Patna High Court
State Of Bihar vs Ram Bachan Singh And Ors. on 3 September, 1980
Equivalent citations: 1981(29)BLJR212
JUDGMENT Brishketu Saran Sinha, J.
1. This Death Reference and the three Criminal Appeals arise out of the Judgment passed in Sessions Case No. 84 of I979 by Shri Anirudh Prasad Sinha, 1st Additional Sessions Judge, Gaya. Therefore, by consent of parties, they have been heard together and this judgment will govern them all.
2. Death Reference 9 of 1979 is a reference by the learned Additional Sessions Judge under Section 366 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for confirmation of the death sentence passed on Ram Bachan Singh and Kamaldeo Singh. Criminal Appeal No. 400 of 1979 has been filed by appellants Ram Janam Singh, Udai Narain Singh, Lalan Singh, Nunu Singh, Shyam Nandan Singh. Bithal Singh and Ranjan Singh. Ram Bachan Singh, Ramasrey Singh, Munni Singh and Jai Bihari Singh are appellants in Criminal Appeal No. 402 of 1979, and Kamaldeo Singh, Kameshwar Singh, Balmiki Singh, Rajendra Singh and Shyamdeo Singh are appellants in Criminal Appeal No. 403 of 1979. One Shyama Singh was also tried with them but he was discharged under Section 227 of the Code on 28th February, 1979, at the time when charges were being framed against the accused by the Court of Session.
3. Accused Ram Bachan Singh and Kamaldeo Singh who are also appellant No. 1 in Criminal A. 402 and 403 of 1979 respectively, have been convicted under Section 302 of the Indian Penal Code and given death sentences for committing the murder of Vijoy Singh and Shyam Narain Singh respectively. Ramasray Singh and Udai Narain Singh (appellant No. 2 in Criminal Appeal 402 and 400 of 1979 respectively have been convicted under Section 302/109 of the Indian Penal Code and sentenced to imprisonment for life for abetting the murders of Bijay Singh and Shyam Narain Singh respectively. All the appellants in the three appeals except appellants Rambachan Singh and Kamaldeo Singh (who have been convicted and sentenced for the substantive offence under Section 302, Indian Penal Code) have been convicted under Section 302 read with Section 149 of the Indian Penal Code and sentenced to rigorous imprisonment for life. All the appellants have been convicted under Section 148 of the Indian Penal Code as well but no separate sentences have been passed. Appellant Ram Bachan Singh has also been convicted under Section 27 of the Arms Act but no separate sentence has been imposed.
4. 17th of March, 1976, was the day following Holi, i.e. the second day of Chait. As is customary in this part of the country, in village Asiyawan as well within Jahanabad police station, there was in the evening, community singing of chaitar by the villagers. However. before it was even late in the night, the gaiety in the village was shattered by violence and blood was shed. Vijoy Singh and Shyam Narain Singh were shot to death and four other persons including Ranjan Singh and Ramasray Singh (appellants) and the discharged person Shyam Singh had suffered gun shot injuries.
5. On 18th March, 1976, Sheo Pujan Singh, who was then the officer-in-charge of Jahanabad Police Station, had gone to village Asiyawan to investigate Jahanabad Police Station Case No. 18(3)76. At 4 A. M. he recorded the Fardbeyan of Nemu Narain Singh (P.W. 13) on the basis of which a first information report was drawn at 9 A. M. on the same date which is Exhibit 9. According to the informant, at 9 P. M. on 17th March, 1976, after taking his meal, he was preparing to go off to sleep on the eastern verandah. His father, Kambalak Singh (P.W.9), Nand Kishore Singh (P.W. 8), Nawal Kishore Singh (P.W. 4), Lal Kishun Singh (P.W.3), Dhwaja Singh (P.W. 7) and the deceased Shyam Narain Singh and Vijay Singh and one other person Brij Kishore Singh were talking on that verandah. At that time he heard a number of people shouting Bajrang Bali Ki Jai'. This sound came from the south. It was followed by the sound of gun firing. A little later, they heard again the shouting of 'Bajrang Bali Ki Jai' from towards the west of their house and it appeared that the mob had come close to their house. All the persons then moved to the northern verandah and began to look towards; the west. Vijay Singh got down from the verandah and started looking towards the west. At that point of time Ramasray Singh (appellant No. 2 in Criminal Appeal 402/79) said that one person had come and he should be assaulted. On this Ram Bachan Singh (appellant No. 1 in Criminal Appeal 402/79) fired a gun which hit Vijoy Singh and he fell down. Shyam Narain Singh ran down; to see Vijoy Singh. Immediately then Udai Narain Singh (appellant No. 2 in Criminal Appeal 400 79) ordered assault on which Kamaldeo Singh (appellant No. 1 in Criminal Appeal 403/79) fired at Shyam Narain Singh which hit him and he fell down as well. Nemu Narain Singh, by then, saw a mob of 25-30 persons armed with gun, pistols, Bhalas and Garasas. He, therefore, took out his gun and in his defence fired twice on which the mob took to their heels and fled towards west. According to the informant, prior to his firing the mob had fired five or six times. Shyam Narain Singh, according to the informant, uttered 'Hay Bhagwan' and died while Vijoy Singh died without speaking a word. On hulla various persons including (P.W. 2) Ramnandan Singh arrived at the place of occurrence to whom the incident was narrated by the informant.
6. The motive for the occurrence, given by the informant, was land dispute between him and the appellants Udai Narain Singh, Rajendra Singh Balmiki Singh, Kameshwar Singh and Shyamdeo Singh as also a suit regarding land pending between the son-in-law of the informant's uncle Prabhu Narain Singh and Ramasray Singh and Ors.s. In this suit it was alleged that Shyam Narain Singh was doing Pairvi for the son-in-law of Prabhu Narain Singh It was also stated that a few days before this occurrence the appellants stole away Masuri from Nemu Narain's field regarding which a case had been instituted at Jahanabad Police Station. It was further said that because of these reasons on the evening of the occurrence, the appellants had assembled at the house of Udai Narain Singh, who was the Mukhiya of the village on the pretext of singing chaitar and had at that place hatched a plot to kill the informant's family members.
