Balak Singh & Ors. vs The State of Bihar

(Per: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA)

Since both these appeals arise out of the same Sessions Trial No. 68 /1992, arising out of Beldaur Police Station Case No. 01 of 1992, with the consent of the parties, both these appeals are heard together.

The present appeals have been preferred by the appellants against the judgment of conviction, dated 21.06.1995, and the order of sentence, dated 22.06.1995, passed by learned Additional Sessions Judge–II, Khagaria, in Sessions Trial No. 68 of 1992, arising out of Beldaur Police Station Case No. 01 of 1992, whereby the appellant Ram Singh, in Criminal Appeal (DB) No. 236 of 1995, was convicted for the offences punishable under Sections 302 and 148 of the Indian Penal Code and Section 27 of the Arms Act, whereas the appellants in Criminal Appeal (DB) No. 167 of 1995 were convicted for the offence punishable under Section 147 of the Indian Penal Code.

Consequent upon their conviction, the appellant Ram Singh was sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code, rigorous imprisonment for two years for the offence punishable under Section 148 of the Indian Penal Code and rigorous imprisonment for five years for the offence punishable under Section 27 of the Arms Act. The appellants in Criminal Appeal (DB) No. 167 of 1995 were sentenced to undergo rigorous imprisonment for two years each for the offence punishable under Section 147 of the Indian Penal Code. All the sentences were directed to run concurrently.

The prosecution case, originates from the fardbeyan of Nand Kishore Singh, is that at about 12 noon, on 05.01.1992, he, along with Jai Jai Ram Singh, Vidyanand Singh, Kapildeo Singh, Nepal Singh, and the land owner, Nageshwar Singh, had gone to village Talihar for the purpose of purchasing the khesari crop. It is stated that while they were inspecting the crop in the field, Nagar Singh, having a gun in his hand, along with Ram Singh and Ravindra Singh, having rifles in their hands, and Pramod Singh, Sikandar Singh, Brahmadeo Singh, Dilip Singh, Shekhar Singh, Niro Singh, Bana Singh and Balak Singh, having lathis in their hands, arrived there, claiming the land to be his land, and asked the informant and others as to why they were present in the field, upon which the informant replied that he, along with his friends had come with Nageshwar Singh to purchase khesari crops. After this, an altercation ensued between Nagar Singh and Nageshwar Singh and in course of the altercation, Nagar Singh abused Nageshwar Singh and exhorted Ram Singh to shoot him. Thereafter, Nagar Singh, Ram Singh, and Ravindra Singh opened fire from the firearms; while the remaining accused persons started assaulting them with lathis and dandas. The informant further alleged that the bullet fired by Ram Singh hit Nageshwar Singh, causing his death. The bullet fired by Nagar Singh had caused grievous firearm injuries to Vidyanand Singh, who was also assaulted by the remaining accused with lathis. It is further alleged that the bullet fired by Ravindra Singh hit the informant on his upper lip near the mustache. On raising alarm, the informant and his companions fled from the place of occurrence. Hearing the noise and the sounds of gunfire, villagers from the vicinity reached there, whereupon the accused persons allegedly fled away. Thereafter, the informant, along with the injured Vidyanand Singh, went to Chautham Police Station for statement and treatment. The informant further stated that the dead body of Nageshwar Singh was lying at the place of occurrence and the villagers were also there. The informant further stated that some co-villagers disclosed that the accused persons had concealed the dead body.

On the basis of the aforesaid fardbayan of the informant, Beldaur Police Station Case No. 01 of 1992, dated 06.01.1992, was registered against the appellants and others for the offences punishable under Sections 147/148/149/307/302/201/34 of the Indian Penal Code and Section 27 of the Arms Act.

Upon completion of the investigation, the police submitted Charge-Sheet/Final Form No. 15, dated 27.04.1992 against the appellants along with other co-accused persons for the offences punishable under Sections 147/148/149/307/302/201 of the Indian Penal Code and Section 27 of the Arms Act. The learned Chief Judicial Magistrate, on 06.05.1992, took cognizance of the offences against the appellants and others. Subsequently, by order, dated 13.07.1992, the case was committed to the Court of Sessions.

On 31.08.1992, the learned Sessions Judge framed charges against the appellants, namely, Balak Singh, Dilip Singh, and Pramod Singh under Sections 302, 149, 147 and 201 of the Indian Penal Code. Appellant Ram Singh was charged under section 302 read with Section 201 of Indian Penal Code and Section 27 of the Arms Act. The charges were read over and explained to the appellants in Hindi, to which they pleaded not guilty and claimed to be tried.

The prosecution, in order to substantiate its case, has examined nine witnesses and exhibited some documents on its behalf. List of prosecution witnesses and exhibits are being mentioned herein under:

5/A Handwriting and signature 16.11.1994/PW 9 of ASI Chandeshwar Paswan on the requisition to the Medical Officer for injured Nand kishore Singh

After closure of prosecution evidence, the statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure, 1973 on 09.12.1994. The appellants denied all incriminating circumstances appearing against them in the prosecution evidence.

Learned Counsel for the appellants, at the very outset, submitted that the judgment of conviction is against the weight of evidence and has been rendered on mere presumption of guilt. It is contended that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the testimonies of the prosecution witnesses suffer from material contradictions and inconsistencies and the learned Trial Court had failed to properly appreciate the evidence available on record and recorded the conviction without considering the material circumstances emerging from the prosecution evidence itself.

Learned Counsel further submitted that the genesis of the occurrence lies in a serious and admitted land dispute between the parties. It was argued that the prosecution witnesses had a direct interest in the outcome of the dispute and that the possibility of the appellants having been falsely implicated in order to settle the land dispute cannot be ruled out. PW 1 and PW 5 were not named in the First Information Report, and their subsequent introduction as witnesses to the occurrence assumes significance in the backdrop of the admitted land dispute. Their presence at the place of occurrence, therefore, requires close scrutiny and cannot be accepted merely on the basis of their subsequent statements without independent corroboration.

