Patna High Court
Deepak Rai @ Bipat Rai vs State Of Bihar on 19 August, 2010
Author: Gopal Prasad
Bench: Shyam Kishore Sharma, Gopal Prasad
Death Reference No. 06 of 2009
WITH
CR. APPEAL (DB) No. 989 of 2009
WITH
CR. APPEAL (DB) No.158 of 2010
Against the judgment and order of conviction and sentence dated
17.09.2009/ 30.10.2009 passed by Sri Upendra Bhushan Mishra, Learned Additional District & Sessions Judge, Fast Tract Court No. 02, Hazipur, Vaishali in Session‟s Trial No. 195 of 2006/571 of 2006.
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Death Reference No. 06 of 2009
The State of Bihar ....... Appellant.
Versus
1. Deepak Rai @ Bipat Rai
2. Jagat Rai
3. Bachcha Babu Rai.
.... Respondent-Condemned
Prisoners.
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CR. APPEAL (DB) No. 989 of 2009
Deepak Rai @ Bipat Rai, Son of Bechan Rai, Resident of Village - Rampur Shyamchand, Police Station -
Raghopur, District - Vaishali.
....... (Appellant) CR. APP (DB) No.158 oF 2010
1. Jagat Rai, Son of Late Rameshwar Rai, Resident of Village - Rampur Shyam Chand, P.S. - Raghopur, District Vaishali.
2. Bachcha Babu Rai, S/O. Late Ramishwar Rai, Resident of Village - Rampur Shyam Chand, P.S. -
Raghopur, District - Vaishali.
.................. (Appellants) Versus The State Of Bihar ............... (Respondent) (in all the Criminal Appeals) 2 PRESENT THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Death Reference No. 06 of 2009 along with Cr. App.
(DB) No. 989 of 2009 preferred by the appellant Deepak Rai @ Bipat Rai and Cr. App. (DB) No. 158 of 2010 preferred by the appellants Jagat Rai and Bachcha Babu Rai are being heard together and disposed of by the common judgment as both the appeals arises out of the common order and judgment passed by Sri Upendra Bhushan Mishra, Additional District and Sessions Judge-cum- F.T.C. No. 2, Vaishali at Hazipur in Sessions Trial No. 195 of 2006 / 571 of 2006 by which all the three appellants convicted for offence under Sections 120B, 148, 302/149, 307/149, 326, 429, 436 and 452 of the Indian Penal Code and have been sentenced to death and as such the Additional District and Sessions Judge has referred the proceeding of the Sessions Trial No. 195 of 2006 / 571 of 2006 for confirmation of death sentence before this Hon‟ble Court.
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2. It is pertinent to mention that both the Sessions Trial No. 195 of 2006 and Sessions Trial No. 571 of 2006 arising out of Raghopur P.S. Case No. 01 of 2006 under the Vaishali District were heard together. In Sessions Trial No. 195 of 2006 accused Jagat Rai and accused Deepak Rai @ Bipat Rai were tried together. In Sessions Trial No. 571 of 2006 Bachha Babu Rai, Maula Devi, Krishnadeo Rai @ Kishundeo Rai and Shivdhari Rai were tried together. In both the cases two sets of witnesses were examined for each set of Sessions Trial. However, after the closure of the evidence of prosecution in Sessions Trial No. 195 of 2006 and after the recording of the statement of the accused after close of the evidence of the prosecution in Sessions Trial No. 571 of 2006, the two Sessions Trial No. 195 of 2006 and 571 of 2006 were consolidated together by order dated 12.01.2008 at the request of the prosecution which was not opposed by the accused persons and hence two Session‟s Trial case 195/2006 and 571/2006 with two sets of prosecution witnesses consolidated together and after the consolidation the statement of the accused persons of Sessions Trial No. 195 of 2006 recorded under 4 Section 313 of the Cr.P.C and thereafter the evidence of defence started and several defence witnesses were examined on behalf of different sets of accused persons.
3. The prosecution case as alleged in the fardbeyan by the informant Vijendra Mahto P.W. 1 in Sessions Trial No. 571 of 2006 and P.W. 7 Nanhki Devi in Sessions Trial No. 195 of 2006 is that he was sleeping in the Varanda and his wife along with children was sleeping in the room. In the night at about 1:00 P.M, he get up on the sound of foot steps of several people and then he identified accused Jagat Rai, Bipat Rai, Ram Babu Ram, Binay Ram, Dandu Ram, Shankar Ram, Dev Nath Ram, Nathu Ram, Chhabila Ram, Baccha Babu Ram, Jaybabu Ram, Ranjay Ram in the light of bulb as well as from their voice who had come along with 10 - 11 unknown persons. All the accused persons were armed with lethal weapons. On seeing them while he (informant) wanted to flee away then Jagat Rai and Bipat Rai catch hold of him and threw him on the ground and 3 - 4 persons got over his body and put gunny bag in his mouth by which he was unable to make a cry or shout and thereafter Jagat Rai 5 commended to surround and set on fire on sprinkling kerosene after the house of the informant was locked from out side by Ram Babu Ram in which the wife and children were sleeping. Thereafter Binay Ram, Dandu Ram and Shankar Ram got over the house sprinkling kerosene set on fire. Further case is that Nathu Ram and Chhabila Ram sprinkled kerosene on the body of the informant and kept him pressed their left chest and thereafter Jaget Ram set on fire at his mouth and when the house started burning in flames then accused person flee away and the informant also ran away to save him.
4. Further case is that Bipat Ram fired at him but it could not hit the informant and informant fled away making Halla. On his Halla his brother Vinod Mahto, Bideshwar Mahto and other family members got up fire but in the mean time the wife of the informant and his daughters Nilam Kumari and Punam Kumari and sons Suraj Kumar, Anil Kumar and Rajesh Kumar died by burn in the room. Even the buffalo and calf also got injury by fire and the entire property in the house burnt to ashes. The motive of the occurrence as alleged is that about three months prior to the occurrence the buffalo 6 of the informant was stolen away by Jagat Ram and his family and for which a case was lodged and Jagat Ram was pressurizing informant to withdraw the case since last fifteen days but he was not able to withdraw as the case was in the court.
5. The fardbeyan was recorded at 7:30 hours on 01.01.2006 by S.I. Anjani Kumar, Officer-In-Charge, Rustampur at Primary Health Centre, Raghopur and the fardbeyan itself mentions that the fardbeyan was recorded at 7:30 A.M at Raghopur Primary Health Centre. On the basis of the fardbeyan, the First Information Report was drawn at 9:00 A.M on 01.01.2006 and the said fardbeyan was seen by the Magistrate on 02.01.2006 and the First Informant Report was drawn for offence under Sections 147, 148, 149, 452, 342, 324, 326, 427, 436, 307 and 302 of the Indian Penal Code and 27 of the Arms Act. After investigation the charge sheet was submitted and hence the first charge sheet was submitted against Jagat Rai, Bipat Rai, Ram Babu Ram, Binay Ram, Dandu Ram, Shankar Ram, Dev Nath Ram, Nathu Ram, Jaybabu Ram, Ranjay Ram, Maula Devi, Gautam Rai, Krishna Dev Rai, Shiv Dhari Rai. After submission of 7 the charge sheet the cognizance was taken for offence under Section 302 of the Indian Penal Code and other allied Sections of the Indian Penal Code for which the case was instituted on 13.04.2006 against 16 persons against whom charge sheet was submitted out of which five were in custody and 11 were absconder. Subsequently one accused Baccha Babu Rai was arrested and hence 10 remained absconder and so the case of 10 accused persons who have absconder were bifurcated and the case of 6 accused persons, namely, Krishna Dev Rai, Gautam Rai, Ranjay Ram, Maula Devi, Baccha Babu Rai and Shiv Dhari Rai were committed to the Court of Sessions by order dated 06.05.2006 and after commitment numbered as Sessions Trial No. 195 of 2006 and the charge was framed against the six accused persons for offence under Sections 302/149, 307/149, 148, 436, 326, 120B and 452 of the Indian Penal Code.
