CRIMINAL APPEAL (DB)No.347 OF 2003
----
Against the judgment and order dated 31.07.2003
Passed by Sri Nirmalesh Chanda Lala (Ad-hoc
Sessions Judge), Presiding Officer, Additional
Court No.2, Patna (Fast Track) in Sessions Trial
Case No.432/1986/513 of 2001.
—-
1. BABU RAM TIWARY, S/O LATE RAM LAKHAN TIWARY
2. SUBHAS SINGH, S/O LATE KAMLA SINGH
3. SURESH SINGH, S/O RAJGIR SINGH
4. DEVENDRA SINGH S/O LATE KAMLA SINGH
5. RAMJI TIWARY, S/O LATE RAM LAKHAN TIWARY
6. JANARDAN TIWARY, SON OF LATE RAM PRAVESH TIWARY
7. VIJAY SINGH SON OF LATE CHANDESHWAR SINGH
8. DINESH TIWARY SON OF LATE RAM PRAVESH TIWARY
ALL RESIDENTS OF VILLAGE MAKDUMPUR, POLICE STATION
BIHTA, DISTRICT PATNA.
... ... APPELLANTS.
Versus
THE STATE OF BIHAR ... ... OPPOSITE PARTY.
WITH
CRIMINAL APPEAL (DB) No.353 OF 2003
—-
ARUN KUMAR @ ARUN KUMAR SINGH, SON OF LATE RAMANAND
SINGH, RESIDENT OF VILLAGE MAKDUMPUR, POLICE STATION
BIHTA, DISTRICT PATNA.
... ... APPELLANT.
Versus
THE STATE OF BIHAR ... ... OPPOSITE PARTY.
----
WITH
CRIMINAL APPEAL (DB) No.368 OF 2003
—-
BIJENDRA SINGH SON OF LATE KAMLA SINGH, RESIDENT OF
VILLAGE MAKDUMPUR, POLICE STATION BIHTA, DISTRICT
PATNA.
... ... APPELLANT.
Versus
THE STATE OF BIHAR ... ... OPPOSITE PARTY.
----
For the Appellants : M/S Akhileshwar Prasad Singh,Advocate
Ramesh Prasad Singh, Advocate
For the Informant : Mr. Shiv Shankar Prasad Singh,Advocate
For the State : Mr. Ashwini Kumar Sinha, A.P.P.
----
P R E S E N T
THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA
THE HON’BLE MR. JUSTICE RAKESH KUMAR
—-
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Rakesh Kumar,J. All the three appeals arise out of the
same judgment of conviction and sentence and as
such all the three appeals were heard together
and are being disposed of by this common
judgment.
2. The aforesaid appeals have been
preferred against judgment and conviction dated
31.7.2003 passed in Sessions Trial
No.432/1986/513 of 2001 by Shri Nirmalesh Chandra
Lala (Ad-hoc Sessions Judge), Presiding Officer,
Additional Court No.2, Patna.
3. The appellant Bijendra Singh in Cr.
Appeal No.368 of 2003 was convicted under
Sections 302, 307 and 201 of the Indian Penal
Code and was sentenced to undergo rigorous
imprisonment for life for the offence under
Section 302 of the Indian Penal Code, rigorous
imprisonment for five years for the offence under
Section 307, rigorous imprisonment for five years
under Section 307/34 of the Indian Penal Code and
rigorous imprisonment for two years under Section
201 of the Indian Penal Code. It was directed
that sentence would run concurrently.
4. All the appellants in rest of two
appeals were convicted under Section 307/34 of
the Indian Penal Code and sentenced to undergo
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rigorous imprisonment for five years under
Section 307/34 of the Indian Penal Code.
