Patna High Court
The State Of Bihar vs Sikandar Sada & Ors on 3 January, 2014
Author: V.N. Sinha
Bench: V.N. Sinha, Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Death Reference No.2 of 2012
Reference, Appeal against the judgment of conviction and
order of sentence dated 8.02.2012, 14.02.2012 passed in
Sessions Case No. 15/2010 by 1st Additional Sessions Judge,
Khagaria
===================================================
The State of Bihar
.... .... Petitioner
Versus
1. Sikandar Sada S/O Durga Sada
2. Sajjan Sada S/O Bhajjan Sada
3. Tarni Sada S/O Late Buddhu Sada
4. Sushil Sada S/O Laddu Sada
5. Sanatan Sada S/O Harilal Sada
6. Harilal Sada S/O Late Sukhdeo Sada @ Bulbul Sada
7. Dilip Sada S/O Laddu Sada
8. Ram Sada S/O Late Rajo Sada
9. Bodhan Sada S/O Dhanik Sada
10. Bilo Sada S/O Late Bhola Sada.... .... Respondents
with
Criminal Appeal (DB) No. 226 of 2012
===================================================
1. Opi Mahto@Upendra Mahto son of late Bano Mahto
2. Ghuran Sada son of late Meppu Sada
3. Laddulal Sada son of Banarsi Sada
4. Umesh Mahto son of late Bano Mahto
5. Sikandar Sada son of Durga Sada
6. Sajjan Sada son of Bhajjan Sada
7. Tarni Sada son of Budhu Sada
8. Sushil Sada son of Laddulal Sada
9. Sanatan Sada son of Harilal Sada
10. Harilal Sada son of late Sukhdeo Sada
11. Dilip Sada son of Suresh Sada
12. Ram Sada son of late Rajo Sada
13. Billo Sada son of late Bhola Sada, All resident of village -Amausi,
P.S. Morkahi, District-Khagaria
14. Borhan Sada son of Dhanik Sada resident of village-Rohua, P.S.
Gangaur, O.P., District-Khagaria
.... .... Appellants
Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 2
Versus
The State of Bihar
.... .... Respondent
===================================================
Appearance :
(In D. REF. No. 2 of 2012)
For the Petitioner : Mr. Ashwani Kumar Sinha, A.P.P. &
Ms. Shashi Bala Verma, A.P.P.
For the Respondents M/s Ajay Kumar Thakur, Md. Imteyaz
Ahmad, Rajesh Kumar & Nilesh Kumar,
Advocates
(In CR. APP (DB) No. 226 of 2012)
For the Appellants : M/s Ajay Kumar Thakur, Md. Imteyaz
Ahmad, Rajesh Kumar & Nilesh Kumar,
Advocates
For the Respondent: Mr. Ashwani Kumar Sinha, A.P.P. &
Ms. Shashi Bala Verma, A.P.P.
===================================================
CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
and
HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE V.N. SINHA)
Date: 03-01-2014
Instant death reference and the connected Cr. Appeal arise
out of judgment/ order dated 8.02.2012/ 14.02.2012 passed by 1st
Additional Sessions Judge, Khagaria in Sessions Case No. 15/2010,
corresponding to Morkahi P.S. Case No. 55/09, G.R. No. 1380/09
whereunder all the 14 appellants have been convicted for the offence
under Sections 302/149, 342, 148 of the Indian Penal Code and 27 of
the Arms Act. Appellant Nos. 1 to 4 have been directed to suffer the
sentence of imprisonment for life under Sections 302/149 of the
Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 3
Indian Penal Code with further direction to pay fine of ` 5,000/- each,
in default of payment of fine to further suffer rigorous imprisonment
for one year. For the conviction under Section 148 of the Indian
Penal Code, appellant Nos. 1 to 4 have been directed to suffer the
sentence of rigorous imprisonment for two years as also to pay fine of
` 2,000/- each, in default of payment of fine to further suffer rigorous
imprisonment for six months. Under Section 342 I.P.C. appellant Nos.
1 to 4 have been directed to undergo simple imprisonment for one
year. For conviction under Section 27 of the Arms Act, they have
been directed to suffer sentence of rigorous imprisonment for three
years with direction to pay fine of ` 1,000/- and in default of payment
of fine to suffer rigorous imprisonment for six months. Appellant nos.
5 to 14 have been directed to suffer sentence of capital punishment for
conviction under Sections 302/149 of the Indian Penal Code with
further direction to pay fine of ` 5,000/-, in default of payment of fine
they have been directed to suffer rigorous imprisonment for one year.
Appellant nos. 5 to 14 for their conviction under Sections, 148, 342 of
the Indian Penal Code and 27 of the Arms Act have been awarded
similar sentence as that of appellant Nos. 1 to 4. The sentences
awarded to appellant nos. 1 to 14, however, have been directed to run
concurrently except the sentence imposed "in default of payment of
fine" which they have to suffer separately.
Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 4
2. Prosecution case as set out in the fardbeyan (Ext.1/1) of
Paro Singh P.W.13, recorded by S.I. Mukesh Kumar P.W.17, on
2.10.2009at 7.45 A.M. at Icharua Chawk (Crossing) is that the previous night, he along with his son Chandan Singh (deceased) was sleeping in his hut (Basa) situate in Amausi Bahiyar (in local dialect „Bahiyar‟ is the word for the agricultural lands situate at a distance from the dwelling part of the village). At about 11 P.M. in the moonlight, he suddenly saw 40-50 miscreants variously armed coming towards him holding his co-villager Dunilal Singh. From amongst the 40-50 miscreants, 10-15 miscreants came to the hut of the informant, the other 25-30 miscreants went to surround the other huts of the co-villagers situate in the vicinity and forcibly brought 16 persons, namely, (1) Ranjit Kumar (2) Sanjit Kumar, both sons of Jaichand Singh (3) Chandan Singh son of Paro Singh (4) Guddu Singh son of Feko Singh, all of village Chandpura Khurd (5) Gautam Singh @ Guddu Singh son of Yogi Singh (6) Ram Singh son of Bhato Singh (7) Sunil Kumar son of Chhotelal Singh (8) Dunilal Singh son of Kamli Singh (9) Ram Sharan Singh son of Sukan Singh (10) Mithilesh Singh son of Chhotelal Singh (11) Rohit Kumar son of Saudagar Singh (12) Hukum Kumar son of Mahesh Singh (13) Rajan Kumar son of Bhogi Singh (14) Diwana Kumar son of Late Ram Bharosh Singh (15) Fuchilal son of Badan Singh, all resident of Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 5 Icharua (16) Raja Kumar @ Vir Kumar son of Late Chand Singh resident of village Burhawa Haripur, P.S. Alauli, district Khagaria sleeping in huts to the hut of his younger brother Chhotelal Singh P.W.12, tied their hands, legs and shot them with long fire-arm held by the miscreants. Informant somehow concealed himself, saved his life and met co-villager Kamli Singh P.W.2, Jaichand Singh P.W.1, Chhotelal Singh P.W.12, Prakash Singh (not examined), Amrudh Singh P.W.3. The co-villagers have also seen the occurrence and identified the following 37 miscreants (1) Borhan Sada appellant no.14 (2) Opi Mahto @ Upendra Mahto appellant no.1 (3) Bhogi Sada (acquitted) (4) Kevli Sada (acquitted) (5) Rohit Sada (absconder) (6) Lal Bahadur Sada (acquitted) (7) Dilip Sada appellant no.11 (8) Umesh Sada (acquitted) (9) Punit Sada (absconder) (10) Suresh Sada (acquitted) (11) Umesh Sada son of Shibu Sada (acquitted) (12) Sanatan Sada appellant no.9 (13) Harilal Sada appellant no.10 (14) Fucho Sada (acquitted) (15) Nagina Sada (acquitted) (16) Rajo Sada (absconder) (17) Punit Sada son of Kusho Sada (absconder) (18) Sogarath Sada (acquitted) (19) Laddu Sada appellant no.3 (20) Dilip Sada (absconder) (21) Sushil Sada appellant no.8 (22) Ghuran Sada appellant no.2 (23) Lalit Sada (absconder) (24) Barun Sada (absconder) (25) Pankaj Kumar (acquitted) (26) Sushil Sah (acquitted) (27) Dhyani Sada (acquitted) (28) Billo Sada appellant no.13 (29) Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 6 Ram Sada appellant no.12 (30) Sajjan Sada appellant no.6 (31) Fulo Sada (acquitted) (32) Umesh Mahto appellant no.4 (33) Tarni Sada appellant no.7 (34) Gorelal Sada (absconder) (35) Bindeshwari Sada (absconder) (36) Mithilesh Sada (juvenile) (37) Ashik Sada (acquitted). Besides, there were 20-25 unknown miscreants who can also be identified if made available. After the occurrence, informant and other co-villagers named above went to their village Icharua and informed the villagers about the occurrence and then returned to the place of occurrence along with hundreds of villagers and brought the dead bodies of his son and others to Icharua. In last but one paragraph of the fardbeyan, informant asserted that the occurrence took place because the accused persons wanted to forcibly take possession of their agricultural land located in Amausi village. The contents of the fardbeyan was read over to the informant, who having found the same to be correct, put his thumb impression over the fardbeyan. P.W.2 Kamli Singh also put his signature over the fardbeyan.
3. Having recorded the fardbeyan, Officer-in-charge, Morkahi P.S. forwarded the same to Incharge of Morkahi P.S. for instituting the case under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act and took up the investigation of the case. A.S.I. Suresh Prasad Singh received the fardbeyan of the informant and registered the First Information Report (Ext.5) at 10 A.M. vide Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 7 Morkahi P.S. Case No. 55/09 dated 2.10.2009 for the offence under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act with endorsement that Officer-in-charge, Morkahi P.S. has already taken up its investigation. Having taken up the investigation, Investigating Officer P.W.17 got prepared the inquest report of the 16 deceased by S.I. Ramanand Mandal (Exts. 6 - 6/XV) and arranged for medical team from Khagaria to conduct post-mortem of the 16 dead bodies at Icharua. Investigating Officer also recorded the further statement of the informant P.W.13 and the statement of Kamli Singh P.W.2. After post-mortem of the 16 dead bodies, Investigating Officer proceeded for the place of occurrence and having reached the place of occurrence inspected the same, which is the hut of Chhotelal Singh P.W.12 situate in Amausi Bahiyar where the accused persons shot dead 15 persons. To the east of the hut of Chhotelal Singh, there is vacant land over which copious blood and empty of a cartridge was found which was seized vide seizure list, Ext.2/1 in presence of two witnesses. The hut of Chhotelal Mahto is at a distance of 100 yards east from the hut of Chhotelal Singh in which a dead body was found by the Investigating Officer during inspection of the place of occurrence. Amausi village is situate 2-2 ½ Kms. east from the place of occurrence. Having inspected the place of occurrence, Investigating Officer raided the house of the accused persons in Amausi village, Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 8 arrested seven of the accused persons on 2.10.2009 itself, returned to P.S. and closed the case diary for that day. Investigating Officer recorded the statement of other witnesses, including Jaichand Singh P.W.1, on 3.10.2009 and then again visited the place of occurrence for further minute inspection of the place of occurrence and recovered 5 pieces of empty cartridges, 3 pieces of WAD and 1 piece of LAD, blood soaked soil, grass, blood stained square printed cloth, one blanket, seven blood stained towels, cotton sheet, lungi, one blood stained white-yellow coloured square printed shirt, one blood stained white shirt, one plastic rope. The articles recovered on 3.10.2009 were also seized in presence of two independent witnesses vide seizure list, Ext.7. Investigating Officer recorded the statement of Chhotelal Singh P.W.12, Amrudh Singh P.W.3, Yogi Singh P.W.4, Mahesh Singh P.W.8, Bhogi Singh P.W.6, Pankaj Singh P.W.14 and many others on 6.10.2009. He also received post-mortem report and further recorded the statement of other witnesses and then submitted chargesheet No. 73/09 dated 29.12.2009 against 37 persons named in the First Information Report and 4 others not named in First Information Report. Out of 41 sent up for trial, 28 accused persons were put on trial. From amongst the 28 put on trial, 14 accused have been convicted and 14 acquitted.
4. In support of the accusation 35 witnesses were cited as Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 9 witness in the chargesheet. To establish the charge in course of trial, 17 witnesses were examined. P.W.1 Jaichand Singh, P.W.2 Kamli Singh, P.W.3 Amrud Singh and P.W.12 Chhotelal Singh are named as witness in the First Information Report. P.W.4 Yogi Singh, P.W.5 Bhato Singh, P.W.6 Bhogi Singh, P.W.7 Badan Prasad Singh, P.W.8 Mahesh Singh, P.W.11 Praduman Singh, P.W.14 Pankaj Singh are not named in the First Information Report as witness, but have been named in the charge-sheet as witness to support the accusation. P.Ws. 9 and 10 i.e. Dr. Jagdeo Mandal and Dr. Yogendra Singh Prayasi conducted post-mortem of 16 deceased. P.W.13 Paro Singh is informant, P.W.15 Pappu Kumar and P.W.16 Rajesh Singh are the witnesses of inquest. P.W.17 Mukesh Kumar, Officer-in-charge Morkahi P.S. is the Investigating Officer of the case.
