1
CRIMINAL APPEAL No.510 OF 2002 (D.B.)
- - - -
SHAILENDRA SINGH ------------Appellant
Versus
STATE OF BIHAR--------------Respondent
With
CR. APP (DB) No.588 OF 2002
1. KISHUNDEO SINGH
2. RAMDEO SINGH – – – – – – Appellants
Versus
STATE OF BIHAR—————Respondent
With
CR. APP (DB) No.642 of 2002
RAMCHARAN SINGH —————-Appellant
Versus
STATE OF BIHAR———— Respondent
Against the judgment and order dated 7.8.2002
Passed by Additional Court No.2,( Fast Track)
Patna, passed in Sessions Trial No.662 Of 1986/
260 of 2001 arising out of G.R. Case No. 815 of
1989,Naubatpur P.S. Case No. 97 of 1984.
– – – –
For the appellants: Sri Rana Prataap Singh, Sr.Adv.
(in all the appeals) Sri Ajay Kr.Gautam
Sri Aruni Singh
sri Sumant Singh
For the State : Sri Ashwini Kr. Sinha,A.P.P.
( in all the appeals)
P R E S E N T
THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON’BLE MR. JUSTICE DHARNIDHAR JHA
– – – –
Dharnidhar Jha,J.- Appellants Shailendra Singh( appellant in Cr.
Appeal No. 510 of 2002), Kishundeo Singh, Ramdeo
Singh( appellants in Cr. Appeal No. 588 of 2002)
and Ramcharan Singh(appellant in Cr. Appeal No.
642 of 2002) along with other persons, namely,
Bimal Singh, Dipak Ram and Jogendra Singh were
put on trial for the charges under Sections
148/302/149 and 307/149 of the Indian Penal Code
2
and were found guilty of committing those
offences by the Presiding Officer, Additional
Court No.2(Fast Track Court), Patna, in Sessions
Trial No. 662 of 1986/260 of 2001 by judgment
and order of conviction passed on 7.8.2002. The
aforesaid appellants were awarded rigorous
imprisonment for two years for their individual
convictions under Sections 148 and rigorous
imprisonment for five years for their individual
convictions under Section 307/149 of the Indian
Penal Code. Appellants Shailendra Singh
(appellant in Cr. Appeal No. 510 of 2002))
Kishundeo Singh and Ramdeo Singh( appellants in
Cr. Appeal No. 588 of 2002) were awarded rigorous
imprisonment for life under Sections 302/149 of
the Indian Penal Code and appellant Ramcharan
Singh( appellant in Cr. Appeal No. 642 of 2002)
was found guilty of committing offence also
under Section 302 of the Indian Penal Code and
separately sentenced to undergo rigorous
imprisonment for life for committing that
particular offence. The other three accused,
Bimal Singh, Dipak Ram and Jogendra singh, were
not found guilty and were acquitted by the same
judgment. The above judgment and order of
conviction are being assailed by these four
3
appellants in these three appeals which are being
disposed of by the present judgment.
2. The prosecution case is contained in
the F.I.R.(Ext.4) lodged by P.W.7, Jag Narain Pandit
in which he alleged that at about 5.30 A.M. on
26.5.1984 the F.I.R. named accused persons along with
15-20 others came out of the house of appellant
Ramcharan Singh with country made guns and pistols
and started dismantling his Marai. They also started
firing shots from their weapons upon which Jagarnath
Pandit, the brother of the informant, who was
preparing soil( informant is a potter) as also
Surendra Pandit, who was the nephew of the informant
and was making rope, ran into their house. Ram
Prakash Pandit who was the son of aforesaid Jagarnath
Pandit and who was cutting tiles was shot at many
times by appellant Ramcharan Singh which hit him.