5. Short fact of the case as per the
fardbeyan of Smt. Lalmati Devi (P.W.5) is that on
2.4.1985, the accused persons started to cut
Mahua tree, which was standing on the land of
informant through labourer. It was alleged that
the occurrence regarding cutting of the tree
started from 12.00 Noon on 2.4.1985. At the
relevant time, as per informant, Murari (P.W.1)
and Tungnath (not examined), both sons of the
informant had gone to Bihta and Neora and
informant had gone to Khagaul for bringing
medicine for daughter-in-law. The informant at
about 3.00 P.M. got down from a train at Neora
Railway Station and thereafter, she started to
move towards her house. In the meanwhile, she met
her daughter Renuka Devi (P.W.2) and son Murari
(P.W.1). She was informed by Murari that the tree
was being cut by the accused persons and while
Murari went there, he was chased by the accused
persons. Thereafter, the informant along with her
son and daughter proceeded towards their house
and on way, they met Tungnath. Tungnath also
informed the informant that their ancestral
khatiyani tree was being cut by the accused
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persons. However, all the four persons went to
their house. It was further disclosed by the
informant that at about 5.00 P.M., Tungnath
proceeded towards the place of occurrence where
the tree was being cut. He was followed by Murari
and thereafter, the informant and Renuka Devi
with her one month child also moved to the place
of the occurrence. After their arrival, they saw
accused Bijendra Singh (appellant in Cr. Appeal
No.368 of 2003) armed with gransa. Arun Kumar @
Arun Kumar Singh (appellant in Cr. Appeal No.353
of 2003) armed with gransa, Sriram Tiwari armed
with farsa, Babu Ram Tiwari, Janardan Tiwary
armed with farsa, Ramanand Singh armed with
gransa, Suresh Singh, Devendra Singh, Subhash
Singh, all armed with gransa, Chandeshwar Singh
armed with lathi, Bijay Singh armed with farsa
along with Ram Ratan Singh and Ram Nagina Singh.
After noticing the informant and her family
members, accused Ram Ratan Singh and Nagina Singh
instigated other accused persons for assaulting
the informant. Thereafter, accused Bijendra Singh
hurdled gransa blow on the informant. However,
she saved herself from the blow but the gransa
blow struck the one month baby, who was in the
lap of informant. Thereafter, second blow of
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gransa was given to the informant which hit her
forehead as well as below her eye brow portion.
It was alleged that after getting the farsa blow,
one month old baby fell down from the lap of
informant and she died. Thereafter, the informant
lifted the child, but she was no more by that
time. Subsequently, accused Bijendra snatched the
dead child from her and fled away with her dead
body. The informant further disclosed that in the
said occurrence, accused Suresh Janardan Tiwari
and others assaulted Tungnath and accused Babu
Ram Tiwari, Sriram Tiwari and others assaulted
Murari. As per in formant, the said occurrence
continued for about one hour. In the meanwhile,
hundreds of villagers assembled there and then
accused persons fled towards western Badhar in
the same direction to which accused Bijendra
Singh had fled. The villagers took the injured
sons and daughter of the informant to Neora
hospital. It was disclosed by the informant that
since in her house, there was no body, the
informant could not go for her treatment at that
time. On the same date at 20.45 hours fardbeyan
of informant Lalmati Devi was recorded by Shri
D.N. Raju, the Sub Inspector of Police-cum-
Officer-in-charge, Bihta Police Station. The
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fardbeyan was recorded in the house of the
informant. On the basis of fardbeyan of Smt.
Lalmati Devi, a formal first information report
was drawn on 3.4.1985 at 00.30 hours. After
registering the F.I.R., police investigated the
same and thereafter, charge sheet was submitted.
Subsequently, cognizance in a case was taken for
the offence under Sections 307, 302, 324, 147,
148, 149, 323 and 201 of the Indian Penal Code.
The case was committed to the court of Session by
order dated 14.3.1986 passed by Judicial
Magistrate, Danapur. Finally, the aforesaid
appellants were put on trial.
6. In this case, against all the accused
persons, charges were framed for the offence
under Sections 307, 302 and 149 of the Indian
Penal Code. However, in addition to aforesaid
charges, the appellant Bijendra Singh was further
charged for the offence under Sections 302, 201
and 307 of the Indian Penal Code. During the
trial to prove the prosecution case, prosecution
examined altogether ten witnesses. During the
trial, the accused persons also got some
witnesses examined as defence witnesses and
altogether four witnesses were examined as
defence witnesses. Out of ten P.Ws., P.Ws.1, 2, 4
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and 5 have been examined as eye witnesses to the
occurrence. P.W.6 Bhagwan Singh and P.W.9 Lal
Babu Singh were seizure witnesses. P.W.9 has
turned hostile. P.W.7 Dr. B.N. Choudhary had
examined the injuries of the witnesses. P.W.8
Shri Ramashish Raut is the Investigating Officer
of the case and P.W.10 Rajdeo Singh has also
turned hostile during the trial.
