Patna High Court
Chandeshwar Mali And Ors vs State Of Bihar on 8 May, 2018
Author: Rajendra Kumar Mishra
Bench: Hemant Kumar Srivastava, Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.333 of 1994
Arising Out of PS.Case No. -null Year- null Thana -null District- SITAMARHI
.......
{Against the Judgment of conviction dated 24.05.1994 and Order of sentence dated
26.05.1994passed in Sessions Trial No.54 of 1993 by the court of the 1 st Additional Sessions Judge, Sitamarhi}.
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1. Chandeshwar Mali, son of Amrit Bhandari.
2. Tuna Singh, son of Late Ramudar Singh.
3. Shankar Singh, son of Tuna Singh.
4. Baban Singh, son of Tuna Singh.
5. Bhairo Singh, son of Late Ramudar Singh.
6. Kulanand Jha, son of Late Rajendra Jha.
7. Kishori Bhandari alias Kishori Mali, son of Amrit Bhandari. All (serial nos.2 to 7) resident of village-Riga, P.S. Riga, District-Sitamarhi.
8. Rajendra Mahto, son of Sikandar Mahto, resident of village-Pipra, P.S. Riga, District- Sitamarhi.
9. Gulab Singh, son of Fakira Singh.
10. Ram Bilash Sah alias Bilas Sah, son of Misrilal Sah.
11. Misri Lal Sah, son of Halkhori Sah.
12. Binod Singh, son of Bram Brichh Singh.
13. Kishori Roy, son of Mangar Roy.
14. Nitya Roy, son of Kishori Roy.
15. Kaushal Roy, son of Kishori Roy.
All (serial nos.9 to 15) resident of village-Pipra, P.S. Riga, District-Sitamarhi.
.... .... Appellants.
Versus The State of Bihar .... .... Respondent.
with ================================================================= Criminal Appeal (DB) No. 347 of 1994 Arising Out of PS.Case No. -null Year- null Thana -null District- SITAMARHI =================================================================
1. Ram Bacchan Singh, son of Late Shyam Nandan Singh.
2. Mukund Singh, son of Krishnadeo Prasad Singh alias Kali Singh.
3. Rama Singh alias Ramesh Prasad Singh, son of Krishnadeo Prasad Singh alias Kali Singh.
4. Fekan Singh, son of Ram Bacchan Singh.
5. Kali Singh alias Krishnadeo Prasad Singh, son of Late Shyam Nandan Singh. All residents of village-Majhawna, P.S. Riga, District-Sitamarhi.
.... .... Appellants.
Versus The State of Bihar .... .... Respondent.
============================================================= Appearance :
(In CR. APP (DB) No.333 of 1994) :
For the Appellants : Mr. Ajay Kumar Thakur, Advocate.
Mrs. Kiran Thakur, Advocate.
Mr. Ritwaj Raman, Advocate.
For the State : Mr. Dilip Kumar Sinha, A.P.P. (In CR. APP (DB) No.347 of 1994) :
For the Appellants : Mr. Ajay Kumar Thakur,, Advocate. Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 2/49 Mrs. Kiran Thakur, Advocate.
Mr. Ritwaj Raman, Advocates.
For the State : Mr. Shivesh Chandra Mishra, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA) Date : 8-05-2018 Since both the aforesaid criminal appeals have been preferred against the same Judgment of conviction dated 24.05.1994 and Order of sentence dated 26.05.1994 passed in Sessions Trial No.54 of 1993, by the court of the 1 st Additional Sessions Judge, Sitamarhi, both the aforesaid criminal appeals have been heard together and are being disposed of by this common Judgment.
By the aforesaid Judgment of conviction and Order of sentence, the appellants Rajendra Mahto and Baban Singh have been convicted under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life, further the appellants Rajendra Mahto, Baban Singh, Kishori Roy, Fekan Singh, Rama Singh alias Ramesh Prasad Singh, Bhairo Singh, Nitya Roy, Ram Bilash Sah @ Bilas Roy (Sah), Gulab Singh, Kaushal Roy, Tuna Singh, Shankar Singh, Ram Bacchan Singh, Kali Singh alias Krishnadeo Prasad Singh, Kishori Bhandari alias Kishori Mali, Binod Singh, Kulanand Jha, Chandeshwar Mali, Mukund Singh and Mishri Lal Sah have been convicted under Sections 302/149 and Sections 436/149 of Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 3/49 the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for 10 years respectively, further the appellants Rajendra Mahto, Baban Singh, Kishori Roy, Fekan Singh, Rama Singh alias Ramesh Prasad Singh, Bhairo Singh, Nitya Roy and Ram Bilash Sah alias Bilash Roy (Sah) have been convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and further the appellants Gulab Singh, Kaushal Roy, Tuna Singh, Shankar Singh, Ram Bacchan Singh, Kali Singh alias Krishnadeo Prasad Singh, Kishori Bhandari alias Kishori Mali, Binod Singh, Kulanand Jha, Chandeshwar Mali, Mukund Singh, and Mishri Lal Sah have been convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year with direction to run all the sentences concurrently.
2. In brief, the prosecution case is that the informant Wahid Hussain (P.W.31) gave his fardbeyan before the Sub-Inspector N.D. Khan (P.W.42), the Officer Incharge of Riga Police Station, on 08.10.1992 at about 10.00 P.M. at village-Majhaura to the effect that on 08.10.1992 at about 02.00 P.M., he was at his house. At that time, Suleman Ansari (P.W.8) came and informed that in southern side of the village, rioters set the house of Abdul Mian on fire and communal riot has been started and made request to do something. He, thereafter, came on bicycle at Majhaura Chowk, where the Magistrate and armed forces were camping and gave information about the occurrence.
Thereafter, Magistrate and armed forces proceeded towards the village. Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 4/49 He also moved with the armed forces near the house of Mahendra Thakur but he was convinced not to proceed further due to danger, then he entered into the house of Mahendra Thakur and hide himself for one hour in the house. The rioters after committing the loot in the houses of the muslim community and causing assault proceeded in north side of the village towards Majhaura Chowk. At that time, he identified (1) Tuna Singh (2) Bhairo Singh (3) Pawan Singh (4) Baban Singh (5) Shankar Singh (6) Abhay Kumar Singh (7) Kulanand Jha (8) Chandeshwar Mali (9) Kishori Mali (10) Ram Bacchan Singh (11) Kali Singh (12) Rama Singh (13) Fekan Singh (14) Mukund Singh (15) Kishori Roy (16) Nitya Roy (17) Kaushal Roy (18) Ramashray Singh (19) Devendra Singh (20) Mishri Lal Sah (21) Binod Singh (22) Bilash Sah (23) Narayan Roy (24) Lal Babu Singh and (25) Gulab Singh, amongst the rioters, who were 100-150 in number armed with lathi, danda, khukhri, sword, bhala, petrol and kerosene oil and they were raising communal sloagons. When the rioters fled away, then he reached at his house and saw that his house and grocery shop was burnt to ashes by the rioters and some houses of muslim community were also burnt to ashes, some persons were also assaulted and loot was committed in some houses. The dead body of Subhan Mian was recovered at the door of Bhagwati Charan Bharti in the village, whereas the dead body of Lal Jahan Khatoon was recovered near the pond situated in the village sustaining sharp cutting injuries. He also came to know that several persons have also been killed and their dead bodies are being Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 5/49 searched by the villagers and the police. The informant claimed that he can identify the members of the rioters on seeing them.
3. On the basis of the aforesaid fardbeyan (Ext.6) of the informant Wahid Hussain (P.W.31), Riga P.S. Case No.127 of 1992 was instituted against the 25 accused persons, named in the fardbeyan by the informant Wahid Hussain (P.W.31), including the appellants, and some unknown under Sections 147, 148, 149, 302, 201, 436, 324, 153(A), 427, 379 and 307 of the Indian Penal Code.
4. On investigation, police submitted the chargesheet against 30 accused persons including the appellants under Sections 147, 148, 149, 302, 153(A), 323, 324, 436, 426, 427, 380 and 307 of the Indian Penal Code. Thereafter, cognizance of the offence was taken against them and the case was committed to the court of sessions and after framing of the charge, they were put on trial.
5. In course of trial, the prosecution examined altogether 47 witnesses and got exhibited several documents.
On the other hand, the defence also examined 7 witnesses and got exhibited several documents to show their false implication due to enmity with the informant Wahid Hussain (P.W.31) and others.
6. On the basis of scrutiny of oral and documentary evidence, available on the record, the 1 st Additional Sessions Judge, Sitamarhi, convicted and sentenced the appellants in the manner, as stated above, whereas acquitted the 10 accused, namely, Abhai Jha, Narayan Rai, Ram Ashray Singh, Rabindra Singh alias Dhodi, Lal Babu Singh, Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 6/49 Baidya Nath Sah, Achchelal Paswan, Pawan Singh, Ram Lagan Paswan and Bishwanath Sah, of the charges leveled against them.