6. Subsequently in the bifurcated case of 10 accused persons accused Binay Rai and Jagat Rai were apprehended and one Deepak Rai @ Bipat Rai produced from New Delhi on a production warrant issued by the court and hence the accused Binay Rai, Jagat Rai and 8 Deepak Rai @ Bipat Rai were committed to the Court of Sessions by order dated 15.12.2006 and after commitment of the case a separate Sessions Trial No. 571 of 2006 was registered before Session‟s Judge on the supplementary record and after commitment the charge was framed against three accused Binay Rai, Jagat Rai and Deepak Rai @ Bipat Rai for offence under Sections 302/149, 148, 304/149, 436, 326, 429, 120B and 450 of the Indian Penal Code by order dated 20.01.2007.
7. However, the trial proceeded in both the cases separately and 17 witnesses were examined on behalf of the prosecution in Sessions Trial No. 195 of 2006. The 17 witnesses were examined in Sessions Trial No. 195 of 2006 are P.W. 1 Biond Kumar Mahto, P.W. 2 Kiran Mahto, P.W. 3 Bindeshwar Mahto, P.W. 4 Babloo Mahto, P.W. 5 Maha Devi, P.W. 6 Dulari Devi, P.W. 7 Bijendra Mahto, P.W. 8 Dr. Sunil Keshri, Primary Health Center, Raghopur, P.W. 9 Dr. Ashok Kumar, P.W. 10 Dr. Rajendra Kumar Rajesh, P.W. 11 Anjani Kumar, P.W. 12 Dr. Devendra Prasad Singh, Veterinary Doctor who treated the calf, P.W. 13 Manji Prasad Singh, ASI, 9 Raghopur who prepared the inquest report, P.W. 14 Jaga Devi, P.W. 15 Kamli Devi, P.W. 16 Nanhki Devi, P.W. 17 Bhuneshwar Rai.
8. The documentary evidence adduced on behalf of the prosecution in Sessions Trial No. 195 of 2006 is Exts. 1 Signature of Vinod Kumar Mahto on fardbeyan, 1/1 to Exts. 1/6 are the signature of Vinod Kumar Mahto on the inquest report of Babi Devi, Nilam Kumar, Punam Kumari, Suraj Kumar, Anil Kumar, Rajesh Kumar respectively. Exts. 2, 3, 4, 5, 6 and 7 are the post mortem report of Babi Devi, Nilam Kumari, Punam Kumari, Suraj Kumari, Anil Kumar and Rajesh Kumar a three years old male respectively, Ext. 1/7, 1/8, 1/9, 1/10, 1/11 and 1/12 signature of Doctor Ashok Kumar on the post mortem report of Anil Kumar, Rajesh Kumar, Suraj Kumar, Babi Devi, Nilam Kumari, Punam Kumari respectively, Ext. 8 is the injury report, Ext. 9 is the fardbeyan, Ext. 10 is the sketch map of place of occurrence, Ext. 11 is a petition (requisition) sent to Primary Health Centre, Raghopur for the treatment of Bijendra Mahto, Ext. 12 is the report of Dr. Devendra Prasad Singh regarding the examination of buffalow, Ext. 13 is a formal First Information 10 Report, Ext. 14, 14/1 to 14/5 are the carbon copy of the inquest report of Babi Devi, Nilam Kumai, Punam Kumari, Suraj Kumar, Anil Kumar and Rajesh Kumar respectively, the attested photo copy of the injury report of Bijendra Mahto has been marked "X" for identification.
9. Fourteen (14) witnesses were examined on behalf of the prosecution in Sessions Trial No. 571 of 2006 P.W. 1 Bijendra Mahto, Informant, P.W. 2 Kiran Mahto, P.W. 3 Binod Mahto, P.W. 4 Bindeshwar Mahto, P.W. 5 Babloo Mahto, P.W. 6 Maha Devi, P.W. 7 Nanhki Devi, P.W. 8 Jago Devi, P.W. 9 Kamli Devi, P.W. 10 Dulari Devi, P.W. 11 Dr. Sunil Keshri, P.W. 12 Dr. Rajendra Kumar „Rajesh‟, P.W. 13 Dr. Devendra Prasad Singh, P.W. 14 Anjani Kumar, I.O.
10. The documentary evidence proved by the prosecution in Sessions Trial No. 571 of 2006 is Ext. 1 is the photo copy (certified) of fardbeyan, Ext. 2 to 7 photo copy (certified) of the post mortem report of Babi Devi, Ext. 3 certified photo copy of post mortem report of Nilam Kumari, Ext. 4 certified photo copy of the post 11 mortem report of Punam Kumari, Ext. 5 is the certified photo copy of post mortem report of Suraj Kumar, photo copy (certified) of post mortem report of Anil Kumar and Rajesh Kumar respectively, Ext. 8 photo copy (certified) of injury report of injured Bijendra Mahto, Ext. 9 photo copy (certified) of injury report of buffalow, Ext. 10 to 10/5 photo copy (certified) of inquest report of Babi Devi, Nilam Kumari, Punam Kumari respectively, Ext. 11 photo copy (certified) of formal First Information Report.
11. However, after the evidence of the witnesses recorded separately in two Sessions Trial as mentioned above both the Session‟s Trial were consolidated as both arises out of the same fardbeyan and First Informant Report of Raghopur P.S. Case No. 01 of 2006 and hence consolidated together and the defence witnesses were examined after consolidation of the case i.e. Session‟s Trial and hence there is only one set of defence witnesses for both the cases. The defence witness examined on behalf of Bipat Rai is D.W. 1 Bambam Thakur, D.W. 2 Munsi Rai, D.W. 3 Gauri Bhagat, D.W. 4 Lala Rai, D.W. 5 Nawab Thakur, D.W. 6 Mulhai Rai, D.W. 7 Baskit 12 Rai, D.W. 8 Deoraj Rai. Five defence witnesses adduced on behalf of the accused Binay Rai are D.W. 1 Rabindra Rai, D.W. 2 Gowar Mahto, D.W. 3 Chandradeo Mahto, D.W. 4 Mukesh Kumar and D.W. 5 Sunil Kumar.
12. Three witnesses were examined on behalf of the accused Ranjay Rai who was D.W. 1 Brahmdeo Pandit, D.W. 2 Churawan Sharam, and D.W. 3 Ramwali Rai.
13. However, during the trial of S.T. 195/2006 the case of the accused Binay Kumar was bifurcated from the original case by order dated 08.11.2008 for an enquiry on the ground of his being a juvenile. Further by order dated 07.07.2009 the case of accused Ranjay Kumar was bifurcated in view of the order dated 24.02.2009 and 30.04.2009 passed in Cr. Revision No. 1468 of 2008 on ground of juvenile and hence the case proceeded with regard to the six accused out of eight accused facing the trial. After considering the oral and documentary evidence and considering the submission made by the parties the learned Sessions Judge acquitted the accused Maula Devi, Krishna Dev Rai and Shiv Dhari on the ground that they 13 were not named as accused in the fardbeyan or FIR and no reliable evidence and evidence against them contradictory convicted Deepak Rai @ Bipat Rai, Jagat Rai and Baccha Babu for offence under Sections 302/149 of the Indian Penal Code and other allied Sections of the Indian Penal Code for alleged setting on fire on the house of informant Bijendra Mahto with intention to causing the death of Babi Devi, Nilam Kumari, Punam Kumari, Suraj Kumar, Anil Kumar and Rajesh Kumar causing death of them hence being a member of unlawful assembly and have been sentenced to death and the proceeding referred for confirmation of the death sentence.
14. Defence of the accused persons that the witnesses have not seen the occurrence and the fardbeyan is not the fardbeyan on the statement of Bijendra and the fire set in the house by the electricity and the accused persons has not done the occurrence.
