Birendra Singh @ Eirendra Kumar Singh and Others vs State of Bihar

R.N. Sahay, J.—Rampur Kutchery is a small village in the district of Begusarai which lies within the jurisdiction of Khodabandpur police station. It is a thickly populated village. This village was a witness to a demoniacal, ferocious, mysterious crime which happened in the night of 3.6.91 in which six persons were hacked to death in their sleep. The prime reasons for the gruesome multiple murder was the result of a deep rooted malice against Ramashray Singh, the head of the family, inasmuch as his entire family barring his one son who lived at Calcutta were eliminated. The manner in which these persons were hacked to death in cold blood indicates that it was the handywork of professional killer or killers and as a. matter of fact the investigation proceeded in that direction. One of the suspects was notorious killer of the area and the pattern of the present crime tallied with that criminal''s method of killing by sharp cutting weapon. Unfortunately that suspect was let off for lack of evidence.

Ramashray Singh, the head of the family, was an influential person of the village. He was said to be a member of Congress party. As it happens with such person he had incurred wrath of some of his co-villagers. He was complainant in two or three criminal cases. He was also a party to a partition suit which was decided in his favour but appeal is pending in this Court.

There was no witness to these murders. The crime was detected in the early hours of morning of 4.6.91 by Laxmi Narain Singh, cousin of the deceased, and Janardan Singh, the son of Laxmi Narain Singh. They lived close to the house of Ramashray Singh. On the fateful night at about 1 to 1.30 A.M. they left their house to attend wedding in the house of Jogeshwar Chourasia. His daughter''s marriage was performed that night. When they approached the house of Ramashray Singh they heard the cry of a child. Probably this child was grand son or grand daughter of Ramashray Singh. The identity of this child was not revealed during the trial. Laxmi Narain Singh and Janardan Singh went to the house of Ramashray Singh. According to their version they saw 10 to 15 persons emerging from the house of Ramashray Singh in fast pace. They claimed to have identified Ganesh Singh son of Suresh Singh, Suresh Singh son of Suryanandan Singh, Ram Vinay Singh son of Tarni Singh, Tarni Singh son of Rambadan Singh, Gita Singh son of Rambaran Singh, Arun Singh, Ram Ajay Singh and Ajit Singh sons of Gita Singh, Ramlagan Singh son of Rambadan Singh, Umesh Chourasia son of Shivnandan Chourasia, Ramnaresh Singh son of Banarsi Singh and Birendra Singh son of Ramudit Singh.

All the accused persons are co-villagers of the deceased. According to the evidence in moonlit night as well as in the torch light seven persons were seen outside of the road by the witnesses. Ail the accused persons were carrying blood stained Jatta and Fasuli. They fled away towards East and West, Laxmi Narain Singh is the cousin of the deceased Ramashray and Janardan Singh is his nephew. Laxmi Narain Singh and Janardan Singh went inside the premises of Ramashray Singh. They got shock of their life to find Ramashray Singh lying dead on a Machan with multiple injuries. By his side Toofani Singh was lying dead on a Chowki. Two dead bodies were found inside the house under construction. In the eastern side there was a thatched house in which female inmates lived. In the Angan Ramrati Devi was lying dead. Ramrati Devi was the wife of Ramutar Singh, the mother of Ramashray Singh. They saw Sindhi Devi daughter-in-law of Ramashray Singh lying dead on a cot. Ramashray''s one son was lucky to escape assasinatlon as he had settled at Calcutta. He came to village on reading the news of murders of his family members in the newspaper at Calcutta. Immediately, according to the prosecution, the information was given to Choukidar and Dafadar and a message was sent to police station. Kailash Singh P.W. 3 was a close neighbour of the deceased. He also arrived on hulla of Janardan.

The Officer Incharge of Khodabandpur police station which is at distance of 20 kilometers from the place of occurrence, reached in the morning. No Choukidar or any person had given message to the police station. Officer Incharge reached the village on rumour that Ramashray Singh and his family members have been murdered. He recorded the fardbeyan of Janardan Singh at 8 A.M. i.e. after seven hours of the discovery of the crime. He prepared inquest report. He inspected the place of occurrence and found blood on a chowki. He prepared a seizure list of blood stained (Exts. 14 and 14/5). He prepared a sketch map of the place of occurrence (Ext. 15). He seized three torches and nine batteries. They are material Exts. 1 and 1/2.

*7. The residential house of Ramashray Singh is constructed on a plot having four kathas of land. Three rooms have been constructed recently. Towards west of pucca house there was a small hut. The house was adjacent to Rosra Bithan Road.

The motive for the murder was said to be a pre-existing land dispute. It is alleged that Ramashray Singh had gone to Begusarai Civil Court in a complaint case on 1.4.91. He was threatened by accused Ganesh Singh and Rambinay Singh to withdraw the case otherwise he will finish his entire family. Ramashray Singh told this fact to Janardan Singh.

As stated earlier the village is a thickly populated village. The house of Ramashray Singh was located in a thickly populated area of the village. There were several houses around the house of Ramashray Singh. No neighbour heard cry of the deceased persons. According to the Laxmi Narain Singh, the house of Jogeshwar Chourasia was 100 yards away from his house towards east and south. There were two ways for going to the house of Jogeshwar Chourasia. None of these two witnesses raised any hulla. The villagers assembled in the house of Ramashray Singh in the early morning.

Laxmi Narain Singh kept walking near the place of occurrence till the arrival of the police. He saw Surayanarain Singh, Sudhanshu Singh, Phool Babu, Ramanandan Singh and Jogeshwar Chourasia. They arrived at 5 A.M. According to Laxmi Narain Singh he sent dafadar and choukidar to police station. There is no such evidence.