7. P.W.1 Murari Singh, who is son of
the informant (P.W.5) stated during the trial
that on the date of occurrence at 12.00 Noon, he
noticed that in his orchard accused persons had
surrounded his Mahua tree and some labourers were
cutting the tree through axe. It was further
stated that accused persons were armed with
farsa, gransa and lathis. P.W.1, when enquired
from accused persons then he was chased by the
accused persons and thereafter, any how, he
rushed to his house and from his sister Renuka
Devi (P.W.2) about his mother and also disclosed
regarding the occurrence to his sister.
Subsequently, he along with his sister Renuka
Devi went to railway station with an object to
meet their mother i.e. informant and on way, they
met with her mother and disclosed all the episode
to her. Thereafter, they were returning to their
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house and on way P.W.1 met with his brother
Tungnath and he was also informed about the
occurrence. On listening the said fact Tungnath
said that he will ask the accused persons as to
why they are cutting his tree. Again all the four
persons came out from their house. At that very
time, the sister of P.W.1 Renuka Devi was
carrying her one month old female baby in her
lap. However, on the way, the mother of P.W.1
took the baby from his sister’s lap and
thereafter, they reached near his tree at about
5.00 P.M. The mother of P.W.1 when enquired from
the accused persons as to why they were cutting
the tree, immediately thereafter, the appellant
Bijendra Singh picked up his gransa and inflicted
the same on his mother. However, the said blow
hit the nephew of P.W.1 on her neck. The nephew
of P.W.1 was in the lap of his mother (informant)
and thereafter, the baby fell down. While his
mother was going to lift the baby, the appellant
Bijendra Singh again gave gransa blow which hit
on left forehead of her mother and she received a
cut injury and appellant Bijendra Singh snatched
the nephew of P.W.1 from his mother (informant).
In the said occurrence, his brother Tungnath was
assaulted by Suresh Singh, Jagdeo, Sriram Tiwari,
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Babu Ram Tiwari, Ravindra Prasad Singh through
farsa and gransa and thereafter, they also
assaulted P.W.1. It was specifically stated by
P.W.1 that he was also brutally assaulted. He
claimed that the accused persons were also
assaulting his sister. He categorically stated
that the accused persons brutally assaulted them
and thereafter, they threw them, but none of the
villagers, who had assembled there, saved him.
After the accused persons had fled away, the
villagers and Chaukidar carried them to Neora
hospital. He stated that his nephew was taken
away by appellant Bijendra Singh and thereafter,
she become traceless. Almost in the same term,
P.Ws.2, 4 and 5 have supported the prosecution
case.
8. Shri Akhileshwar Prasad Singh,
learned counsel appearing on behalf of appellants
Bijendra Singh, Subhash Singh, Devendra Singh,
Bijay Singh and Arun Kumar @ Arun Kumar Singh
submitted that the appellants were falsely
implicated in the case. It was submitted that the
Mahua tree, which was the cause of the alleged
occurrence, was actually appellants’ tree. The
said tree was standing over a peace of land,
which was purchased by the grand father of the
– 10 –
appellants long back in the year 1927 through a
sale deed. He has also taken a defence that the
entire prosecution case is liable to be set aside
only on the ground that the prosecution has
suppressed the fact regarding injuries caused on
the person of the appellants. He submits that
while the member of prosecution side were opposed
by the appellants from cutting the Mahua tree,
the occurrence had taken place and in the said
occurrence, one of the appellants, namely, Ramji
Tiwari received serious injuries. His fardbeyan
was recorded, while he was admitted in a hospital
at Patna City and on the basis of his fardbeyan,
an F.I.R. vide Bihta P.S. Case No.76 of 1985 was
registered. He submits that even injuries
received by the appellants in the said occurrence
were completely suppressed by the prosecution and
on the ground of suppression of material fact, he
submits that entire prosecution case has become
doubtful. The F.I.R., which was registered as per
instance of the appellants was got exhibited as
Ext.F. He further submits that in view of
evidences which have been brought on record in
the present case, offence under Section 307 of
the Indian Penal Code is not made out. He has
taken the stand that it is the prosecution case
– 11 –
that about 13 accused persons variously armed
with farsa, gransa and lathis had surrounded the
prosecution parties, who were very less in
number. Virtually, out of five prosecution
witnesses, P.Ws.2 and 5 were female. P.W.3 was a
child aged about 3 or 4 years and P.W.5 Phalendra
Sharma was also of the age in between 12 and 14
years. He submits that had there been intention
to kill any member of the prosecution party there
was no hurdle to achieve their object. The
prosecution witnesses have categorically stated
that said occurrence continued for about one
hour. Shri Singh submits that having such weapon
in their hand in such a long duration, the
appellants would have killed all the five members
of the prosecution team, had there been any
intention to commit murder in the case. He
further submits that injury reports which have
been brought on record, though not admissible,
itself indicates that none of the injuries can be
considered to be an injury given with intent to
kill any of the injured person. So far as injury
report, which has been brought on record in
relation to injury sustained by Tungnath is
concerned, he submits that in absence of
Tungnath, his injury report has got no relevance.