Defence has also examined three witnesses i.e. D.W.1 Chameli Devi, wife of appellant no.1, D.W.2 Kailu Sahni, boatman, D.W.3 Ramesh Das, Revenue Clerk.
5. Paro Singh P.W.13 the informant has stated in his evidence that occurrence took place about one year back at 11 P.M. when he and his son were in his hut at Amausi Bahiyar. His son was sleeping after taking dinner, informant was, however, awake and saw 40-50 miscreants armed with rifle, holding gaslight coming from south-west, first came to the hut of Dunilal caught him, then to the hut Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 10 of Guddu, Hukum, Rajan, Diwana, Ram Singh, Rohit, Ram Sharan, Ranjit and Sanjit one after the other and caught them. They also caught Sunil and Raja, both cousins along with their 2-4 relative guests. Finally 10-15 miscreants came to the hut of the informant where his son was sleeping whom the informant tried to awake, but he remained sleeping then the informant slipped into the paddy field and thereby concealed himself. The miscreants, however, caught his son and took him along with others to the hut of Chhotelal Singh. The miscreants tied the hands of the apprehended persons and Appellant No.14 Borhan Sada asked as to why they have not complied with the instruction to vacate the hut then the son of the informant replied that he shall vacate the hut tomorrow, but appellant no.14 ordered the other miscreants to shoot whereafter the miscreants fired indiscriminately. After firing the miscreants flashed torchlight to confirm whether the victims are dead or alive. In the torchlight flashed by the miscreants, informant identified appellant no.14 Borhan Sada, appellant no.12 Ram Sada, appellant no.6 Sajjan Sada, appellant no. 11 Dilip Sada, appellant no.5 Sikandar Sada, appellant no.1 Opi Mahto @ Upendra Mahto, appellant no.3 Laddu Sada, absconder Devendra Chaudhary, absconder Manoj Sada, appellant no.2 Ghuran Sada, appellant no.9 Sanatan Sada, absconder Barun Sada, Ram Vilash Singh, Shital Singh, Dilip Singh as the assasilants. He has Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 11 further stated in his evidence that the assailants having committed the murder, went towards north. The hut of Chhotelal Mahto (not examined) is towards north where also two shots were fired. Informant escaped towards west from the place of occurrence through pits, came near the bank of the river, met Chhotelal Singh P.W.12 then Jaichand Singh P.W.1, Amrudh Singh P.W.3, Kamli Singh P.W.2 respectively. The four co-villagers also confirmed that they have identified the assailants. The informant and four witnesses thereafter came to village Icharua at 12 O‟ clock in the night, raised alarm woke up the villagers, 100-150 villagers came to the place of occurrence and saw that the hands of the dead bodies have been tied. Father of those killed untied the hands of their son and brought the dead body to the bank of the river, then by boat to the embankment and from the embankment to Icharua chowk after lifting the same. In the morning between 6-7 AM, the force arrived from the P.S. and recorded the fardbeyan of the informant, which was read over to him and having found the same to be correct, he put his thumb impression over the fardbeyan. Other formalities were also completed. Informant further claimed in his evidence that those miscreants who have been named by him are known to him from before. Some of the miscreants are not present, others are absconding. He further identified appellants Borhan Sada, Rama Sada, Sajjan Sada, Dilip Sada, Sikandar Sada, Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 12 Opi Mahto, Laddu Sada, Ghuran Sada, Sanatan Sada in the dock and stated that others are not present. From the evidence of the informant it would thus appear that though he named 37 miscreants in the fardbeyan but in court while recording his evidence named only 16 miscreants as the one identified by him during the occurrence. In paragraph 2 of his cross-examination, informant stated that his fardbeyan was recorded at Icharua chowk and further statement at the place of occurrence hut where murder took place. In paragraph 4 of his cross-examination, informant has stated that doctors had come to Icharua chowk where post-mortem was conducted in Government building. In the same paragraph, he further stated that he remained at Icharua chowk until he received the dead body of his son after post- mortem. In paragraph 5 of his cross-examination, informant has further stated that he received the dead body of his son in the evening after darkness had set in and performed his last rites and then went to his home and remained at home the next day. He also stated in the same paragraph that he is known to Mukhiya who happens to be his cousin and his brother Naresh Singh is the Member of Zila Parishad. Naresh Singh and the Mukhiya were informed about the occurrence and they had also come to Bahiyar to carry the dead bodies. In paragraph 6 of his cross-examination, informant claimed that he did not furnish any information about the occurrence to the P.S. In the Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 13 same paragraph, he has stated that Naresh Singh has a telephone, but he is not aware whether he had informed the police about the occurrence. In paragraph 7, the informant further stated that at Icharua Chowk, Naresh Singh, Chhotelal Singh were present when police, S.P., Dy.S.P. arrived. Neither Mukhiya nor Naresh Singh asked him to record his statement, which he recorded out of his own volition. In paragraphs 8, 9, the informant reiterated the statement made by him in the fardbeyan. In paragraph 18, informant has described the type of his hut raised at the Bahiyar and indicated that the same is exposed from four sides and is raised on the bamboo clumps of 5-6 cubit by putting a thatched roof over the same. Miscreants came silently from west, south. In paragraph 19, the informant claimed that he saw the miscreants for the first time from a distance of one rassi, which is equivalent to 10 laggi and laggi consists of 6-6 ½ cubit. In the same paragraph, he further stated that his son was not addicted to any intoxication and both were sleeping at one place, but he was awake. In paragraph 20, the informant claimed that the miscreants came to him within 1-2 minutes after visiting the other huts. In the same paragraph, he also indicated that the farthest hut from his hut is that of Ram Singh, which is at a distance of 2 rassi. Other huts are close to each other. In the same paragraph, he has given the distance of the hut of other deceased. In paragraph 21, the informant stated that he loved his Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 14 son, but did not ask the miscreants to leave him as he had slipped into the paddy field, which was at a distance of one laggi north from his hut. The paddy crop had come up to the chest height. He went into the paddy field after bending down but saw the occurrence standing and did not raise alarm, remained in the paddy field for about 5 minutes by which time miscreants had not run away. The miscreants, however, could not see him. He also stated in the same paragraph that his son was last person to be caught by the miscreants. In the same paragraph, informant further stated that the miscreants divided themselves in groups and separate group went to each of the 10 huts situate in the Bahiyar and caught the victims and then brought, collected the victims near the hut of Chhotelal Singh and then tied their hands with nylon, plastic rope which is used to anchor a boat. In the same paragraph, he also stated that 15 miscreants had come to his hut.
6. P.W.1 Jaichand Singh is named as eye-witness in the First Information Report. He has stated in his evidence that he cultivates land in Amausi Bahiyar. Occurrence had taken place 10 months earlier around 11 P.M. when he was present in his hut at Amausi Bahiyar. Two deceased, Ranjit and Sanjit are his sons were also there. Night of occurrence was moonlit. He saw 40-50 miscreants armed with rifle, gun coming and then came down from his hut. The miscreants came to his hut, caught hold of his sons and took them. Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 15 They also took others from the huts located nearby to the hut of Chhotelal Singh, tied their legs, hands and then shot them dead and ran away. The miscreants shot dead 16 persons named by the witness in his examination-in-chief. Amongst the miscreants, P.W.1 identified appellant no.14 Borhan Sada, appellant no.12 Ram Sada, appellant no.6 Sajjan Sada, appellant no. 11 Dilip Sada, appellant no.3 Laddulal Sada, absconder Barun Sada, appellant no.8 Sushil Sada, appellant no.13 Billo Sada, absconder Lalit Sada, appellant no.10 Harilal Sada, appellant no.9 Sanatan Sada, absconder Udan Sada, appellant no. 1 Opi Mahto, appellant no. 4 Umesh Mahto, appellant no. 7 Tarni Sada, absconder Punit Sada, absconder Mithilesh Sada, Absconder Dilip Sada, who were known to him from before. They are present in dock and P.W. 1 identified them. It would thus appear from his evidence that out of 37 miscreants named in the fardbeyan, P.W.1 has named only 18 miscreants in court though fardbeyan was drawn after P.W.1 and other eye-witnesses consulted each other about the identity of the accused persons while coming to village Icharua from the place of occurrence. In paragraph 4 of his cross-examination, P.W.1 has stated that Amausi village is a village of more than 100 house holds. The distance between Icharua and Amausi is 4 Kms. In the same paragraph, he further stated that he himself disclosed the name of accused persons, which was not disclosed to him by Paro Singh. He Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 16 also stated in the same paragraph that one lagga north-west of the huts, there is Kash forest and the distance between his hut and Kamala river through Kash forest is ½ Km. He also stated in the same paragraph that he does not remember that police ever recorded his further statement but denied the suggestion that he never made police statement. In paragraph 5, P.W.1 stated that in his police statement he had stated that he had seen 40-50 miscreants armed with rifle, gun coming towards his hut and then came down from the hut, the miscreants caught his sons Ranjit and Sanjit and took them to the hut of Chhotelal Singh and tied their legs, hands and then shot all the 16 victims dead, the miscreants thereafter ran away. In paragraph 6, P.W.1 claimed that he knew the miscreants from before as they pass through his village. In paragraph 15, P.W.1 stated that the dead bodies were carried on boat. The distance between the place of occurrence and river is 1 Km. In paragraph 26, he has denied the suggestion that he heard the gun shot when he reached the bank of river where he came running after concealing himself. He also denied the suggestion that at the time of occurrence he was not present at the place of occurrence.
7. P.W 2 Kamli Singh is also named as witness in the First Information Report. He has stated in his evidence that occurrence took place 10 ½ months earlier in the night at about 11 Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 17 P.M. when he was sleeping in his hut at Amausi. The hut has been raised for keeping the cattle. He has also stated that at the time of occurrence his son, Dunilal Singh was also present at his hut which is surrounded by other huts of Jaichand Singh P.W.1, Chhotelal Singh P.W.12, Paro Singh P.W.13, Chhotelal Kushwaha not examined and others. At the time of occurrence, his son Dunilal Singh having taken dinner was sleeping, P.W.2 was, however, about to sleep, meanwhile saw 40-50 miscreants armed with rifle, gun coming. Having seen the miscreants, witness came down in the pit to conceal himself. The miscreants caught hold Dunilal Singh tied, dragged him to the hut of Chhotelal Singh. From the hut of Jaichand, miscreants apprehended Ranjit, Sanjit and Ram Sharan. Miscreants thereafter came to the hut of Guddu, Ram Singh, Diwana, Rajan, Hukum and caught them one after the other. The miscreants thereafter came to the hut of Paro Singh and caught Sunil and then came to the hut of Rohit and caught him. The miscreants brought all the apprehended persons to the hut of Chhotelal Singh, tied their hand from behind and then shot them dead. The miscreants then came to the hut of Milan and shot him dead. Having shot dead the victim, assailants went away. Amongst the miscreants, P.W.2 identified appellant no.14 Borhan Sada, appellant no.12 Ram Sada, appellant no. 6 Sajjan Sada, appellant no. 5 Sikandar Sada, appellant no. 1 Opi Mahto, appellant no. 4 Umesh Mahto, Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 18 appellant no.3 Laddulal Sada, appellant no. 11 Dilip Sada, Diyo Sada, appellant no. 2 Ghuran Sada, absconders Punit Sada, Lalit Sada, Sulo Ram, Devendra Chaudhary, appellant no.13 Billo Sada, appellant no.7 Tarni Sada. It would thus appear from the evidence of P.W.2 that out of 37 miscreants named in the fardbeyan, he has only named 17 miscreants in court though he is signatory to the fardbeyan. The witness after concealing himself came to the bank of river Kamala where he met Jaichand Singh P.W.1, Paro Singh P.W.13, Amrudh Singh P.W.3, Prayag Singh not examined and talked to each other and learnt that all have been killed. P.W.2 and others thereafter came to Icharua village, woke up the villagers, came to the hut of Chhotelal Singh in Amausi Bahiyar and saw the dead bodies. Co-villager Naresh Singh, who is Member of the Zila Parishad, asked the witness and others to carry the dead bodies to the bank of the river and then through boat to Icharua embankment and from embankment to Icharua Chowk where the dead bodies were kept on cot. After learning about the occurrence, police arrived and recorded the statement of Paro Singh P.W.13 over which the informant put his thumb impression the witness also put his signature on the fardbeyan of Paro Singh. The witness identified his signature on the fardbeyan, which has already been marked as Ext.1. The witness further stated that miscreants who have been named by him are present in court and Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 19 he identified them. In paragraph 2, the witness stated that at the place of occurrence, 25-30 empty cartridges were found and paper concerning the seizure was drawn by the police over which the witness also put his signature and proved his signature over the seizure list as Ext.2. In the same paragraph, he has stated the names of 16 persons who were done to death. In paragraph 14 of his cross- examination, P.W.2 has admitted that he has weak eye-sight. He had gone to his hut in Amausi Bahiyar during the day at about 11 A.M. and for reaching there he left his village residence in between 9-9.30 A.M. For coming to Amausi Bahiyar from village residence, P.W.2 has to cross river once, though there are two rivers. In paragraph 26, P.W.2 stated that his hut is one lagga west of the hut of Jaichand Singh P.W.1 and from the hut of Jaichand his hut is one lagga east. The hut of Prakash is 5 rassi south of his hut. Hut of Dhana is 2 lagga west of the hut of Chhotelal Singh P.W.12. In the same paragraph, he has denied the suggestion that he does not have a hut in Amausi Bahiyar. In paragraph 18 at page 229 of the paper book, P.W.2 has asserted that in Amausi Bahiyar, there is paddy field by the side of the huts at a distance of 2-3 lagga in which there was paddy crop of the height of 4-5 cubit. In paragraph 19 at page 229 of the paper book, P.W.2 stated that they began to lift the dead bodies between 2-2.30 A.M. and that he and others, namely, Jaichand Singh P.W.1, Paro Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 20 Singh P.W.13, Amrudh Singh P.W.3, Chhotelal Singh P.W.12 had earlier reached the village between 11-11.30 P.M. after discussing the incident on the boat, being asked by them and replied by him.
