Patna High Court
State Of Bihar vs Lathi Singh @ Sujeet Singh & Ors on 5 August, 2010
Author: Gopal Prasad
Bench: Shyam Kishore Sharma, Gopal Prasad
Death Reference No. 3 of 2008
With
CR. APPEAL (DB) No.72 of 2008
With
CR. APPEAL (DB) No.77 of 2008
With
CR. APPEAL (DB) No.79 of 2008
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Against the judgment and order of conviction, dated 2nd January, 2008/4th
January, 2008, passed by Sri Om Prakash, Additional Sessions Judge-cum-
Fast Track Court, V, Patna, in Session's Trial No. 1074 of 2004
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Death Reference No. 3 of 2008
The State of Bihar .. Appellant
Versus
1. Lathi Singh @ Sujit Singh
2. Arbind Singh
3. Manoj Singh
.. Respondents-Condemned
Prisoners
****
CR. APPEAL (DB) No.72 of 2008
Arbind Singh, s/o Kamta Singh, r/o Village Lahsuna, P.S. Masaurhi, district
Patna .. Appellant
CR. APPEAL (DB) No.77 of 2008
Manoj Singh, s/o late Jeev Singh, r/o Village Lahsuna, P.S. Masaurhi, district
Patna .. Appellant
CR. APPEAL (DB) No.79 of 2008
Lathi Singh @ Sujit Singh, s/o Sri Chotan Singh, r/o Village & P.O. Lahsuna,
P.S. Masaurhi , district Patna .. Appellant
Versus
The State of Bihar .. Respondent
(in all the Criminal Appeals)
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For the appellants .. M/S Devendra Kumar Singh,
2
Rana Pratap Singh and
Kanhaiya Prasad Singh, Advs.
with
M/S Satyeshwar Prasad,
Anil Kumar No. 1, Amit,
Sumant Singh, Aaruni Singh,
Ashutosh Kumar and Jyotsna
Shankar, Advs.
For the respondent .. Mr. Ashwani Kumar Sinha,
A.P.P.
PRESENT
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON'BLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J.The three appeals, along with death reference, are heard together and are being disposed off by this common judgment.
2. All the appellants in three Appeals have been convicted under Sections 302/149 of the Indian Penal Code as well as 17 of the Criminal Law Amendment Act and 27 of the Arms Act and have been sentenced to death for their conviction under Section 302/149 of the Indian Penal Code in Session's Trial No. 174 of 2004. Appellants, Arvind Singh and Manoj Singh have further been convicted under Section 148 of the Indian Penal Code. However, no sentence, for offence under Sections 148 of the Indian Penal Code, 27 of the Arms Act and 17 of the Criminal Law Amendment Act, in Session's Trial No. 1074 of 2004, has been awarded by the order, dated 01.02.2008, passed by Shri Om Prakash, Additional District Judge, Fast Track Court, V, Patna, as such, the learned Judge has submitted the proceeding to this Court for confirmation of death sentence of Court. The same has been registered as Death Reference No. 3 of 2008. All the convicts have preferred separate Appeal against the judgment of conviction 3 and sentence registered as Cr. Appeal (D.B.) No. 72, 77 and 79 of 2008 respectively and, hence, Death Reference and three Appeals have been heard together and disposed off by this common judgment.
3. The prosecution case, as alleged in the fardbeyan of the informant, Rajendra Paswan, P.W. 11, is that (i) while informant was sitting in the bamboo club (banswari) adjoining south of the village, along with Naseeb Paswan, P.W. 8, and Udai Paswan (deceased) then about 60-70 persons came armed with fire arms in a group forming unlawful assembly and surrounded Paswantola from it's north and south forming two groups and the people of the village started fleeing away here and there on seeing the unlawful assembly armed with lethal weapons.
(ii) Further, case of the informant in fardbeyan is that the informant saw co-villagers, Brinda Singh, Gajendra Singh, Sudhir Singh firing indiscriminately at Udai Paswan (deceased) informant (P.W. 11) and Naseeb Paswan (P.W. 8). Udai Paswan received fire arm injury, but, the informant (P.W. 11) and Naseeb Paswan (P.W. 8) anyhow managed to escape and conceal themselves in the house of Hardeo Paswan (P.W. 13). In the meantime, they heard the sound of 15-20 firings and shouts of slogans that "People's War Zindabad" and "BHAKAPA Male Murdabad" by the members of unlawful assembly and even shouted that they have punished for casting votes in favour of JD(U) so they flee away.
(iii) Further, case of the prosecution in the fardbeyan of the informant that after the activists receded then informant came out of hides, thereafter, Bhim Paswan, P.W. 10, son of Naga Paswan (deceased) came weeping and disclosed that in the Khalihan of Basant Paswan of the village, his father Naga Paswan has been done to death by Pappu Singh and Vijay 4 Singh by rifle shot and Arvind Singh, (appellant of Cr. Appeal (D.B.) No. 77 of 2008) son of Kamta Singh, hurled bomb on the person of his father.
(iv) Further, case of informant in the fardbeyan is that thereafter he came out to take stock of fact in the village then saw Dilip Kumar, (P.W. 4) son of Vijay Paswan (deceased) is crying and disclosed that Vijay Paswan has been murdered by Lathi Singh (appellant of Cr. Appeal (D.B.) No. 79 of 2008) and Neeraj Singh (absconding) by rifle shot injury in the court yard of Rampratap Paswan (P.W. 60-70 persons) and further, Sanjay Paswan, P.W. 3, disclosed that Sharawan Paswan has been murdered by Ajay Singh and Mantu Singh (absconding) by rifle.
(v) It has, further, been alleged in the first information report that with the help of other co-villagers the members of the People's War Group in the unlawful assembly have been identified and it was learnt that the said unlawful assembly contained Amod Singh, Sahdeo Singh, Jogendra Singh, Manoj Singh (appellant in Cr. Appeal (D.B.) No. 77 of 2008) and other which include the names of 36 persons, including the appellants. The allegation that they have been formed unlawful assemble with lethal weapons and entered into the village and murdered the innocent villagers.
4. The date of occurrence is alleged to be 18.05.2004 at 01.00 p.m., the fardbeyan was recorded at 16.30 hours, i.e., 04.30 p.m. on same day and the first information report was lodged on 18.05.2004, itself. However, the said first information report was received to the Magistrate on 21.05.2004. After lodging of the first information report, investigation proceeded and after completion of investigation the charge sheet was submitted under Sections 302, 448, 148, 149 and 147 of the Indian Penal 5 Code, 27 of the Arms Act, 3 and 4 of Explosive Substances Act and 17 of the Criminal Law Amendment Act, consequently cognizance was taken and case was committed to the Court of sessions. After commitment, the charges were framed against the appellants, Lathi Singh under Section 302/149 and 448 of the Indian Penal Code, 27 of the Arms Act, 3 and 4 of the Explosive Substances Act and 17 of the Criminal Law Amendment Act on 14.08.2006 and against Manoj Singh and Arvind Singh for offence under Sections 302/149, 148 and 412 of the Indian Penal Code, 27 of the Arms Act and 3 and 4 of the Explosive Substances Act, along with co-accused, Sahdeo Singh, Joginder Singh and Umesh Singh, who have been acquitted.