7. Mr. Ajay Kumar Thakur, learned counsel for the appellants made submission that killing of six persons in the occurrence is not in dispute. The dispute is only with regard to the manner of the occurrence and the involvement of the appellants in the occurrence, as alleged in the F.I.R. Mr. Thakur basically advanced his argument on the points of suppressing the real version of the occurrence, as received by N.D. Khan (P.W.42), the Officer Incharge of P.S. Riga, to the Executive Magistrate Indranand Jha at Majhaura Chowk and also the preparation of the fardbeyan (Ext.6) of the informant Wahid Hussain (P.W.31) on due deliberation by S.I. N.D. Khan (P.W.42) at the police station Riga, later on. He further argued that while the First Information Report was lodged on 08.10.1992 on the basis of the fardbeyan (Ext.6) of the informant Wahid Hussain (P.W.31) but the same was received on 13.10.1992 after four days of the occurrence in the court of the Chief Judicial Magistrate, Sitamarhi, and the prosecution has not given any explanation about reaching of the First Information Report after four days in the court of the Chief Judicial Magistrate, Sitamarhi. Mr. Thakur further argued that the fardbeyan (Ext.6) of the informant Wahid Hussain (P.W.31) clearly indicates that the fardbeyan was recorded by S.I. N.D. Khan (P.W.42) on 08.10.1992 at about 10 P.M. at village-Majhaura but the informant Wahid Hussain (P.W.31) in his evidence has disclosed that his fardbeyan was recorded by Bada Babu of the police station on 08.10.1992 at about 10.00 Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 7/49 P.M. on the instruction of S.I. N.D. Khan (P.W.42) and S.I. N.D. Khan (P.W.42) also stated in paragraph-2 of his evidence that on his instruction, Munshi Ram Laulin Roy (not examined) recorded the fardbeyan of the informant (P.W.31) on 08.10.1992 at about 10.00 P.M. but he clearly admits in paragraph-25 of his cross examination that on 08.10.1992 in between 04.30 P.M. to 11.00 P.M., 11 Sanha Entries were made at the police station in the station diary in the handwriting of Ram Laulin Roy (not examined) and Ram Laulin Roy was present at the police station during that period. As such, the fardbeyan (Ext.6) of the informant (P.W.31), in fact, was not recorded on 08.10.1992 at 10.00 P.M, in village-Majhaura, rather the same was prepared, on due deliberation, later on, after examination of the injured and the preparation of the inquest reports and sending the dead bodies of the deceased for post-mortem examination. Mr. Thakur further argued that S.I. N.D. Khan (P.W.42) has clearly stated in paragraph-29 of his evidence that he examined the dead body of the deceased Anisa Khatoon at about 04.30 P.M. on 08.10.1992 at village-Majhaura and prepared the inquest report in presence of the witnesses Md. Habib (P.W.7) and Abdul Rahman (P.W.33) but Md. Habib (P.W.7) and Abdul Rahman (P.W.33) did not disclose about the occurrence or about the rioters. S.I. N.D. Khan (P.W.42) further stated in paragraph-31 of his cross examination that at the place of the occurrence after preparing the requisition of the injuries in respect to 15 injured, he sent the 15 injured for their medical examination at Riga Primary Health Centre but they did not disclose the name of the rioters and he has also Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 8/49 not recorded their statements till 16.10.1992. In paragraph-41 of his evidence, P.W.42 stated that except recording the statement of the informant (P.W.31), he did not record the statement of any witness till 16.10.1992, handing over the charge of investigation to Chandra Bhushan (P.W.41). As such, non recording the statements of the witnesses of the inquest reports of the six dead bodies and 15 injured creates serious doubt about the prosecution story having hands of the appellants in the alleged occurrence. Mr. Thakur further submits that S.I. N.D. Khan (P.W.42) has clearly stated in paragraph-33 of his evidence that it is detailed in Sanha Entry No.176 dated 08.10.1992 that the Executive Magistrate had given the written report to him in village-Majhaura on the basis of which Riga P.S. Case No.126 of 1992 was instituted on 08.10.1992 under Sections 147, 148, 149, 302, 201, 436 and 153(A) of the Indian Penal Code against unknown and he himself took the charge of the investigation of the case himself. As such, the prosecution has withheld the First Information Report as given by the Executive Magistrate, Indranand Jha to S.I. N.D. Khan (P.W.42) regarding the occurrence and, later on, on due deliberation, S.I. N.D. Khan (P.W.42) prepared the fardbeyan (Ext.6) of the informant Wahid Hussain (P.W.31) at the police station, showing the name of the appellants, having their hands in the occurrence.
On the other hand, learned A.P.P. for the State, while refuting the submission of the learned counsel for the appellants, submitted that while there is four days delay in reaching the F.I.R. to the court of the Chief Judicial Magistrate, Sitamarhi and also laches on Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 9/49 the part of the Investigating Officer in not recording the statements of the injured and the witnesses of inquest reports but only due to that reason, the prosecution case cannot be thrown out, specially in the circumstances, when the injured witnesses, P.Ws.6, 11, 12, 20 and 29, who sustained injuries in the occurrence, have supported the prosecution case disclosing the name of the some assailants including the appellants. The other witnesses have also supported the prosecution case. As such, there is no illegality and infirmity in the impugned Judgment of conviction and Order of sentence.
8. To appreciate the rival submissions of the learned counsel for the parties, I perused the Lower Court Records as well as the impugned Judgment of conviction and Order of sentence.
9. Learned counsel appearing on behalf of the appellants has not disputed the occurrence leading to loss of life of six persons, destruction of property and sustaining injuries by several persons but his challenge is of identification of the appellants in the occurrence, as detailed by the witnesses in their evidence.
10. Out of 47 witnesses, examined on behalf of the prosecution, P.W.2 Md. Enul, P.W.4 Wakil Mian, P.W.10 Habiban Khatoon, P.W.18 Md. Iliayas, P.W.21 Sahida Khatoon, P.W.28 Dr. Sunil Kumar, P.W.30 Habija Khatoon, P.W.32 Md. Sakoor, P.W.37 Bal Hasan, P.W.38 Saida Khatoon, P.W.39 Salima Khatoon and P.W.40 Asma Khatoon have been tendered by the prosecution. P.W.35 Bikau Paswan and P.W.36 Abdul Gaffar Ansari are Chowkidars, who on the instruction Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 10/49 of the Officer Incharge of Riga Police Station only carried the dead bodies of the deceased Md. Mansoor, Md. Muslim, Anisa Khatoon and Subhan Mian at Sadar Hospital, Sitamarhi, for post-mortem.
11. P.W.44 Surendra Prasad, who was posted as Sub Inspector at Muzaffarpur Sadar Police Station on 11.10.1992 recorded the statement of Rabbu Hussain, Bikau, Kifayat Hussain, Saida Khatoon, Zalisa Khatoon and Asma Khatoon in Ward No.6 at S.K.M.C.H., Muzaffarpur, on the direction of the Officer Incharge of the Muzaffarpur Sadar Police Station and he proved their written statements as Exts.12 to 12/5.
P.W.45 Jagdish Pandey, who was posted as Sub Inspector at Ahiyapur Police Station, on 11.10.1992, also recorded the statements of Israful Ansari and Isha Khatoon at S.K.M.C.H., Muzaffarpur, and he proved their written statements as Exts.12/11 to 12/12.
Similarly, P.W.47 Babu Lal Ram, who was posted as Sub Inspector at Muzaffarpur Sadar Police Station, on 11.10.1992 recorded the statements of Habiban Khatoon (P.W.10). Hibja Khatoon (P.W.30), Samrun Khatoon and Salima Khatoon at S.K.M.C.H. and he proved their written statements as Exts.12/6 to 12/9.
12. P.W.41 Chandra Bhushan, who was posted as A.S.I. in C.I.D., took the charge of Investigation of the case to N.D. Khan (P.W.42), the Officer Incharge of Riga Police Station on 16.10.1992 in the light of the direction of the D.I.G., Tirhut Range, and recorded the Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 11/49 statements of the 22 witnesses and visited the place of the occurrence and prepared the sketch map of the place of the occurrence.
P.W.34 Rana Pratap Singh, who was posted as S.I. on 21.10.1992 at the Riga Police Station, took the charge of investigation from P.W.41 Chandra Bhushan, in the light of the direction of the D.I.G., Tirhut Range, incorporated the statements of the injured witnesses, whose statements were recorded by the Muzaffarpur Police at S.K.M.C.H., Muzaffarpur, in the case diary and also detailed the inquest reports and post-mortem reports of the deceased Anisa Khatoon, Subhan Mian, Md. Muslim, Md. Mansoor, Md. Yasin and Abbas Ansari. He also recorded the restatement of the informant Wahid Hussain (P.W.31) and Md. Muslim (P.W.1) and also the statements of the witnesses of the inquest reports and also incorporated the injury reports of the injured in the case diary. Thereafter, he handed over the charge of investigation to S.I. V.K. Srivastava, in the light of the direction of the D.I.G., Tirhut Division.
P.W.46 Ramakant Dwivedi, who was posted as Officer Incharge at the Riga Police Station on 10.12.1992, received the charge of investigation of the case, and on perusal of the case diary, submitted the chargesheet against the 24 F.I.R. named accused and 3 non-F.I.R. named accused, continuing the investigation against Ram Lagan Pasi, Acchhey Lal Pasi and Rajendra Mahto, due to their non-arrest.