15. Learned counsel for the appellant Deepak Rai @ Bipat Rai submits that there is no allegation of burning of match stick or setting on fire nor any specific allegation attributing weapon to this appellant and there is basic difference in prosecution case in 14 fardbeyan and evidence of witness during trial and the claim of identification of accused in the fardbeyan is by electric bulb however, in the evidence the claim of identification is by the flame of the fire. It has further been contended that there is enmity with the appellant Deepak Rai @ Bipat Rai and further the independent persons or the neighbourers have not been examined as a witness and though the motive alleged is against Jagat Rai but there is no motive against Bipat and others. It is alleged that the accused persons fled away at a considerable distance and further some of the witness though came to support the prosecution case as eye witness but were not at the place of occurrence and further the fardbeyan is doubtful and the means of identification is not wholly established and however, the informant was unconscious not able to give statement and was not in a position to depose or give statement and different witnesses have given different version and the fardbeyan is alleged to be recorded at 7:30 AM whereas it has come in evidence that the informant become unconscious and was unable to give statement and hence the First Information Report is anti time and anti dated and 15 hence it gives reasonable doubts that the name of the appellants have falsely been implicated.
16. The prosecution case as alleged in the fardbeyan that the informant was sleeping in Varandha, his wife and children were sleeping in room and then the informant got up on hearing the foot steps on several persons and identified Jagat Ram, Bipat Ram and Baccha Babu and others named and tried to flee then Jagat Ram and Bipat Ram catch hold of him and throw him on the ground and 3-4 unknown persons got over his body put gunny bag in his mouth and Jagat Ram commanded to sprinkle kerosene and set on fire. Ram Babu locked the room in which the children and wife were sleeping from out side and thereafter Binay Ram, Dandu Ram and Shankar Ram got over the house and sprinkle kerosene. Nathu and Chabila sprinkle kerosene on the body of the informant and Jagat Ram lit the matches and set on fire at his mouth when the flame of the fire came out then the accused persons flee away and then the informant anyhow ran to save his life on which Bipat Ram fired but Bipat Ram fired from his gun but on the cry his brother Vinod Mahto and 16 Bindeshwar Mahto and other family members came and in the mean time his wife, daughters, sons and his wife Babi Devi, daughters Neelam Kumari and Punam Kumari, his sons Suraj Kumar, Anil Kumar and Rajesh Kumar died and the buffalo and his calf also injured by fire and the entire property burnt to ashes. It has further been stated that about three months prior his buffalo was theft away by Jagat Ram and his family for which a case was instituted and since last fifteen days the brother was being made to withdraw the case but since the case was pending in court he was unable to answer.
17. P.W. 7 is the informant. He has supported the prosecution case in his evidence that he was sleeping in Varandaha, the wife and children were sleeping in the northern room, the buffalo were tied in southern room, he got up on the sound of foot steps of several persons. He saw that Bipat and Jagat throw him. Four persons caught hold of him. Jagat Rai put gunny bag on his mouth and set on fire by match stick. Ram Babu lock the door of the house. Binay Ram, Chabila and Nathu Ram got over the house and sprinkle kerosene 17 and set on fire. The house started burning and he started flee toward northern. His brother Bindeshwar, Vinod came and others set off fire of his body his wife Babi Devi, daughter Neelam Kumari and Punam Kumari and sons Suraj Kumar, Anil Kumar and Rajesh Kumar all burnt along with the articles. He has further stated that he had lodged a case for theft of buffalo in the said case. Ajay and Vazir were arrested and thereafter accused persons used to threaten to get release the Ajay (the son of Jagat) otherwise they will burn the entire members. He has further stated that he was taken to Raghopur hospital. The statement was read over and he put his thumb impression. Thereafter in his cross-examination, he has stated that his statement was recorded by Daroga at Raghopur and he got unconscious after giving statement. He has further stated that he cannot say that his statement was recorded at Raghopur by Raghopur and Rustampur. He has further stated that even prior to the occurrence he used to serve Daroga, Raghopur Police Station and even used to say that the accused persons will kill him and his family, however, there is nothing in his cross examination. 18
18. P.W. 10, is the Doctor who treated the victim Vijendra Mahto at 1.45 A.M. and found the following injury:-
(i) Burn injury on the face.
(ii) Burn injury on both sides of wrists.
(iii) Burn injury on both legs.
(iv) Total burn injury is about twenty percent.
(vi) Age of injury with two hours and has stated that the
patient referred to PMCH for opinion and needful.
19. However, in his evidence in cross examination he has stated that he has not given the dimension of the burn injury and he has proved the injury report as Ext. 8 and has stated in his cross- examination that he wrote in his injury report that he examined Vijender Mahto and has stated that he has not submitted any supplementary report about the mentioning of the wrong name of the injured in his injury report. He has further stated that while he examined the injured, Vijendra Mahto Police was present in the hospital and while he was examining the injured the injured was in sense to make statement. He has further stated that during his presence 19 the Police did not take any statement of the injured. He has further stated that he examined Vijendra Mahto but due to his mistake wrong name mentioned in the injury report and hence from the evidence of the Doctor corroborated the injury by fire received by the informant and corroborated the time of injury on face and other within two hour and the injured examined as 1.45 A.M whereas the time of occurrence as per prosecution case is stated to have been between 12.30 to 1.00 A.M is well within 2 hours as opined by doctor which corresponds and corroborated to the time of occurrence.
20. P.W. 1 Vinod Kumar Mahto has stated that he got up at 12:30 P.M on 1st January, 2006. His house is adjoining the house of Bijendra Mahto and when he saw the flame of the fire and got up and when he came out then he saw brother Bijendra Mahto is burning in fire and so he put blanket on his body to set off the fire on body of Bijendra Mahto. He has further stated that the house of the Bijendra Mahto is burning and inside the house the cry of the children and wife were coming out. They tried to set off the fire of the house then Jagat Rai fired from rifle son Bipat, Rambabu, Nathu, Deonath, Shankar, 20 Binay fleeing towards west. He has stated that Bhabhi Bebi Devi and the niece Neelam Kumari and Punam Kumari and the nephew Anil Kumar, Suraj Kumar and Rajesh Kumar burn to death. The buffalo also died out of the burnt supported the prosecution case about three months prior to the occurrence. He has further stated that the buffalo of Bijender was theft away for which the case was instituted in which Vazir and Ajay son of Jagat was arrested and Jagat and Bipat and others were threatening his borther Bijender to withdraw the case otherwise they will burnt him alive. He has further stated that his brother treated as Primary Health Centre, Raghopur where the statement of his brother was recorded by the Officer-In-Charge, Rustampur P.S. He has also proved his signature on the inquest report of the six deceased persons, namely, Babi Devi, Neelam Kumari, Punam Kumari, Anil Kumar, Suraj Kumar and Rajesh Kumar which has been marked as Exts. 1/1 to 1/6 in cross examination this witness stated that he took his injured brother to Raghopur Hospital at about 1:00 P.M the Doctor examined, gave him medicines and even transfuse water and from Raghopur he was sent to PMCH and Daroga 21 Jee took him to PMCH at about from Raghopur Hospital at about 5- 6 A.M. He did not went to PMCH when at the time of fardbeyan was being read over in further cross - examination has stated that whatever he stated to Daroga that was written read over to his. Further in paragraph 33 as sated that Jamadar of Raghopur P.S. wrote at about 1.00 P.M and read over to his brother and he also put his signature and his brother also signed. He has further stated that when brother taken to the PMCH at 6.00 A.M then he return back. This witness supported the prosecution case and there is nothing in his evidence in cross- examination to disbelieve his testimony.
21. P.W. 2 has supported the prosecution case that he got at the flame of the fire and came out saw the Vijender burning in flame and was come in with a crying and thereafter they said of fire by blanket etc and he saw Jagat, Bipat and Baccha Jagat with rifle, Bipat with gun and others with lathi they were fleeing away towards the west and supported the prosecution case about the burning of the wife, daughters and sons of the Vijendra Mahto and about the theft of the buffalo for which case instituted and Ajay and Vazir arrested and 22 threat by them to withdraw the case else they will be burnt. In his cross examination he has stated that in Raghopur Hospital they remain one and half hours the Daroga Jee was in hospital Vijendra disclosed about the occurrence and even name and the statement was read over. He has further stated that he reached Raghopur Police Station at about two P.M.