5. After framing of the charge, the trial and during the trial, fourteen witnesses were examined as prosecution witnesses, P.W. 1, Hariballam Paswan, P.W. 2, Devendra Paswan, P.W. 3, Sanjay Paswan, P.W. 4, Dilip Paswan, P.W. 5, Rajan Paswan, P.W. 60-70 persons, Ram Pratap Paswan, P.W. 7, Lallan Paswan, P.W. 8, Naseeb Paswan, P.W. 9, Dr. Pankaj Kumar, P.W. 10, Bhim Paswan, P.W. 11, Rajendra Paswan, the informant, P.W. 12, Wakeel Paswan, P.W. 13, Hardeo Paswan, and P.W. 14, Tulsi Prasad, the investigating officer.
6. The documentary evidence adduced on behalf of the prosecution are Exhibit 1 to 1/3 is post mortem report, Exhibit 2 is the signature of the informant on the fardbeyan, Exhibit 2/1 signature of Vinit Kumar on the fardbeyan, Exhibit 3 signature of informant on carbon copy of the inquest report, Exhibit 4 is the signature of Rajendra Paswan on seizure list, Exhibit 5 is the fardbeyan, Exhibit 5/1 is the endorsement on the fardbeyan, Exhibit 6 is the signature of Parmanand Tisua on formal first 6 information report, Exhibit 7, 7/1, 7/2 and 7/3 is the inquest report, Exhibit 8 is the seizure list.
7. The defence has also adduced evidence, D.W. 1, Shitar Maniya Devi, and D.W. 2, Ram Prasad Paswan.
8. After the evidence of the prosecution closed, statement of the accused persons recorded under Section 313 of the Criminal Procedure Code. Subsequently, defence adduced evidence and evidence of defence was closed.
9. Thereafter hearing the learned counsel for the parties and considering the oral and documentary evidence, the judgment of conviction and sentence have been passed, as stated above, by the learned lower Court by it's order, dated 02.01.2008, passed in Session's Trial No. 1074 of 1974 and submitted the proceeding for confirmation of death sentence and the appeal filed by the appellants as well as Death Reference is for consideration before this Court.
10. The learned counsel for the appellant, Arvind Singh, of Cr. Appeal (D.B.) No. 72 of 2008, contended that witnesses, P.Ws. 1 to 7 & 12 and 13 have been declared hostile and have not supported the prosecution version and witnesses no. 8, 9 and 11 though claimed to be eye witness of the occurrence, but, their evidence suffer from contradiction, development and embellishment as they are hearsay witnesses as apparent from fardbeyan, itself. Further, the first information report though lodged on 18.05.2004, but, the same was received by Magistrate on 21.05.2004, thus, there is delay in sending the first information report to the Magistrate and there is no plausible explanation and, hence, the first information report suffer from antedated and is not reliable and adverse inference required to be 7 drawn regarding the genuineness of the case. Hence, the order of conviction and sentence recorded by the learned lower Court is not sustainable.
11. The learned counsel for appellant, Lathi Singh @ Sujit Singh, however, contended that taking into consideration the evidence of three witnesses, who have supported the prosecution case are not the eye witness to the occurrence and their evidence suffer from the contradiction and development regarding their statement before the police as well as their evidence is not reliable and worthy of confidence to secure conviction as it suffer from various infirmities.
12. The learned counsel for the appellant, Manoj Singh (in Cr. Appeal (D.B.) No. 77 of 2008) also contended the nature of the evidence regarding the identification of the accused is not at all reliable to warrant conviction as witness though claimed to be eye witness are, in fact, not eye witness and the prosecution has not been able to prove the charges beyond reasonable doubts.
13. The learned counsel for the State, in supporting the prosecution, contended that the prosecution has been able to prove the charges.
14. The prosecution case, as alleged in the fardbeyan, is that 60-70 persons armed with fire arm entered into the village, while the informant (P.W. 11) was sitting in the bamboo club (banswari) along with P.W. 8 and Udai Paswan, deceased and, thereafter, 60-70 persons he saw Brinda, Gajendra and Sudhir (not appellants here) firing indiscriminately causing injury to Udai Paswan and then the informant, P.W. 11 and P.W. 8, Naseeb Paswan, managed to flee away to save their lives and conceal themselves in the house of Hardeo Paswan (P.W. 13) and, thereafter, when 8 the accused persons receded then he came out and took the stock of situation and then Bhim Paswan disclosed about the death of Naga Paswan by Pappu and Vijay, in the Khalihan of Basant Paswant, death of Vijay Paswan in the court yard of Rampratap Paswan by Lathi Singh and Neeraj and death of Sharwan Paswan by fire arm injuries by Ajay and Mantu.
15. P.W. 14 is the investigating officer and in his evidence has proved that the fardbeyan, Exhibit 5, is in the writing of Officer-in- Charge, Parmanand Vijaa, on the basis of which Masaurhi P.S. Case No. 73 of 2004 was lodged and the investigation handed over to P.W. 14, Tulsi Prasad, the investigating officer, has proved the endorsement of the Officer- in-Charge, Parmanand Vijaa, on the fardbeyan and has also proved the four inquest reports by police, which have been marked as Exhibits 7, 7/1, 7/2 and 7/3, about the death of Vijay Paswan, Udai Paswan, Naga Paswan and Sharwan Paswan respectively at the place of occurrence from court yard of Ram Pratap Paswan, from Banswari, from Khalihan of Basant Paswan and court yard of Ram Pratap Paswan respectively. He (P.W. 14) inspected the place of occurrence and has stated in his evidence that the first place of occurrence is a tiled roof house of Rampratap Paswan, there he got the dead body of Vijay Paswan and Sharawan Paswan and also found the sign of blood and the said place of occurrence is stated to be bounded by the boundary wall having existed towards west with a door fitted there. The boundary wall as 4" high and there was two rooms inside without any door, both facing east. He has, further, stated that the second place of occurrence was in village Lasuna is the Khalihan of Basant Paswan where he found the dead body of Naga Paswan, which is a lonely place and to it's north there is parti land of Manoj Singh and Jeev Lal Singh and also found the blood at the 9 place of occurrence. He has, further, stated that the third place of place of occurrence is bamboo club (banswari) of Sharwan Paswan, where the dead body of Udai Paswan was found and the blood was also found. The investigating officer also found empty cartridges near the dead body of Udai Paswan. The empty cartridges and blood stained earth was seized and seizure list was prepared and seized article marked as Exhibit 8. Hence, three places of occurrence found by the investigating officer as alleged in the fardbeyan from where bodies of deceased recovered and inquest report, Exhibit 7 series, suggest the fire arm injury on the deceased.