It was next contended that the prosecution version disclosed that three accused persons, namely Nagar Singh, Ram Singh and Rabindra Singh, were armed with firearms and allegedly opened fire. In such circumstances, when several bullets were fired simultaneously, it becomes extremely difficult to conclusively establish, in the absence of reliable medical evidence, as to whose particular firearm caused the alleged injury or death. The prosecution was required to establish the identity of the assailant(s) who allegedly caused the fatal injury beyond reasonable doubt, particularly when three persons were alleged to have fired bullets from the firearms held by them.

It was further argued that the informant himself has not supported the prosecution case during trial and had turned hostile. The person (informant), at whose instance the criminal case was set in motion, has, thus, failed to substantiate the allegations made in the fardbayan before the learned Trial Court. Although the fardbayan is not substantive piece of evidence, the failure of the informant to support the prosecution case assumes considerable significance when the prosecution seeks to establish the occurrence and the identity of the assailants primarily through ocular testimonies. The Magistrate who allegedly recorded the statements under Section 164 of the Code of Criminal Procedure was also not examined by the prosecution.

Learned Counsel next submitted that the prosecution has failed to establish the most fundamental fact, i.e. the death of the deceased Nageshwar Singh inasmuch as his dead body was never recovered and as such, no post-mortem examination was conducted. The prosecution, therefore, has failed to place before the Court any medical evidence regarding the alleged death, the nature of the injuries, the cause of death, or even the identity of the deceased. Although the Investigating Officer is stated to have recovered blood-stained materials from the place of occurrence, the said blood was never subjected to forensic examination to ascertain whether it was in fact the blood of the deceased or not. No forensic report has been brought on record establishing the nature or origin of the alleged blood. Thus, the alleged recovery of blood-stained materials, by itself, cannot corroborate the prosecution version, particularly when the identity of the deceased and the cause of death had not been established by medical or scientific evidence.

Learned Counsel further submitted that the evidence regarding the alleged place of occurrence is also not free from doubt. The witnesses have stated that they were moving around and inspecting the field, but no footprints/foot marks or other physical evidence was collected to conclusively establish the presence and movement of the persons alleged to have participated in the occurrence. The absence of such corroborative evidence assumes significance in the facts of the present case, particularly when the prosecution version is otherwise beset with material contradictions and the parties were admittedly embroiled in land dispute.

In view of the aforesaid facts and circumstances, it is submitted that the impugned judgment of conviction is fit to be set aside as the prosecution has miserably failed to prove its case beyond reasonable doubts and the appellants are entitled to be acquitted of the charges levelled against them.

Per contra, learned Additional Public Prosecutor submitted that the judgment of conviction and order of sentence under challenge require no interference as the prosecution has been able to prove the case beyond all reasonable doubts. It has been submitted that the prosecution witnesses have remained consistent during the course of trial and there does not remain any lacuna in the case of the prosecution. The minor inconsistencies in the testimony of the witnesses, which may occur due to passage of time, cannot be a ground to reject their evidence as a whole.

It is further submitted that the testimony of the witnesses stands corroborated in material particulars by the prosecution evidence and the offences alleged against the appellant appears to be serious in nature.

Learned Additional Public Prosecutor finally argued that guilt of the appellants has been satisfactorily proved by the evidence adduced during the course of trial and there is no infirmity in the conviction and sentence imposed by the learned trial Court.

I have heard learned Counsel for the parties and have perused the materials available on record.

At the outset, I would like to mention that the dead body of the deceased had not been recovered and only some articles, allegedly belonging to the deceased, was recovered.

While considering the present appeals, first of all, I would like to take note of the evidence of the doctor, PW 8 (Dr. Ishwar Chandra Rai), who had examined the two injured persons, Vidyanand Singh and the informant, Nand Kishore Singh, who had allegedly sustained fire arm injuries.

PW 8 (Dr. Ishwar Chandra Rai), in his examination-in-chief, had deposed that on 05.01.1992 he examined Vidyanand Singh, and found the following injuries:

The doctor (PW 8) had opined the injury nos. 1, 2, 3 and 4 to be simple in nature, caused by hard and blunt substance and injury no. 5 is grievous in nature caused by hard and blunt substance. The injury report of the injured Vidyanand Singh is marked as Exhibit 1.

The doctor (PW 8) further deposed that on the same day, he examined Nand Kishore Singh and found following injuries:

The doctor opined that injury no. 1 was caused by fire arm particle and injury no. 2 to had been caused by hard and blunt substance and opined both the injuries to be simple in nature.

The doctor (PW 8), in his cross-examination, had deposed that the injury no. 2 caused to the informant is possible by sharp cutting weapon. He further deposed that injury reports are true and the injury no. 1 sustained by Vidyanand Singh is caused by hard and blunt substance and not by fire-arm. Vidyanand Singh has not sustained any fire arm injury. He further deposed that lacerated injury may be caused by fire-arm.

After discussing the evidence of the doctor, who examined the injured persons, I would now like to discuss the oral/documentary evidence available on record in order to re-appreciate the evidence for just and proper decision of the present appeals.

PW 1, Gajadhar Singh, in his examination-in-chief, had deposed that the occurrence took place at about 11 AM on 05.01.1992. At the relevant time, he was present at Narahiyasil Bahiyar, Telihar along with Nepal Singh, Jai Jai Ram Singh, Kapildeo Prasad Singh etc. for purchasing grass and while they were roaming in the field of Nageshwar Singh, co-accused Nagar Singh, having a gun, Ram Singh and Rabindra Singh having country-made pistols, and the remaining accused having lathis, reached there and Nagar Singh asked them as to what they were doing at that place. Upon this, Nageshwar Singh replied that his bathan is nearby, hence he would purchase. An altercation took place between them. Nagar Singh then exhorted to fire, whereupon Ram Singh fired at Nageshwar Singh, due to which he sustained bullet injury, fell down and died at that time. After that, Rabindra Singh and Nagar Singh also started firing, as a result of which Vidyanand Singh fell down and other accused person started assaulting with lathi. Subsequently, the accused persons dragged the dead body of Nageshwar Singh towards the northern side of the Koshi River.