Kailash Singh P.W. 3 lived close to the house of Ramashray Singh. He was also invited by Jogeshwar Chourasia in the marriage. When he was preparing to leave he heard alarm of Janardan Singh. He rushed to the house of Ramashray Singh and found six persons, namely, Tarni Singh, Rambinay Singh, Suresh Singh, Ganesh Singh, Umesh Chourasia and Birendra Singh, descending from the Verandah of the house of Ramashray Singh. He also saw six persons, namely, Gita Singh, Ram Ajay Singh, Arun Singh, Ramnaresh Singh, Ajit Singh and Ramlagan Singh coming from the thatched house. He went inside the house and saw the dead bodies. Laxmi Narain Singh admitted that he did not raise any alarm nor Janardan Singh. Kailash Singh had no enmity with Umesh Chourasia but Umesh did Pairvi in the court for the accused persons. Kailash returned to house. He did not talk to any person about the occurrence. According to this witness Birendra Singh along with his family members had gone to his Sasural. This witness claimed that he saw some of the accused persons descending from the Verandah of the house under construction and some accused emerging from thatched house. This could not be true because Laxmi Narain Singh and Janardan Singh went inside the house only after the accused persons had fled. Sudhansu Singh lived in his house which is adjacent north of Rosra Bithan Road. In front of his house across the road, the house of Ramashray Singh is situated. He reached there at 5 A.M. He was examined on 15.8.91 and till that date he had no knowledge about the culprits. Sachidanand Singh P.W. 8 the own brother of Janardan Singh came to know about the occurrence from his mother and Bhabhi. He was at the place of occurrence but he did not talk to any one. Evidence of this witness indicates that his father and brother told him about the occurrence and claimed that they had seen the accused persons.

Janardan Singh stated in his evidence that he went near the Machan alter the accused persons fled away. Then Kailash Singh could not have seen the accused persons. Kailash Singh must have told the co-villagers about the participation of the accused persons. NO co-villagers was examined to support the version of Janardan. Laxmi and Kailash. Janardan Singh stated that Gita Singh (since deceased) and Ors. had cut nis Jamun tree. He filed a criminal case bearing Khodabandpur P.S. Case No. 46/90. The cut tree was handed over to Umesh Chourasia by the police. The court released the logs to Janardan but Umesh did not carry out the direction. Umesh Chourasia was a close friend of Ganesh Singh and Rambinay Singh. They were members of the Communist Party. There was a Title Partition Suit No. 70/80 between the deceased Ramashray Singh and Suresh Singh. He informed about the occurrence to Choukidar and Dafadar. Prosecution has not examined Choukidar and Dafadar. He went to the house of Choukidar and Dafadar in the morning but they left for police station. Choukidar-Shivnandan Mahto and Dafadar Umaluddin had arrived at 2 A.M. At that time about 100-150 persons had assembled near the house of Ramashray Singh. Choukidar and Dafadar left the place after 10-15 minutes. Another Choukidar of village Sayedpur was informed by, this witness. He was at the place of occurrence till arrival of police.

It is significant that this crucial fact do not find mention in the fardbeyan. Janardan did not notice as to who were the persons present at the place of occurrence. According to Janardan Singh, the Sub Inspector came first followed by Dafadar and Choukidar. They had gone to police station after knowing the facts from Janardan Singh. If it was so Choukidar must have stated about the occurrence.

The statement of Choukidar and Dafadar was taken by the investigating officer according to Janardan. Ganesh Singh had filed a criminal case against this witness and Ramashray Singh bearing Khodabandpur P.S. Case No. 44/85.

Rambahadur Singh is an important witness, i. e. was a friend of Ramashray Singh. Sometime he accompanied him to court. He has deposed. On 1.6.91 he had gone to Begusarai Civil Court. Case of this witness was fixed on that date in the court of Sri K. Mishra. Ramashray Singh deposed in the Court. He came out from the court room. Umesh Chourasia, Ganesh Singh and Umesh Singh were standing outside the court. They told him to withdraw the case otherwise, they will finish his entire family by 12th June. Rambahadur caught the arm of Ramashray Singh and left the place. On 3rd June 1991, also he had gone with Ramashray Singh and Toofani Singh. Ramashray Singh and Toofani Singh deposed in the court of K.N. Gupta. When they came out Umesh, Ganesh and Rambinay Singh threatened him.

On 4.6.91 at 4 A.M. he saw Gita Singh, Tarni Singh, Ramlagan Singh, Ajay Singh, Rambinay Singh going towards East. They had covered their bodies. Suspicion arose in the mind of Rambahadur Singh and he proceeded towards the house of Ramashray Singh. He saw the dead bodies of Ramashray Singh, his mother, his daughter-in law and grand son. This witness had deposed for Janardan in Khodabandpur R S. Case No. 46/90. In that case Rambinay, Ajay, Tarni, Arun Singh, Gita Singh and others were accused. He contested the election of Sarpanch against Umesh Chourasia and lost.

It is a significant to note that Janardan, Laxmi and Kailash had not stated that Rambahadur told them that he had seen some of the accused persons in the morning of 4.6.91.

The learned Sessions Judge considered the defence of the accused persons in para 8 of his judgment.

The learned Sessions Judge has considered altogether the evidence adduced on behalf of the prosecution and the defence in paragraph Nos. 10 and 11 of the judgment.