– 12 –
He submits that with some oblique motive, the
prosecution has intentionally with hold injured
Tungnath and he was not produced to support the
prosecution case. Shri Singh further submits that
though the informant and other witnesses have
claimed that the said occurrence was witnessed by
several villagers, but during the trial, none has
come forward to support the prosecution case. In
the present case, P.Ws.1, 2, 4 and 5 are family
members and as such they were interested
witnesses. P.Ws.1 and 4 are sons of P.W.5 Lalmati
Devi. Similarly, P.W.2 is daughter of P.W.5
Lalmati Devi. He further submits that only with a
view to illegally grab the land of appellants,
the prosecution has built up the present case
against the appellants, who are real title holder
of the land in question over which the Mahua tree
was standing.
9. Shri Singh has also questioned the
prosecution case on the ground that at the place
of occurrence, blood stain was not found in the
quantity as it was expected from the alleged
place of occurrence. It was the case of
prosecution that one month old baby, who was in
the lap of informant, received gransa blow and
thereafter, she fell down from the lap. It was
– 13 –
expected that on the place of occurrence, a huge
quantity of blood stain would have been found,
but same was not found during the investigation.
In the said occurrence, besides killing of one
month old baby, it was also alleged that almost
all the family members of the informant, who were
present at the place of occurrence, had received
serious injuries, but no such blood mark was
found at the place of occurrence.
10. While challenging the judgment of
conviction and sentence, Shri Akhileshwar Prasad
Singh has further submitted that the story built
up by prosecution regarding the killing of one
month old baby in the occurrence is completely
doubtful and not believable. By referring to the
evidence of P.W.5 and particularly P.W.2, he has
argued that it is not probable that in case of
forcefully snatching of a baby of one month from
the lap of her mother or her grand mother, the
mother or grand mother will not behave in a
manner as has been noticed during the
investigation as well as during the trial of the
present case. Though, the mother of said deceased
baby had received injuries, which were simple in
nature, instead of rushing to the police for the
search/recovery of the dead body of her baby, she
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preferred to go to the hospital. Similarly, grand
mother (P.W.5) of the deceased baby has also
returned to her house on the plea that she
remained at her house since there were no other
family members at her house.
11. Shri Singh has also referred to
paragraph-23 of the deposition of P.W.2, Renuka
Devi and stated that P.W.2, who was mother of the
deceased baby herself, has admitted that no one
tried to kill the baby. Of course, she had taken
the plea that in the occurrence, all the members
of the prosecution party were being assaulted.
P.W.2 has also stated in paragraph-23 of her
deposition that her mother was not given even a
single blow from the gransa. However, P.W.5 and
other witnesses have stated regarding blow being
inflicted on P.W.5 by gransa.
12. Shri Singh, learned counsel for
the appellants has further referred to paragraph-
3 of deposition of P.W.5 and submits that p.W.5
herself had admitted that after the occurrence,
co-villagers and Chaukidar carried her son and
daughter to Neora Hospital. However, she remained
at her house since there were none in her house.
He submits that in a situation where a one month
old baby had received injuries from farsa in the
– 15 –
occurrence and thereafter, the accused forcibly
took the baby and fled away from the occurrence
in a natural course, the conduct of mother of the
baby i.e. P.W.2 as well as grand mother of the
baby (P.W.5) shows that the story of false
killing of so-called one month old baby was
concocted by the prosecution with an evil eye to
grab the land of the appellants.