Appellants Shailendra Singh, Kishundeo Singh and
Ramdeo Singh entered inside the house of the
informant Jagarnath Pandit (not examined) who was
shot at and injured by appellant Kishundeo Singh who
fell down in the verandah. Phulwa Devi (not examined)
the wife of Devendra Pandit was shot at and injured
by appellant Shailendra Singh by his country made
pistol. Appellant Ramdeo Singh fired from his country
made gun at Devendra Pandit (not examined) and
4
Sushila Devi( P.W. 5) as also at Jag Narain Pandit
and they were badly injured. Jai Prakash Pandit
(P.W. 1) who was attempting to get out of the Darwaja
was shot at and injured badly by appellant Ramcharan
Singh. It is alleged that all the accused
accompanying appellant Ramcharan Singh were firing
shots continuously as also threw brick bats and
lastly, went away with an ox but the same was
resisted by the herdsmen and as such the ox was
abandoned by the accused persons.
3. It was stated in the F.I.R. that the
informant and his family members had erected a
Marai in front of the Darwaja of the appellants
and were sitting there on cots, as such the
occurrence.
4. The case was investigated into and the
accused persons, as indicated in the first
paragraph of the judgment, were put on trial for
the offences as noted above and ultimately the
trial ended in the acquittal of the three accused
persons and conviction of the four appellants for
the offences with imposition of sentences as noted
above.
5. The defence of the appellants in the
court below was of complete denial of
participation as also that, in fact, the cattle
5
thieves had entered in the house of the
prosecution party to lift the cattle and indeed
the cattle was lifted which was resisted by the
informant and his family members. The cattle
thieves fired at the informant and others
resulting in the death of the deceased and
injuries to different persons and because the
informant and his family members had land dispute
with the appellant Ramcharan Singh and others, as
such, he falsely implicated them in the present
case. The defence appears from suggestion given to
P.W. 3 in his cross examination, as appears from
page 18 of the Paper Book and also from page 10 of
P.W. 4, page 18 of P.W. 7(informant). Some of the
appellants, like, Shailendra Singh and Ramdeo
Sigh took the plea of alibi by stating in their
respective statements under Section 313 of the
Code of Criminal Procedure that they were not
present at the place of occurrence and were at
different places when the occurrence allegedly
took place.
6. The prosecution examined in all 12
witnesses in support of the charges. P.W. 1 Jai
Prakash Pandit, P.W. 2 Vijay Kumar Pandit, P.W. 5
Sushila Devi claimed being injured in the same
incident. P.W. 2 Vijay Kumar Pandit has not been
6
named in the F.I.R. P.W. 3 Surendra Pandit, P.W.
4 Subhash Pandit, and P.W. 6 Lalti Devi were
not injured but supported the allegation in full
or in part as was done by P.W. 8 Nirmala Devi.
P.W. 7 Jagnarain Pandit is the informant of the
case. P.W.9 is Dr. Md. Afzal who held the post-
mortem examination on the dead body of Ram
Prakash Pandit and had prepared the post-mortem
examination report(Ext.2). P.W. 10 Dr. Parash Nath
Sahay had prepared Exts. 3 to 3/5 the injury
reports in respect of the injuries found on the
injured informant and his family members after
examining each of them. P. W. 11 is S.I. Lakshman
Prasad Singh who was the Officer-in-charge of
Naubatpur Police Station and who recorded the
F.I.R. on the statement of the informant and
handed over the charge of investigation to another
S.I. Ram Naresh Shukla who has not been examined.
P.W. 12 Jitendra Sharma is a co-villager and
appears an independent person who also came out
in support of the occurrence.
7. The defence has examined a solitary
witness as D.W. 1 Sanjay Kumar and his evidence is
not of much importance and consequence, inasmuch
as he has simply given the evidence of loss of
the attendance Register of appellant Shailendra
7
Singh which was required to be produced before the
learned trial Judge and stated that the same was
not available on account of being destroyed in a
fire.
8. On consideration of the evidence of the
prosecution and the defence, the learned Judge
passed the judgment in question and inflicted the
sentence as indicated in the earlier part of the
present judgment while acquitting the three
accused, namely, Bimal Singh, Dipak Ram and
Jogendra Singh.
9. Shri Rana Pratap Singh, learned Senior
counsel appearing for the appellants in all the
appeals submitted that the motive as alleged does
not appear substantiated. It was contended further
in this regard that it was so innocuous a motive
as not to be sufficient enough to impel the
accused persons to commit the offence as alleged.