16. P.W. 9, Dr. Pankaj Kumar, who have done the post mortem examination on the person of the four deceased, Sharwan Paswan, Naga Paswan, Vijay Paswan and Udai Paswan, has stated that on 19.05.2004 did the post mortem examination of Sharwan Paswan and found the following ante mortem injuries :
(i) one entry would ½" x ½" x ¾" from left ear over left temporal region with blackening of 1(1/2)" x 1(1/4)" x margin lacerated and inverted
(ii) one exit would 1(1/2)" x ½" right upper part of neck lateral side ½" below right ear. Margin lacerated and everted.
(iii) one entry wound 2(1/2)" x 1(1/2)" left lower part of neck 1" above left clavicle, 1" left from mid line with blackening 3" x 2(3/4)", left 1st rib was found pierced.
Margin inverted and lacerated.
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(iv) one exit wound ¾" x ¾" on back of chest left side 2(1/2)" left from midline and 7(1/2)" below left shoulder tip. Margin lacerated and everted.
Cause of death - head injury, haemorrhage and shock The nature of arm used was fire arm.
On same day the doctor examined Naga Paswan and found following ante mortem injury on his person :
(i) one entry wound ¾" x ¾" on right side mondibular region 1" below right mouth corner, s(1/4)" right from mind line margin lacerated and inverted blackening ½" x ½" mandible was found fractured. The metallic object like bullet after entering from injury no. 1 formed a track piercing mandible and tissues of neck region. Oesophagus and trachea and was found near tracheal region.
(ii) one entry wound 1(1/2)" x 1(1/2)" left side front of chest ¾" left from mid line, 1(1/4)" below left chevicle with blackening 2" x 1" margin inverted and lacerated.
(iii) one exit wound ½" x ½" left side back of chest 5(1/2)"
from left shoulder hip 2(1/2)" left from mid line margin everted and lacerated.
(iv) one entry would 1" x 1" on right thigh lateral aspect 6(1/2)" below right iliac crest with blackening of 1(1/2)" x 1". The merelic object like bullet, after entering from injury no. (iv) Formed a track piercing the structures in like and was found embedded in muscles of 4th lumber vertebra at back.11
(v) One entry would ½" x ½" one back of lower part of right side chest 1(1/2)" right from mid line, in blackening of 4(1/2)" x 4" margin inverted and lacerated.
(vi) one exit wound 1(1/2)" x ½" , 5(1/2)" left from left nipple near left maxilla, margin lacerated and everted.
Opinion - time since death 12 to 24 hours approximately. Cause of death - haemorrhage and shock.
In the cross examination he has stated that no bomb injury was found on the body of Naga Paswan.
On the same date also the doctor did post mortem of Udai Paswan and found following ante mortem external and internal injuries:
(i) One entry wound 1" x 1" left side shoulder and neck region 2(1/2)" right from left shoulder tip with blackening 3" x 3". Margin lacerated and inverted. Seventh cervical.
Vertebra was found fractured. 6th right side rib was found fractured. Both lungs were pierced and blood and blood clot was present in chest cavity. The metallic object like bullet, after entering from entry wound fermed a track and found embedded in right side chest wall at the level of sixth rib.
(ii) One entry wound ½" x ½" over right buttock, margin inverted and lacerated, 2(1/2)" from mid line, 3(1/2)" from illial crest with blackening 1" x ¾".
(iii) One exit wound ¾" x ¾" anterior abdominal wall right side 4" right from umbilicus 12" below right nipple.
Margin lacerated and everted.
12Opinion : Time since death 12 to 24 hours approximately. Cause of death : haemorrhage and shock Nature of violence : fire arm On the same date the doctor did post mortem examination of Vijai Paswan and found following ante mortem injuries :
(i) One entry wound 1" x ¾" left side of chest 1" below left nipple 3(1/2)" left from mid line with ectooing of 7(1/2)" x 4(1/2)" left side of chest. Margin inverted and lacerated.
(ii) One exit wound right side upper part of back of abdomen ¾" x ¾", 4(1/2)" right from mid line, 7" below inferior angle of scapula. Margin lacerated and everred.
Opinion : Time since death 12 to 24 hours approximately. Cause of death : haemorrhage and shock.
Nature of violence : fire arm
17. The post mortem report, Exhibits 1 to 1/3 mentions the time of post mortem examination in between 11.00 a.m. to 12.35 p.m. on 19.05.2004 and, hence, the time of occurrence correspond and corroborate the time of death as alleged in fardbeyan
18. Hence, from the evidence of the doctor, it is apparent that the prosecution case, about the death of the deceased, Sharawan Paswan, Naga Paswan, Udai Paswan and Vijay Paswan, substantiated to have been caused by the fire arm injury which supports the prosecution case about death by fire arm and the time of occurrence. However, the doctor did not find any injury on the person of Naga Paswan by bomb. It is pertinent to mention that investigating officer (P.W. 14) has also not found any material 13 of bomb or explosion of bomb at three present places of occurrence though alleged in the fardbeyan of the informant.
19. Now, I proceed to consider the evidence of the witness regarding the implication of the accused. P.W. 1 has stated that he heard the sound of firing at the place of occurrence and when came back then learnt that Vijay Paswan, Naga Paswan, Sharawan Paswan and Udai Paswan have been murdered and he does not know who murdered them. This witness has been declared hostile as has not supported the prosecution case regarding the implication of the accused.
20. P.W. 2 has also stated that he was not allowed to go out of the house by the female members of his family and when the position restored then he came out and saw the dead body of Naga Paswan, Udai Paswan, Sharawan Paswan and Vijay Paswan and he does not know who killed them. This witness has also been declared hostile by the prosecution and attention has been drawn regarding his earlier statement before police.
21. P.W. 3 has also stated that at the time of occurrence he was at Janipur, along with his father, and after information he came to village then saw the dead bodies of Vijay Paswan and Udai Paswan and he did not know who murdered them and, hence, this witness also not supported the prosecution case regarding the implication of the accused.
22. P.W. 4 has stated that his father, Vijay Paswan, was murdered on 18th May, 2004, but, he does not know who murdered him and at that time he was in Public School, Ballami, Phulwari, Patna, and on learning the murder of his father he came to Patna to attend his funeral at Patna and he does not know who murdered his father.
