(Per: JUSTICE ASHUTOSH KUMAR)
1. All the three appeals have been taken up together and are being disposed off by this common judgment.
2. Appellant/Tuntun Singh [Cr. Appeal (DB) No. 377 of 2018] and appellants/Kapildeo Singh, Umesh Singh, Diwakar Singh, Kamlesh Singh and Raj Kumar Singh @ Raja Jee [Cr. Appeal (DB) No. 342 of 2018] have been convicted for the offences under Sections 148 and 302/149 of the Indian Penal Code (in short the IPC) and Section 27 of the Arms Act vide judgment dated 21.02.2018 passed by the learned Additional District and Sessions Judge, Rosera, Samastipur in Sessions Trial No. 69 of 1995, arising out of Bibhutipur P.S. Case No. 90 of 1993. By order dated 24.02.2018, they have been sentenced to undergo R.I. for two years for the offence under Section 148 of the IPC; to undergo imprisonment for life, to pay a fine of Rs. 20,000/- each and in default of payment of fine, to further suffer R.I. for six months for the offence under Section 302/149 of the IPC and to undergo R.I. for four years, to pay a fine of Rs. 5,000/- each and in default of payment of fine, to further suffer R.I. for three months for the offence under Section 27 of the Arms Act.
3. Appellant/Madan Singh [Cr. Appeal (DB) No. 383 of 2018], whose case was separated, was also convicted for the offences under Sections 148 and 302/149 of the IPC and Section 27 of the Arms Act vide judgment dated 21.02.2018 passed by the learned Additional District and Sessions Judge, Rosera, Samastipur in Sessions Trial No. 69 A of 1995, arising out of Bibhutipur P.S. Case No. 90 of 1993. By order dated 24.02.2018, he has been sentenced to undergo R.I. for two years for the offence under Section 148 of the IPC; to undergo imprisonment for life, to pay a fine of Rs. 20,000/- and in default of payment of fine, to further suffer R.I. for six months for the offence under Section 302/149 of the IPC and to undergo R.I. for four years, to pay a fine of Rs. 5,000/- and in default of payment of fine, to further suffer R.I. for three months.
4. All the sentences have been ordered to run concurrently.
5. In Sessions Trial No. 69 of 1995, five witnesses were examined on behalf of the prosecution, namely, Shakuntala Devi (wife of the deceased/P.W. 1), Raghuvansh Singh (P.W. 2), Satish Prasad Singh (informant/P.W. 3)), Dr. Arvind Kumar (P.W. 4) and Shankar Prasad Singh (P.W. 5).
6. In Sessions Trial No. 69 A of 1995, four witnesses have been examined on behalf of the prosecution, out of whom three are common, namely, Raghuvansh Singh (P.W. 1), Satish Prasad Singh (informant/P.W. 2) and Dr. Arvind Kumar (P.W. 3), who had conducted the post-mortem examination on the deceased. Apart from these three, one other witness, namely, Nasresh Kumar (P.W. 4) has been examined in the afore-noted Sessions Trial.
7. AÆer going through the deposition of the witnesses in both the Sessions Trials, referred to above, it appears that practically on all aspects, all the witnesses have made similar deposition before the Trial Court.
8. For the sake of convenience and clarity, we would be referring to the deposition of the witnesses of Sessions Trial No. 69 of 1995, referred to above.
9. We have heard Mr. Ramakant Sharma, the learned Senior Advocate for the appellants/Tuntun Singh in Cr. Appeal (DB) No. 377 of 2018 and Madan Singh in Cr. Appeal (DB) No. 383 of 2018. Mr. Murari Narain Chaudhary, the learned Advocate has appeared for the five appellants, namely, Kapildeo Singh, Umesh Singh, Diwakar Singh, Kamlesh Singh and Raj Kumar Singh @ Raja Jee in Cr. Appeal (DB) No. 342 of 2018.
10. The State, in the all the appeals, has been represented by Mr. Abhimanyu Sharma, the learned Additional Public Prosecutor.
