Patna High Court
Dashrath Sah @ Dashrath Choudhary & Anr vs State Of Bihar on 17 October, 2017
Author: Anil Kumar Upadhyay
Bench: Chief Justice, Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.559 of 1993
(Against the judgment of conviction dated 10.12.1993 and order of sentence
dated 13.12.1993 passed by Sri D.G.R. Patnaik, learned 3rd Additional
Sessions Judge, Sitamarhi in Sessions Trial No. 226 of 1992 / 04 of 1992,
arising out of Riga P.S. Case No. 119 of 1992)
===========================================================
1. Ash Narayan Sah, Son of Hari Narayan Sah
2. Sanjay Sah, son of Hari Narayan Sah
3. Hari Narayan Sah, son of late Beni Sah
All residents of Village- Panapur, P.S.- Riga, District- Sitamarhi.
4. Rabindra Sah, son of Sri Jagidsh Sah
Both resident of Village- Garhiya, P.S.- Riga, District- Sitamarhi.
5. Ram Pratap Mahto, son of Sri Jagan Sah, resident of Village- Marar, P.S. Riga,
District- Samastipur.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
With
===========================================================
Criminal Appeal (DB) No. 562 of 1993
===========================================================
1. Ram Briksh Sah, son of Late Jung Bahadur Sah,
2. Bechan Sah, son of Late Jung Bahadur Sah
3. Sogarath Sah, son of Raji Nandan Sah
All resident of Village- Panapur, P.S.- Riga, District- Sitamarhi.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
With
===========================================================
Criminal Appeal (DB) No. 12 of 1994
===========================================================
Lakshmi Dhobi, Son of Chalitra Baitha, resident of Village- Panapur, P.S.-
Riga, District- Sitamarhi.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
With
===========================================================
Criminal Appeal (DB) No. 343 of 1997
Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017
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(Against the judgment of conviction and order of sentence dated 09.06.1997
passed by Sri Dharnidhar Jha, learned 2nd Additional Sessions Judge,
Sitamarhi in Sessions Trial No. 3 of 1997, arising out of Riga P.S. Case No.
119 of 1992)
===========================================================
1. Dashrath Sah @ Dashrath Choudhary, Son of Utim Choudhary,
2. Chhedi Sah @ Chhedi Lal @ Chhedi Choudhary, son of Jodhi Choudhary,
Both residents of Village- Panapur, P.S.- Riga, District- Sitamarhi.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
With
===========================================================
Criminal Appeal (DB) No. 347 of 1997
(Against the judgment of conviction and order of sentence dated 09.06.1997
passed by Sri Dharnidhar Jha, learned 2nd Additional Sessions Judge,
Sitamarhi in Sessions Trial No. 159 of 1995, arising out of Riga P.S. Case
No. 119 of 1992)
===========================================================
Musafir Hajam @ Musafir Thakur, Son of Rameshwar Thakur, resident o f
Village- Katahari, P.S.- Riga, District- Sitamarhi.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
===========================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Prasoon Sinha, Advocate
Mr. Shashank Shekhar, Advocate
For the Respondent/s : Mr. A. K. Sinha, APP
Mr. A. Sharma, APP
Ms. Shashi Bala Verma, APP
Mr. Ajay Mishra, APP
Mr. M. N. Jha, APP
===========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY)
Date: 17-10-2017
Cr. Appeal (D.B) No. 559 of 1993, Cr. Appeal (D.B)
Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017
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No. 562 of 1993 and Cr. Appeal (D.B) No. 12 of 1994 arises out of
the common judgment of conviction dated 10.12.1993 and order of
sentence dated 13.12.1993 passed in Sessions Trial No. 226 of 1992 /
04 of 1992, arising out of Riga P.S. Case No. 119 of 1992, whereas
2. Cr. Appeal (D.B) No. 343 of 1997 arises out of
Sessions Trial No. 3 of 1994 and Cr. Appeal (D.B) No. 347 of 1997
arises out of Sessions Trial No. 159 of 1995 against the judgment of
conviction and sentence dated 09.06.1997, arising out of same Riga
P.S. Case No. 119 of 1992.
3. In Sessions Trial No. 226 of 1992 / 04 of 1992 the
learned 3rd Additional Sessions Judge, Sitamarhi convicted 12 accused
persons, out of 500 rioters involved in arson of 16 houses belonging to
Muslim community causing injury and committing murder of three
victim ladies. The appellants Daroga Sah, Raja Teli, Hari Narain Sah
and Bechan Sah have been convicted under Section 148 of the Indian
Penal Code and sentenced to undergo R.I. for two years. The
appellants Laxmi Dhobi, Ram Briksha Sah, Ash Narain Sah, Sanjay
Sah, Sogarath Sah, Ram Pratap Mahto, Rabindra Sah and Jai Narain
Sah have been convicted under Section 147 of the Indian Penal Code
and sentenced to undergo R.I. for two years. The appellants, namely,
Hari Narain Sah, Sogarath Sah, Bechan Sah, Ash Narain Sah, Sanjay
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Sah and Laxmi Dhobi have been convicted under Section 302 of the
I.P.C. for murder of Ayeesha Kahtoon and sentenced to undergo R.I.
for life. Appellants, namely, Raja Teli, Laxmi Dhobi, Daroga Sah and
Ram Briksha Sah have been convicted under Section 302 of the I.P.C.
for murder of Marani and Chuniya Khatoon and sentenced to undergo
R.I. for life. The appellants, namely, Ram Pratap Sah, Sogarath Sah,
Jai Narain Sah, Rabindra Sah have been convicted under Section
436/149 of the I.P.C. and sentenced to undergo R.I. for ten years.
4. In Sessions Trial No. 3 of 1994, the learned 2nd
Additional Sessions Judge, Sitamarhi convicted Dashrath Sah @
Dashrath Chaudhary and Chhedi Sah @ Chhedilal @ Chhedi
Choudhary under Sections 302/149 and 436/149 of the Indian Penal
Code. The Court below also convicted the appellant Chhedi Sah under
Section 302 of the I.P.C. and sentenced them to undergo R.I. for life
under Sections 302 and 302/149 of the Indian Penal Code and R.I. for
a period of 3 years under Section 436/149 of the Indian Penal Code
and acquitted Yugal Sah @ Yugal Choudhary, Chhedi Sah and
Dashrath Choudhary from the charge under Sections 380/149 and
323/149 of the Indian Penal Code.
5. In Sessions Trial No. 159 of 1995, the learned 2nd
Additional Sessions Judge, Sitamarhi convicted Musafir Hajam @
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Musafir Thakur under Sections 302, 302/149 and 436/149 of the
Indian Penal Code and sentenced to undergo R.I. for life under
Sections 302 and 302/149 of the Indian Penal Code and R.I. for a
period of 3 years under Section 436/149 of the Indian Penal Code and
acquitted Nagendra Thakur from the charge under Sections 380/149
and 323/149 of the Indian Penal Code.
6. The prosecution case in brief is as follows:
The informant Habib Rayeen gave his fardbeyan
before the police officer of Riga police station on 07.10.1992 at
village Izarahiya, P.S. Riga, District- Sitamarhi. The informant stated
that on 07.10.1992 at about 11.00 A.M. he was present at the house of
one Basir Sahab in the same village. At that time he heard halla that
some antisocial elements were burning the houses of the Muslims
within the village. The informant ran to his house and found that an
assembly of a large number of persons, who were armed with lethal
weapons, were burning the houses including his house. Amongst the
members of the assembly, he had seen and identified accused Hari
Narain Sah, Sogarath Sah, Jagannath Sah, Bechan Sah, Chhedi Sah,
Jugal Sah, Dashrath Sah, Ram Briksha Sah, Ash Narain Sah, Hari
Narain Sah, Daroga Sah, Jai Narayan Choudhary all residents of
village Panapur and Bhim Sah, Ram Sagar Sah and Ram Pratap Sah
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of village Marar and all of whom had burnt the informant‟s house and
had looted away clothes, food grains etc. from the dwelling houses.
The mob of rioteers had proceeded towards the Muslim Tola situated
towards the East of the village and had torched about 16 houses there.
The informant further stated that feeling apprehensive of the mob, his
wife Ayeesha Khatoon and the wife and mother-in-law of Nayeem
Mian had tried to conceal themselves within the nearby paddy fields,
but they were persued and killed by the memebrs of the mob
including Hari Narain Sah, Sogarath Sah, Bechan Sah, Chhedi Sah,
Raja Teli, Musafir Hazam, Babu Lal Rai and Laxmi Dhobi. He further
stated that the aforesaid persons had also assaulted his daughters
Abrana Khatoon and Sagira Khatoon as well as many others, who had
sustained injuries. The informant claims to have seen and identified
the accused Rabindra Sah of the same village taking active
participation in the riots. The informant claims that a number of
persons have witnessed the occurrence, whose names have been given
in the fardbeyan.
7. On the basis of the fardbeyan of the informant
Riga P.S. case no. 119 of 1992 was registered for the offence under
Sections 147, 148, 149, 380, 436, 323, 324 and 302 of the Indian
Penal Code.
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8. The police after investigation submitted charge-
sheet with common charge for the offence under Sections 147, 148,
149, 380, 436, 323, 324 and 302 of the Indian Penal Code. Thereafter
the learned Magistrate took cognizance for the offence and the case
was committed to the Court of Sessions for trial. Thereafter charges
were framed under Sections 147, 302/149, 436/149, 380/149,
324/149, 148 and 302 of the Indian Penal Code against 14 accused
persons in Sessions Trial No. 226 of 1992. In Split Up Sessions Trial
No. 03 of 1994 charges were framed under Sections 302/149,
436/149, 380/149, 324/149 and 153 „A‟ of the Indian Penal Code
against three accused persons and in Sessions Trial No. 159 of 1995
charges were framed against two accused persons for the offence
under Sections 436/149, 380/149, 324/149 and 147 of the Indian
Penal Code. The accused persons pleaded not guilty and as such they
were put on trial, namely, Sessions Trial No. 226 of 1992, S.T. No. 3
of 1994 and S.T. No. 159 of 1995. In Sessions Trial No. 226 of 1992
on the basis of scrutiny of oral and documentary evidence convicted
12 accused persons and acquitted Ram Sagar and Jagarnath, as
charges against them were not established beyond all reasonable
doubt, whereas in S.T. No. 3 of 1994, the trial court convicted
Dashrath Sah and Chhedi Sah and acquitted Jugal Sah, whereas in
Sessions Trial No. 159 of 1995 convicted Mushafir Hajjam and
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acquitted Nagendra Thakur.
9. Mr. Ajay Kumar Thakur at the very outset
submitted that during the pendency of these appeal, Raja Teli
appellants in Cr. Appeal (D.B) No. 3 of 1994 has died and as such Cr.
Appeal (D.B) No. 3 of 1994 abated on account of death of sole
appellant Raja Teli. The appellant Jai Narayan. Cr. Appeal (D.B) No.
559 of 1993 also died and as such the appeal on his behalf also stands
abated. In Cr. Appeal (D.B) No. 562 of 1993, the appeal against
Daroga Sah is also abated, as he also died during the pendency of the
appeal.
10. On behalf of the prosecution in Sessions Trial No.
226 of 1992 / 04 of 1992, altogether 39 witnesses were examined.
P.W.1 is Rahman Mian, P.W.2 is Nayeem Mian, P.W. 3 is Walil
Mian, P.W. 4 is Safique Mian, P.W. 5 is Md. Nasir, P.W.6 is Kasma
Khatoon, P.W. 7 is Gaffar Mian, P.W. 8 is Kasim Mian, P.W.9 is
Muslim Rain, P.W. 10 is Eqbal Hussain, P.W. 11 is Tasleem Mian,
P.W. 12 is Ahmad Mian, P.W.13 is Aziz Mian, P.W. 14 is Abdul
Rashid, P.W. 15 is Sattar Rain, P.W. 16 is Latif Mian, P.W.17 is
Hadisha Khatoon, P.W. 18 is Johra Khatoon, P.W. 19 is Mohmoodan
Khatoon, P.W.20 is Maimun Khatoon, P.W.21 is Tahir Mohamood,
P.W. 22 is Md. Habib Mian, P.W.23 is Jubasha Khatoon, P.W.24 is
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Janifan Khatoon, P.W.25 is Julekha Khatoon, P.W. 26 is Majeedan
Mian, P.W. 27 is Saiful Khatoon, P.W.28 is Md. Hanif, P.W.29 is
Abrana Khatoon, P.W.30 is Hakim Mian, P.W. 31 is Mazloom
Mohammad, P.W. 32 is Dr. Bharat Singh, P.W. 33 is Amin Mian,
P.W. 34 is Nizamuddulah Khan, P.W. 35 is Dr. Madan Mohan
Thakur, P.W. 36 is Anil Shankar, P.W. 37 is R. K. Dwivedi, P.W. 38
is Roop Narayan Singh and P.W. 39 is Dr. Pradeep Nandan.