22. P.W. 3 Bindeshwar Mahto, he is also the brother of informant victim Vijender Mahto and has stated that at the time of occurrence he was sleeping in the room and on the flame and cry he came out of his hours and saw his brother Vijender burning in flame and the house was burning in flame and then he put blanket on his body to set on the fire identified the accused persons Jagat with rifle, Bipat with gun, Baccha Babu were flee towards the west. He has stated that he reached the hospital at about 1.30 A.M. However, he stated that at the time of taking his brother to hospital he was unconscious and was not speaking out in same stretch. He has stated that brother was admitted in PMCH and he went to see his brother at PMCH and his other brother also used to go to see Vijender. He has 23 further stated that on Halla he went to the house of Kiran and at that time the body of Vijender was in flame and Kiran said on fire by putting the blanket and went to the place of occurrence along with Kiran and Vinod and at that time accused persons were fleeing away.
23. P.W. 4 also supported the prosecution case about the burning of the house of Vijender in flame and saw Jagat, Bipat and Baccha with others fleeing away to the west and Babi Devi, Neelam and others burn to ashes. However, in cross examination he has stated that his brother was unconscious in hospital Daroga Jee came and his brother Vinod Mahto got written all the facts to Daroga. However, in same stretch he has stated that at that time he was not there and he cannot say that Daroga took the thumb impression of Vinod and Vijender. However, he says that he remains at his house and he has denied the suggestion that fire set in the house by the electric light in the house of the victim.
24. P.W. 5 is Maha Devi, the wife of Kiran Mahto (P.W. 2), however, she also supported the prosecution case about the burning of the house and Vijender and claim to identify Jagat, Bipat, Baccha and 24 others and the death of Babi Devi and her children injured and identified the accused persons fleeing in the light of flame of the fire. However, this witness has stated in paragraph 13 that in the morning she went to Raghopur Hospital after the sun rise and his Bhaisur was unconscious and was taken to the PMCH and she also went to PMCH. However she has stated that her husband got the statement recorded and on which her husband put his left thumb and his Bhaisur also give the thumb impression and on the said statement the case instituted. However, with regard to the occurrence the evidence of this witness about the identification and accused seen flee away and burning of the house. There is nothing in his evidence to disbelieve. However, she has stated that she went in the morning and the statement was recorded by the Daroga at the instance of Kiran Mahto her husband (P.W. 2) on which her husband put the Left Thumb Impression but neither her husband has come forward to prove the Left Thumb Impression or even admit nor the fardbeyan bears the thumb impression of P. W. 2 and hence this part of the evidence appears to be exaggeration.
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25. P.W. 6 is Dulari Devi, the mother of the injured informant Vijender. However, she has also come forward to support the prosecution case about the burning of the house and the son claims to identify the accused Bipat with gun and Jagat with rifle. However, in paragraph 36 stated that her son Vijender taking unconscious in the Hospital and has stated that there is no electric bulb near his house.
26. P.W. 14 Gaja Devi, wife of Vinod Kumar Mahto (P.W. 1) though has come to support the prosecution case about the occurrence and about the identification but in his cross examination she has stated that she has come to depose the first time. She given the statement in for the first time in court and her statement was not recorded by the Police.
27. P.W. 15 Kamli Devi has supported the prosecution case about the occurrence of the burning of the house and Vijender and identification of accused.
28. P.W. 16 is the Nanhki Devi wife of Bablu Mahto (P.W. 4). She has supported the prosecution case that he got up and saw the fire 26 in the body of his Bhaisur (Vijendra Mahto) and he was fleeing away at Darbaza and Potato field.
29. P.W. 13 Bhangi Prasad Singh, is the A.S.I of Raghopur P.S. he has proved inquest report of the deceased of Babi Devi, Neelam Kumar, Punam Kumari, Suraj Kumar, Anil Kumar and Rajesh Kumar prepared in same carbon copy with original in his writing marked as Ext. 14 to 14/5.
30. P.W. 12 Dr. Devender Prasad Singh, is the veterinary doctor who has proved the injury about the 50 % burn of buffalo of Vijender Mahto and as proved Ext. 12 the report with his signature.
31. P.W. 8 is the Dr. Sunil Keshari, who conducted the post mortem examination of the deceased persons on the spot in pursuance of being a member of Medical Board constituted by Civil Surgeon, Vaishali and he conducted the post mortem examination of Babi Devi at 2.30 P.M on 01.01.2006 and found a lady pugilistic attitude with hundred present burn on dissection skull bone fractured, brain matter blacken. Neck trachea contains blacken matter, Chest bony cage normal, plura lung blacken at places and congested, abdomen - skin 27 burn all viscera blacken, uterus gravid. Time elapsed since death with 24 hours. Substance used - Fire dry head. Opinion - Death opined by shock due to burn prove. The post mortem report marked as Ext. 2.
32. He has further stated that at 2.50 P.M conducted postmortem of Neelam Kumari a completely charred body only death due to 100% burn has proved the postmortem report of Neelam Kumari in his pen and signature marked as Ext.3.
33. He has further stated that on same day at 2.40 P.M held post mortem examination of dead body of Punam Kumari and found completely charred body of 10 years old girl and only death is remaining death due to excessive burn time elapsed since death with 24 hours has proved the post mortem report in his pen and signature marked as Ext.-4.
34. On the same day at 2.55 P.M held post mortem report on Suraj Kumar and found completely charred body of eight years old boy. The post mortem report proved as Ext. 5 time elapsed since death of 24 hours. He has further stated that on the same day at 3.00 P.M. conducted post mortem of Anil Kumar a six years old. Post mortem 28 report marked as Ext. 6 having injury a completely charred body only death remaining death due to excessive burn 100% and on same day conducted post mortem of dead body of three years old male at about 2.35 P.M and found completely charred body death due to excessive burn portion 100 %. In his cross examination he has stated that he has only written the time elapsed since death on the post mortem report of Babi Devi and further stated that there is no facility of post mortem examination in Raghopur Primary Health Centre for conducting post mortem but the team which has come there from Hazipur was equipped with all operatus for conducting post mortem of dead body. He has further stated that the smell of petrol was coming from the place of burn house and hence the evidence of this witness corroborates the death of this person by burnt injury.
35. P. W. 11 is the I.O, Anjani Kumar has stated that on 01.01.2006, he was In-Charge, Rustampur O.P. under Raghopur Police Station. He has further stated that he got a rumor at about 4.30 A.M that occurrence of setting on fire occurred in village Rampur Shyamchak and some persons got injured. He entered the information 29 as Sanha and proceeded for verification of the information to village Rampur Shyamchak. He reached the place of occurrence. He has stated that it was a heart rendering scene at place of occurrence. The house was burnt to ashes. The family members were crying then he entered into the room saw that in Southern Western Corner the remains of skeleton of six persons. He has further stated that he informed about the occurrence to the Senior Officers on telephone. He has further stated that on the spot he learnt that one person Vijendra Mahto has got injured in the occurrence and has been taken to Primary Health Centre, Raghopur in injured state and taking into the seriousness he left the Police Force and a Police Officer at the place of occurrence and proceeded to Primary Health Centre, Raghopur. He recorded the statement of Vijender Mahto at Primary Health Centre, Raghopur and the said fardbeyan was read over and finding it correct, Vijender Mahto put his Left Thumb Impression. He has proved the fardbeyan in his writing marked as Ext. 9. He has further stated that place of occurrence is the residential house of Vijender Mahto. He has further stated that the house of Vijendra Mahto contains two rooms and a Varamdah the 30 size of both the rooms are 10‟ x 9‟ with a height of 6‟ and 1/2‟ at the Darwaza and 9-1/2‟ in the middle both the room has got Darwaza facing West and adjoining the northern room. The Varandah 5‟ wide adjoining northern room. There was 4‟ wide Gally in north and thereafter the house of Kiran Mahto and some part of the house of Kiran Mahto was also found to be burn on to the South of the house of informant there is ditch and thereafter village road. He has further stated that in the East at a distance of about 10‟ this is house of Binod Mahto. He has further stated that the house of Binor Mahto (Deceased) is to the West of the place of occurrence the place of occurrence. He has further stated that from the Northern room the skeleton remain of six persons were recovered and the dead body was identified on the basis of the size of burnt body remain recovered at the place of occurrence except the ashes of burnt remain. The walls of the room had the sign of Shadow of smock and the Varandah adjoining the Northern room was also destroyed by fire and only two pillars were seen. He has further stated that he filed petition for examination and treatment of Bijender Mahto at Primary Health Centre, Raghopur and he proved the 31 said application in his writing which has been marked as Ext. 11. He has further stated that he received the injury report from Primary Health Centre, Raghopur in his cross-examination at paragraph 31 has stated that the villagers except the family members were reluctant to give statement before him. He has further stated that at the place of occurrence Superintendent of Police, Sub-Divisional Officer, Inspector of Police even Deputy Inspector General of Police and Inspector General of Police had come to the village and even before these Superior Officer none of the villagers came to depose. He has further stated that the statement of Bijender Mahto was recorded the Doctor had already examined him prior to recording of the statement. He has further stated that after recording the statement of Bijender Mahto he gave letter for examining of the victim and has admitted that he has writing in the letter that he sent the injured for examination and treatment and hence from the evidence there is objective finding of occurrence at the place of occurrence the remains of burnt as well as recovery of the dead body of the wife and five children of Bijender Mahto and the entire house found to be burnt to ashes and the 32 description of the place of occurrence established the place of occurrence as per the case of the prosecution. However, regarding the fardbeyan recorded by this witness has stated that the fardbeyan of the injured was recorded hostile at and thereafter letter issued for examination and treatment of the injured. However, the fardbeyan mentions that I.O. recorded the statement of 7.30 A.M where as the evidence of the witnesses that one Zamadar recorded statement of the informant in the night and the report of the Doctors suggest that the Doctor examined the witnesses at 1.45 A.M and was treated and hence a point raised about the time of recording the statement though the fardbeyan proved indicates fardbeyan recorded in indirect at 7.30 P.M but why the statement of the informant not recorded in the night when the victim informant reached hospital at 1.45 A.M. when the doctor evidence that was at hospital in a mind as 1.45 P.M and according to doctor police had come in hospital and hence the accused person challenged the fardbeyan as anti dated.