It was contended that the P.Ws. appeared faltering
on the most material point and also appeared not
having made statements which they made before the
learned Trial Judge. In this regard, the attention
of the Court was drawn to paragraph 48 of the
judgment in which the learned trial Judge
discussed the contradictions allegedly brought on
record by the defence and the effect thereof on
8
the ultimate proof of the charges. It was
contended that those were vital contradictions and
they go to disprove the charges as the witnesses
appeared not making statements on the most
material part of the prosecution story. It was
contended that P.W. 1 Jay Prakash Pandit had
completely changed the manner of occurrence which
was initially stated in the F.I.R. Reference was
made in that behalf to the evidence of other
P.Ws., like, P.W. 7 in order to bring out the
change in the story. It was contended that above
all the evidence on the manner of occurrence was
not free from doubt and that was the case in
respect of all the witnesses examined by the
prosecution. Learned counsel took us through the
evidence of P.Ws, 1,2 and 7 in the above behalf
and their respective depositions recorded by the
learned trial Judge.
10. The further contention was that the
F.I.R. was lodged on 26.5.1984 and it is indicated
by the document(Ext.4) that it was dispatched to
the Magistrate on the same day, i.e., on 26.5.1984
but it was received by the office of the Chief
Judicial Magistrate on 28.5.1984 and, as such,
there were chances of weaving out the story so
as to implicating the accused persons.
9
11. The next contention was that the
story of recovery of the bullock appears absurd.
The contention was that the evidence of P.W. 7,
the informant Jay Narayan Pandit indicates as if
he had not seen anything and, as such, there is
nothing stated by him in his F.I.R. about P.W. 2
Vijay Kumar Pandit being injured or having
received any injury. It was contended in the above
connection that he has stated in his evidence that
when he came back to the Police Station he saw
other injured, like, Devendra Pandit(not examined,
Phulwa Devi(not examined), Jagarnath Pandit(not
examined) and Sushila Devi(P.W. 5) lying injured
but the F.I.R. contains the story of individual
assault on each of them and that indicates as if
the F.I.R. were a document created subsequent to
the time at which it has been shown to be lodged.
12. Learned Additional Public
Prosecutor Shri Ashwini Kumar Sinha, arguing for
the prosecution, supported the findings recorded
by the learned trial Judge and submitted that the
three witnesses, namely, P.Ws. 1,2 and 3 had
injuries on their persons along with other persons
as per the evidence of Dr. Paras Nath Sahay(P.W.
10) and the time of receiving those injuries by
those witnesses probabilises that they had been
10
injured in the same incident in course of the
same transaction and their presence at the scene
of the occurrence could not be doubted. It was
contended that the evidence was available on the
record indicating reasons for non-examination of
Jagarnath Pandit and that is quite acceptable
under the special facts of the case.
13. One of the most important aspects
of the case is that the occurrence took place on
26.5.1984 and the charges could be framed by the
trial court on 28.9.1999, i.e., after more than 15
years. On consideration of the evidence of each
witness what one could find is that on the date of
occurrence the witnesses of the case who are the
close relatives of the deceased and also of each
other were of very small age. The age of P.W. 1
has been assessed by the court as 27 years and, as
such, on the date of occurrence P.W. 1 Jay Prakash
Pandit would be aged about 12 years. Likewise,
P.W. 2 Vijay Kumar Pandit was 30 years of age on
the date of his deposition in the case and he
could be aged about 15 years on the date of
occurrence. Similarly, Surendra Pandit(P.W. 3) was
aged 40 years and was aged about 25 years of age
on the date of the occurrence. Subhash Pandit(P.W.
4) was of 35 years of age on the date his
11
deposition was recorded by the trial court and he
could be around 20 years of age on the date of the
occurrence. Likewise, P.W.5 Sushila Devi and P.W.