7. After recording the Fardbeyan the investigating officer started investigating the case. He held inquest on the dead body of the deceased in presence of witnesses Parsuram Singh and Ramnandan Singh (P.Ws. 1 and 2). The inquest reports are exhibits 5 and 5/1. After preparation of the inquest reports Nemu Narain Singh the informant, filed a petition before the investigating officer in his own hand writing and under his signature requesting that the dead bodies be sent to Gaya for post-mortem examination as he had suspicion that proper report would not be made at Jahanabad, this petition is Ext. 6. The dead bodies were, therefore, sent to Gaya for post-mortem examination. The investigating officer also seized a double barrel gun which was produced by Nemu Narain Singh. He further seized a gun from the house of appellant Ram Bachan Singh, the seizure list for which is Ext. 7. According to the investigating officer, smell of firing came from the gun seized from the house of Ram Bachan Singh. On 18th March, 1976 itself, the investigating officer inspected the place of occurrence and prepared a rough sketch map which is Ext. 8. The investigating officer also seized blood stained clothes from the place of occurrence as also blood stained earth. The blood stained clothes and earth were sent to the Director, Forensic Science, Bihar, Patna, for examination It appears that the report of the Director, Forensic Science, with regard to the item sent to him for examination was marked as Ext. 10 in the Court below However, the letter, forwarding the blood stained materials which were put in separate marked packets, were not marked as exhibit although it was on the records of the case and in the absence of the forwarding letter it was difficult to connect the various items of the different packets with regard to which the Director of Forensic Science had sent his report. Therefore, during the course of argument before us, an application was filed on 7th August, 1960, praying that the forwarding letter of the investigating officer may also be marked as an exhibit along with the report of the Director of Forensic Science. Learned standing counsel No.III, appearing for the State, had no objection to this and accordingly, the report of the Director, Forensic Science along with the forwarding letter, sent by the investigating officer was marked in this Court as Ext. 10/1 which is borne out by order dated 20th August, 1960. Learned Counsel for the parties also agreed that it would not be necessary to examine the appellants any further under Section 313 of the Code. After completing investigation and on receipt of the post-mortem reports and other documents, the police submitted charge-sheet. The case, after the usual proceedings for commitment was sent to the Court of Session for trial.
8. At the trial, the prosecution examined 14 witnesses. P.Ws. 3,4,7,8,9, and 13 are eye-witnesses to the occurrence; P.Ws. 1 and 2 are the witnesses of inquest (P.W. 6) is an eye-witness who has not been named in the Fardbeyan (P.W.5) is a witness of the seizure of blood from the place of occurrence, (P.W. 10) was tendered, P.W. 12 is a formal Witness, P.W. 11 is an Assistant Professor of Surgery who held post-mortem on the two dead persons and P.W. 14 is the investigating officer. The prosecution also filed a number of documents in support of its case.
9. The defence of the appellants at the trial has been a denial of the occurrence as alleged by the prosecution. It further appears that their defence is that on the evening of 17th March, 1976, at 9.15 P. M. appellant Ramasray Singh was returning home after singing chaitar at the house of appellant Udai Narain Singh. He went to his Khalihan where his father Ranjan Singh, Shyam Singh and Ors.s were sitting. At that time chaitar was being sung in the house of Ram Balak Singh. Suddenly 20-25 persons rushed towards Ramasray Singh and ordered assault. Nawal Kishore Singh (P.W.4), the son of deceased Shyam Narain Singh, and Vijoy Singh, the other deceased and Shyam Narain Singh who along with 20 to 25 persons were variously armed with gun, bhalas and garasis etc. began to fire. Because of the firing by Vijoy Singh and Nawal Kishore Singh, Ramasray Singh was hit. As the firing had gone on for a long time, two other persons were injured. Information about this was lodged at the Jehanabad Police Station on 18th March, 1976, at 1.30 A.M. The four injured persons were examined the same night by a doctor at Jehanabad. The doctor has been examined by the defence as (D.W. 1). It may be noted here that it was to investigate this case which was numbered as Jahanabad Police Station Case No. 18(3) 76 that the investigating officer had gone to village Asiyawan where at 4 A. M. he had recorded that fardbeyan of the informant Nemu Narain Singh. The number of the case instituted by Nemu Narain Singh is Jehanabad Police Station Case No. 19(3) 76.
10. It may be mentioned that in the first information report lodged by Ramasray Singh which is Ext. A, there is mention of gun shot injury on three persons only. On that night the doctor (D W. 1) examined and found gunshot injuries on four persons, namely, Ramasray Singh (appellant No. 2 in Criminal Appeal 402/79), Ranjan Singh (appellant No. 7 in Criminal Appeal 400/79), Shyama Singh (D.W. 8) who has been discharged by the Sessions Court and Nanhak Singh who has not been mentioned anywhere. There is also a plea of alibi on behalf of Shyamnandan Singh (appellant No. 5 of Criminal Appeal 400/79). According to (D.W. 3) Shyam Nandan Singh was in his treatment for typhoid from 14th March, 1976 to 21st March, 1976. The alibi of Udai Narain Singh (appellant No. 2 in Criminal Appeal 400/79) is that on the date of occurrence he was at Mokameh where he had gone for the funeral of his uncle Borhan Prasad Singh alias Brahmadeo Narain Singh. The funeral was performed on 17th March, 1976, between 9 and 10 P.M. (D.W. 4) who at the relevant time the Vice-Chairman of Mokameh Municipality, has deposed in support of his case as also (D.W. 5) Sadhu Saran Sharma and (D. W. 6) Rabindra Prasad Sharma. The defence has also examined the Deputy Superintendent of Police of Jahanabad, at the relevant time, who had supervised the case.
11. The defence also filed certain documents to show that some of the appellants were on inimical terms among themselves. This was done to demonstrate that it was rather improbable that persons who were on inimical terms among themselves would combine together to commit the crime as alleged by the prosecution. The learned Additional Sessions Judge, however, on a consideration of the materials and the circumstances of the case has convicted and sentenced the appellants as stated above.
