evidence
given by witnesses should be discarded only on the
ground that it is evidence of partisan or interested
witnesses. The mechanical rejection of such evidence
on the sole ground that it is partisan, would invariably
lead to failure of justice.”
We are quite convinced in this case that the evidence of
the eye-witnesses, though they were somewhat partisan, was
liable to be accepted, excepting against the three accused
persons who were acquitted. We have given the reasons for
acceptance of that evidence and also for the acquittal of three
accused persons, who could not be held to be the part of the
unlawful assembly.
(iii) Yunis alias Kariya Vs. State of M.P. [2003 (1) SCC 425].
This decision was relied upon to suggest that when eight
accused persons armed with deadly weapons, attacked the
deceased in broad daylight in a marketplace causing his death
and the same was witnessed by several persons, three of
whom were eye-witnesses and where the testimony of the
eye-witnesses was tallying with each other, the oral testimony
of the eye-witnesses as well as the medical and other
evidence established the commission of crime. In fact, the
decision in this case is completely against the defence. This
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was also a case under Section 149 IPC, which was held to be
established on the basis of evidence and for good reasons.
(iv) Ramesh & Anr. Vs. State of Uttar Pradesh etc. etc. [2009
(15) SCC 513]. This is also a decision by this Court on the
appreciation of evidence. In this case also, it was held that
the minor contradictions, inconsistencies, exaggerations and
embellishments in the testimonies of the eye-witnesses were
bound to be there, however, they, by themselves, did not
decide the credibility of the witness which has to be tested by
the Court.
The other decisions referred to are Akhtar & Ors. Vs. State of
Uttaranchal [2009 (13) SCC 722], Ram Dular Rai & Ors. Vs. State of
Bihar [2003 (12) SCC 352] and Munshi Prasad & Ors. Vs. State of
Bihar [2002 (1) SCC 351], which are of no consequence either for the
prosecution or the defence.
18. In the result, the appeals of Thakur Singh (A-1), Akhilesh Ojha (A-5)
and Keshav Singh (A-9) are allowed and that of Ram Pravesh Singh (A-2),
Gorakh Nath Singh (A-3), Thakur Ojha (A-4), Jitendra Singh (A-6), Raj
Nath Singh (A-7) and Adalat Pandit (A-10) are dismissed for the reasons
as stated above. The acquitted appellants/accused shall be released
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forthwith unless required in any other matter. The bail bonds, if any, shall
stand cancelled.
………………………………….J.
(V.S. Sirpurkar)
…………………………………….J.
(Dr. Mukundakam Sharma)
New Delhi;
May 14, 2010
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