6 Lalti Devi were also aged about 26 years and 35
years as per their own statements and could be
aged 11 years and 20 years on the date the
occurrence took place. The only senior member of
the family was P.W. 7 Jag Narayan Pandit who was
70 years of age on the date of giving his evidence
in the case and could have been aged about 55
years on the date of the occurrence. Nirmala Devi
( P.W. 8) could be aged about 15 years on the
date of the occurrence, her age being 30 years on
the date of recording her evidence. By considering
the above dates as regards the age of the
prosecution witnesses one could find that most of
the witnesses were in their tender age on the date
on which the occurrence took place and when they
were deposing, 15 years had already elapsed in
between. Their depositions could indicate that
most of them were illiterate persons whose
capability to retain the facts of such horrendous
an incident in which one of their family members
had been killed and most of them had been injured,
would have been very slender. As such, it could
safely be said that their capabilities to
12
reproduce the facts which had occurred 15 years
back could also diminish over the years.
14. What the Court has, under the above
background, to consider is as to whether their
evidences corroborate the material parts of the
occurrence. If the witnesses are coming to depose
after such a long period of time and after about 7
years of the framing of the charges, it is
possible that their evidence may be containing
some statements which could be an addition to what
really they could have stated before the I.O. of
the case. At the same time, could not it be
another possibility that they could have missed
narrating the minor details of the incident with
precision and clarity. In the above background,
the appearance of statements in the prosecution
evidence as contradictions, appears natural and
part of the human frailty. Besides, the I.O. of
the case could not be examined. The witnesses have
stated, as may appear from the evidence of P.W,1,
in paragraph 6, P.W. 2, in paragraph 1 and P.W.
3, in paragraph 1 that the I.O. of the case was in
collusion with the accused persons and was
distorting the statements of the witnesses which
was recorded by him. P.W. 1 has stated in the
above paragraph that the I.O. had received some
13
bribe from the accused persons for destroying the
case. This is also evident from the evidence of
the above noted witnesses and other witnesses as
well that they had to go to a Magistrate for
giving their statements under Section 164 Cr.P.C.
because the I.O. was not conducting the
investigation fairly and honestly. If the I.O. of
the case was not investigating the case fairly,
properly and honestly then in that situation the
appearance of contradictions in the statements of
the witnesses, in our opinion, do not have any
effect on the veracity of the witnesses as
exhibited by the evidence.
15. The learned trial Judge has
discussed the above aspect of the matter, that is,
the appearance of contradictions in the evidence
of the witnesses, in paragraph 48 of the judgment
and has rightly rejected the contention and has
held that it was not of much consequence.
16. It may appear from the evidence of
the witnesses, like, P.W. 7 in paragraph 4 that
initially the family was residing in village
Chandaus, P.S. Bikram within the District of
Patna and migrated to the present village
Jagdishpur, when P.W. 7 was aged 13-14 years. It
is stated by P.W. 7 that it was his father who had
14
first migrated to the place of occurrence Village
Jagdishpur. The witness has further stated in the
same paragraph at pages 35 and 36 of the Paper
Book that he did not hold any landed property in
that village and had purchased the homestead land
from one Ram Bihari Sharma and erected a Jhopara
(hut) and subsequently appears to have purchased
some more part of the property from another
person, named, Baidyanath Sigh through a saledeed.
This part of the story is almost admitted. It may
appear from the evidence of the witness (P.W. 7)
in paragraph 7 that of the informant’s caste,
there were only two families, that is, P.W. 7 and
his brother Jagarnath Pandit and other residents
of the village were of other castes. The further
story of purchase has been stated by him in
paragraph 8 of his evidence. It is indicated by
the evidence on record including the evidence of
P.W. 12 that some part of the property had been
purchased by accused Ramcharan Singh and some
part by P.W. 7 and his brother Jagarnath Pandit.
It is indicated further by P.W. 1 and others that
after purchasing the land they had constructed
their residential house, cattle shed and were also
utilizing it for carrying on their caste
profession of pottery. At a particular part of
15
that land they had erected a Jhopari which was
being used by the prosecution party as a Baithaka
and they used it as a place of relaxation either
by sitting on cots or sleeping there. The motive
is that the prosecution witnesses, who were
potters, used to sit in the Jhopari which was in
front of the house of the accused persons who are
Bhumihars, ( P.W.7, Paragraph 17) a high caste
people, which used to cause heartburn and envy in
their minds and they had earlier objected to the
prosecution witnesses about the sitting on cots in
the Jhopari in their presence in front of their
residential house.