36. However, the second set of evidence in Sessions Trial No. 571 of 2006 in which Baccha Babu Rai and other accused were tried. 33 14 witnesses have been examined. However, the 14 witnesses examined are almost the same persons who have examined in Sessions Trial No. 195 of 2006. However, the witnesses supported the prosecution case and the evidence almost of the same and similar manner at 12 in midnight his wife and children were sleeping in the northern room and he was sleeping in Varamdah when got up on the sound of foot steps of the accused person and saw Jagat, Bipat, Baccha Babbu and other (named) Bipat with gun and Jagat with rifle and other with Lathi. They set on fire in the house locking the room and when he tried to flee he was catch hold set on fire by sprinkle kerosene when the fire set in accused person flee and then he flee then his brother set of the fire by putting blanket on his body.
37. P.W. 1 is the informant who has supported the prosecution case about the occurrence as mentioned in the fardbeyan. However, in cross examination he has stated that after the occurrence he got unconscious some of the accused persons had tied his mouth and some were bearing caps in paragraph 35 mentions that on hearing the foot steps he tried to flee away and he was set on fire on the court yards. In 34 paragraph 29 stated that on Halla his brother Bindeshwar and Binod and other family members came and his other brothers had been to Magga for selling the Tobacco and paragraph 44 of cross examination stated that Daroga Ji did not read over his statement.
38. P.W. 2 is Kiran Mahto supported the prosecution case they get up and set off the fire on the person of Vijender and wife and children of Vijender burnt to ashes and support the case of theft of buffalo by informant and in cross examination has stated that Bijender disclose the name of the persons who set in fire and he identified the accused persons in the flame of the fire and has further stated that he did not saw the accused persons setting on fire but identified them while they were fleeing away and has stated that he set of the fire on the person of his brother but he remain at his house and his other brothers took Bijender Mahto to Raghopur Hospital.
39. P.W. 3 is Vinod Mahato, he has also supported the prosecution about the setting on fire in the person of Vijendra Mahto and was coming from the side of his house and they set off the fire by putting blanket and identified the accused fleeing away Bipat and 35 Jagat, Baccha Babu and others fleeing away firing and about theft case by informant for theft of buffalo of in front and arrest of Vajir and Ajay for which the threat was given to burn him. However, in cross - examination has stated that a Panchayati was convened for getting release of son of Jagat within 24 hours and statement recorded by Police Officer of Rustampur P.S. and he learnt that the Daroga of Raghopur Police Station was suspended and has stated that Baby Devi wife of Vijendra Mahto had filed rape case on the O/C of Raghopur.
40. P.W. 4 is Bindeshwar Mahto supported the prosecution case, he has stated that his brother came fleeing from his house having burning in flame of fire then they got up set off the fire and the wives children of Vijendra Mahto burnt to death. However, in cross examination he has stated that he did not saw any person setting on fire and has denied the suggestion the fardbeyan of Bijender was recorded by one Kha Saheb Daroga of Raghopur Police Station which was torn and destroyed and further at the time of identification the accused persons were fleeing away at a distance of 10 to 15 hands. However, has stated in cross examination that he along with other brothers while 36 attempting to put off fire on his brother the thatch roof of the house of Vijendra Yadav fell down and when he reached at the place of occurrence the entire house was under the flame of the fire and house has been burnt.
41. P.W. 5 is Bablu Mahto supported the prosecution case that he saw Vijender in fire in his body identified the accused persons while fleeing away toward West resorting to firing death of the Babi Devi and his children by fire, he also supported the case of theft of buffalo. However, stated that he did not saw any of the accused persons setting on fire but his brother has seen. However, he has stated that he was not at the place where the statement of his brother was recorded by the police and he identified the accused person while they were fleeing away towards West by their face at a distance of about 10 Lagga.
42. P.W. 6 is Maha Devi wife of Kiran Mahto (P.W. 2) and there is nothing in his evidence to disbelieve his testimony though have stated that she did not saw any occurrence of firing.
43. P.W. 7 is Nanhki Devi wife of Bablu Mahto.
37
44. P.W. 8 is Jaga Devi wife of Vinod Mahto supported the prosecution case, however, in paragraph 18 she has stated that on the date of occurrence his Dabar Bablu was out and has gone to sell Tobacco at Gaya and came after 4 days of the occurrence and in paragraph 21 she has stated that kamli Devi came at 8.00 A.M on the date of occurrence and her son Madan was in Delhi at the time of occurrence and came after four days of the occurrence from Delhi. However, stated that he saw the accused persons fleeing away hence from the evidence of this witness on the date of the occurrence Bablu P.W. 5 was not in the village and even Madan, Bablu, Kamli Devi were not in the house or at the place of occurrence village.
45. P.W. 9 is Kamli Devi, however, she claims to be the eye witness and she has also stated in paragraph 13 Madan is a nephew and he was at Delhi and came after two and four days after the occurrence and in paragraph 14 she has stated that his another brother Babloo had come in the evening.
46. P.W. 10 Dulari Devi the mother of the informant Bijender and supported the prosecution case about saw the Bijender though she 38 has stated that Kamli came prior to the occurrence she has also stated that there was enmity between the her father-in-law and the father of accused Bipat and brother land dispute between them and she saw the accused persons fleeing away.
47. P.W. 11 is the Doctor Sunil Kashari who conducted the post mortem examination who being the member of the Medical Board and proved the post mortem about the six persons Babi Devi, Neelam Kumari, Punam Kumari, Suraj Kumar, Rajesh Kumar and Anil Kumar whose bodies was found to be completely burnt charred with and death due to excessive burn due to 100% the post mortem report proved as Ext. 7.
48. P.W. 12 Dr. Rajender Kumar Rajesh who treated the Bijender Mahto at 1.45 A.M at 01.01.2006. however, has stated that the patient was in semi conscious and his attention has been drawn about his deposition in Session Trial No. 195 of 2006 where he has stated that the patient was in sense to make statement.
39
49. P.W. 13 Dr. Devender Prasad Singh who has proved the portion of buffalo of Bijender who was treated by him and has proved Ext. 9 the injury report.