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23. P.Ws. 5 and 6 also not supported the prosecution case and have stated that they learnt about the occurrence of murder of four persons, Naga Paswan, Vijay Paswan, Sharwan Paswan and Udai Paswan and they also do not know who murdered them.
24. P.Ws. 7, 12 and 13 have also stated that they do not know who murdered the deceased and have been declared hostile and attention drawn, however, not supported the prosecution case.
25. P.W. 8, in his evidence, stated that while he was in bamboo club (banswari) to the west of village Lahsuna, along with Rejendra Paswan (P.W. 11) and Udai Paswan (deceased) at 01.00 p.m. then 60-70 persons came from east and north armed with rifle out of whom Prince, Sudhir, Gajendra (not the appellants here) started firing from rifle in which Udai Paswan got injured. This witness, P.W. 8, and Rajendra Paswan (P.W.
11) managed to flee away and concealed themselves in the house of Hardeo Paswan (P.W. 13) and, thereafter 20-25 rounds of firings occurred. He has, further, stated in his evidence in paragraph 1 that he identified Manoj Singh, Jogendra Singh and Lathi Singh and Arvind Singh amongst the persons who were firing. He has, further, stated in paragraph 3 of his deposition that Manoj Singh, Jogendra Singh, Lathi Singh and Arvind Singh are present in Court were amongst the persons who were firing. However, in cross examination in paragraph 10 he has stated that Arvind Singh was armed with rifle and Lathi Singh, Manoj Singh and Jogendra Singh had nothing in their hands. Hence, this statement in paragraph 10 is submitted to be in contradiction to his evidence about firing by Manoj Singh, Jogendra Singh and Lathi Singh in examination-in-chief. However, the investigating officer, P.W. 14, in paragrarph 27 had stated that Naseeb Paswan, P.W. 8, has not 15 stated before him that he identified Manoj Singh, Jogendra Singh, Lathi Singh and Arvind Singh amongst the persons who were firing.
26. The learned counsel for the appellants, on this evidence, contended that since this part of the evidence of P.W. 8 that he identified Manoj Singh, Jogendra Singh, Lathi Singh and Arvind Singh amongst unlawful assembly were firing has not been stated before the investigating officer (P.W. 14), as per his evidence in paragraph 27 during statement under Section 161 of the Criminal Procedure Code, hence, it may be deemed to be an omission amounting to contradiction or development or embellishment in prosecution case as this fact has also not been mentioned in the first information report.
27. It is true that contradiction is a mode of discrediting a witness making inconsistent statement in witness box with his previous statement made before police, under Section 161 of the Criminal Procedure Code.
28. However, Section 161 of the Criminal Procedure Code gives wide discretion to the police officer to record or not to record any statement made by the witness to him during the investigation. However, if a statement is recorded or reduced into writing by the investigating officer under Section 161 of the Criminal Procedure Code then Section 162 of Criminal Procedure Code provides that such statement shall not be used for any purpose except to contradict a witness in a manner provided under Section 145 of the Indian Evidence Act, 1872. Section 145 of the Indian Evidence Act, 1872, provides that before using the previous statement of a witness for contradiction the attention of the witness be called upon to those parts of the statement recorded by the police under Section 161 of the 16 Criminal Procedure Code which are to be used for the purpose of contradicting the witness to give an opportunity to explain the inconsistency between the evidence in Court in witness box and statement given before the police under Section 161 of the Criminal Procedure Code. Hence, previous statement, recorded by police during investigation, can only be used for contradiction after attention of witness drawn to it to those part of the statement recorded under Section 161 of the Criminal Procedure Code which is intended to use for contradiction. This view to find favour in decisions reported in A.I.R. 1959 S.C., 1012(Tahsildar Singh & Anr. Vrs. State of U.P.) and 1989 Cr.L.J., 1876 (Md. Badruddin Vrs. State of Assam) and A.I.R. 1926 Pat, 20 (Badri Chaudhary & Ors. Vrs. King Emperor).
29. However, neither the attention of P.W. 8 has not been drawn by the accused or defence during the evidence of the witness with regard to his earlier statement made before police under Section 161 of the Criminal Procedure Code which are to be used for contradicting the evidence in Court nor the investigating officer in his evidence stated that this witness stated in his earlier statement under Section 161 of the Criminal Procedure Code recorded during investigation. Hence, what is needed to take the statement of police recorded under Section 161 of the Criminal Procedure Code as it is to establish contradiction between that stated as evidence in Court to see whether there is inconsistency between the two statements and also giving opportunity to accused to explain the inconsistency, but, to do otherwise to take contradiction between what is stated by the witness to have stated before police and what is stated by the investigating officer that witness not stated before him during the investigation is to transgress the 17 bond of Section 162 of the Criminal Procedure Code and 145 of the Indian Evidence Act, 1872.
30. From the evidence of this witness, P.W. 8, it is apparent that nothing has been brought on record that what was stated by this witness in his statement before police. The investigating officer, P.W. 14, has only stated in his evidence that this witness has not stated before him that he identified Manoj Singh, Jogindra Singh, Lathi Singh and Arvind Singh, however, Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872, does not permit that the police officer be asked what witness said to him during investigation, but, what was recorded by the investigating officer, during investigation in the case diary, and not what witness actually made before the investigating officer and statement under Section 161 of the Criminal Procedure Code can not be used for any purpose other than contradiction and that also in the manner as specified under Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872. However, nothing has been brought in evidence that what was really stated before this witness before the police, during investigation, under Section 161 of the Criminal Procedure Code nor attention of former statement was even drawn to the witness and, hence, it is totally non-compliance of Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872, and this proposition has been well settled in A.I.R. 1959 S.C. 1012 (Tahsildar Singh & Anr. Vrs. State of U.P.) and 1989 Cr.L.J., 1876 (Md. Badruddin Vrs. State of Assam).