13. P.W.24 Dr. Sitaram Prasad Singh, who was posted as Medical Officer at Primary Health Centre, Riga, on 08.10.1992 Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 12/49 examined Babita Khatoon (not examined), Md. Israil Ansari (P.W.29), Asma Khatoon (P.W.40), Salima Khatoon (P.W.39), Isa Khatoon (not examined), Maiful Khatoon (not examined), Kifayat Ansari (not examined), Habiban Khatoon (P.W.10), Md. Fekau (P.W.12), Zalisa Khatoon (not examined), Sairoon Khatoon (not examined), Hifia Khatoon (not examined), Md. Amin (P.W.11), Saida Khatoon (P.W.38) and Rabbu Hussain (P.W.20) in between 04.30 P.M. to 08.50 P.M. and prepared their injury reports and proved their injury reports respectively as Exts.3 to 3/14. According to him all the injuries on the person of the injured were superficial in nature and the same may be caused by other means than assault.
P.W.26 Dr. Yugal Kishore Choudhary, who was posted as Medical Officer on 16.10.1992 examined the injuries of Nima Khatoon and Shaida Khatoon on 16.10.1992 at 12.45 P.M. and proved their injury reports as Exts.3/15 and 3/16. According to him, their injuries were simple in nature.
14. P.W.27 Dr. Sunil Kumar Sahi, who was posted as R.S.O. at S.K.M.C.H., Muzaffarpur, examined on 08.10.1992 to Babita (not examined), Asma Khatoon (P.W.40), Mehru (not examined), Israil Ansari (P.W.29) and Bikau Mian (not examined) and he proved their injury reports as Exts.3/17 to 3/21 respectively.
Similarly, P.W.43 Dr. Sri Narain Gupta, who was posted as Assistant Professor in Surgical Department at S.K.M.C.H., Muzaffarpur, on 10.10.1992, examined Asma Khatoon (P.W.40), Rabbu Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 13/49 Hassan (P.W.20), Md. Kifayat (not examined), Makul Khatoon (not examined) and Habiba Khatoon (not examined) on 10.10.1992 and proved their injury reports as Exts.3/22 to 3/26.
15. P.W.22 Dr. Manoj Kumar, who was posted at Sadar Hospital, Sitamarhi, as C.A.S. on 09.10.1992, conducted the autopsy over the dead bodies of Md. Mansoor, son of Ishar, and Md. Muslim, son of Rajib Ansari, both resident of village-Majhore, P.S. Riga, District-Sitamarhi and prepared their post-mortem reports. He proved the post-mortem reports of the deceased Md. Mansoor and Md. Muslim as Exts.2 and 2/1. According to him the cause of their death was haemorrhage and shock, as a result of the injuries as found over their dead bodies.
P.W.23 Dr. Bharat Singh, who was posted on 10.10.1992 as Civil Surgeon at Sadar Hospital, Sitamarhi, conducted the autopsy on the same day at about 01.45 P.M. over the dead body of Md. Abbas Ansari, son of Liaquat Ansari, and at about 01.35 P.M. over the dead body of Md. Yasin and proved their post-mortem reports as Exts.2/2 and 2/3 respectively. According to him, the cause of their death was haemorrhage and shock, as a result of the injuries as found over their dead bodies.
P.W.25 Dr. Om Prakash Chourasia being the C.A.S, at Sadar Hospital, Sitamarhi, on 09.10.1992 conducted the autopsy over the dead body of Anisa Khatoon, wife of Ibrahim Mian, at 08.10 A.M. and over the dead body of Subhan Mian, son of Majhi Mian, at 08.25 A.M. and Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 14/49 proved their post-mortem reports as Exts.2/4 and 2/5 respectively. According to him the cause of their death was haemorrhage and shock, as a result of the injuries as found over their dead bodies.
16. P.W.31 Wahid Hussain is the informant of the case. He has stated in his evidence that on 08.10.1992, he was Mukhiya of his village-Majhaura. On the date of the occurrence (08.10.1992) at about 02.00 P.M. he was at his house and he heard that some Hindu rioters are setting the houses of Muslim community on fire and due to that reason, the riot has been stared. Thereafter, he went to Majhaura Chowk by bicycle, where armed forces was deputed and informed about the occurrence. Thereafter, armed forces proceeded towards the village and he also moved with the armed forces near the house of Mahendra Thakur but he was restrained by armed forces to go into the village due to danger, then he hide himself there. After half an hour, he saw that the rioters after committing the loot and setting on fire the houses of Muslim community were moving towards Majhaura Chowk armed with Lathi, Farsa, Garasa, Bhala, sword and gallon of petrol and kerosene oil. The rioters were 150-200 in numbers, out of them, he identified Tunna Singh, Bhairo Singh, Pawan Singh, Baban Singh, Shankar Singh, Kishori Mali, Chandeshwar Mali, Kulanand Jha, Abhai Kumar Singh, Kali Singh, Fekan Singh, Rama Singh, Mukund Singh, Kishori Roy, Kaushal Roy, Nitya Roy, Narayan Roy, Mishri Lal Sah, Bilash Sah, Ramashray Singh, Ravindra Singh alias Dhopi Singh and Vinod Singh. After disbursing the rioters, he returned to his house, then he found his Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 15/49 house and grocery shop burnt and also saw several houses of Muslim community in burnt condition. Later on, he came to know that the dead body of Subhan Mian was found at the door of Bhagwati Charan Bharti and the dead body of Laljahan Khatoon alias Anisha Khatoon was found in the sugarcane field of Mali Singh, situated near the Majhaura old pond. On the same day at about 10.00 P.M., he gave his fardbeyan before the Officer Incharge of Riga Police Station (P.W.42), who after noting down the fardbeyan , read over the same to him and, thereafter, he put his signature on the fardbeyan. In the same breath, he stated, on the hint of Public Prosecutor, that fardbeyan was recorded by another police officer on the direction of the Officer Incharge (P.W.42) and he proved his signature on the fardbeyan as Ext.1/2. He further stated that on 17.10.1992, Police Inspector visited the houses of 89 effected persons and seized the burnt materials. He further stated in his cross examination that he is the Mukhiya of his village since 05.02.1990. He further stated in his cross examination that Tuna Singh was the dealer of Fair Price Shop in the village since before 10/12 years of the occurrence. He being the Mukhiya, used to check the stock of the Fair Price Shop. In his village, there is Vigilance Committee for checking the proper functioning of the Fair Price Shop in which Ex- Mukhiya, Ex-Sarpanch, present Sarpanch and he being the Mukhiya are the members. In the capacity of the member of the Vigilance Committee, he used to put his signature on the stock register and sale register of the fair price shop of Tuna Singh. He denied the suggestion Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 16/49 of the defence that he being the Mukhiya of the village, used to give the slip for providing sugar and kerosene oil but Tuna Singh did not use to pay any heed, due to that reason, he had grudge to him. He further stated in his cross examination that accused Shankar Singh, Baban Singh and Pawan Singh are the sons of the accused Tuna Singh, Bhairo Singh, the brother of Tuna Singh, is also accused in this case. Binod Singh, the son-in-law of Tuna Singh, and Ramashray Singh, the uncle of Binod Singh are also accused in this case. He denied the suggestion of the defence, in his cross examination, that Ram Surat Singh is the uncle of Ravindra Singh and he showed his ignorance about lodging of a criminal case by Ram Surat Singh, son of Ram Padarath Singh, in the month of October, 1981 at the Riga Police Station in which he alongwith Iliyas Mian and Amin Mian were accused and Ramashray Singh and Ravindra Singh were the witnesses. He further stated in his cross examination that the accused Kishori Roy is also the member of Mukhiya cabinet. Nitya Roy and Kaushal Roy, both sons of Kishori Rai, and Narayan Roy, the brother of Kishori Roy, are accused in the present case. In his further cross examination, he denied the suggestion of the defence that before the occurrence, the accused Kishori Roy had given an application against him before the Collector, Sitamarhi, and Cabinet Vigilance Department, Government of Bihar, Patna, to the effect that he used to grab the money under Jawahar Rojgar Yojana by committing the forgery. He further stated in paragraph-21 of his cross examination that the house of Mahendra Thakur, in which he hide Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 17/49 himself is 65/70 Laghhi away in the south to Majhaura Chowk. Before the occurrence, in the same month, Durga Puja was organized in the village-Majharua, due to that reason, armed forces was deputed at Majhaura Chowk and armed forces was present there about 4-5 days prior to the occurrence in a thatched house at Majhaura Chowk. He further stated at paragraph-24 of his cross examination that he came to know, later on, that on the date of the occurrence, riot had taken place in between Muslim and Hindu community at Riga Mill Chowk at about 10.00 P.M., which spread upto village-Majhaura. The distance of Riga Mill Chowk from the village-Majhaura is about 5 kilometers. He further stated at paragraph-26 of his cross examination that at the time of the occurrence, at about 02.00 P.M., he was alone at his house and his family members were at the other places. He came to know about the riot firstly from Suleman Ansari, at that time, he was sleeping in the house but he did not try to search out his family members. He further stated at paragraphs-28 and 29 of his cross examination that after knowing about the riot, he reached within 7-8 minutes at Majhaura Chowk, where armed forces already present but Indranand Jha, who was deputed as Magistrate, was not seen there and he did not inform the armed forces about the occurrence nor he gave any written report. He further stated in his cross examination at paragraph-30 that the house of Mahendra Thakur is situated in the west to pitch road and in the eastern side of his house, after Sahan and well, pitch road is situated, the house and Sahan is surrounded by thatched from the road side. He further Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 18/49 stated in his cross examination at paragraph-36 that he hide himself in the house of Mahendra Thakur about 2 and half hours till 04.30 P.M., when he came out from the house of Mahendra Thakur, till that time, rioters had already fled away. He further stated that he had not seen the dead body of Anisha Khatoon nor her dead body was recovered by Darogaji in his presence rather he had heard about killing of Anisha Khatoon. He further stated that he came to know from the villagers on the date of the occurrence that two dead bodies were recovered but he is unable to disclose the name of that villagers.