11. One Gunanand Singh, a CPM leader is said to have been killed in the night intervening between 11th - 12nd of August, 1993. The FIR was lodged by Satish Prasad Singh (P.W. 3) before the Officer-in- Charge of Bibhutipur Police Station on 12.08.1993 at about 02:45 in the morning at the house of the deceased. He has alleged that at about 10 O’clock in the night intervening between 11th - 12th of August, 1993, he along with Raghuvansh Singh (P.W. 2) and Ram Udit Singh (not examined) were sitting with the deceased/Gunanand Singh near a well belonging to the deceased. AÆer some time, the deceased got up and tethered his cow to another peg. In the meantime, the miscreants including the appellants, out of whom nine have been named and four to five unnamed, came. All of them were armed with pistols, knives and daggers. No sooner had they arrived at the place of occurrence, they dragged the deceased across the road and attacked him by knives and also fired at him. AÆer the deceased died, the accused persons fled away and also fired to cover their exit. The cause of occurrence as stated in the FIR is old enmity. The informant, thereaÆer, claims to have liÆed the dead-body of the deceased and was almost sure that he had died. Still the dead-body was brought to Narhan Hospital, where the Doctor declared the deceased to be dead. The occurrence was witnessed by Ram Balak Singh, Gopi Singh, Arvind Singh and other villagers, none of whom have been examined in both the Trials.
12. On the basis of the afore-noted fardbeyan statement of P.W. 3, a case vide Bibhutipur P.S. Case No. 90 of 1993, dated 12.08.1993, was registered for investigation under Sections 147, 148, 149 and 302 of the IPC and Section 27 of the Arms Act.
13. The police, aÆer investigation, submitted charge-sheet against ten accused persons who were put on Trial in Sessions Trial No. 69 of 1995.
14. The Trial Court, aÆer having examined five witnesses, referred to above, on behalf of the prosecution, convicted appellants/Tuntun Singh, Kapildeo Singh, Umesh Singh, Diwakar Singh, Kamlesh Singh and Raj Kumar Singh, but acquitted four of the persons who were put on Trial, viz., Pankaj, Shankar, Ramesh and Ranjay.
15. We have already noted that appellant/Madan Singh [Cr. Appeal (DB) No. 383 of 2018] was tried separately vide Sessions Trial No. 69 A of 1995 where the Trial Court has examined four witnesses on behalf of the prosecution. He too was convicted for the afore-noted offences.
16. The major thrust of the argument of the appellants is that though P.Ws. 2 and 3, viz., Raghuvansh Singh and Satish Prasad Singh have claimed to be the eye-witnesses to the occurrence, but their deposition would clearly reveal that they have not come up with the correct version of the occurrence.
17. The other limb of argument is that in a case of this kind, non-examination of the I.O. has caused serious prejudice to the case of the appellants and, therefore, they are required to be the given benefit of doubt and acquitted ultimately.
18. The last of the argument is that there was no source of light when the occurrence had taken place and, therefore, it was well-nigh impossible for anybody to have identified the assailants out of many of the accused persons who had come with the sole purpose of killing the deceased. No family member of the deceased or the neighbours of the deceased have been examined at the Trial except for the wife of the deceased, who has been examined as P.W. 1 in Sessions Trial No. 69 of 1995.
19. As opposed to the afore-noted contentions, Mr. Abhimanyu Sharma, the learned APP has submitted that the witnesses have categorically stated about appellant/Tuntun Singh having fired at the deceased and the others assaulting the deceased by means of knives and daggers. There was political rivalry and it is not very unlikely that persons of the opposite camp of Communist Party having differences with the deceased, gathered together and consummated the offence. Had it not been so and if it had been a case of general law and order or that the accused persons had come with any other intention, the other persons, viz., Raghuvansh and Satish, who were at the P.O., unarmed, would not have leÆ unscathed.