17. We have a society comprised by various
castes which are engaged in different vocations.
In spite of the principle of equality and equal
protection of law enshrined in our system of
democracy besides a time tasted legal mechanism to
regulate our acts and behaviour towards our
brethren in society, the fact remains that we
still are not free from grudges and biases which
we carry in our hearts as per our belief and
social upbringing for other fellow countrymen
who are lowly placed or are treated as low-caste-
people. It is still a reality that many in the
villages of our country carry a conceit for them
16
and do not like such persons who belong to the so-
called low castes to enjoy decent life. This has
been causing some sort of consternation in the
hearts of such people, and further, they are
often found indulging in violent acts only because
they could not accept the parity the people
belonging to the unprivileged lot draw with other
people who take pride in treating themselves as
privileged persons of so-called high castes. This
is the reason that there are often reports from
any corner of our country of killing of persons
of the downtrodden class of the society and, as
such, it does not appear unusual that the accused
persons had been nursing a grudge and dislike in
their minds and were not accepting that the people
of the exploited and unprivileged lot were sitting
on cots in their Jhopari in front of the house of
the appellants in their sight or presence. I do
not have any hesitation in accepting the motive. I
find in the light of the evidence on record of
P.W. 4 para 3, P.W. 7 paras 2 and 17 that the
accused persons were feeling uneasy and were not
digesting the parity the prosecution witnesses
were drawing with them by enjoying the privilege
of sitting on cots and, as such, they had been
17
impelled by their prejudicial thought to teach the
prosecution party a lesson.
18. As regards the manner of
occurrence, some of the witnesses examined in the
case are injured. This appears indicated by the
evidence of P.W. 10 who has stated that he had
examined six injured persons who were brought
before him on 26.5.1984 at different hours of
time. On perusal of the evidence of P.W. 10, it is
found that he had found as many as 10 gun-shot-
injuries on Jagarnath Pandit( not examined), the
father of Jay Prakash Pandit P.W. 1 and the
deceased Ram prakash Pandit and those injuries had
been caused by firearms and were dangerous to
life. P.W. 10 has not stated as to when the
injuries could have been caused but after looking
to Ext. 3 which is the injury report issued by
P.W. 10 in respect of Jagarnath Pandit, it is
indicated that the injuries could be caused in
between 2 to 4 hours of his examination.
Similarly, P.W. 10 examined Jay Prakash Pandit
(P.W. 1) and found three pellet injuries on his
right upper arm, on deltoid region, and an
abrasion measuring ½”X 1/10″ on his right foot.
Injury no. 1 was grievous and 2 was simple in
nature. The very discussion of injury no.1
18
indicates that on account of being pellet injury
it could have been caused by a firearm and within
2 to 4 hours of examination of P.W. 1. Smt. Phulo
Devi, another injured was examined by P.W. 10 and
he recorded pellet injuries quite good in number
on her person and those were also caused by
firearms, as may appear from Ext. 3/2 within 2 to
4 hours of the examination of the lady. Likewise,
P.W. 2 Vijay Kumar Pandit was examined by P.W. 10
and two pellet wounds on left side and upper part
of the chest were found which were caused by
firearms and it is indicated by Ext. 3/3 that
those injuries were caused within 6 to 12 hours of
the examination of the witness. P.W. 5 Sushila
Devi had two pellet injuries on her upper calf
caused by firearm and Ext. 3/4 indicates that it
was also caused within 2 to 4 hours of the
examination of the witness. Another injured
Devendra Pandit(not examined)had a total number of
four pellet injuries described under three
distinct heads by P.W. 10 and those were caused by
firearm, within 2 to 4 hours of his examination.