13. Learned counsel for the appellants
has also taken a plea that the entire prosecution
case becomes doubtful only on the ground that the
prosecution side has suppressed the fact that on
the alleged date of occurrence, son of P.W.5,
namely, Tungnath and P.W.1, Murari were forcibly
cutting the Mahua tree, which was standing over
the land of the appellants side and while
Appellant No.4 in Cr. Appeal No.347 of 2003
objected, he was brutally assaulted by Tungnath
and P.W.1 and he received serious injuries on his
person along with Ramji Tiwary, his servant, Sri
Pandit was also assaulted in the said occurrence
and thereafter, he was admitted in a hospital
where his fardbeyan was recorded and on the basis
of his fardbeyan, an F.I.R. vide Bihta P.S. Case
No.76 of 1985 was registered. The copy of F.I.R.
was got exhibited at the defence stage vide
– 16 –
Ext.E. In Ext.E, Tungnath and P.W.1 were named
along with 10-15 unknown accused persons by the
appellant Ramji Tiwary. The said F.I.R. was
registered for the offences under Sections 147,
148, 149, 307 and 323 of the Indian Penal Code.
14. Shri Singh, learned counsel
appearing on behalf of the appellants aforesaid
has also submitted that in view of the evidences,
which have been brought on record besides the
case under Section 302 of I.P.C. relating to
murder of one month old alleged baby of P.W.2 has
become suspicious and doubtful. Injuries, which
were received by the members of prosecution
party, does not make out a case warranting
application of Section 307 of the Indian Penal
Code. Learned counsel has referred to injury
reports, which have been marked as Ext.1 relating
to injuries of Smt. Lalmati Devi (P.W.5),
Ext.1/1, injury report of Krishna Murari (P.W.2)
and Ext.1/3, injury report of Renuka Devi
(P.W.2). He submits that the injuries, which were
noticed by the doctor i.e. P.W.7, is itself
sufficient to prove that the appellants never
intended to kill any one in the occurrence.
Referring to injury report of P.W.2, learned
counsel has submitted that the injuries were
– 17 –
found as simple in nature. Similarly, injury
report of P.w.1 makes it clear that he had
received only two injuries, one of which was
incised wound and second was swelling. The injury
report of P.W.5 further makes it clear that all
the injuries, which were found on the person of
P.W.5, were simple in nature. So far as injury
report of one Tungnath, which has been marked as
Ext.1/2 is concerned, learned counsel for the
appellants has argued that in absence of evidence
of Tungnath, the injury report of Tungnath has
got no relevance in the present case. Moreover,
he submits that the prosecution has purposely
with hold the evidence of Tungnath. Accordingly,
on the basis of nature of injuries, which were
found on the person of members of prosecution
party, learned counsel has submitted that all the
appellants have been incorrectly and wrongly
convicted and sentenced for the offence under
Section 307/34 of the Indian Penal Code. In the
present case Section 307 of I.P.C. is not
applicable.
15. Shri Akhileshwar Prasad Singh, on
the basis of evidence brought on record, has
argued that the appellant Bijendra Singh was
incorrectly held guilty for the offence under
– 18 –
Sections 302 and 201 of the Indian Penal Code. He
has argued that none of the witnesses have come
out with reliable evidence regarding the
existence of so-called one month old baby at the
time of occurrence. He submits that D.W.3,
Mewalal pandit, who was Compounder of Dr.
Rameshwar Lal had specifically deposed that in
the clinic of Dr. Rameshwar Lal, the P.W.2,
Renuka Devi never delivered any child. However,
in her cross examination, P.W.2 had taken a plea
that she had delivered a female child in the
clinic of Dr. Rameshwar Lal.
16. Shri Ramesh Prasad Singh, learned
counsel appearing on behalf of the appellants
Babu Ram Tiwary, Janardan Tiwary and Dinesh
Tiwary in Cr. Appeal No.347 of 2003, while
challenging the impugned judgment and conviction
has taken the following defence : (i) No
occurrence has taken place in the present case as
has been alleged by the prosecution, (ii) The
prosecution has miserably failed to prove the
genesis of the case, (iii) The injury reports
which have been brought on record by the
prosecution side are indicative of the fact that
it was not even a case for offence under Section
307 of the Indian Penal Code, (iv) In absence of
– 19 –
evidence of local witnesses, the trial court was
required to refrain from relying on the evidence
of only family members of informant i.e. P.W.5,
(v) The story, which has been built up by the
prosecution in the present case, is completely
absurd and it cannot be reasonably believed as
true, (vi) The prosecution purposely with hold
the blood stain cloth during the trial and (vii)
The conduct of Investigating Officer, who has
been examined as P.W.8, was not fair.