From the evidence of this witness, it is clear that while he has claimed to identify 25 rioters, named in the F.I.R., including the appellants, out of 200-250 rioters at the time of moving from the village after the occurrence through the road situated in front of the house of Mahendra Thakur in which he had hide himself but in his cross examination at paragraph-36, he has specifically stated that he hide himself in the house of Mahendra Thakur about 2-2 ½ hours and after moving of rioters, he came out of the house of Mahendra Thakur. As such, the claim of this witness to identify 25 rioters, named in the F.I.R., including the appellants appears to be doubtful because sahan situated in front of the house of Mahendra Thakur was surrounded by thatched boundary from road side as admitted by him in cross examination at paragraph-36 of his evidence.
17. P.W.11 Amin Mian, who was examined by Dr. Sita Ram Singh (P.W.24) on 08.10.1992 at about 04.30 P.M. at P.H.C. Riga, Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 19/49 has stated in his evidence that the occurrence is of before 10 months of noon. At that time, he was at his house and saw that about 500 Hindu rioters variously armed with weapons coming from south direction. On seeing the rioters, he hide in the paddy filed and saw from there putting fire in the houses by rioters. After sometime, 20/25 rioters entered in the paddy field and assaulted him. At that time, he identified only Bhairo Singh (appellant) and Kameshwar Singh (acquitted) as after receiving injury, he became unconscious. After regaining consciousness, he reached anyhow at the door of Ram Sewak Babu (D.W.2). He further stated that he was sent from the door of Ram Sewak Babu (D.W.2) at P.H.C., Riga and from P.H.C. Riga, he was rushed to Sadar Hospital, Sitamarhi, and from there, he was admitted at Medical College, Muzaffarpur, where he was under treatment about 19 days. The police after three days of the occurrence, recorded his statement at Medical College, Muzaffarpur.
18. P.W.12, Md. Fekau, who was examined by Dr. Sita Ram Singh (P.W.24) at P.H.C. Riga on 08.10.1992 at 04.45 P.M., has deposed in his evidence that before ten months at about 01.00/01.30, he was preparing 'Biri' at his door. At that time, one woman informed about reaching of rioters at the door of Abdul Rahman, then he sent his family members to the house of Bhikhari Nonia and he hide in the sugarcane filed in east side. He saw from sugarcane filed that 20/25 persons entered into the filed and started his search. Thereafter, he started to flee away but he was chased and assault was caused to him. Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 20/49 At that time, he identified Ram Lagan Paswan (acquitted) and Achchey Lal Paswan (acquitted) out of them. He further stated that on receiving injury, he became unconscious but after sometime, regaining consciousness, he reached at the door of Ram Sevak Babu (D.W.2) from where he was rushed to the hospital, later on, he was sent to Sadar Hospital, Sitamarhi, by the police and from there to Medical College, Muaffarpur. After three days of the occurrence, his statement was recorded at Medical College, Muzaffarpur, by the police.
From the evidence of this witness, it is apparent that after receiving the injury at the hands of the rioters, he reached at the door of Ram Sewak from where he was sent by the police at P.H.C. Riga and from P.H.C. Riga, he was referred to Sadar Hospital, Sitamarhi, and from there to Medical College, Muzaffarpur, and after three days of the occurrence, his statement was recorded by the police in Medical College, Muzaffarpur.
19. P.W.20 Rabbu Hussain, who was examined by Dr. Sita Ram Singh (P.W.24) on 08.10.1992 at 08.50 P.M., has stated in his evidence that before eleven months at about 01.00/01.30 P.M., he was cutting the grass in the field. In the meantime, 4-5 rioters came and caused injury through 'Garasa' at his left hand and also caused assault to him through lathi. At that time, he identified Raghunath Sah (acquitted) and Bishwamber Sah (acquitted). After two hours, he reached at his house, then he found that his house was burnt. He was rushed to P.H.C. Riga for treatment and from there, he was sent to Sadar Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 21/49 Hospital, Sitamarhi, and from there to Medical College, Muzaffarpur, for treatment. He further stated that his statement was recorded by the police after six days of the occurrence at Medical College, Muzaffarpur.
20. P.W.29 Israil Ansari, who was examined by Dr. Sita Ram Singh (P.W.24) on 08.10.1992 at about 04.30 P.M. at P.H.C. Riga, has deposed in his evidence that before 11 months at about 01.00 P.M., he was at his door and heard about spreading riot in village, then he along with his daughter hide in paddy filed, situated in west to his house. Thereafter, 5/6 persons came from east direction near him in paddy filed, out of which appellant Shankar Singh assaultsed him through lathi at his left forearm and appellant Bhairo Singh caused injury through lathi at his head, he could not identify the rest at that time. He further stated that after one hour on regaining consciousness, he came at the door of Ram Sewak Babu (D.W.2) and police sent him at P.H.C. Riga from where he was referred to Sitamarhi Sadar Hospital and from there, he was referred to Muzaffarpur. He further stated that after three days on regaining consciousness, police recorded his statement there. While this witness has stated that he had given the statement before the police that 5/6 persons entered in the sugarcane filed armed with weapon, out of which appellant Shankar Singh caused injury through lathi at his left forearm and appellant Bhairo Singh caused injury through lathi at his head but P.W.45 Sita Ram Pandey, in paragraph-7 of his cross examination, has stated that this witness has stated that he had not identified any rioters. As such, this witness, for Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 22/49 the first time, stated the aforesaid facts before the trial court about entering 5/6 persons in the sugarcane field and causing of injury to him by the appellants Shankar Singh and Bhairo Singh.
21. P.W.3 Sairul Khatoon, who is the wife of the deceased Yasin Mian, has deposed in her evidence that before 9 months, on Thursday at about 02.00 P.M., she was at her house, her husband Yasin and Hakima Khatoon (P.W.5) were also there. In the meantime, rioters came raising slogan against the Muslim community and started to put the houses on fire. Thereafter, she along with her husband Yasin (deceased), brother-in-law Abbas (deceased) and Hakima Khatoon fled away and hide in paddy filed. At that time, her husband Yasin and brother-in-law Abbas were behind her. She saw from paddy filed that rioters killed her husband and brother-in-law. She identified appellant Bacchan Singh, Kali Singh, Fekan Singh, Rama Singh, Bilash Kalwar and Kishori Kurmi of village-Majhaura, Tuna Singh, Baban Singh, Kishori Mali, Chandeshwar Mali and the accused Abhay Singh (acquitted) of village-Riga. She further stated that Rama Singh and Fekan Singh were armed with Farsa and others were in empty hands. After moving of rioters, she went near her husband and brother-in-law and found them lying dead . She further stated in her cross examination that, she gave her statement before the police after eight days of the occurrence. She had not informed about the occurrence to Mukhiya, Sarpanch, Chowkidar and armed forces present in the village and she also did not inform about killing of her husband and brother-in- Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 23/49 law and lying their dead bodies in the field. This witness has further stated in cross examination that she had stated before the police that at the time of occurrence, she along with her husband, Dewar and Gotni Hakima Khatoon was present in the house, then rioters came and put the fire in the houses and the rioters killed her husband and Dewar and also disclosed the name of Kishori Mali and Chandeshwar Mali as rioters but P.W.47 Babulal Ram has stated in his evidence at para-3 that this witness had not disclosed the said facts in her statement recorded by him. As such, this witness, for the first time, stated in her evidence before the trial court that when she along with her husband, Gotani and Dewar was present in the house, the rioters came and put the fire in the houses and killed her husband and Dewar.
P.W.5 Hakima Khatoon, wife of the deceased Abbas Ansari, has also given the similar statement as P.W.3 in her evidence. She has stated in her cross examination that her statement was recorded by the police after 9/10 days of the occurrence, while she was in the village. She also stated in her cross examination that she did not carry the dead bodies, nor inform about the occurrence to anyone.
22. P.W.6 Jainat Khatoon, wife of Sher Mohammad, has stated in her evidence that on the day of occurrence at about 03.00 P.M. she was at her house. At that time, rioters came from south - west direction and put fire in the houses. On protest, they started to abuse and assault her. She further stated that appellants Fekan Singh, Rama Singh, Kaushal Kurmi, Tuna Singh and son of Tuna Singh entered in Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 24/49 her house. On the next day, she was accompanied by her husband at P.H.C. Riga for treatment and after treatment, she went to her Maika and returned to her house, then Darogaji recorded her statement.
While this witness has claimed that on the next day of the occurrence, she was accompanied by her husband at P.H.C. Riga and after treatment, she went to her Maika but no injury report of this witness has been brought on record. She has also stated in her evidence in cross examination that she did not disclose about the incident to anyone in village and, for the first time, he disclosed about the occurrence before the police after 8/9 days.
