JUDGMENT
Ram Naresh Thakur, J.
1. This reference has been made by the 3rd Additional Sessions Judge, Munger for confirmation of the death sentence awarded to the condemned prisoner by his Judgment and order dated the 4th Oct., 1986. The condemned prisoner has also preferred criminal Appeal No. 528 of 1986 against the order of his conviction and sentence. Both the reference and the appeal have been heard together with the consent of the parties and for their convenience and they are being disposed of by this common judgment for the sake of brevity the condemned prisoner will be referred to as the appellant in this judgment
2. The appellant has been found guilty for the offence as under Sections 302 and 307 of the Indian Penal Code and Section 25 (a) of the Arms Act. He has been sentenced to death for the offence under Section 302 but no separate sentence has been awarded for the offences under Section 307 of the Indian Penal Code and Section 25 (a) of the Arras Act.
3. The prosecution case leading to this reference and the appeal is that on 5th November, 1980, at about 5.30 A.M. deceased Ramdas Mandal of village Bariarpur, Police Station Surajgarh, district Munger, was going to catch the coolie train to join his duty. He had a tiffin carrier in his hand. As soon as he came out of his room, this appellant fired his gun at him due to which he fell down Thereafter, the appellant along with his father Kitar Mandal and brother Sheonandan Mandal came in front of the main door of the house of Ramdas and the appellant fired several rounds due to which the daughter of deceased Ramdas, Manju Kumari (P. W. 5), Indo Kumari (deceased), Satyabhama Devi (P. W. 3), Jasoda Devi (P.W. 4) and Shea Narain Mandal also received injuries. It may be stated that the aforesaid person, according to the fardbeyan (Exhibit 3) had come to save Ramdas Mandat. Lakhan Mandal was also injured by the gun-shot due to which he died in the Gali, Indo Kumari subsequently died in the hospital. After the occurrence, the appellant, his father and brother fled away. The motive alleged for this occurrence is old enmity. It is said that there was some quarrel some months before the occurrence in which deceased Ramdas had given a farsa blow on the appellant and due to this the appellant committed this offence.
4. After the occurrence, the injured persons along with the dead bodies were taken to Ghosaith hospital where P. W. 19 recorded the statement of P. W. 13 Dukhi Mandal, which is Exhibit 3, on the basis of which a formal first information report (Exhibit 8) was drawn up. P. W. 19 took up the investigation. After completing investigation, P. W. 21 submitted charge sheet against the appellant, his father and brother, who were ultimately put on trial.
5. In the trying court as many as 22 witnesses were examined on behalf of the prosecution. The appellant pleaded his innocence and he has also pleaded alibi. According to the appellant’s case, during the relevant period, the appellant was a constable in the Border Security Force and was on duty on the day of occurrence at Maushampur. Two witnesses besides documentary evidence, were also examined on behalf of the appellant to prove his alibi.
6. The learned trying court acquitted the other two accused persons and convicted this appellant, as stated above, and his plea of alibi was not accepted.
7. Learned counsel appearing for the appellant has challenged the order of conviction of the appellant on the following grounds:
(i) No independent witness has come to support the prosecution version of the occurrence.
(ii) The prosecution witnesses are not straight forward and truthful
(iii) The prosecution has not given the correct time of occurrence.
(iv) The investigating officer did not investigate the case impartially and properly. (v) The trying court has wrongly rejected the evidence of alibi.
