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Judgment
Hemant Kumar Srivastava, J.
This criminal appeal has been preferred against the judgment of conviction and sentence order dated 02.08.2014 and 05.08.2014 respectively
passed by learned 3rd Ad hoc Additional Sessions Judge, Bhojpur at Ara in Sessions Trial No. 241 of 1995/Supplementary Trial Serial No. 226 of
2013 by which and whereunder he convicted the appellants for the offences punishable under Sections 148 and 302 read with Section 149 of the
Indian Penal Code and accordingly, sentenced them to undergo rigorous imprisonment for life for the offence punishable under Section 302 read with
Section 149 of the Indian Penal Code and to pay a fine of Rs. 50,000/- each and in default of payment of fine, to undergo simple imprisonment for two
years and furthermore, to undergo rigorous imprisonment for three years for the offence punishable under Section 148 of the Indian Penal Code. It is
pertinent to note here that by the same impugned judgment of conviction and sentence order, the learned Additional Sessions Judge convicted one
accused Daroga Roy for the offence punishable under Section 302 and 148 of the Indian Penal Code and accordingly, sentenced him to undergo
rigorous imprisonment for life and to pay a fine of Rs. 2,00,000/- for the offence punishable under Section 302 of the I.P.C. and in case of default in
payment of fine to further undergo rigorous imprisonment for three years only and to undergo rigorous imprisonment for three years for the offence
punishable under Section 148 of the Indian Penal Code. However, the sentences were ordered to run concurrently. The amount of fine was to be paid
to the wife of deceased as well as his dependents and if no dependent is found alive, the amount of fine was ordered to be credited in the account of
Victim Compensation Fund created under Section 3 of Bihar Victim Compensation Scheme, 2011 and if it is found that fund has not been created as
yet, the amount of fine was ordered to be credited in the account of Prime Minister’s Relief Fund, Government of India.
Originally, PW-4 Binder @ Rabindra Singh Yadav filed complaint case bearing Complaint Case No. 347 C of 1991 before the court of Chief
Judicial Magistrate, Bhojpur, Ara on 03.08.1991 which was converted into Piro P.S. Case No. 83 of 1992 but the police submitted final form in the
aforesaid case. However, a protest petition was filed by the PW-4 Binder @ Rabindra Singh Yadav which was converted into complaint case bearing
Protest-cum-Complaint Case No. 159 C of 1992 and the enquiring court having found prima facie case against the appellants and accused Daroga
Roy as well as Dharikchan Yadav summoned the appellants and accused Daroga Roy and Dharikchan Yadav and subsequently, committed the case
to the court of sessions. However, during pendency of sessions trial, accused Dharikshan Yadav died and proceeding against him was dropped by the
learned trial court vide order dated 07.03.2003. Subsequently, the appellants stood charged for the offence punishable under Sections 302 read with
Section 149 of the Indian Penal Code. Furthermore, the appellants along with accused Daroga Rai stood charged for the offence punishable under
Section 148 of the Indian Penal Code. The accused Daroga Rai was, separately, charged for the offence punishable under Section 302 of the Indian
Penal Code. The appellants and accused Daroga Rai denied the charges and claimed to be tried.
In course of trial, prosecution examined, altogether, six witnesses and got exhibited post mortem reports of deceased Shamhut Yadav and Bihari
Yadav as Ext. 1 and 1/1, deposition of Dr. Ashok Kumar Choudhary recorded in Sessions Trial No. 45 of 1992 as Ext. 2, original complaint petition
dated 03.08.1991 of Complaint Case No. 347 C of 1991 as Ext. 3 and photostat copy of injury reports of injured Bhuti Singh, Devendra Yadav, Sipahi
Singh and Umesh Singh as Ext. 4. The statements of appellants and co-accused Daroga Rai was recorded under Section 313 of the Cr.P.C. in which
they denied the prosecution story. The appellants and co-accused Daroga Rai also got exhibited charge sheet of Piro P.S. Case No. 120 of 1991 as
Ext. A and certified copy of judgment passed in Sessions Trial No. 45 of 1992 as Ext. B in their defence. The learned trial court after perusing the
evidences available on the record convicted and sentenced the appellants and accused Daroga Rai in the manner as stated above.