12. Before considering the merits of the case it would be convenient at the outset to briefly describe the place of occurrence and its surroundings. It must, however be noted that by going through the evidence of the witnesses. I am inclined to take the view that the rough sketch map, prepared by the investigating officer, could have been improved upon. However, by going through the evidence of the witnesses with regard to the topography, which is not vary seriously challenged, and the rough sketch map, what seems to emerge is that the Dalan of Nemu Narain Singh has a verndah facing north which is about 30 to 31 cubits long east to west and five or six cubits broad north to south. There is a similar verandah east of the Dalan. Beyond the northern verandah there is a lane about six to seven cubits wide north to south. North of this lane is the Dochara of Nemu Narain Singh which has been shown in the map as Goshala . West of this Dochara is the Parti field of one Mosafir Singh and in its vicinity is the Khalian of Ramasray Singh. South of Mosafir Singh's Parti field is the Goshala of Ramasray Singh south of which is his Dalan and verandah. In between the house and Dalan of Nemu Narain Singh and the Dalan of Ramasray Singh is a lane. This lane is west of the Dalan of Nemu Narain Singh and east of the Dalan of Ramasray Singh. On the east of the Dochara and the Dalan of Nemu Narain Singh facing the lane which runs west to east, is the house of Ram Barat Singh. In the Dalan of Nemu Narain Singh there is a Khand which has one or two rooms as also in which arrangements are made to tie the cattle. Through this Khand one can go to the female apartment of Nemu Narain Singh which is south of the Dalan. In the map it is further shown that towards south-east of the female apartment of Nemu Narain Singh is the house of Lalan Singh (appellant No. 3 of Criminal Appeal 400/79).
13. It may be stated here that there were three brothers, Ramchandra Singh, Prabhu Singh and Kirit Singh. Kirit Singh has two sons Rambachan Singh and Ramasray Singh who are appellants No. 1 and 4 respectively in Criminal Appeal 402 of 1979 and Rambachan Singh is one of the persons who has been given the death sentence. Ramchandra Singh has two sons, Ram balak Singh and Bharath Singh who are (P.Ws. 9 and 10). Vijoy Singh, a victim of the occurrence, was the son of Bharath Singh and the other victim Shyam Narain Singh was the son of Rambalak Singh. The other son of Ram balak Singh is Nemu Narain Singh (P.W. 13). He has three other sons also. The son of deceased Shyam Narain Singh is Nawal Kishore Singh (P.W. 4). Nemu Narain Singh's son is Nand Kishore Singh (P.W. 8). Prabhu Singh had one daughter, Dhanwanti Devi who is married to Dhanesh Singh, resident of village Kosi Dihra. The evidence of relationship is to be found in the depositions of (P.Ws. 3 and 9). It will thus be seen that two of the appellants and the members of the prosecution party belong to the same family.
14. There are, as I see, two broad features of the case which need to be noticed at the very outset. I have already stated above that Nemu Narain Singh gave his fardbeyan at his house when the investigating officer went there at about 4 A. M. i.e. seven hours after the occurrence. According to the prosecution, till then although two persons had been killed in the family of Nemu Narain Singh, no attempt had been made by him or others to lodge any information about the occurrence. The two deceased persons, according to the prosecution, had died immediately on being fired at and after the occurrence a large number of persons had collected at the place of occurrence. Before us the learned Standing Counsel has submitted that no adverse inference can be drawn because of this delay in-as-much-as it was quite natural that the members of the prosecution party must have been overwhelmed with sorrow and grief and hence there is nothing improbable if no steps were taken till then. It was also submitted that in view of the cold blooded manner in which Vijoy Singh and Shyam Narain Singh had been shot dead the members of the prosscution party must have been afraid to go to the Police Station at night which was at a distance of ten miles. The explanation advanced do not seem to be very convincing. Nemu Narain Singh, according to his own statement in the fardbeyan, has stated that when he saw two of his relatives killed, he immediately brought out his gun and fired twice at the mob. His reactions were not of a person who was afraid. Further from the evidence on record it appears that the family has faced lots of Civil and Criminal litigations and are conversant with the ways of law. It might also be noticed here that Nemu Narain Singh is an educated person and is the Headmaster of the Sarvodaya High School, Lari. In other words, he is not a rustic villager. Similarly, (P.W. 4) Nawal Kishore, who also belongs to the same family is educated and is a Research Scholar in the Department of Zoology in the Magadh University.
15. Mr. A.K. Sen, appearing for some of the appellants, laid great emphasis on the delay in lodging the Faradbeyan. He was, in course of his arguments, particularly emphatic to draw our attention to the fact that for seven hours no attempt had been made by any one on behalf of the prosecution to approach any authority. Be that as it may, this much seems to be obvious that the delay of seven hours is not capable of an innocent or a very probable explanation.
16. The second important aspect is that according to the prosecution both Vijoy Singh and Shyam Narain Singh were shot at and they fell down in the lane in front of the northern verandah of Nemu Narain Singh and it was only when the mob had fled away that their dead bodies were carried to the eastern verandah and to the Sahan, east of the eastern verandah. The investigating officer had seized blood stained earth from the lane and had put it in a separate cover which was marked as exhibit A and sent to the Director, Forensic Science. The report of the Director shows that no blood could be detected in the earth which was marked as Ext. A. Therefore, Ext. 10/1 does not support the prosecution case that the two deceased were shot dead in the lane. According to (P.W. 3) he helped in carrying the dead body of Shyam Narain Singh to the eastern verandah where it was placed on a Chowki and that of Vijoy Singh to the Maidan east of the eastern verandah where it was placed on a cot. Blood had been found by the investigating officer below the cots of Shyara Narain Singh and Vijoy Singh which would show that blood was oozing out of their bodies even when they had been carried and placed on the verandah and the maidan. (P.W. 3) has further said that the deceased were bleeding when their bodies were being carried. But the investigating officer has categorically stated in paragraphs 12 of his deposition that he did not find any trail of blood, from the places where the dead bodies of Vijoy Singh and Shyam Narain Singh were, to the lane in between the Dalan and the Dochara. The absence of blood, either in the lane where the two deceased were shot at and fell down, particularly, as also the absence of trail of blood in the lane would be circumstance which would go against the prosecution version of the occurrence. It is difficult to accept the submission of Mr. standing Counsel that the blood in the lane must have been wiped away because many persons must have walked in that lane during the night.