In the cross-examination, this witness (PW 1) had deposed that the deceased Nageshwar Singh is his uncle and the accused persons were also his uncles. Both sides are agnates having previous land dispute. This witness (PW 1) had deposed in his evidence about the land of the village, their owners, and the dispute.

This witness (PW 1) had deposed that the occurrence took place over the issue of purchase of khesari crops. He further disclosed that he was present at the place of occurrence from before and he was at a distance of 20-30 cubits east from Nageshwar Singh. He further deposed that before the police, he had given statement that firing made by Nagar Singh hit Vidyanand Singh. He further deposed that he did not state before the police that Rabindra Singh shot at Vidyanand Singh. This witness had shown the place of occurrence to the police. He further deposed that Nageshwar Singh and Vidyanand Singh were 15 cubit apart when the bullet was fired. The police himself saw stain of blood of Nageshwar Singh and Vidyanand Singh at the place of occurrence and this witness did not tell him that it was the blood of Nageshwar Singh and Vidyanand Singh. This witness had categorically deposed that due to fear, he returned back to his village and he did not see any accused and the accused who were firing were at a distance of half mile.

PW 2 (Nand Kishore Singh), in his examination-in-chief, had deposed that he does not remember the date and time of the occurrence and he is not an eye witness to the occurrence. This witness was declared hostile.

In the cross-examination by the prosecution, this witness (PW 2) denied to have stated before the police that he along with others had gone to the Khesari crops of the deceased at 12 O’clock, when Nagar Singh, Ram Singh and Rabindra Singh, with fire arms, came and told that the land belonged to them which ensued altercation between Nageshwar Singh on one hand and Ram Singh and Nagar Singh on the other and Ram Singh and Rabindra Singh opened fire at the order of Nagar Singh. He further deposed that he did not tell the police that bullet fired by Ram Singh hit Nageshwar Singh due to which he died. He did not give statement before police that firing made by Nagar Singh hit Vidyanand Singh leading to serious injury. He also did not tell the police that the accused disposed the dead body. The witness further denied to have stated that Jai Jai Ram Singh, Gajadhar Singh and Vidyanand Singh were also present at the time when fardbayan of this witness was recorded by the police. The witness further denied that Jai Jai Ram Singh and Gajadhar Singh also appended their signatures on the fardbayan. The witness further denied to have made any statement in Chautham hospital. The witness denied to have made false statement in collusion with the accused.

This witness (PW 2), in his cross-examination by the defence, has stated that he heard about the occurrence from Gajadhar Singh and he is not an eye witness.

PW 3 (Vidyanand Singh) is one of the injured of this case. He, in his examination-in-chief, has deposed that he, along with seven other persons and Nageshwar Singh, had gone to purchase khesari crops and when they reached, Nagar Singh (having gun), Ram Singh (having small three-naught pistol), Rabindra Singh (having small three-naught pistol), Sikandar Singh, Dilip Singh, Niro Singh, Brahmadeo Singh, Shekhar Singh, Bana Singh and Balak Singh (having lathis), surrounded them. Nagar Singh ordered to kill, upon which Ram Singh fired at Nageshwar Singh, who fell down and died. He further deposed that Rabindra Singh fired at Nand Kishore Singh, which hit on his upper lip. Nagar Singh also fired at Nand Kishore Singh, which hit him on the upper part of his head, due to which he fell down. He further deposed that Pramod Singh and Dilip Singh assaulted him with lathi. The accused dragged the dead body of Nageshwar Singh to the bank of the river.

This witness (PW 3) had deposed that the fardbayan of Nand Kishore Singh was recorded in his presence. The police had seen his injuries, referred him to the doctor, and the X-ray of his right hand and head was done. The police had recorded his statement.

In the cross-examination, this witness (PW 3) had deposed that prior to the occurrence, neither he nor Nageshwar Singh had any dispute with the accused and the quarrel took place when they went to purchase khesari crops.

This witness (PW 3) had further deposed that the fardbayan of Nand Kishore Singh was recorded at the police station but the statement of other witnesses were not recorded before him and he had gone to the hospital. The wounds of this witness in the head, hand and leg were stitched by the doctor. He denied the suggestion that his medical examination and X-Ray was not done and he fled away from the hospital because he is also a criminal.

This witness (PW 3) had further deposed that Nagar Singh did not say that the land in question belongs to him. He further deposed that in his statement under Section 164 of the Code of Criminal Procedure, he had stated that all the accused persons dragged the dead body of the deceased, but before the police he did not say the names of Balak Singh and Bana Singh. The witness deposed that he was not incarcerated in jail for 10 years in a dacoity case. He further disclosed that when he sustained bullet injury on his head, Nagar Singh was standing in front of him. The witness stated that it is not true that no occurrence took place in the land of Nageshwar Singh and he is involved in the killing of Nageshwar Singh. He further denied the suggestion that he had not received bullet injury and he is engaged in the profession of dacoity.

PW 4 (Jai Jai Ram Singh), in his examination-in-chief, had deposed that he, along with others, had gone to the field in the village, when Nagar Singh told to kill, Ram Singh fired bullet upon Nageshwar Singh, which hit him in the chest and he fell down and died and all the accused persons dragged the dead body towards the river.

In the cross-examination, this witness (PW 4) had deposed that after the occurrence, he went to the police station along with the injured and the police recorded the statement of all the persons and took their signatures. The injured were sent to the hospital. In his statement under Section 164 of the Code of Criminal Procedure, this witness has stated that Nagar Singh want to forcibly took the khesari crops. Nagar Singh did not fire upon Nageshwar Singh; rather he fired upon Vidyanand Singh. Nageshwar Singh and Nagar Singh were standing facing each other at a distance of 2-5 lagga when the altercation was going on. He saw Nagar Singh with gun when Ram Singh fired at Nageshwar Singh. This witness (PW 4) had denied the suggestion that it is not true that the accused were not involved in the occurrence and no occurrence had taken place at all.

PW 5 (Rajesh Singh), in the examination-in-chief, had deposed in tune with PW 1, PW 3 and PW 4.