PW-4 Binder @ Rabindra Singh Yadav claimed in his protest cum complaint petition that on 28.07.1991 at about 5:00 P.M., while he along with
Sipahi Singh @ Sipahi Singh Yadav (PW-1), Bhuti Yadav (PW-5), Ram Kishun Yadav (PW-2), Devendra Singh (PW-3) and Samhut Yadav
(deceased) was making ridge in his field as per the measurement done by the concerned Amin of Consolidation, appellants along with accused
Dharikchan Yadav and Daroga Rai being armed with double barrel gun, farsa, lathi etc. encircled them and on the order of appellant Akshay Kumar
Yadav, the appellants and other accused started assaulting them by means of lathi and in that course appellant Virendra Yadav and Kapil Yadav
assaulted Devendra Singh (PW-3) by means of lathi. Appellant Chandrama Yadav and Bihari Singh Yadav (deceased) assaulted Bhuti Yadav (PW-
5) by means of lathi and accused Dharikchan (since deceased) assaulted Sipahi Singh Yadav (PW-1) by means of lathi.
The appellant Sribhagwan Yadav hurled farsa on him but, anyhow, he saved himself and appellant Akshay Kumar fired of his gun which hit Bihari
Singh Yadav and, thereafter, he as well as his men ran towards south-east but again on the instigation of Akshay Kumar Yadav, Daroga Rai shot fire
which hit Samhut Yadav as a result of which Samhut Yadav died. The aforesaid occurrence was witnessed by several villagers. PW-4 further
claimed in his complaint petition that Sipahi Singh Yadav (PW-1) , Bhuti Yadav (PW-5), Chandrama Yadav, Purnamasi Yadav and Ramlal Yadav
along with dead body of deceased Samhut Yadav went to Hasan Bazar police outpost on the same day at about 6:00 P.M. where Sipahi Singh Yadav
got recorded his ferdbeyan and put his signature on the ferdbeyan. Chandrama Yadav and Purnamasi Yadav also put their respective signatures on
the ferdbeyan of Sipahi Singh Yadav but subsequently, they came to know that a counter case had been lodged in Piro police station in respect of the
occurrence and in the aforesaid counter case, Sipahi Singh Yadav was arrested and was sent to Ara Court. However, the local police in collusion with
the appellants did not institute any case nor got examined the injured persons.
Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that admittedly, the
appellants had lodged Piro P.S. Case No. 120 of 1991 against the prosecution party in respect of the alleged occurrence and in the aforesaid Piro P.S.
Case No. 120 of 1991, the complainant Binder Singh Yadav @ Rabindra Singh Yadav as well as others were convicted vide judgment of conviction
and sentence order dated 01.07.1995 and 03.07.1995 respectively passed by the then 9th Additional Sessions Judge, Ara in Sessions Trial No. 45 of
1992 and the aforesaid fact was brought to the notice of learned trial court in course of argument but the learned trial court did not pay any heed and
erroneously convicted and sentenced the appellants for the murder of Samhut Yadav. Learned counsel for the appellants, further, submitted that in
course of trial, prosecution witnesses made contradictory statements and moreover, the prosecution party filed complaint petition after 3 to 4 days of
the alleged occurrence when they got knowledge about institution of Piro P.S. Case No. 120 of 1991. Learned counsel for the appellants, further,
submitted that the learned trial court based his judgment on the documents which were not admissible in evidence and moreover, the doctor, who is
said to have examined the injured persons of this case, was not examined in course of trial and, therefore, the appellants could not get an opportunity
to cross examine the above stated doctor. He, further, submitted that prosecution also failed to prove the place of occurrence and as a matter of fact,
there were several infirmities in the prosecution case but even then, the learned trial court convicted and sentenced the appellants passing impugned
judgment of conviction and sentence order which is not in accordance with law.