20. It has been admitted on behalf of the prosecution that the I.O. has not been examined but if the deposition of the witnesses are examined in detail, no prejudice would be seen to have been caused to them. Though it is a case of the year 1993, but a popular political leader was killed shortly aÆer the meeting of the party members had been convened and which meeting was over before the occurrence.
21. Mr. Sharma, therefore, submits that the conviction is justified. The Trial Court was conscious enough to look at the accusation in detail and on finding that there was no evidence forthcoming with respect to the complicity of four of the accused persons put on Trial in Sessions Trial No. 69 of 1995, they were acquitted of the charges.
22. As noted above, we have referred to the deposition of witnesses in Sessions Trial No. 69 of 1995. The wife of the deceased/Shakuntala Devi (P.W. 1) has confirmed that the occurrence took place in the night of 11th of August, 1993. At that time, a meeting of the political party was being held in her house on the roof-top. The meeting got over by about 10:00 P.M. ThereaÆer, her husband (deceased) went to feed the cows tied near the well. At that time, Satish, Raghuvansh and Ram Udit Singh were also present there. When she heard some commotion, she came to the roof-top. However, immediately thereaÆer she heard the garbled voice of somebody. She then came out of her house with a torch in her hand and found her husband lying on the ground injured. When she reached near her husband, she became unconscious. She did not see anything else thereaÆer. However, she has claimed that the deceased was killed because of political rivalry. She did not identify anyone of the appellants present in the dock. She has also stated that the meeting at her house had started at about 08:30 P.M. and continued till 10:00 P.M., which was attended by about 40 to 45 workers. The deceased had four brothers, but her household was separate in mess and business. She has taken the name of her neighbours, viz., Siyaram Singh, Ram Jatan Singh, Arvind Singh, etc.
23. On being questioned, she has again confirmed that it was a dark night when the murder had taken place. It was the day when Janmashtami festival was being celebrated in a nearby temple. She had seen her husband lying on the ground by the side of a road. Around the dead-body was all agricultural field. Her house is situated to the west of the agricultural field. When she had seen the dead-body of her husband, there was no person present there.
24. Raghuvansh Singh (P.W. 2) has stated on similar lines that when he along with Satish and the deceased was sitting near the well and the deceased had come back aÆer tying one of the cows to a peg, the appellants arrived in a large number; dragged the deceased to a distance and killed him. He has specifically stated that appellant/Tuntun Singh, carrying a pistol in his hand, fired at the deceased. Rest others, who were carrying daggers, hit the deceased and caused several injuries on him. He too was of the view that the murder had been committed because of political rivalry. Like P.W. 1, he has also admitted that it was a dark night, but festival of Janmashtami was being celebrated in a nearby Thakurbari. The reason for the presence of P.W. 2 at the P.O. was that he had fought his brother and was upset, so he wanted to spend time with the deceased. When he had gone to the P.O., the deceased was busy in the meeting. He could meet him only aÆer half an hour. Till such time, he and Satish and some others, whom he did not name in his deposition, sat near the well. AÆer the meeting, all the workers, who had attended such conclave, leÆ. Only two of them remained behind, namely, Ramnath Mahto and Birendra Singh. They also leÆ aÆer sometime. He had no idea whether at the time of the occurrence, the brothers of the deceased or their family members were present in their houses. He identified appellant/Madan Singh because Madan Singh hailed from same village and his house is situated only about one and half kilometers away from the house of the deceased. He has but categorically denied the suggestion that he and Satish are also members of the CPM and belonged to the opposite faction of the deceased.
25. During cross-examination, it was elicited from P.W. 2 that he along with Satish and the deceased were made accused in the case of murder of one Ram Uday Singh and Ram Uday Singh is the cousin of appellant/Madan Singh. ThereaÆer, his deposition is almost similar to P.W. 1, viz., that the deceased was taken to Narhan Hospital, where the Doctor declared him dead. The dead-body was then brought back to the Thakurbari. The police arrived late in the night when the FIR was registered on the statement of Satish Prasad Singh. The dead-body was taken by the police for post- mortem, whereaÆer the deceased was cremated near river Gandak. The suggestion to P.W. 2 that he, Satish and others had killed the deceased on the instigation of the local MLA and had filed a false case, was denied by him.