In his cross-examination, this witness (PW 5) had deposed that some of the accused persons are his agnates while the others are co-villagers. After the occurrence, he, along with Nand Kishore Singh and Vidyanand Singh went to Chautham Police Station where the fardbayan of Nand Kishore was recorded in his presence.

This witness (PW 5) had further deposed that Nagar Singh wanted to purchase khesari crops, but Nageshwar Singh denied to sell him the crops. He denied the suggestion that he made statement before police that after firing made by Ram Singh, Rabindra Singh also fired upon Nageshwar Singh (deceased) with .303. It is not true that before the police, this witness gave statement that only two accused Bana Singh and Balak Singh dragged the dead body of deceased. This witness deposed that Rabindra Singh fired upon Nand Kishore Singh from a distance of 03 lagga. He further denied the suggestion that it is not true that due to previous enmity, he had deposed against accused persons and that he had not gone to purchase khesari crops.

PW 6 (Nepal Singh) in his examination-in-chief had describe about the occurrence in tune with PW 1, PW 3, PW 4 and PW 5.

In his cross-examination, this witness (PW 6) had deposed that he had no enmity with Nagar Singh. He further deposed that it is not true that he gave statement before police that only three accused Jai Jai Ram, Vidyanand Singh and Kapildev Singh had gone in the field. It is also not true that he did not mention the name of remaining four persons. Nageshwar Singh had taken them from the village itself. He further stated that Vidyanand Singh and Nagar Singh were at a distance of 5-6 lagga from each other and Nand Kishore Singh was at a distance of 3 lagga from Rabindra Singh.

This witness (PW 6) had denied the suggestion that he had not gone to the place of occurrence on that date and no such occurrence had taken place and on the instigation of Vidyanand Singh, he had falsely deposed in this case.

PW 7 (Kapildev Singh), in his examination-in-chief, had deposed similarly to the deposition of PW 5. In the examination-in-chief, this witness had further deposed that Nagar Singh had told to take the dead body of Nageshwar Singh, upon which the accused persons took the dead body toward the river.

In his cross-examination, this witness (PW 7) had deposed that there was no dispute between Nagar Singh and Nageshwar Singh with respect to the land in question or for any other issue. He further deposed that all the seven persons gathered at the house of Nageshwar Singh and from there, they went to the field. He further denied that he took names of only three persons before the police instead of seven persons who went to purchase khesari crops. The accused persons also wanted to purchase the Khesari crops, but Nageshwar Singh did not want to give.

This witness (PW 7) has further deposed that it is not true that firing made by Nagar Singh also hit Nand Kishore Singh. He also denied the suggestion that he did not disclose the name of Rabinder Singh as one of the persons who resorted to firing. He further denied the suggestion that firing made by Nagar Singh also hit Nand Kishore Singh. He further stated that his statement was recorded by Deputy Superintendent of Police at Chautham Police Station. He further denied that he had falsely deposed due to previous enmity and on the date of occurrence, he had not gone to purchase Khesari.

PW 9 (Mahendra Kumar Sinha) is the Investigating Officer of this case. He had deposed that on 06.01.1992, while he was posted at Beldaur Police Station, he received the fardbayan of Nand Kishore Singh forwarded by Chautham Police Station, registered the case and took the charge of investigation. He further deposed that he recorded the statement of the informant Nand Kishore Singh at the place of occurrence, inspected the place of occurrence and found that Koshi river is at a distance of 500 yards from the place of occurrence. The witness had found blood, blood stained empty cartridges and slippers of the deceased. He also found dragging mark from the place of occurrence to Koshi river and on the way, he found blood stained lungi of the deceased.

Before this witness (PW 9), the informant (PW 2) had reiterated the prosecution version made in the fardbayan. He next stated that Nand Kishore Singh had told him that accused persons disappeared the dead body of deceased Nageshwar Singh. Thereafter, he handed over the charge of investigation to Brahmdeo on 29.06.1992.

This witness (PW 9), in his cross-examination, had deposed that he recorded statement of Vidyanand Singh on 13.02.1992 in Tegachi village and not at the police station. This witness had deposed that he did not mention that on which portion of the land, blood was smeared and he had not prepared the seizure list of slippers and lungi. Further, he did not send the blood for its chemical examination in absence of order from higher officials. According the police manual, chemical examination was done with the permission of senior officials. This witness had further deposed that he had not recorded the statement of the wife and children of the deceased.

In this case, the statement of some of the witnesses were recorded under Section 164 of the Code of Criminal Procedure at their instance and not at the request of the police.

Nand Kishore Singh, informant in his statement under Section 164 of the Code of Criminal Procedure had stated that he, along with eight other, including Nageshwar Singh went to see the khesari crops in the field of Nageshwar Singh where Nagar Singh, Ram Singh, Rabinder Singh, Bramdeo Singh, Sikander Singh, Dilip Singh, Nero Singh, Shekhar Singh, Bana Singh and Balak Singh also came there and Nagar Singh told that he intended to purchase the crops, however, Nageshwar Singh declined to sell the same to Nagar Singh, due to which altercation took place between them, upon which Ram Singh fired upon Nageshwar Singh, Rabindra Singh fired at Nand Kishore Singh which hit on the upper portion of his lips and Nagar Singh fired upon Vidyanand Singh and the bullet pierced his head. All the accused started assaulting Vidyanand Singh with lathi and danda. The accused persons dragged the dead body of Nageshwar Singh towards the bank of Koshi river.

Vidyanand Singh, in his statement under Section 164 of the Code of Criminal Procedure has stated that on 05.01.1992, he along with 5-6 persons visited the field of Nageshwar Singh and while they were watching khesari crops in the field, 11 persons arrived there and these accused persons told that they would buy the khesari crops but Nageshwar Singh told the accused persons that since he brought Vidyanand Singh along with other persons with him earlier, as such he would sell the crops to them. Upon this, Nagar Singh told to fire upon them and the firing made by Ram Singh hit the ribs of Nageshwar Singh. The firing made by Rabindra Singh hit Nand Kishore Singh on his upper lips. Nagar Singh fired upon Vidyanand Singh which hit on the upper right portion of his head and thereafter all the accused persons started assaulting him with lathi, danda, etc.