The learned Sessions Judge at the first instance outlined the infirmities in the evidence as highlighted by the defence in para 16 of the judgment as follows:

It may be mentioned that this is a case of ghastly and dastardly murder of six persons of one family in the night. So on the one hand, six innocent persons we,re killed and on the other hand eleven persons are facing trial of a serious offence. The gravity of the offence cannot, in any way, be a consideration in deciding a case by the Court. But it has to be borne in my mind that it is not only that an innocent man is punished as the other. I shall mention the common submission made on behalf of the accused that inimical and interested winesses have been examined and no other independent witness or any villager has, been examined. It was also stated that the village Chaukidar and Dafadar and Sathi Devi who were stated to have arrived immediately after the occurrence, have not been examined in this case. It was then stated that the motive of the occurrence and the identity of the accused have also not been proved. It has been lastly urged that P. Ws. 1, 3 and 12 are chance witnesses. It was, therefore, urged that much reliance cannot be placed upon the testimony of the prosecution witnesses. In my opinion, the above argument is not well founded. It is. true that P. Ws. 1, 2 and 3 are inimical to the accused and interested with the prosecution. But their evidence cannot be rejected on this account only. Their evidence has to be scrutinised with great care and caution. If it stand that test, it can be acted upon inspite of the animosity with the accused and interestedness with the prosecution. In my opinion, P. Ws. 1, 3 and 14 cannot be said to be chance witness. The murder was committed inside the house during the midnight and there was no other person present in or near the house. The very manner of the occurrence could have been only witnessed by the person passing through that road. It has been stated by the witnesses that they were, going to Witness the marriage in the house of Jogeshwar Chourasia, and therefore it was not improbable that they had not seen the accused persons going alter committing the offence. Beside it, the fact that the witnesses were chance witnesses by itself wound not be enought to discredit their testimony. So far, the question of identity of the accused is concerned, it has been stated by the prosecution eye witnesses that they have identified them in the torch light and moon-light. It is common experience that even in the darkness, known person can be identified, so it cannot be said that the accused could not have been identified by the witnesses in the night while going away after committing the offence. The learned lawyer for the accused could not show me as to why the prosecution eye witnesses should falsely mention the name of the accused leaving the real assailants. As regard, the motive of the occurrence is concerned, it is not controverted that there was outstanding enmity between the parties. The evidence of the witnesses is unanimous on the point that the accused persons and the deceased were members of two faction''s in the village. According to fardbeyan, Ganesh Singh and Ram Binoy Singh have earlier threatened the deceased Ramashray Singh in the court on 3.6.91 that his whole family shall be wiped out, if he will not compromise the case. Now coming to the submission that no independent witness has been examined. It is important to mention that there is nothing to show that any person other than the P. Ws. saw the occurrence. It is common experience that in the villages, where every one is someway or the other is related either to the accused or the victim, the villagers are generally reluctant to give the evidence because they are afraid that it might cause annoyance and enmity between him and the accused. In this background, I shall scrutinise the evidence of the prosecution witnesses.

The learned Sessions Judge has carefully summarised the evidence of three material witnesses, namely, Laxmi Narain Singh P.W. 1, P.W. 3 Kailash Singh and P.W. 12 Janardan Singh in para 17 of the judgment under appeal, as extracted hereunder:

The prosecution case revolved around the evidence of P. Ws. 1, 3 and 12. I shall first refer to the evidence of P.W. 12 Janardan Singh. He stated that in the night between 3rd June and 4th June, 1991 at about 1.30 when he was going to see the marriage ceremony of the daughter of Jogeshwar Chourasia and had reached near the house of Ramashray Singh, he heard the crying of a baby child coming from his house. Then he P.W. 12 turned towards the house of Ramashray Singh and saw some miscreants there. Thereupon, he raised hulla on which, his father Laxmi Narain Singh P.W. 1 and Kailash Singh P.W. 3 came running. He saw Ganesh Singh, Ram Binoy Singh, Ram Ajai Singh, Ram Naresh Singh, Umesh Chourasia, Arun Kumar Singh, Ajit Kumar Singh, Ram Lagan Singh, Tarni Singh, Suresh Singh, Geeta Singh and Birendra Singh at the exit door of Ramashray Singh. He identified them in the torch light and moon light. He also saw 8-10 persons on the road to whom he could not identify. The miscreants were holding blood stained Katta, Fasuli and Garasa. They all went towards the road and thereafter fled away towards east and west. When the accused persons fled away, he went near the Machan of Ramashray and found Ramashray and Toofani dead with sharp cut injuries. Thereafter, he went to the hut of Ramashray Singh, where Sindhi Devi and Ramrati Devi were lying with cut injuries. Then he proceeded towards the Verandah of. newly constructed house of Ramashray Singh, where he found Ram Pukar Singh and Sanjeev Kumar Chodhary lying dead with several injuries. He further stated that his father Kailash Singh and the villagers reached there. They themselves saw the occurrence and he also narrated the occurrence to them. His evidence has been criticised on the point that in the fardbeyan, he was stated that he saw 12 accused persons and 8-10 unknown persons at the exit door of Ramashray Singh. Thereafter he raised alarm on which, his father and Kailash Singh and villagers came there running. Thereafter, the accused persons fled away towards east and west. The accused persons were chased but they ran away towards east and west. It has, therefore, been argued that there has embelishment and inconsistency in the evidence of this witness at the different stage of the case. I do not find that there was any contradiction or exaggeration in the evidence of P.W. 12 made before the police and in the court. It may be first mentioned that fardbeyan is the precised statement of the fact. He stated in the court that he first went inside the house of Ramashray Singh and saw six persons slained and then raised alarm and in the fardbeyan he has stated that he raised alarm immediately after seeing the miscreants does not make such difference. If the Statement is read as a whole, it would appear that it is only the sequence of narration of the story but the main fact remained the same. In my opinion, some discrepancy here and there is natural and it rather re-enforce the truthfulness of the statement of the witness that he is not a tutored witness. The witness has been examined at length and I do not find any infirmity or inconsistency in his statement.