19. The witnesses who have come forward in
support of the prosecution story have all stated
that after having shot and killed Ram Prakash
Pandit, the accused persons caused injuries to
19
p.W. 1 Jay Prakash Pandit and P.W. 2,Vijay Kumar
Pandit. Accused persons entered into the house and
fired indiscriminately causing injuries to other
witnesses including the lady-P.Ws.. The injuries,
as indicated above, were found caused within the
time which probabilities the story as also the
same being caused simultaneously during the
course of the incident. Thus, the presence of
P.Ws. 1, 2 and 5 and others who were injured
could not be doubted. They were injured. They did
not have any reason to falsely implicate the
accused persons or to replace the real culprits by
the appellants. The manner of occurrence as stated
by the above witnesses is also consistent. The
witnesses examined have stated as to how the
accused persons came and killed Ram Prakash Pandit
and caused injuries to them and other persons of
their family. The evidence of P.W. 9 Dr. Afzal who
held post-mortem examination on the dead body of
Ram Prakash Pandit indicates that more than one
shot were fired at him and his death was caused on
that account. The witnesses, P.Ws 1 to 4 and 7,
have all stated that appellant Ram Charan fired
one shot followed by another shot, when appellant
Shailendra Singh stated that he was still alive
and thereon appellant Ramcharan Singh fired the
20
second shot killing the deceased. Likewise, the
injured witnesses who have been examined in the
case, gave a consistent story about the manner as
to how they received injuries and at whose hands.
20. The non-examination of Jagarnath Pandit,
one of the injured witnesses, was highlighted by
Sri Singh, the learned senior Counsel for the
appellants. It was contended that, he being the
father of the deceased and injured P.Ws. 1 and 2,
was withheld by the prosecution. It could really
be a matter of enquiry for the court as to why the
above named witness was not produced and examined,
when the prosecution story indicated that he was
among the first few persons, who had been hit,
and who as per the evidence on acquisition of land
as given by some of them including P.W. 7, could
have been the most material witness. Is there any
explanation for non-examination of Jagarnath
Pandit?
21. Though the learned trial Judge has not
placed reliance on the evidence of P.W.12
Jeetendra Sharma, as regards the occurrence, I
feel that his evidence on some aspects of the case
could be utilized as the defence did not challenge
those statements of P.W.12 and, rather, appears
introducing those facts through cross-examining
21
the witness. P.W. 12 was cross-examined on the
genealogy of the vendor of the land to the
informant and Jagarnath Pandit and the acquisition
of the land by the prosecution side. The state of
health of Jagarnath was stated to by P.W. 12 in
his examination-in-chief in paragraph 1. He was
cross-examined on this fact in paragraph 8,
wherein the witness was indicating his lack of
knowledge about Jagarnath Pandit being treated
for insanity. The witness stated in his
examination-in-chief that after the death of his
son, that’s, the deceased, Jagarnath had become
mentally ill. There was no challenge even by a
suggestion to P.W.12 that his above statement was
false. Thus, it could safely be held that the
reason for the non-examination of Jagarnath Pandit
may not be false rather the explanation appears
on record for his non-production in court.
22. All the witnesses examined in the
case by the prosecution are related by blood among
each other as also to the deceased. P.W.7, the
informant of the case, is none else than the
uncle of the deceased and father of P.W. 4 Subhash
Pandit. P.W. 6 Lalti Devi is the wife of P.W. 4
Subhash Pandit. P.W. 1 Jai Prakash Pandit, P.W. 2
Vijay Kumar Pandit and P.W. 3 Surendra Pandit are
22
sons of Jagarnath Pandit and brothers of deceased
Ram Prakash Pandit. The lady witnesses are the
wives of the witnesses who are either the sons or
nephews of the informant P.W.7 and Jagarnath
Pandit. Thus, their interestedness could be
inferred not because they are related to each
other by blood, but because they had an interest
in the result of the present case also as they
could be impelled by an urge within them to see
that the accused persons were convicted and
sentenced. This situation of interestedness is not
sufficient in itself to reject their evidence in
its entirety rather the Court is required to
appreciate their evidence with care and caution
and to search for some such features in the
evidence which could stand them out as truthful
witnesses. There could be many parameters for
evaluating the value of the evidence of the
interested witnesses and holding them truthful or
untruthful. Being injured makes their presence
probable; which never makes them truthful
witnesses. Truthfulness of evidence of a
particular witness has always to be judged on
other parameters, like, the very facts narrated by
the witness, could render him untruthful or some
other circumstances appearing from his evidence in
23
that behalf, like implicating a man who could
never have been implicated under any circumstance
and that too for a graver charge. The other
circumstances could be that the witness has taken
a complete u-turn to come up with a completely
new story which could be different from the basic
prosecution version or whose evidence does not
inspire the confidence of the Court. A witness
whose presence is doubted by the court, could also
be an untruthful witness. These are some of the
illustrative circumstances which could not be
exhaustive.