17. Shri Ramesh Prasad Singh, while
creating doubt in respect of conduct of P.W.8
i.e. Investigating Officer, has mainly referred
to paragraphs 28, 29, 34, 35, 36 and 37 of the
evidence of P.W.8. He has argued that the
distance, which was covered by the Investigating
Officer within the time mentioned in the case
diary after receiving the information and
arriving at the place of occurrence, creates a
reasonable doubt on the conduct of P.W.8. He has
doubted that it was not possible for the
Investigating Officer to reach the place of
occurrence which was not motorable and was at
very long distance from the police station. He
further submits that injury report makes it clear
that it was not a case of an attempt to murder
– 20 –
any member of the prosecution party. He has
argued that since Tungnath was with hold by the
prosecution and he was not examined as a witness,
on the basis of his injury report i.e. Ext.1/2,
the appellants cannot be held guilty for the
injuries of Tungnath. The injury report in
respect of P.Ws.1, 2 and 5 are not sufficient to
attract the provision under Section 307 of the
Indian Penal Code and the learned trial Judge has
committed an error by convicting and sentencing
the appellants for the offence under Section
307/34 of the Indian Penal Code.
18. Shri Ramesh Prasad Singh, while
referring to paragraphs 20 and 22 of evidence of
P.W.7 submits that the injury report, which have
been got exhibited, were not admissible in
evidence. He submits that the said injury reports
were copied from the injury register and in
absence of production of injury register it was
not correct to accept the copy of said injury
reports as Ext. and, accordingly, the injury
reports were inadmissible in evidence. He has
further argued that injury report of P.W.5,
Lalmati Devi (Ext.1) does not bear any
certificate of the Investigating Officer and as
such the injury report of P.W.5 was liable to be
– 21 –
ignored. However, the learned trial Judge, while
passing the impugned judgment of conviction and
sentence, has relied upon all such evidences,
which were inadmissible and as such the impugned
judgment of conviction and sentence is liable to
be set aside.
19. Shri Ashwini Kumar Singh, learned
Additional Public Prosecutor refuting the
argument of Shri Ramesh Prasad Singh, learned
counsel appearing on behalf of the appellants,
submits that injury reports, which have been
exhibited, are original and it cannot be termed
as in admissible.
20. In the present case, I have also
heard Shri Shiv Shankar, learned advocate, who
had appeared on behalf of the informant (P.W.5).
Learned counsel, while opposing the aforesaid
appeals, has argued that after the occurrence,
police reached to the place of occurrence. The
police had found blood mark on the earth, which
was also seized by the police. In respect of
applicability of Section 307 of the Indian Penal
Code in the present case, learned counsel for the
informant has argued that the evidence of P.W.2
at paragraph-5, P.W.5 at paragraph-2 is itself
sufficient to prove that the accused persons had
– 22 –
brutally assaulted the member of prosecution
party and only when they felt that the members of
prosecution party had died, they left the place
of occurrence. He submits that this evidence is
sufficient to attract Section 307 of the Indian
Penal Code in the present case and, accordingly,
the learned trial Judge has rightly convicted and
sentence the appellants for the offence under
Section 307/34 of the Indian Penal code.