11. In S.T. No. 3 of 1994, the prosecution examined
29 witnesses, namely, P.W. 1 is Abdul Rahman, P.W. 3 is Gaffar
Main, P.W. 4 is Wakil Mian, P.W. 5 Md. Tahir, P.W. 6 is Muslim,
P.W. 8 is Iqbal Hussain, P.W. 9 is Hadisha Khatoon, P.W. 10 is
Saiful Khatoon, P.W. 11 is Jaifan Khatoon, P.W. 13 is Julsisa
Khatoon, P.W. 15 is Kasima Khatoon , P.W. 16 is Johra Khatoon,
P.W.- 17 Julekha Khatoon, P.W. 18 is Mahbooba Khatoon, P.W. 19 is
Maimun Khatoon, P.W. 20 is Madan Mohan Thakur, P.W. 22 is
Naseer Rain, P.W. 23 is Md. Nayeem , P.W. 25 is Md. Hanif, P.W. 26
is Habeeb Rain, P.W. 27 is Anil Sarkar, P.W. 28 is Bharat Singh,
P.W. 29 is Nizamuddulah
12. In Sessions Trial No. 159 of 1995, the
prosecution examined 25 witnesses, namely, P.W. 1 is Abdul Rasid,
P.W. 3 is Gaffar Mian, P.W. 4 is Ahmad Mian, P.W. 5 is Ekbal Mian,
P.W. 6 is Wakil Mian, P.W. 7 is Amim Mian, P.W. 8 is Md. Tahir,
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P.W. 9 is Habeeb Rain, P.W. 10 is Nayeem Mian, P.W. 11 is Kasima
Khatoon, P.W. 12 is Mahmoodan Khatoon, P.W. 13 is Johra Khatoon,
P.W. 14 is Anil Sarkar, P.W. 15 is Md. Aziz, P.W. 16 is Abdul
Rahman, P.W. 17 is Taslim Ansari, P.W. 18 is Majeedam Mian, P.W.
19 is Hadisha Khatoon, P.W. 20 is Abrana Khatoon, P.W. 21 is
Saiful Khatoon, P.W. 22 is Bharat Singh, P.W. 23 is Julekha
Khatoon, P.W. 25 is Jalifan Khatoon, P.W. 26 is Md. Naseer, P.W.
27 is Nizamuddulah Khan.
13. In Sessions Trial No. 3 of 1994 and S.T. No. 159
of 1995, the doctor, who conducted the post-mortem was not
examined. In S.T. No. 226 of 1992, 16 witnesses were tendered,
whereas in S.T. No. 3 of 1994, 8 witnesses were tendered and in S.T.
No. 159 of 1995, 9 witnesses were tendered.
14. Mr. Ajay Kumar Thakur, learned counsel
appearing on behalf of all the appellants submitted that the occurrence
of arson loot and killing of three persons in the communal riot is not
in dispute. The dispute is only with regard to the manner in which the
crime was committed, the time of occurrence and the involvement of
the appellants in the commission of crime. Mr. Thakur has basically
advanced his argument on the following lines: (A) the prosecution has
suppressed the real version of the occurrence. (B) Delay in dispatch of
F.I.R. and its receipt in the Court of Chief Judicial Magistrate creates
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reasonable doubt as to implication of appellants after due deliberation.
(C) The deposition of the injured witnesses and their injuries does not
co-relate that the appellants have committed the crime and caused
injury to them. (D) Evidence of witnesses as to manner of assault not
supported by medical evidence or injured witnesses and (E) the F.I.R.
and the evidence of the witnesses are at variance. The prosecution
case is at variance in the matter of place and time of assault of the
deceased and injured. On the basis of the aforesaid broad line of
submission, he submitted that the trial court committed gross error in
convicting the appellants.
A. Suppression of the real version by the prosecution.
15. Mr. Thakur referring to the evidence of different
witnesses submitted that the prosecution has suppressed the real
version of this case. He has drawn the attention of the Court to the
deposition of P.W.34, I.O., Nijamudullah Khan, who in para 23 (Cr.
Appeal (DB) No. 559 of 1993) has admitted that on 7.10.92 at 11.00
A.M. the Chaukidar of village Izarahia namely Roop Narain Singh
(P.W.38) came at the police station, gave information of arson, loss of
life and property on the basis of which Station Diary Entry no.25
dated 9.10.92 was instituted. Roop Narain Singh, P.W.38 in Para-3
has stated that he has gone to police station at 11 to 12 and he further
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stated that he has not informed Darogajee about arson etc but again he
has stated that he has given the said information.
16. As per the present F.I.R., the fardbeyan was given
by Habib Rain (P.W.22) on 7.10.92 at 3.00 P.M. in village Izarahia
which was recorded by S.I. N.D.Khan, Officer Incharge of Riga
Police Station (page-2 of the brief on top).
17. Mr. Thakur submitted that P.W.22 in para 2 has
stated that he gave information about the incident to Darogajee who
has written his statement and read over to him on which he put his
signature. In para-6 at page 123 of the paper book in cross
examination he has stated that Daroga N.D. Khan has written his
fardbeyan on which he put his signature and he denied the suggestion
that the fardbeyan was prepared by some other person and on that
fardbeyan he put the signature and in para-7 this witness was
confronted that on 04.11.1992 he filed protest petition in the court of
Chief Judicial Magistrate in which he has given about the time of
occurrence and date of occurrence as 7.10.1992 at 9.00 A.M. (Ext. A
is protest petition)
18. Mr. Thakur submitted that the Investigating
Officer N.D. Khan who has been examined as P.W.34 at page 176 has
stated that fardbeyan of Habib Rain (P.W.22) was recorded in village
Izarahia and the said fardbeyan was recorded by Munsi Ram Lolin
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Rai (not examined) in his presence which was read over to Habib
Rain. In para-90 page 196 (6th line from bottom) this witness has
admitted that in the formal F.I.R. the date and time of occurrence is
written as 7.10.1992 at about 2.00 and in the column of the name of
informant earlier name of Nabi Rasul Ansari son of Yusuf Mian was
written. In para-21 page 198 he has admitted that it is not written in
the fardbeyan that the same was written by Ram Lolin Rai, Police
Station Writer. He has admitted that in the fardbeyan it is mentioned
that the fardbeyan was written by him.
19. Mr. Thakur submitted that Nabi Rasul Ansari son
of Yusuf Mian was present in the hospital on 7.10.1992 as well as on
08.10.1992along with P.W.26 Mazidan Mian, an injured witness which is evident from page 137-138 of the paper book in which he has stated that along with him in the hospital Md. Gani, Sahna Khatoon, Aas Khatoon, Sattar, Aziz Mian, Nabi Rasul son of Yusuf Mian were also present and this witness has further stated that he has shown injuries to Darogajee (i.e. P.W.34 N.D.Khan).
20. Mr. Thakur next submitted that the Investigating Officer (P.W.34) in para-40 page 211 of the paper book has stated that on 7.10.19292 the movement of all the police official who were posted at Riga Police station is written in the station diary entry. He (I.O.) further stated that on 7.10.1992 the police station writer Ram Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 14/82 Lolin Rai was present at the police station at 8.00 A.M. and he remained at the police station till next day in the morning 8.00 A.M. and the same is also mentioned in the station diary entry. The investigating officer stated that there is no mentioning that Mr. Rai left the police station on that day. This itself goes to show that the writer of the police station namely Ram Lolin Rai remained at the police station from 7.10.1992 at 8.00 A.M. to 8.10.92 upto 8.00 A.M. and he never left the police station and thus, there is no question of going to village Izarahia where the alleged fardbeyan has been shown to have been recorded on the dictate of S.I. N.D. Khan.
Similarly from station diary entry no.25 dated 7.10.1992 it will be evident that occurrence took place prior to 11.00 A.M. and from protest petition filed by the informant Ex. A also it is evident that occurrence took place at 9.00 A.M. and from page 148 of the brief the occurrence took place at about 11.00 A.M. whereas from the formal FIR page-1 of the brief on the top it was given on 7.10.92 at about 2.00 P.M.
21. Mr. Thakur thereafter referred to the deposition of P.W.24 Janifa Khatoon, who at page 135 of the paper book has stated that she has gone for her treatment to Riga Sitmaarhi, Muzaffarpur Hospital and she has gone to Riga police station and has given her statement to Incharge and has put her signature. Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 15/82 Similarly, P.W.26, an injured witness, at page 137 and 138 of the paper book, has stated that she was treated at Riga Hospital Sitmaarhi Hospital and Muzaffarpur Hospital and she has gone in the noon on the date of occurrence.
Thus, it is manifest that the injured witnesses P.W.25 and 26, who have met the investigating Officer much prior to lodging of the present case have not named any of the appellant even during trial they have not disclosed the name of any appellants.
22. Mr. Thakur submitted that in the present case the prosecution has withheld the Police Station Writer Ram Lolin Rai, the author of fardbeyan and Hawaldar Sambhu Saran who was sent to police station on 11.00 A.M. on receipt of information of incident from P.W. 38, Nabi Rasul Ansari son of Yusuf Mian, whose name was over scored from the F.I.R. and in his place name of Habib Rain was replaced. Mr. Thakur submitted that in none of the earliest version given by Chaukidar Rup Narain Singh, P.W.38 or by Habib Ansari P.W.24, Zarifan Khatoon (injured), P.W.26 Mozidan Mian name of the appellants were disclosed.
23. In the aforesaid background Mr. Thakur submitted that the present fardbeyan is not a genuine fardbeyan it is more evident from the fact that Mozauddulla Khan has stated in the Court that on his order the fardbeyan was written by Ram Lolin Rai Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 16/82 and this was carbon copy of the said fardbeyan which was prepared in the same time in the carbon process but the learned trial court observed "I have seen the carbon copy filed with the fardbeyan in the court is not the copy prepared in one uniform process can not be marked. Another defect is that it appears no signature of the witness in the original rather it appears copy prepared later on."
The aforesaid finding given by the learned trial court itself goes to show that the entire fardbeyan which has been brought on record is not a genuine fardbeyan.
24. Mr. Thakur referring to the aforesaid circumstances and evidence submitted that the real version of the prosecution was suppressed in the instant case.
B. Delay in dispatch of the F.I.R. and receipt in Court creates reasonable doubt as to implicationof appellants after due deliberation.
25. Mr. Thakur addressing on the issue of delay in receiving the F.I.R. in the Court submitted that the attending facts and circumstances of this case clearly demonstrate that there was addition, improvement and after due deliberation and after thought appellants have been implicated in this case.
26. Mr. Thakur submitted that from page 1 of paper Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 17/82 book it is evident that the formal F.I.R. is shown to have been received on 7.10.1992 at 9.30 P.M and it is shown to have been dispatched on 8.10.1992 but it was received in the court on 11th October, 1992.
27. The Investigating Officer P.W.34 in para-11 page 177 has stated that formal FIR was also written by Ram Lolin Rai on which he put his signature and he further said that the said formal FIR alongwith fardbeyan was dispatched to the court on 8.10.92 from police station. In para-17, page 194 this witness has admitted that F.I.R. was produced in court on 11.10.1992. In para 18 page 195 he has stated that it is not written in the case diary that on 8.10.92 the said FIR was sent to the court but he volunteers that he can produce document to show that the FIR was sent to court from police station on 8.10.92 and he can produce the command but the said command was never produced during entire trial.
P.W.34 has admitted in para-20 page 197 that on 8.10.92 to 9.10.92 on several times he sent constable from Riga police station along with documents to Sitamarhi along with dead body and injured. (Court of C.J.M. is situated at Sitamarhi).
P.W.34 in para 23 page-199 has stated that he returned back to police station in the night on 7.10.92 and at page-200 he has stated that he has left police station on 7.10.92 at 10.00 A.M. In Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 18/82 para-26 page 201 he has stated that it is not mentioned either in the fardbeyan or in the case diary that on which place in village Izrahia the fardbeyan of informant has been recorded or whether his further statement is recorded. In para 29 page 203 he has stated that inquest report is being prepared after lodging FIR and on inquest report FIR no. is mentioned or description of fardbeyan is mentioned in the inquest report but in the present inquest report which is Ext.5 to 5/2 there is no such description.
28. Mr. Thakur submitted that from the aforesaid facts it is clears that the prosecution has failed to bring any explanation much less satisfactory explanation as to why three days delay was caused in reaching FIR to court i.e. on 11.10.1992 which was registered on 07.10.1992 and dispatched on 08.10.1992.
C. Deposition of injured witness and their famils does not correlate that appellants have committed crime and caused injury to them.
29. Mr. Thakur submitted that the attending facts and circumstances of the case creates doubt about the participation of the appellants in the occurrence of the communal riot. He referred to the following circumstance:
(i) In the present case (Cr. Appeal (DB) no.559 of 1993) there are altogether six injured witnesses namely P.W.24 Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 19/82 Jarifan Khatoon, P.W.25 Julekha, P.W.26 Mazidan Mian, P.W.27 Saiful Khatoon, P.W.28 Md. Hanif and P.w.29 Ibrana Khatoon. Out of them P.Ws. 24, 25, 26, 28 and 29 have not named any of the appellant and P.W.27 Saiful Khatoon has named only one accused i.e. Laxmi Dhobi whereas this P.W.27 Saiful Khatoon was examined as P.W.21 in Cr. Appeal (DB) No.347of 1997 (Musafir Hazam @ Musafir Thakur vs. State). He has not named any of the accused and was tendered.
