JUDGMENT
R.N. Sahay, J.
1. These four appeals have been preferred against the verdict and son of sentence recorded by 1st Additional Sessions Judge, Patna in Sessions Trial No. 497 of 1982 and Sessions Trial No. 102 of 1983. Both Sessions cases were tried together as they arose from the same incident which happened on 26-12-81 at 6.00 p.m. in village Chandaus, P.S. Paliganj in the district of Patna.
2. In Cr. Appeal No. 121 of 1985, Ramjiwan Singh @ Ganauri Singh is the appellant. In Cr. Appeal No. 135 of 1985, Sheoji Singh and Prithwi Singh are the appellants. In Cr. Appeal No. 170 of 1985, Bhirgunandan Singh is the appellant. In Cr. Appeal No. 187 of 1985, Krishna Singh and Sampurnand Singh @ Chulbul Singh are the appellants. Each of the appellants have been convicted under Section 302/149, 201 and 148 Indian Penal Code, and have been sentenced to imprisonment for life under Section 302/149 Indian Penal Code and imprisonment for five years under Section 201 Indian Penal Code. No separate sentence was awarded under Section 148 Indian Penal Code. Appellants Krishna Singh, Prithwi Singh and Sheoji Singh have also been convicted under Section 27 Arms Act and sentenced three years imprisonment. Learned trial Judge also found the appellants guilty under Section 302/34 Indian Penal Code. There cannot be two opinions that the appellants can be charged under Sections 302/149 and 302/34 Indian Penal Code for distinct offences although the sentence is same but the conviction of the appellants both under Section 302/149 and 302/34 Indian Penal Code is absolutely wrong.
3. The incident which resulted in trial and conviction of the appellants, according to the prosecution case, took place on 26-12-1981 at 6.00 p.m. in the Baithka of Ram Pravesh Yadav. In the occurrence father and cousin of Ram Pravesh Yadav, namely, Sheonagar Yadav and Ramadhar Yadav were brutally murdered allegedly by the accused persons, who used to keep watch over the Khalihan. On the fateful evening, Ram Pravesh Yadav (P.W. 5) had gone to the Baithka of his father with the meal for two persons. Sheonagar Yadav did not take his meal and stated that he would take his meal after some time and asked his son to keep his meal at the Osara. In the meantime, four persons from west and four persons from north armed with deadly weapons came to the Baithka all on a sudden. The informant in the lantern light identified some of the accused persons, who are appellants here. Some of them were armed with country made rifle and some were armed with sword, Dab and lathi. Some of them were also armed with Phasuli. According to the prosecution story, appellant Bhirgunandan Singh instigated his companions to do away with the life of Sheonagar Yadav and Ramadhar Yadav saying that these persons had taken the life of their sister’s husband. On such instigation, appellant Ramjiwan Singh and Sampurnandan Singh caught hold of informant’s father and Sheoji Singh and Munni caught hold of informant’s cousin Ramadhar Yadav. Accused Krishna Singh wanted to catch hold of the informant but he managed to run away. The informant had himself behind the hedge. Krishna Singh fired from his country made pistol at Ramadhar Yadav. Bhirgunandan Singh caused injury by sword and Dab. Ramadhar Yadav fell on the ground. The informant raised alarm, the informant had not said anything about the fate of his father. Accused persons dragged and took Sheonagar Yadav to the west.
4. It is further alleged that Bhirgunandan Singh gave sword blow to him and took him at the west of the Baithka. The informant having terrified went towards the police camp for help. When he reached at some distance, he saw the police party coming to the scene distance, he saw the police party coming to the scene of the occurrence. The informant narrated the incident to the police. The prosecution party sent in search of Sheonagar Yadav and the informant saw his father’s beheaded dead body near the house of Bakhora Paswan. The head of Sheonagar Yadav was taken away by the accused persons. The blood-smeared sword and a butt of rifle was found lying near the dead body.
5. The motive for the occurrence, according to the F.I.R. was that on the same morning at early hours of 16-12-81 Bhirgunandan and his brother Prithwi along with others had chased Chohara Singh to assault him. They had also opened fire and in that firing the labourers engaged by Jadu Singh for harvesting his paddy received injuries. Bhirgunandan’s sister’s husband had been killed in that incident. The accused persons suspected that the deceased were responsible for the death of his brother-in-law.