8. P.W. 3 Amrudh Singh is also named in the First Information Report as eye-witness. He has stated in his evidence that 10-10 ½ months earlier at about 11 P.M., he was awake in his hut at Amausi Bahiyar. After he took tobacco, heard the sound of gun firing near the hut of Chhotelal Singh, awoke Dinesh Singh, both went to the hut of Chhotelal Singh through paddy field and saw 40-50 miscreants. Amongst the miscreants he could identify 5-7 miscreants, namely, appellant no. 14 Borhan Sada, appellant no. 12 Ram Sada, appellant no. 6 Sajjan Sada, appellant no. 11 Dilip Sada, appellant no. 5 Sikandar Sada, appellant no. 13 Billo Sada, appellant no.3 Laddulal Sada. The miscreants identified by the witness, had asked the deceased Sanjit son of P.W.1 three days earlier to leave the place along with his she-buffalo and other articles. The witness also stated that the miscreants resorted to indiscriminate firing, 10 minutes thereafter confirmed the death of 15 men, namely, Dunilal, Rajan, Guddu, Hasim, Diwana, Ram Singh, Rohit, Guddu, Sanjit, Ranjit, Sunil, Chandan, Ram Sada, Mithilesh. The witness along with Dinesh Singh after firing of shots came to Icharua. The witness also states that near the bank of river Kamala, he met Kamli Singh P.W.2, Paro Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 21 Singh P.W.13 and Chhotelal Singh P.W.12 and came to Icharua embankment and then to Icharua village, raised alarm, collected 3-4 hundred men in Icharua village and returned to the bank of Kamala river and then to the hut of Chhotelal Singh, saw the dead bodies tied with thick rope. The hands of the dead victims were untied and victims brought to the bank of Kamala river and then to Icharua on cot. Police arrived at Icharua embankment at 6 A.M. recorded his statement. The witness also stated that the miscreants whom he identified are present in dock. In paragraph 2 of his cross- examination, P.W. 3 has stated that during the night of occurrence he remained at Amausi Bahiyar for 1 - ½ hour. In paragraph 4 of his cross-examination, P.W.3 further stated that his hut is at a distance of 10 laggi north from the hut of Chhotelal and denied the suggestion to the contrary given to him. In the same paragraph, he further stated that his hut is within a radius of 500 yards from the hut of Chhotelal Singh. In paragraph 5, P.W.3 has given the topography of his hut and agricultural land as also of others. In paragraph 6, P.W. 3 stated that the paddy field was dry but the paddy crop has come upto the chest height. In the same paragraph, he also stated that there was paddy field contiguous north, south, east and west of the hut of Chhotelal Singh. In paragraph 7, P.W.3 stated that only the hands of the deceased were tightly tied with rope. In paragraph 8, P.W.3 stated that Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 22 distance between the hut of Chhotelal Singh and the bank of Kamala river where boat is anchored, is ½ Km. Distance between the hut of Chhotelal and Icharua village is 3 Kms. In paragraph 9, P.W.3 denied the suggestion that he had not gone to the hut of Chhotelal Singh. In the same paragraph, he further denied the suggestion that the distance between Icharua and hut of Chhotelal Singh in Amausi Bahiyar is 8 Kms. In paragraph 10, P.W.3 stated that he again came to Amausi from Icharua between 2 -2.30 P.M. along with many others, including Kamli Singh, P.W.2, Chhotelal Singh P.W.12, Jaichand Singh P.W.1. In the same paragraph, he further stated that he came to Amausi Bahiyar between 3-3.30 P.M. and returned therefrom between 4-5 P.M. In paragraph 11, P.W.3 further stated that he is not aware about the number of cattle of his village which is kept in Amausi Bahiyar. He, however, stated that he has seen the hut of those who were killed in Amausi Bahiyar as they were living in their hut for tending she- buffalos, cows and for conducting agricultural operations. P.W.3 further clarified in the same paragraph that the cattle used to be tied with the peg, there was cemented fodder pot. Cow dung, wheat straw was kept inside the hut. Those living in the hut were also cooking their meal on oven (chulha). In paragraph 12, P.W.3 stated that after ½ an hour of his return to Amausi Bahiyar, police also reached and recovered empty cartridge and blood. Police continued the search for Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 23 more empty cartridge but P.W.3 returned. In paragraph 15, P.W.3 denied the suggestion that he has deposed as a witness in the case at the request of his uncle, Jaichand Singh P.W.1. In the same paragraph he has also denied the suggestion that he does not have a hut in Amausi Bahiyar.
9. P.W.12 Chhotelal Singh is also named as a witness in the First Information Report as victims were taken by the miscreants to his hut and shot dead. He has stated in his evidence that occurrence has taken place about one year earlier on the first day of the month at 11 P.M. when he was present in his hut at Amausi Bahiyar along with his son Sunil and Raja son of his brother-in-law, the two having taken dinner were sleeping. P.W.,12 having taken dinner was sitting in his hut, saw miscreants armed with rifle, gun coming after apprehending co-villagers Dunilal, Gautam, Ram Singh, Raja, Hukum Diwana, Ramsharan, Ranjit, Sanjit, Rohit, Guddu, Chandan, Fuchilal. The miscreants brought the apprehended co-villagers of the witness to his hut, overturned, tied their hands from behind. Having tied the hands of the apprehended persons, the miscreants apprehended son of the witness Sunil and Raja son of his brother-in-law and also tied their hands and then asked as to why they have not complied with the instructions given four days earlier to vacate the place. P.W.12, however, concealed himself in the paddy field and then saw appellant Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 24 no.14 Borhan Sada, appellant no. 5 Sikandar Sada, appellant no.12 Ram Sada, appellant no.6 Sajjan Sada, appellant no.11 Dilip Sada, appellant no.7 Tarni Sada, Manoj Sada, Bishundeo Sada, Devendra Chaudhary, Bino Sada ( 4 not sent up for trial), appellant no.1 Opi Mahto, appellant no. 4 Umesh Mahto, appellant no.2 Ghuran Sada, appellant no. 3 Laddulal Sada, Barun Sada (absconder), appellant no.8 Sushil Sada, appellant no.13 Billo Sada, Lalit Sada (absconder), Punit Sada (absconder), appellant no.10 Harilal Sada, appellant no.9 Sanatan Sada, Nagina Sada (acquitted) all armed with rifle, gun resorting to firing on the apprehended victims causing their death. P.W.12 having seen the occurrence i.e. shoot out, came to the bank of river Kamala concealing himself and therefrom to his village raised alarm that 15-16 men have been killed. The villagers assembled, 100- 150 villagers came to the hut along with P.W.12 and found the 15 deceased at one place, their hands being tied and another deceased in the hut of Chhotelal Mahto. The deceased were untied and brought to Icharua Chowk where the police arrived at 7.15 A.M. and prepared their inquest report as also recorded the statement of the witnesses. Statement of P.W.12 was, however, not recorded in the morning. Post-mortem of the dead bodies was conducted by three doctors. P.W.12 further stated that he did identify the assailants named by him in court and they are present in court, except, Manoj Sada, Devendra Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 25 Chaudhary, Bishundeo Sada, Bino Sada. In paragraph 4 of his cross- examination, P.W.12 stated that the cattle are kept out side the hut, but pumping set is kept inside. Tractor is also kept out side the hut. In the same paragraph, he has given description of his cattle i.e. six cows, three she and two he calves. For feeding the cattle, there is cemented pot, rope and peg. On the eastern side of the hut, there is cemented pot and peg. In paragraph 5, P.W.12 asserted that he did state before the police that his son Sunil and Raja son of his brother- in-law having taken their dinner were sleeping, but he having taken his dinner was sitting. In the same paragraph, P.W.12 further stated that in the night of the occurrence, food was not cooked at the hut as on that day, he had brought the meal from his village home. In paragraph 7, P.W.12 has given names of the other hut owners located in the vicinity of his hut. In paragraph 8, P.W.12 has stated that the huts were not surrounded by paddy crop from the four sides. In the same paragraph, he has further stated that the paddy crop is towards north of the huts. East of his hut, there are other huts, but in the far east, there is paddy crop. In the same paragraph, he has further stated that contiguous south of his hut, there was no crop. In paragraph 9, P.W.12 stated that paddy crop is at a distance of 5-10 lagga towards west of his hut. In the same paragraph, he also stated that contiguous west of his hut, there is hut of Rohit and contiguous south of his hut, Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 26 there is hut of M/s Jaichand Singh P.W.1, Gautam, Dunilal, Ram Singh, Rajan, Hukum, Ram Sharan, Fuchilal, Guddu, Paro Singh, Prakash. In paragraph 10, P.W.12 stated that most of the huts are situate either in the east or west. The paddy crop is towards south of the huts. In the same paragraph, P.W.12 stated that at the time of occurrence, paddy crop was upto the height of his waist but had not matured and he having seen the miscreants concealed himself in the paddy crop. In the same paragraph, he further stated that when he saw the miscreants, he was at a distance of one cubit from the two children sleeping in the hut. He also saw from his hut, the miscreants collecting the victims from the other huts which took about one minute. In paragraph 11, P.W.12 stated that leaving his son, he ran away to save his life. After the occurrence, P.W.12 came running to the bank of river Kamala and there from to his village home and met Naresh Singh and other villagers, but did not disclose anything about the occurrence to Naresh Babu. In paragraph 12, P.W.12 stated that when he was giving information about the occurrence to the villagers, Rajiv Singh was present there. In the same paragraph, P.W.12 further stated that when police arrived he did not disclose about the occurrence to the police. In paragraph 13, P.W.12 denied the suggestion that having seen the miscreants at about 11 P.M. lighting gas in paddy field situate west of his hut, he became afraid. In the Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 27 same paragraph, he further denied the suggestion that he has given false evidence. In paragraph 16, P.W.12 stated that he is conducting agricultural operation in Amausi Mauza from the time of his father, grandfather. He also stated in the same paragraph that his grandfather, father used to cultivate land after taking the same on settlement and he is visiting Amausi village from his childhood. In the same paragraph, he further stated that Sadas of village Amausi were conducting agricultural operation as also were working as labourers. In the same paragraph, P.W.12 has admitted that appellant no.6 Sajjan Sada earlier served as his tractor driver. In paragraph 17, P.W.12 has stated that he is known to Ramotar Yadav, Jagdish Singh, Baiju Singh as they also have their huts in Amausi Bahiyar at a distance of 200-400 lagga. In the same paragraph, he denied the suggestion that he does not have agricultural land in Amausi Bahiyar and that he does not reside there and is not aware that Ramotar Yadav, Jagdish Singh and Baiju Singh does not have hut, land in Amausi Bahiyar. In paragraph 22, P.W.12 again asserted that around his hut, there are nine other huts. In paragraph 32, P.W.12 stated that the miscreants first came to the hut of Jaichand Singh P.W.1 apprehended, caught persons there and then came to the hut of Kamli Singh P.W.2 and thereafter to the huts of Gautam, Ram Singh and Paro Singh P.W.13 and then to the huts of Rohit, Fuchilal and finally to his hut. In paragraph 33, P.W.12 stated Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 28 that he crawled into the paddy field and saw the occurrence sitting from the paddy field. They brought the apprehended persons near his hut and then shot them dead. In paragraph 34, P.W.12 stated that he is not Chhotelal Mahto and further stated that his hut is at a distance of 10 lagga from the hut of Chhotelal Bhagat. In paragraph 36, P.W.12 stated that 30-35 miscreants fired shot on the victim from three sides near his hut. In the same paragraph, he also clarified that the shots were not fired from one direction. He further stated in the same paragraph that the shots were fired after touching the body of the victim with the barrel of the firearm.