Learned Counsel for the Appellants submitted that the father and the son are chance witnesses. Their explanation for their presence near the house of Ramashray Singh is unacceptable. The claim of the witness that they were going to attend marriage ceremony at the house of Chourasia Is highly improbable. According to the evidence Laxmi Singh and his son Janardan were going to attend the marriage of the daughter of Jogeshwar Chourasia D.W. 4. The marriage of Jogeshwar Chourasia''s daughter was to be performed that night. Jogeshwar who was examined as defence witness deposed that there was no marriage of his daughter on the alleged date of occurrence. He has further stated that he had not invited Laxmi, Janardan or Kailash Singh. The learned Sessions Judge held that it is improbable that the prosecution would hatch out a cock and bull story of going to the house of Jogeshwar Chourasia to witness Barat when in fact, no Barat had come to his house. It is further unnatural that the accused would not agitate the matter either before the police or in the bail petition earlier that in fact, no Barat party had come in the house of Jogeshwar Chourasia on the alleged date of occurrence.

This is very logical the learned Sessions Judge forgot to notice that I.O. failed 1o ascertain whether there was marriage in the house of Jogeshwar Chourasia on the fateful night. Jogeshwar Chourasia stated that he is not related to accused Umesh Chourasia.

There is no valid explanation as to why all the witnesses started simultaneously after midnight. The whole story Is highly artificial and concocted. The learned Sessions Judge did not realise the gravity of the case in which six persons were murdered and eleven persons were put on trial. It would be indeed unsafe to convict the accused persons on the evidence as it stands. The witnesses adopted a circutious route for going to the house of Jogeshwar Chourasia when there was a shorter route to reach there. The explanation was that the shorter route was not fit to travel in the night as it was dirty. The learned Sessions Judge without scrutinising the evidence accepted the explanation. The I.O. had no occasion to visit the shorter route. The learned Sessions Judge did not find inconsistency in the evidence of material witnesses. He found the corroboration of evidence of Laxmi Nr. Singh, P.W. 1, Kailash Singh P.W. 3 and Janardan Singh P.W. 12 by P.W. 2 Rambahadur who deposed that on 4.6.91 at 4 A.M. when he was going from his house for natural call, he saw accused Geeta Singh, Tarni Singh, Ramlagan Singh, Ajai Singh, Rambinay Singh with wrappers on their head, going towards south. There is no corroboration of the fact that he had seen the accused persons. None of the three material witnesses have stated that Rambahadur Singh had disclosed to them that he has seen the accued persons.

Unfortunately, the learned Sessions Judge, in my opinion, has not been fair in assessing the evidence. The most damaging part of the prosecution evidence is that no information was given by any body to the police station, or to the choukidar.

Counsel for the Appellants referred the evidence of Sudhansu Pd. Singh P.W. 6, an independent witness. He has gone to the house of Ramashray Singh. This witness has stated that till 15.8.91 he was totally ignorant about the persons involved in the heinous crime. This is, however, unbelievable.

In Criminal Appeal No. 215/94 Appellant Ramlagan Singh is the brother of Tarni Singh Appellant in Cr. Appeal No. 392/94 and son of Rambadan Singh and Appellants Ajit Singh, Arun Singh and Ram Ajay Singh are sons of Gita Singh (deceased accused). It is submitted on behalf of these Appellants that Rambahadur Singh P.W. 2 was a witness in Khodabandpur P.S. Case No. 46/90 filed by Ramashray Singh. The informant was on inimical terms with the accused persons much before the present occurrence and encashed the opportunity arising out of unfortunate murder of six persons. It is further submitted that deceased Ramashray Singh was involved in criminal cases with other persons of his own village and not with these accused persons. The deceased Ramashray Singh was the informant in Khodabandpur P.S. Case No. 38/89 in which Hira Choudhary and others of village Sishna were accused. Similarly, deceased Ramashray Singh was the informant in Khodabandpur P.S. Case No. 64/89 in which Ramsewak Paswan was the accused. No motive for the murder of Ramashray Singh was established. The motive suggested was highly absurd.

Learned Counsel for the Appellants has strongly submitted that Janardan Singh P.W. 12 and his father Laxmi Nr. Singh were anxious to oust and disposses of accused Ramlagan Singh from their ancestral house. This was the main reason that Janardan Singh had falsely implicated Ramlagan Singh, his brother and nephew. P.W. 1 Laxmi Nr. Singh in his cross examination admitted that Ramlagan Singh was living with Gita Singh in the same Angan which is against the evidence of P.W. 7 and P.W. 12 Janardan Singh had himself denied that Ramlagan Singh was living in a portion of the ancestral house, it is further submitted that Gita Singh and father of accused Ramashray, Ajit and Arun and brother of Tarni and Ramlagan and uncle of Ram Binoy Singh too were falsely implicated in this case. Gita Singh was suffering from cancer and died during pendency of the trial, the discharge reports of Gita Singh (Exts. L and L/5) of Tata Memorial Hospital, Jamshedpur show that he was suffering from cancer. Gita Singh could never have participated in the crime. There is no cogent evidence that these accused persons threatened Ramashray.