8. Exhibit 3 is the earliest statement of the occurrence according to which, on 5th November, 1980, at about 5.30 A. M. as soon as deceased Ramdas came out of his house to catch the coolie train, Kitar Mandal armed with farsa, Sbeonandan Mandal armed with bhala and Vakil Mandal (the appellant) armed with gun, all of a sudden, came at the darwaja of the deceased and appellant Vakil fired his gun at Ramdas due to which Ramdas fell down. Lakhan Mandal (deceased) Shea Narain Mandal (P. W. 2), Manju Kumari (P. W. 5), Indu Kumari (deceased), Satyabhama Devi (P. W. 3), Jasoda Devi (P. W. 4), and Chandrakala Devi (P. W. 7) rushed to save Ramdas Mandal. Vakil Mandal then fired three rounds due to which Lakhan Mandal, Sheo Narain Mandal, Manju Kumari, Indu Kumari, Satyabhama Devi and Jasoda Devi received gun shot injuries. On hulla, Bhilao Mandal, Nandan Mandal (P. W. 10), Ramcharitra Mandal, Sharan Mandal, Kallu Mandal and others came to the place of occurrence. Thereafter, the three accused persons ran away towards mountain side.
9. The informant (P. W. 13) has stated in court that on the day and time of occurrence he was sleeping in his house. On hulla raised by the ladies of the house of Ramdas Mandal, he woke up, came to the darwaja and found this appellant armed with a gun, Kitar Mandal armed with farsa and Sheonandan Mandal with bhala at the exit of the darwaja of Ramdas Mandal and Vakil was firing from his gun due to which Lakhan and Sheo Narain received injuries in the gali. He saw Ramdas lying dead in the angan. Indu, Yasoda, Manju, Satyabhama and Chandrakala also received injuries. After firing, the appellant along with his associates fled away.
10. P. W. 2 Sheo Narain Mandal is one of the injured. At the time of occurrence he had gone on the roof of his house to bring fodder to feed cattle. At that very time he heard one firing which could hit Ramdas in angan. Thereafter he has said that since Ramdas was weeping he could know that be had received gun-shot injury. He ran to save Ramdas. In the mean time, appellant Vakil armed with gun, along with his father Kitar Mandal with farsa and his brother Sheonandan Mandal with bhala, came to his darwaja and, thereafter, Vakil started firing due to which he also received injury. In the angan of Ramdas, Satyabhamu, Yasoda, Manju and Indu also received gun-shot injuries. Lakhan Mandal also received gun-shot injury and he died. Indu died in the hospital three to. four days thereafter. According to him, Lakhan Mandal received injuries in the gali.
11. P. W. 3 Satyabhattia Devi saw Ramdas injured in his angan. She (sic) there to save him. Indu, Manju and Jasoda also came to lift Ramdas. Thereafter, this appellant along with his father and brother came at the door of the darwaja and the appellant started firing due to which Maoju, Indu, Jasoda and she herself received injuries. Her husband Sheo Narain also received injuries and Lakhan Mandal died in the gali due to gun shot injuries. The informant is the brother of her husband.
12. P. W. 4 is Jashoda Devi. She was, at the time of occurrence, in her angan. According to her, the gun-fire which could hit deceased Ramdas was shot from the roof of the house of Vakil Mandal and Ramdas received injuries in his angan. She has further said that she saw the appellant standing on the roof of his house with gun and he fired from his roof. She along with Manju, Satyabbama and Indu went to catch Ramdas to save him and this appellant came at the darwaja of the angan and started firing due to which she received injuries.
13. If the evidence given by the injured witnesses in court is compared with the statement made by P. W. 13 in the fardbeyan (Exhibit 3) it will be evident that the prosecution has changed the manner of occurrence in the court. According to the fardbeyan, which is the earliest version, this appellant along with his father and brother came at the darwaja of Ramdas all of a sudden and fired at him. Ramdas had just came out of his house to catch the coolie train and when Lakhan Mandal, Sheo Narain, Manju, Indu, Satyabhama, Jasoda and Chandrakala went to save Ramdas, they were also assaulted by gun-shot by the appellant. But, according to the evidence in court, as stated above, the appellant first fired from the roof of his house due to which Ramdas received injuries and thereafter he along with his father and brother came at the door of his darwaja and fired three rounds. According to the evidence in court, Lakhan and Sheo Narain received injuries in the gali and the ladies received injuries in the angan. But, as stated above, according to the fardbeyan, all the injured persons received injuries almost at the place where Ramdas was lying injured,
14. P. W. 14 is the doctor who conducted the post-mortem examination on the dead body of Ramdas on 5th November, 1980, at 5. P. M. and found the following injuries on his person:
(i) Eight circular lacerated wounds with inverted margins on the back of the chest on the right side, each half inch in diameter into chest cavity deep. These were wounds of entries
(ii) Lacerated wound on the back of left wrist 1″ x 1/1″ x skin deep with charred margins.