10. P.Ws. 4 to 8 are the father of the deceased Gautam Singh @ Guddu Singh, Ram Singh, Rajan Kumar, Fuchilal and Hukum Kumar respectively. At the time of occurrence, these witnesses were at their village home and learnt about the occurrence from P.Ws. 1 to 3, 12, 13 Jaichand Singh, Kamli Singh, Amrudh Singh, Chhotelal Singh and Paro Singh, who also disclosed the name of assailants to these witnesses.
11. P.W. 9 Dr. Jagdeo Mandal served as Deputy Superintendent, Sadar Hospital, Khagaria on 2.10.2009 and conducted post-mortem examination in the medical camp Icharua, on the dead bodies of Ram Sharan Singh son of Jakan Singh, Sunil Kumar son of Chhotelal Singh, Raja Kumar @ Vir Kumar son of Chai Singh, Sanjit Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 29 Singh son of Jaichand Singh, Hukum Kumar son of Mahesh Singh, Gautam Kumar @ Guddu Singh son of Yogi Singh, Diwana Kumar son of late Ram Bharosa Singh, Khusilal Singh son of Madan Singh on 2.10.2009 at 3.50, 3, 2.50, 1.40, 3.20, 4.15, 4, 3.40 P.M. and submitted port-mortem reports, Exts. 3, 3/I to 3/VII and also proved the same. It appears from perusal of the post-mortem reports of the aforesaid 8 deceased that they died on account of ante-mortem gun shot injury.
12. P.W.10 Dr. Yogendra Singh Prayasi served as Medical Officer, Sadar Hospital, Khagaria on 2.10.2009 and on that day conducted post-mortem examination at Medical Camp, Icharua of deceased Mithilesh Singh son of Chhotelal Singh, Guddu Singh son of Feko Singh, Rajan Kumar son of Bhogi Singh, Dunilal Singh son of Kamli Singh, Chandan Singh son of Paro Singh, Ranjit Singh son of Jaichand Singh, Ram Singh son of Fatto Singh, Rohit Kumar son of Saudagar Singh on 2.10.2009 at 2.20, 4.15, 4.30, 4.50, 2.35, 2.05, 12.35, 2.50 P.M. and submitted post-mortem reports Exts. 3/VIII to 3/ XV respectively and also proved the same. From perusal of the post- mortem reports, Exts. 3/viii to 3/xv, it appears that they died on account of ante-mortem gun shot injury.
13. P.W.11 Praduman Singh is the co-villager of the informant. He has stated in his evidence that occurrence took place Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 30 one year earlier in the night between 11-11.30 P.M. when he was at his village and sleeping, alarm was raised in the village, he woke up and came out of his house, saw villagers collected and learnt that murder has taken place in Amausi Bahiyar. P.W.11 along with 100- 200 villagers went to Amausi Bahiyar and saw 15 dead bodies in the hut of Chhotelal Singh whose hands were tied from behind and they were shot at, one dead body was found near the hut of Chhotelal Mahto. All the dead bodies were brought to Icharua and thereafter information was given to the administration. P.W.11 is not aware about the reason behind the occurrence. In paragraph 2, P.W.11 stated that he recorded his statement before the Investigating Officer and stated that he did inform the Investigating Officer that hands of all the victims were tied from behind.
14. P.W.14 Pankaj Singh is also a co-villager of the informant and is engaged in agriculture, milk business. He has stated in his evidence that occurrence took place 13 months earlier during night when he was in the village. Some persons came from Amausi Bahiyar to Icharua village and informed the villagers that 16 persons, namely, Ranjit Singh, Sanjit Singh, Dunilal Singh, Gautam Singh, Ram Singh, Mithilesh Singh, Ram Sharan Singh, Diwana Kumar, Rajan Kumar, Hukum Kumar, Chandan Kumar, Raja Kumar, Fuchilal Kumar, Sunil Kumar have been killed whereafter he along with 150 Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 31 villagers went to Amausi Bahiyar and brought the dead bodies to Icharua Chowk. P.W.14 has, however, disclosed the reason behind the occurrence and stated that he learnt three days prior to the occurrence in Amausi village where he had gone to supply milk that Ram Sada, Sajjan Sada, Opi Mahto, Umesh Mahto, Laddu Sada, Varun Sada, Dilip Sada, Bhogi Sada, Doman Sada, Sanatan Sada, Ram Bilash Singh and one another Dilip Sada organized a meeting and were stating that unless the villagers of Icharua are killed, they are not going to get possession of the land. Amongst those who participated in the meeting, namely, Ram Sada, Sajjan Sada, Dilip Sada, Doman Sada, Laddulal, Bhogi Sada, Sanatan Sada, Umesh Mahto, Opi Mahto, Sikandar Sada, Dilip Sada and Varun Sada are present in dock.
15. P.W.15 Pappu Kumar is also a co-villager of the informant and is engaged in milk business. He has stated that Ram Sharan Singh, Sunil Kumar, Raja Kumar, Sanjit Singh, Hukum Kumar, Gautam Kumar, Diwana Kumar, Fuchilal Singh, Mithilesh Singh, Guddu Singh, Rajan Kumar, Dunilal Singh, Ranjit Kumar, Ram Singh and Rohit Kumar were killed on 2.10.2009. He is also signatory to their inquest report, which was prepared by the Sub- Inspector in his presence through carbon process over which he has also put his signature and he proved his signature over the inquest Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 32 reports of the aforesaid deceased as Exts. 4, 4/I to 4/XIV. In paragraph 17, P.W.15 has stated that he along with 300 persons reached Amausi Bahiyar through boat at 1.30 A.M. in the night. Family members of the deceased also went there. In paragraph 18, P.W.15 has stated that before he reached Icharua Chowk, Officer-in-charge had reached there. S.P., Dy.S.P. came later. In paragraph 19, he has denied the suggestion that inquest report has not been prepared in his presence, but has been prepared afterwards.
16. P.W.16 Rajesh Singh is also resident of village Icharua and is witness of the inquest of the 16 deceased, namely, Ram Sharan Singh, Sunil Kumar, Raja Kumar, Sanjit Singh, Hukum Kumar, Gautam Kumar @ Guddu, Diwana Kumar, Fuchilal Singh, Mithilesh Singh, Guddu Singh, Rajan Kumar, Dunilal Singh, Ranjit Kumar, Rama Singh, Rohit Kumar and Chandan Singh, which was prepared by the Officer-in-charge by carbon process. He is also signatory to the inquest report which was prepared by the Sub- Inspector in his presence in two copies by carbon process over which he also put his signature and he proved his signature over the inquest reports of the aforesaid deceased 4-I to 4-XVI. In paragraph 2 of the examination-in-chief P.W.16 has stated that Chandra Shekhar Singh put his signature over inquest report before him and his signature has been marked as Ext. 4/XV. In paragraph 8, P.W.16 stated that inquest Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 33 report was prepared in the Verandah of the community hall situate at Icharua Chowk, post-mortem was conducted inside the hall. First inquest report was prepared and then post-mortem was conducted one by one. In paragraph 9, P.W.16 has stated that 15-20 minutes after the arrival of the dead bodies at Icharua Chowk, Officer-in-charge came there and began to make enquiry. He also recorded the statement of the witness, but he did not put his signature over the same. The witness denied the suggestion that he was not present at the time of preparation of the inquest report, post-mortem of the dead bodies and the inquest report is forged document.
17. P.W.17 Mukesh Kumar is the Investigating Officer of the case. He has stated in his evidence that on 2.10.2009, he was posted as Officer-in-charge of Morkahi P.S. and had taken up the investigation of Morhaki P.S. Case No. 55/09 after recording fardbeyan of the informant, which is in his own handwriting and signature and was identified by the witness. Informant Paro Singh also put his thumb impression over the same. The witness proved the fardbeyan as Ext.1/I. The fardbeyan was forwarded to Morkahi P.S. for registration of the case. The forwarding is also in the handwriting and signature of the witness which was identified by him. In anticipation of the registration of the case, witness took up its investigation. The forwarding to register the case made by the scribe Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 34 of the fardbeyan is marked as Ext. 1/II whereafter Morkahi P.S. Case No. 55/09 under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act was registered. Endorsement registering the case is in the handwriting and signature of A.S.I. Suresh Prasad Singh which the witness identified and on his identification marked as Ext. 1/III on the basis of which formal First Information Report was drawn by A.S.I. Suresh Prasad Singh in his handwriting and signature which was identified by the witness and marked as Ext.5. Having taken up the investigation, Investigating Officer got the 16 inquest report prepared by S.I. Ramanand Mandal which is in his handwriting and signature and identified by the witness marked as Exts. 6 - 6/XV. After preparation of the inquest report, further statement of the informant P.W.13 and statement of Kamli Singh P.W.2 was recorded. Meanwhile medical team from Khagaria reached Icharua for conducting post-mortem of the dead bodies at Icharua and post- mortem of the 16 dead bodies was conducted at Icharua. After post- mortem of the dead bodies was over, Investigating Officer proceeded from Icharua to the place of occurrence and having reached the place of occurrence inspected the place of occurrence. The place of occurrence of the case is the hut of Chhotelal Singh P.W.12 situate in Amausi Bahiyar facing north where 16 men were shot dead. There is vacant land in the east of the hut over which copious blood was found Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 35 together with empty of cartridge, which was seized by the Investigating Officer P.W.17 in presence of two independent witnesses after preparing seizure list which is in his own handwriting and signature over which informant also put his thumb impression. The witness proved the seizure list marked as Ext. 2/1. The hut of Chhotelal Mahto is 100 yards east from the hut of Chhotelal Singh where also a dead body was found. Amausi village is situate 2-2 ½ Kms. away from the place of occurrence. There is a jalebi tree situate west of the hut of Chhotelal Mahto. Towards north, east of the hut of Chhotelal Singh, his raiyati land is situate. Hut of Dhana Singh is situate west of the hut of Chhotelal Mahto. Hut of Paro Singh is situate in the south of the hut of Chhotelal Mahto. The place of occurrence is lonely place situate 8 Kms. east of Icharua village in reverine area. For coming to place of occurrence from Icharua village, boat is to be boarded for sailing through Kamala river one has also to walk a distance of 1 Km. east for reaching the hut of Chhotelal Singh where occurrence is said to have taken place. In paragraph 4, Investigating Officer stated that after inspecting the place of occurrence, he raided the house of accused persons in Amausi village and arrested seven accused persons including appellant no. 1 Opi Mahto and appellant no. 13 Billo Sada from their house on 2.10.2009 itself. In paragraph 5 of his evidence, Investigating Officer has further Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 36 stated that he again visited Icharua village on 3.10.2009 and recorded the statement of Jaichand Singh P.W.1 and then proceeded to make further minute inspection of the place of occurrence. Investigating Officer during further inspection recovered 5 pieces of empty cartridge, 3 pieces of WAD and 1 piece of LAD. He also recovered blood stained grass, soil, clothes, one square printed blanket, 7 blood stained towel, blood stained cotton sheet, blood stained white square printed lungi (rectangular cloth worn around the waist by men falling upto the ankle), one blood stained yellow, white square printed shirt, one another shirt of white colour also blood stained, one plastic thick rope of white- yellow colour, piece of cloth. The articles found at the place of occurrence on 3.10.2009 were also seized vide seizure list prepared by P.W.17 under his signature through carbon process and marked as Ext.7 with objection as copy thereof was not served on the accused persons under Section 207 of the Cr.P.C. In paragraph 6 of his evidence, Investigating Officer has stated that on 6.10.2009 he recorded the police statement of Chhotelal Singh P.W.12, Amrudh Singh P.W.3, Yogi Singh P.W.4, Mahesh Singh P.W.8, Bhogi Singh P.W.6, Pankaj Singh P.W.14, Praduman Singh P.W.11, Dinesh Singh, Prakash Singh, Kako Singh, Amerika Devi, Shobha Devi, Devki Devi, Maro Singh, Gayatri Devi, Chhotelal Kushwaha, Saudagar Singh, Badan Singh, Manisha Devi, Narersh Singh, Raj Kumar Singh, Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 37 Hare Ram Singh, Bhushan Singh, Ashok Singh, Umesh Singh, Shambhu Singh (not examined). He collected the post-mortem report and examined other witnesses, namely, Santosh Charan Jha, Circle Inspector, Man Mohan Tiwari on 20.10.2009 and thereafter sent the blood stained soil, empty cartridges, WAD, LAD, blood stained grass, cloth, country made gun, live cartridge 2 in number for forensic examination and in the light of the evidence collected submitted chargesheet. He produced in court the articles seized and sent to the Forensic Science Laboratory for examination after the same was received in sealed packet from the laboratory and stated in evidence at page 309 of the paper book that on 2.10.2009 he recovered from the place of occurrence in Amausi Bahiyar hut of Chhotelal Mahto 11 pieces of empty cartridges of .315 bore, 3 pieces of 12 bore cartridges and one live cartridge of .315 bore, vide seizure list Ext.2/1 and the articles are marked as material Ext. 1 to XV. From the same place of occurrence, he also recovered one letter in sealed envelope vide seizure list Ext.2/1 and the letter is marked as material Exts. XVI. On 3.10.2009. Investigating Officer recovered 5 empty cartridges of .315 bore, 3 pieces of WAD and 1 piece of LAD from the hut of Chhotelal Singh vide Ext.7 and produced the same