(ii). The injury found on the body of the deceased and the allegation attributed against the accused alongwith inquest report falsifies the entire prosecution case and also goes to show that the fardbeyan was recorded subsequently.
(iii). Post Mortem report of Aisa Khatoon is Ext.8 (pg.312-13), Chunia Khatoon Ext.8/1 (pg.314-15) and Marium Khatoon Ext.8/2 (pg-316-317) and at page 312, 314 and 316 Dr. found in column 6 Rigour Mortis partially present. Similarly at page 313, 315 and 317 Doctor found semi digested food particles on the dead body of all the three injured and this itself goes to show that the death will be within less than 12 hours from the commencement of the time of postmortem and dead body received in the hospital on 8.10.1992 at 8.40 A.M. D. Allegations levelled against the accused persons Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 20/82 with regard to assault is neither supported by injured witnesses nor by medical report.
30. Mr. Thakur submitted that in this case, there are three deceased. First deceased is Aisha Khatoon wife of Habib Mian i.e. informant. As per P.W.35 page 219 he found altogether four external injury i face swollen with multiple bruises, ii Incised wound over left chin below lower lips iii left humorous fracture iv multiple bruise over back of varying sizes and the Doctor found semi digested food particles and found rigor mortis was partially present and postmortem was conducted on 8.10.1992 at 8.40 A.M. Mr. Thakur highlighted major contradiction of the witnesses in the manner of assault. Witnesses are at variance.
(i) As per the first information report the informant Habib Rais has stated that Hari Narain Sah, Sogarath Sah, Bechan Sah and Chhedi Sah assaulted with lathi to Aisa Khatoon whereas during trial Habib Mian P.W.22 para 1 page 118 has stated that Hari Narain Sah, Bechan Sah, with lathi, Sogarath Sah Sanjay Sah armed with lathi, Ash Narain Sah armed with lathi and Chhedi Sah were identified who assaulted Aisa Khatoon.
(ii) Whereas P.W.1 Rahman Mian has stated at page 14 of the brief that Hari Narain, Sogarath, Bechan Sah, Ash Narain Sah, Sanjay Sah Chhedi Sah assaulted Aisa Khatoon by lathi and Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 21/82 farsa.
(iii) P.W.2 Nayeem Mian page 25 has stated that Hari Narain Sah, Sogarath Sah, Chhedi Sah, Ash Narain Sah, Sanjay Sah, Bechan Sah assaulted Aisa Khatoon with bhala, farsa Lathi. Hari Narain armed with Bhala, Bechan was armed with Farsa and rest were armed with lathi.
(iv) P.W.7 Gaffar Mian at page 47 has stated that wife of Habib Aisha Khatoon was being assaulted by Bechan Sah, Ganesh, Sogarath Sah with lathi, Sanjay Sah Chhedi Sah with Lathi.
(v) P.W.11 Taslim Mian in page 69 has stated that Hari Narain Sah with Bhala, Bechan Sah with Farsa, Laxmi Dhobi with lathi assaulted Aisha Khatoon.
(vi) In the first information report the informant has stated that the deceased persons have also concealed in the paddy field and while they were concealing in the paddy field the accused persons went and assaulted the deceased person but during trial they have changed the story and have stated that while the three deceased were fleeing in the paddy field they were allegedly chased and assaulted and this improvement has been done for very obvious reason because the so called witness are also claiming that they have concealed themselves inside the paddy field and the height of paddy field was man‟s height or chest height having knee deep water but Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 22/82 none of the accused were seeing them even the accused tried to assault them.
31. Mr. Thakur submitted that so far as Chunia Khatoon and Marni Khatoon are concerned wife of Nayeem Mian and Samdhin of Nayeem Mian P.W.2 and mother and mother in law of P.W.5 Nasir. P.W.35 has conducted the postmortem of Marni Khatoon has stated that he found i Sharp penetrating wound of size 1"x ½"x muscle deep on left temporal region ii Multiple bruises of varying sizes over back and contained semi digested food in the stomach and rigor mortis was partially present page 316 whereas at page 225 he has stated that he conducted the postmortem over the dead body of Chunia Khatoon and found i Sharp cut wound over front of neck and at left side of size 4" x 2" x upper bone deep. ii penetrating would over left chin below lip of size ½" x ¼" x muscle deep. iii Incised wound over left eyebrow iv right humorous was fractured and found stomach containing semi digested food particles and rigor mortis partially present page 314 .
As per the First Information Report page 3 Raja Teli, Musafir Hazam, elder son of Musafir Hazam, Babulal Rai, Laxmi Dhobi assaulted Chunia and Marni with Garasa.
Whereas, P.W.22 at page 118 has sated that Raja Teli with Farsa, Musafir Hazam with Farsa, son of Musafir namely Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 23/82 Nagendra, Laxmi Dhobi with lathi, Daroga Sah, Ram Briksha Sah, Ram Pratap Mahto, Ram Sagar assaulted Chunia khatoon and Marni Khatoon.
Similarly, P.W.1 Rahman Mian has stated that Raja Teli, Laxmi Dhobi assaulted Chunia Khatoon, Marni Lhatoon with Lathi Farsa etc. P.W.2 Nayeem Mian i.e. Husband of the deceased Chunia and Samdhi of deceased Marni has stated at page 26 that Raja Teli, Musafir Hazam, Laxmi Dhobi, Daroga Sah, Ram Briksha Sah assaulted them with farsa lathi out of them Raja Teli and Musafir Mianwere armed with Farsa and rest were armed with lathi.
P.W.5 Naseer has stated that Raja Teli, Musafir Hazam, assaulted Chunia and Marni Khatoon with Farsa whereas Laxmi Dhobi assaulted them with lathi.
P.W.7 Gafar Mian has stated that Musafir Hazam, Laxman Teli, and Laxmi Dhobi assaulted Chunia Khatoon and Marni Khatoon.
P.W.10 Ekbal Hussain has stated that Raja Sah, Musafir Thakur, Laxmi Dhobi, Bechan Sah, Hari Narain, Ram Sagar, Sanjay were assaulted Chunia Khatoon and Manri Khatoon.
P.W.11 has stated that Raja Teli with Bhala alongwith Musafir Ram Sagar, Ram Briksha assaulted Chunia Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 24/82 Khatoon and Marni Khatoon.
32. Mr. Thakur submitted that from the aforesaid facts it is clear that the witness are also not consistent on the point of weapon and the nature of assault on the deceased and the number of persons vis-à-vis the injury received by the deceased and weapon used are also not being corroborated.
33. Mr. Thakur next submitted that almost all the witnesses have stated that all the three ladies were assaulted almost at same place and they were assaulted and killed at the same place but the dead body of three ladies were found in three different paddy field and the inquest report of all the three deceased which is at page 309 to 311 will go to show that the dead body of Marium khatoon was found in the field of Mahal of Khatahari Chaur whereas dead body of Aisa Khatoon was found in Izrahia Bahiyar in the field of Aziz Mian and the dead body of Chunia Khatoon was found in the paddy field of Radha Mohan Sah in Izarahia Sareh. These materials are clinching on the point that the prosecution witnesses are at variance on the point of place of occurrence.
34. Mr. Thakur submitted that P.W.32 and 39 i.e. Dr. Bharat Singh and Dr. Pradip Nandan i.e. Doctor of Sitamarhi and Doctor of PHC Riga respectively treated the injured and the so called injury found by them individually differs to each other such as P.W.39 Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 25/82 at page 290 has stated that he found three injuries on the body of Abrana Khatoon i.e. right side of head (ii) decomposes below right lower eye lid and (iii) tender right fore arm simple in nature whereas P.W.32 Dr. Bharat Singh found four injuries and complain of pain, the said difference between injury which is evident from their respective statement and the injury report and as stated above altogether six injured witness has been examined in the present case P.W.24 to 29 namely Jarifan Khatoon, Julekha, Mazidan Mian, Saiful Khatoon Md. Nadif and Ibrana Khatoon and out of them except Saiful Khatoon none of the injured have named any of the appellant and saiful khatoon has named only one appellant namely Laxmi Dhobi and the said Saiful Khatoon has not named any of the accused in Cr. Appeal (DB) no.347 of 1997. Mr. Thakur submitted that this is yet another discrepancy in the prosecution version as to injury.
E. Variance about allegation against the accused as per FIR and evidence
35. Mr. Thakur submitted that as per the F.I.R., the informant has alleged that the FIR named accused persons i.e. 20 in number along with unknown assaulted his daughter Abrana Khatoon as well as Sagira Khatoon and others. There is no injury report of Sagira Khatoon in the present case.
36. Mr. Thakur submitted that P.W.1 at page 14 has Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 26/82 made a general allegation that accused persons assaulted with lathi and bhala to others such as Md. Hanif and other ladies.
Whereas P.W.2 Nayeem Mian has not stated that accused persons caused injury to any of the injured. P.W.5 Naseer has also not made any allegation that any accused assaulted any injured. P.W.7 Gafar Mian has also not alleged that any of the accused assaulted any of the injured. P.W.8 Kasim Mian has also not stated that any of the accused assaulted any of the injured. P.W.10 Ekbal Hussain has also not stated that any of the accused assaulted any of the injured. P.W.11 Tasleem Mian has also not stated that any of the accused assaulted any injured. P.W.12 Ahmad Mian has also not stated that any of the accused assaulted any injured. P.W.14 Abdul Rasid has also not stated that he saw any of the accused assaulting any injured. P.W.15 Sattar Rain has also not named any of the accused assaulting any of the injured. P.W.18 Johra Khatoon has also not stated about the accused assaulting the injured. P.W.19 Mahmudan Khatoon has also not named any one nor she has stated that she saw any one assaulting any injured. P.W.22 is Habib Mian and he has simply stated that accused persons assaulted his daughter Abrana Khatoon and apart from her they assaulted Md. Hanif, Majidan Khatoon, Julekha Khatoon, Julasha Khatoon, Saiful Khatoon, Sahnaj Khatoon, Jalifan Khatoon. P.W.27 Saiful Khatoon, for the first time Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 27/82 during trial has stated that Laxmi Dhobi assaulted her child as well as to her. P.W.33 Amin Mian has also not named any one for assaulting the injured and in para 3 and 5 of his deposition he has stated that he learnt the name of accused persons after 20 days and he filed complaint case in the court with regard to the present occurrence on 28.10.1992 and he do not remember to whom he has made accused in the said complaint case but after consultation with their caste people he has given the name and the time of occurrence as 9.45 A.M. on 07.10.1992.
37. Mr. Thakur in the aforesaid backdrop of the facts and circumstances submitted that there is major contradiction in the manner of assault, place of occurrence and time of commission of crime and variance in the prosecution case as to the assault of injured or deceased. Referring to the depositions of the prosecution witnesses, he highlighted that there are fallacy in the appreciation of the evidence by the trial court and submitted that in the attending facts and circumstances when there is major contradiction in the version of the witnesses as to the manner of assault, place of occurrence and the time disclosed as to the commission of the crime, the conviction of these appellants, out of 500 alleged rioters is unsustainable and unsafe.
38. Mr. Thakur has further pointed out the following discrepancies in the prosecutionc case to demonstrate that the Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 28/82 prosecution version lacks consistency and credibility.
(i) As per the prosecution case the wife of the informant namely Aisa Khatoon deceased , wife of Naim Mian namely Chunia Khatoon and Samdhin of Naim Mian namely Marni Khatoon concealed themselves in the paddy field in Sareh and thereafter it is alleged and that Hari Narain Sah, Sogarath Sah, Bechan Sah and Chhedi Sah assaulted them with lathi as a result of which she died and wife of Naim Mian and Samdhin of Naim Mian Chunia Khatoon and Marni Khatoon were assaulted by Raja Teli, Musafir Hazam, Eldest son of Musafir Hazam, Babulal Rai, Laxmi Dhobi by Garasa and his daughter Abrana Khatoon, Sogira Khatoon were also assaulted by accused persons as a result of which they become injured.
(ii) During trial the witnesses i.e. P.W.1 Rahman Mian at page 26 of the paper book has stated that apart from him Aisa Khatoon, Marni Khatoon, Chunia Khatoon were also fled away towards paddy field and Hari Narain, Sogarath Sah, Bechan Sah, Aash Narain, Sanjay Chhedi assaulted Aisa Khatoon with lathi and farsa and another set of accused persons were chasing Chunia Khatoon and Marni Khatoo and assaulted them with lathi, farsa and their name was Raja Teli, Laxmi Dhobi to whom he identified.