P.W. 2 Rambahadur Singh deposed that some incident had taken place on 3.1.1991 in Begusarai Court campus. Accused persons have no connection with Hira and Ramsewak Paswan. The presence of Rambinay Singh at Begusarai on 1.6.91 and 4.6.91 could not be accepted when he had got no case on that dates nor he was a witness. There Is no evidence that on 1.6.91 and 3.6.91 deceased Ramashray Singh had gone to Begusarai to depose against any of the accused. Learned Counsel for the Appellants argued that strong suspicion arise that all the three principal witnesses who arrived at the place of occurrence are inimical to the accused persons and as such interested witnesses and none else. The witnesses deviated from the case as made out in the F.I.R. relating to their arrival at the place of occurrence. Janardan Singh says that he reached near the house of deceased Ramashray Singh and heard weeping sound of baby and saw the assailants at the Darwaza of Rameshray Singh and he raised hulla and thereafter his father Laxmi Nr. Singh and witness Kailash Singh came running. There was no occasion for Kailash to pass through the house of the deceased while going to the house of Jogeshwar Chourasia. No independent witness has stated about the marriage of the daughter of Jogeshwar Chourasia. The prosecution did not examine Jogeshwar Chourasia. He was examined as defence witness.

According to Laxmi Narain he and his son started together and saw 10-12 persons fleeing away from the house of the deceased. He was at a distance of 4-5 cubits from the assailants towards north and his son was at a distance of 2-3 cubits towards from him. It shows that his son was at a distance of 2-3 cubits away from the assailants cannot be believed.

Kailash Singh stated that he arrived on the hulla of Janardan Singh and saw six persons getting down from the Verandah of the deceased. According to Janardan''s version he had seen the accused persons at the Darwaza of the deceased. It is contended that the evidence of P.W. 1 was mutually contradictory.

Learned Counsel for the Appellants submitted that P.W. 1 says that all the 12 persons were seen fleeing away from the house of the deceased which cannot be believed. P.W. 1 changed his statement in para 29 saying that 2 to 10 persons ran towards west and they were at a considerable distance and hence he could not identify them. He has further stated in the same paragraph that other 12 to 14 persons ran away towards east and he could not identify them as they were at a distance of 10 to 15 laggas. P.W. 3 in para 17 has stated that he saw accused persons going in ordinary speed which cannot be believed though different version has been given to the police. Learned Counsel for the Appellants submitted that all the three witnesses are highly unreliable witnesses as they were tutored witnesses.

32A. So far the evidence of Rambahadur Singh P.W. 2 is concerned, it is contended that he has claimed to have identified accused Gita Singh, Tarni Singh, Ramlagan Singh, Ajay Singh and Rambinay Singh at 4 A.M. on 4.6.91 while he was going to ease himself.P. Ws. 1, 3 and 12 have claimed to have identified the accused persons by means of torches and the torches are said to have "been produced before the I.O. The evidence regarding production of torches is of suspicious character. P.W. 2 Rambahadur Singh and P.W. 5 Sanjay Kumar are witnesses in all the seizure lists which are really production list. The seizure lists of torches and batteries indicate that they were seized at the Darwaza of the informant Janardan Singh and all the three torches were old. The torches were produced at the police station. Learned Counsel submitted that the story of identification is concocted as P. Ws. 1, 2, 3 and 12 had not seen what they claim to have seen.

According to P.W. 1 he raised hulla but no body came. According to the informant he raised hulla and many persons came and the assailants were chased but they fled away. P.W. 1 subsequently realised that if he speaks about the raising of hulla the question of collection of neighbours will be there but he took shelter by saying that he did not remember if he raised hulla.

Learned Counsel for the Appellants pointed out that Sudhanshu Singh, P.W. 6 seizure witness, is an important witness. He is a neighbour of the deceased. Laxmi Narain has gone to the extent of saying that the house of Sudhanshu Singh is at a distance of 10 laggis from the place of occurrence which is falsified from the evidence of P.W. 3 who said that the house of Sudhanshu Singh is adjacent north to Rosra Bithan Road. P.W. 1 has stated that he did not know the house of Most. Shanti Devi but he admitted that he knows Shanti Devi who is mother of Rambilash Paswan. The evidence of P.W. 3 shows that the house of the mother of Rambilash Paswan is adjacent to the house of deceased Ramashray Singh intervened by a road. P.W. 1 has tried to suppress the real fact about Shanti Devi who is an important witness in this case. According to P.W. 3 there are houses adjacent to the house of the deceased but it is most strange that none of the neighbours has come forward to say that these P. Ws. has disclosed the names of any of the accused of narrated about the alleged identification.

According to the prosecution there was marriage of the daughter of Janardan Chourasia at that time, hence it would be expected that many persons must have assembled for that function at the house of Jogeshwar Chourasia and had there been any nulla raised at 1.30 A.M. or had been actual knowledge of the occurrence at 1.30 A.M. many persons must have rushed to the place of occurrence at that time but none has came forward to implicate the accused persons. This indicates two things. Firstly there was no marriage in the house of Jogeshwar Chourasia and secondly no hue and cry was ever raised by any person including the P. Ws. nor murder was detected at 1.30 A.M. This was gruesome murder of six persons in a thickly populated area and fardbeyan was recorded at 8 A.M. on 4.6.91. There is no mention in the F.I.R. that the informant or any body had tried to send information to the police station during the night but the prosecution witness has given a different version on this point.

Laxmi Narain Singh had deposed that fie had sent Dafadar and Janardan Singh to police station. Now Janardan deposed that he informed the choukidar and dafadar after the occurrence and they came to the place of occurrence and told that they would go to the police station in the morning and at 4 A.M. to 5.30 A.M. when he went to their house he learnt that they had already left for the police station sometime earlier. Janardan deposed that he narrated the entire story to choukidar and dafadar whose names are Shivnandan Mahto and Jalaluddin. He also stated that choukidar came to the police station at 2 A.M. in the night and after their arrival 100 to 150 villagers collected there. He has further stated that choukidar and dafadar and other villagers must have received information about the identification by these P. Ws. It is significant to mention here that neither the choukidar nor the dafadar nor any villager had been examined. It is submitted that non-examination of Shanti Devi and other neighbours choukidar and dafadar and nondisclosure by Sudnanshu Singh P.W. 6 about identification indicates that no body had seen any assailants.