31. However, it has, further, been contended by the learned counsel for the appellants that from the nature of the evidence that 18 the investigating officer stated that this witness has not stated before him and that part that is stated to have not stated before investigating officer be taken as an omission. However, mere omission is not a contradiction and when it has been not established what is stated before the police by this witness in his statement under Section 161 of the Criminal Procedure Code have not been brought on record it is difficult to infer what omission is. However, it has further been contended that the Court may use the case diary and may look into the case diary to satisfy the conscience about the contradiction as to what was stated before the police in the case diary and to infer the contradiction development and embellishment in prosecution story at the stage of trial. However, it is pertinent to mention that Section 172 of the Criminal Procedure Code provides the use of the case diary by the Court, but, Section 172(2) of the Criminal Procedure Code provided that any criminal Court may use the case diary to aid it during enquiry and trial, but, at the same time it has also prohibited that the case diary can not be used as an evidence in a case. Moreover, it is well settled that a Judge is in error in making use of police diary, at all, in his judgment and seeking confirmation of his opinion on question of appreciation of evidence from statement contained in those diary. However, only proper use he could make of these diary is one allowed by Section 172(3) of the Criminal Procedure Code as the words "if the Court use for the purpose of contradiction the provision of Section 161 of the Criminal Procedure Code or Section 145 of the Indian Evidence Act, 1872, as the case may be of the Indian Evidence Act, 1872, shall apply and, hence, Section 172 provides to use it to aid and the Court can not look into the case diary for contradicting a witness, as Section 172 of the Criminal Procedure Code, itself, provides for contradiction the provision of Section 145 has to be 19 complied and this view has been supported in A.I.R. 1954 S.C., 51 (Habeeb Mohammad Vrs. State of Hyderabad).
32. However, Section 172 of the Criminal Procedure Code provides that Court may use the case diary to aid it, but, what does it mean. It has well settled that the aid in enquiry of trial means that the Court may find some fact noted in the case diary, take the advantage of this in order to put some necessary question to the witness in the witness box and satisfy elicit in evidence, but, the diary can not be used as an evidence as it is impossible to avoid the conclusion that it allow the mind of a Judge to be influenced by what is found in the diary and what was not before the Court, which is not permissible and no portion of the case diary can be used as an evidence or material to test the evidence a witness and the case diary also can not be used to justified the appreciation of the judgment. Hence, Section 172 of the Criminal Procedure Code also does not permits to use the case diary as the evidence or to use it either to contradict a witness or to appreciate the evidence of a witness and, further, the contention that the Court may look into the case diary to satisfy it's conscience regarding the evidence of a witness is not permissible as it is well settled that a Magistrate make an improper use of police diary when he observed in his judgment some discrepancy in the statement of some witnesses examined in Court have been pointed from what they stated before the investigating officer in the case diary. Moreover, if there is evidence that 60-70 persons were seen and then the statement that out of those 60-70 persons were the accused persons were also there. However, two statements can not be said to be contrary as the two fact can co-exist together and omission is not contradiction merely for reason that those fact not stated before police or the police may not record the 20 minute details of the occurrence when two statements may co-exist and not inconsistency as statement by witness may not be in all minute details. Moreover, under the facts and circumstances when the earlier statement has not been brought or proved or attention of formal statements have not been drawn then it may not be taken as contradiction and except alleged contradiction there is nothing in his evidence to disbelieve him as the presence of the witness is at very outset at the place of occurrence and having seen the occurrence has been established.
33. P.W. 10, in his evidence, has stated that on 15.05.2004 while he was working with his father in the Khalihan of Naga Paswan then about 60-70 persons armed with lethal weapons surrounded Paswantola and started indiscriminate firing, his father Naga Paswan was shot by Maheshwar Singh, Lallan Singh and Vijay Singh (not appellants). His father fell down on receiving the gun shot and then Arvind hurled bomb. This witness has, further, stated that he fled away and concealed himself in the house of Hardeo Paswan and from there he saw from a hole that on Udai paswan, and Brinda Paswan, Arvind Singh, Lathi Singh and Gajendra Singh were firing on Udai Paswan and Brindra Paswan and he saw only two persons receiving gun shot injury.
34. However, in cross examination the attention of this witness has been drawn in paragraph 18 of his cross examination with regard to the statement in the examination-in-chief, as stated above, and he has stated that he has stated before the police that his father, Naga Paswan, was shot by Maheshwar Singh, Lallan Singh and Vijay Singh. He has, further, stated before police that he concealed himself in the house of Prasad Bhagat and saw from a hole that Brinda Singh, Ganejdra Singh, Arvind Singh and 21 Lathi Singh shot Udai Paswan. He has also stated that he stated before the police that he saw two persons firing. However, though attention has been drawn with regard to the statement in Court, but, the attention of this witness (P.W. 10) has not been drawn with regard to his statement before police or the statement which are to be used for the purpose of contradiction the former statement recorded before police during investigation. However, investigating officer (P.W. 14) in paragraph 27 of his evidence has stated that this witness P.W. 10 had not stated before him that his father, Naga Paswan, was shot by Maheshwar Singh and Lallan Singh. Investigating officer (P.W.
14) has, further, stated that this witness had not stated before him that he concealed himself in the house of Prasad Bhagat rather had stated that before him (investigating officer, P.W. 14) that he concealed himself in the house of Ram Pratap Paswan. He has, further, stated that this witness had not stated before him about seeing from a hole on concealing himself in the house of Ram Pratap Paswan and he has also not stated before him that he saw from the hole that Brinda Singh, Gajendra Singh, Arvind Singh and Lathi Singh were firing. He has, further, stated that he had not stated before him that he saw two persons getting injured rather had stated that he saw only one person getting injured by shot. Hence, from the evidence of the investigating officer it is apparent that this witness has not stated before investigating officer that he concealed himself in the house of Prasad Bhagat, but, has stated about his concealment in the house of Ram Pratap Paswan and, further, that this witness has not stated before investigating officer (P.W. 14) that he saw receiving the gun shot injury to two persons rather he stated before investigating officer that he saw gun shot to only one person. 22
35. Hence, from the evidence of this witness, it is apparent that the attention of this witness has also not been drawn with regard to his earlier statement recorded in the case diary by investigating officer under Section 161 of the Criminal Procedure Code and, hence, is not in compliance of Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872. However, this witness in his evidence in cross examination has stated that he has stated before the police that he saw from a hole that Brinda Singh, Gajendra Singh, Arvind Singh shot Udai Paswan and investigating officer, P.W. 14, has stated that this witness has not stated before him that he saw from the hole that Brinda Singh, Rajendra Singh, Arvind Singh and Lathi Singh were firing. However, no attention has been drawn with regard to the former statement recorded in the case diary by the investigating officer under Section 161 of the Criminal Procedure Code the attention has not been drawn of this witness with regard to the statement recorded by the police under Section 161 of the Criminal Procedure Code in the case diary which is to be used for the purpose of contradicting the witness. It is the statement recorded under Section 161 of the Criminal Procedure Code which is to be used for the purpose of contradicting a witness is to be brought to the notice and to be proved, however, neither attention of this witness has been drawn to those facts which is required to be used for contradicting the evidence of the witness in Court nor the investigating officer has stated what was recorded in the case diary under Section 161 of the Criminal Procedure Code and, hence, there is nothing before the Court in evidence what was stated by this witness in his formal statement before the police under Section 161 of the Criminal Procedure Code and, hence, contradiction can not be between what the witness said he 23 has stated before the police officer or what he actually made before him or what the police said to have not stated before him rather the contradiction under Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872, should be between what a witness asserted in the witness box and what he stated before the police which was recorded under Section 161 of the Criminal Procedure Code and since no statement made to police, during investigation what is not stated before him, shall be admissible, hence, in consequence no witness may be asked what he said to the police, during investigation, nor a police officer be asked what witness said to him, during investigation, and, hence, the contradiction can not be allowed as not confirming to Section 162 of the Criminal Procedure Code to be in other words except as provided under Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872, having not been complied and, further, the Court neither can look into the case diary as is not permitted in law nor in the absence of statement which is to be used to contradict a witness having been brought or attention drawn be allowed to the defence to take the plea that it amounts to omission as contradiction means some statement prior and whatever omitted if does infer to be implied in the statement made before police then only that omission can be said to be contradiction. However, if witness stated that 60-70 persons came in mob, which is mentioned in the case diary and the names of the persons in the mob is made in statement, but, no recorded under Section 161 of the Criminal Procedure Code the name of the person if coming in evidence then two statements can not be said contradiction as both can co-exist together that a person said at any stage that out of 60-70 persons there were so and so persons and, hence, it may not be said to be contradiction. 24 However, even if taking that omission is contradiction is only permitted when the attention of the witness drawn to that part of the statement which is to be used for contradiction, but, the attention of witness not drawn and opportunities not given, accused can not be allowed to argue that the statements are contradictory and, further, as discussed above, the resort to Section 172 of the Criminal Procedure Code can not be permitted to look into the case diary to infer the contradiction as Section 172 of the Criminal Procedure Code does not permits to use the case diary as evidence for contradicting a witness except in the manner provided under Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872, and, hence, the argument that the evidence is contradictory or omission or development is not permitted as the attention or omission or development is not permitted as the attention of the witness has not been drawn with regard to his earlier statement before police, which is to be used for contradiction.