50. P.W. 14 is the I.O, however, in his cross-examination has stated about the place of occurrence about the room and description of the room and the house of the witness Kiran Mahto, Binod Mahto to the North and East respectively and has proved the formal First Information Report written by Manjeet Prasad. He has proved the fardbeyan marked as Ext. 1 and has proved the formal First Information Report in the writing of Manjeet marked as Ext. 11. However, in paragraph 25 of the cross examination that Nashrudin Kha did nor recorded the fardbeyan of informant. The Senior Officers of Police directed him to record the fardbeyan and hence he proceeded to Raghopur P.S. with a direction to the Officer-In-Charge, Raghopur P.S with Armed Forces to remain at place of occurrence and the said direction was given by the Superintendent of Police, Priti Verma, I.P.S. He has stated that he cannot say why Nashrudin Kha was suspended. He has further stated that paragraph 1 to 20 of the case diary the 40 investigation proceeded even before recording of the formal First Information Report. He has further stated that he has mentioned that the recording of the fardbeyan at 7.30 A.M and the recording of formal First Information Report at 9 A.M. he has further stated that the distance between the hospital and police station is less than half kilometers as it is only 4 to 500 meters. He has further stated that he along with Nashrudin Kha the Officer-In-Charge of Raghopur police station reached at place of occurrence simultaneously. He has further stated that at the place of occurrence none was able to disclose anything. He further stated that he did not ask anything from Nashrudin Kha about the occurrence and after the recording the fardbeyan of Bijender Mahto he issued letter or injury report.
51. Hence, from the two sets of the evidence even considered separately it is apparent that the informant Bijender Mahto supported the prosecution case in material particular that while he was sleeping in the Varamdah got up on the sound of foot step of several persons and then he was caught Jagat and Bipat and they throw him and thereafter the kerosene sprinkled and set on fire by Jagat and Bipat. The room in 41 which his wife and children was locked and set on fire after sprinkling kerosene causing death of Baby Devi wife of informant and his five children and then he flee away and then accused Jagat resorted to firing and when informant flee away when his fire was set off by Bindeshwar, Vinod and other brother with a blanket and his wife and children burnt to ashes. The informant was taken to the informant and the Doctor examined Bijender at 1.45 A.M and the injury proved in both the Sessions Trial and the injury was found to be within two hours.
52. The evidence of Doctor the post mortem report corroborates the prosecution case regarding the time of occurrence and manner of occurrence. The post mortem examination in this case conducted at the spot the doctor who conducted post mortem examination deposed that smell of petrol coming out at place of occurrence. The I.O. also corroborates and established the place of occurrence and objective finding at the place of occurrence and found the objective evidence as he reached at place of occurrence at 5.10 just after the occurrence found the burnt remain found the six dead body 42 burnt in a room and hence supported and corroborated the prosecution case in material particular about the time and place of occurrence.
53. P.W. 1, 2, 3 and 4 are brother of the informant and in the evidence that their houses were adjoining and they immediate after the occurrence came and saw the fire setting in the house of the informant and informant disclose and they saw the fire in the house which was burning in flame and they identified the accused persons fleeing away from the side of occurrence and identified the appellant and firing by some of the occurrence.
54. P.Ws. 5, 6, 7, 8, 14, 15 and 16 are the family members who are the wives of the brother of the informant and mother of the informant as well as the sister of the informant who has supported the prosecution case in Sessions Trial No. 195 of 2006 and similarly the witnesses 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Sessions Trial No. 571 of 2006 has also supported the prosecution case. However, defence also adduced oral evidence but the learned court for defence at the out set submitted that he disowned the evidence of defence evidence and the 43 evidence of defence witness ought not be corroborated for proving the case of prosecution.
55. However, in both the Sessions Trial the informant is the only witness who saw that the accused persons came and they sprinkled kerosene at the command of Jagat and set on fire in the house after closing the door of the room in which wife and children were sleeping in the room and thereafter setting fire in his mouth of informant and others said in fire in the house and when the fire set on reseated in flames of fire then the accused persons starting fleeing away and this informant also flee away on which the firing was made by Jagat and Bipat at the informant and then on cry and fire of the flames the brother of the victim informant got up and saw the informant burning in fire in his body and the house of the informant was burning in flame and saw the accused persons fleeing away towards West. The motive for occurrence alleged that prior to the occurrence the buffalo of the informant has been theft away for which a case was instituted by the informant which resulted in arrest of one Vazir yadav and Ajay Yadav and thereafter the threat by Jagat to set 44 his son free otherwise he will burn him and his family and it has also come in evidence that a Panchayati convening and there was threat in Panchayati to manage the release else and withdraw the case. The informant will be burnt with family. However, the witness supported the prosecution case that they saw the informant came crying with a burn injury causing injury and the witness was the accused persons fleeing towards the west and identified then in flame of fire. Hence, the prosecution evidence about the occurrence setting on fire and fleeing away after setting on fire causing death of five person is well established by cogent reliable and unimpeachable evidence and even corroborated by evidence of doctor and investigating officer and identification of the appellants also have been well established.
56. However, learned counsel for the appellant contended that there is no allegation by firing against Deepak Rai @ Bipat Rai nor allegation by him burning matches or setting the house on fire and there are contradiction in a statements during trial. However, in the fardbeyan the name of the appellant Bipat @ Deepak is specifically mentioned and even the role attributed that while the informant trying 45 to flee away then Jagat and Bipat catch hold of him and throw him and Jagat Ram setting fire on his mouth and when the flame of the fire got high then the accused persons flee away and then informant also tried to flee then Bipat fired and hence in the fardbeyan there is specific allegation against Bipat and Jagat and in the evidence also the witness as stated that Jagat and Bipat having armed with rifle and gun and when he tried to flee away then Jagat and Bipat got over his chest and thereafter story of sprinkle kerosene and setting on fire has also been mentioned in the evidence of informant to disbelieve his testimony regarding the implication of the appellants and hence submission that there is variation or basic difference in statement during trial, however, minor variation with does not shave the core of prosecution story is of no consequence as minute variation is are natural and does not go to the roof of prosecution case. Further the allegation made in the fardbean regarding the implication of appellant Jagat and Bipat and Baccha Rai has been well proved in evidence by the informant and there is no infirmity and nothing has been pointed out or found in evidence of the informant in either of his evidence in Sessions Trial 46 No. 195 of 2006. Sessions Trial No. 571 of 2006 to disbelieve his testimony regarding the participation of Jagat and Bipat and Baccha and the evidence against Jagat and Bipat are more specific and nothing has been pointed out to disbelieve the informant in either of the cases.
57. Learned counsel for the appellant, however, contended that in fardbeyan it has been claimed that he identified the accused in the light of electric bulb but in the evidence the claim to identify in the flame of the fire. However, there is nothing unreasonable so far the identification of accused is concerned, the prosecution case itself in the fardbeyan that the occurrence took place at about 12.30 to 1.00 A.M in the night and the prosecution case that the informant got up on the foot step of the accused persons and when he tried to flee away he was catch hold of by Jagat and Bipat and throw him on the ground and then 4 - 5 persons catch hold of him and then pressed him and then put a gunny bag in his mouth and Jagat lit a match and when the flame of the fire got them the accused persons flee away. However, from the nature of allegation itself apparent that the Bipat and Jagat catch hold of the informant and hence the distance of Jagat and Bipat appears to be very 47 small and thereafter a match was lit and after setting on fire the prosecution case that the accuse persons flee away after the flame of fire rise and hence the probability of identification in the fire cannot be ruled out and further the probability of identification in the light of the match stick when lit and the probability to identify in the light even coming from long distance as it has come in evidence that to the west of the house of informant there was house of the Chabila in the west and hence the identification in the electric bulb as well as in the light of the flame of the fire of burning of house is most probable. Except the informant no witness claim to be eye witness of occurrence of setting on fire of house and informant by accused person but their evidence that6 they saw informant burning in flame in fire and they saw the accused persons fleeing towards the west of the place of occurrence and then identification in the flame of the fire of the burning of the house by the witness is most probable and reliable.
58. Hence, the prosecution case cannot be rejected in the facts and circumstances when informant claim identification when there is close proximity of the informant with the accused and scuffle as the 48 case of the informant that Jagat and Bipat catch hold of the informant and throw him and commanded to surround and kill and hence the identification in such proximity by voice as well as in the night is also probable and further the prosecution case that after the flame of the fire got up then the accuse persons start fleeing away and hence the probability of identification in the flame cannot be ruled out or disbelieved.