26. Satish Prasad Singh (informant/P.W. 3) claims to be present at the time of the occurrence. He had also accompanied Raghuvansh and others to Narhan Hospital, where the deceased was declared dead. The dead-body was brought to Village-Sakh Mohan and kept at the Thakurbari. He had given his fardbeyan statement at about 02:45 A.M. in the morning on 12.08.1993. When firing was being resorted to, he was at a distance of fiÆeen to twenty feet. Nobody from the crowd tried to harm him or any one else. On seeing the occurrence, he shouted which attracted approximately hundred persons at the time of occurrence. It was at that time that the wife of the deceased also came out of her house.
27. What is noticeable in the statement of P.W. 3 is that he has confirmed that he did not talk about the occurrence to any one who had assembled at the P.O. immediately aÆer the deceased had died. The other noticeable feature in his deposition is that he had not informed the police. He had no idea as to who had given information to the Police Station for the police party to arrive in the village late in the night of 11.08.1993. The dead-body was not brought back home aÆer the post-mortem, but was burnt near river Gandak.
28. The post-mortem examination of the deceased was done on 12.08.1993 by Dr. Arvind Kumar Singh (P.W. 4). He had found nine injuries on the person of the deceased, out of which, seven were incised wounds and one was an abrasion. One wound of entry of gun-shot was also found on the front chest of the deceased. The sternum was fractured and there was laceration of the pericardium and right ventricle. A bullet was recovered from the chest cavity, which was seized and handed-over to the constable. Blood clots were found in the leÆ thoracic cavity. The time of death was assessed at 24 hours from the post-mortem examination. In the opinion of the Doctor, one injury was by gun-shot, whereas the other injuries were sharp penetrating substance. He also found one injury to have been caused by hard and blunt substance. The death, in his opinion, was caused by shock and hemorrhage due to the afore-noted injuries. He, however, had not seen any charring or blackening at the wound of entry. Rigor mortis had started developing.
29. Shankar Prasad Singh (P.W. 5) in Sessions Trial No. 69 of 1995 is only a formal witness. Nasresh Kumar (P.W. 4) in Sessions Trial No. 69A of 1995 is also a formal witness and is of no help to assess the charge against the appellants.
30. From a conspectus of the deposition of these witnesses, few facts emerge very clearly.
31. Many persons had come to kill the deceased. The deceased was an important political figure and an active member of CPI/CPM. In the night of the occurrence, there was a meeting convened of the workers of the party. The meeting was held on the roof- top of the house of the deceased. The meeting was over by around 10:00 P.M. Shortly, thereaÆer, the shooting incident took place. Where had the accused persons come from was not known. Nine of them were identified by the informant/P.W. 3. Four to five accused persons could not be identified. There was no attempt on the part of the witnesses, who were present there, to chase the miscreants. Nobody else except the deceased was targeted.
32. According to the accusation, the deceased was dragged across the road and then shot at and also assaulted by knives and daggers. All this was happening across the road but near the house of the deceased.
33. With these set of facts, it appears to be rather strange to us that none of the neighbours of the deceased who had been named by Shakuntala Devi (P.W. 1) and even the brothers of the deceased, whose house are situated nearby, ever came forward. They did not even come to the witness-stand to speak about the occurrence which had taken place in the night.
34. We have referred to the deposition of Shakuntala Devi (P.W. 1), who saw the dead-body lying across the road, amidst agricultural field, when nobody was present there. She became unconscious thereaÆer and did not witness any other subsequent events.
35. Whether there was enmity of the party workers with the deceased or some outsiders were hired to kill him, remains unknown. It could have been discovered provided the investigator would have been examined.
36. The suggestions given to the witnesses that they, perhaps, were of the opposite camp of the deceased was though denied by them, but the same could not be confirmed because of non-examination of the I.O.