Jai Jai Ram Singh, in his statement under Section 164 of the Code of Criminal Procedure, has stated that he along with eight persons visited the khesari field of Nageshwar Singh for the purpose of purchase of khesari crops on 05.01.1992. While they were watching the crops, 11 accused persons came there and forcibly wanted to procure the khesari crops. The land owner Nageshwar Singh told the accused persons that he already promised to sell the crops to Jai Jai Ram Singh and others. The accused Ram Singh fired upon Nageshwar Singh, Rabindra Singh fired upon Nand Kishore Singh which hit on the upper portion of his lips and the accused Nagar Singh fired upon Vidyanand Singh and the rest of accused persons assaulted by means of lathi, danda, etc. Thereafter, the accused persons dragged the dead body of Nageshwar Singh and took away the same along with them.

In the present case, the prosecution alleges that on 05.01.1992, in connection with the proposed purchase of khesari crops, an altercation took place between the prosecution party and the accused persons, during which Nagar Singh allegedly exhorted Ram Singh to fire and, pursuant thereto, Ram Singh fired at Nageshwar Singh, causing his death. It is further alleged that Nagar Singh and Rabindra Singh also fired, causing injuries to Vidyanand Singh and Nand Kishore Singh respectively, while the remaining accused persons assaulted the prosecution party with lathis and dandas. The prosecution further alleges that thereafter the accused persons dragged away the dead body of Nageshwar Singh towards the bank of the Koshi river and concealed it.

Thus, the prosecution case principally rests upon the alleged ocular account of the witnesses, the medical evidence relating to the injured persons, the fardbayan of Nand Kishore Singh, the statements allegedly recorded under Section 164 of the Code of Criminal Procedure, 1973, and the evidence of the Investigating Officer regarding the physical condition of the alleged place of occurrence and the articles allegedly found there. It is, therefore, necessary to examine whether these different pieces of evidence are consistent with each other and whether, taken cumulatively, they establish the guilt of the appellants beyond reasonable doubt.

At the very outset, a circumstance of considerable significance is that the dead body of alleged deceased, Nageshwar Singh, was never recovered. Consequently, no post-mortem examination was conducted and there is no medical evidence regarding the alleged fatal injury, the cause of the alleged death, or even the identity of the person whose death is alleged to have occurred in the manner projected by the prosecution.

It is true that recovery of a dead body is not an indispensable requirement in every case of murder. A conviction can, in an appropriate case, be sustained even in the absence of recovery of the dead body if the remaining evidence is cogent, consistent, trustworthy and sufficient to establish the factum of death beyond reasonable doubt. However, in the present case, the non-recovery of the dead body cannot be considered in isolation. It has to be examined along with the absence of post-mortem examination, the absence of medical evidence regarding the alleged fatal injury, the material inconsistencies in the ocular account, the doubtful evidence concerning the alleged dragging and concealment of the body, the absence of scientific corroboration and the deficiencies in the investigation.

The prosecution has substantially relied upon the evidence of PW 9, the Investigating Officer, who stated that he found blood, blood-stained empty cartridges and slippers at the alleged place of occurrence and further noticed a blood-stained lungi on the alleged route towards the Koshi river. However, the evidentiary value of these alleged recoveries is seriously weakened by the manner in which the investigation was conducted.

The recovery of alleged slippers and lungi were not supported by any seizure list. More importantly, none of the prosecution witnesses had identified these articles as belonging to Nageshwar Singh (deceased). The assertion of the Investigating Officer that the said articles belonged to the deceased remains essentially his own conclusion and is not supported by any witness having personal knowledge of the belongings of Nageshwar Singh.

The alleged slippers and lungi were also not produced before the learned Trial Court in order to enable their identification by any family member or other person well acquainted with the deceased. In the absence of such identification, it cannot safely be concluded that these articles actually belonged to Nageshwar Singh. The mere assertion of the Investigating Officer that the articles were those of the deceased cannot, by itself, establish their identity or connect them with the alleged occurrence.

The position becomes more significant because the dead body itself was never recovered. Had the articles been properly seized, produced before the Court and identified by the family members or persons acquainted with the deceased in a valid Test Identification Parade, they could perhaps have constituted a circumstance corroborating the prosecution version. In the present case, however, neither their identity nor their connection with Nageshwar Singh has been established.

Equally significant is the fact that the blood allegedly found at the place of occurrence and on the alleged articles were never subjected to chemical or forensic examination. There is no scientific report on record establishing that the blood was human blood, much less that it was the blood of Nageshwar Singh. Therefore, the alleged blood-stained articles and blood found at the spot do not furnish any scientifically established link between the alleged occurrence and the alleged deceased.

The Investigating Officer has further referred to alleged dragging marks from the place of occurrence towards the Koshi river. However, such dragging marks have not been consistently spoken to by the prosecution witnesses. No independent witness has deposed regarding the existence of such marks or stated that he had seen the alleged body being dragged along that route.

More importantly, there is no satisfactory evidence establishing that the alleged dragging marks were in fact caused by dragging the dead body of Nageshwar Singh. In the absence of recovery of the body, forensic examination of the blood, proper identification of the alleged articles and corroboration by independent witnesses, the alleged dragging marks, standing alone, cannot be treated as a conclusive circumstance proving that a dead body was removed from the place of occurrence towards the Koshi river.

The prosecution case regarding the alleged removal or concealment of the dead body is further surrounded by material contradictions and inherent improbabilities. In the fardbayan, the informant stated that the dead body of Nageshwar Singh was lying at the place of occurrence and that villagers were present there. It was further stated that some co-villagers had disclosed that the accused persons had concealed the dead body. The earliest version, therefore, does not specifically disclose that the informant or any named witness had personally seen the accused persons dragging the dead body towards the Koshi river.