In para 8 page 18 P.W.1 has stated that due to fear Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 29/82 he remained lying and after hulla was over he came out and saw three dead body in Sareh and dead body were either in his village or on the boundary of village Katahari and the dead bodies were in the water and dead body were full of mud. In para 14 he has stated that Chunia was assaulted by two persons with Garasa and four persons by lathi for 3 to 4 minutes. In para 18 page 22 his attention has been drawn towards his previous statement as to whether he has stated that the house of Kurban Mian, Rasid Mian were set on fire and the accused persons were also chasing Marni Khatoon and Chunia Khatoon and from the statement of P.W.36 (second I.O.) para 23 page 265 it is evident that this version of P.W. 1 has been developed for the first time in court.
P.W.1 was examined for the first time after one week of the occurrence (para 4 page 16) when his statement under Section 161 Cr.P.C. was recorded and in view of inherent contradiction variance and delayed statement before police no reliance can be placed on his version.
(iii) P.W.2 Naim Mian gave his 161 Cr.P.C.
statement for the first time after 6 to 7 days of the occurrence. This witness has stated that due to fear he concealed himself in the paddy field and from there he saw that Aisa Khatoon was crying in the paddy field and the people were assaulting her namely Hari Narain Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 30/82 Sah Sogarath Sah, Bechan Sah and Chhedi Sah Ash Narain Sah and Sanjay Sah by Bhala, Farsa Lathi and in the same paddy field Chunia Khatoon and Marni khatoon were also assaulted by Raja Teli, Musafir Hazam, Laxmi Dhobi, Daroga Sah, Ram Briksha Sah by farsa lathi and thus as per this witness all the three ladies were assaulted in one paddy field and in para 4 he has stated that Chunia Khatoon was his wife, and Marni was his Samdhin but he did not gave information to police and in para 4 he has stated that he concealed himself in paddy field situated at a distance of 100 Gudge from his house for about 2.00 hours to 2.30 hours and when matter was pacified he came out from the field and by that time accused persons had fled away and after coming out from the field he went in the field where his wife was lying dead and the said place was at a distance of 6 to 7 laggi from the place where he has concealed himself and in para 5 he has stated that he has not stated to the police that due to fear he went to another village and in para 7 he has stated that in the field there was knee deep water and above the water the paddy field was of 1 ¼ hand whose height from the land was upto chest. In para 9 his attention was drawn towards his previous statement made to the police and the same question was put to the second I.O. P.W.36 in para 24 and he further said in para 10 that he saw Aisa Khatoon and Marni and Chunia being assaulted for 6 to 7 minutes. Similarly his attention has been drawn Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 31/82 towards his previous statement given to the police in para 14 vis-à-vis para 24 of P.W.36 second I.O.). This witness is not reliable as he has made statement after 6-7 days of occurrence under Section 161 of Cr.P.C.
(iv) P.W.5 Md. Nasir has stated in para 3 that his statement before the police was recorded after 6 to 7 days and he further said that it is wrong to say that his statement was recorded on 14.10.92 In para 1 he stated that he concealed himself on the southern side of his house in a paddy field and he saw accused persons assaulting his mother Chunia Khatoon and mother in law Marni Khatoon after being chased by the accused persons. Raja Teli Musafir Hazam were assaulting Chunia and Marni as a result of which his mother and mother in law died.
In para 5 he has stated that for the safety of his life he concealed in paddy field and he came out from the paddy field after one and one and half hours and in para 6 he has stated that he has not lodged any case with regard to the death of his mother and mother in law in the police on the said date and he gave his statement after seven days when the police came in his house. His attention has been drawn towards his previous statement at page 44 of paper book as to whether he has stated to the police that 5 to 6 persons chased his mother and mother in law in paddy field and started assaulting them Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 32/82 and he saw the occurrence by concealing in a southern paddy field. This statement he has given for the first time in court as evident from page 269 of paper book P.W.36 para 25.
(v) P.W.7 Gafur Mian in para 1 page 47 of paper book has stated that Bechan Sah Sogarath Sah, Sanjay Sah and Chhedi Sah were assaulting the wife of Habib and Musafir Hazam Laxman Teli, Laxmi Dhobi were assaulting Chunia Khatoon and wife of Yusuf and this witness identified in court Ram Briksha Sah as Bechan.
(vi) P.W.8 Kasim Mian has stated that Ram Sagar, Raja Teli, Musafir Hazam, Laxmi Dhobi assaulted his mother Julekha and in para 4 page 56 of paper book he has stated that he did not inform to the police for the first time he has giving statement in court and in para 9 he has stated that he can not say that his statement was recorded by the police on 17.10.92 but from the statement of P.W.36 para 26 page 269 it is evident that this witness has given his statement on 16.10.92 and similarly in para 10 his attention has been drawn as to whether he has stated that he concealed in the paddy field and he saw the accused persons assaulting his mother Julekha Khatoon and he identified the accused persons and similarly attention of the I.O. Para 26 page 270 of paper book P.W.36 will go to show that for the first time he has stated those facts in the court.
Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 33/82
(vii) Similarly P.W.10 Ekbal Mian has stated in his examination in Chief that from the paddy field he saw Raja Sah Musafir Sah assaulting Chunia Khatoon Marni Khatoon in the paddy field and in para 3 page 62 of the paper book he has stated that his statement was recorded by the police after 8 to 9 days of the occurrence in which he has disclosed the name of Bechan Sah, Sanjay Sah, Hari Narain as persons assaulting Chunia and Marni and the Investigating Officer P.W.36 in para 26 page 270-271 of paper book has stated about the previous statement.
In para 4 page 63 of paper book he has stated that he concealed in the paddy field at 8.00 A.M. and came out at 1.30 in the noon and the paddy field were upto his height and he was lying in the field in right side
(viii) P.W.11 Taslim Mian at page 69 of paper book has stated that Aisa Khatoon was assaulted by Hari Narain Sah Sogarath Sah, Bechan Sah and Laxmi Dhobi whereas Chunia and Marni were assaulted by Raja Teli, Musafir Ram, Ram Sagar Ram Briksha and he remained concealed for two and two and half hours and for the first time he gave statement to the police after 7 to 8 days of the occurrence, which is also evident from para 27 P.W.36 page
272.
(ix) His attention was drawn towards his previous Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 34/82 statement made to the police in para 12 to 14 and attention of Investigating Officer P.W.36 para 27 read with para 18 of this witness‟s deposition.
39. Mr. Thakur submitted that all the aforesaid witnesses have made their statement after a week or thereafter and even in their version it is evident that they were hiding themselves in chest height paddy crops with knee deep water and as such their account as the minute details as to commission of crimes is unreliable as admittedly there were saving their life by hiding them and they remain out of village for 7 days or more and only thereafter as an after thought and due deliberation named the appellants. Mr. Thakur submitted that almost similar is the statement of other witnesses.
40. The fact that all the witnesses gave their statement to the police after about a week or more than a week of the alleged occurrence and major portion of the allegation they have stated for the first time in court they allegedly stated that one set of accused persons assaulted Aisa Khatoon whereas another set of common accused assaulted Chunia and Marni but from the inquest report as well as from the deposition of the investigating officer P.W.34 it is evident that the dead body of all the three persons were found at three different places in three different field in three different direction such as P.W.34 in para 2 has stated that in Izrahia Bahiyar in Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 35/82 a paddy field of Aziz Mian the dead body of Aisa Khatoon was found whereas in Katahari chaur in a paddy field the dead body of Marni Khatoon was found and south of Sareh of Izaharia in a paddy field of Radha Mohan Sah the dead body of Chunia Khatoon was found para 2 page 178 of paper book
41. Mr. Thakur highlighted that P.W.34 has stated that there was knee deep water in the paddy field.
In para 28 he has stated that he did not find any trampling mark in the paddy field and in para 31 he has stated that there is no mention in the inquest report that the dead body was either wet or there was mud and in para 32 he has stated that till he remained as investigating officer except Amin Mian no other witness was either produced or came before him to give any statement.
42. Mr. Thakur submitted that from the aforesaid facts also it is clear that the statement of witness that Marni Khatoon and Chunia Khatoon were assaulted together by same set of accused is being falsified.
The Doctor who conducted postmortem in cross examination has stated that he did not find that any dead body was in the water nor he found any water in the lungs throat etc. In the present case all the injured namely Julekha Khatoon P.W.25, Saiful Khatoon P.W.27, Md. Hanif P.W.28 and Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 36/82 Abrana Khatoon P.W.29 were tendered by the prosecution and in one case only Saiful has named Laxmi Dhobi whereas in another sessions trial in which he has been examined as P.W.17 and 23 was tendered and has not named any accused.
It is strange that none of the injured witness has stated that who assaulted the deceased although as per prosecution case all injured alongwith deceased were being assaulted in the paddy field and they have not even stated that who assaulted them (injured).
43. Mr. Thakur next submitted that in this case the injured witnesses have not supported the prosecution case as to participation of the appellants and the allegation of assault by the appellants. He referred to the deposition of various injured witnesses.
(i) As per F.I.R. the injured are Abrana Khatoon & Sagira Khatoon but during investigation/trial Saiful Khatoon (P.W.27), Sahnaj (not examined , Jarifan Khatoon (P.W.24), Abrana Khatoon P.W.29 Julekha Khatoon P.W.25 , Julaisha P.W.23 , Md. Hanif P.W.28 , Majodan Mian P.W.26 were shown as injured in the incident. Out of the aforesaid injured witnesses except Saiful Khatoon P.W.27 all other injured witnesses were tendered by the prosecution.
(ii) P.W.23 Julaisha Khatoon was tendered and in cross examination in para 3 page 134 of paper book she has stated that she has given her statement before Daroga Jee on which she has put Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 37/82 her signature.
(iii) P.W.24 Janifan Khatoon was tendered and in cross examination in para 3 at page 135 she has stated that she has gone to Riga, Sitamarhi and Muzaffarpur Hospital for her treatment. She has gone to Riga police station and has given her statement before the officer incharge of Riga police station and has put her signature.
(iv) Next witness is Julekha Khatoon P.W.25 was tendered and her cross examination was declined.
(v) P.W.26 Majidan Mian wife of Yasin Mian has been tendered by the prosecution and in cross examination in para 2 page 137-138 of paper book she has stated that she was treated by Doctor at Riga Hospital, Sitamarhi Hospital and Muzaffarpur Hospital and on the date of occurrence she has gone for treatment and shown the injuries to the Officer incharge and along with her Md. Gani son of Aziz Mian, Shahana Khatoon, Ashu Khatoon, Sattar son of Rahman, Azia Mian, Navi Rasul son of Yusuf Mian were present. It is important to mention here that this is the same Navi Rasul son of Yusuf Mian who is the earlier informant and as per information whose name has been pen through and in his place the name of Habib Rain son o Jumman Rain was written.
(vi) P.W.27 is Saiful Khatoon who is full fledged witness and in para 1 page 139 of paper book has stated that she saw Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 38/82 the occurrence in which there were 400 to 500 accused persons who were armed with Lathi, Bhala, Garasa and she identified Laxmi Dhobi who assaulted her and her child and in para 6 she has stated that for the first time she gave her statement before the police after 9 days of the occurrence and her attention has been drawn in para 6 and 7 page 142-143 of paper book in which she has stated that she told to the police that on the date of occurrence at about 11.00 A.M. she was at her house. She also stated that the accused were 400 to 500 in number who were armed with Lathi Bhala, Garasa. She has also stated that she along with her daughter Sahnaj fled in the paddy field of Sareh. She has also stated that amongst the accused Laxmi Dhobi came and assaulted her child and when she protested she too was assaulted. She has also stated that child was assaulted on the back and hand and Laxmi Dhobi assaulted her on her back Pakhura Head and thigh and she become unconscious and she has also stated that Laxmi Dhobi has assaulted her and her child. The aforesaid attention of the witness was drawn because the Investigating Officer P.W.36 in para 32 page 278 of paper book has stated that Saiful Khatoon has not stated in her statement that the time of occurrence was 11.00 A.M. and she was at her house but again volunteers only time was not disclosed. She has not disclosed the number of the accused nor she disclosed which of the accused were armed with which weapon. She has also not stated Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 39/82 that she alongwith her child Sahnaj fled in the paddy field in Sareh and amongst the accused Laxmi Dhobi assaulted her child and when she protested she was also assaulted and child was assaulted on back and hand causing fracture injury to the child and she was also assaulted by Laxmi Dhobi on her back Pakhura as a result of which she become unconscious.
44. In the aforesaid backdrop of the facts and circumstances, Mr. Thakur submitted that from the aforesaid facts it is clear that for the first time during trial this witness Saiful Khatoon has named Laxmi Dhobi in the court and she has not stated the same during investigation.
The injured witness Md. Hanif, P.W.28 was tendered by the prosecution and thus from the aforesaid facts it is clear that none of the injured prosecution witnesses during investigation has named any of the accused.
P.W.29 Abrana Khatoon has also been tendered.