36. P.W. 11, the informant, in his evidence, has stated that at the time of the occurrence on 18.05.2004 at 01.00 p.m. he was, along with, Naseeb Paswan (P.W. 8), Vijay Paswan (deceased), Sharawan Paswan (deceased) and Udai Paswan (deceased), sitting in the bamboo club (banswari) when 60-70 persons forming an unlawful assembly armed with lethal weapons came, surrounded Paswantola in two groups, one from north and other from south, and started indiscriminate firing. He has, further, stated that at that time Brindra Singh, Arvind Singh, Lathi Singh, Sudhir Singh and Gajendra Singh were armed with rifle and gun. Brinda Singh fired at him then he and Naseeb Paswan (P.W. 8) concealed themselves in the house of Hardeo Paswan (P.W. 13) and from their he saw Udai Paswan, who 25 was invalid (disabled) and unable to flee away, was shot dead by them. He has, further, stated that he saw Naga Paswan and Bhim Paswan working in their fields then Maheshwar, Lallan and Arvind shot at Naga Paswan and who fell down in the Khalihan of Basant Paswan and then Arvind hurled bomb at Naga Paswan, who died. He has, further, stated that the members of the unlawful assembly went towards north shouting slogans and he heard 20- 25 sound of firings. He has, further, stated that after the unlawful assembly receded then he heard that the dead bodies of Vijay Paswan and Sharawan Paswan lying in the house of Ram Pratap Paswan and Udai Paswan and Naga Paswan have also been killed and Vijay Paswan killed by Manoj Singh and Lathi Singh. He has, further, stated that in unlawful assembly he identified Brindra Singh, Arvind Singh, Lathi Singh, Sudhir Singh, Gajendra Singh, Manoj Singh, Vijay Singh, Vinit Singh, Lallan Singh, who were armed with rifle. He has, also further stated that he made his statement before police and Daroga recorded his statement recorded his statement and he signed after fully understanding and hearing and has proved his signature on his statement, which has been marked as Exhibit 2. He has, further, proved signature of Vinit on the said fardbeyan, which has been marked as Exhibit 2/1 though stated that it has also bore the signature of Sanjya, Pappu, but, on seeing the first information report stated that there is no signature of Sanjay Pappu. He has, further, stated that Udai Paswan is suffering from polio and has stated that he made the statement first to Daroga on which Naseeb, Pappu, Vinit and Sanjay have also signed.
37. However, his attention has been drawn with regard to his statement and this witness has stated that he had stated before Daroga that Arvind Singh and Lathi Singh were armed with rifle and gun. He has, 26 further, stated that he has stated before Daroga that he saw the occurrence by concealing himself in the house of Hardeo Paswan. He has, further, stated that he saw Naga Paswan (deceased) and Bhim Paswan (P.W. 10) working in his Khalihan and Maheshwar, Lallan and Ajay shot at Naga Paswan and he has also stated before police that he saw that Naga Paswan went and called in the Khalihan of Basant Paswan and Arvind hurled bomb at Naga Paswan and has also stated that Ajay Singh and Vijay Singh killed Sharawan and Manoj Singh and Lathi Singh killed Vijay Paswan. He has, further, stated that he had stated before Daroga that in the unlawful assembly he identified Birindra Singh, Arvind Singh, Lathi Singh, Sudhir Singh, Gajendra Singh and Manoj Singh and they were armed with rifle. However, the attention has been drawn with regard to his statement in Court, but, attention of those part of the evidence requires to be contradicted has not been brought. However, this witness is the informant and the fardbeyan on the record which has been marked as Exhibit 2. However, with regard to the evidence of this witness alleged contradiction has been taken from investigating officer (P.W. 14) in paragraphs 28 and 29 of the evidence of investigating officer and investigating officer (P.W. 14) has stated that Rajendra Paswan (P.W. 11) had not stated before him that Arvind Singh and Lathi Singh were armed with rifle, but, has stated that all the activists of the unlawful assembly were armed. He (P.W. 14) has, further, stated that Rajendra Paswan has not stated before him that he saw Udai Paswan was killed by fire shot and he saw by concealing him in the house of Hardeo Paswan. He has, further, stated that Rajendra Paswan has not stated before him that Maheshwar Singh, Lallan Singh and Vijay Singh shot dead Naga Paswan or Arvind Singh hurled bomb at Naga Paswan, but, has stated that he learnt this fact of hurling bomb by 27 Arvind at Naga from Bhim Paswan, the son of Naga Paswan and further stated this witness (P.W. 11) has not stated that Ajay and Vijay killed Sharawan Paswan or Manoj Singh and Lathi Singh killed Udai Paswan and even not said that Arvind Singh, Lathi Singh and Manoj Singh was identified in the unlawful assembly rather stated to have identified them with the cooperation of the villagers.