in court, which was marked as material Ext. I - I/IV, 2-2/II and 3. In paragraph 10, Investigating Officer has stated that on 3.10.2009, he also recovered from the hut of Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 38 Chhotelal Singh plastic rope in 3 pieces and seized the same and produced in court, marked material Ext.4. On the same day, he had seized 7 blood stained towel from the same place which is marked as material Ext.5. The blanket seized on the same day was marked as material Ext.6, a blood stained green square printed lungi marked material Ext.7, brown cotton sheet material Ext.8, blood stained white square printed lungi material Ext.9, square printed yellow shirt material Ext.10, one shirt like cloth having black border material Ext.11, one blood stained white piece of cloth material Ext.12. During cross-examination vide paragraph 11 of his evidence, Investigating Officer has admitted that in serial no. 3 of formal First Information Report, Ext.5, the date of occurrence 1.10.2009 has been written over whitener, which has not been counter signed by any officer. On 2.10.2009 at 4 A.M. information about the occurrence was received in the P.S. In the same paragraph, he has further stated that First Information Report was registered in the P.S. on 2.10.2009 at 10 A.M. Date and time of dispatch of the First Information Report from P.S. has not been indicated in the First Information Report, which was seen by the C.J.M. on 3.10.2009. In paragraph 12, Investigating Officer stated that having received information about the occurrence at 4 A.M., he made entry in the station diary and proceeded for the place of occurrence. In the same paragraph, Investigating Officer Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 39 further stated that the station diary entry made by him at 4 A.M. is not presently available with him and in the case diary he has not mentioned about the station diary entry. In the same paragraph, he further stated that he has not indicated in the case diary the date and time when he reached the place of occurrence as also the duration for which he remained at the place of occurrence. He also stated in the same paragraph that from the place of occurrence, he came to Amausi village, but the time when he reached Amausi village is also not indicated in the case diary. In paragraph 13, Investigating Officer has stated that in Amausi village he conducted raid to apprehend the accused persons, but has not indicated the time of conducting the raid. Accused persons were arrested and then Investigating Officer came to the police station at 22.00 hours (10 P.M.) on 2.10.2009 as indicated in the case diary. In paragraph 14, Investigating Officer denied the suggestion that he has deliberately not mentioned the time in the case diary. In paragraph 15, Investigating Officer stated that Morkahi P.S. is situate in Madar village. In paragraph 16, Investigating Officer stated that there is no direct road connecting Madar village with Amausi Bahiyar. In the same paragraph, he has given the description of the three roads by which one can reach Amausi village from Madar and further stated that he went to Amausi by road via Alauli, Icharua as he had no idea which of the three roads is the shortest route for Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 40 reaching Amausi. In paragraph 17, Investigating Officer stated that he has not stated in the case diary, the time which was taken by him to reach the place of occurrence. In the same paragraph, he further stated that his residence is situate in the P.S. itself. In paragraph 18, Investigating Officer stated that information about the occurrence was received by him on his mobile, but he is not in a position to provide the identity of the informer. In the same paragraph, he denied the suggestion that he did not receive the information about the occurrence at 4 A.M. as also the suggestion that he does not reside at the P.S. and that he switches off his mobile during night and stays away from the P.S. In paragraph 18 at page 313 of the paper book, Investigating Officer again denied the suggestion that he received the information about the occurrence at 3 A.M. In paragraph 19, Investigating Officer stated that he has not mentioned in the case diary about the information on which he reached Icharua Chowk on 2.10.2009 at 7.45 A.M. In paragraph 20, Investigating Officer stated that after receiving the information about the occurrence at the P.S., he passed on the information received to S.P., Khagaria, but such fact has not been stated in the case diary. In the same paragraph, he also stated that he has not indicated in the case diary about the police officers who reached Icharua prior to his arrival. In the same paragraph, he also stated that he does not remember any fact beyond Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 41 what has been stated in the case diary. In paragraph 22, Investigating Officer having seen station diary of Morkahi P.S. stated that the same contains entries from 29.7.2009 to 15.10.2009 vide serial no. B- 0790101 to 0790200. Serial no. 16 dated 2.10.2009 was made at 3 hours indicating therein that telephonic information has been received which is marked as Ext.A. In the same paragraph, Investigating Officer further stated that he is unable to answer whether entry nos. 17 and 18 of the station diary are in the same handwriting by which entry No. 16 has been made. Entry No.18 has been made at 8 A.M. on 2.10.2009. At the place of signature beneath entry no. 18, there is whitener over which Suresh Prasad (Kumar) ASI has put his signature. In the same paragraph, Investigating Officer denied the suggestion that after obliterating the signature of Mukesh Kumar, Suresh Kumar has put his signature. Signature of Suresh Prasad (Kumar) beneath entry No. 18 dated 2.10.2009 is marked as Ext.B. In paragraph 25, Investigating Officer has denied the suggestion that distance between Madar and Amausi is 4 Kms. via Sonemankhi, Kotha. In paragraph 26 of his evidence, Investigating Officer has stated that Jaichand Singh P.W.1 did not state before him in his police statement that he saw 40-50 miscreants armed with rifle, gun coming to his hut and forcibly took his two sons, Ranjit and Sanjit. In paragraph 27, Investigating Officer further stated that P.W.1 had not Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 42 stated before him that miscreants collected other victims from the adjoining huts and then took them to the hut of Chhotelal Singh. In the same paragraph, Investigating Officer admitted that P.W.1 had stated before him that having seen large number of miscreants, he silently concealed himself, began to run towards bank of river and having reached the bank of river heard 50 or more rounds having been fired and then became scared and saw Paro Singh running towards the bank of river. In paragraph 29 of his evidence, Investigating Officer has stated that he prepared the sketch map of the place of occurrence, but therefrom it does not appear that the hut of Amrudh Singh P.W.3, Yogi Singh P.W.4, Mato Singh not examined, Bhogi Singh P.W.6, Badan Prasad Singh P.W.7 is not within a radius of 500 yards from the place of occurrence. In paragraphs 30, 32 and 33, Investigating Officer stated that P.Ws 4,6,7 respectively did not state before him that Jaichand Singh P.W.1, Chhotelal Singh P.W.12, Paro Singh P.W.13, Kamli Singh P.W.2, Amrudh Singh P.W.3 came to Icharua village during night between 12-12.30 A.M. and informed them about the name of the assailants as also the deceased. In paragraph 31, Investigating Officer stated that Bhato Singh P.W.5 did not state before him that other witnesses had revealed the name of the assailants. In paragraph 34, Investigating Officer stated that P.W.11 Praduman Singh did not state before him that he had seen the dead Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 43 bodies of the 15 deceased at the hut of Chhotelal Singh whose hands were tied from behind. In paragraphs 35, 51, Investigating Officer stated that Chhotelal Singh P.W.12 did not state before him that after taking meal, his son and Raja son of his brother-in-law were sleeping rather he has stated that having taken meal the three had gone to sleep. P.W.12 had also not stated before him that those killed, their hands were tied from behind. Investigating Officer further stated that P.W.12 had also not stated that having apprehended Raja, the assailants asked him that four days earlier they had instructed him to vacate the place but why he has not vacated the place. In paragraph 38, Investigating Officer having seen the self statement of Alauli P.S. Case No. 23/10 dated 6.3.2010 stated that he is unable to state under whose handwriting the self statement has been written, but beneath the self statement the signature is of officier-in-charge Ramanand Mandal which the Investigating Officer identified and marked Ext.C at the request of the defence. In the subsequent paragraph 38 at page 317 of the paper book, Investigating Officer admitted that in examination-in-chief, he has stated that he does recognize the handwriting and signature of A.S.I. Ramanand Mandal. In paragraph 39, Investigating Officer, however, stated that the signature put over the inquest report, Ext.6 to 6/XV does not tally with the signature, Ext.C, but at the same time in the same paragraph denied the Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 44 suggestion that Ext.6 to 6/XV is not in the handwriting and signature of Ramanand Mandal. In paragraph 42, Investigating Officer stated that Paro Singh P.W.13 did not state before him that appellant no. 14 Borhan Sada asked the victims that they were instructed to vacate the huts but why have they not complied the instruction. Investigating Officer also stated in the same paragraph that P.W.13 has not stated before him that assailants after firing shot flashed torchlight to confirm who has been killed and who is alive and in the torchlight flashed by the assailants, he identified the assailants Borhan Sada, Raja Sada, Sajjan Sada, Dilip Sada, Sikandar Sada, Opi Mahto, Laddu Sada, Devendra Chaudhary, Manoj Sada, Ghuran Sada, Sanatan Sada, Dilip Sada, Barun Sada, Ram Bilash Singh, Shital Singh, Dilip Singh as assailants. In paragraph 46, Investigating Officer has stated that he began to write the case diary of the present case on 2.10.2009 at 7.45 A.M. and on that day he wrote case diary until paragraph 19 but has not indicated the time on which he closed the case diary for that day. In paragraph 17 of the case diary, Investigating Officer indicated the time of his return to the P.S. as 22 hours. He also states in paragraph 46 of his evidence that he began to write the case diary of the present case in Icharua village where paragraph 1 to 7 was written until page
7. At page 14, paragraph 2 fardbeyan of the case recorded at 7.45 A.M. has been copied. In paragraph 3 of the case diary, statement Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 45 about preparation of the inquest report is mentioned, but therefrom it does not appear who prepared the inquest report. In the same paragraph, Investigating Officer stated that he has not indicated the time of recording the statement of any of the witnesses and then stated that during the period between 2-6.10.2009, statement of only two witnesses of the case was recorded. In paragraph 50, Investigating Officer stated that Kamli Singh P.W.2 did not state before him that his son was sleeping and he concealed himself in the adjoining pit, but had stated that he concealed himself in the hut itself. In the same paragraph, Investigating Officer has further stated that P.W.2 did not state before him that Ranjit, Sanjit were apprehended from the hut of Jaichand Singh P.W.1 and that Guddu, Ram Singh, Diwan, Rajan and Hukum were apprehended from their hut and taken to the hut of Chhotelal Singh. Investigating Officer further stated in the same paragraph that P.W.2 also did not state before him that the accused persons came to the hut of Paro Singh P.W.13 and apprehended Sunil from there and from the adjoining hut apprehended Rohit, Dhana and son of Saudagar and took them to the hut of Chhotelal Singh. In paragraph 52, Investigating Officer stated that Mahesh Singh P.W.8 did not state before him that Chhotelal Singh P.W.12, Jaichand Singh P.W.1, Amrudh Singh P.W.3 and Paro Singh P.W.13 had come to the village from Amausi and raised alarm that assailants of Amausi have Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 46 killed 16 men. In paragraph 53, Investigating Officer has stated that Pankaj Singh P.W.14 also did not state before him that witnesses came to Icharua village from Amausi Bahiyar and informed him about the killing. In the same paragraph, he has also stated that the witness had not stated before him that three days prior to the occurrence, a meeting was held in Amausi village in which Ram Sada, Sajjan Sada, Opi Mahto, Umesh Mahto, Laddu Sada, Varun Sada, Dilip Sada, Yogi Sada, Doman Sada, Sanatan Sada, Ram Bilash Singh and one another Dilip Sada participated. In paragraph 54, Investigating Officer stated that he has not mentioned in the case diary that he found utensil, oven, sleeping material, cattle, cemented pot, peg in any of the huts at the place of occurrence. In the same paragraph, he further stated that in the sketch-map he has shown the place of occurrence within a radius of 500 yards in which there is no mention of the hut of Kamli Singh P.W.2, Amrudh Singh P.W.3 and Dhana Singh. In the map only necessary things have been mentioned. He further stated in the same paragraph that in the case diary there is no mention of any pit or Kash forest or paddy field near any of the huts. In the same paragraph, he also stated that he did not find any sign of dragging anyone near the place of occurrence.