21. After hearing learned counsel for
the parties and examining the evidence, I am of
the view that prosecution has not proved the case
beyond all reasonable doubts. In the case, the
conduct of P.W.2, who has claimed to be mother of
so-called deceased one month old baby is
completely doubtful. In the alleged occurrence,
one month old baby of P.W.2 had received a farsa
blow on her neck and thereafter, her dead body
was forcibly taken by one of the appellants,
namely, Bijendra Kumar Singh and he fled away
along with dead body, but the mother of the baby
instead of searching for her baby preferred to
remain in hospital even though she had received
injuries, which were all simple in nature, which
is evident from Ext.1/3. It is difficult to
swallow that a mother after being snatched with
– 23 –
one month old baby will not make hue and cry for
the baby and she will prefer to remain in
hospital without any serious injury. Similarly,
the evidence of P.W.5, who is mother of P.W.2 and
grand mother of alleged deceased baby also
creates serious doubt on the prosecution story of
killing of one month baby in the occurrence. She
has stated that after the occurrence, the
villagers and Chaukidar carried her sons and
daughter to hospital, but since there were no
other family members in her house, she stayed at
her house where in the night after the police
arrived her fardbeyan was recorded by the police
whereas the occurrence had taken place at about
5.00 P.M. (evening). In normal course, one cannot
expect that a grand mother will behave in such a
manner in such a situation. Besides this non
availability of sufficient quantity of blood
stain at the place of occurrence also makes the
prosecution case doubtful. Accordingly,
conviction and sentence of appellant Bijendra
Singh in Cr. Appeal No.368 of 2003 for the
offence under Sections 302 and 307 of the Indian
Penal Code is not sustainable.
22. During the entire evidence, it has
not come as to whether any of family members of
– 24 –
the prosecution party took initiative to inform
the police regarding the occurrence. The conduct
of the member of the family of P.W.5, who are
also witnesses in the present case, is sufficient
to create doubt in the entire prosecution case.
In any event on the basis of injury reports,
which have been brought on record, during the
trial, it was not appropriate to convict and
sentence for the offence under Section 307/34 of
the Indian Penal Code coupled with the fact that
in the alleged occurrence, the appellants were
about 13 in number armed with deadly weapons
whereas the number of member of prosecution party
was very less. At the time of occurrence, P.W.1
(son of P.W.5), P.W.2(daughter of P.W.5) and
P.W.5 herself were present besides P.W.3 and
P.W.4. On the date of recording of evidence age
of P.W.3 was six years. She was produced by the
prosecution for her evidence on 27.8.1988. In the
case, the alleged occurrence had taken place on
2.4.1985. Meaning thereby that on the date of
occurrence, P.W.3 was below three years.
Similarly, P.W.4 was examined in the year 1989
and on the date of his deposition, he was about
14 years old. Meaning thereby that on the date of
occurrence, he was about 10-11 years old. P.W.2
– 25 –
and P.W.5 were family members. Had there been any
intention on the part of the appellants to kill
even a single member of the prosecution party,
there were no hurdle to achieve their object.
However, in the said occurrence, the injury
report shows that most of the injuries were
simple in nature. Accordingly, I am of the view
that in such a situation, it was not warranted to
convict and sentence any of the appellants for
the offence under Section 307/34 of the Indian
Penal Code. In the present case, the defence in
respect of title and possession over the land in
question where the alleged Mahua tree was
standing, may not be ignored. At the defence
stage, the appellants have brought on record a
sale deed, which has been marked As Ext.H, which
shows that the land was purchased on 15.6.1927.
Similarly, the F.I.R. (Ext.E), which was lodged
by one of the appellants against P.W.1 and his
brother Tungnath along with 10-14 unknown
persons, has also got some relevance which
creates serious doubt on the prosecution case.
This shows that the prosecution has not come out
with clean hand, but the fact regarding injuries
received by one of the appellants, was suppressed
by the prosecution.
– 26 –
23. Accordingly, I am of the considered
opinion that the prosecution case is doubtful and
as such in view of the facts and circumstances
benefit of doubt can be extended to the
appellants. Accordingly, judgment of conviction
and sentence dated 31.7.2003 passed in Sessions
Trial No.432/1986/513 of 2001 by Shri Nirmalesh
Chandra Lala, (Ad-hoc Sessions Judge), Presiding
Officer, Additional Court-2, Patna is hereby set
aside. The appellant Bijendra Singh in Cr. Appeal
No.(DB)368 of 2003 is discharged from the
liability of his bail bond and is directed to be
released forthwith. So far as other appellants,
who are on bail, are hereby discharged from the
liability of their bail bond.
24. Accordingly, all the three appeals
are allowed.
( Rakesh Kumar,J.)
Dharnidhar Jha,J. I agree.
(Dharnidhar Jha,J.)
PATNA HIGH COURT
Dated the 3rd March,2011
A.F.R./N.H.