59. Learned counsel for the appellant, however, contended that none of the witnesses has stated to have seen the occurrence of setting on fire by the accused persons. However, it is true that there was no occasion for the witnesses to see the setting on fire as the prosecution case itself that while the informant was sleeping on Varamdah then the accused persons came catch hold of him put gunny bag in his mouth and then sprinkled kerosene on his house after locking room and when the flame of the fire gone up then the accused persons start fleeing away and the informant also flee towards the house of the brother in north and then his brother got up saw the informant burning in fire the accused persons fleeing away in the light 49 of flame and hence there was no occasion to the witness to see the setting on fire by the accuse and hence the witnesses are reliable not claiming to the eye witness of the occurrence of setting on fire by accuse person but has only claimed to have seen and identified the accused persons fleeing away from the site of occurrence toward west of the place of occurrence.
60. However, the learned counsel for the appellant contended that it is not possible to identify as the accused persons were fleeing towards west and the witnesses were seen the accused from east from where the witness could not have see the face of the accused. However, it is true that the fact may not be visible but the identification of a person from the side or from the back from a distance of 10 to 15 yards is not impossible to disbelieve as the appellants were well known to them.
61. Learned counsel for the appellant, however, contended that the enmity was with Jagat and no enmity with Bipat and Baccha. However, it has come in evidence that prior to the occurrence the buffalo of the informant Bijender was theft away and for which the 50 case was instituted in which Vazir Rai and one Ajay Rai son of accused Jagat Rai was arrested and then the accused used to threaten to get them released on bail else done to death.
62. The learned counsel for the appellants contended that there was no enmity with Baccha and Bipat as if there was no enmity there is no reason why the accused Baccha and Bipat have been falsely implicated. However, when the participation of the appellant Jagat and Bipat and Baccha have been proved by the evidence of the eye witnesses and the evidence do not suffer from any infirmity about their participation and the evidence of the informant found to have been reliable and trustworthy and there is nothing in his evidence to disbelieve his testimony regarding the occurrence then his evidence cannot be rejected on the ground that enmity has not been alleged against Bipat and Baccha.
63. Learned counsel for the appellant, however, contended that it has come in evidence that non of the independent witness of the village has come forward to support the prosecution case as apparent from the evidence of the I.O. that none of the villagers except the 51 family members came to depose before him. Even the Superintendent of Police, Deputy Superintendent of Police, Inspector, I.G., and D.I.G. had come to the village but none came before these Superior Officers to depose or make any statement. However, the occurrence having been serious of a ghastly murder by burning the entire family for a matter that a theft case instituted not withdrawn in which the accused arrested and then a threat to get release else they will be done to death and this threat was translated into reality and the entire village was shocked as it has come in evidence that even a Panchayat this threat was made and hence it may have shocked the entire village and none may have been desired to be a party for a witness against such murder. Moreover, it is well settled and observed by the Apex Court in various decisions that the experience reminds that civilized people generally unsuccinctly when the crime is committed even in their presence they withdraw themselves both from victim and vigilante they give themselves away from court unless it is inevitable and considers crime like civil dispute is between two individual and they should not involve themselves. However, this unfortunate but it is forward whether in village town or 52 city and hence the villagers not come to depose is not of much consequence, however, it is true that all the witnesses in this case are the family members. however, the occurrence took place in the night there can hardly be inspected any witness to the occurrence and at the time when house was set on fire only the informant and hence he is the only witness and there is nothing in his evidence to disbelieve his testimony was there. The occurrence took place and after occurrence he flee to the house of his brother and it was the brother whose house in proximity came and saw the occurrence and they saw the accused persons fleeing away toward the west and it has come that after the occurrence the villagers came and hence it shock keeping away from the incidence and merely because villagers keeping away themselves from the occurrence and not coming forward is no ground to disbelieve the prosecution witnesses and the prosecution case cannot be thrown out or doubted on that ground alone instead of doubting the prosecution case for want of independent witness requires to consider the broad spectrum of the prosecution version and search for the truth with due regard to the probabilities if any suggested by accused. 53
64. Hence, the prosecution story cannot be rejected merely on the ground that the independent witness not coming forward to depose. However, particularly in the case the persons whose houses are away from the place of occurrence they may not be an eye witness either to the occurrence of setting on fire or about the fleeing away of the accused persons at the side of occurrence at and about the time of occurrence and it can only be the person whose are near the place of occurrence has occasions to see the accused fleeing from the place of occurrence after setting on fire. The witnesses are the next door resident and there is every probability to get up and see the occurrence and identify the accused who are fleeing away to be identified in flame of fire.
65. However, taking into consideration the fact, the occurrence took place at 12.30 P.M. to 1.00. P.M in the mid night. The victim was in hospital at 1.45. The police reached at the place of occurrence at about 5.00 and found the objective evidence about the occurrence. The evidence of doctor supporting the prosecution case about the time of occurrence and the manner of occurrence. The I.O 54 that highest Police Officer all reached to the place of occurrence. The post mortem was conducted at the place of occurrence at about 2.30 P.M on the same day and six persons found dead by the fire in a room and hence the occurrence cannot be denied that there was no occurrence at all and the accused persons also does not challenge that no occurrence at all occurred. However, there defence the fire setting by electricity in the house of the informant. However, there is no basis and no material brought to probabilize that suggestion and except suggestion there is nothing to suggest that fire broke out in the manner suggested.
66. However, in the evidence of P.W. 8 in Sessions Trial No. 571 of 2006 is the witness Jaga Devi is the wife of informant Binod Mahato. However, she has stated in her evidence in paragraph 18 that at that time of the occurrence her Debar Bablu gone out to Gaya district to sell Tobacco and he came after 4 days. She has further stated that Kamli Devi P.W. 9 in Sessions Trial No. 571 of 2006 and P.S. 15 in Sessions Trial No. 195 of 2006 and hence at the time of occurrence and further that Madan his son had been to Delhi at the time of the 55 occurrence and hence the evidence of P.W. 5 in Sessions Trial No. 571 of 2006 and P.W. 4 in Sessions Trial No. 195 of 2006 and so far as the Madan is concerned he has not a witness and hence even discarding the evidence of Babloo and Kamli Devi the evidence of the other witness are sufficient to prove the occurrence and participation of appellant.