17. That Shyam Narain Singh and Vijoy Singh died as a result of gun shot injuries admits of no doubt. The post-mortem reports coupled with the evidence of Dr. Md. Iqbal Mallik (P.W. 11) who conducted the post-mortem affirmatively show that both died near about the time of occurrence as alleged by the prosecution because of gun shots. He conducted the post-mortem examination of Shyam Narain Singh on 18th March, 1976, at about 4 P.M. in the Pilgrims Hospital at Gaya. He found on his person one lacerated wound about half inch in diameter between the left shoulder and the left side of the neck about 14" above the left clavicle. The margin of the wound was inverted and no exit of the wound was detected. He also found a lacerated wound about half inch in diameter on the inner angle of the right eye. The wound was inverted and there was no mark of singeing nor of tatooing round the wound of entry. On dissection, with regard to the first injury he found two wounds of entry, one was on the left side of the neck between the shoulder joint and the neck. It went from the upper part of the chest on the left side of the back of the paricardium and upper part of the right side of the chest cavity causing injury to the right lung in the middle. The fifth intercostal space on the right side of the chest cavity was found to be ecchymoised. The chest cavity was full of blood, A round metallic piece (bullet) was found in the right side' of the chest cavity. The second injury had led to the fracture of the lateral wall of the right orbital cavity and on flat metallic piece was found embedded in the muscle of the right temporal region. The injuries were ante-mortem and were caused by fire-arm and the time elapsed since death was 12 to 24 hours. The injuries, according to the doctor, were sufficient in the ordinary course of nature to cause death.
18. On Vijoy Singh, the doctor (P.W. 11) held post-mortem examination on 18th March. 1976, at 2 P.M. He found two injuries, one was an oval lacerated wound of entry on the left paristal region of the skull, and the other was a round lacerated wound of entry on the junction of the left posterior occipital region, five inches above the left ear. On dissection of the first injury, the doctor found blood clots around the wound and brain substance was protruding through the wound. The meninges and the brain substance were found torn and lacerated. The occipital fossa and the frontal fossa of the skull contained blood clots. Small bone chips were found in the brain matter. A metallic piece was found lodged in the frontal fossa. The second injury travelled from the junction of the left postero occipital region and found its exit through the nasal orifice. The scalp wound was ecchymoised. The injuries were ante-mortem, caused by fire-arm and time elapsed since death was 12 to 24 hours. The injuries, according to the doctor, were sufficient in the ordinary course, to cause death. The matallic pieces found in the dead bodies were kept in phial, sealed and handed over to the constable who had brought the dead bodies.
19. The evidence of the doctor by itself, therefore, leaves no room to doubt that Shyam Narain Singh and Vijoy Singh met violent death which was the result of gun-shots. However, it has still to be determined whether the occurrence took place i.e. whether the two deceased mat their deaths, in the manner as alleged by the prosecution.
20. I have already stated above that there are seven witnesses who claim to have seen the occurrence or a part of it. Out of them (P.W. 6) Chhatrad-hari Singh was not named as an eye witness in the fardbeyan. (P.Ws. 4,8,9,10 and 13) belong to the same family as appellants Ramasray Singh and Ram Bachan Singh, being sons, grandsons and great grand-sons of Ramchandra Singh (P.Ws. 9 and 10) Rambalak Singh and Bharath Singh respectively are the sons of Ramchandra Singh and one of the deceased Vijoy Singh was the son of Bharath Singh. Rambalak Singh's son is Nemu Narain Singh (P.W. 13), the informant. Nemu's own brother Shyam Narain Singh was the other person killed in the occurrence. Nawal Kishore Singh (P.W. 4) is the son of the deceased Shyam Narain Singh and Nand Kishore Singh (P.W. 8) is the son of the informant Nemu Narain Singh. Rambalak Singh (P.W. 9) has admitted that there had been a case under Section 107 of the Code between his family and the family of Ramasray Singh. He has further stated that there was a partition suit between Dhanwanti Devi, the daughter of Prabhu Singh on one side and Ramasray Singh and others on the other side in which Rambalak Singh (the witness) had deposed against Ramasray Singh. He further volunteered that in aforesaid partition suit he was a defendant. From his evidence it is abundantly clear that there were litigations between the heirs of Ramchandra Singh on one side and those of Kirit Singh i.e. appellants Rambachan Singh and Ramasray Singh on the other. At this very stage it would also be useful to notice that the two deceased Shyam Narain Singh and Vijoy Singh as well as Nawal Kishore Singh (P.W. 4) were named as the assailants in the case lodged by Ramasray Singh on 18th March, 1976, at Jahanabad Police Station which was numbered as Jahanabad police Station Case No. 18(3) 76. Therefore, five out of the eight eye-witnesses not only belong to one family but had previous enmity with Ramasray Singh and Rambachan Singh.
21. Of the remaining three witnesses, Lal Kishun Singh (P.W. 3) has admitted in his cross-examination that about eight months prior to this occurrence he had filed a case of assault against one Kirit Singh and appellants Rambachan Singh and Ramasray Singh and further, that there was a case under Section 103 of the Bihar Tenancy Act between this witness and appellant Ramasray Singh. Similarly, there was a case under Section 103, Bihar Tenancy Apt, between him and Jai Bihari Singh (appellant No. 4 in Criminal Appeal 402 of 1979). It may further be noticed that this witness was an accused in the case instituted the same night by Ramasray Singh. Although he has said that he does not remember whether in a case for compulsory registration and a civil suit instituted by Bharath Singh (P.W. 10) against Udai Narain Singh (appellant No. 2 in Criminal Appeal 400 of 1979) he was a witness, Ext. G/1 and G/2 show that he had deposed for Bharath Singh in those cases. He has further admitted that there was litigation between Lalan Singh (appellant No. 3 in Criminal Appeal 400 of 1979) on one side and his father on the other. Similarly, there had been litigation between him and Nunu Singh (appellant No. 4 of Criminal Appeal 400 of 1979). These litigations were under Section 103 of the Bihar Tenancy Act. There was also a litigation between him and the uncle of Udai Singh (appellant No. 2 in Criminal Appeal 400 of 1979). All these go to show that apart from having enmity with some of the appellants he has also previously been a witness in cases between the family of Nemu Singh and Ors....