23. P.W.9 Suleman Ansari has deposed in his evidence that the occurrence is of before 10 months of Thursday of about 02.00 P.M. At that time, he was in his courtyard and heard the voice towards south about the killing the persons of Muslim community, then he went to the courtyard of Ram Ashray Singh, who told him in abusive language to go from there. Thereafter, he moved to east direction and hide in paddy field and saw from paddy field that the appellants Fekan Singh and Rama Singh killed Abbas Ansari and Rama Singh killed Anisa Khatoon causing injury through Farsa. He further stated that he identified the appellants, Ram Bachan Singh, Kali Singh, Kishori Roy, Kausal Roy, Bilash Roy, Tuna Singh and Bipin Singh also, who were the members of rioters. This witness further stated that after two hours, he returned to his house from the paddy field, then he saw that his house was burnt. This witness, in his cross examination, has stated that appellant Ram Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 25/49 Bachan Singh had lodged the criminal case against him in which he was convicted and served the sentence. Kali Singh, Rama Singh and Fekan Singh are the family members of Ram Bachan Singh. He has further stated that he had given his statement before the police after 10 days of the occurrence. This witness has further stated in his cross examination that he has stated in his statement before the police that after hearing the voice from south direction about killing of Muslim community, he went to the house of Ram Ashray Singh, who asked him in abusive language to move from there, then he hide in the paddy filed and saw that Fekan Singh and Rama Singh killed Abbas Ansari and Anisa Khatoon causing injury through Farsa but P.W.41 Chandra Bhushan has stated in his cross examination in paragraph-23 that Suleman Ansari (P.W.8) had not disclosed the aforesaid facts in his statement given before him.
As such, it is clear that this witness had given his statement after 10 days of the occurrence before the police and for the first time, he stated before the trial court in his evidence that Fekan Singh and Rama Singh killed Abbas Ansari and Anisa Khatoon causing injury to them through Farsa.
24. P.W.9 Jaitoon Khatoon has stated in her evidence that the occurrence is of before ten months of Thursday of about 02.00 P.M. At that time, she was at her house, then she heard the voice of rioters raising slogan against the Muslim community from west side, then she went in paddy filed and hide herself there. She saw from the paddy Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 26/49 filed that 200 rioters carrying the kerosene oil started to put the fire in the houses of the Muslim community. Amongst the rioters, at that time, she identified the appellants Kishore Kurmi, Kaushal Kurmi, Nitya Kurmi, Narayan Kurmi, Bachan Singh, Fekan Singh, Rama Singh, Binod Singh and Pawan Singh. Fekan Singh and Rama Singh were armed with Farsa whereas Kishori Rai was armed with Bhala and rests were aremd with lathi and Garasa. She further stated in her cross examination that she gave her statement before the police after ten days of the occurrence, before that, she had not disclosed about the occurrence to anyone. In course of cross examination she identified to accused Abhay Singh as Pawan Singh. She has further stated in her cross examination at paragraph-13 that she had stated before the police that the rioters were 200 in number and they put the fire in the houses by sprinkling kerosene oil and she also stated that the appellants Fekan Singh and Rama Singh were armed with Farsa whereas Kishori Singh was armed with Bhala and others were armed with Garasa but P.W.41 Chandra Bhushan, in paragraph-24 of his evidence, stated that he had recorded the statement of this witness on 18.10.1992 and she had not stated that the rioters raising slogan had come from west direction and started putting the fire in the houses, who were 200 in number, and were sprinkling the kerosene oil having in their hands, Fekan Singh and others were armed with lathi and Kishori Singh was armed with Bhala but she had only stated about seeing Nitya Roy, Kaushal Roy, Rama Singh, Fekan Singh, Binod Singh, Narayan Roy and Pawan Singh, who Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 27/49 were armed with lathi and bhala. As such, it appears that this witness had only stated about seeing Nitya Roy, Kaushal Roy, Rama Singh, Fekan Singh, Binod Singh, Narayan Roy, Pawan Singh having lathi and bhala and she improved the case, as detailed above, for the first time, before the trial court in course of her evidence.
25. P.W.13 Khudadin has stated in his evidence that the occurrence is of before 10 months of Wednesday of about 01.00 P.M. At that time, she was playing the playing-cards at the door of Bhikhari Roy, then his daughter came and informed that the rioters are coming from south direction raising slogan and, thereafter, she returned to his house. After 15 minutes, he saw that rioters came having lathi, bhala and Garasa in their hands. Then he fled away and hide himself in the sugarcane filed and saw from there spreading smoke in Tola. He identified the appellant Tuna Singh, Bhairo Singh, Kulanand Jha, Kishori Mali, Chandeshwar Mali, Binod Singh, Kishori Rai, Kaushal Roy, Nitya Roy and Gulab Singh amongst the rioters. At that time, Tuna Singh was armed with lathi, Kishori Roy was armed with bhala, Nitya Roy was armed with Garasa and Bhairo Singh was armed with bhala. After hiding about two hours in the sugarcane filed, he came at his house after moving of the rioters, then found that his house was burnt. Thereafter, he went to village-Mubarakpur, the sasural of his sister, and on returning from there, after ten days, he gave his statement to Darogaji. In cross examination at paragraph-12, this witness stated that he had given the statement before the police that his Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 28/49 daughter had come and informed him about the rioters and after returning of his daughter, he stayed for about 15 minutes there, he also stated before the police that Tuna Singh was armed with lathi, Bhairo Singh and Kishori Roy were armed with bhala and Nitya Roy was armed with Garasa, he also disclosed that after the occurrence, he had gone to the house of his sister to village-Mubarakpur, and returned after ten days of the occurrence but P.W.41 Chandra Bhushan has stated in his cross examination at paragraph-25 that he had recorded the statement of this witness on 18.10.1992 and he had not stated the aforesaid facts in his statement before him. As such, it appears that this witness has stated the aforesaid facts, for the first time, in his evidence before the trial court.
26. P.W.14 Md. Khairuddin has stated in his evidence that the occurrence is of before 10 months of Thursday of about 01.00 P.M. At that time, she was playing the playing-cards at the door of Bhikhari Roy. In the meantime, on hearing the voice of rioters, he moved to his house, then saw that the rioters were putting the fire in the houses of Farman Mian and Fuddis Mian. Thereafter, he fled away at the door of Mahendra Dhobi and he saw from there that the rioters were putting the fire in his house. At that time, he only identified the appellants Tuna Singh and Nitya Roy amongst the rioters. In paragraph-9 of his cross examination, this witness has stated that he had given the statement before the police after 10 days of the occurrence and he did not inform about the occurrence to Mukhiya, Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 29/49 Sarpanch or police or Magistrate. In paragraph-26 of his cross examination, this witness has stated that he had given the statement before the police that he saw the occurrence from the house of Mahendra Dhobi but P.W.41 Chandra Bhushan has stated in his evidence that he recorded the statement of this witness on 18.10.1992 but he has not stated about seeing the occurrence from the house of Mahendra Dhobi in his statement. As such, it appears that the aforesaid facts was disclosed by this witness, for the first time, in his evidence before the trial court.
27. P.W.15 Farman Mian has stated in his evidence that that the occurrence is of before 10/11 months of Thursday of about 01½-02.00 P.M. At that time, he was at his floor mill and heard hulla from the southern side about killing of Muslim community, then he fled away towards Brahmasthan, where he was concealed by the wife of Ram Sewak Rai in a room and from the small window, he saw that the rioters burnt his house and floor mill. He identified the appellants, Kishori Roy, Kaushal Roy, Nitya Roy, Bachhan Singh, Kali Singh, Rama Singh, Mukund Singh, Misri Lal, Bilash Sah, Ramashray Singh, Chandeshwar Mali, Kishori Mali, Shankar Singh and Kulanand Jha, he came out from the room after two hours of the occurrence. He further stated that the distance in between Bhramsthan and his floor mill is 4/5 Laghghi. He has further stated in his cross examination that he gave his statement before the police after 10 days of the occurrence. In the evening of the occurrence, he returned to his house at about 04.00 P.M. Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 30/49 Before giving his statement to the police, he had not informed to anyone about the occurrence.
28. P.W.16 Md. Nayeem has stated in his evidence that the occurrence is of before 10½ months of Friday of the evening. At that time, the rioters came and set the house of Farman Mian on fire, then he came in fear and proceeded towards east and hide himself in the paddy field and saw the occurrence from the paddy field. The rioters raising the slogan of 'Jai Durge' put the fire in the houses of Sher Mahmood, Fakira Ansari and others and he also heard the sound of firing. At that time he identified the appellants Bachchan Singh, Fekan Singh, Mukund Singh, Kishori Roy, Nitya Roy, Kaushal Roy, Tunna Singh, Baban Singh, Bhairo Singh, Bilash Sah, Mishri Lal Sah and Binod Singh amongst the rioters. Fekan Singh was armed with farsa, Nitya Roy was armed with Garasa, Bhairo Singh, Baban Singh and Kishori Roy were armed with bhala and rests were armd with lathi. He has further stated in his cross examination at paragraph-8 that he had given his statement before police after 10 days of the occurrence and before that he had not informed to anyone about the occurrence in the village. In paragraph-15 of his cross examination, this witness has stated that he had stated before the police that the occurrence is of noon and at that time, he hide himself in the east in the paddy field and saw that rioters were putting the fire in the houses of Sher Mahmood, Fakira Ansari and Waliyat Mian and he also heard the sound of firing and, at that time, he had also disclosed the name of Baban Singh Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 31/49 Kishori Roy and also stated that Fekan Singh was armed with farsa, Kishori Roy was armed with bhala, Nitya Roy was armed with Garasa, Bhairo Singh was armed with lathi and others were armed with lathi but P.W.41 Chandra Bhushan has stated in paragraph-28 of his evidence that he recorded the statement of this witness on 18.10.1992 and he had not stated the aforesaid facts in his statement before him. As such, this witness has stated the aforesaid facts, for the first time, in his evidence before the trial court.