The learned trial judge has accepted the evidence of I.O. that he had seized Paijama, Kurta of Jericot from the Dekchi stained at some place with blood but from his cross examination the alleged blood stain is not established rather it is falsified as pointed out by accused Ram Ajay in presence of two witneses. It is submitted that no independent witness of the seizure was examined. The evidence of seizure of doubtful and suspicius. It is further submitted that I.O. had no proper idea of the place from where the alleged Dekchi was recovered. I.Q. stated that clothes were kept in the Dekchi sub-merged in solution of Surf and so it cannot be possible that any alleged blood stain would have been visible. He has further stated. that he had seen stains of Pan Pirki, Nil Polish and Banana fluidson. No clothes were sent for chemical examination. This part of the evidence was not put to accused Ram Ajay Singh while he was being examined u/s 313 Code of Criminal Procedure.

Defence of accused Ajit Singh is that he had gone to attend the Barat in the night of alleged occurrence i.e. in the night of 3.6.91 at village Manopur and he remained there till 4 P.M. and thereafter he went to village Manopur. This accused in his statement u/s 313 Code of Criminal Procedure had taken such defence of alibi which finds support from the evidence of P.W. 12 Ram Udagar Singh, Mukhiya of Mokhtiyarpur Gram Panchayat under whose jurisdiction village Manopur lies. D.W. 12 deposed that he had seen Ajit Singh in the Barat and the Barat had came from Rampurkutchery. He has further stated that he had seen Ajit Singh at Manpour till the evening of 4.6.91. Learned Counsel for the Appellants submitted that alibi finds corroboration from the evidence of I.O., P.W. 14, in para 43. The defence of this accused indicates the entire prosecution version of identification unworthy of reliance. The I.O. has not properly investigated the case and submitted chargesheet on concocted version. The I.O. has not visited the house of Jogeshwar. Chourasia. He had not recorded the statement during the investigation. The I.O. could not say as to which direction the house of Jogeshwar Chourasia is located from the place of occurrence.

Learned Counsel contended that it demolished the entire prosecution case. The credibility of the evidence of the prosecution is completely shaken. The prosecution witness is completely worthless and unreliable.

In Cr. App. No. 244/94 Suresh Singh and Ganesh Singh are the Appellants.

Learned Counsel for the Appellants contended that the story of P. Ws. 1, 2, 3 and 12 that they were going to see the marriage of the daughter of D.W. 4 is highly improbable as none of these witnesses was invited. Hence the story that they were going to see the barat is absurd. The evidence of Jogeshwar Chourasia is that he was not related with Umesh Chourasia. Other grounds are similar to that of Cr. App. No. 215/94.

In Cr. Appeal No. 212/94 Umesh Chourasia is the Appellant. It is submitted that nothing specific has been attributed against this Appellant. The Appellant has no dipute with the deceased or his family members at the instance of P.W. 2. It is submitted that this Appellant was implicated at the instance of P.W. 2 as his brother was defeated in the election of Sarpanch by this Appellant. This fact was admitted by Rambahadur Singh in his evidence. The Appellant was an acknowledged leader of the Communist party and he was the Sarpanch continuously from 1978.

Rameshwar Singh, D.W. 1, was examined on behalf of the Appellant. He was a member of Bihar State Legislative Assembly from 1980 to 1984. He deposed that he knew Umesh Chourasia. In February, 1990 Umesh Chourasia met with motor cycle accident and his knee was fractured. He came to C.P.I, office, Begusarai for treatment on 2.6.91 where he remained for a week. This fact was admitted by P.W. 1, Dr. S.P. Pandey P.W. 2 stated that Umesh Chourasia visited his clinic on 8.3.90. There was internal injury on his right joint. He again visited on 28.4.91, 2.6.91 and 12.6.91. Dr. S.P. Verma, D.W. 7 stated that Umesh Chourasia was limping while in jail. He further stated that Umesh Chourasia was suffering from Osteroarthiritis. He opined that the accused was having restriction in movement. D.W. 15 Dr. Shaquir Ahmad stated that Umesh Chourasia was unable to extend his right knee joint.

In Cr. App. No. 257/94 Ram Naresh Singh is the Appellant. He has taken the same grounds to that of Cr. App. No. 215/94. It is submitted that P.W. 2 Rambahadur Singh is highly interested witness. He deposed that he is a friend of deceased Ramashray Singh. The Appellant''s father deposed against the deceased in T.S. No. 70/70 an informant has illegally encroached upon the Appellant''s homestead land.

In Cr. App. No. 292/94 Tarini Singh and Ram Lagan Singh are the Appellants. They had taken similar grounds to that of Cr. App. No. 215/94.

In Cr. App. No. 197/94 Birendra Singh son of Ramudit Singh is the Appellant. It was the specific case of the Appellant that he was not present in his village and he has gone to his Sasural at village Sihma, P.S. Matihani. His son was ill at that place and was under treatment of a doctor. Several witnesses were examined including D.W. 3 Suresh Prasad, D.W. 5 Mahadeo Shah and D.W. 6 Dr. Vinay Kumar.