6. The defence of the appellants was that they were innocent and have been implicated on account of enmity. The area where the occurrence took place was infested with naxalites and most likely the deceased persons were victims or naxalites activities.
7. The Trial Court has found the prosecution evidence to be convincing and accordingly the appellants have been convicted and sentenced as stated above. The conviction of the appellants is based on the evidence of P.Ws. 1 to 5.
8. Two persons were brutally murdered in this case admits no doubt. The post-mortem examination of deceased Ramadhar Yadav was held on 28-12-1981 by Dr. Ramesh Chandra Singh, who found following ante-mortem injuries on the person of the deceased Ramadhar Yadav:
(i) Oval-shaped injuries over the left elbow joint (pillet injury)
(ii) Fracture of the radius and ulna bone left side,
(iii) 4 incised wounds over the head 3″ x 1″ x bone deep with laceration of the brain matter,
(iv) Incised would 4″ x 2″x 3″ brain deep cutting the occipital bone, temporal bone and left ear.
According to the doctor, the death was caused by shock and haemorrhage. Injuries were caused by sharp-cutting weapon, fire arm and sword and Dab.
9. Post-mortem examination of beheaded body of Sheonagar Yadav was done by Dr. Ramesh Chandra Singh (P.W. 10) and his skull was examined by Dr. N.C. Samshul Haque (P.W. 9) on 4-1-82. Dr. Ramesh Chandra Singh found following ante-mortem injuries:
(i) Incised wound 4″ x 5″ over left side of waist,
(ii) Incised wound 4″ x 3″ over the left thigh.
(iii) The head was stipulated from the base of the neck which was not brought with the corpse. The major vessels of the neck and muscle was lacerated.
Dr. Samshul Haque found the skull bone with comunated fracture of left perital and temporal bone Lineal fracture of left perital bone running across the bone for opening 3″ x 2-1/2″ on the left side on skull. Brain matter missing. Both jaws found missing Lower margin of eyes sockets missing. All cervical vertebra missing. According to the doctor, missing substance might have been eaten by wild animals.
10. Learned Counsel for the appellants has submitted that all these witnesses are related to the family of the deceased or inimical to the appellants. P.W. 5 Ram Pravesh Yadav is the son of deceased Sheonagar Yadav and cousin of Ramadhar Yadav. P.W. 4 Prabhu Yadav is nephew of the deceased Sheonagar and brother of the deceased Ramadhar Yadav. P.W 1 Nagendra Sharma and P.W. 2 Darweshwar Yadav were inimical to some of the accused persons. Learned Counsel contended that the prosecution has produced two types of P.Ws., they are either related to the accused persons or inimical to the accused persons. The main endeavour of the Counsel for the appellants was to demonstrate that there was no eye-witness to the occurrence, which was committed in most daring manner. Learned Counsel has placed F.l.R. to show that the informant Ram Pravesh Yadav could not be eye-witness. Learned Counsel has contended that other eye-witnesses had no Khalihan near the place of occurrence, and they could not be witness to the occurrence. P.W. 1 said that he had his Khalihan east to the place of occurrence. P.W. 2 said that he had Khalihan near the Baithka. Similarly, P.W. 4 said that he had Khalihan on the other side of the road. Learned Counsel contended that according to evidence the occurrence was seen by the witnesses from a considerable distance. It was contended that the informant P.W. 5 said that after everything had happened, he fled towards police camp. It is surprising that none of the witnesses were seen by the informant. The Investigating Officer in para-16 of his deposition has stated that none of the P.Ws. (P.Ws. 1 to 4) has Khalihan anywhere around the place of occurrence.
11. Learned Counsel for the appellants also raised the question of identification. The occurrence had taken place in the evening. Learned Counsel submitted that it is doubtful that the lantern was hanging in the Baithka of the deceased or any of the witnesses had flashed torch. In this connection, it is contended that none of the means of identification was ever produced as material exhibit before the court. Reliance was placed on 1977 B.B.C.J. 409 and to support the contention that in absence of reliable evidence regarding source of identification, the evidence of so called eyewitnesses is highly unreliable. Thus, the identification of persons participating in the occurrence is not at all established.
12. It was next contended that prompt filing of F.l.R. by itself is not an unmistakable guarantee of faithfulness of the prosecution case (See 1977 B.B.C.J. 400).