(iii) One circular lacerated wound with inverted margins 1/2″ in diameter on the back of the chest on the left side This was wound of entry.
(iv) Six circular lacerated wounds with inverted margins on the front of the right side of the chest 1/4″ in diameter These were wounds of exit.
(v) Two pellets were lying just below the skin on the front of the right side of the chest.
(vi) One pellet was lying below the skin on the front of the left side of the chest in the fifth left intercostal space.
According to the doctor, all the injuries were ante-mortem, caused by firearm and time elapsed since depth was within twelve hours of the postmortem examination.
15. On the same day at about 8.30 P. M. this very witness (P. W. 14) conducted the post-mortem examination on the dead body of Lakhan Mandal and found the following ante-mortem injuries on his person:
(i) One circular lacerated wound with interested margins on the right side of the chest 1/2″ x 1/2″ x chest cavity, cavity deep.
(ii) Three circular wounds with inverted margins on the right lateral aspect of the chest 1/2″ x 1/2,’ x chest cavity deep.
(iii) One circular wound with inverted margins on the medial aspect of the right lower thigh 1/2″ x 1/2″. This was wound of entry.
(iv) One circular wound with inverted (i. e. margins towards outside) margin on the outer aspect of the right lower thigh 3/4″ x 1/2″. This was wound of exit.
On dissection the wound was found passing below the skin.
(v) One circular wound with inverted margin below left axila 3/4″ x 1/2″ x chest cavity deep This was wound of exit.
(vi) One lacerated wound below left knee 1/2″ x 1/2″ x muscle deep. This was wound of entry. One pellet was removed from the back of upper part of the left leg, lying just below the skin.
(vii) One lacerated wound with inverted margin on the front of the left upper arm 1/2″ x 1/2″ x muscle deep. One pellet was removed from the outer aspect of the left upper arm below left shoulder.
(viii) Two lacerated wounds below the right elbow 1 1/2″ x 1/2″ x skin deep. A tag of skin was present between the two wounds.
(ix) One lacerated wound over back of the left elbow 1″ x 1/2″ x skin deep. On dissection blood and blood clots were found present in the thorasic and abdominal cavity.
In his opinion, the injuries were caused by fire-arm and time elapsed since death was within twelve hours of the post-mortem examination.
16. The doctor (P. W. 14) has stated that he found some injuries on the front and some on the back side of the body of deceased Ramdas. According to him injuries no (i , (ii) and (iii) on the person of Ramdas were caused from back side He did not find any oval or slanting injuries on his body. His evidence further discloses that Lakhan Mandal also received injuries both from front and back sides. According to the fardbeyanas soon as Ramdas came out of his house, this appellant came and fired at him due to which he received injuries and fell down. Not a word has been mentioned in the fardbeyan that Ramdas received injuries from back. Of course, according to the evidence of the informant (P.W. 13) in court, he does not claim to be an eye witness of the murder of Ramdas but he did not say so in the fardbeyan which is the earliest statement. Similarly, it does not stand to reason as to how Lakhan Mandal received injuries from front us well as from back side.
17. The doctor (P. W. 14) found undigested rice in the stomach of Ramdas Mandal and Lakhan Mandal. The large intestine contained stool and gas Similarly, the small intestine contained unfinished stool and gas. Similar was the condition of Lakhan Mandal. As stated above, according to the prosecution case, Ramdas was going to catch the tram to join his duty. It was morning hour. Ramdas had also tiffin carrier in his hand which contained some foodstuff. In that situation how stool and gas were found in the stomach of the deceased persons ? It is also surprising that when Ramdas and Lakhan were killed at 5.30 A M. how undigested rice was found in their stomach ? These findings of the doctor (P. W. 14) do not fit in with the manner of occurrence as alleged by the prosecution because it is but natural that the deceased Ramdas must have attended the call of nature before he started for his duty.