It is contended that P.W. 1 Laxmi Narain Singh admitted that his eye sight was not all right. He required assistance of his son. He was in a light sleep when he heard the sound of Barat and his son called him at 1.30 A.M. in the night to accompany him to see the Barat. The evidence is absurd. P.W. 3 Kailash Singh stated that he saw the accused for the first time in the Verandah and after he flashed his torch, he could not with certainty identify Birendra Singh. P.W. 12 in his statement u/s 164 Code of Criminal Procedure had not named Birendra Singh but he named one Ram Prakash Singh. There was no dispute between the deceased and Birendra Singh. In Court he struck off his statement in the fardbeyan realising the danger of endangering the prosecution case. The pressence of Laxmi Narayan Singh is doubtful. P.W. 3 admitted that Birendra Singh along with his wife and children had gone to his Sasural at village Sihma two days prior to the occurrence.

All the contentions advanced on behalf of the Appellants are weighty contentions has to be tested in the light of the recorded evidence.

It is undisputed that six persons were murdered on the fateful night. Ramashray Singh might have quarreled with his agnates and co villagers. He not only lost his life but he was killed along with his mother, daughter-in-law, grand son and brother-in-law of his son (body guard of Ramashray Singh). The medical evidence is incorporated in the judgment of the trial court. No doubt victims were murdered in a most cruel manner. It is also proved that several persons were involved in the multiple murder and may be they were professional killers. It is worthwhile to mention that except Umesh Chourasia all the Appellants are agnates of Laxmi and Janardan. Their common ancestor was Naurangi Singh who had three sons, namely, Raghubir, Ayodhya and Yamuna. Raghubir had two sons, namely, Basudeo and Shivanandan. Appellants Tarini Singh, Ramlagan Singh and Gita Singh (since deceased) are grand sons of Basudeo Singh son of Ramnandan Singh. Appellants Ram Ajai Singh, Arun Singh and Ajit Singh are sons'' of deceased Gita Singh. Appellant Ram Binoy Singh is the son of Appellant Tarini Singh. Laxmi Singh and his son Janardan are descendant of Yamuna Singh. It is evident that Appellants are bood relations of Laxmi Singh. They were very close to the house of deceased Ramashray Singh and Laxmi Singh. There were other houses close to the house of deceased Ramashray Singh which is evident from the evidence of Laxmi Singh. Laxmi Singh is also grand son of Yamuna Singh. In Partition Suit deceased Ramashray Singh, Laxmi Singh and most of the accused persons were parties. The appeal is now pending in the High Court. Appellant Ganesh Singh and Suresh Singh were living in the same house in which Laxmi Singh was in occupation. Ganesh Singh and Suresh Singh have never been dispossessed from the house. Laxmi Singh has stated that Janardan had filed a criminal case in 1990 against Tarini Singh, Gita Singh, Rambinay Singh, Arun Singh and Ram Ajai Singh which was pending then. It is evident from the entire evidence that he has tried to evade the pertinent question to him in the cross examination. In his evidence he has stated that he does not remember whether Gita Singh was Defendant in the suit. He does not remember that he has supported the claim of deceased Ramashray Singh. He does not say whether Ramashray Singh was an accused in a murder case. He has admitted that his eye sight was poor.

Laxmi Singh has fairly admitted that since last 20 years he was fighting litigation with the family of Suresh Singh and Ganesh Singh. It was suggested that Banarsi Singh, the father of Ramnaresh Singh was a co accused in the murder case of Lawhar Mahto. He could not say that Banarsi Singh had deposed against him in the partition suit. Laxmi Singh was not able to say whether Rambaran Singh and his four sons had filed a suit against Ramashray Singh. He has admitted that he has not narrated to any person of his Mohalla and his statement was recorded in the morning. He has admitted that he was not invited by Jogeshwar Chourasia to attend the marriage function of his daughter. Umesh Chourasia was the Sarpanch of Gram Panchayat since 1978 and he was also a leader of the communist party. He met with an accident in 1990. Laxmi Singh was unable to throw light on this fact.

Laxmi Singh has stated in para 30 of his evidence that there was a orchard in Kolhasan Jheel. Some trees of Sisam and Jamun had been cut away by the miscreants. He was unable to say that any case was launched. He was unable to say that on 13.6.90 Khodabandpur police had seized 12 pieces of logs of Jamun and three pieces of Sisam which were kept in the custody of Umesh Chourasia. It was suggested that he has not requested Umesh Chourasia to release the seized logs which he refused. This was cause of annoyance against Umesh Chourasia. The statement or this witness was recorded on 6.6.91. He was unable to say whether in 1978 election of Gram Punchayat Ram Bahadur Singh had contested the election against Umesh Chourasia. Village Ibrahimpur is away 1 1/2 kilometer from Rampur Kutchery.

It is clear from the evidence of Laxmi Nr. Singh that he did not raise hulla after seeing the Appellants emerging from the house of deceased Ramashray. It is also clear that he had not been invited by Jogeshwar Chourasia in the marriage function. His evidence was recorded after two days.

Coming to the evidence of Rambahadur Singh P.W. 2, he was resident of Ibrahimpur. He claims to have identified the accused persons at 4 A.M. in the morning. He had admitted that he was a witness of Janardan Singh in a criminal case filed against Rambinay Singh, Tarini Singh etc. He contested the election of the office of Sarpanch in which Umesh Chourasia was elected. He has stated that he had gone with Ramashray on 1.6.91 in Begusarai Civil Court. There was a case in which Hira Choudhary was an accused. Appellants were not accused in that case. On 3.6.91 he had again gone with Ramashray Singh in connection with some other case in which except Ramsewak Paswan none of these Appellants were accused in that case. He cannot say whether Ramashray Singh was an accused in a murder case. This witness has inimical term with Umesh Chourasia and he was supporter of Ramashray Singh. He was aged 76 years. It is significant to note that he revealed Laxmi Nr. Singh and Janardan Singh or any other person that he had seen the accused persons in the early morning of 4 A.M. This witness is highly unreliable.