13. Learned Counsel for the appellants emphasised that when the evidence is of the interested witnesses, no implicit reliance on their testimony can be placed. Their evidence has to be tested on objective circumstances. It is submitted that P.Ws. 1, 2 and 4 could not have seen the occurrence -from the eastern side as there were trees in that side with creeping. Baithka is not visible from this side. It is noticed that the dead body of Sheonagar Yadav was found near the house of Bakhora. Prosecution case is that Sheonagar was killed there. There are number of houses near the house of Bakhora but neither Bakhora nor any body from those houses was examined. It was also contended that there was no reasons for the accused persons to take away Sheonagar Yadav. They could have killed him at the place where Ramadhar Yadav was killed.
14. Mr P.N. Pandey, learned Counsel appearing in Cr. Appeal Nos. 121/85, 135/85 and 170/85, has submitted that according to the prosecution case, the informant had gone to Baithka with meal for his father Sheonagar and Ramadhar (both deceased) which is fully falsified by the evidence of the I.O., who did not find any utensils near the Baithka. Learned Counsel contended that the trial Judge reached his conclusion without proper appreciation of the evidence. The main attack is on the evidence of P.Ws. 1 to 5, who according to the defence argument, had not witnesses the occurrence at all. They are brought up witnesses. They are all related to the deceased. Mr. Pandey vehemently contended that the statement of the informant (Ext.-2) and further deposition to the effect that the persons, who had seen the occurrence, are those, who had their Khalihan near the place of occurrence. On the face of such categorical statement, the evidence of P.Ws. 1 to 4 is totally unacceptable inasmuch as none of the P.Ws. had Khalihan near the place of occurrence. This fact is evident from the evidence of Investigating Officer (P.W. 8) in para-16 of his deposition.
15. It is significant that according to the evidence the informant ran to the police station from that very place and yet he did not come across any of the witnesses The police station was at a distance of 300 yards from the place where P.Ws. 1, 2 and 4 were standing. On these submissions, learned Counsel for the appellants strongly pleaded that there is total absence of reliable evidence to support the charges against the appellants and the appellants were implicated because of suspicion and enmity.
16. Argument of the Counsel for the appellants has to be tested in the light of the evidence brought on record by the prosecution. It would be appropriate at this stage to review the evidence.
17. The occurrence took place in the evening at around 6.00 p.m. in the Baithka of the deceased Sheonagar Yadav, where he was sitting along with Ramadhar Yadav. It was most daring crime in which Ramadhar Yadav was killed on the spot and Sheonagar Yadav was carried away by the killers and his beheaded body was found at some distance. The police party petrolling nearby, came on the information of the informant and F.I.R. was promptly lodged by the informant Ram Pravesh Yadav. His fardbeyan runs in three pages containing details of the occurrence. He named these appellants and two others. The informant posed himself to be an eye-witness but it is doubtful whether he could be an eye-witness. The argument of the Counsel for the appellants in this regard has already been considered above.
18. Nagendra Sharma (P.W. 1) was in his Khalihcm. He heard sound of firing. He ran near the Bhathi on the road and met Rajdeo Parikha Yadav, Parphu Yadav, Darweshwar @ Parmeshwar. He flashed his torch and saw appellant Krishna Singh, Prithwi Singh, Bhrigu Singh, Chulbul, Shivji Singh, Ganauri Singh, Munshi Choudhary and Munni Mochi coming from north. They were dragging Sheonagar Yadav. Accused persons were carrying fire-arms and sharp cutting weapons. In the meantime, he heard the voice of Sheonagar Yadav. The accused persons fled towards village. This witness and others returned to the Baithka and found Ramadhar Yadav lying dead with injuries on his body. The significant fact in the evidence of this witness is that he and other witnesses did not go towards the direction where the voice of Sheonagar was heard.
19. The dead body of Sheonagar was found after the police came. The head of Sheonagar was missing. Khalihan of this witness is 100 yards away from the Khalihan of the deceased. There is a school adjacent to the Khalihan of the deceased. There was police chouki in the Panchayat Bhawan. This witness claimed to have identified the appellants in torch light. He had produced the torch to the I.O. but he did not seize it. This witness had denied that he had no torch. Learned Counsel for the appellants have attached the evidence of this witness of the point of identification. In the same morning Ram Govind Mahto had been murdered in the village. This witness could not say whether Ram Govind Mahto was Naxalite. He denied the suggestion that Sheonagar Yadav was murdered by the Naxalites by way of retaliation.