23. Keeping the above in mind and
reading the evidence with care and caution, what
has struck me the most to hold the witnesses as
truthful was that the witnesses have not claimed
themselves to be the witnesses to the whole of
the occurrence. If one could carefully consider
the evidence of P.Ws. 1, 2 ,3 and 4 and others
except P.W. 7, what one may find could be that
they did not appear to claim that they had seen
the entire occurrence. This could not come out
clearly unless one is very much alert in reading
the evidence. One could find that they had claimed
themselves to be the witnesses to the occurrence
which had taken place outside the lady section of
24
the house and at the darwaja and its sahan where
the deceased was cutting tiles or P.W. 3 Surendra
Pandit was making rope or any third man, like,
Jagarnath Pandit(not examined) was preparing soil
for making the tiles. They have honestly stated
that after having shot and killed the deceased Ram
Prakash Pandit and having injured Surendra Pandit
and Jagarnath Pandit, the accused persons entered
inside the lady section of the house and injured
the lady witnesses and Jagarnath Pandit( not
examined) as also Devendra Pandit. These
witnesses have consistently narrated the same
sequence except for the minor aberrations here and
there, like, P.W. 1 having introduced the fact
that he was hit and injured by Shailendra Singh,
whereas, in the F.I.R. the informant stated that
it was accused Ramcharan who had injured him.
Similarly, at page 33 of the Paper Book, P.W. 7
has introduced a story of P.W. 2 being fired at
and injured outside the house whereas P.W. 2 Vijay
Kumar Pandit claimed that he was injured when he
was inside the house. These are very minor
omissions or aberrations. As already pointed out
earlier in the present judgment, the witnesses
were narrating the incident after 15 years of the
occurrence and, as such, they might be faltering
25
on the details of such an incident where as many
as six persons were injured and the seventh was
killed. The incident, as it occurred, and the
manner in which the witnesses were being targeted
by a group of armed persons must have made them to
run for their lives. The honesty of the witnesses
could further be gathered from one evidence of
Lalti Devi who stated that when she saw her
family members being shot at and hit she was
frightened and closeted herself inside the room
and when the firing had died down, she came out
of the room and found her family members lying
injured. Similarly, P.W.8 Nirmala Devi in
paragraph 4 of her cross examination has stated
that while she was returning after attending to
the call of nature and was in a Gali just near
the outer section of her house, she heard the
sounds of firing and found that the injured
persons were writhing in pain. These features in
the evidence of the witnesses make them reliable
inasmuch as if they were to create any story, they
could have created it by stating that some of them
were inside the house and saw the occurrence and
could very well have stated that he or she was hit
inside it. But they have not brought in any such
improvement which could be unnatural. They appear
26
coming with clear facts which describes the
occurrence as seen individually by them. They
might be appearing to the learned defence counsel
faltering on some material points, but I find them
trustworthy witnesses and their evidence
acceptable. The above discussions of evidence
takes care of the contention that the witnesses
were making contradictory statements on the manner
of occurrence. I have pointed out a couple of
aberrations in the evidence of P.Ws. 1 and 7 and
having gone through the evidence of the witnesses,
I find a consistency and a ring of truth in it
and their evidence inspiring confidence.