During the trial, however, several witnesses introduced a different version by stating that the accused persons had themselves dragged the dead body towards the Koshi river. This subsequent development assumes considerable significance because the alleged dragging of the dead body is not merely a peripheral circumstance; it is relied upon by the prosecution as a circumstance corroborating the alleged homicidal death of Nageshwar Singh.

The prosecution has not satisfactorily reconciled the two versions. On the one hand, the fardbayan states that the dead body was lying at the place of occurrence and that information regarding its concealment was received from co-villagers; on the other hand, the witnesses during trial seek to establish that the accused persons themselves dragged the dead body towards the Koshi river. The latter version is not reflected with the same clarity in the earliest account.

The recital in the fardbayan creates further difficulty. The prosecution itself claims that after the occurrence, a large number of villagers had assembled at or near the place of occurrence. It is also stated that information regarding the alleged concealment of the body was received from co-villagers. In such circumstances, the subsequent assertion that the accused persons openly dragged the dead body towards the Koshi river, in the presence or proximity of a large number of villagers, appears inherently improbable and requires independent corroboration.

If, as alleged in the fardbayan, several villagers had gathered at the place of occurrence immediately after the incident, the prosecution was required to explain why none of those villagers were examined to establish that the accused persons had openly dragged the dead body away from the place of occurrence. The non-examination of any such independent villager assumes significance, particularly because the alleged removal of the dead body is relied upon to establish the factum of death itself.

The testimony of PW 1, Gajadhar Singh, is also relevant in this context. This witness claims to have been present at the place of occurrence and also claims to have been present when the fardbayan of the informant was recorded. Yet, his evidence does not satisfactorily explain why, at the time of recording of the fardbayan, the alleged fact of dragging the dead body towards the Koshi river was not brought to the notice of the police in the manner in which it was subsequently deposed before the Trial Court.

PW 1 further admitted that due to fear, he returned to his village and thereafter he did not see the accused persons. This admission materially affects his capacity to speak about the subsequent events. If this witness had already left the place of occurrence out of fear and did not thereafter see the accused persons, his subsequent account regarding the alleged dragging or removal of the dead body from the place of occurrence cannot be accepted as a fact personally witnessed by him unless satisfactorily explained. To the extent, such evidence is based upon what he subsequently heard from others, it would not constitute substantive evidence of the alleged act.

It is also significant that PW 1 did not support, in material particulars, the alleged genesis of the occurrence as projected by the prosecution. Though the prosecution has relied upon a dispute regarding purchase of khesari crops as the immediate cause of the occurrence, PW 1 did not state in his evidence that Nageshwar Singh wanted to purchase the crops in the manner alleged by the prosecution. His evidence, therefore, does not fully support the prosecution version regarding the genesis of the occurrence.

PW 7, Kapildev Singh, has introduced yet another version regarding the alleged removal of the dead body. According to him, Nagar Singh told the accused persons to take away the dead body, whereupon all the accused persons dragged it towards the Koshi river. This specific assertion has not been supported by any other prosecution witnesses. No other material witness has deposed that Nagar Singh himself directed the accused persons to remove the dead body.

The evidence of PW 7 on this aspect, therefore, remains uncorroborated. His version also appears to be an improvement over the earliest prosecution case. The prosecution has not satisfactorily explained why such an important fact—that the accused persons were allegedly directed by Nagar Singh to remove the dead body—does not find place in the testimonies of other witnesses.

It is further relevant that PW 7 stated that his statement was recorded by the Deputy Superintendent of Police at Chautham Police Station. The prosecution has not offered any satisfactory explanation as to why his statement was recorded at Chautham Police Station when the alleged place of occurrence falls within the territorial jurisdiction of Beldaur Police Station.

The same circumstance assumes significance in relation to the conduct of the informant and the injured witnesses. The prosecution has not explained as to why, after the alleged occurrence, the informant and injured persons approached Chautham Police Station instead of Beldaur Police Station, within whose jurisdiction the alleged place of occurrence admittedly falls.

It is accepted that mere approaching of a police station other than the police station having territorial jurisdiction is not, by itself, sufficient to discard a prosecution case. Nevertheless, in the present case, where the prosecution evidence is already beset with material contradictions and where the earliest version itself is under scrutiny, the unexplained choice of Chautham Police Station and the subsequent recording of statements of material witnesses there assume relevance. This circumstance, therefore, cannot be completely ignored while assessing the overall credibility of the prosecution case.

The matter is further complicated by the subsequent statement allegedly recorded from the informant at the place of occurrence. The prosecution evidence does not satisfactorily disclose the circumstances in which such subsequent statement was recorded, its precise contents, or why such statement did not clarify the material inconsistencies appearing in the prosecution version. The prosecution has also not satisfactorily explained why the informant, after having allegedly set the criminal law in motion through his fardbayan, subsequently failed to support the prosecution case in Court.

PW 2, Nand Kishore Singh, the informant, did not support the prosecution case during trial and was declared hostile. He denied being an eye-witness to the occurrence and further denied having made several material statements attributed to him regarding the firing by Ram Singh, Nagar Singh and Rabindra Singh, the death of Nageshwar Singh, the injuries caused to Vidyanand Singh and the alleged removal or concealment of the dead body.

It is well settled that the fardbayan is not substantive evidence of the facts stated therein. Once the informant himself does not support the prosecution case in Court and denies being an eye-witness, the contents of the fardbayan cannot, by themselves, be treated as substantive proof of the occurrence or of the specific role attributed to the accused persons.

The prosecution has also relied upon statements allegedly recorded under Section 164 of the Code of Criminal Procedure. However, the Magistrate who allegedly recorded those statements was not examined by the prosecution. In any event, statements recorded under Section 164 of the Code of Criminal Procedure are not substantive evidence of the facts stated therein. The Court use Section 164 statement only to contradict or corroborate the testimony of a witness given during the actual trial. They may be used only for the limited purposes recognized by law. They cannot be employed as a substitute for reliable substantive evidence given before the Trial Court or to cure fundamental deficiencies in the prosecution case.