On the other hand, learned Additional Public Prosecutor appearing for the State supported the impugned judgment of conviction and sentence order
arguing that learned trial court has passed a well thought judgment and there is no need to interfere into the impugned judgment of conviction and
sentence order. He, further, submitted that prosecution witnesses have well proved the place of occurrence, manner of occurrence as well as
participation of the appellants in the alleged crime and there was nothing before the court below to disbelieve the prosecution story.
Having heard the contentions of both the parties, I went through the record. I find that to prove its case, prosecution examined PW-1 Sipahi Singh
@ Sipahi Singh Yadav, PW-2 Ram Kishun Yadav, PW-3 Devendra Singh, PW-4 Binder @ Rabindra Singh Yadav and PW-5 Bhuti Yadav and all the
aforesaid prosecution witnesses claimed themselves to be eye witness of the alleged occurrence. PW-6 Tarkeshwar Prasad is a formal witness who
hasproved the complaint petition as Ext. 3.
PW-1 Sipahi Singh @ Sipahi Singh Yadav claimed that on 28.07.1991 at about 5:00 P.M. he along with PW-5, PW-2, PW-3, PW-4 and deceased
Samhut Yadav was making ridge in his field. In the meantime, appellants and other accused came there and appellant Akchay Kumar Singh opened
fire of his gun which hit Bihari Singh. This witness, further, stated that appellant Bhagwan Singh hurled farsa on Devendra Singh but he retreated as a
result whereof farsa blow did not hit him. He, further, claimed that Dharikchan Singh assaulted him by lathi causing injury on his hand and Chandrama
Singh and Bihari Singh assaulted Bhuti Singh by lathi causing injury on his head. He, further, claimed that Birendra Singh and Kapil Singh assaulted
Devendra Singh by lathi. This witness, further, claimed that when he as well as others started fleeing from there, again on the instigation of Akshay
Kumar Singh, Daroga Singh opened fire which hit to Samhut Singh as a result whereof he having sustained firearm injury died on the spot. This
witness supported the contents of complaint petition stating that after the occurrence, the deceased was taken to Hasan Bazar police station where he
made his ferdbeyan before the police but subsequently, he came to know that no case was instituted against the appellants and other accused.
On being cross examined by the defence, this witness admitted that he was convicted and sentenced to life imprisonment for the murder of Bihari
Singh Yadav but he was never prosecuted nor convicted for the murder of Samhut Singh. He, further, admitted that in counter case, all the witnesses
of this case were convicted. This witness also admitted that in Sessions Trial No. 45 of 1992, appellant Akchay Kumar was informant. This witness,
further, admitted that at the time of alleged occurrence, he was carrying spade in his hand. This witness stated at para 6 of his cross examination that
there is no land of appellants towards east of his land. This witness stated that he had given ferdbeyan to police and his ferdbeyan was recorded upon
which he put his signature. Again, this witness stated that on the next day of the alleged occurrence he had lodged case before the Chief Judicial
Magistrate also but he had orally lodged his case before Chief Judicial Magistrate. This witness, further, admitted that after three days of the alleged
occurrence, he was examined by the jail doctor. This witness, further, admitted at para 12 of his cross examination that there was ridge in his field
prior to the alleged occurrence. This witness, further, admitted at para 13 of his cross examination that he could not see as to whether the assailant
had made firing in standing or sitting position. This witness also expressed his inability to say the khata and plot number of the field over which the
alleged occurrence is said to have taken place.
PW-2 Ram Kishun Yadav also stated that on the alleged date of occurrence while they were making ridge in their field, the appellants encircled
them and all the appellants started assaulting Devendra by lathi. He, specifically, stated that Chandrama Yadav assaulted the deceased Bihari Singh
Yadav whereas Daroga Yadav fired which hit Samhut Yadav. This witness, further, claimed that appellant Akchaya Kumar also fired on Sipahi Singh
(PW-1) but, fortunately, Sipahi Singh escaped unhurt and the aforesaid firing hit Bihari Singh Yadav. This witness admitted that he as well as others
have been convicted in murder case of Bihari Singh Yadav and Samhut Yadav. This witness also admitted the counter case filed by appellant
Akchaya Kumar Singh Yadav. This witness also admitted that he surrendered before the court in counter case after 15 days of the alleged
occurrence but between the aforesaid period, he did not give any petition to any competent authority in connection with the alleged occurrence. This
witness admitted at para 13 of his cross examination that field of appellants is adjacent east to his field. This witness has been cross examined at
length by the defence.