29. P.W.17 Olayat Ansari has stated in his evidence that the occurrence is of before 10½ months of Thursday of about 01.30 P.M. At that time, he was at his door and saw the rioters raising slogan of 'Jai Durge' reached near his house having bhala, Garasa, lathi and the gallon of kerosene oil in their hands and they set on fire the houses of Mosahib Mian and Ijrail Mian and others. He could not come from the house because the rioters had come there, while he was inside the house, he heard the sound of firing. At that time he identified the appellants Kishori Roy, Nitya Roy, Kaushal Roy, Misri Sah, Bilas Sah, Tuna Singh, Bhairo Singh, Gulab Singh and Lal Babu Singh, out of them Kishori Roy was armed with Bhala, Nitya Roy was armed with Garasa, Tuna Singh, Baban Singh and Bhairo Singh were armed with bhala and rests were carrying lathi and kerosene oil. After moving of the rioters, he came out from the house and reached at the door of Ram Sewak Babu (D.W.2), his house was also burnt. He further stated that after 9 days of the occurrence, Darogaji had seized the burnt materials Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 32/49 from 8-9 houses and prepared the seizure list and he proved his signature on the seizure list as Ext.1/1. In paragraph-9 of his cross examination, this witness has stated that his statement was recorded after nine days of the occurrence by the police. He has further stated in his cross examination at paragraph-10 that he had stated before the police that Kishori Roy was armed with bhala, Nitya Roy was armed with Garasa, Tuna Singh and Baban Singh and Bhairo Singh were armed with bhala and rests were armed with lathi and the gallon of kerosene oil but P.W.41 Chandra Bhushan in paragraph 29 of his evidence stated that he recorded the statement of this witness on 18.10.1992 but this witness had not stated the aforesaid facts before him in his statement. As such, the aforesaid facts have been disclosed by this witness in his evidence, for the first time, before the trial court.
30. P.W.19 Abid Hussain has stated in his evidence that the occurrence is of before 11 months of Thursday of about 01.00-1½ P.M. At that time, he was at his tailoring shop, situated adjacent east of his house, then he saw that the Hindu rioters having petrol and diesel in their hands entered in his village from south direction and set the fire in the houses of Muslim community. He further stated that on seeing the rioters, he hide himself in the Harijan Tola from where he saw that the rioters were setting the houses on fire and his house was also burnt. He identified the appellants Tuna Singh, Baban Singh, Shankar Singh, Misrilal Sah, Ram Bilash Sah, Kishori Roy, Nitya Roy, Kaushal Roy, Kali Singh, Bachchan Singh, Fekan Singh, Rama Singh Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 33/49 and Gulab Singh amongst the rioters. At that time, Kishori Roy, Ram Bilash Roy and Baban Singh were armed with bhala, Nitya Roy was armed with Garasa, Rama Singh and Fekan Singh were armd with farsa. He further stated that after 1-1½ hours, he came at his house from Harijan Tola and found his house burnt. This witness has further stated in his cross examination at paragraph-7 that he could not say the name of Harijan in whose house he hide himself. He further stated that on the firing of the police, the rioters fled away from the village. This witness further stated in paragraph-12 of his cross examination that his statement was recorded before the police after 9-10 days of the occurrence. He further stated that he had stated before the police that Ram Bilash Roy, Bachan Singh and Kishori Roy were armed with bhala, Nitya Roy was armed with Garasa and Rama Singh was armed with farsa but P.W.41 Chandra Bhushan has stated in his evidence that this witness had not stated the aforesaid facts before him in his statement. As such, this witness has stated the aforesaid facts in his evidence, for the first time, before the trial court.
31. P.W.1 Md. Muslim has deposed in his evidence that the occurrence is of before nine months of Thursday of about 01.00 P.M. At that time, he along with his father Subhan Mian was at the door of Bhagwati Charan Bharti. In the meantime, his brother-in-law Habib Mian (P.W.7) came and informed that the house of Abdul Rahman has been burnt by the rioters. In the meantime, 6-7 persons came at the door of Bharti, then on seeing them, he alogwith his Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 34/49 brother-in-law hide in the Chharki of Ram Sunder Singh and saw from there that the appellants Rajendra Mahto and Baban Singh gave bhala blow at the chest of his father Subhan Mian (deceased), who fell down and died instantaneously. The rioters moved from there towards the village saying that the work has been finished. After two hours of the moving of the rioters, he went near his father Subhan Mian and saw that his father had died, then he came to his house and found that his house was burnt in which his calf was also burnt. He has further stated that the houses of Muslim community are situated in the middle of village-Majhaura, where a Masjid and the house of Wahid Mian (informant) (P.W.31) are also situated. In the said Tola, the houses of Hindu community are also situated. Majhaura Chowk is situated 3-4 Laghhis away to village Majhaura, where Magistrate and armed forces were present, the house of Surendra Babu is 300 Laghhis away to that place. This witness further stated in his cross examination at paragraph-15 that he came out from Chharki of Surendra Babu after moving of the rioters. He further stated at paragraph-16 of his cross examination that neither he informed about the occurrence to Magistrate or armed forces deputed at Majhaura Chowk nor he had gone to the police station to give information about the occurrence. He did not inform the village Chowkidar about the occurrence. He further stated in his cross examination that he had given his statement before the police after 10/14 days of the occurrence but, in the meantime, he did not disclose about the occurrence to anyone. Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 35/49
32. P.W.7 Md. Habib has given the similar statement like P.W.1 Md. Muslim and claimed that Rajendra Mahto and Baban Singh gave bhala blow at the chest of Subhan Mian, who fell down and died instantaneously. He identified Rajendra Mahto, Baban Singh, Shankar Singh and Ramchandra Rai amongst the rioters. He further stated that after moving of the rioters, he reached near the dead body of Subhan Mian and from there he went to his house and saw that his house and the other houses of Muslim community were bunrt. He further stated at paragraph-5 that after some time he reached at the door of Bhartiji, where Darogaji also came. Darogaji prepared the inquest report of the dead body of the Subhan Mian before him on which he put his thumb impression as a witness. He further stated that after preparation of the inquest report of the dead body he came into fear and went to the village-Mohani and returned from there after ten days, then he gave his statement before the police. In paragraph-18 of his cross examination this witness has stated that he had not given his statement before Darogaji that Rajendra Mahto and Baban Singh gave bhala blow at the chest of Subhan Mian (deceased), due to which he fell down and died then and there and he had also not disclosed before the police that he identified Shankar Singh and Ramchandra Rai. As such, this witness, for the first time, stated before the trial court in his evidence that Rajendra Mahto and Baban Singh gave bhala blow at the chest of Subhan Mian (deceased), due to which he died on the spot Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 36/49 and he also identified Shankar Singh and Ramchandra Rai amongst the rioters.
33. P.W.33 Abdul Rahman has deposed in his evidence that the occurrence is of before 13½ months of Thursday of the noon. At that time, he was at his door and saw that 100-150 rioters raising slogan of 'Jai Durge' and to kill the Muslim community, entered in the village from south-east direction armed with lathi, bhala, garasa, farsa and lukari, then he fled away from his house and hide himself in the sugarcane field, situated at north-south from where he saw the rioters committing loot in the houses of Israfil, Ibrahim and Mahmuddin and also setting the houses on fire. After sometime, the rioters proceeded towards Daubari village. His dauther-in-law Lal Jahan alias Anisa Khatoon, the wife of Ibrahim, was returning from grocery shop of the village, then rioters asked about her religion on which she replied that she is Hindu. Thereafter, she started fled away but she was caught hold on chase, Rajendra Mahto caused injury through bhala at the neck and Kishori Roy gave bhala blow on chest of her daughter-in-law and threw her dead body in the sugarcane field. After 2-2 ½ hours, Darogaji along with police came and dead body was recovered from the sugarcane field. Darogaji prepared the inquest report of the dead body of Lal Jahan alias Anisa Khatoon on which he and P.W.7 put their thumb impression as witness. He further stated that he identified Rajendra Mahto, Lalbabu Singh, Gulab Singh, Raghunath Sah, Kishori Roy, Kaushal Roy, Tuna Singh, Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 37/49 Bhairo Sinh, Baban Singh, Shankar Singh, Bachchan Singh, Kali Singh and Fekan Singh amongst the rioters. This witness further stated in his cross examination at paragraph-4 that Darogaji had come at about 4-4 ½ P.M. on the date of the occurrence in the village and Darogaji had seen the dead body and he was present near Darogaji for about half an hour and, thereafter, he returned to his house. After 8-9 days of the occurrence, he had given his statement before the police. He has stated in his cross examination that he had given his statement before the police that rioters, 100-150 in number, came from south-east direction raising slogan and Darogaji recovered the dead body of his daughter-in-law (Lal Jahan alias Anisa Khatoon) from the sugarcane field, situated in the west direction of his house, he has also stated that he had disclosed before the police in his statement that Rajendra Mahto and Kishori Mahto caused injury through bhala at the chest and neck of his daughter-in-law. P.W.41 Chandra Bhushan has stated in his cross examination at paragraph-31 that he had recorded the statement of this witness on 17.10.1992 but this witness had not stated the aforesaid facts in his statement recorded by him. As such, this witness, for the first time, has disclosed the aforesaid facts in course of trial in his evidence in the trial court.