24. The contention was that the F.I.R.
was lodged on 26.5.1984 and the Chief Judicial
Magistrate received the copy of the same on
28.5.1984 and, as such, there was every chance of
weaving out a false story so as to implicating the
innocent persons. There does not appear any reason
to accept the contention inasmuch as the
background of the witnesses is such that they
could not have influenced things in their favour.
They are poor potters who are generally found
belonging to the lowest level of the society,
economically. They were share-croppers, having no
landed properties of their own(P.W.3, paragraph
27
3). They live their lives everywhere in this
State by creating pots and selling them all
around. They are the congenial lot, peacefully
pursuing their vocation. The witnesses have stated
as to how the investigating Officer of the case
was distorting facts by not recording them truly
and was creating records so as to destroying the
case. I have discussed it in the earlier part of
the judgment. The accused persons, I find, are
wealthy persons having licensed arms and belonged
to a community( as per P.W. 7 Paragraph 17) which
is known for its might. It still continues to be
some part of our social realities that the
wealthy, the mighty and the influential are
getting investigation and even prosecution
influenced for their benefit. The Investigating
Officer was not produced and the Officer who
was examined in the case was not cross-examined
on the reasons as to why the F.I.R. was received
late by the Chief Judicial Magistrate. The
Investigating Officer could have been the real
person to explain the delay. It could not be on
account of the witnesses or the informant who
could not be accountable for dispatch or receipt
of the copy of the F.I.R. It could be the Police
Officer, like the Officer-in-charge of the police
28
Station or the Investigating officer who could be
accountable for it and if the I.O. of the case or
the Officer-in-charge of the Police Station were
acting under the influence of the accused persons,
as appears the case from the evidence of the
witnesses, then the accused persons could not be
allowed to derive advantage out of such lapses.
25. The contention was that the story of
taking away an ox and its recovery was absurd. The
evidence on record indicates that it was the
villagers who protested to the accused persons
that having caused the murder of his family
member, they could not be as cruel as to moving
the property of the informant as well(P.W.4,
Paragraph-1). The manner in which the house of the
informant was ransacked and a member of his
family was killed and many injured, there could
not be any absurdity merely because the recovery
memo was not prepared by the Investigating
Officer. Besides, the defence also appears not
denying that the ox was attempted to be taken
away; what they say is that the act was done by
some thieves in the night and when the informant
and his family members resisted them the firing
was done and while Ram Prakash was killed, others
were injured. The defence version appears not
29
acceptable and probable because, the Doctors who
either held the post-mortem examination or
examined the injured have given the time of death
or injuries and that overrules the time suggested
by the defence to P.W. 7 in Paragraph 18.
26. Shri Singh, learned Senior counsel
for the appellants, was arguing that if at all the
accused persons had any grievance or dislike for
the informant and his family members for erecting
the Jhopari and sitting there on cots, they could
have very well objected to the very erection of
the jhopari on the day it was done. Why after so
many years the accused persons could vandalize
it. It could be very difficult for the Court to
answer the argument of the learned Senior counsel
merely for the reason, that it could be very
difficult for anyone to say as to what was moving
in others minds and hearts. An accused could
better know as to why they did not do any act on a
particular day or prior to the day, they really
did it. The reasons for doing or not doing the
act, as complained of, could best be known to the
accused persons because this could be relatable to
their mental state.
27. On consideration of the evidence on
record, I find that the judgment and order of
30
conviction were properly passed under the evidence
on the record. There does not appear any
illegality in appreciation of the evidence and
arriving at the findings. The conviction appears
properly recorded. The sentences also appear
proper.
28. In the result, the three appeals
are found to be of no merit and the same are
dismissed. Appellants Kishundeo Singh, Ramdeo
Singh and Shailendra Singh are on bail. They
shall surrender to their bonds in the court
below, as their bonds are cancelled, to serve
out their sentence with appellant Ramcharan
Singh who is already in custody.
( Dharnidhar Jha,J.)
Shiva Kirti Singh J.- I agree.
(Shiva Kirti Singh, J.)
Patna High Court,
The 16 October,2008
Kanth/ A.F.R.