Almost, similar statement has been made by PW-3 Devendra Singh and this witness stated that Kapil Singh and Birendra Singh had assaulted him
by means of lathi. This witness admitted the counter case and also admitted that in counter case he has been convicted and sentenced to life
imprisonment. This witness also stated that he had not seen any firearm injury on the person of the deceased Bihari Singh Yadav. This witness also
stated that after 2-3 days of the alleged occurrence, his younger brother lodged complaint case.
PW-4 Binder @ Rabindra Singh Yadav also supported the prosecution case and stated the manner in which the alleged occurrence is said to have
taken place. This witness, specifically, stated that Daroga Yadav shot fire of his double barrel gun which hit on the chest of deceased Samhut Yadav.
This witness also stated that PW-1 Sipahi Singh Yadav gave his statement before the police but he was taken into custody by the police and no case
was instituted by the police on his statement and thereafter, complaint case was filed in court. This witness also admitted that he as well as others
were convicted in Sessions Trial No. 45 of 1992. This witness admitted that there was field of appellant Akshaya Kumar towards adjacent east to his
field.
PW-5 Bhuti Yadav also supported the prosecution case and made almost similar statements as made by the PW-1, PW-2 and PW-4.
PW-6 Tarkeshwar Prasad is a formal witness who has proved the complaint cum protest petition, which has been marked as Ext. 3.
As I have already stated that the appellants brought certified copy of charge sheet of Piro P.S. Case No. 120 of 1991 (Ext. A) as well as certified
copy of judgment passed in Sessions Trial No. 45 of 1992 (Ext. B) on record and they took stand in course of trial that it was prosecution party of the
present case who committed the murder of the deceased Bihari Singh Yadav as well as Samhut Yadav. Furthermore, the appellants claimed in their
defence that while the prosecution party was making ridge encroaching their lands, they went there and forbade them to do so but the prosecution
party assaulted them and made firing causing death of Bihari Singh Yadav and Samhut Yadav, who was grazing his buffalo near the place of
occurrence. Therefore, the presence of the appellants as well as PW-1 to PW-5 on the place of occurrence is admitted and it is also an admitted
position that deceased Bihari Singh Yadav and deceased Samhut Yadav having sustained firearm injury died in the aforesaid occurrence.
It is pertinent to note here that complainant Binder Singh @ Rabindra Singh Yadav (PW-4) claimed in his complaint petition that two persons died
in the alleged occurrence due to firing made by the appellants but learned trial court framed charges against the appellants only for the murder of
deceased Samhut Yadav and no charge was framed against the appellants for causing the murder of deceased Bihari Singh Yadav. Similarly, no
question regarding the murder of deceased Bihari Singh Yadav was asked by the learned trial court from the appellants at the time of recording their
statements under Section 313 of the Cr.P.C. The impugned judgment goes to show that learned trial court pronounced the impugned judgment only
taking notice of the death of deceased Samhut Yadav. Moreover, as I have already stated that presence of both the parties over the place of
occurrence is not in dispute and there is only controversy between the parties as to which of the parties was aggressor. The PW-4 and other
witnesses claimed that it was appellants who having armed with firearms and other weapons came there and assaulted them and made firing while
they were carving out ridge in their field and in that course, they sustained injury and similarly, deceased Bihari Singh Yadav and deceased Samhut
Yadav also sustained firearm injury and died later on.
The impugned judgment goes to show that deposition of Dr. Ashok Kumar Chowdhary recorded in counter case bearing Sessions Trial No. 45 of
1992 was brought on record and got exhibited as Ext. 2 but admittedly, the aforesaid Dr. Ashok Kumar Chowdhary was not examined in the present
case. Neither the original injury reports of injured persons of the present case were exhibited in the present case nor the concerned Doctor, who had
examined the injured persons of this case, was examined by the prosecution. The lower court’s record goes to show that photostat copy of injury
report of injureds of this case has been exhibited as Ext. 4 without following the procedure of law. The learned trial court used the deposition of Dr.