37. Where was the deceased killed
38. If P.W. 1 is to be believed, the dead- body was found somewhere in the field by the side of the road. If Raghuvansh Singh and Satish are to be believed, then the deceased was dragged from near the well across the road and shot at. All this would have taken time. The accused persons fled under the cover of firing.
39. P.W. 3/informant claims to have shouted for help. People numbering hundreds assembled there. All this information is rendered doubtful if Shakuntala Devi is to be believed. It also appears to be doubtful that with so many people having come to kill the deceased, no attempt was made to target P.Ws. 2 and 3, who were in close vicinity and, perhaps, associates of the deceased.
40. We have our lingering doubt about this also for the reason that the occurrence of shooting and killing the deceased took place around 10:00 P.M. The dead-body was taken to Narhan Hospital, the timing of which is not known. The Police Station is nearby. Whether police learnt about the occurrence of its own through rumour or somebody from the village had provided such information for the police to arrive has remained unknown. The Trial Court could have known these facts only if the investigator would have been examined.
41. These facts would have assumed relevance with respect to the timing of the occurrence and correctness of the version of P.Ws. 2 and 3 that they were all along present when the occurrence had taken place and had witnessed the actual part of the assault.
42. There is yet another aspect of the matter which leaves us in some confusion and doubt whether P.Ws. 2 and 3 were making correct statement before the Trial Court.
43. A political leader was killed. This would have been otherwise a banner headline. The Communist party has committed cadre. No person from the cadre came forward to depose. Assuming that none of them had stayed back aÆer the meeting, there were others who had stayed back and might have witnessed the incident. The informant/P.W. 3 and P.W. 2 have named many persons who were present at the time of occurrence. Everything, therefore, remains shrouded in mystery, particularly for non-examination of the I.O.
44. We are conscious of the fact that law does not say that prosecution must examine all the eye- witnesses, but in the present case when even the evidence of the two eye-witnesses, viz., P.Ws. 2 and 3 is not found to be worthy of acceptance, non-examination of independent persons has become fatal for the prosecution.
45. In the present set of circumstance, non- examination of the I.O. has created a material lacuna in the efforts of the prosecution to nail the appellants. This has created reasonable doubt in the prosecution version.
46. Who would disagree that investigation is a systemic and organized process for gathering information, collecting evidence and uncovering the truth or establishing the circumstances surrounding a specific event or situation. It involves diligent examination, analysis, evaluation of available resources etc.
47. One of the most important aspects in a criminal trial is to know as to when and how the occurrence had taken place. The crime scene management evidence is rendered completely nugatory if the investigator is not examined.
48. In the present case, we have doubts about the prosecution version being correct for the following reasons, viz., (a) FIR being recorded by an outsider at 02:45 A.M. in the morning of 12.08.1993; (b) none of the persons present there except P.Ws. 2 and 3 having been examined; (c) there was a gathering of about forty to fiÆy people in a meeting of the political party immediately before the occurrence; (d) those persons who had attended the meeting would not have reached their homes by that time; (e) the occurrence having been committed immediately aÆer the meeting was over and the dead-body having been seen by the wife of the deceased (P.W.1) lying somewhere in the field, across the road and (f) no other person having been even attempted to be harmed or shooed away.
49. Does it not reflect that the occurrence never took place, as it has been projected by the prosecution. There could be truth in the suggestion given to the witnesses. There is also a possibility that such suggestions would be only the figment of imagination. However, no political worker showing in his solidarity with the slain leader, gives us a feeling that perhaps the real cause of the incident or the real incident itself was something else and, therefore, nobody came forward to be a part of the prosecution.
50. Had the I.O. been examined, the Trial Court could have questioned and elicited whether there were any mass scale protest against the killing of a political leader. Though P.W. 1/the wife of the deceased has admitted to have seen P.Ws. 2 and 3 and others near the well when she had come out of the house; but it was she only who carried a torch in her hand and had spotted the deceased somewhere afar in the field. This is not in sync with the prosecution version.