P.W.30 Hakim Mian has also been tendered by the prosecution. P.W.31 Mazlum Mohammad was also tendered by the prosecution and in cross examination he has stated that for this occurrence he has filed Complaint in the court of Chief Judicial Magistrate, Sitamarhi on 28.10.92 being Complaint Case No.C1/507 of 1992 and he further said that he has no knowledge how many persons have been made Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 40/82 accused in the said complaint. He further stated that the accused persons who are accused in the present case are not accused in the complaint case Page 148 and 149 of paper book .
45. Mr. Thakur submitted that as per prosecution case, accused persons also assaulted Abrana Khatoon, P.W.29, Sagira Khatoon not examined and others, but no one is being named for causing injury to the injured.
46. P.W.22 Habib Rian, the informant has stated that Hari Narain Sah, Bechan Sah, armed with lathi, Sogarath Sah, Sanjay Sah armed with lathi, Ash Narain Sah armed with Lathi and Chhedi Sah assaulted Aisa Khatoon.
Raja Teli armed with Farsa, Musafir Hajam armed with Farsa, son of Musafir namely Nagendra, Laxmi Dhobi with lathi, Daroga Sah, Ram Briksha Sah, Ram Pratap Mahto, Ram Sagar were assaulting Marni Khatoon and Chunia Khatoon and thereafter accused persons without name assaulted Abrana Khatoon, Md. Hanif, Mazidan Khatoon, Julekha Khatoon, Julesha Khatoon, Saiful Khatoon, Sahnaz Khatoon, Jalifan Khatoon and in para 3 page 121 of paper book has identified Hari Narain Sah, Bechan Sah, Sogarath Sah, Daroga Sah, Ash Narain Sah, Ram Pratap, Bhim Sah @ Ram Briksha, Jai Narain, Sanjay, Ram Sagar, Raja Teli, Laxmi Dhobi and claimed to identify Chhedi Sah, Musafir Hajam and Nagendra. Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 41/82 This witness in para 6, page 123 of paper book has stated that he gave information of the occurrence to Daroga N.D. Khan P.W.34 of Riga police station who wrote his fardbeyan and on the said fardbeyan he put his signature and he denied the suggestion that this is not a fact that on a paper which was prepared from before he put his signature on the request of the police.
In para 7 page 124 of paper book this witness has stated that it is not a fact that on 4.11.92 he filed a protest petition in the court in which he has given the time of occurrence at 9.00 A.M. on 7.10.92 and it is also wrong to say that on protest petition he put his signature but this witness identified his signature on the protest petition which was marked as Ext.A. Similarly this witness identified his signature on Vakalatnama A/1 . He further said that he has not engaged Sri Narendra Prasad Sinha, Md. Salauddin and Sri Mohammad as Advocates. He has also not appointed Md. Mustafa as his advocate clerk and he further said that it is wrong to say that he filed protest petition naming 31 accused persons.
In para 9 his attention has been drawn towards the statement made before the police as to whether Jai Narain making announcement through microphone and about 500 accused came and told to set fire the houses of Rasid and he become frightened and fled away towards southern side in paddy field and has stated that from Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 42/82 the paddy field he saw Aisa, Chunia and Marni fleeing southern side of the paddy field and also stated that one group assaulted Aisa Khatoon by surrounding her with Farsa and has also stated that after assaulting Aisa, Bechan Sah with Farsa, Sanjay, Ash Narain with lathi were seen assaulting and has also stated that another group surrounded Chunia and Marni and has assaulted them with Lathi Bhala and Farsa and also stated that Raja Teli and Musafir Hajam were armed with Farsa and lathi and Dhobi was armed with lathi and he has also named Nagendra as person who assaulted Chunia and Marni in his fardbeyan. He further said that he has not mentioned the name of Daroga, Ram Briksh, Ram Pratap and Ram Sagar and he further said that he has disclosed the name of Md. Hanif, Majidan, Julekha, Saiful, Julefan, Sahnaz as witnesses amongst the injured to the officer incharge.
This witness at page 130 of paper book has stated that when he came out from the field Sattar, Ahmad, Rasid were present and he has talked with them and he saw other persons also and Daroga has also reached page 131 of paper book .
47. Mr. Thakur thereafter referred to the deposition of P.W.18 Johra Khatoon, who has stated that in village Izarahia in Mahuawa tol there are altogether 8 houses of muslim and all 8 houses were set on fire and apart from her house the houses of Salim, Tahir Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 43/82 etc were burnt and accused persons were 500 in number who were armed with Bhala Garasa Lathi and in para 3 she has stated that she has seen the accused and had identified them and the accused who are present in the court were amongst the accused. for the first time she has identified the accused who are present in court and no T.I.P. was conducted nor she has named any accused and thus in view of the judgment of the Hon‟ble Supreme Court in the case of Prakash Vrs. State of Karnataka as reported in 2014 Supreme 460, her statement that the accused persons in dock were one amongst the accused, can not be believed .
In para 4 she has stated that when accused came she become frightened and she fled away from her house and concealed in a sugar cane field and when accused left the place she came out. In para 5 she has stated that she has given her statement to the police and in the said statement she has not stated that she has not identified to any accused. In para 6 she has stated that after the occurrence was over Pramukh Saheb of Andhari had arrived and he assembled the people and after complete assembly the writing work was done
48. Mr. Thakur submitted that from the aforesaid facts it is clear that this witness at the time of alleged occurrence has concealed herself in the sugar cane field and she came out when Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 44/82 accused persons left the place and when Pramukh of Andhari arrived and assembled some persons, the process of writing of case etc started. This witness for the first time has made statement before the police after 7 days of the occurrence.
49. Mr. Thakur thereafter referred to deposition of P.W.1 Rahman Mian, who at Page 13 of paper book has stated that he saw Jai Narain, Sogarth Sah, Ram Pratap Mahto, who set the fire to his house and house of others.
Hari Narain, Sogarath Sah, Bechan Sah, Ash Narain Sah, Sanjay Sah, Chhedi Sah assaulted Aisa Khatoon deceased with lathi Farsa.
In another group he identified Raja Teli and Laxmi Dhobi who were assaulting Chunia Khatoon and Marni Khatoon with lathi farsa etc page 14 of paper book .
In para 2 page 15 of paper book he has stated that amongst the riotist to whom he had identified are Hari Narain Sah, Sogarath Sah, Bechan Sah, Chhedi Sah, Aash Narain Sah, Sanjay Sah, Daroga Sah. They all are present in court to whom he identified.
This witness in para 4 page 16 of paper book has stated that he gave his statement to the police after 7 days in the village. He said that in Purvaria tola neither he saw any riot nor he Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 45/82 heard about the same. In para 14 page 21 of paper book this witness has stated that two persons with Garasa and four persons with lathi assaulted Chunia for 3 to 4 minutes. In para 23 page 265 of paper book attention of P.W. 36 has been drawn towards the previous statement made by this witness vis-à-vis Para 18 page 22 of deposition of the witness.
50. Mr. Thakur submitted that from the aforesaid examination in chief of P.W.1 it is evident that he had not identified either Raja Teli or Laxmi Dhobi amongst the accused member of the persons participated in riot .
51. Mr. Thakur then submitted that P.W.2 Nayeem Mian in para 1 page 24 of paper book has stated that Jai Narain Sah and Rabindra Sah @ Bhim Sah were making announcement through micro phone loudspeaker and he identified Ram Pratap Mahto, Sogarath Ram Jai Narain Sah, Jagarnath, Dasrath Sah as persons who set the houses on fire.
He saw Hari Narain Sah, Jugal Sah, Chhedi Sah, Ash Narain Sah, Sanjay Sah, Bechan Sah were assaulting Aisa Khaton with bhala, farsa, lathi. Hari Narain was armed with bhala, Bechan was armed with farsa and rest were armed with lathi.
In the meantime Chunia Khatoon and Marni Khatoon were seen in the paddy field and Raja Teli, Musafir Hajam, Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 46/82 Laxmi Dhobi, Daroga Sah, Ram Briksha Sah were assaulting them with farsa lathi. Raja Teli and Musafir Hajam were armed with Farsa and rest were armed with lathi.
Member of mob riotist also assaulted Md. Hanif P.W.28 , Abrana Khatoon P.W.29 , Julekha P.W.25 , Julesa Khatoon P.W.23 page 27 of paper book .
This witness in para 3 page 28 has stated that for the first time he gave his statement to police after 6-7 days of the occurrence and in para 4 he has stated that Chunia Khatoon was his wife and Marni was his Samdhin and he has not given any information to the police station on his own and he heard the hulla which was coming out from the northern side of the village an he become frightened and at a distance of 100 gadge he concealed himself in a paddy field for about 2.00/2.50 hours and when peace prevailed he came out from the field and by that time all accused has fled away and thereafter he went to the place where his wife was lying dead it was at a distance of 6-7 laggi from the place where he concealed.
In Para 5 he further stated that he has not stated to the police that due to fear he fed away in village. In para 7 he has stated that there was knee deep water in the agricultural field and the paddy plant was about 1 and 1 ¼ hand above the water and upto chest Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 47/82 level from the land. In para 9 and 14 his attention has been drawn towards previous statement made before the police and similarly from Investigating Officer P.W.36 Para 24 page 268 of paper book this question were put.
52. Mr. Thakur thereafter submitted that P.W.5 is Md. Naseer. He saw 400 to 500 people who were raising hulla. He saw Raja Teli, Musafir Hajam assaulting his mother Chunia Khatoon and mother in law Marni Khatoon by farsa. Laxmi Dhobi assaulted them with Lathi.
In Para-2 page 38 of paper book, he identified Laxmi Dhobi and Daroga Sah in court and claimed to identify Musafir Hajam.
In Para 3 he has stated that after 6-7 days of the occurrence he gave statement before the police and it is wrong to say that for the first time he gave statement to the police on 17.10.92 see para 25 page 268, P.W.36 who stated that this witness gave his statement on 16.10.92 and in para 4 page 40 this witness has stated that for his own safety he concealed himself in a paddy field and he came out from the paddy field after one and one and half hours and in para 5 he has stated that neither any accused came near him nor he went near accused and when he came out from the paddy field accused persons has left the place.
Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 48/82 In para 6 he has stated that on the date of occurrence he has not given information to the police about death of his mothr and mother in law and after 7 days of police came to his house he gave his statement.
53. Mr. Thakur thereafter drawn the attention of the Court to the deposition of P.W.7 Gafar Mian, who claim to have seen Bechan Sah with Garasa, Sogarath with Lathi, Sanjay Sah with lathi, Chhedi Sah with lathi assaulting wife of Habib Aisa Khatoon .
Musafir Hajam, Laxmi Teli, Laxmi Dhobi were assaulted Chunia Khatoon and wife of Yusuf Chunia and Marni .
Para-2 Page 48 of paper book he identified accused Ram Briksha Sah and Bechan Sah but again said that Bechan is not present in the court and claimed to identify Sogarath, Sanjay and Laxmi Dhobi, Chhedi and Musafir and again said that Bechan Sah is present in court and he failed to identify other accused persons but identified Raja Teli.
In Para 3 page 49 of paper book he stated that his house is not situated in Mahuawa tola and his tola is eastern to the tola of the informant. In para 5 page 50 of paper book he stated that he concealed himself in paddy field for about two hours and till date he has not met the police and in para 10 page 52 of paper book he has stated that he called informant Habib for deposing the case today. Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 49/82
54. Mr. Thakur next contended that P.W.8 is Kasim Mian. At page 54 of paper book has stated that his mother Julekha Khatoon was assaulted by Ram Sagar, Raja Teli, Musafir Hajam, Laxmi Dhobi out of whom Musafir and Raja Teli were armed with farsa and he identified Ram Sagar, Raja Teli Laxmi Dhobi in court and claimed to identify Musafir Hajam and has not identified other accused.
In para 4 page 66 of paper book this witness has stated that after hearing hulla he become frightened and due to fear he went in the paddy field and remained concealed there for about two hours and he did not went to police station to inform and he went to sasural and for the first time he is giving the statement in court. In para 8 at page 57 he has stated that the place where he was sitting, on all side there is agricultural field where he remained concealed for about 2-3 hours. In para 9 he has stated that he gave statement to the police after 6 to 7 days and it is a fact that he gave his statement on 17.10.92. His attention has been drawn in para 10 page 58 of paper book as to whether he has stated that the accused persons assaulted his mother Julekha Khatoon and from paddy field he identified the accused persons and to that extent the statement of I.O. P.W.36 para 26 page 270 of paper book n which he has stated that this witness has not stated before him that he saw from paddy field and saw accused Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 50/82 setting his house on fire and also saw accused who assaulted his mother and I.O. further stated that this witness has not disclosed the name of any accused.
55. Mr. Thakur referred to the deposition of P.W.10 Ekbal Husain page 61 of paper book. He saw Raja Sah, Musafir Thakur, Laxmi Dhobi, Bechan Sah, Hari Narain,Ram Sagar, Sanjay who were assaulting Chunia and Marni Khatoon in paddy field and in para 2 at page 62 of paper book he identified Bechan Sah, Sanjay, Hari Narain Sah, Daroga Sah, Laxmi Dhobi and stated that Musafir is not present.