The prosecution case is further weakened by the non-examination of the family members of Nageshwar Singh. The wife, children or other close relatives of the alleged deceased were not examined. The Investigating Officer himself admitted that he had not recorded the statements of the wife and children of the deceased Nageshwar Singh.

In the facts of the present case, the non-examination of the family members assumes considerable significance. Since the dead body was never recovered, such witnesses could have been material for establishing the identity and disappearance of Nageshwar Singh, identifying the alleged slippers and lungi said to belong to him, explaining the circumstances preceding the occurrence, and throwing light upon the alleged land dispute or previous enmity between the parties.

The omission becomes particularly significant because the prosecution seeks to rely upon the alleged slippers and lungi as articles belonging to the deceased. Yet, no family member or other person acquainted with Nageshwar Singh was examined to identify those articles. In such circumstances, the Investigating Officer's assertion regarding their ownership cannot substitute for proper identification through a competent witness.

The non-examination of the family members is also relevant in the context of the alleged previous enmity. PW 1 admitted that the deceased and the accused persons were agnates and there was previous land dispute between the parties. The nature, extent and background of such dispute could have better been elucidated by the family members of the deceased. Their non-examination leaves an important aspect of the prosecution case without satisfactory clarification.

The prosecution witnesses have admitted the existence of a land-related dispute and relationship of agnates between the parties. Previous enmity is a double-edged circumstance. It may provide a motive for the commission of an offence, but it may equally provide a motive for false implication or exaggeration of the role of particular accused persons. Therefore, where the ocular evidence is otherwise inconsistent, such evidence requires careful scrutiny and ordinarily demands reliable corroboration.

It is also significant that some of the prosecution witnesses admittedly had agricultural fields in or near the vicinity of the field of Nageshwar Singh. In such circumstances, if there was a serious and continuing land dispute between the parties, the prosecution was required to explain the precise circumstances in which the accused persons allegedly chose to commit the alleged overt acts in broad daylight in the vicinity of agricultural fields and in the presence or proximity of villagers. This circumstance, by itself, is not decisive, but when considered along with the other deficiencies in the prosecution case, it adds to the overall doubt regarding the precise manner in which the occurrence is alleged to have taken place.

The medical evidence also does not furnish the required corroboration to the prosecution case. PW 8, Dr. Ishwar Chandra Rai, examined injured Vidyanand Singh and Nand Kishore Singh. No medical examination was conducted in respect of Nageshwar Singh. Consequently, the evidence of PW 8 is wholly silent regarding the nature of the alleged fatal injury, the cause of the alleged death and whether the alleged death was homicidal.

The evidence of PW 8 assumes significance in another respect. The prosecution version attributes specific firearm injuries to the injured witnesses. However, in cross-examination, PW 8 specifically stated that injury No. 1 sustained by Vidyanand Singh was caused by a hard and blunt substance and not by a firearm. He further stated that Vidyanand Singh had not sustained a firearm injury.

Thus, the medical evidence does not support the allegation that Vidyanand Singh sustained a firearm injury in the manner alleged by the prosecution. This is not a minor discrepancy, because the prosecution has attributed the alleged firearm injury sustained by Vidyanand Singh specifically to Nagar Singh.

Similarly, the injuries found on Nand Kishore Singh were simple in nature. Though the doctor opined that one injury was caused by firearm particles, the other injury was attributed to a hard and blunt substance, and in cross-examination the doctor stated that the latter injury could also be caused by a sharp-cutting weapon. Thus, the medical evidence does not conclusively establish the precise manner of assault alleged by the prosecution.

The prosecution alleges that Ram Singh fired at Nageshwar Singh and caused his death, while Nagar Singh and Rabindra Singh also fired during the same occurrence. Thus, according to the prosecution itself, three persons were allegedly armed with firearms and firing was resorted to during the same incident.

In such circumstances, the prosecution was required to establish with reasonable certainty the identity of the person whose shot caused the alleged fatal injury. However, in the present case, there is no dead body, no post-mortem examination, no medical evidence regarding the fatal injury, no recovery of the alleged projectile or bullet, no ballistic examination and no other scientific evidence connecting the alleged firearm of Ram Singh with the alleged fatal injury.

Consequently, the allegation that Ram Singh fired the fatal shot rests essentially upon the ocular testimony. That ocular testimony, however, requires cautious scrutiny in view of the material inconsistencies appearing in the evidence of the witnesses concerning the respective roles of Ram Singh, Nagar Singh and Rabindra Singh.

PW 1, Gajadhar Singh, stated that Ram Singh fired at Nageshwar Singh and that thereafter Rabindra Singh and Nagar Singh also started firing, resulting in injury to Vidyanand Singh. However, in cross-examination, he admitted that he had stated before the police that the firing by Nagar Singh had hit Vidyanand Singh and that he had not stated before the police that Rabindra Singh had shot Vidyanand Singh.

PW 1 further deposed that due to fear, he returned to his village and that he did not thereafter see the accused persons. He also stated that the persons who were firing were at a distance of about half a mile. This statement is difficult to reconcile with his otherwise detailed account of the precise firing attributed to individual accused persons and the specific injuries allegedly caused by them. If PW 1 had already left the place of occurrence out of fear and did not thereafter see the accused persons, his subsequent evidence regarding the events following his departure must necessarily be examined with caution. His evidence, therefore, does not provide the degree of certainty required to establish the precise role of each accused beyond reasonable doubt.

PW 3, Vidyanand Singh, is an injured witness and ordinarily the testimony of an injured witness commands considerable weight. However, the evidence of an injured witness is not immune from scrutiny. Where the medical evidence does not fully support the alleged manner of injury and the witness's testimony contains material variations, his evidence must be carefully evaluated. PW 3 deposed that Ram Singh fired at Nageshwar Singh, Rabindra Singh fired at Nand Kishore Singh and Nagar Singh fired at him, while the remaining accused persons assaulted him with lathis. However, as noticed above, the medical evidence does not support the allegation that he sustained a firearm injury. The doctor specifically stated that injury No. 1 was caused by a hard and blunt substance and not by a firearm.