34. P.W.42 Nizamadulla Khan, who was posted as Officer Icharge of Riga Plice Station on 08.10.1992, has stated in his evidence that on 08.10.1992, he heard the rumour about spreading of Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 38/49 communal riot in village Imli Bazar, Akhiji, Manipur and Majhaura in which the life and property have been damaged. Thereafter, on the said information, he by making the Sanaha entry, proceeded for the aforesaid village and reached at village-Majhaura at about 10.00 P.M., where the fardbeyan of the informant Wahid Hussain (P.W.31) was recorded on his dictation by Ram Laulin Roy (not examined). The farebeyan was read over and explained to the informant Wahid Hussain (P.W.31), thereafter he put his signature on the fardbeyan. He proved the fardbeyan of the informant Wahid Hussain (P.W.31) as Ext.6 and also proved his endorsement on the fardbeyan as Ext.7. He further stated that formal F.I.R. was drawn before him by the A.S.I. Kharakdhari Singh (not examined) on which he put his signature and proved the formal F.I.R. as Ext.8. He further stated that he recorded the restatement of the informant Wahid Hussain (P.W.31) and on his instruction, Ram Laulin Roy (not examined) prepared the inquest reports of Anisa Khatoon alias Lal Jahan Khatoon, wife of Ibrahim Mian, and the deceased Subhan Mian, son of Manjhi Mian alias Mushar Mian, on which he put his signature and the witnesses also put their thumb impression. He proved the inquest reports of the deceased Anisa Khatoon alias Lal Jahan Khatoon and Subhan Mian as Exts.9 and 9/1. He further stated that due to late night, he deferred the inspection of the place of the occurrence for the next day and returned to the Riga Police Station and on the basis of the fardbeyan of the informant Wahid Hussain (P.W.31), the case was instituted. He further Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 39/49 stated that on 09.10.1992, he reached at the Primary Health Centre, Riga, where the inquest reports of the deceased Md. Mansoor, son of Isha, and Md. Muslim, son of Raghu Ansari, were prepared by Munshi Ram Laulin Roy (not examined) in carbon process, on which he put his signature the witness Ganesh Yadav (not examined) and Akil Mian (P.W.4) put their thumb impression on the inquest reports of the deceased Md. Mansoor and Md. Muslim. He proved the inquest reports of the deceased Md. Mansoor and Md. Muslim as Ext.9/2 and 9/3. He further stated that the inquest reports of the dead bodies of the deceased Md. Abbas and Md. Yasin Ansari were also prepared in carbon process on his instruction by Ram Laulin Roy (not examined) on which A.S.I. J. K. Mishra put his signature in his presence and the witnesses also put their signature and he proved both the inquest reports as Ext.9/4 and 9/5. This witness further deposed in his evidence that 15 injury requisitions are in the handwriting of Ram Laulin Roy (not examined) on which he put his signature and he proved the same as Exts.10 to 10/14. He further stated that on 09.10.1992 at about 00.30 hour, he reached at village-Majhaura and on the disclosure of the informant Wahid Hussain (P.W.31), he inspected the place of the occurrence. The place of the occurrence is the houses of Muslim community in village-Majhaura surrounded by sugarcane filed. Village-Kathara, Hajipur, Amoji, Ramnagar, Pipra and Bulakipur are situated in the east, west, south and north to the village- Majhaura. The rioters entered in the village from the south direction Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 40/49 and, firstly, effected the house of Abdul Rahman (P.W.33), situated in the south of the village-Majhaura Abadi; the 2nd , 3rd and 4th houses are of Israfil (not examined) Ibrahim (not examined) and Madin (not examined). The second place of the occurrence is the sugarcane field of Mukhti Singh of village-Riga, situated in the south of the village- Pachchaura, where the dead body of Lal Jahan Khatoon was found, where 7 ft. x 5 ft. area was found dragging. The third place of the occurrence is the orchard of Bhagwati Charan Bharti, situated at 5 yards away in east to his house where the dead body of the deceased Subhan Mian was found. The fourth place of the occurrence is the residential houses of the Muslim community, floor mill and mosque in village-Majhaura. Except the mosque, all the houses and floor were found burnt. The fifth place of the occurrence is the paddy filed of Durga Singh, situated at half kilometers away in the east of the village-Majhaura, where the dead body of Abbas Ansari was found. The whole filed was found submerged with water. The sixth place of the occurrence is the paddy field of Kishun Roy, situated three kilometers away to village-Majhaura from where in the ditch of filed, the dead body of Muslim Mian was found, where the paddy crop was also found damaged in the area of 7 x 4 cubit. The seventh place of the occurrence is the field, in the boundary of the seventh place of the occurrence where the dead body of Mahmaddin Mian was found, where the paddy crop was also found damaged. After inspection of the place of the occurrence, on 09.10.1992, he went to P.H.C., Riga Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 41/49 where he examined the remaining three dead bodies and prepared the inquest reports and sent the dead bodies for post-mortem examination. Thereafter, he visited the eighth place of the occurrence, the paddy filed of Danki Singh, situated half kilometer away in the east to village-Majhaura where the dead body of Yasin Ansari was found, floating in the water of the paddy field. None was ready to give the evidence, due to that reason, he could not record the statement of the witnesses. Thereafter, on 16.10.1992, he handed over the charge of investigation, on the instruction of senior officer, to S.I. Chandra Bhushan (P.W.41).
This witness has further stated in examination-in-chief that the station diary is being maintained at the Police Station-Riga, Sanaha Entry Nos.157, 158, 159 and 176 dated 08.10.1992, in the station diary, are in the writing of the writer Ram Laulin Roy (not examined) and against the said entries, in column no.11, he has put his signature. He has further stated in his cross examination at paragraph- 22 that on 08.10.1992, he was the Officer Incharge of Riga Police Station where Shambhu Nath, Kharakdhari and Ganesh Ram were posted as A.S.I., whereas Ram Laulin Roy was posted as writer at the police station-Riga. Police Station writer is known as Munshi, who used to do the writing work at the police station but the police station writer has no power to investigate the case and in the absence of senior officer, charge of police station diary is handed over to Munshi of the police station. He has further stated in his cross examination at Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 42/49 paragraph-24 that Sanaha Entry No.158 dated 08.10.1992 was made in the station diary at about 04.00 P.M. but the name of the person is not mentioned in the station diary to whom he learnt about the spreading of riot. On the information, detailed in the Sanaha Entry No.158 dated 08.10.1992, he proceeded from Riga Police Station with the armed forces to Imli Bazar and Majhaura and returned on the same day at about 10.45 P.M. at the police station. It is not detailed in the station diary, who were accompanied with him as armed forces. He further stated in his cross examination at paragraph-25 that after 04.00 P.M. of 08.10.1992, second Sanha Entry, at 4½ P.M, third Sanha Entry at 06.00 P.M., 4th Sanaha Entry at 06.20 P.M., 5 th Sanaha Entry at 06.30 P.M., 6th Sanaha Entry at about 08.00 P.M., 7 th Sanaha Entry at 08.15 P.M., 8th Sanaha Entry at 08.20 P.M., 9th Sanaha Entry at 08.25 P.M., 10th Sanaha Entry at 08.30 P.M., 11th Sanaha Entry at 10.00 P.M., 12th Sanaha Entry at about 11.00 P.M., and last Sanha Entry at 11.45 P.M. on 08.10.1992 are in the handwriting of the writer Ram Laulin Roy (not examined), which indicates that on 08.10.1992, in between 04.00 P.M. to 11.45 P.M., writer Ram Laulin Roy (not examined) was present at the police station. He further stated in the same paragraph that Sanha Entry No.158 dated 08.10.1992, which is of 04.00 P.M., indicates that he proceeded along with armed forces from the police station handing over the charge of the station diary to writer Ram Laulin Roy (not examined). He further stated in his cross examination at paragraph-26 that it is not mentioed in the diary at Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 43/49 which time he reached at he village-Majhaura on 08.10.1992. He further stated that he reached in village-Majhaura on 08.10.1992 before 22.00 P.M. but he is unable to say the exact time. In the same paragraph, he further stated that it is true that he reached in village- Majhaura on 08.10.1992 at 04.30 P.M., he had gone to village- Majhaura on jeep. He further stated that he handed over the charge of investigation of the case on 16.10.1992 to A.S.I. Chandra Bhushan (P.W.41), till that date, he had not recorded the statements of the Executive Magistrate, the armed forces and Chowkidar. He further stated in paragraph-29 that he prepared the inquest reports of the deceased Anisa Khatoon, wife of Ibrahim Mian, on 08.10.1992 at about 04.30 P.M. at village-Majhaura in presence of Md. Habib (P.W.7) and Abdul Rahaman (P.W.33) but they had not given their statements about the occurrence. He further stated that on the same day, i.e., 