20. Darweshwar Yadav (P.W. 2) has stated that he too had seen the accused persons dragging Sheonagar Yadav. He had also heard the sound of gun fire.
21. Sarmanand (P.W. 3) is the third witness to have seen the accused persons in lantern light. This witness is brother of Sheonagar Yadav. This witness claimed to have seen the occurrence in the Dalan itself and said that lantern was hanging in the Dalan. He did not say about presence of the informant. This witness remained in the Dalan while other witnesses came after some time.
22. Prabhu Yadav (P.W. 4) claimed to have identified the accused persons in torch light. This witness said that the informant Ram Pravesh Yadav came after half an hour with the police.
23. Nand Kumar Dubey (P.W. 8) was on duty in Police Camp’, Chandaus. While he was on patrolling duty, he heard firing. He along with police force rushed towards the place from where sound of firing had come. On the way, he met Ram Pravesh Yadav, who told him about the occurrence. He inspected the Khalihan. There is pucca road towards south of Khalihan. There is Punjab National Bank 40 yards away from the Khalihan. Headless body of Sheonagar Yadav was found beneath Bargad tree. The Investigating Officer stated that when he first met Ram Pravesh Yadav, he did not record his statement. In para 14 of his deposition, he submitted that no witness gave him any torch. Lantern was show to him but he did not seize it. In para-20, he stated that Naxalites were operating in that area and have also attacked Paliganj Police Station several times. No utensil was shown to the I.O. by the informant Ram Pravesh Yadav.
24. The defence has challenged the presence of any of the witnesses. It has been vehemently contended that none of the witnesses had any occasion to see the occurrence which is established by circumstantial evidence. Undisputedly, one of the victim was carried away to some distance and beheaded underneath the Bunyan Tree. The evidence is that the witnesses had seen the appellants dragging Sheonagar Yadav. It is extremely doubtful that the culprits would have stopped near the tree to behead the victim when so many villagers had noticed them dragging the deceased. Secondly, it would have taken some time to carry out the operation. It is not understandable how the witnesses, instead of going towards that direction raising hulla, would first go to the Baithka of the deceased. This is strong circumstance to doubt the testimony of the witnesses, who said that they had seen the accused persons dragging Sheonagar Yadav. The whole thing appears to be shrouded in deep mystery. The defence has argued that merely it was handi work of the Naxalites and in the manner two persons were murdered in cold blood fixes the mode the Naxalites commit murder of innocent persons.
25. The accused persons were implicated on account of the fact that the family members of the informant were accused in the murder case of the husband of the sister of appellant Bhirgunandan Singh. That occurrence had taken place on that very day. The evidence of the eye-witnesses is not supported by medical evidence or by objective finding of the Investigating Officer. There is no convincing and reliable evidence in view of the fact that the witnesses had either torch or lantern was burning in the Baithka. The story of dragging of Sheonagar Yadav is negatived by the medical report which do not show any sign of dragging as noticed earlier, P.W. 1 has not stated before the police that he had torch nor any torch was produced during trial.
26. It has been urged that presence of the informant at the place of occurrence is itself highly doubtful and it is amply proved by his conduct at the time of occurrence. The evidence of Nagendra Sharma (P.W. 1) is quite different from what has been narrated by Ram Pravesh Yadav (P.W. 5) and Sarmanand (P.W. 3) and other prosecution witnesses as well. P.W. 1 said in court that he heard the sound of the gun shot when he was in his Khalihan. He rushed towards Bhatti and flashed his torch along with Rajdeo (not examined) and other witnesses, and then he saw the victim Sheonagar Yadav being carried. If this witness is believed, then the version given by other witnesses is fit to be rejected in totality.
27. It has been urged that from the evidence of Sarmanand (P.W. 3), the uncle of the informant it is evident that he was not present at the place of occurrence. This is indicated from the statement made by P.W. 5 in his fardbeycm (Ext.-2) and from paras 16 and 17 of the deposition of P.W. 3.