22. Chhatradhari Singh (P.W. 6) the next witness has also accepted that in the case instituted by Dhanwanti Devi against Ramasray Singh and Rambachan Singh he had given evidence in support of the case of Dhanwanti Devi. In a proceeding under Section 107 of the Code between deceased Shyam Narain Singh and Shyamdeo Singh (appellant No. 5 in Criminal Appeal 403 of 1979) he had given evidence on behalf of Shyam Narain Singh which is borne out by Ext. G/7. However, in his evidence he denied having deposed on behalf of Shyam Narain Singh (P.W. 10) Bharath Singh had fought civil suit against Kamesh-war Singh and Rajendra Singh (appellants No. 2 and 4 respectively in Criminal Appeal 403 of 1979) and Udai Narain Singh (appellant No.2 in Criminal Appeal 400 of 1979). This witness denied that he had given evidence on behalf of Bharath Singh in that case. Ext. G/3, filed on behalf of the defence, however, show that he had deposed for Bharat Singh. From the discussions above, it is clear that previously also on a number of occasions, in litigations between the informant and his family members on one side and the appellants on the other, this witness has deposed on the side of the informant's family.
23. (P.W. 7) the third witness, is the son of(P.W. 6). He is also an accused in the case instituted by Ramasray Singh. He had given evidence to support the case of Dhanwanti Devi against Ramasray Singh and Ors. in the partition suit. He also admits that in a case for assault between Lal Kishun Singh (P.W. 3) and appellant Ramasray Singh and Ors., he had given evidence from the side of Lal Kishun Singh, He further admitted that the deceased Shyam Narain Singh had instituted a case in respect of cutting of Masuri crop against Dukhan Singh (who was the father of Rajendra Singh, appellant No. 4 in Criminal Appeal 403 of 1979) and Rajendra Singh in which case he had given evidence on behalf of Shyam Narain Singh. He is, therefore, another witness who has even previously deposed on behalf of the members of the family of Nemu Narain Singh against some of the appellants.
24. (P.W. 10) has admitted in his cross-examination that there are two groups in village Asiyawan and 10 to 15 families of Asiyawan are with him and his family members. The discussions above, therefore, show that all the eye-witnesses are partisan witnesses in the sense that they are either members of the family of the two deceased persons and the informant or in previous litigations with some of the appellants, have been supporting the informant and his family members. The Court, therefore; has got to be cautious in scrutinising the evidence of these witnesses.
25. It had been brought to our notice by Mr. Balbhadra Prasad Singh, who appeared for some of the appellants, that the statements of (P.Ws. 7 and 8) Rajbali Singh and Nand Kishore Singh respectively, as recorded by the investigating officer, were in violation of the provisions of Section 161(3) of the Code. The case-diary shows that with regard to these two witnesses the investigating officer has written that they repeated the version of the prosecution. The investigating officer has accepted that with regard to Nand Kishore Singh (P.W. 8) he had written in the case-diary that this witness repeated the version of the prosecution. He has further stated in his deposition that he did not write the statements exactly as they were made by Rajbali Singh and Nand Kishore Singh nor has he noted the detailed descriptions of their statements. Section 161(3) of the Code provides that when a Police officer reduces into writing any statement made to him in the course of an examination under this section, he shall make a separate record of statements of each such person whose statements he records. Therefore, when the investigating officer only recorded that these two witnesses repeated the prosecution version, the provisions of Section 161(3) of the Code were contravened.
26. In the case of Tilkeshwar Singh and Ors. v. The State of Bihar . it was pointed out that the failure to comply with the requirements of Section 161(3) of the Code might affect the weight to be attached to the evidence of such witness but it does not render evidence inadmissible. In stating this law their Lord-ships also approved a Bench decision of the Calcutta High Court in the case of Bejoy Chand Patra v. The State . It was further pointed out in that case that the value of the evidence of such witness would be greatly impaired.
27. Mr. Singh has placed great reliance on the Calcutta case (supra) where Harries, C. J. pointed out that although the evidence of such witness is not inadmissible, the failure to comply with the provisions of Section 161(3) of the Code might throw very grave doubt upon the evidence of the witness and it was a matter which the Court was entitled to consider when dealing with the credibility of such witness. Learned Counsel pointed out that in that case the learned Chief Justice has further observed that such witnesses should be disbelieved on the assumption that their statements, if properly recorded, would have contradicted their evidence in Court. In view of the aforesaid two decisions it is not necessary to consider a Single Judge decision of the Madras High Court in the case of Chenchu Gangi Reddi and Ors. v. State of Andhra Prudish , and a Bench decision of Nagpur High Court in the case of Shyama Rajaram Pardhan and Anr. v. Emperor A.I.R. 1949 Nag. 260. Applying the principles stated above, in my opinion, therefore, the evidence of (P.Ws. 7 and 8) cannot be held to be inadmissible and indeed Mr. Singh did not argue that their evidence should be held to be inadmissible. However, their evidence has got to be considered with great caution.
28. (P.W. 7) has, in his evidence, completely supported the informant's case and has named all the appellants with their respective weapons. He has further stated that after the occurrence he remained at the Dalan of Nemu Narain Singh for the whole night where 40 or 50 persons had gathered and he was there till the investigating officer came and recorded the fardbeyan of Nemu Narain Singh. He has denied that on the night of occurrence, after the occurrence, he had gone to village Baseri from where, in the company of Umesh Singh and Sukhdeo Singh, he went to village Kodihra where Dhanesh Singh, the husband of Dhanwanti Devi, lives and from village Kodihra he went to the residence of the Deputy Superintendent of Police at Jehanabad with Awadh Singh, the brother of Dhanesh Singh. He also denied that he told the Deputy Superintendent of Police that at about 12 O'clock in the night of the occurrence he heard gun firing and he quietly went out of his village to village Baseri and from there to village Kodihra and then to Jahanabad. Shri Brij Nandan Prasad Singh 'Bikat' who was the Deputy Superintendent of Police of Jehanabad at the relevant time has deposed as (D.W. 2) in this case and he has stated that he had examined Rajbali Singh in the course of his supervision who had told him that till about 12 midnight on the night of occurrence, he had heard the sound of phatohut and further that he had gone out by the east of the village taking Umesh Singh and Sukhdeo Singh from Baseri and had gone to Jahanabad and from there he had again gone to Kodihra and then went to the Deputy Superintendent of Police with Awadh Singh at about 4.30 A. M. in the morning and told him about the occusrence. This statement of the Deputy Superintendent of Police casts great doubt on the truthfulness of (P.W. 7) Rajbali Singh. I would, accordingly, place no reliance on his evidence with regard to the prosecution case.