In para 3 page 62 of paper book this witness has stated that he gave statement before the police after 8 to 9 days and in the said statement he has named Bechan Sah, Sanjay, Hari Narain as a person who assaulted Chunia and Marni. In para 26 page 270 of P.W.36 I.O.) it is stated that this witness has not stated before him the name of Bechan, Sanjay and Hari Narain as accused who assaulted Marni and Chunia and this witness has also not stated that all accused assaulted the aforesaid two deceased in paddy field and this witness also stated that this witness Ekbal Hussain has not stated beore him that he saw the occurrence from paddy field and from that place he identified the accused.
In para 4 at page 63 of paper book he has stated that Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 51/82 he went to conceal himself in paddy field at 8.00 A.M. and he came out at 1.30 in the noon and when he concealed from that place she saw the accused persons. At page 64 this witness stated that he was lying in the field of right side and in para 7 he has stated that the field in which he has concealed is at a distance of 30 to 35 lagga south from his tola.
56. Mr. Thakur submitted that P.W.11- Taslim Mian at Page 69 of paper book stated that Hari Narain Sah with Bhala, Bechan Sah with Farsa, Laxmi Dhobi with lathi assaulted Aisa Khatoon. Raja Teli with Bhala assaulted Chunia Khatoon and Marni Khatoon alongwith Musafir, Ram Sagar, Ram Briksha and in para 2 he identified Hari Narain Sah, Laxmi Dhobi, Bechan Sah, Ram Sagar Sah.
In para 5 page 71 of paper book this witness has stated that he remained concealed for two and two and half hours and when he came out accused persons had already left and in para 6 page 71-72 of paper book he has stated that eh heard the hula coming out from eastern side of the tola where Mandar village is situated and on hearing hulla he and others went and concealed in paddy field and for the first time he gave statement before the police after 7 to 8 days of the occurrence and in para 12 his attention has been drawn as to whether he has stated to the police that at the time of occurrence he Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 52/82 was at his house. Page 272 para 27 P.W.36 has stated that this witness has not stated before him that on the date of occurrence he was at his house. Similarly in para 14 his attention has been drawn as to whether he has stated before the police that Hari Narain came on eastern side and set the house on fire. and has also stated that Aisa Khatoon, Chunia , Marni flead away towards Sarah where accused persons followed them and has disclosed the name of seven persons who assaulted Aisha and has also stated to the police that Raja Teli, assaulted Chunia by Bhala. Page 273-274 of paper book para 27 of P.W.36 it is evident that this witness has stated that he has not disclosed the aforesaid facts. Again in para 18 attention of this witness has been drawn as to whether he has named Ram Sagar Sah as an accused assaulting Chunia and Marni and in page 274 of statement of P.W.36 it is evident that this witness has not named Ram Sagar Sah who assaulted Chunia and Marni.
57. Mr. Thakur thereafter referred to the deposition of P.W.12 Ahmad Mian, Page 78-79 has stated that he identified Daroga Sah and Bhim Sah who set the houses on fire and he identified those two accused in court. This withess in para 2 has stated that he gave statement to the police after 7 days of the occurrence and he has stated to the police that he identified Daroga Sah as one amongst accused P.W.36 para 28 page 274 of paper book and in para 8 he Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 53/82 sated that after one week on the seizure list his signature was taken by Darogajee.
58. Mr. Thakur submitted that P.W.14 Abdul Rasid has not stated that he identified any accused either in setting the house on fire or any assault but in para-2 he named Jai Narain and Bhim Sah who were present in court.
59. Similarly P.W.15 Sattar has not named any of the accused and he has simply stated that he saw the dead body of Aisa Khatoon in the paddy field of Aziz Mian and her mouth was inside the mud and dead body of Chunia Khatoon was lying in the paddy field of Radha Mohan and the dead body of Marni Khatoon in the paddy field situated at Katahari chaur and he is witness of inquest report. This witness has neither named any accused nor identified any accused in court and in para 5 he stated that on 14.10.1992 he gave his statement to the police.
60. Mr. Thakur thereafter referred to the deposition of P.W.19 Mahmudan Khatoon. She in para 2 page 107 has stated that she identified Hari Narain Sah armed with Bhala, Raja Teli armed with Farsa, Sanjay, Daroga, Ram Briksha, Sogarath. In para 6 page 107 has stated that Amin Mian, who is of her tola, has filed case against accused persons in which her name was shown as Mohamdan riot supporting witness and she do not know whether the Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 54/82 accused persons are accused in the said case or not and in para 7 she has stated that she concealed herself in sugar cane field for about two hours and when she came out accused has fled away. In para 10 page 111 her attention has been drawn as to whether she has stated to the police that after the occurrence she went to the house of her daughter and returned after 8 days (P.W.36 para 31 page 278), I.O. has stated that this witness has not disclosed that she has gone to the house of her daughter and returned after 8 days and are giving their statement nor she disclosed the name of persons whose houses was set on fire.
This witness in para 12 page 112 has stated that when she returned from the house of her daughter in village there was meeting and thereafter the case was lodged
61. Mr. Thakur has drawn the attentionof the Court to the deposition of P.W.33 Amin Mian, who at page 166 para-1 has stated that amongst the accused he identified Hari Narain Sah, Raja Teli, Laxmi Dhobi and in para 3 at page 167 he has stated that after 20 days of the occurrence he filed a case in the court and in para 5 page 168 he said that he learnt the name of the aforesaid persons after 20 days. In para 6 page 169 this witness has stated that on 18.10.1992 he filed complaint case in the court of Chief Judicial Magistrate with regard to the present occurrence but he do not remember how many persons were made accused in the said complaint and he further said Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 55/82 that after making consultation from caste people he gave the name and in the said case he gave the time of occurrence as 9.45 on 7.10.92 and in para 7 page 170 he has stated that in the complaint case he has not made Hari Narain Sah, Raja Teli and Laxman Dhobi as an accused and in the said case he has not written that due to fear he fled away in Sareh in paddy field situated on the southern western side and has also not stated that from paddy field he saw 10 to 15 accused chasing and assaulting the people and he do not remember as to whether he has stated in the said case that accused persons were armed with Lathi Bhala and Garasa and in complaint petition he has written that he was not knowing the name of accused persons and he learnt their name subsequently and accordingly case is being lodged.
In para 8 page 172 he has stated that he concealed himself in paddy field from 11.0 A.M. to 4.00 P.M. by concealing himself and in para 9 page 173 he has stated that he gave his statement after 8 to 9 days of the occurrence to the police and his attention has been drawn in para 10 page 173-174 of the brief as to whether he has stated to the police that from the paddy field he saw 10 to 15 accused were chasing the lady and the person who assaulted to whom he identified Hari Narain Sah, Raja Teli and Laxmi Dhobi but from para 32 page 206 of P.W.34 as well as P.W.36 para 34 page 280 in which the police officer stated that he has not named Hari Narain Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 56/82 Sah, Raja Teli and Laxmi Dhobi and has not stated that he saw any accused from the paddy field.
62. Mr. Thakur on the basis of major contradictions in the version of the witnesses submitted that in this case no witness has actually seen the assailants and the rioters and as a matter of after thought and due deliberation implicated the appellants in this case and in view of the variance in the account of time, place and manner of occurrence conviction of the appellants out of 500 alleged rioters is not safe, particularly, when the very fardbeyan and formal FIR in this case is doubtful, as improved version of the case and not the first version and all the witnesses have made their statements only after 7 to 10 days of the occurrence for the frist time before police and major case was built in the trial. Mr. Thakur referred to the judgment in Sessions Trial No. 4 of 1994 and Sessions Trial No. 159 of 1995 and submitted that the learned 2nd Additional Sessions Judge has convicted the appellants of Cr. Appeal (DB) No. 343 of 1997 and Cr. Appeal (DB) No. 347 of 1997 and committed the same illegality committed by the 3rd Additional Sessions Judge in Sessions Trial No. 226 of 1992, although the trial Court in those Sessions Trial notice the delay in sending the F.I.R. and discripancies in the version of witnesses as to manner of occurrence and place of occurrence and convicted the appellant Chhedi Sah for murder of Aisha Khatoon and Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 57/82 Musafir Hajam guilty of murder of Chunia and Marni and as such convicted them under Section 302 of the Indian Penal Code.Thus, the conviction of appellants of Cr. Appeal (DB) No. 343 of 1997 and Cr. Appeal (DB) No. 347 of 1997 is also unsustainable in the facts of this case.
63. Ms. S.B. Verma, learned APP appearing on behalf of the State has submitted that the trial court in the peculiar facts and circumstance has considered the case of the prosecution and defence dispassionately and after analyzing and scrutinizing the evidence convicted the appellants, who have found to have participated in the commission of heinous crime of arson loot and death of three innocent persons in furtherance of their evil design of spreading communal right and creating communal tension.
64. She submitted that the discrepancies pointed out by the appellants are minor in nature and does not create reasonable doubt as to the innocence of these appellants. She submitted that all the submissions advanced by the appellants as to the discrepancies in the deposition of witnesses on the point of time, place of occurrence and the manner of commission of crime was taken note by the trial court and the trial court has answered all such situation. She submitted that the delay aspect in the matter of dispatch of F.I.R. and its receipt Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 58/82 by the court of CJM was also taken note by the trial court and the trial court has answered all such situation and as such she submitted that there is no infirmity in the finding recorded by the trial court and the judgment of the trial court is well founded and well considered and need not be interfered.
65. We have heard the counsel appearing on behalf of the appellants and the counsel appearing on behalf of the State. We have also gone through the deposition of the witnesses and the discussion made by the trial court for convicting the appellants. The occurrence of communal riot leading to loss of life, destruction of property and putting of the residential house on fire is not in dispute. The challenging task in the instant case is identification of the miscreants out of 500 rioters involved in the communal riot. On the appreciation of the entire facts and circumstance, we find that in the instant case, there is reasonable doubt as to the implication of the assailants after due deliberation as an afterthought for the reasons (a) that the fardbeyan dated 07.10.1992 mentions that it was recorded at 3.00 P.M. on 07.10.1992. The fardbeyan was recorded on the statement of the informant Habib Rain, who alleged that the crime was committed at 11.00 A.M. The formal F.I.R. of this case records the time of recording fardbeyan is 2.00 P.M. on 07.10.1992. In the said F.I.R. there are certain interpolation, correction and discrepancy. Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 59/82 Firstly in the formal F.I.R. name of the informant was shown as Navi Rasul Ansari, son of Md. Yusuf Mian, which was over scored and name of Habib Ansari was inserted. In the fardbeyan of Habib Rain, the time of recording the fardbeyan was 3.00 P.M. and the time of occurrence is 11.00 A.M. In the formal F.I.R., the time of occurrence is 2.00 P.M., time of F.I.R. is 2.30 P.M., time of Fardbeyan is 15 hours. The aforesaid discrepancy in the formal F.I.R. as to the time of occurrence, name of the informant, time of F.I.R., time of fardbeyan are not consistent and supports the case of the appellants as to the improvement in the prosecution case after due deliberation. In the formal F.I.R., the date of dispatch is shown as 08.10.1992, but the same was seen by the C.J.M. on 11.10.1992, which also creates reasonable doubts and supports the case of the appellants. On scrutiny of the deposition of the informant it appears that the informant has filed a protest petition in this case, wherein he has mentioned that the occurrence in fact took place at 9.00 A.M. This protest petition creates further doubt about the time of occurrence, not only the informant, but the other witnesses, namely, P.W. 33, has stated in his deposition in para 6 that on 28.10.1992 he has filed a case before the C.J.M., Sitamarhi and in the said case he has mentioned the time of occurrence as 9.45 A.M. on 07.10.1992, therefore, from the deposition of the informant, fardbeyan and formal F.I.R. and the Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 60/82 protest petition of the informant and P.W. 33, there are different time as to the commission of crime. As per protest petition of the informant and P.W. 33, who are said to be the eye witness in the case, the time of commission of offence was 9.00 or 9.45 A.M. whereas in the fardbeyan the time of occurrence has shown as 11.00 A.M. whereas in the formal F.I.R., the time of occurrence is 2.00 P.M. this shows that the witnesses are at variance as to the commission of the crime and the discrepancy is not only in their version, but in recording of the fardbeyan and in the Formal F.I.R.