18. Learned counsel for the appellants questioned the impugned judgment of conviction and order of sentence on the ground Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 47 that the eye-witnesses P.Ws. 1, 2, 3, 12 and the informant P.W.13 were not present at the place of occurrence on 1.10.2009 at about 11 P.M. and the claim made by them that while they were in their huts saw 40-50 miscreants coming, separating in groups, group coming to the huts of the witnesses and others, forcibly apprehending those found sleeping in the huts, then apprehended victim(s) brought to the hut of Chhotelal Singh P.W.12 and asked as to why did they not vacate the huts shot the victim(s) dead, confirmed their death by flashing torchlight, meanwhile the witnesses slipped into the adjoining pit, paddy field and by concealing themselves in the pit, paddy field saw the occurrence, identified the assailants in the torchlight flashed by the miscreants and then came to the bank of river Kamala, boarded the boat, arrived in Icharua village during the same night between 12- 12.30 P.M., raised alarm, collected 100-150 villagers, including Yogi Singh P.W.4, Bhato Singh P.W. 5, Bhogi Singh P.W.6, Badan Prasad Singh P.W.7, Mahesh Singh P.W.8, father of the deceased Gautam Singh @ Guddu Singh, Ram Singh, Rajan Kumar, Fuchilal, Hukum Kumar, came back to the place of occurrence, untied the hand of the 16 dead bodies, brought the dead bodies to the bank of river Kamala, by boat to Icharua embankment and from embankment to Icharua Chowk where Officer-in-charge Morkahi P.S. arrived on 2.10.2009 at 7.45 A.M., recorded the fardbeyan of Paro Singh P.W.13 is not Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 48 supported by the evidence recorded in court. It is pointed out, with reference to the evidence of eye-witnesses, including informant that according to the witnesses themselves, they were present in their huts when the miscreants including assailants came to Amausi Bahiyar, visited the hut of the victims, forcibly apprehended the victims, took them to the hut of Chhotelal Singh P.W.12 and then shot the victims dead is highly improbable and unfit for being relied upon to maintain the conviction. The evidence of the informant P.W.13 that he tried to awake his son, but his son did not respond and then P.W.13 slipped into the paddy field and watched the occurrence from the paddy field and identified the miscreants in the torchlight flashed by them, similar evidence of Jaichand Singh P.W.1 that he tried to awake his two sons, but they did not respond and then he came down from the hut and went into the Kash forest to conceal himself, evidence of Kamli Singh P.W.2 that when he saw the miscreants approaching his hut went to the adjoining pit leaving his sleeping son Dunilal Singh who was dragged by the miscreants to the hut of Chhotelal Singh P.W.12, the evidence of Amrudh Singh P.W.3 that in the night of occurrence he was in his hut at Amausi Bahiyar, heard gun shot being fired near the hut of Chhotelal Singh then awoke Dinesh Singh and both walking through paddy field came near the hut of Chhotelal Singh and watched the occurrence from the paddy field, the evidence of Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 49 Chhotelal Singh P.W.12 that just before the occurrence he was sitting in his hut and his son Sunil was sleeping along with Raja son of his brother-in-law and having seen the miscreants coming towards his hut along with apprehended victims P.W.12 crawled into the paddy field and watched the occurrence from the field and identified the assailants, is required to be considered in the light of the further case of the prosecution party that the eye-witnesses having seen the occurrence managed to escape, came to the bank of river Kamala, boarded the boat for coming to Icharua to inform the villagers about the occurrence and while in the boat discussed the identity of the accused vide evidence of P.W.2, paragraph 19 page 229 of the paper book and then having reached Icharua, raised alarm, collected 100- 150 villagers, including P.Ws. 4 to 8,11,14 and informed the villagers and P.Ws. 4 to 8,11,14 the name of the assailants and then came back to the place of occurrence, collected, brought the dead bodies first to the bank of river Kamla then boarded the boat and came to Icharua embankment with the dead bodies and brought the dead bodies to Icharua Chowk and recorded the fardbeyan at 7.45 A.M., in the light of the police statement of P.Ws. 4 to 8, 11, 14 that they were not informed about the name of the assailants by any of the eye-witnesses i.e. P.Ws. 1,2,3,12 and 13 in the night of occurrence. Reference in this connection is required to be made to the evidence of Investigating Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 50 Officer P.W.17 in paragraphs 30 to 33. In those paragraphs Investigating Officer stated that P.Ws. 4 to 8 never stated before him that they learnt about the name of the assailants from the eye- witnesses during the night of occurrence. In this connection, learned counsel for the appellants also submitted, with reference to the station diary entry dated 2.10.2009 of Morkahi P.S., that information about the occurrence was received in Morkahi P.S. on 2.10.2009 at 3 hours whereafter Officer-in-charge Mukesh Kumar along with ASI P.N. Jha and P.R. Singh and others proceeded for the place of occurrence in police jeep handing over charge of the station diary to ASI Suresh Prasad Singh but from perusal of Ext.B, it appears that station diary entry No. 18 closing the station diary on 2.10.2009 at 8 hours was first made by Officer-in-charge Mukesh Kumar P.W.17 though at that time he was at Icharua Chowk conducting the investigation of the present case after recording the fardbeyan of P.W.13 at 7.45 A.M. and when such fact was brought to the notice of the prosecution party, the signature of Officer-in-charge Mukesh Kumar closing the case diary on 2.10.2009 at 8 hours was obliterated by using whitener and over the whitener Suresh Prasad Singh who was handed over the charge of the station diary at 3 hours put his signature. In this background, it is submitted that the fardbeyan as claimed by the prosecution has not been recorded at 7.45 A.M., but has been ante-timed, perhaps for the Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 51 reason that the prosecution had no clue about the assailants and it was buying time to fix the identity of the assailants. Reference in this connection has also been made to the evidence of Yogi Singh P.W.4, father of the deceased Gautam Kumar @ Guddu, paragraph 17 where P.W.4 has stated that first statement about the occurrence was made by Chhotelal Singh P.W. 12 and recorded by the Officer-in-charge and read over to him and he put his signature over the same but according to the learned counsel as Chhotelal Singh had not disclosed the name of the assailants, aforesaid statement of Chhotelal Singh was withheld and ante-timed fardbeyan was recorded on the basis of the statement of P.W.13. In this connection, evidence of P.W.5, paragraph 2 is also relevant where he has stated that he gave his statement about the occurrence to the Officer-in-charge in between 10-11 A.M., but he is not sure whether the same was recorded by the Officer-in-charge. In this connection, it is also pointed out that the fardbeyan was recorded after the informant had consulted the other eye-witnesses about the name of the assailants and the same contained the name of 37 assailants, but in court informant P.W.13 and other eye-witnesses, P.Ws. 1,2,3 and 12 have named only 16, 18, 17, 7 and 22 accused persons without indicating the reason as to why they are omitting the name of other assailants included in the fardbeyan.
19 (i). Learned counsel for the appellants assailed the Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 52 evidence of the eye-witnesses, P.Ws. 13, 1, 2, 3 and 12 and submitted that close perusal of their evidence would indicate that they have not seen the occurrence, but have become eye-witnesses only to falsely implicate the appellants and others. In this connection, it is pointed out that P.W.13 recorded his fardbeyan after he consulted P.Ws. 1 to 3 and 12 while they were in boat coming to Icharua for informing the villagers about the occurrence, yet in the fardbeyan recorded by P.W.13 duly counter-signed by P.W.2 37 accused persons have been named, but in court P.Ws. 13, 2 and other eye-witnesses P.Ws. 1, 3 and 12 have only named 16, 17, 18, 7 and 22 accused persons as the assailants respectively. In this connection it is also submitted that the eye-witnesses are also not consistent about the number of deceased as P.Ws. 13, 2, 3 and 12 have stated that the number of death in the occurrence is 13, 11, 14, 15 respectively.
(ii) Learned counsel for the appellants further assailed the evidence of the informant P.W.13 and submitted that he is not an eye-witness of the occurrence as according to P.W.13, before the assailants resorted to firing, appellant no.14 Borhan Sada asked the victims as to why they have not complied the instructions to vacate the huts and then after firing flashed torchlight to confirm the death of the victims in which informant and others identified the victims, but such fact was not stated by P.W.13 before the Investigating Officer Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 53 P.W.17, as would appear from paragraph 42 of the evidence of the Investigating Officer P.W.17. With reference to the evidence of informant P.W.13 in paragraphs 2, 5 that he made further statement at the place of occurrence and received the dead body of his son on 2.10.2009 after darkness had set in and performed his last rites and then went to his home and remained at home the next day, it is submitted that the claim of the informant that he made further statement at the place of occurrence and the claim of the Investigating Officer that he obtained thumb impression of the informant over the seizure list, Ext. 2/1 which he prepared at the place of occurrence on 2.10.2009 after he inspected the place of occurrence on that day after the post-mortem of the dead bodies were over, is incorrect in view of the evidence of informant P.W.13, paragraph 5 where he has categorically stated that having received the dead body of his son in the evening after darkness had set in on 2.10.2009, he performed the last rites of his son and then went to his home and remained at home the next day also, as such, he was not available at the place of occurrence to either record his further statement or to put his thumb impression over the seizure list, Ext.2/1 and thereby the claim of the informant that he recorded the further statement at the place of occurrence and the claim of the Investigating Officer that he obtained his thumb impression over the seizure list Ext.2/1 at the place of Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 54 occurrence is not only incorrect, but also indicative of the attempt of the prosecution to tender false evidence and create forged documents.
(iii) Learned counsel for the appellants assailed the evidence of Jaichand Singh P.W.1 and submitted that he is also not an eye-witness of the occurrence as in his police statement, he has not claimed before the Investigating Officer that he is an eye-witness of the occurrence and that he saw 40-50 miscreants armed with rifle, gun coming towards his hut and forcibly taking away his two sons, Ranjit and Sanjit and other victims from the adjoining huts to the hut of Chhotelal Singh P.W.12 and then resorted to indiscriminate firing as before the Investigating Officer, he stated that having seen large number of miscreants he silently concealed himself, began to run towards bank of river and having reached the bank of river heard 50 or more rounds having been fired and then became scared and saw Paro Singh P.W.13 running towards the bank of river, which fact would appear from paragraphs 26, 27 of the evidence of the Investigating Officer P.W.17.
(iv) Learned counsel for the appellants also assailed the evidence of Kamli Singh P.W. 2 and submitted that he is also not an eye witness of the occurrence as his evidence in court that having seen the miscreants he came down in the pit to conceal himself and saw the miscreants dragging his son Dunilal Singh as also Ranjit, Sanjit son of Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 55 P.W. 1 from the hut of Jaichand Singh, P.W. 1 and others from their hut was not made by him before the Investigating Officer, P.W. 17 vide paragraph 50 of his evidence, perusal whereof would indicate that P.W. 2 did not state before him that his son was sleeping and he concealed himself in the adjoining pit but had stated that he concealed himself in the hut itself. In this connection evidence of P.W. 2 in paragraph 16 is relevant wherefrom it would appear that he has stated that the huts were open from four sides and raised on bamboo clumps at the height of 5-6 cubit with a thatched roof in which it is not possible for any one to conceal himself and the evidence of Investigating Officer in paragraph 54 that he had not found any dragging mark near the hut of P.W. 2.
(v) Learned counsel for the appellants also assailed the evidence of Amrudh Singh, P.W. 3 and submitted that he is also not an eye witness of the occurrence as his hut is not within a radius of 500 yards from the place of occurrence i.e. the hut of Chhotelal Singh, P.W. 12 vide sketch map prepared by the Investigating Officer and paragraph 29 of his evidence as his hut is not within a radius of 500 yards, he had no occasion to be an eye witness of the occurrence but has deposed as an eye witness at the request of his uncle Jaichand Singh, P.W. 1 though such suggestion was denied by P.W. 3 in paragraph 15 of his evidence. In this connection it is pointed out that Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 56 P.W. 3 has not suffered any casualty in the occurrence as his hut was not within a radius of 500 yards of the place of occurrence.
(vi) Learned counsel for the appellants also assailed the evidence of Chhotelal Singh, P.W. 12 and submitted that he is also not an eye witness of the occurrence as the version given by him in court that the assailants brought the apprehended co-villagers of the witness to his hut, overturned, tied their hands from behind and then apprehended his son Sunil and Raja son of his brother in law and also tied their hands and then asked the apprehended persons why did they not comply the instructions given four days earlier to vacate the place was not given before the Investigating Officer as would appear from his evidence in paragraph 51 where P.W. 17 has stated that P.W. 12 has not stated before him that the hands of the apprehended persons were overturned and tied from behind.
(vii). Learned counsel for the appellants also assailed the evidence of Amrudh Singh P.W. 3, Chhotelal Singh, P.W. 12 and submitted that they are also not an eye witness of the occurrence as their statement was recorded by the Investigating Officer P.W. 17 on 6.10.2009 for the first time without there being any explanation for the delay, which would appear from paragraph 6 of the evidence of the Investigating Officer P.W. 17.
20. Learned counsel for the appellants further submitted Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 57 that the prosecution has not been able to indicate any land dispute between the accused persons and the members of the prosecution party and thus there is no reason as to why the appellants commit the offence found to have been committed by them. Reference in this connection is made to paragraph-11 of the evidence of Bhogi Singh P.W.6 where he has categorically stated that prosecution party has no dispute with the accused persons or Kurmi Community. Praduman Singh P.W.11 in his examination-in-chief itself has stated that he is not aware about the reason behind the occurrence. Reference in this connection is also made to the evidence of the Investigating Officer P.W.17 in paragraphs 51 and 42 as in paragraph 51, Investigating Officer has stated that Chhotelal Singh P.W.12 has not stated before him that assailants had asked Raja son of his brother-in-law as to why did he not vacate the hut as per their instruction given four days earlier. With reference to paragraph 42 of the evidence of the Investigating Officer, it is submitted that informant P.W.13 had not stated before him in the police statement that appellant no.14 Borhan Sada before resorting to firing asked the victims as to why did they not vacate the huts as per the instruction. In the light of the aforesaid statement of the Investigating Officer, learned counsel for the appellants submitted that the case about the land dispute between the prosecution party and the assailants is sought to be raised only during Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 58 trial and not during investigation as such may not be accepted.