18. According to P. W. 13, about a year before this occurrence, there was some quarrel in between the appellant and Ramdas Mandal over irrigating paddy crop in which Ramdas has assaulted Vakil with farsa for which a case was instituted. In cross-examination P. W. 13 has admitted that for the aforesaid occurrence both parties had instituted cases but no witness was examined on behalf of Vakil in that case due to which Ramdas was acquitted. He has further stated that there was also some other quarrel in between the family members of this appellant on the one hand and Ramdas on the other but on the day of the second quarrel Vakil was on his duty and was not at his house and for that there was no case. Lakhan Mandal admittedly was living in a different house, There is nothing on the record to show that Lakhan had any enmity with the appellant. Therefore, the motive alleged by the prosecution is not such which might have compelled the appellant to come from his duty and to commit such heinous crime without any immediate provocation.
19. It has been admitted by the prosecution witnesses that Sukhdeo Yadav and Sogia of their village were killed before this occurrence. It has been further admitted by the informant that Sukhdeo Yadav was a criminal It has been suggested to the witnesses on behalf of the defence that the members of the gang of Sukhdeo Yadav. having suspicion that the deceased persons had got Sukhdeo and Sonia killed, committed the murders of the present case in relation.
20. The evidence of the prosecution witnesses also do not inspire confidence From the fardbeyan (Exhibit 3) the informant (P. W. 13) appears to be full-fledged eye witness of the entire occurrence but the informant has stated in court that he did not see Ramdas being assaulted or any members of his family being assaulted. In paragraph 15 he has said that he did not see Ramdas receiving gun shot injures. Then again in paragraph 20 he has said “Unke ghar ke logon ko goli lagte apne aankh se nahi dekha” P. W. 2 is the brother of Dukhi Mandal, the informant. According to his evidence Teka Mandal had two sons, Natho and Dorib. Dorik had two sons Sheo Narain (P. W. 2) and Dukhi (P. W. 13). Natho alias Nathuni had four sons, Satya Narain, Ramdas and two other brothers with whom we are not concerned. P. W. 4 is the wife of Satya Narain. P. W. 11 is the daughter of Ramdas, the deceased. P. W. 5 is another daughter of Ramdas and deceased Indu Kumari was also a daughter of deceased Ramdas. Chandrakala is the wife of Ramdas From the evidence of P. W. 2 it would appear that the acquitted accused Sheonandan is the brother and Kitar is the father of the appellant. It has come in his evidence that the house and angan of Ramdas is in south of the house of the appellant and the height of thereof of the house of the appellant is about five to seven cubits from the ground. He did not know whether this appellant is serving in Border Security Force since about 15 to 16 years.
21. P. W. 3 is Satyabhama Devi wife of P. W. 2. She was also injured. She has said in cross-examination that Ramdas was not at all related to her. Then in further cross-examination she has said “Tola paros ke haisiat se bhaisur lagte the mere pati aur Ramdas upar me gotin lagenge ya nahin yah nahi maloora”. Dorik was her father in -law and Natho was brother of Dorik. But she did not remember whether Ramdas was the son of aforesaid Natho Mandal. From the evidence of P. W. 2 it is quite clear that Ramdas and Sheo Narain are first cousin but still P. W. 3 did not remember this fact. From this it would appear that she is a witness who can go to speak lie to any extent.