Ashok Kumar Chowdhary which has been recorded in Sessions Trial No. 45 of 1992 in the present case. The aforesaid fact clearly goes to show that
the appellants did not get any opportunity to cross examine the aforesaid Dr. Ashok Kumar Chowdhary. Moreover, the deposition of a witness
recorded in a case cannot be used in another case as substantive piece of evidence. The non examination of Dr. Ashok Kumar Chowdhary and non
production of injury reports of injured persons of the present case in accordance with law as well as non examination of the concerned Doctor who
had examined the injureds of this case was fatal to the prosecution case because the injury reports of so-called injureds of this case is a very valuable
document and the absence of injury report of so-called injureds of this case creates doubt regarding the manner of occurrence as claimed by the
prosecution. Therefore, in my view, the learned trial court committed error in relying upon Ext. 2, the deposition of Dr. Ashok Kumar Chowdhary
recorded in Sessions Trial No. 45 of 1992 as well as Ext. 4, the photostat copy of injury report.
The claim of prosecution is that the prosecution party was making ridge in their field in accordance to measurement done by the Amin of
consolidation but appellants attacked on them. Admittedly, no measurement report has been brought on record nor the concerned Amin was examined
on behalf of the prosecution. In absence of any measurement report as well as statement of concerned Amin, it is difficult to believe upon the above
stated story of prosecution, especially, in the circumstance, when it is specific stand of the appellants that the prosecution party was making ridge
encroaching their field and when they forbade them, the prosecution party assaulted them and killed two persons. Therefore, in the aforesaid
circumstance, I am of the view that prosecution failed to establish beyond all shadow of reasonable doubt that it were appellants who were aggressor.
It is an admitted position that just after the alleged occurrence, the appellant Akshay Kumar Yadav lodged Piro P.S. Case No. 120 of 1991 against
the prosecution party for murder of deceased Bihari Singh Yadav and Samhut Yadav and in the aforesaid case, after due investigation police
submitted charge sheet and the prosecution party were put on trial in Sessions Trial No. 45 of 1992 and subsequently, they were convicted for
commission of murder of deceased Bihari Singh Yadav and Samhut Yadav. It is also an admitted position that after three days of the alleged
occurrence, the PW-4 filed complaint petition which was sent to police station where Piro P.S. Case No. 83 of 1992 was registered. However, it is
also an admitted position that after due investigation police submitted final form finding the aforesaid case untrue and after that PW-4 filed protest
petition against the investigation of police and on the basis of aforesaid protest petition, the court proceeded to enquire the matter under Section 202 of
the Cr.P.C. and appellants were summoned to face trial. Furthermore, PW-1 claimed that he had made statement before the Officer in charge of
Hasan Bazar police station but no casewas registered on the basis of his statement and he was detained and arrested by the police on the same day.
However, it is an admitted position that remaining so-called eye witnesses and injured persons were not in custody of the police and there is nothing on
the record to show that the aforesaid injured persons as well as eye witnesses made any attempt to make complain before the higher officials of the
police and after three days of the alleged occurrence, they filed complaint petition when they came to know about the institution of Piro P.S. Case No.
120 of 1991. Therefore, the aforesaid circumstance also creates doubt about the genuineness of the prosecution case.
Moreover, there are several contradictions in the depositions of prosecution witnesses in respect of manner of occurrence and place of occurrence
and the aforesaid contradictions cannot be treated as minor contradictions, particularly, in the circumstance when the police case had already been
lodged by the appellants against the prosecution party for the alleged occurrence. Therefore, in the aforesaid circumstance, I am of the view that
learned trial court committed error in convicting and sentencing the appellants and the impugned judgment of conviction and sentence order cannot
sustain in the eye of law.
On the basis of aforesaid discussions, this criminal appeal is allowed and the impugned judgment of conviction and sentence order are, hereby, set
aside. The appellants are acquitted of the charges. The appellants are on bail. They are discharged from the liabilities of their bail bonds.