21. Learned counsel for the appellants has also submitted that seizure list Ext.7, which was prepared on 3.10.2009 in course of minute inspection of the place of occurrence by the Investigating Officer cannot be relied upon as the said seizure list was admitted in evidence with objection for the reason that copy thereof was not handed over to the appellants under Section 207 of the Cr.P.C.
22. In support of the aforesaid submission noted in paragraphs 18 to 21, learned counsel for the appellants has relied upon on the judgment of the Supreme Court in the case of Tamilselvan Vrs. State represented by Inspector of Police, Tamil Nadu, (2008) 7 SCC 755 and in the case of Sajjan Sharma Vrs. State of Bihar, AIR 2011 S.C.632. It is submitted with reference to the judgment of the Supreme Court in the case of Tamilselvan (supra) that it is difficult to accept the version of prosecution witnesses that they identified the assailants in the torchlight flashed by the assailants. Due to flashing of torchlight by the miscreants, prosecution witnesses would have been partially blinded and could not have identified the assailants. In the case of Sajjan Sharma (supra), Supreme Court in paragraph 22 observed as follows:
"In this country, even while correctly naming the accused in cases of serious offences, it is endemic that some other innocent persons or Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 59 even such of the members of the family of the accused who might not be present at the time of commission of the offence are also roped in and falsely implicated ...."
With reference to the said observation, it is submitted that informant P.W.13 and P.W.2, who is also signatory to the fardbeyan and other eye-witnesses P.Ws. 1, 3, 12 having not identified the assailants during the occurrence thought it appropriate to implicate as many as 37 residents of village Amausi as accused in the present case, but while recording evidence during trial in court, the informant P.W.13, P.Ws. 1, 2, 3 and 12 have named only 16, 18, 17, 7 and 22 assailants respectively without indicating reason for omitting the others in court from amongst the assailants named in fardbeyan.
23. Learned counsel for the appellants finally challenged the conviction of the appellants on the ground that the prosecution has not correctly described the manner of occurrence as they have withheld information about the number of deaths. In this connection, learned counsel submitted that as per the fardbeyan 16 persons were killed in the night of 1.10.2009 around 11 P.M. in Amausi Bahiyar the 15 dead bodies were found in the hut of Chhotelal Singh P.W.12 and one dead body was found near the hut of Chhotelal Mahto which was carried to Icharua Chowk by the members of the prosecution party and their inquest was prepared vide inquest report, Exts.4, 4/I to 4/XV Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 60 between 8.30 A.M. to 10.40 A.M., whereafter the 16 dead bodies were subjected to post-mortem on 2.10.2009 vide post-mortem report, Exts. 3 to 3/XV between 12.35 P.M. to 4.50 P.M. After the dead bodies were subjected to post-mortem, Investigating Officer proceeded to inspect the place of occurrence, seized incriminating articles from the hut of Chhotelal Singh P.W.12, prepared seizure list Ext.2/1 and then came to the hut of Chhotelal Mahto, found one more dead body there which according to the learned counsel has not been accounted for by preparing inquest report and subjecting that dead body to post-mortem and thereby the prosecution has not given the correct version of the occurrence. According to the learned counsel failure to account for the dead body found in the hut of Chhotelal Mahto alone is sufficient to disbelieve the prosecution case. In this connection, he has referred to the evidence of P.Ws.2,3,12,13 and submitted that the aforesaid witnesses are not categorical about number of deaths in the occurrence as according to them the number of deceased is 11,14,15 and 13 respectively.
24. Counsel for the State supported the impugned judgment/order of conviction and sentence and submitted that the informant and the other eye-witnesses are quite consistent in their evidence, close perusal whereof would indicate that they have seen the occurrence from their own eyes and informed the name of the Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 61 assailants to the villagers and other witnesses in the same night when they went to the village and raised alarm. The evidence of the prosecution witnesses being consistent, the same should be accepted to maintain the conviction though there has been laches on the part of the Investigating Officer, as he ought to have prepared the inquest report after he recovered the dead body during his inspection from the hut of Chhotelal Mahto. Learned counsel further submitted that it was also expected of the Investigating Officer to have explained the circumstances in which whitener was put over his signature in the station diary entry No. 18, Ext.B, but such failure of the Investigating Officer may not persuade this Court to disbelieve the prosecution eye- witnesses who are consistent in their evidence about the date, time and manner of occurrence.
25. In view of the rival submission of the counsel for the parties, I have examined the merit of the prosecution case in the light of the evidence of the informant P.W. 13, eye-witnesses P.Ws. 1,2,3, 12, other villagers P.Ws. 4 to 8, 11, 14 and the Investigating Officer P.W. 17. The evidence of the informant P.W. 13 that he awoke his son but he did not respond to the call then informant slipped into the paddy field, watched the occurrence from the paddy field, identified the miscreants in the torchlight flashed by them, similar evidence of Jaichand Singh P.W. 1 that he also awoke his Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 62 two sons but the sons did not respond, he came down from the hut, went to the Kash forest to conceal himself, evidence of Kamli Singh P.W. 2 that he saw the miscreants approaching his hut went to the adjoining pit, leaving his sleeping son Dunilal Singh who was dragged by the miscreants to the hut of Chhotelal Singh P.W. 12, the evidence of Amrudh Singh P.W. 3 that in the night of occurrence he in his hut at Amausi Bahiyar heard gun shot being fired near the hut of Chhotelal Singh then awoke Dinesh Singh, both walking through the paddy field came near the hut of Chhotelal Singh, watched the occurrence from the paddy field, the evidence of P.W. 12 Chhotelal Singh that just before the occurrence was sitting in his hut, his son Sunil was sleeping with Raja, son of his brother-in-law, saw the miscreants coming towards the hut along with apprehended victims crawled into the paddy field, watched the occurrence from the field, does not appear to be reliable description of an eye-witness of the occurrence in the light of the further evidence of the eye-witnesses that having seen the occurrence the witnesses came running to the bank of river Kamla, boarded the boat for coming to their village Icharua, while in boat discussed the identity of the accused vide evidence of P.W. 2, paragraph 19, after reaching Icharua raised alarm, collected 100-150 villagers including P.Ws. 4 to 8, 11,14, informed the villagers as also P.Ws. 4 to 8, 11, 14 the name of the Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 63 assailants, came back to the place of occurrence with the villagers including P.Ws. 4 to 8,11,14, collected, brought the dead bodies first to the bank of river Kamla, boarded the boat, came to Icharua embankment, brought the dead bodies to Icharua Chowk, recorded the fardbeyan at 7.45 hrs. in the light of the police statement of P.Ws. 4 to 8, 11,14 that they (witnesses P.Ws. 4 to 8, 11, 14) were not informed about the name of the assailants by any of the eye- witnesses P.Ws. 1 to 3, 12, 13 in the night of occurrence. Reference in this connection is required to be made to the evidence of Investigating Officer P.W. 17 in paragraphs 30 to 34, 52, 53 where the Investigating Officer has categorically stated that P.Ws. 4 to 8, 11, 14 never stated before him that they learnt about the name of the assailants from the eye-witnesses during the night of occurrence. In view of the police statement of P.Ws. 4 to 8, 11 and 14, I am of the considered view that villagers of Icharua including P.Ws. 4 to 8, 11, 14 present in village during the night of occurrence were not informed about the identity of the assailants during the night of occurrence by the eye-witnesses, as is claimed by the informant P.W. 13 and the eye-witnesses P.Ws. 1 to 3, 12 in their evidence in court.
26. From the evidence of the Investigating Officer P.W. 17 it appears that telephonic information about the occurrence Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 64 was received by him in Morkahi Police Station on 2.10.2009 at 3 hrs. After receiving the telephonic information relevant entries were made by P.W.17 in the Station Diary of Morkahi Police Station. Having made the relevant entries in the Station Diary the Investigating Officer P.W. 17 left the Police Station for the place of occurrence along with A.S.I. P.N. Jha, P.R. Singh and others in police jeep handing over charge of the Station Diary of Morkahi Police Station to A.S.I. Suresh Prasad Singh, which is evident from Station Diary Entry No. 16 dated 2.10.2009 of the Station Diary of Morkahi Police Station Ext.-A. After reaching Icharua Chowk P.W. 17 recorded the fardbeyan of P.W. 13 on 2.10.2009 at 7.45 hrs. and forwarded the fardbayan to Morkahi Police Station for registration of the case, which appears to have been received in the Morkahi Police Station at 10 A.M., on the basis of which F.I.R. of the present case was registered at 10 A.M. It appears from the fardbeyan that in anticipation of the registration of the F.I.R. Officer-in-Charge P.W. 17 took up the investigation of the case at the place of occurrence itself, which is evident from the forwarding of the fardbeyan made by the Officer-in-Charge P.W. 17 and the endorsement registering the F.I.R. made by Suresh Prasad Singh Ext.-1/II. The assertion made by the Officer-in-Charge P.W. 17 that he recorded the fardbeyan of P.W. 13 at Icharua Chowk on 2.10.2009 at 7.45 hrs. Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 65 and took up its investigation soon thereafter in anticipation of the registration of the case (F.I.R.) also appears to be incorrect, doubtful in view of Ext. B Station Diary Entry No. 18 of Morkahi Police Station dated 2.10.2009 made at 8 hrs. wherefrom it appears that the Station Diary of Morkahi Police Station was earlier closed by Mukesh Kumar P.W. 17 on 2.10.2009 at 8 hrs. but when it was realized that on 2.10.2009 at 7.45 hrs. Mukesh Kumar was at Icharua Chowk recording the fardbeyan of P.W. 13 and soon thereafter took up investigation of the case in anticipation of its registration at the place of occurrence then the signature of P.W. 17 Mukesh Kumar over the Station Diary of the Police Station made on 2.10.2009 at 8 hrs., Ext.-B was obliterated with the help of whitener and over the whitener signature of Suresh Prasad Singh A.S.I. who was given charge of the Station Diary by P.W. 17 Mukesh Kumar on 2.10.2009 at 3 hrs. was obtained to synchronize the timing of recording of the fardbeyan by P.W.17 at Icharua Chowk with his departure from the Police Station and availability of Suresh Prasad Singh in the Morkahi Police Station. The fact that fardbeyan of P.W. 13 was not recorded on 2.10.2009 at 7.45 hrs. and has been ante-timed is also evident from the evidence of Yogi Singh P.W. 4 father of the deceased Gautam Kumar @ Guddu Paragraph 17 where P.W. 4 has stated that the first statement about the occurrence was made by Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 66 Chhotelal Singh P.W. 12 which was recorded by the Officer-in- Charge and read over to P.W. 12 whereafter P.W. 12 put his signature over the same. Aforesaid statement of P.W. 12 recorded by the Officer-in-Charge P.W. 17 over which P.W. 12 put his signature has been withheld by the prosecution party perhaps for the reason that prosecution had no clue about the assailants by the time the earliest version of the occurrence was recorded by P.W. 12 and it wanted to buy time to fix the identity of the assailants necessitating the prosecution to withhold the statement of P.W. 12 over which he put his signature and to record ante-timed fardbeyan at 7.45 hrs. on 2.10.2009. Reference in this connection is also required to be made to the evidence of P.W. 5 paragraph 2 where he has stated that he gave his statement about the occurrence to the Officer-in-Charge on 2.10.2009 in between 10-11 A.M. but he is not sure whether such statement was recorded by the Officer-in-Charge. Prosecution was not sure about the assailants which is also evident from the fact that in the fardbeyan of P.W. 13 duly counter signed by P.W.2 the informant has named 37 assailants after P.W. 13 and the eye- witnesses P.Ws. 1,2,3,12 consulted each other about the identity of the assailants as per the evidence of P.W. 2 in paragraph 19 but in court P.W. 13, 1, 2,3 and 12 have named only 16, 18, 17, 7 and 22 assailants respectively without indicating any reason as to why the Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 67 witnesses have chosen to omit the other assailants included in the fardbeyan. Aforesaid conduct of the informant and the eye-witnesses is indicative of the fact that the prosecution party was not aware about the identity of the assailants and implicated all and sundry resident of village Amausi at will.