29. The next witness Nand Kishore Singh (P.W. 8) is the son of the informant Nemu Naran Singh. He has also supported the prosecution case . He has clearly stated in his examination-in-chief that as Vijoy. Singh got down from the verandah, appellant Ramasray Singh said "one man had come, assault him" upon which appellant Ram Bachan Singh fired his gun. Vijoy Singh then fell down with injuries on the ground. Thereafter Shyam Narain Singh also got down and on the orders of Udai Narain Singh, appellant Kamaldeo Singh fired his gun at Shyam Narain Singh which hit him and he also felt down on the ground. He has further said that after these two persons felt down, his father Nemu Narain Singh went running, brought out his gun and fired twice at the mob. He asserted that he had made all these statements before the police as well. However, the investigating officer, in paragraph 30 of his evidence, has stated that Nand Kishore Singh did not tell him about the firing on Vijoy Singh and Shyam Narain Singh by Ram Bachan Singh and Kamaldeo Singh nor did he state before him about the orders given by Ramasray Singh and Udai Singh. Nand Kishore Singh (P.W. 8) also did not tell the police that Nemu Narain Singh had brought out his gun and fired two-shots. It is obvious, therefore, that in Court he has developed his version to support the prosecution case. I am, therefore, not inclined to place any reliance upon his evidence as well.
30. It would be convenient to consider the evidence of (P.W. 9) Rambalak Singh. He is the father of the deceased Shyam Narain Singh and uncle of deceased Vijoy Singh. He has also supported the prosecution case and has-further said that he identified 14 of the appellants in electric light. He has given the details of the assault and the firing. This witness was aged about 77 years at the time that he had deposed. From the witness box he could not identify the third man standing in the dock from the western side because he was not clearly visible although two bulbs were burning in the court-room. When he was shown one pencil and one fountain pen by the learned advocate cross-examining him, the witness said that there are spectacles in the hand of the advocate. The learned Judge has noted that the distance between the advocate and the witness was eight feet. Even the, learned Additional Session, Judge, in paragraph 15 of his judgment has stated that when the incident took place three years before Rambalak Singh was deposing, it is very doubtful if this-witness could be in a position to identify all the accused persons named by him as members of the unlawful assembly at the relevant time. The learned Judge, however, went on to say that the possibility of his identifying the two abetters, namely appellants Ramasray Singh and Udai Narain Singh as well as Ram Bachan Singh and Kapildeo Singh who fired fatal shots, could not be ruled out as improbable as these persons must have been in the fore-front. In view of the fact that the witness, in broad day light in a court-room where two electric bulbs were burning, could not identify a pencil and a fountain-pen held at a distance of eight feet from him, it is extremely doubtful that at night in the electric light the witness could have been in a position to identify the members-of a mob and those who were giving orders to shoot as also those who shot on receiving those orders. It is not the case of Rambalak Sing that his eye-sight became feeble recently. I am, therefore, inclined to take the view that it would not be safe to rely upon his evidence at all.
31. (P.W. 10) is another eye-witness mentioned in the fardbeyan. He is the father of the deceased Vijoy Singh and the uncle of deceased Shyam Narain Singh. He is the younger brother of Rambalak Singh (P.W. 9) as his age is 72 years. He has been tendered and in his cross-examination he has stated that his vision at present is very dim and it goes up to a distance of five to six feet only. His evidence, therefore, is not of much avail to the prosecution case.
32. I will now proceed to consider the evidence of (P.W. 4) Nawal Kishore Singh who is the son of the deceased Shyam Narain Singh. Although in the Fardbevan Nawal Kishore Singh is mentioned as one of those persons who was also on the eastern verandah at the time when the mob came, he has said in his evidence that at about 9 P. M. he was in his female apartment and after taking his meals was getting ready to go off to sleep. At that time he heard the sound of Bajrang Bali Ki Jai and the next moment, a gun shot. On hear-ring the sound of gun shot he wanted to go out but his mother prevented him from doing so. In the mean-time, he heard the sound of a second gup shot. Then he proceeded outside and at that very time he saw that his uncle Nemu Narain Singh (P.W. 13) came into the female apartment, took out his gun and again went out. Nawal Kishore Singh followed Nemu Narain Singh who went on the northern verandah and fired two shots at which the mob took to their heels. He saw his father and uncle Vijoy Singh lying fallen in the lane and he was told by (P.W. 13) Nemu Narain Singh and (P.W. 3) Lal Kishun Singh that at the instance of appellant Ramasray Singh, appellant Rambachan Singh fired his gun which resulted in the death of Vijoy Singh and at the instance of appellants Udai Narain Singh, appellant Kamaldeo Singh fired the gun resulting in the death of Shyam Narain Singh. According to Nawal Kishore Singh, his father died five minutes after being placed on the Chowki on the eastern verandah. In his cross-examination he has stated that as a result of the firing by Nemu Narain Singh he saw appellants Ramasray Singh and Ranjan Singh hit with gun shots. He has asserted that he had stated before the police that two persons were hit with the shots fired by Nemu Narain Singh and that he had told the police that Nemu Narain Singh had come to the female apartment to take the gun and that he had followed Nemu Narain Singh outside. The evidence of the investigating officer, however, shows that Nawal Kishore Singh did not tell him that Nemu Narain Singh had come to the female apartment to take the gun. Nawal Kishore Singh also did not tell the investigating officer that the firing of Nemu Narain Singh resulted in causing injuries to two persons in the mob. Nawal Kishore Singh did not even state before the investigating officer that Nemu Narain Singh had fired at the mob. It is obvious therefore, that he has developed his story in court to support the prosecution case. I would, accordingly, be reluctant to rely upon the evidence of such a witness.