22. P. W. 4 is the wife of Satya Narain, brother of deceased Ramdas. She has also said in cross-examination-Sheo Narain Mandal aur Ramdas Mandal aapas me koi nahi lagte, dono gotia ya kutumb nahi hain, Koi sambandh aapas me nahi hai”. The aforesaid statement of this witness also demonstrates what type of witness she is. She has tried to conceal the relationship with the deceased which establishes her jealousness. P. W. 5, though admitted in examination-in-chief that Lakhan and Sheo Narain also received injuries, in cross-examination in paragraph 11 she has admitted that she did not see Sheo Narain and Lakhan receiving gun shot injuries. She has deposed that she learnt that they had also received gun shot injuries. She also has denied to know whether Dorik was full brother of Natho. She has admitted that Vakil is serving in military. She did not see Vakil in the village one day prior to the occurrence nor could she see him after the occurrence.
23. P. W. 6 is Kanahshwari Mandal son of Natho Mandal and he is a formal witness P. W. 7 is Chandrakala Devi. She saw this appellant along with his associates only running away and found Ramdas lying dead. Her husband is full brother of Sheo Narain Mandal. P. W. 8 is mother of Ramdas. She also saw this appellant along with two others (the acquitted accused persons) going away. She did not see the occurrence. P. W. 9 is a witness of inquest and Natho was his grand-father. Then, on recall, he stated that he saw the appellant along with two other accused persons (since acquitted) running away. He did not remember whether he had stated before the police what he had stated in the court. He also admitted that he did not see Vakil in the village before the occurrence.
24. P. W. 10 is Nandan Mandal. He claims to be an eye witness. He has admitted in cross-examination that one Nathuni had brought a case against Kitar Mandal (father of this appellant) before this occurrence and in that case he (P. W 10) was a witness for Nathuni against the accused. His house is at a distance of 300 yards from the place of occurrence. He has admitted that in the hospital he met the Sub-Inspector of Police but he did not state anything about the occurrence to him then and one day after the occurrence he was examined by the police. He did not see the appellant in the village before the occurrence.
25. P. W. 11 is the wife of deceased Ramdas. She is also an eye witness of the occurrence. She had come out of her house along with her husband According to her, her husband was killed from the roof of the house. Her angan (courtyard) is open and is not surrounded by walls. Then she has further admitted that there is a door in between her angan and gali. In further cross-examination she has admitted that the outer door is on the wall which is of the height of 8 to 9 cubits and that is the only door through which one can enter into her house The gali, according to her, is not visible from her angan. Then she has said that she did not see Sheo Narain and Lakhan being assaulted.
26. P. W. 12 is the mother of Lakhan Mandal. Her house and the house of Ramdas are quite face to face. She is also an eye witness. Before the occurrence she had also not seen the appellant in the village. P. W. i3, as said above, is the informant and P. W. 14 is the doctor.
27. P. W. 15 is Sohag Devi wife of deceased Lakhan Mandal. She was informed by her mother-in-law about the occurrence. P. W. 16 is the doctor who had conducted the post-mortem examination on the dead body of Indu Kumari and P. W. 17 is another doctor who had examined Yasoda Devi, Manju Kumari and Satyabhama Devi. He found one lacerated wound on Satya Narain caused by hard blunt substance. P. W. 18 is yet another doctor who held post-mortem examination on a he go at and P. W. 19 is the investigating officer,
28. P. W. 19 inspected the place of occurrence and found that there is a single storeyed pucca building quite adjacent north of the house of Ramdas. The main exit door of Ramdas’s house faces south and in front of the darwaja there is a gali which runs from east to west. Deceased Lakhan Mandal had his house just in the south of the gali, facing north. At the place of occurrence he found seven wads of 12 bore gun. Two L. G. cartridges were also found there. He found blood stains in the angan and in the gali. He got a tiffin carrier in the angan of Ramdas which was damaged by gun shot. He seized the tiffin carrier and blood stained earth. This witness does not appear to be straight-forward. Even the prosecution does not rely on him nor does the defence rely on his evidence. He is not consistent in his evidence. From a perusal of his evidence in his examination-in-chief it would appear that he found the dead bodies of Ramdas and Lakhan in the hospital and then again, he has said that he found the dead bodies at the place of occurrence. In cross-examination he has admitted. “Lash ko aur jakhmi ko ghatna asthal par dekhne