The discrepancy assumes significance because the alleged firearm injury to Vidyanand Singh constitutes an important part of the prosecution narrative and the identity of the person alleged to have caused that injury is specifically attributed to Nagar Singh. When the medical evidence does not support the very nature of the alleged firearm injury, the attribution of that injury to a particular accused becomes doubtful.

PW 3 also admitted that in his statement under Section 164 of the Code of Criminal Procedure he had stated that all the accused persons dragged the dead body, whereas before the police he had not stated the names of Balak Singh and Bana Singh. This constitutes an omission and improvement concerning the alleged removal of the dead body, which itself is a material circumstance relied upon by the prosecution.

PW 4, Jai Jai Ram Singh, attributed the fatal firing to Ram Singh and stated that all the accused persons dragged the dead body towards the river. However, in his statement under Section 164 of the Code of Criminal Procedure, he stated that Nagar Singh wanted to forcibly take the khesari crop and that Nagar Singh did not fire upon Nageshwar Singh but fired upon Vidyanand Singh. He further stated that Nagar Singh and Nageshwar Singh were standing face to face at a distance of 2-5 lagga during the altercation.

The testimony of PW 4, therefore, introduces material variations regarding the conduct and role of Nagar Singh and the manner in which the firing took place. His evidence also has to be considered in conjunction with the medical evidence, which does not support the allegation that Vidyanand Singh sustained a firearm injury.

PW 5, Rajesh Singh, supported the prosecution case in his examination-in-chief but, in cross-examination, denied having stated before the police that after Ram Singh fired, Rabindra Singh also fired upon Nageshwar Singh with a .303 rifle. He further gave evidence regarding the alleged firing by Rabindra Singh upon Nand Kishore Singh. His testimony, therefore, does not furnish a wholly consistent account of the sequence of firing and the respective roles of the accused persons.

PW 6, Nepal Singh, also supported the prosecution case in general terms. However, his evidence, like that of the other witnesses, is not free from discrepancies concerning the presence and positioning of the persons involved. His evidence regarding the distances between the respective persons involved in the alleged firing does not materially advance the prosecution case in establishing, with certainty, the individual role of the appellants.

PW 7, Kapildev Singh, likewise supported the prosecution version but introduced the specific assertion that Nahar Singh directed the accused persons to take away the dead body and that thereafter all the accused persons dragged it towards the river. This version is not consistently corroborated by the other witnesses and, as already discussed, remains doubtful in view of the contents of the fardbayan and the absence of any recovery of the body.

On a cumulative consideration of the depositions of PW 1, PW 3, PW 4, PW 5, PW 6 and PW 7, it is apparent that although these witnesses broadly support the allegation that an altercation and some form of assault took place, their evidence is not consistent on material particulars concerning the identity of the person who allegedly fired at Nageshwar Singh, the person who allegedly fired at Vidyanand Singh, the person who allegedly fired at Nand Kishore Singh, and the precise sequence of events.

The contradictions are not confined to minor or peripheral matters. They concern the very manner of firing and the attribution of specific acts to specific accused persons. Such material variations cannot be brushed aside merely as normal discrepancies arising from lapse of time.

The prosecution has also failed to produce any independent villager who allegedly arrived at the place of occurrence on hearing the alarm and sound of firing. According to the prosecution case itself, villagers from the vicinity had assembled after the occurrence. Yet, none of those independent villagers has been examined to corroborate the alleged firing, assault, death or removal of the dead body.

It is true that non-examination of independent witnesses is not, by itself, fatal to the prosecution case if the evidence of the witnesses examined is otherwise wholly reliable. However, in the present case, the evidence of the principal witnesses is itself subject to material contradictions and is not adequately corroborated by medical, forensic or other independent evidence. Therefore, the non-examination of independent witnesses assumes significance.

The alleged removal of the dead body towards the Koshi river also remains unproved. No dead body was recovered from the river or its bank. No scientific evidence connects the alleged blood-stained lungi or any other material with Nageshwar Singh. No witness has satisfactorily identified the alleged slippers or lungi as belonging to the deceased. The alleged dragging marks were not corroborated by independent evidence. In these circumstances, the prosecution has failed to establish this circumstance beyond reasonable doubt.

The prosecution has also failed to produce any reliable evidence regarding the recovery of the alleged firearms or any ballistic report connecting the alleged weapon with Ram Singh. In a case where the principal allegation against Ram Singh is that he fired the fatal shot, the absence of any reliable forensic or ballistic link, coupled with the absence of the dead body and post-mortem evidence, assumes substantial importance.

The Court is conscious that a prosecution case cannot be rejected merely because every circumstance has not been established by scientific evidence. Equally, recovery of the dead body is not invariably essential for proving a charge of murder. However, where the dead body is not recovered, the prosecution must establish the factum of death and the identity of the deceased through other cogent and reliable evidence. In the present case, the other evidence relied upon by the prosecution does not attain the degree of certainty required in criminal law.

Consequently, the prosecution has failed to present a consistent, cogent and legally sufficient chain of evidence connecting the appellants with the offences for which they have been convicted. The material deficiencies and contradictions in the prosecution case give rise to a reasonable and substantial doubt which goes to the root of the matter. Such doubt must necessarily enure to the benefit of the accused.

Because of the nature of evidence, which is available on record, the least, which ought to have been done by the learned Trial Court, was to accord benefit of reasonable doubt to the appellants inasmuch as I am clearly of the view that in the light of the evidence on record, which I have discussed above, it was too hazardous to convict the appellants. The benefit of such a situation ought to have been given to the appellants.

In the backdrop of what have been discussed and pointed out above, I am of the considered view that the prosecution has failed, in the present case, to bring home the charges against the appellants beyond reasonable doubt and that the appellants are entitled to be accorded benefit of doubt.

In the result, these appeals succeed. The impugned conviction of the appellants by the judgment, under appeal, and the consequential sentences, passed under the impugned order, are hereby set aside. The appellants are held not guilty of the offences, which they stand convicted of, and are acquitted of the same under benefit of doubt.

Since the appellants are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged.

The Registry is directed to return the Lower Court’s Record forthwith along with a copy of this judgment.