33. It would now be convenient to refer to the evidence of (P.W. 6) Chhatradhari Singh. Although he is an eye-witness to the occurrence, his name was not mentioned in the Fardbeyan. It may be pointed out that he is one of the witnesses who attested the Fardbeyan He is the father of Rajbali Singh (P.W. 7) who is one of the accused mentioned in Ext. A. I have also pointed out earlier that in the case by Dhanwanti Devi against Ramasray Singh and Rambachan Singh he was a witness for Dhanwanti Devi. According to him, on the night of occurrence at about 9 P.M. he was at his cabin which is situated on the north-east corner of the village. He was going towards his house at about 9 P. M. when he heard the report of gun fire. When he was at a distance of four or five bamboo poles from the Dalan of Shyam Narain Singh he again heard the report of gun fire. At that very moment he saw Vijoy Singh falling down having been hit by bullet. Then he heard another gun fire and saw Shyam Narain Singh falling down on being hit by it. He went near the Goshala of Shyam Narain Singh and saw that the members of the mob were standing in the north-west field i.e. the field of Mosafir Singh. At that time he identified all the appellants. Apart from the fact that he had deposed earlier in favour of Shyam Narain Singh and others in certain cases against some of the appellants which is borne out by Exts. G/7 and G/3 as also Ext. G/5, he has stated in his cross-examination that before deposing in this case he had not given evidence in any other case. This would show that he does not have much respect for truth. According to his evidence, as I have stated above, he had heard sound of gun shot before the two shots which killed Vijoy Singh and Shyam Narain Singh. This evidence of his is in conflict with the evidence of all the other witnesses. He has also positively stated that he did not hear the report of gun-fire when he was at his cabin although he had said so before the police. He is further positive that he did not hear any report of gun-fire after Vijoy Singh and Shyam Narain Singh fell down. As according to the other witnesses the firing by Nemu Narain Singh was followed close after the firing by the mob, the evidence of Chhatradhari Singh on this point contradicts the evidence of the other witnesses. For these reasons, I do not think it would be safe to rely upon his evidence.
34. (P.W. 3) Lal Kishun Singh is another eye-witness mentioned in the Fardbeyan. In his examination-in-chief he has completely supported the prosecution case and has further stated that be identified the appellants is the moon light and the light of the electric bulb. He and his sons are named as accused in Ext. A. About eight months before this occurrence he had filed a case of assault against Kirit Singh and appellants Rambachan Singh and Ramasray Singh. There had also been a proceeding under Section 103, Bihar Tenancy Act, between him and appellant Ramasray Singh as also appellant Jai Bihari Singh. Therefore, it is obvious that he is on inimical terms with some of the appellants. Although he has stated that Nemu Narain Singh fired twice at the mob, he denied having seen injuries on any of the appellants. I have already pointed out that although he says that when the two deceased persons were being carried from the lane blood was oozing out from their wounds, still no trail of blood was found by the investigating officer at the place of occurrence. For these reasons it seems to me that he is also not a witness who inspires confidence and it is rather difficult to place reliance on his testimony.
35. I will now consider the evidence of the last witness on the point, the informant (P.W. 13) Nemu Narain Singh. He has given the details of the occurrence in his fardbeyan and he has further stated that the appellants had fired five or six shots apart from the two shots which killed Shyam Narain Singh and Vijoy Singh. He has made similar statement in his evidence in Court also. But this is not supported by any of the other witnesses. His evidence is further contradicted by the evidence of (P.W. 6) who has said that after Vijoy Singh and Shyam Narain Singh were shot dead he heard no further sound of gun-fire. This statement of (P.W. 6) contradicts the informant's statement in the fardbeyan as well as his evidence in Court that he had take out his gun and fired twice at the mob which then fled away. He has admitted that although his own brother and cousin had been shot dead still for seven hours he took no steps to report the matter to the authorities concerned. According to his fardbeyan (P.W. 2) Ram Nandan Singh was one of those persons who came to the place of occurrence immediately after the mob had fled away and the informant had told him all that had happened. However, (P.W. 2) was tendered for cross-examination. This is of some significance in view of the fact that the other persons named in the fardbeyan who came with Ramnandan Singh immediately after the occurrence and were told about it are Suryamani Singh, Chandramani Singh, Lohari Singh and Kunj Bihari Singh. None of these four persons have been examined and no reason has been assigned by the prosecution for non examination of these witnesses. In this context it may be stated that a number of witnesses, during their evidence, have said that Lohari Singh has been present in Court when those witnesses were deposing. As such I am inclined to take the view that non-examination of these witnesses, who would be witnesses of corroboration, would be a circumstance which would go against the prosecution.
36. Reverting to (P.W. 13) Nemu Narain Singh, he has stated that the members of the mob were also firing towards the members of the prosecution party. In other words, the firing was towards the northern verandah of the Dalan of Nemu Narain Singh. The investigating officer, however, did not find any marks of bullet on the wall or pillars of the verandah of Nemu Narain Singh. On the contrary, the investigating officer had found five gun shot holes on the western wall of the house of Ram Barat Singh which house, it may be recalled, is towards the east of the lane between the Dalan and Dochara of Nemu Narain Singh. For all these reasons, I do not think that even the evidence of the informant is above reproach and it would be difficult to place reliance upon it unless it had been supported by some independent evidence and/or circumstances.
37. From the discussions above, it is obvious that the evidence of none of the prosecution eye-witnesses is reliable enough. In that view, the evidence of (P.W. 5) who saw, immediately after the occurrence, some of the appellants going towards the west would not be of much avail.
38. I have already indicated at the beginning the two circumstances which cast doubt about the veracity of the prosecution. The first is that no attempt was made by the members of the prosecution party to inform the police or the authorities for seven hours after the occurrence. In this connection it has further to be noticed that the Deputy Superintendent of Police (D.W. 2) has stated that in the course of the examination of witnesses by him during supervision, Rajbali Singh had told him that on the night of the occurrence he had gone to village Meseri and then along with Umesh Singh and Sukhdeo Singh of that village had gone to Jahanabad and from there he had gone to Kodihra and then again went back to Jahanabad and met the Deputy Superintendent of Police in the company of Awadh Singh who lives at Kodihra (P.W. 7) Rajbali Singh has denied having made such a statement before the Deputy Superintendent of Police. The above evidence of the Deputy Superintendent of Police leads to the suspicion that there was some planning and getting together of heads before Nemu Narain Singh lodged the fardbeyan before the investigating officer. It may be recalled here that according to (P.W. 7) he was at the Dalan of Nemu Narain Singh when the investigating officer arrived there.