38. P.W. 11 is the informant and a contradiction can only be taken from police with regard to the statement recorded by the investigating officer during the investigation and, hence, the fardbeyan, which is statement recorded under Section 154 of the Criminal Procedure Code and not under Section 161 of the Criminal Procedure Code, can not be used for contradiction and the law does not permit the first information report to be used for contradiction. However, the attention of this witness has not been drawn regarding his statement under Section 161 of the Criminal Procedure Code recorded by the police during investigation as neither the attention of those parts have been drawn nor the investigating officer has come to prove that what is recorded in the case diary in statement under Section 161 of the Criminal Procedure Code as the contradiction is to be taken of what is recorded in the case diary during investigation while recording his evidence under Section 161 of the Criminal Procedure Code to see the contradiction that the statement what is stated by this witness in the witness box and the contradiction is not between what the witness asserted in the witness box and what he stated before the police officer under Section 161 of the Criminal Procedure Code recorded by the police and not between what he said he had stated before the police officer and what he actually 28 made before him (to the police), during investigation nor the police officer be asked what the witness said to him during investigation.
39. However, it has been asserted that the investigating officer (P.W. 14) has categorically stated before the trial Court that P.W. 11, the informant, has not stated before him that Arvind Singh and Lathi Singh was armed with rifle and gun, but, stated that all the activists were armed and, further, that P.W. 11, Rajendra Paswan, the informant, had not stated before him that Manoj Paswan was assaulted by Lathi Singh and P.W. 11 has not stated before him that Arvind Singh, Lathi Singh and Manoj Singh were identified in the unlawful assembly and, hence, it may be taken as an omission, however, it is well settled that all omissions are not contradiction and it can not broadly contend that a statement include to omissions which are material and are such as a witness is expected to say in the normal course as the unreported statement is completely excluded. However, in the present case, omission of not stating the fact before the police even if assuming or inferring as P.W. 11, who is the informant, in the fardbeyan, which has been marked as Exhibit 2, proved and it may well be said that the witness was attempting to improve or develop the prosecution case which may have the effect of casting a doubt on the prosecution case to the extent of defeating the appellants, however, the previous statement sought to be contradicted was not placed before the witness for explanation. To enable him to give an explanation for such omission and, hence, there is no question of disbelieving or rejecting, however, in this regard, the observation made in paragraph 20 of the decision reported in A.I.R. 1959 S.C., 1012 (Tahsildar Singh & Anr. Vrs. State of U.P.) is relevant as well as paragraph 8 of the decision reported in 1989 Cr.L.J., 1876 (Md. Badruddin Ahmad Vrs. State of Assam) 29 substantiate the view taken that unless attention of witness drawn to his former statement recorded under Section 161 of the Criminal Procedure Code it can not be used for contradiction. However, it is true that in the fardbeyan there is no mention that the informant named the appellants as member of mob resorting to firing specifically, but, that itself is no ground to reject the evidence as occurrence took place. However, when large number of accused involved the name of some not mentioned and slight variation in role of accused would not result in favour of prosecution.
40. Taking into consideration the entire evidence, the prosecution case, and the fardbeyan that 60-70 persons came indiscriminately firing causing death of four persons by those arms injuries, the entire persons of the village concealed themselves at the time of occurrence out of the fire arm injuries. The informant (P.W. 11) and P.Ws. 8 and 10 were in village also concealed themselves and after the occurrence came out and the first information report drawn on the statement of P.W. 11, in first information report the name of P.Ws. 8 and 10 find place and they have deposed and disclosed the name of the appellants as members of mob resorting to firing and claimed to be eye witnesses by seeing through hole while concealing themselves at the time of occurrence and contention that they are not eye witness to occurrence is not substantiated and their presence at the place of occurrence is apparent from their evidence and there is nothing in evidence to disbelieve their presence at the time of occurrence and the doctor has proved the autopsy and death of four persons by fire arm. The investigating officer at about the time of occurrence has also found the four dead bodies and prepared the inquest report and proved. The evidence of P.Ws. 8, 10 and 11 regarding the implication of the appellants in the crime has been 30 established. P.W. 8 has stated that he was in bamboo club (banswari), along with Rajendra Paswan (P.W. 11), 60-70 persons came firing, he concealed himself in the house of Hardeo Paswan and identified Manoj Singh, Lathi Singh and Arvind Singh amongst the persons who fired and has also identified them in Court as the persons who were firing, however, in his cross examination though he has stated that Arvind Singh was armed with rifle, but, Lathi Singh and Manoj Singh had nothing in their hands, however, the discrepancy pointed is minor and is not material whereas P.W. 8 has identified them as members of the unlawful assembly resorting to firing.
41. P.W. 10 has alsosupported the prosecution case that 60-70 persons have came with lethal weapons surrounding Paswantola indiscriminately firing causing death of Udai Paswan and Vijay paswan and has stated that Arvind Singh, Lathi Singh were firing and claimed to have identified Arvind Singh and Lathi Singh amongst the persons who had fired. Further, P.W. 11 in his evidence has stated that on 18.05.2004 he was with Naseeb Paswan (P.W. 8), Udai and others, 60-70 persons came surrounded and started firing at that time Brinda Singh, Arvind Singh, Lathi Singh, Sudhir Singh, Gajendra Singh were armed with rifle in the unlawful assembly who were firing and, further, he identified Brinda Singh, Arvind Singh, Lathi Singh, Sudhir Singh, Gajendra Singh, Manoj Singh and others in the unlawful assembly. However, there is no cross examination on the point of evidence except the attention drawn of their statement in Court and no attention drawn with regard to former statement and that the investigating officer (P.W. 14) in his evidence has stated that they had not made such statement before him has no consequence. Appellants, Lathi Singh and Arvind Singh have been identified by P.Ws. 8, 10 and 11, and Manoj Singh 31 is identified by P.Ws. 8 and 11 being members of the mob and resorting to firing in the unlawful assembly of 60-70 persons and, hence, the participation of the appellants Arvind Singh, Manoj Singh and Lathi Singh has been established in the unlawful assembly 60-70 persons resorting to firing causing death of four persons.
42. The learned counsel for the appellants contended that the evidence of witnesses, P.Ws. 8, 10 and 11 suffer from contradiction as the informant, P.W. 11 has not stated in fardbeyan about the identification of the appellants and the investigating officer has stated in his evidence that P.Ws. 8, 10 and 11 have not stated before him the names of the appellants, however, for taking contradiction the attention of the witness required to be drawn with regard to his statement which is to be used for the purpose of contradicting the witness, i.e., his statement recorded in case diary under Section 161 of the Criminal Procedure Code and not any other way as provided under Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872, and having not been complied as held in A.I.R. 1959 S.C., 1012 and 1989 Cr.L.J., 1872 (supra) and the law does not allow to format the contradiction between what the witness has stated to have stated before police and what the investigating officer said to have not stated by a witness before him, but, what the witness deposed in Court and what the statement recorded by police in case diary in his statement under Section 161 of the Criminal Procedure Code.