ka beyan kalha galat fahtni se ho gaya.” He did not send the blood stains for chemical examination for the reason-“Isliye nahi bheja ki clear case of murder tha, isse bhejna awasyak nahi samjhi”. The Deputy Superintendent of Police, in course of his supervision, had asked him to send the blood stains for chemical examination but still he did not send the same. He did not find any pellet or any mark of pellet or any of the walls of the houses of Ramdas, Lakhan and Sheo Narain. In course of investigation he could know that the appellant was in Border Security Force but he did not verify the alibi of this appellant even though he was directed by the Deputy Superintendent of Police to do so, the reason being that there was problem of Naxalites. He got the order of the Deputy Superintendent of Police for verification of the alibi on 15th December, 1982, and he handed over charge on 26th July, 1983, but still within this six months, he could not get time to verify the alibi. He did not make any enquiry as to whom the he-goat belonged. He found the dead he-goat at the place of occurrence. He did not find any rice, Dal or vegetable at the place of occurrence. He did not mention in the case diary that the tiffin carrier contained food. He did not also mention in the case diary as to what was the height of the house of the appellant. He also did not measure the distance from the place where Ramdas was alleged to have fallen to the place from where he was shot at. The investigating officer has stated that he recorded the statement of Indu Kumari in the hospital and at that time other family members were also there.
29. After careful consideration of the entire evidence of P. W. 19, I find that he did not investigate the case properly.
30. The fact that Ramdas Mandal, Lakhan Mandal and Indu Kumari died of gun shot injuries is well proved. Similarly, there is no doubt about the fact that other witnesses also received injuries. On behalf of the appellant also these facts have not been challenged before this Court. But the question which remains to be considered is as to whether the aforesaid three deceased and the other injured witnesses received injuries in the manner as alleged by the prosecution. In the present case no independent witnesses have been examined. Almost all village witnesses are family members except P. W. 10 who has also admitted that he was a witness for Nathuni Mandal in a criminal case filed against Kitar Mandal, the father of the appellant, before this case. There is no evidence to show that the village is divided into two groups. Some witnesses named in the fardbeyan (Exhibit 3) have not been examined for which P. W. 13 has given an explanation to the effect that Ramchariter Mandal, Shrilal Manaal, Kallu Mandal, Sharan Mendal and Chandrika Singh had been threatened by the appellant and that is why they did not come to give evidence. But in cross-examination he has admitted that he did not remember the day or month when the aforesaid witnesses were threatened. He did not file any petition for the aforesaid threat before the court below though witnesses were threatened in his presence. He did not even inform the Gram Panchayat about it. Therefore, the explanation does not appear to be plausible. Even the injured witnesses do not appear to be straight forward. Some of them, as discussed earlier, have tried to conceal even the relationship inter se between them which goes to show how jealous they are. Taking into consideration all the aforesaid facts and the circumstances appearing in the case, I find that the prosecution has failed to prove the manner of occurrence.
31. Even the motive as said by the prosecution for the present occurrence does not appear to be sufficient to compel the appellant to commit this crime. The Marpit had taken place about a year before the occurrence. Even the cases had ended. Nothing happened in between the appellant and the deceased persons either on the day of occurrence or soon before.
32. Admittedly, the appellant was employed in Border Security Force and according to the fardbeyan (Exhibit 3) he came in the preceding night itself and he was not found after the occurrence. The investigating officer (P. W. 19) in spite of the direction of the Deputy Superintendent of Police, did not verify the alibi of the appellant.
33. For the findings which I have arrived at in respect of the manner of occurrence, I do not think it essential to discuss the defence evidence in detail. Suffice it to say that the prosecution has failed to prove the manner of occurrence beyond all reasonable doubts, and the appellant is entitled to the benefit thereof.
34. Accordingly, the appeal is allowed, the order of conviction and sentence passed against the appellant is set aside and he is acquitted of all the charges levelled against him. The appellant shall be set at liberty forthwith, if not wanted in any other case. The reference stands discharged.