51. It is an accepted principle that non- examination of the I.O. may not in all cases be fatal to the prosecution case. In Behari Prasad & Ors. Vs. State of Bihar: (1996) 2 SCC 317 and Bahadur Naik Vs. State of Bihar: (2000) 9 SCC 153, it has been opined that when no material contradictions have been brought out, then non-examination of the I.O. as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused.
52. However, on perusal of the entire materials brought on record, we find that non- examination of the I.O. has caused serious prejudice to the appellants in this case. We are inclined to think so in the present case, especially when few sets of facts were withheld by the prosecution.
53. We are conscious of the fact that procedural lapses may not be good ground for rejecting the prosecution case altogether. But in the present case, in order to avoid erosion of faith and confidence of people in the administration of criminal justice, this Court has examined the evidence laid by prosecution threadbare and has not refrained from giving primacy to the non-examination of the I.O.
54. For all these reasons, we are unable to accept the prosecution case as a truthful account of what had happened. No doubt, the post-mortem report fully confirms that the deceased was murdered brutally. Not only he was shot at, but also assaulted by sharp-pointed object and hard and blunt substance.
55. The question but is as to who were responsible for the same.
56. Both the witnesses, viz., P.Ws. 2 and 3, on whose deposition the entire fulcrum of the prosecution hinges, have named nine persons. How come They have denied to be the members of the political party. Did the miscreants/appellants belong to the same village These are important facts which remains under wraps because of non-examination of the I.O.
57. In this background, what is further noticeable is that the deceased and P.Ws. 2 and 3 were accused in the murder of one Ram Uday Singh, which offence was committed sometimes earlier. Either the deceased and P.Ws. 2 and 3 were comrade-in arms or they had fallen out with the deceased. This was required to be investigated.
58. The other important indicator is that appellant/Madan Singh, who was tried separately, is related to Ram Uday Singh for the murder of whom the deceased as also P.Ws. 2 and 3 were made accused.
59. Thus, everything has remained in dark.
60. For practically the same reason, the Trial Court could not convict the other four accused persons. Even, P.Ws. 2 and 3 except for having stated at the Trial that appellant/Tuntun Singh had fired, could not speak about specific roles played by the appellants. Though it may not be necessary or may not be possible. However, if P.Ws. 2 and 3 knew the names of the assailants and were present at the P.O., such vague statement that the deceased was stabbed and killed does not inspire confidence.
61. That apart, if the deceased was dragged to a distance and shot at, the distance of the shooter would have been minimum. The Doctor has not found any charring or blackening near the wound of entry. Wound of exit could not be found because the bullet was stuck in the cavity, which was taken out only at the time of the post-mortem.
62. Does it also not state that the occurrence had not taken place in the manner in which Satish has narrated.
63. Shakuntala Devi (P.W. 1), the only relative of the deceased who was examined, did not see any assailant and did not even identify any one of them in the dock.
64. For these reasons, we find that the prosecution by not examining the I.O. has committed a self-goal. We do not, thus, believe the prosecution case.
65. For the reasons stated above, we set aside the judgment and order of conviction and sentence, referred to above, in both the Sessions Trials and acquit the appellants of all the charges levelled against them.
66. All the three appeals stand allowed.
67. Appellants/Tuntun Singh [Cr. Appeal (DB) No. 377 of 2018] and Kapildeo Singh [Cr. Appeal (DB) No. 342 of 2018] are on bail. They are discharged of their liabilities under their bail bonds.
68. Since appellants/Umesh Singh, Diwakar Singh, Kamlesh Singh and Raj Kumar Singh @ Raja Jee [Cr. Appeal (DB) No. 342 of 2018] and Madan Singh [Cr. Appeal (DB) No. 383 of 2018] are in jail, they are directed to be released forthwith, if they are not detained or wanted in any other case.
69. Let a copy of this judgment be dispatched to the Superintendent of the concerned Jail forthwith for compliance and record.
70. The records of these cases be returned to the Trial Court forthwith.
71. Interlocutory application/s, if any in all the three appeals, also stand disposed off accordingly.