28. It was next submitted that topography of the place of occurrence is such that none of the witnesses, namely, P.Ws. 1, 2 and 4 could have seen the occurrence from road.
29. Mr. P.N. Pandey, learned senior Counsel for the appellants has urged that the court below has failed to consider the objective circumstance of the places of occurrence (Baithka) which make the presence of the informant and his uncle improbable rather completely rules out their presence. According to the fardbeyan, Ram Pravesh Yadav went to the Baithka with meal for his deceased father and deceased cousin. His uncle said that he was closely following Ram Pravesh Yadav. The Investigating Officer did not find any meal or utensils in which cooked meal was kept at the place of occurrence. The informant has said that he had taken the food and had with him three utensils but none of them were either recovered or found at the place of occurrence. Learned Counsel argued that having regard to the facts of the case, it was essential to seek corroboration of the evidence of the interested witnesses especially those, who had Khalihan near the place of occurrence. The First Information Report named two such-persons, namely, Rajdeo and Parikha and also one also one Bakhora Paswan. The prosecution with held these witnesses.
30. It has been urged that there was no apparent motive for the appellants to commit such crime and it is surprising that the informant in para-15 of his deposition has admitted that he did not know anything about the morning incident in the village in which brother-in-law of the appellant Bhirgunandan was murdered. It this was so, the motive disclosed in the fardbeyan was an after-thought, and an attempt to involve the accused persons on suspicion. Learned Counsel has submitted that the judgment of the Court below is based on conjectures and surmises. It is packed with sentimental approach which has no place in annals of judicial decision.
31. Learned Counsel for the appellants referred to post-mortem report of Sheonagar Yadav. In column No. 4 under the heading ‘Abdomen’, Stomach and its contents-semi-digested food. It was argued that statement of the informant that his father did not take his meal which he had carried is falsified by this finding in the Post-Mortem report. Semi-digested food was found which means that the deceased had taken meal 2 or 3 hours before he was murdered. There is considerable force in the submission which fact is not considered by the Trial Court. Learned Counsel submitted that the trial Judge was conscious of the fact that the evidence was not strong enough for recording conviction but he swayed away by sentiments and not by objective considerations.
32. In Dilauar Hussain v. State of Gujarat 1991 Cr. L.J.-15. the appellant before the Supreme Court was sentenced to death for having participated in the occurrence in which eight persons had lost their lives in a mob. The Supreme Court doubted the testimony of the witnesses, who claimed to be eyewitnesses and held that the case was not proved in view of the fact that the presence of the witnesses and claim of identifying large number of accused were held to be doubtful because no witness who had their houses situated near the house in which the occurrence had taken place were called by the prosecution. It has been observed by the Supreme Court. “All this generated a little emotion during submissions. But sentiments or emotions, howsoever strong are neither relevant nor have any place in a court of law. Acquittal or conviction depends on proof or otherwise of the criminological chain which invariably comprises of why, where, when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecution. Each link must be so consistent that the only conclusion which must follow is that the accused is guilty. Although guilty should not escape. But on reliable evidence truthful witnesses and honest and fair investigation. No free man should be amerced by framing or to assuage feelings as it is fatal to human dignity and destructive of social, ethical and legal norms. Heniousness of crime or cruelty in its execution howsoever abhorring and hateful cannot reflect in deciding the guilt.”
33. On careful and cautious evaluation of the evidence, I have great hesitation in accepting the evidence on which the appellants have been held guilty. Various arguments advanced on behalf of the appellants are weighty arguments and the prosecution has not been able to countar and it was indeed a mysterious crime. No doubt, police arrived hut this fact alone is not guarantee of the fact that the witnesses were truthful. According to the post-mortem report, semi-digested food was found and thus time of occurrence becomes doubtful. No witness, who had their Khalihan nearby the place of occurrence were examined. The behaviour of the witnesses is also peculiar that instead of raising hulla, they came back to the Khalihan. The identification portion is also important. It is doubtful whether the witnesses had any torch. I am inclined to agree with the submissions of the learned Counsel for the appellants. The offence is not proved beyond reasonable doubt and thus, the appellants should be given benefit of doubt.
34. Accordingly, all the four appeals are allowed, conviction of the appellants is set aside and the appellants are acquitted of the charges by giving them benefit of doubt. All the appellants are on bail. They are discharged from the liability of their bail bonds.