66. In fact the issue is to delay despatch of the F.I.R. and receipt in the court of C.J.M. was noticed by the 2nd Additional Sessions Judge in S.T. No. 3 of 1994 in para. 20 and 21, however, the Additional Sessions Judge despite noticing the dealy and doubting the F.I.R. is ante-dating convicted the accused on the ground that there was no enmity shown and as such the delay was inconsequential. Para. 20 and 21 of the Judgment of S.T. No. 3 of 1994 are quoted herein below:
"20. But the prosecution documents the fardbayan and the F.I.R. appear to be a suspect documents. The perusal of Ext. 3, the carbon of F.I.R. indicates that it was drawn up on 7.10.92 at 21.30 hours on the basis of the fardbayan of Habib Rain P.W. 26. P.W. Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 61/82 29 S.I Nizamudaullah khan has stated in his evidence that this fardbeyan of Habib Rain which forms the basis of Ext. 4, the F.I.R. was written by literate Constable Ram Laulin Rai (P.W. 29 para 1) at village-Israhiya. Heading of the fardbayan which is in English, indicates that it was recorded by S.I. Nizamudaullah Khan and not by the above said Ram Laulin Rai. This , in my opinion, is not material because in view of section 154 of the Cr. P.C. , the officer in charge of a Police Station can direct any subordinate police officer posted under him to write down the information report. But what is a material is that this fardbayan shows that it was recorded at village-Israhiya which indicates that when the fardbayan was being recorded at village Israhiya, literate constable Ram Laulin Rai posted in Riga Police Station on that particular day i.e., on 7.10.1992 was accompany P.W. 29 S.I. Nizamudaullah Khan and was at village Israhiya. But the evidence of P.W. 29 in cross- examination in para 15 which is in respect of station - diary entries No.119 to 141 dated 7.10.92 clearly indicates that not even for a second the above said literate constable Ram Laulin Rai was away from the police station. The Station- diary entries No. 119 to 141 dated 7.10.92 Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 62/82 have been marked Ext. A and the first entry i.e , S.D. Entry No. 119 was written on 7.10.92 at 8 A.M. and the last entry i.e. S.D. entry No. 141 was written at 11.45 hours and these were all written by the above said Ram Laulin Rai. This is amply indicated by para 15 of P.W. 29 and from the perusal of Est. A, the above entries in the station-diary, dated 7.10.92. Not only that , the evidence of P.W. 29 in para 15 further indicates that the above said Ram Laulin Rai remained for the whole day and night on 7.10.92 at the police station itself and there was no entry in the station diary that he left for any place or he was deputed to go to any other place. This makes the claim of the prosecution doubtful that the fardbayan was recorded on 7.10.92 at village- Israhiya extremely doubtful.
21. Further I find that Ext. 4 the carbon copy of F.I.R. indicated Nabi Rasul S/o Md. Yusuf Mian as the initial informant. P.W. 29 has stated that the above named has been (not visible) through and just below it , the name of the present informant Habib Rain has been written (P.W. 29 para 18). He further states in the same para 18 that he sighned Est. 4 , the F.I.R. only after having compared the facts of Fardbayan and the entries of Ext. 4. The time of occurrence in the fardbeyan has been given Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 63/82 at about 11 A.M. while on the F.I.R. Ext. 4 it is mentioned at about 2 P.M. U/S 157 Cr. P.C. the F.I.R has to be sent to the nearest Magistrate forthwith. In 1994 S.C.C. (Cri.) 1551 Arjun Marik Versus State of Bihar, their Lordships of the Supreme Court explaining the Law on section 157 Cr. P.C. held that the forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the work forthwith occurring in section 157 Cr. P.C. which means promptly and without any undue delay. The purpose and object is very obvious which is spelt out form the combined reading of section 157 and 159 Cr. P.C. It has the dual purpose, firstly, to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberation and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation.
In the present case, Ext.4 indicates that it was dispatched from the police station concern on 8.10.92 but from the perusal of the photocopy of the original F.I.R. received by the C.J.M. which is on the record indicated that this F.I.R. was first produced Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 64/82 before the C.J.M. on 11.10.92. To explain this ambiguity , Shri N.P. Sinha, the learned special prosecutor has placed reliance on 1993 Cr. L.J. 1857 Paresh Kalyandas Bhavsar Versus Sadiq Yakubbhai and it has been submitted before me that there was large scale violence in the district of Sitamarhi and different villages of Riga Police station and the poice force must have been engaged in controlling the violence and if the report reached the Magistrate even after a few days later, it does not cast any doubt on the truthfulness of the document. This contention of the leaned special Prosecutor does not appear acceptable that there was a shortage of police force as they were engaged in controlling the large scale violence but the police force was sufficient, is indicated by the evidence of P.W. 29 S.I. Nizamuddualah Khan who has stated in para 9 that he sent the three dead bodies with the dead body chalan to the hospital for postmortem examination through chaukidar and one costable. The chaukidar was ch.4/12 Nandan Rout and the constable was Const. Satya Narain Singh. The prosecution Ext. 3 to 3/2 inquest report indicate that they reached the hospital on 8.10.92 and on that basis, the post Mortem was held by P.W. 20 Dr .M.M. Thakur and he Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 65/82 prepared the post-mortam reports Exts. 1 to ½ on 8.10.92 itself. If the constable and chaukidar were there to carry the dead body up to Sitamarhi and if the F.I.R. was ready. Then there was no reason why they should not have been entrusted to carry the copy of the F.I.R. meant to be presented before the Magistrate. This is one prosecution lapse which has not satisfactorily been explained by the prosecution and the judgment relied upon by the leaned special prosecutor does not seem to apply in the present facts."
67. In the instant case, we have also noticed that the informant is very candid on the point that he has not gone to the police station or not sent anyone to lodge F.I.R. The investigating officer in his deposition has accepted that the fardbeyan was recorded at the place of occurrence. The fardbeyan refers that the same was recorded by Mr. N.D. Khan, the officer-in-charge of Riga P.S., but in fact the fardbeyan is in the hand writing of one R. L. Rai (Ram Lolin Rai), the writer of the police station Riga. The investigating officer of the case has admitted in his deposition that the fardbeyan was recorded in the hand writing of Munsi Ram Lolit Rai, at the place of occurrence and Habib Rain has signed on the same, but the investigating officer has admitted in his deposition that R. L. Rai has not gone to the place of occurrence and he remained at the police Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 66/82 station throughout. If the fardbeyan was recorded at the place of occurrence and Mr. R. L. Rai remained at the police station and has not accompanied the investigating officer to the place of occurrence, then it is impossible that R.L. Rai had gone to the place of occurrence and has recorded the fardbeyan at the place of occurrence. We also find that in the formal F.I.R. earlier the name of the informant was mentioned as Nabi Rasul Ansari, but after cutting his name, the name of the informant Habib Rain was inserted. This makes the case of the appellants more acceptable as to improvement of the prosecution after due deliberation. The investigating officer has admitted the discrepancy in the fardbeyan and the formal F.I.R. The investigating officer in para 21 of his deposition has stated that the fardbeyan was recorded by R. L. Rai, but the same is not mentioned in the case diary. He stated the fact that the fardbeyan was written by him mention in the fardbeyan was correct then he clarified that it was drawn at his dictate. He admitted in his deposition that Chaukidar of the village Izaria has reported that in the village there is loss of life and arson on that basis he has entered station diary entry no. 25 dated 07.10.1992. In the instant case, except the informant and Amin Mian (P.W. 33) no witness was available on 07.10.1992. In the instant case, the witnesses, who deposed on behalf of the prosecution, have turned up only after 7 to 10 days of the occurrence for recording statement Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 67/82 before the policeunder Section 161 of Cr.P.C.
68. We also find from the scrutiny of the evidence of the witnesses that they have given conflicting statement and account on the manner of commission of the crime. In this case, the injured witnesses have not named any of the appellants as assailants, except one of the injured, who only mentioned about the participation of Laxmi Dhobi as assailant. Therefore, when the injured witnesses have not named the appellants except Laxmi Dhobi, it cannot be safely concluded that these appellants have actually participated in the crime and the prosecution has rightly identified them in the commission of the crime.
69. In this case different witnesses have given different account as to the assault on the deceased. So far as assault by Garasa to Aisa Khatoon is cocnerned, we find variance in the statement, as per F.I.R, as per P.W.1, P.W.2, P.W.7, P.W.11 and P.W.22, which reads as follows:
As per F.I.R. (1) Hari Narain Sah (2) Sogarath Sah (3) Bechan San and (4) Chhedi Sah assaulted the deceased Aisha Khatoon with lathi, whereas P.W.1 Rahman Mian has stated that accused, namely, (1) Hari Narain, (2) Sogarath Sah (3) Bechan Sah (4) Ash Narain Sah, (5) Sanjay Sah, (6) Chhedi Sah assaulted the Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 68/82 deceased Aisha Khatoon with lathi and farsa. P.W. 2 Nayeem Mian has stated that accused, namely, (1) Hari Narain Sah, (2) Sogarath Sah (3) Chhedi Sah (4) Ash Narain Sah, (5) Sanjay Sah, (6) Bechan Sah assaulted the deceased Aisha Khatoon with Bhala, Farsa and Lathi.
P.W. 7 Gaffar Mian has stated that the accused, namely, (1) Bechan (Garasa), (2) Sogarath (Lathi), (3) Sanjay (Lathi), (4) Chhedi Sah the deceased Aisha Khatoon with Lathi. P.W. 11 Tasleem Mian has stated that the accused, namely, (1) Hari Narain (Bhala), (2) Bechan (Farsa), (3) Laxmi Dhobi assaulted the deceased Aisha Khatoon with Lathi. P.W. 22 Md. Habib Mian has stated that the accused persons, namely, (1) Hari Narain Sah (2) Bechan Sah (Lathi) (3) Sogarath (Lathi) (4) Sanjay Sah (Lathi), (5) Ash Narain Sah assaulted the deceased Aisha Khatoon with Lathi.
As per F.I.R. (1) Raja Teli ( 2) Musafir Hajam, (3) elder son of Musafir, (4) Babulal Rai, and (5) Laxmi Dhobi assaulted the deceased Chunia Khatoon & Marni Khatoon with Garasa, whereas P.W.1 Rahman Mian has stated that accused, namely, (1) Raja Teli (2) Laxmi Dhobi assaulted the deceased Chunia Khatoon & Marni Khatoon with lathi and Farsa. P.W.-2 Nayeem Mian has stated that the accused persons, namely, (1) Raja Teli, (2) Musafir, (3) Laxmi Dhobi, (4) Daroga Sah, and (5) Ram Briksha Sah assaulted the deceased Chunia Khatoon & Marni Khatoon with Lathi and Farsa. Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 69/82 P.W. 5 Md. Naseer stated that the accused persons, namely, (1) Raja Teli , (2) Musafir Hajam, (3) Laxmi Dhobi assaulted the deceased Chunia Khatoon & Marni Khatoon with Farsa, Laxmi with Lathi. P.W. 7 Gaffar Mian has stated that the accused persons, namely, (1) Musafir Hajam (2) Laxman Teli, (3) Laxmi Dhobi assaulted the deceased (not said about any weapon). P.W. 10 Eqbal Hussain has stated that the accused persons, namely, (1) Raja Sah, (2) Musafir Thakur, (3) Laxmi Dhobi (4) Bechan Sah, (5) Hari Narain (6) Ram Sagar (7) Sanjay assaulted the deceased Chunia Khatoon and Marni Khatoon (not stated about any weapon). P.W. 11 Tasleem Mian has stated that the accused persons, namely, (1) Raja Teli (Bhala), (2) Musafir (3) Ram Sagar (4) Ram Briksha also assaulted the deceased. P.W. 22 Md. Habib Mian has stated that the accused persons, namely, (1) Raja Teli (Farsa), (2) Musafir Hajam (Farsa), (3) son of Musafir Nagendra (4) Laxmi Dhobi (Lathi), (5) Daroga Sah (6) Ram Briksha Sah (7) Ram Pratap Mahto (8) Ram Sagar assaulted the deceased.
70. It is interesting to note that out of 39 witnesses cited on behalf of the prosecution, 17 witnesses have been tendered in Sessions Trial No. 226 of 1992, namely, P.W. 3 Walil Mian, P.W. 4 Safique Mian, P.W.6 Kasma Khatoon, P.W.9 Muslim Rayeen, P.W.13 Aziz Mian, P.W. 16 Latif Mian, P.W.17 Hdisha Khatoon, P.W.20 Maimun Khatoon, P.W.21 Tahir Md., P.W.23 Jubasha Khatoon, Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 70/82 P.W.24 Janifan Khatoon, P.W.25 Julekha Khatoon, P.W. 26 Majeedan Mian, P.W.28 Md. Hanif, P.W.29 Abrana Khatoon, P.W.30 Hakim Mian and P.W. 31 Mazloom Md.
In S.T. No. 3 of 1994 total 10 persons have been tendered, namely, P.W. 4 Shafiq Mian, P.W. 5 Md. Tahir, P.W. 6 Muslim, P.W. 9 Hadisha Khatoon, P.W.11 Jaifan Khatoon, P.W. 13 Julsisa Khatoon, P.W. 15 is Kasima Khatoon , P.W. 17 Julekha Khatoon, P.W. 19 is Maimun Khatoon, P.W. 25 is Md. Hanif.
In S.T. No. 159 of 1995 total 08 witnesses have been tendered, namely, P.W. 4 Shafiq Mian, P.W.- 5 Md. Tahir, P.W. 6 Muslim, P.W. 9 Hadisha Khatoon, P.W. 11 Jaifan Khatoon, P.W.13 Julsisa Khatoon, P.W. 15 Kasima Khatoon , P.W. 17 Julekha Khatoon, P.W. 19 Maimun Khatoon, P.W. 25 is Md. Hanif
71. We have also noted that the prosecution has not examined various witnesses and make a pick and choose in the examination of the witnesses, although according to the informant Kurban Mian and Rafique Mian have seen the occurrence, but they have not been examined in this case. Navi Rasul Ansari, who was the informant shown in the formal F.I.R. and whose name was subsequently scored off and replaced by Habib Rain was not examined in this case. The prosecution has not explained the reason Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 71/82 for non-examination of those material witnesses, who could have unfolded the true narrative of the incident.