43. Learned counsel for the appellants, further, contended that P.W. 8 has stated in his examination-in-chief that the three appellants were firing, however, in his cross examination he has stated that Arvind Singh was armed with rifle and Lathi Singh and Manoj Singh had nothing in 32 their hands and, hence, it amounts to inherent contradiction in the evidence, however, having regard that three appellants were seen in the mob then the contradiction pointed out is minor in nature and is of not much consequence.
44. Learned counsel for the appellants, however, contended that in the fardbeyan the prosecution case is that P.W. 10, Bhim paswan, stated that Arvind Singh thrown a bomb, but, neither investigating officer found the remains of the bomb at the place of occurrence nor the doctor found any injury on Naga Paswan of the bomb. However, the investigating officer or the doctor may not have found the bomb injury, but, the participation of this appellant resorting to firing (Arvind Singh) is apparent from the evidence.
45. The learned counsel for the appellants has, further, contended that P.W. 14 in his evidence at paragraph 23 has stated that he got information at the Police Station that the activists have attacked Lasuna village and even some people died and, hence, he recorded the sanha and this was the first information report and it has been contended that the said sanha has not been proved. However, merely an information received of an occurrence may not be treated as a first information report and merely the sanha has not been proved that by, itself, will not caste a doubt on prosecution case unless a prejudice shown to have caused to the accused persons.
46. The learned counsel for the appellants, further, contended that there is delay in sending the first information report or the fardbeyan to the Magistrate as the occurrence took place on 18th May, 2004, after recording the fardbeyan, but, the first information report has been seen by the Magistrate on 21st May, 2004, and, hence, there is delay of three days, 33 but, there is no explanation and has placed reliance upon decision reported in 1994 Suppl. (2) S.C.C., 372 (Arjun Marik & Ors. Vrs. The State of Bihar) and A.I.R. 1971 S.C., 1221 (the State of Punjab Vrs. Tarlok Singh) merely sending the first information report or delay in receiving the first information report by the Magistrate, itself, no ground to disbelieve the prosecution case or to doubt about the occurrence unless it is shown that there was fabrication by the prosecution case or the investigating officer or manipulation in developing the prosecution, itself, it has been observed that all depends upon the facts and circumstances of each case where the circumstance of delay may lead to serious consequence, however, nothing has been shown or suggested about any prejudice or seriousness affecting the prosecution case due to delay in sending the first information report.
47. Learned counsel for the appellants, further, contended that the statement by informant in the fardbeyan deferring from that in Court by addition o the appellants not find mention in fardbeyan and, hence, suffers from omission which amounts to contradiction and has placed reliance upn decision reported in (1976) 4 S.C.C., 355 (Ishwar Singh Vrs. State of U.P.). However, the prosecution case in the fardbeyan, itself, is that 60-70 persons came forming an unlawful assembly resorting to firing indiscriminately in Paswantola and even the names of the appellants find place in the fardbeyan. However, the witnesses have not mentioned in specific detail about the participation of the appellants and even the informant has not specifically mentioned about the participation and, hence, it has been asserted that it is an omission that the names of the appellants have not been named specifically regarding the act or the manner in minute details regarding the participation. However, the prosecution case, itself, in 34 the evidence also the same that 60-70 persons came resorting to firing causing death of four persons and, thereafter, in evidence a detailed discretion has given about the participation of the appellants. However, it can not be said that whatever not stated can not co-exist with what has been stated in evidence and at times it is well settled that mere omission regarding the minute details may not amounts to contradiction as the contention that what the witness ought to have stated the important features of incidence which are expected to include in the statements has been held to be not tangible in paragraph 25 of decision reported in A.I.R. 1959 S.C., 1012 (supra). Further, before taking an omission or contradiction the attention of witness ought to have been drawn with regard to the statements which are to be used for the purpose of contradicting as envisaged under Section 162 of the Criminal Procedure Code read with Section 145 of the Indian Evidence Act, 1872, and, hence, omission about the minute details about the occurrence for the participation may not be treated as contradiction as omission in all cases are not contradiction. However, the decision relied upon by the appellants is not applicable to the facts and circumstances of this case that in the first information report it was stated that the accused persons came uninvited to the house and demanded why he had demolished the drain whereas in Court the informant stated that he had invited some people to his house to effect the settlement between him and Ishwar Singh and that he had sent Ghanshyam to call Ishwar and, hence, there was the creation in the prosecution case and, further, taking into consideration the facts and circumstances, however, the prosecution case in it's substratum has not been changed, but, it was pointed out some omission, however, that omission has also not been established in accordance with law nor the attention has been 35 drawn with regard to the previous statement recorded by the investigating officer which are to be used for the purpose of contradicting and, hence, the facts and circumstances the decision reported in (1976) 4 S.C.C., 355 (Ishwar Singh Vrs. State of U.P.) is not applicable to the facts and circumstances of this case.
48. Taking into consideration the entire evidence since the prosecution has duly established that 60-70 persons came making firing causing death of four persons and the death of four persons having been established by the inquest report and the post mortem report, the place of occurrence has been established by the witnesses and the investigating officer and the occurrence at about the time and days established by the evidence of P.Ws. 8, 10 and 11, who have named the appellants having taking participation in the occurrence and have been identified. The evidence of three witness who have supported the prosecution case is in regarding the participation of the appellants in the unlawful assembly resorting to firing causing death of four persons and, hence, the participation of the appellants has been established by cogent, reliable and unimpeachable evidence.
49. I find and hold that the prosecution has been able to establish the charges against the appellants under Section 302/149 of the Indian Penal Code.
50. However, as the sentence of the appellants is concerned, there is only evidence that the appellants were members of the unlawful assembly resorting to firing, guided by mob mentality and, hence, as per the allegation and evidence it is not one of the rare of rarest case for extreme punishment, hence, the end of justice shall meet by converting the 36 penalty of death to imprisonment for life against the appellants and, hence, with this modification in sentence the Criminal Appeals are dismissed.
51. The Death Reference is answered in negative. The Criminal Appeals are dismissed with the above modifications.
( Gopal Prasad, J. )
Shyam Kishore Sharma, J. I agree.
(Shyam Kishore Sharma, J.)
The Patna High Court,
The 05th day of August, 2010,
N.A.F.R./S.A.