67. However, the occurrence took place at 12.30 to 1.00 and there is evidence that on cry the brothers of the victim came and took him to Primary Health Centre. However, the Doctor examined him at 1.45 A.M on 01.01.2006 who is eye witness no. P.W. 10 in Sessions Trial No. 195 of 2006 and P.W. 10 and P.W. 12 and has stated in their evidence that police was present in the hospital and further while he was examining the injured was same to make statement. The evidence of P.W. 1 that he took his brother to hospital at about 1.00 A.M and there the treatment was done and has stated that whatever he stated to the Daroga was recorded by Daroga as per his evidence in paragraph no. 33. He has further stated that Jamadar of Raghopur P.S. recorded what he stated at about 1.00 P.M and read over to his brother and he also give a signature and he has stated that when his brother was taken 56 to PMCH at 6.00 A.M thereafter he went to his house. However, P.W. 3 has stated in paragraph no. 26 that while his brother was being taken to hospital he was unconscious and has further stated that his brother was admitted in PMCH and he went to see his brother at PMCH. He was unable to identify anyone. However, he in one line stated that while taking to hospital his brother was unconscious. However, has not mentioned whether his brother was taken to hospital from place of occurrence or from Primary Health Center to PMCH. Though in second line of his deposition he stated that his brother was admitted in PMCH and hence the astray evidence of P.W. 5 is not of much consequence. P.W. 4 Babloo Mahto have stated that his brother got unconscious in hospital. Daroga came in hospital. He has stated that his brother Vinor Mahto got recorded his statement to Daroga but in same line of his evidence he has stated that he was not present there. However, much reliance has been placed by the defence on this part evidence of this witness that his brother got unconscious in hospital and it was Vinod who got recorded the statement to Daroga but his statement that he was not there show he was not a witness to that 57 effect. He has further stated that he remanded in his house and hence when he was not at hospital what is value of his evidence on that part. However, this evidence has got no value. In view of the fact of the witness in same stretch that this witness was not there and further that he cannot say whether Vinod and Bijender put their thumb impression on that statement and further stated that he remain at his house and hence the evidence of P.W. 3 at paragraph 12 is of no consequence to defence. However, the I.O. P.W. 11 has stated that he reached at the place of occurrence at about 5.10 after hearing the rumor at about 4.30 and then he learnt that the injured is in Raghopur Primary Health Centre and then he reached there. However, this witness in his evidence as P.W. 14 in S. T. No. 571 of 2006 has proved the fardbeyan and has stated that he reached at the place of occurrence at Nashrudin Khan also came at the place of occurrence. However, this witness has stated that Nashrudin Khan was the Officer-In-Charge of Raghopur Police Station. In his evidence it has also come in paragraph no. 46 that the distance between the Raghopur police station and Primary Health Centre is 400 to 500 meters. The officer-in-charge Nashrudin Khan 58 reached at the place of occurrence but Nashruddin did not reach in the hospital and this witness has stated that the Senior Police Officer reached at the place of occurrence and this Nashrudin Khan was suspended and the P.W. 11 was asked to record the fardbeyan of the informant and then this witness P.W. 11 proceeded at about 7.00 and first reached the Police Station and then went to the hospital from Police Station and then recorded that statement. However, P.W. 1 Vinod Mahto has stated that statement recorded at 1.00 P.M and 6.00 P.M after the sun set his brother went to Patna and then he return back. However, the I.O. stated that he recorded the statement at 7.00 A.M and a question rose that the witness got unconscious in the hospital. However, P.W. 1 states that the statement recorded in the night at 1.00 A.M. However, the occurrence taken place at 12.30 to 1.00 and hence the statement of P.W. 1 Binod Kumar, Jamadar Saheb recorded his statement at 1.00 P.M but Zamadar is not inspected to record the FIR does not inspire confidence though the Doctor itself has stated that he examined the victim at 1.45 and before him no statement was recorded by the Police Officer but P.W. 1 has stated that his brother was taken to 59 PMCH at 6.00 and then be (P.W. 1) become back to his village. However, the I.O. in his evidence states that he was instructed to record the fardbeyan and by the Superior Officers and then he proceeded and recorded the statement of informant at 7.30. However, the P.W. 1 admits that the informant was there in hospital and the I.O. states that he recorded the statement at 7.30 and the time 6 A.M. and 7.30 is so proximate that mistake in mentioned the time and institution of time can well be inferred to show that victim informant was in Hospital at about 7.30.
68. However, this witness P.W. 11 has proved Ext. 11 in Sessions Trial No. 195 of 2006. the injury report in which has been mentioned that Bijender Mahto injured is being sent for examination and treatment and on the back of this out 11 there is injury report by the Medical Officer which mentions that he examined the injured as 1.45 A.M.
69. However, it has been asserted that the said injury report was sent at about prior to 1.45 P.M. However, this witness has stated in his evidence specifically that he first recorded the fardbeyan and then 60 issued the slip and specifically stated that he reached at the place of occurrence on rumor at 5.10 A.M and then at the direction of the Superior Officers particularly the Superintendent of Police, Priti Verma proceeded to take the statement but Khan Office In Charge of Raghopur Police did not turn up to Hospital when PHC is only 400 to 500 miles and Doctor in his evidence stated that he examined Vijendra Yadav at 1.45 and police was there and P.W. 1 Vinod Mahto depose that one Jamadar recorded the statement and Mr. Khan the Officer-In- Charge did not turn up and it has come that Senior Police Officer reached at place of occurrence direction given to P.w. 11 to record the statement when he is O/C. However, in this context it has also come that the Officer-In-Charge, Raghopur did not proceed to the hospital though it has come that Jamadar of Raghopur Police Station recorded the statement. However, it has come in evidence that the victim informant Bijender Yadav received burn injury and was taken to hospital whether he was treated and during that period he was conscious and the doctor has also stated that he checked up at 1.45 he was conscious. However, the Vinod Kumar Mahto P.W. 1 stated that 61 statement was recorded at 1.00 P.M. and it indicates some lapse on the part of Officer-In-Charge of Raghopur P.S. and it has come that Baby Devi had filed rape case against the Officer-In-Charge of Raghopur P.S. and said after In-Charge suspended and direction issue to A.W. 11 to record statement.
70. However, having regard to the circumstance that though the I.O who recorded the statement has stated to have recorded that statement and there is nothing in his evidence to disbelieve him one and except whether the some of the witnesses have stated that Vijendra Yadav became unconscious.
71. However, the doctor in his evidence has stated that 1.45 P.M that the victim was in sense and even able to give statement and hence it is the doctor who is expert to say the victim was conscious and even the evidence that the victim was treated. However, it is true that there some lapse that the victim was admitted at hospital at 1.45 P.M. however, Raghopur P.S. 400 to 500 yards but the Daroga did not reach there. However, from the evidence it is apparent that there was Police Officer present at the hospital and it has also come that Jamadar 62 recorded the statement. However, the Daroga did not turn up but it has come in evidence that Officer-In-Charge of Raghopur P.S. under which the place of occurrence comes have been suspended on the same day though no reason has been assigned. Even the Superior Police Officer reached at the place of occurrence and direction issued to record the statement of the informant on the basis of which the statement was recorded by the I.O Anjani Kumar and hence for the same lapse is on behalf of Daroga for not reaching the hospital and the administration had to take action to suspend him though it has come in evidence that Daroga was suspended on the date of occurrence though no reason has been given for the suspension but it appears that it was for lapse on part of Daroga of Raghopur. However, lapse on part of Daroga or the prosecution cannot be ground for rejecting prosecution case when the witnesses have been found to be credible and their ocular evidence found to be reliable and trustworthy and the attaining circumstance conclusively proves the occurrence and the participation of the appellant in the crime with unimpeachable objective evidence about the occurrence. However, taking into consideration the evidence of the 63 informant there is nothing in his evidence to disbelieve in the testimony of the witness and however the attaining circumstance proved by prosecution that the occurrence took place in mid night at about 12.30 at the house of informant in which six of his family members the wife and children burnt to ashes and the implication of the appellant even been established the guilt of the appellants with others accused more than five.
72. However, much attempt has been made to show that the investigation is defective as the statements of the witnesses were not recorded. However, it is true that the informant reached hospital at about 1.45 and the police station is only 400 to 500 yards but the Daroga of the said police station did not reach the hospital to record the statement but doctor says that police was there in the hospital. Hence, the lapse is on the part of the Police Officer to record the statement, at the earliest in the night itself at 1.45 or 2.00 A.M but the I.O was directed to record the statement or fardbeyan by Superior Police Officer and Mr. Khan suspended indicates some lapse on part of police or prosecution. However, for lapse on the part of the Police or defective 64 investigation the court has to circumspect in evaluating the evidence and it is not proper to acquit the accuse solely on the ground of the lapse or defect as it will amount playing into hand of the police or investigating authority. However, taking into consideration that the just after the occurrence the I.O. who is at the O.P., Rustampur reached at the place of occurrence and on the direction of Higher Police Officer recorded the statement and there is no reason to disbelieve his evidence and the prosecution story cannot be disbelieved for the reason of the lapse on the part of the then Officer-In-Charge, Raghopur when it has come in evidence that the said Officer-In-Charge, Raghopur Mr. Nashrudin Kha was suspended on the same day by the Higher Authority. Hence taking into consideration the entire evidence and the submission made by the parties and the defence I find and hold that the prosecution has been able to prove the charges leveled against the appellant beyond reasonable doubts and hence I find and hold that the prosecution has been able to prove the charges under Section 302/149 of the Indian Penal Code and since the occurrence is ghastly murder of wife and five children of the informant by closing in room for not 65 withdrawing the case of theft of buffalo shocked the entire community bringing the case in the category of rare of rarest to attract the maximum punishment and hence the reference is answer affirmative and I do not find any merit in the two appeals and hence the appeals are dismissed.
(Gopal Prasad, J.) Shyam Kishore Sharma, J. :- I agree.
(Shyam Kishore Sharma, J.) Patna High Court, Patna Dated 19th August, 2010 Kundan/N.A.F.R.