72. We also find fallacy in the prosecution case that the occurrence took place at a paddy field where there was 1½ feet water logging and dead body was lying in the field. Absence of sign of water on the dead body and absence of water in the lung, throat etc when after the assault the victim fallen on the earth where there is 1 ½ feet water logging. Out of several injured in this case, only Saiful has named Laxmi Dhobi. The prosecution has not examined the alleged injured of the incident during trial, namely Sahnaz. The other witnesses during trial were either tendered or not disclosed the name of any of the assailants.
73. We also find substance in the submission of the appellants that the nature of assault attributed by the appellants does not find corroborated in the medical evidence/post-mortem report. There is definite case of prosecution that Hari Narayan, Sogarath Sah, Bechan Sah and Chhedi Sah assaulted Aisa Khatoon with Lathi, Raja Teli, Musafir Hajam, elder son of Musafir Hajam, Babu Lal, Laxmi Dhobi assaulted with Garasa to Chunia Khatoon and Marni Khatoon, whereas the post report indicate contrary story of assault on the person of Aisa Khatoon. The post-mortem report indicates that Aisa Khatoon Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 72/82 sustained incised wound over left chin. In the post-mortem report of Chunia Khatoon the doctor has found sharp cut wound 4" x 2" x bone deep, penetrating wound over left chin below knee ½" x ¼" x muscle deep. Incised wound over left eye brow and on Marni Khatoon sharp penetrating wound size 1 ½" x muscle deep on left temporal region, multiple bruises on various size over the back.
74. Thus, the injury found on the deceased does not correspond to the kind of weapon with which the appellants were allegedly equipped with and assaulted the deceased.
75. We have noticed that the version of the prosecution witnesses as to the assault and killing of the deceased is neither supported by the investigatingn officer or inqeust report or post-mortem report. Dead body of all three was found at different place, which falsify the claim of prosecution witness that the assailants have assaulted the deceased in the same paddy field. The doctor, who conducted the post-mortem has specifically stated that he did not find water either on the person or the throat of the deceased. This statement of the doctor falsify the definite case of the prosecution witness (a) death occurred in the paddy field with knee deep water and mud, (b) the dead body was lying there in water and mud for such a long time, but was neither wet nor there was mud.
Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 73/82
76. The other infirmities inconsistence creates serious doubt about the original version of the commission of crime, the manner of recording of fardbeyan, delay of 3 days in reaching the F.I.R. in the court of C.J.M. creates reasonable doubt about the insertion of the name of the appellants in the instant case after due deliberation, particularly, when the materials on record indicate variance of time of occurrence, manner of occurrence and place of occurrence. We find that the fardbeyan was not recorded at the earliest. We also find that the prosecution has introduced the case of the participation of these appellants after due deliberation and as an afterthought. The trial court has also noticed in para 14 of the judgment about the omission in the fardbeyan and also noticed the variance in the allegation of commission of crime by the appellants and different opinion of the doctor as to the injury on the deceased. The trial court has noted that the informant has deliberately indulged in exaggeration over his previous statement. Para 14 of the trial court judgment manifest the definite attempt of improvement of case by the informant. Para 14 of the trial court judgment is quoted herein below:
"14. From a careful examination of the evidence of this witness and on comparing the same with his fardbeyan, it appears that this witness has made specific additions in his evidence over his statements contained in the fardbeyan. His contention Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 74/82 that he saw accused Jai Narain and accused Bhim Sah exhorting the mob, that he had seen the house of Rashid Sah being burnt by the mob, that he had concealed himself in the paddy field and it was from there that he saw his wife and the other two ladies being pursued and killed by the mob, are definite additions over his fardbeyan. The further additions are that the group which had assaulted and killed Ayeesha Khatoon had caused farsa injuries to her and that the group which had pursued and killed the remaining two laides had also carried bhalas besides garasa in their hads. He shifting the place from where he had allegedly seen the occurrence is definitely a significant addition and this is definitely not without any purpose. It appears that the prosecution has attempted to place the informant at such advantage point from where the occurrence in the paddy fields could be seen conveniently. The commisison of the informant to state specifically in the fardbeyan that he had seen the occurrence from the paddy fields is in my opinion, is not a mere omission, but a contradiction in the evidence of this witness. The attempt of this witness to give evidence inconsonance with the medical and postmortem reports is also apparent when he tries to improve that he had seen farsa also in the hands of the assailants of Ayeesha Khatoon. It may be mentioned here that in his fardbeyan, he has named four accused persona and had specifically stated that these four accused persons Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 75/82 had assaulted Ayeesha with lathies only. Similarly he has tried to correspond the penetrating injuries found on deceased Marni Khatoon, by stating that the assailants of Marani Khatoon and Chniya Khatoon were also armed with bhala, lathies besides garansa. His fardbeyan suggests that the assailants of these two laides were armed only with Garansa which is an instrument which cause sharp cutting injury, but not any penetrating injury. The evidence of the I.O. does confirm that the informant had not named accused Ash Narain Sah and Sanjay Sah before the police nor had he referred to the names of accused Ram Sagar and Ram Pratap or Daroga Sah as the assailants of Chuniya Khatoon and Marani Khatoon. It is also significant to note that this witness has denied falsely the fact that he had filed a protest petition and that he had engaged the particular lawyers on his behalf.
From the above, it is obvious that this witness has deliberately indulged in exaggeration over his previous statements contained in the fardbeyan. It is true that the fardbeyan need not contain all the details and the same is not last word of the prosecution‟s case. But, giving details of the facts is one thing and insertion such statements subsequently as to suit the case of the prosecution is another thing. The attempt of this witness to shift the place from where he had allegedly seen the occurrence and also to introduce extra weapon in the hands of the assailants is definitely an attempt to improve over his earlier Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 76/82 statement in the fardbeyan and to fill up the lacunas in the fardbeyan. The addition of further names in the category of the assailants is also an improvement which is deliberate in nature. These improvements are in my opinion definite contradictions in the evidence of this witness and these contradictions and improvements lean heavily against the credibility of this witness. Even though, the portion of the evidence of this witness relating to the occurrence of rioting and murder is acceptable, but the evidence pertaining to the identity of the assailants of the three deceased ladies, is doubtful and the same cannot be accepted without proper corroboration. I may mention here however, that the fact of the murder of the three deceased ladies finds corroboration from the inquest as well as the individual post-mortem reports which I shall discuss at a later stage.
77. We have given anxious consideration to the entire prosecution case and find that no explanation for the delay in recording of fardbeyan and the delay in reaching the court of Chief Judicial Magistrate. When the formal F.I.R. was drawn on 08.10.1992, but reached the court of Chief Judicial Magistrate only on 12.10.1992 in fact the Apex Court has held out in numerous cases the delay in sending the F.I.R. creates serious doubt about the false implication and improvement. Reference in this connection is being made to the Apex Court judgment in the case of State of Punjab Vs. Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 77/82 Tarlok Singh, reported in (1972) 3 SCC 869 (para 5) and in the case of Ishwar Singh Vs. the State of Uttar Pradesh, reported in AIR 1976 SC 2423 (para 5 and 9).
78. Para 5 of the Judgment of State of Punjab Vs. Tarlok Singh, reported in (1972) 3 SCC 869 is quoted herein below for ready reference:
"5. First, the High Court noticed the suspicion created by the circumstance that the copy of the First Information Report purported to have been lodged at 3.45 p.m. did not reach the Magistrate at Dasuya till 8 a.m. the next day, even though it was sent through a special messenger. The distance between the scene of occurrence & Dasuya was only 15orl6 miles. The inference sought to be drawn is that, in fact, the report was not lodged at 3.45 p.m., but at a much later hour, after the police had arrived at the scene of occurrence and there were consultations to decide what version should be put forward and who should be implicated for the murder. The prosecution, in fact, made no attempt to explain this delay.
Such delay, thus, caste doubt on the prosecution version that the Report was lodged at 3.45 p m. without lapse of unnecessary time."
Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 78/82 Para 5 and 9 of the judgment of Ishwar Singh Vs. the State of Uttar Pradesh, reported in AIR 1976 SC 2423 are quoted herein below for ready reference:
5. Mr. Frank Anthony appearing for appellant Ishwar Singh submitted that in affirming the Judgment of the trial Court, the High Court also overlooked certain important aspects of the case that the Sessions Judge had failed to consider. He pointed out that the F.I.R. which is stated to have been lodged at 9.05 A. M. on February 14, 1973 was sent out from the police station the next day, February 15; the time when it was despatched is not stated, but it appears from the record that the Magistrate received it on the morning of February 16. The Court of the Magistrate was nearby, which makes it difficult to understand why the report was sent to him about two days after its stated hour of receipt at the police station. Section 157 of the CrPC, 1898 as well as of 1973 both require the first information report to be sent "forthwith" to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Anthony suggested, that the first information report was recorded much Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 79/82 later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in Court differs at least in two very important particulars from that narrated in the F.I.R.
Mahabir Singh, who lodged the first information report, stated in-Court that he had invited some people to his house to effect a settlement between him and Ishwar Singh, and that he had also sent Ghanshyam to call Ishwar Singh there. The F.I.R. does not mention anything like this. From the F.I.R. it appears as if the accused persons came uninvited to his house, demanded why he had demolished the drain, and started assaulting him and the other persons who were present there. It is also difficult to understand why Mahabir should invite anyone to his house for a settlement, if really Ishwar Singh had permitted him to demolish the drain as he claimed. Further, the F.I.R. does not mention that Mahabir and Satyapal wielded lathis in their defence when attacked and that this resulted in some of the accused getting injured; but that is what both Mahabir (P.W. 1) and Satyapai (P.W. 2) stated in their evidence in Court. These variations Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 80/82 relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eye-witnesses "cannot be accepted at its face value", as observed by this Court in Mitter Sain v. State of U.P.
9. We have pointed out that the trial Court in convicting the appellants overlooked certain significant features of the case, namely, the inordinate and unexplained delay in despatching the first information report to the Magistrate; the difference in the account given by the prosecution witnesses and as appearing from the first information report of the occurrence; the absence of any statement in the first information report as to the injuries received by some of accused, and the non-
examination of material witnesses. The High Court in affirming the Judgment of the trial Court also failed to advert to these circumstances. We do not therefore think that the case against the appellants has been proved beyond reasonable doubt. The appeals are accordingly allowed and the Order of conviction and the sentences passed on the appellants are set aside We direct that the appellants be set at liberty forthwith."
79. Thus, in the conspectus of the facts and Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 81/82 circumstances discussed above, we are of the considered view that the conviction of the appellants in the instant case, which contains so much discrepancy in the version of the witnesses as to the time, place and manner of occurrence of the crime, use of weapon for assault and contrary medical evidence as to the manner of assault and injury, non- examination of the material witnesses, pick and choose of the witnesses, majority of them were tendered by the prosecution. Serious doubt about the earlier version recorded by way of fardbeyan, recording of fardbeyan either at the place of occurrence or police station. Different version of the investigating officer as to the recording of the fardbeyan, non-examination of the author of the Fardbeyan R.L. Rai in whose hand writing the fardbeyan was recorded purportedly at the place of occurrence and it is admitted position that he never visited the place of occurrence. The mystery as to appearance of the name of the Nabi Rasul in the formal F.I.R. as informant and later on insertion of Habib Rain as informant of this case and the fact that all the witnesses more or less have stated that after hearing the halla by the rioters and putting their house on fire, all the witnesses claimed to have attempted to hide themselves in the paddy field of chest height. Identification of 12 persons, out of 500 persons in Sessions Trial No. 226 of 1992, identification of two persons in Sessions Trial No. 3 of 1994 and two persons in Sessions Patna High Court CR. APP (DB) No.559 of 1993 dt.17-10-2017 82/82 Trial No. 159 of 1995 for conviction under Section 302/149 of the Indian Penal Code is very difficult and in absence of specific corroboration of their account supported by inquest report, medical report does not make out a case beyond all reasonable doubt. More so, as all the witnesses have given their statement before I.O. only after 7 to 10 days of the occurrence creates serious doubts about the actual miscreants. Hence, under the aforesaid circumstance, we are of the considered view that the conviction of the appellants under such circumstance is not established beyond all reasonable doubt and as such it is unsafe to approve their conviction. Accordingly, extending the benefit of reasonable doubt the judgment of conviction of the trial court is set aside and appellants are acquitted from the charges levelled against them. All the appellants are on bail, they are discharged from the liabilities of their bail bonds.
80. In the result, all the appeals are allowed.
(Rajendra Menon, CJ) (Anil Kumar Upadhyay, J) Uday/-
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