39. Reverting to the medical evidence, Mr. Sen drew our attention to the fact that although in his examination-in-chief the doctor has stated that the two injuries each found on the person of the two deceased persons could have been caused by one gun shot each. In his cross-examination, he has stated that the two ante-mortem injuries on the person of Shyam Narain Singh could have been caused by two shots. He has further stated that from one of the injuries of Shyam Narain Singh he had extracted a bullet and from the other, a small metallic piece. In his cross-examination, the doctor has stated that he has used the word 'bullet' as distinct from the word 'pellet' as he is conscious of the distinction. The metallic pieces recovered had been kept in different phials and sealed and handed over to the constable by the doctor. It is further unfortunate that those metallic pieces were not produced in Court and were also in all probability, not sent to the Firearms Expert to determine whether one of the pieces recovered was bullet or not. If it was a bullet then surely both the injuries on Shyam Narain Singh could not have been the result of one gun shot. Be that as it may, the evidence of the doctor does not support the prosecution version of the occurrence. To an extent it casts doubts on it in-as-much-as, according to the doctor, the two injuries might have been the result of two gun shots which is not the prosecution case. This aspect of the medical evidence also casts doubt on the prosecution version. The instant case, it may be pointed out, is not one of that nature in which the evidence of the eye-witnesses is of such a nature as to inspire absolute confidence.
40. Mr. Sen has further drawn our attention to the details of the first injury found by the doctor on Shyam Narain Singh. On dissection the doctor had found a wound of entry on the left side of the neck between the shoulder joint and the neck which led from the upper part of the chest on the left side of the back of the pericardium and upper part of the right side of the chest cavity causing injury to the right lung in the middle lobs. The fifth intercostal space on the right side of the chest cavity was found ecchymoised. Mr. Sen said that it would appear that the wound travelled downward from the neck to the upper part of the chest. He, therefore, urged that the inference was that the person who had shot Shyam Narain Singh was standing at a higher place which is rot the prosecution case. This submission is rather attractive but I would not attach much importance to it inasmuch as Modi in his Medical Jurisprudence, Twentieth Edition, Second imprint, at page 231 has pointed out that "in some cases it is difficult to determine the direction as the bullet is so often deflected by the issue that its course is very irregular, also when the bullet wobbles.
41. The defence as disclosed in the first information report (Exhibit A) lodged by appellant No. 2 in Cr. A. 402 of 1979 Ramasray Singh does not, in the circumstances of the case, merit much consideration. According to Exhibit A, only three persons, namely, applicants Ramasray Singh and Rajan Singh and the discharged accused Shyama Singh were injured while the evidence of the doctor (D.W. 1) shows that on the night of occurrence he had examined four persons, namely the three mentioned above and one Nanhak Singh had all gun shot injuries. No explanation has been given as to how Nanhak Singh was injured nor have the appellants explained the deaths by gun-shots of Shyam Narain Singh and Vijoy Singh. Therefore, on the materials on the record of this case, I am unable to hold that the defence version is probable.
42. The alibi of appellant Shyam Nandan Singh that he Was suffering from typhoid from 14th March, 1976 to 21st March, 1976, has also not been shown to be probable. Although the medical officer of Mohanpur dispensary, Dr. Tej Nath Rai, has been examined, no prescription has been produced in this case. Exhibit D is a certificate issued by him that appellant Shyam Nandan Singh was in his treatment for that period for typhoid. What would have made his alibi probable would have been the prescription and not the certificate. No reliance can be placed on the entry in the out door register of the dispensary which is Exhibit C as it is a plain copy and admitted by this witness, it is not a register supplied by the Government. The explanations that when the outdoor register supplied by the Government is finished then a register of white sheets of paper is used is not very convincing. The improbability of the alibi or the defence version does not exonerate the prosecution of its onus to prove beyond reasonable doubt the veracity of the prosecution case with regard to the manner and the place of occurrence.
43. The alibi of appellant No. 2 of Cr. A. 400 of 1979. Udai Narain Singh cannot be brushed aside. Exhibit E is the death certificate issued by the Executive Officer of the Mokameh Municipality which shows that one Brahamdeo Narain Singh died at Mokameh on 17th March, 1976 D.W. 4 Sheo Shankar Prasad Singh was, at the relevant time, the Vice-chairman of the Mokameh Municipality and he has deposed to state that the funeral of Branamdeo Narain Singh took place between 9 and 10 P.M. at Mokameh at which Udai Narain Singh, his nephew, was present. There seems to be no reason to disbelieve his evidence. Two other witnesses, namely, D.Ws, 5 and 6, Sadhu Saran Sharma and Rabindra Prasad Sharma have also deposed to the same extent. Rabindra Prasad Sharma is a Lecturer in Bardhaman Mahabir College, Pawapur, and is a brother-in-law of Udai Narain Singh. Sadhu Saran Sharrna is also a Sambandi of Udai Narain Singh. Both of them have stated that they were present at the funeral of Brahamdeo Narain Singh and Udai Narain Singh was also present at that time. There is no reason to disbelieve their evidence also. 1 am, therefore, of the view that the presence of Udai Narain Singh at village Asiyawan at 9 P. M. on 17th March, 1976, is rather improbable. (P.Ws. 3, 4, 6, 7, 8, 9, and 13 have all stated in their evidence that on the orders of Udai Narain Singh, appellant Kamaldeo Singh shot and hit Shyam Narain Singh, it is difficult to accept their evidence regarding participation of Udai Narain Singh in the occurrence. This would show that with regard to appellant Udai Narain Singh their evidence in Court is not reliable.
44. For all these reasons, taking into account all the materials, circumstances and facts of the case, it is not possible to hold that the prosecution has been able to prove the place and manner of occurrence as alleged by it beyond reasonable doubt. The appellants are, accordingly, given the benefit of doubt with regard to all the charges framed against them.
45. In the result, the reference is discharged, the appeals are allowed, the conviction and sentences passed against the appellants are set aside and they are acquitted of all the charges levelled against them. Those who are on bail shall be released of their ball bonds and those who are in Jail shall be set at liberty forthwith unless required in some other case.