27. The evidence of informant P.W. 13 further does not inspire confidence as before the Investigating Officer he never stated that Appellant No. 14 Borhan Sada asked the apprehended victims as to why they have not complied the instruction to vacate the huts and then the miscreants resorted to firing and after firing flashed torch light to confirm the death of the victims in which informant and others identified the victims which is evident from paragraph 42 of the evidence of the Investigating Officer P.W. 17. The evidence of the informant in paragraph 2 that he made further statement at the place of occurrence also does not appear to be correct in view of the statement of the Investigating Officer in paragraph 3 that he having recorded the fardbeyan took up the investigation, got the 16 inquest report prepared by S.I. Rama Nand Mandal and recorded further statement of the informant and statement of Kamli Singh P.W. 2 at Icharua itself. In this connection evidence of informant himself in paragraph 5 is that he received the dead body of his son on 2.10.2009 after darkness had set in and Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 68 performed his last rites and then went to his home and remained at home the next day and thereby the claim that he recorded his further statement at the place of occurrence i.e. hut of Chhotelal Singh in Amausi Bahiyar does not appear to be reliable. The claim of the Investigating Officer P.W. 17 that he obtained thumb impression of the informant over the seizure-list Ext. 2/1 which he prepared on 2.10.2009 after he visited the hut of Chhotelal Singh P.W.12 in Amausi Bahiyar after post-mortem of the 16 dead bodies at Icharua was over on 2.10.2009 at 4.50 P.M. is also an attempt to create forged document (seizure-list dated 2.10.2009 Ext.- 2/1). The Investigating Officer could not have obtained thumb impression of the informant P.W. 13 over seizure list, Ext.-2/1 at the hut of P.W.12 in Amausi Bahiyar as the informant P.W.13 never visited the place of occurrence hut on 2.10.2009 after postmortem of the dead bodies, which is evident from paragraph 5 of his evidence noted above.
28. The evidence of Jaichand Singh P.W. 1 in court about his claim that he is an eye-witness of the occurrence also does not inspire confidence as he has not claimed before the Investigating Officer that he is an eye-witness of the occurrence and that he saw 40-50 miscreants armed with rifle, gun coming towards his hut and forcibly took away his two sons Ranjit and Sanjit and other victims from the adjoining huts to the hut of Chhotelal Singh and then Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 69 resorted to indiscriminate firing. Before the Investigating Officer, P.W.1 stated that having seen large number of miscreants he silently concealed himself, ran towards the bank of river, after reaching the bank heard 50 or more rounds being fired, became scared also saw P.W. 13 running towards the bank which is evident from paragraphs 26, 27 of the evidence of the Investigating Officer P.W. 17.
29. The evidence of P.W. 2 Kamli Singh also does not inspire confidence as having seen the miscreants he came down in the pit to conceal himself and saw the miscreants from the pit dragging his son Dunilal Singh from his hut as also Ranjit, Sanjit, sons of P.W. 1 and others from their hut. Aforesaid statement was not made by P.W. 2 before the Investigating Officer, which is evident from paragraph 50 of the evidence of P.W. 17 as before the Investigating Officer P.W. 2 stated that his son was sleeping in the hut and he also concealed himself in the hut. From paragraph 16 of the evidence of P.W. 2 it, however, appears that hut was raised on bamboo clumps of the height of 5-6 cubits with a thatched roof and was exposed from four sides, as such, it was not possible for anyone to conceal himself in the hut. From the evidence of the Investigating Officer in paragraph 54, it is evident that he did not find any dragging mark near the hut of P.W. 2 contrary to the claim made by P.W. 2 that his son Dunilal Singh was dragged by the miscreants Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 70 from his hut to the hut of Chhotelal Singh.
30. The evidence of P.W. 3 also does not inspire confidence as his police statement was recorded on 6.10.2009 after much delay as also for the reason that his hut is not within the radius of 500 yards of the hut of Chhotelal Singh which is evident from the sketch-map prepared by the Investigating Officer and he hardly had any opportunity to see the occurrence.
31. The evidence of Chhotelal Singh P.W. 12 also does not inspire confidence as his first version about the occurrence recorded by the Investigating Officer on 2.10.2009 over which he put his signature as per the evidence of P.W. 4 was withheld by the prosecution and also for the reason that according to Investigating Officer P.W. 17 paragraph 51, P.W. 12 recorded his police statement on 6.10.2009 in which he did not state that the hands of the apprehended persons were overturned, tied from behind.
32. The claim of the prosecution that there is land dispute between the accused persons and the members of the prosecution party is also without any evidence to that effect. In this connection evidence of P.W. 6 Bhogi Singh paragraph 11, examination in chief of Praduman Singh P.W. 11 is relevant as P.W. 6 in paragraph 11 has categorically stated that prosecution party has no dispute with the accused persons or the Kurmi community. Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 71 Praduman Singh P.W. 11 in his examination in chief has itself stated that he is not aware about the reason behind the occurrence. In this connection it is also pointed out that P.W. 12 has not stated before the Investigating Officer that assailants asked Raja, son of his brother-in-law as to why did he not vacate the hut as per their instruction given four days earlier. P.W. 13 has also not stated before the Investigating Officer that Appellant No. 14 Borhan Sada before resorting to firing asked the victims as to why did they not vacate the huts as per the instructions. In the light of the aforesaid evidence of the Investigating Officer it is quite evident that the case of land dispute has been built up only during trial and not before the Investigating Officer during the investigation.
33. The submission of the counsel for the appellants that the eye-witnesses are not even consistent about the number of deceased as P.W. 13, 2, 3, 12 have stated that the number of deceased in the occurrence is 13, 11, 14, 15 respectively is not correct in view of the evidence of P.W. 13 in paragraph 9, P.W. 2 in paragraph 2, and P.W. 12 in paragraph 1 where the witnesses have stated that the number of deceased is 16.
34. The submission of the counsel for the appellants that the prosecution has not correctly described the manner of occurrence as they have withheld information about the number of Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 72 deaths in the occurrence by furnishing incorrect number of deaths as eye-witnesses P.Ws. 13, 2, 3, 12 have given 13, 11, 14, 15 number of deaths respectively in their examination in chief only with a view to mislead the court about the manner of occurrence as 16 dead bodies were brought from the place of occurrence to Icharua Chowk on 2.10.2009 in the morning and subjected to post-mortem on 2.10.2009 at Icharua Chowk vide post-mortem report Ext. 3 to 3/XV between 12.35 P.M. to 4.50 P.M. After post-mortem of the 16 dead bodies Investigating Officer came to inspect the place of occurrence and seized incriminating articles from the hut of Chhotelal Singh P.W. 12, prepared seizure-list Ext.- 2/1 and then came to the hut of Chhotelal Mahto and found one more dead body in the hut of Chhotelal Mahto which according to learned counsel for the appellants has not been accounted for by preparing the inquest- report and subjecting that dead body to post-mortem and thereby prosecution has misled the courts on the manner of occurrence. Aforesaid submission of the learned counsel for the appellants has been considered by perusing the evidence of P.Ws. 13, 2, 12 in paragraphs 9, 2, 1 respectively and the evidence of Investigating Officer P.W. 17 paragraphs 2, 3. It would appear from the evidence of P.Ws. 13, 2, 12 that in paragraphs 9, 2, 1 of their examination they have categorically given the number of deceased as 16. Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 73 Investigating Officer P.W. 17 in paragraphs 2, 3 of his evidence has also categorically stated that after getting the inquest report prepared by S.I. Ramanand Mandal, Exts. 6-6/XV, recording the further statement of P.W.13 and statement of P.W.2 as also after getting the post-mortem of the 16 dead bodies performed by two doctors at Icharua, he proceeded for the place of occurrence i.e. hut of Chhotelal Singh P.W.12 for its inspection and having inspected the place of occurrence recovered incriminating articles vide Ext. 2/1 and then came to the hut of Chhotelal Mahto vide paragraph 3 of his evidence and recovered one dead body and then came to Amausi village of the accused on 2.10.2009 itself and arrested seven accused persons including appellant no.1 Opi Mahto and appellant no. 13 Billo Mahto. The submission of the learned counsel for the appellants noted above appears to be misconceived as had the Investigating Officer recovered one more dead body in the hut of Chhotelal Mahto during his inspection, he could not have proceeded for arrest of the accused persons in Amausi village and arrested seven of them, which fact is not disputed by the members of the prosecution party without preparing the inquest report and sending the dead body for post-mortem. There appears to be slip of pen while writing the evidence of the Investigating Officer in paragraph 3 from which it cannot be assumed that another dead body was Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 74 recovered in course of inspection of the place of occurrence by the Investigating Officer on 2.10.2009 after he came there for inspection.
35. In view of the discussion made in paragraphs 25 to 31, it is evident that the earliest version about the occurrence was reported by Chhotelal Singh P.W.12 to the Officer-in-charge, Morkahi Police Station/ Investigating Officer P.W.17 which was also signed by P.W.12 as the said fact has been asserted by none- else than Yogi Singh P.W.4, father of one of the deceased Gautam Kumar @ Guddu in paragraph 17 of his evidence, but the said earliest version, perhaps did not contain the name of the assailants as by the time the earliest version was recorded in the morning of 2.10.2009 at 7.45 hrs., the prosecution was groping in the dark about the identity of the assailants, necessitated withholding of the earliest version recorded by P.W.12 providing for another ante-timed fardbeyan by P.W.13 naming as many as 37 residents of village Amausi as assailants and to synchronize the time of recording of the fardbeyan with the departure of the scribe of the fardbeyan from Morkahi Police Station vide Station Diary Entry No. 16 dated 2.10.2009 at 3 hrs. as also the time of closure of the Station Diary of Morkahi Police Station vide Station Diary Entry No. 18 dated 2.10.2009 at 8 hrs., Ext.-B, the signature of the scribe of the Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 75 fardbeyan, Mukesh Kumar P.W.17 made beneath Station Diary Entry No. 18 dated 2.10.2009 at 8 hrs., Ext.-B had to be obliterated by using whitener and thereafter signature of Suresh Prasad Singh A.S.I. who was given charge of the station diary by Mukesh Kumar P.W.17 on 2.10.2009 at 3 hrs. vide Ext.A was obtained. In case Mukesh Kumar P.W.17 had recorded the fardbeyan on 2.10.2009 at 7.45 hrs. at Icharua Chowk, he could not have closed the station diary of Morkahi Police Station on 2.10.2009 at 8 hrs. From the discussion of the evidence of eye-witnesses P.Ws. 13, 1, 2, 3, 12 and the villagers P.Ws. 4 to 8, 11, 14, it is quite evident that eye- witnesses had not disclosed the name of the assailants to the villagers, P.Ws. 4 to 8, 11, 14 during the night of the occurrence when they claim to have reached Icharua and raised alarm, which is also evident from the fact that the earliest version about the occurrence disclosed by P.W.12 did not include the name of the assailants and recording of ante-timed fardbeyan as also interpolation in the station diary of Morkahi Police Station had to be resorted to so as to enable the prosecution to provide the name of the assailants in the fardbeyan.
36. From the discussion made in paragraphs 25 to 31, 35, it is evident that the prosecution evidence is lacking in substance and there has been serious attempt by the prosecution not Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 76 only to ante-time the fardbeyan, but also to interpolate the station diary of Morkahi Police Station so as to enable the prosecution to name as many as 37 residents of village Amausi as assailants in the fardbeyan, but in court without indicating any reason, the eye- witnesses themselves chose to omit many of them as assailants, as in court P.Ws. 13, 1, 2, 3, 12 have named only 16, 18, 17, 7 and 22 assailants respectively. It is, therefore, difficult to maintain conviction of the appellants.
37. Appellants are, accordingly, granted benefit of doubt. Reference is answered in negative. The impugned judgment/order dated 08.02.2012/14.02.2012 passed by 1 st Additional Sessions Judge, Khagaria in Sessions Case No. 15/2010 is set aside and the appeal is allowed. The appellants are in jail custody, they are directed to be released forthwith, if not wanted in any other case.
38. Before parting with this judgment, placing reliance on the judgment of the Supreme Court in the case of Ankush Shivaji Gaikwad Vrs. State of Maharastra, (2013) 6 SCC 770, I would like to observe that there being no dispute about the factum of death having been caused to 16 residents of village Icharua in Amausi Bahiyar in the night of 01.10.2009, the State is obliged to pay compensation to the next of kin of the 16 deceased from its fund. The Patna High Court D. REF. No.2 of 2012 dt.03-01-2014 77 amount of compensation is to be calculated by the trial court taking into account the age, income of the deceased in the light of the provisions of Section 163-A and Second Schedule of the Motor Vehicles Act, 1988. In absence of any documentary proof of any of the victims, trial court will calculate the income of the victim on the basis of minimum wage payable on the date of occurrence. After calculating the amount of compensation, appropriate order for payment of compensation shall be passed by the trial court within twelve weeks of the receipt of this judgment directing the Collector, Khagaria to make payment to the next of the kin of the 16 deceased, of course after adjusting ex gratia amount already paid to the next of the kin of the 16 deceased. Payment in compliance of this judgment be made to the concerned by the Collector, Khagaria within four weeks from the date of receipt of the order for payment of compensation from the trial court.
(V.N. Sinha, J.) Rajendra Kumar Mishra, J. I agree (Rajendra Kumar Mishra, J.) AFR Arjun,PKP, Rajesh