08.10.1992, at about 04.30 P.M., he inspected the dead body of Subhan Mian in presence of the witness Md. Habib (P.W.7) and Abdul Rahman (P.W.33) in village-Majhaura and prepared inquest reports there. He further stated in paragraph-31 that on seeing the injured at the place of the occurrence, he sent the injured with requisitions of their injuries, (Exts.10 to 10/14), for their medical examination to P.H.C. Riga but, at that time, 15 injured did not disclose the name of any rioter nor he recorded the statements of the injured till 16.10.1992. He further stated in his cross examination at paragraph-32 that before recording the fardbeyan in this case, none Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 44/49 person had disclosed the name of any accused as rioter. In village- Majhaura, Executive Magistrate Indra Nand Jha was already deputed before the occurrence. He met the Executive Magistrate Indra Nand Jha in village-Majhaura, who had submitted the written report but he has not detailed about the same in the case diary. He further stated at paragraph-33 of his cross examination that it is detailed in Sanaha Entry No.176 dated 08.10.1992 that the Executive Magistrate Indra Nand Jha had given written report in village Majhaura on which basis Riga P.S. Case No.126 of 1992 under Sections 147, 148, 149, 302, 201, 436 and 153-A was instituted against unknown and he took the charge of the investigation of the case himself. He further stated in his cross examination at paragraph-34 that in the night of 08/09.10.1992, he arrested Tuna Singh, Pawan Singh, Baban Singh and Shankar Singh from their houses and, on search, no incriminating articles was recovered from their house. He has further stated at paragraph-35 of his cross examination that fardbeyan and formal F.I.R. was received in the court of the Chief Judicial Magistrate, Sitamarhi, on 13.10.1992 and on the same day, Tuna Singh, Pawan Singh, Baban Singh and Shankar Singh were forwarded in the court of the Chief Judicial Magistrate, Sitamarhi on their arrest. He further stated that he arrested Ramashray Singh on 12.10.1992 at about 01.00 P.M. to his house and no incriminating article was recovered to his house. He further stated in paragraph-40 of his cross examination that in village-Majhaura, 8-10 houses of the Hindu community were also Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 45/49 burnt but he had not lodged the case in respect of the burning of the said houses. He denied the suggestion of the defence that since the informant Wahid Hussain (P.W.31) is the local Mukhia of the Gram Panchayat, he recorded his fardbeyan on 12.10.1992 at the police station-Riga and prepared the inquest reports at the police station-Riga and the formal F.I.R. was drawn in the evening of 12.10.1992, due to that reason, the accused Tuna Singh, Pawan Singh, Baban Singh and Shankar Singh were not produced in the court of the Chief Judicial Magistrate, Sitamarhi, before 12.10.1992. He has further stated in paragraph-43 of his cross examination that in the Fardbeyan (Ext.6) of the informant Wahid Hussain (P.W.31), the presence of Ram Laulin Roy, writer of police station-Riga, has not been detailed nor the same is detailed in the case diary.
While this witness has stated in his examination-in-chief that fardbeyan (Ext.6) of the informant Wahid Hussain (P.W.31) was recorded by him at about 10.00 P.M. on 08.10.1992 in village- Majhaura on his instruction by Ram Laulin Roy (not examined), writer of police station-Riga, but from paragraphs-24 and 25 of his cross examination, it is apparent that he proceeded from the police station-Riga along with armed forces making Sanha Entry No.158 dated 08.10.1992 at about 04.00 P.M., handing over the charge of station diary to Ram Laulin Roy (not examined) and on that date, all the entries made in between 04.30 P.M. to 11.45 P.M. are in the handwriting of Ram Laulin Roy. As such the said fardbeyan of the Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 46/49 informant Wahid Hussain (P.W.31) was not prepared at 10.00 P.M. on 08.10.1992 in village-Majhaura rather the same was prepared at the police station on due deliberation with the informant Wahid Hussain (P.W.31), later on. Further, it appears from the evidence of P.W.42 N.D. Khan that while this witness has stated about reaching at village-Majhaura at 10.00 P.M. on 08.10.1992 but in his cross examination, he admitted that he reached at village-Majhaura at 04.30 P.M. where he prepared the inquest report (Ext.9) of Anisa Khatoon in presence of the witnesses Md. Habib (P.W.7) and Abdul Rahman (P.W.33), the inquest report (Ext.9/1) of the deceased Subhan Mian in presence of the witnesses Md. Habib (P.W.7) and Abdul Rahaman (P.W.33) and also sent the 15 injured on preparing the requisitions of injury (Exts.10 to 10/14) for medical examination at P.H.C. Riga but neither the statement of the 15 injured nor the witnesses of the inquest reports (Ext.9 and Ext.9/1) of Anisa Khatoon and Subhan Mian was recorded at the place of the occurrence by him.
35. From the evidence, as discussed above, it is clear that while P.W.42 N.D. Khan, the Officer Incharge of Police Station-Riga , reached in village-Majhaura on knowing about the occurrence and met the Executive Magistrate Indra Nand Jha, deputed there along with armed forces, who handed over the written report about the occurrence to him on which basis, Sanaha Entry No.176 dated 08.10.1992 was made and, accordingly, Riga P.S. Case No.126 of 1992 was instituted under Sections 147, 148, 149, 302, 201, 436 and 153-A of the Indian Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 47/49 Penal Code against unknown but the same was suppressed by the prosecution, which was the initial version about the occurrence. Further, Ext.6, the fardbeyan of the informant Wahid Hussain (P.W.31), shows that the same was recorded at about 10.00 P.M. in village-Majhaura by P.W.42 N.D. Khan, the Officer Incharge of the Police Station-Riga, but P.W.42 N.D. Khan has stated in his evidence that the same was recorded in village-Majhaura on his instruction by Munshi Ram Laulin Roy (not examined) but Munsi Ram Laulin Roy (not examined) was at the police station in between 04.30 P.M. to 11.45 P.M., on 08.10.1992, which is admitted by P.W.42 N.D. Khan himself in his cross examination at paragraph-25. As such, Fardbeyan (Ext.6) of the informant Wahid Hussain (P.W.31) was not recorded in village-Majhaura rather the same was prepared at the police station, later on, on due deliberation, with the informant Wahid Hussain (P.W.31) in which the name of the appellants were as accused. P.W.42 N.D. Khan has admitted in his evidence that in village- Majhaura, he prepared the inquest reports of the deceased Anisa Khatoon (Ext.9) at 04.30 P.M. in presence of the witnesses Md. Habib (P.W.7) and Abdul Rahman (P.W.33) and also the inquest report (Ext.9/1) of the deceased Subhan Mian in presence of the witnesses Md. Habib (P.W.7) and Abdul Rahaman (P.W.33) but P.W.42 N.D. Khan did not record the statements of the aforesaid inquest reports' witnesses till handing over the charge of investigation on 16.10.1992 to S.I. Chandra Bhushan (P.W.41). P.W.42 N.D. Khan has also Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 48/49 admitted in his evidence that 15 injured including Jaitan Khatoon (P.W.6), Amin Mian (P.W.11), Md. Fekau (P.W.12), Rabbu Hussain (P.W.20), Israil Ansari (P.W.29), Saida Khatoon (P.W.38), Salima Khatoon (P.W.39) and Asma Khatoon (P.W.40) were sent for medical examination at P.H.C. Riga, after preparing the requisitions of their injury, at 04.30 P.M. and all the 15 injured were examined by Dr. Sita Ram Prasad Singh (P.W.24) in between 04.30 P.M. to 08.50 P.M. at P.H.C., Riga and according to him, all the injuries of all the injured were simple and superficial in nature but their statements were also not recorded by P.W.42 N.D. Khan at the P.O. village-Majhaura and their statements were recorded eiter after three days or nine days of the occurrence. It also appears from the evidence of P.W.42 N.D. Khan that while F.I.R. was instituted on 08.10.1992 on the basis of the fardbeyan (Ext.6) of the informant Wahid Hussain (P.W.31) but the same was received in the court of the Chief Judicial Magistrate, Sitamarhi, on 13.10.1992, after four days of the occurrence, and no explanation has been furnished about receiving the F.I.R. to the Chief Judicial Magistrate, Sitamarhi, after four days of the occurrence. As such, the aforesaid discrepancies create serious doubt about the prosecution story, showing the hands of the appellants in the alleged occurrence.
36. Having regard to the facts and the circumstances of the case and the discussions, as made above, I am of the view that the prosecution has not been able to prove its case and the charges Patna High Court CR. APP (DB) No.333 of 1994 dt. 08-05-2018 49/49 levelled against the appellants beyond all reasonable doubts and the appellants are entitled to get the benefit of doubt.
37. In the result, both the criminal appeals are allowed. The impugned Judgment of conviction and order of sentence are, hereby, set aside. The appellants are acquitted of the charges. The appellants are on bail, hence, they are discharged from the liabilities of their bail bonds.
( Rajendra Kumar Mishra, J) Hemant Kumar Srivastava, J :- I agree.
(Hemant Kumar Srivastava, J) Pradeep Srivastava/-
AFR/NAFR NAFR CAV DATE 24.01.2018. Uploading Date 08.05.2018. Transmission Date 08.05.2018.