Kailash Singh P.W. 3 is an important witness. The trial judge relied on his evidence. He was also getting ready to attend the marriage ceremony of the daughter of Jogeshwar Chourasia at 1.30 A.M. He heard the sound of Janardan Singh and started towards the house of Ramashray Singh. This witness claims to have identified Tarini Singh, Rambinay Singh, Suresh Singh, Ganesh Singh, Umesh Chourasia and Birendra Singh when they reached the house of Ramashray Singh. Laxmi Singh has not stated that Janardan has raised hulla. He was also a chance witness. He has stated that Umesh Chourasia was a member of communist party and Ramashray Singh was a member of Congress party. The house of Birendra Singh is in the eastern corner of the village but he could did not say whether Birendra Singh, his wife and children had gone to Sasural. for treatment of his son. In para 8 he has admitted that he gone to Sasural two days prior to the occurrence. The witness cannot say whether he deposed in the murder case of Lavar Mahto. He has no knowledge whether Banarsi Singh, father of Ramnaresh Singh, was also an accused in the case. This witness say that he does not remember that he, his father, Ramashray and Laxmi were witnesses for the prosecution in the murder case of Lavar Mahto. He cannot say whether deceased. Toofani Singh was a notorious criminal of the area. He was not aware whether Toofani was an accused in a bank dacoity case or in the case of Lavar Mahto. This witness has admitted that Umesh Chourasia was injured.

Sudhanshu Prasad Singh P.W. 6 lived in a house adjacent to the house of Ramashray Singh. He went to the house of Ramashray Singh when hulla was raised. He was examinqd on 15.8.91. He has not named the assailants.

The evidence of Rajkumar Singh P.W. 7 is not important. He was at Calcutta on the fateful night. His wife was murdered in the occurrence. He has reported about enmity with some of the accused persons. He has stated that there was a proceeding u/s 107 Code of Criminal Procedure between Umesh Chourasia and Ramesh Singh.

Janardan Singh P.W. 12 is an important witness of the case. He has stated that in his fardbeyan he had not stated about motive for the crime. There was long standing land dispute between Ramashray Singh and accused persons. Umesh Chourasia had no concern with the land. He did pairvi on behalf of the accused persons. It is alleged that deceased Gita Singh and others had cut Jamun trees in respect of which Khodabanpur P.S. Case No. 46/90 was instituted. Logs were in the custody of Umesh Chourasia. the value of logs was Rs. 10,000/-. Chief Judicial Magistrate, Begusarai hgs ordered Chourasia to handover the logs to Janardan Singh. Umesh Chourasia did not carry out the order of Chief Judicial Magistrate. Reason was that Umesh Chorasia was close (sic)end of Ganesh Singh and Rambinay Singh. Both were members of the communist party. Title Suit No. 70/70 was between Ramashray Singh and Suresh Singh. In the Partition Suit the deed of gift was also challenged. The decision went in favour of Ramashray Singh. It was the main cause for multiple murders. Janardan Singh says that he had given information to Choukldar and Dafadar at the place of occurrence but they did not go to police station in the night. He went to the house of choukidar. He was informed that choukidar went to the police station. About 100-150 villagers were assembled near the house of Ramashray Singh when choukidar came. Choukidar and Dafadar did not stay at the place of occurrence in the night. There was another choukidar of village Syedpur. He was also told about the occurrence.

The judgment of T.S. No. 70/70 (Ext. 17) shows that Laxmi Singh and Ramashray Singh were Plaintiffs. Ramlagan Singh, Ramjanam Singh and Vinay Singh were Defendants in the suit. Kailash Singh is a witness on the case.

The carder in G.R. Case No. 1521/89 shows that Hira Choudhary was an accused in that case. Certified copy of deposition of Ramashray Singh in G.R. No. 1521/89 shows that on 1.6.89 Ramashray Singh had deposed (State v. Hira Choudhary). Ramashray Singh had named the accused persons of that case. None of the Appellants figured as accused in the case. The ordersheet of Khodabandpur P.S. Case No. 46/90 (Ext. 20/3) shows that Janardan Singh was the informant in that case. Tarini Singh and others were accused. The ordersheet dated 24.1.91 shows that C.J.M., Begusarai had directed for release of logs seized in that case in favour of Janardan Singh. The accused persons filed a petition to release logs to them but the same was rejected by the magistrate. The ordersheet of G.R. No. 2299/89 shows that Ramashray filed a case against Ramsewak Paswan. None of the accused persons are involved in that case. However the deposition shows that Appellant Umesh Chourasia was present in Court when Ramashray Singh was giving evidence and he was seen with the accused persons.

The prosecution case is that Umesh Chourasia and some of the accused persons threatened Ramashray in Court campus on 1.6.91. It cannot be said that the accused persons had motive for commiting the murder of entire family.

The entire prosecution is based on the evidence of three witnesses, namely, Laxmi Singh, Rambahadur Singh and Janardan Singh. All these witnesses were hostile. There is no corroboration of the evidence by the witnesses.

In this connection it is Worthwhile to refer to a recent decision of Hon''ble Supreme Court of India in Harpal Singh v. Devinde''r Singh (1998) (1) PUR (SC) 11). The question for consideration was whether under that circumstances the evidence of partisan witness can be acted upon. There is no doubt, in the present case, that all the witnesses are partisan witnesses and vitally interested in the conviction of the Appellants. The Supreme Court commented ;

But the drawback of his evidence is that he belonged to the students'' wing which was admittedly rival to the accused students. Though that by itself is not enough to tarnish his testimony, it is a sound rule in appreciation of evidence that if the testimony of such a witness is to be used as the sole basis of conviction it should be of such a calibre as to be regarded as wholly reliable. The blemish attached to P.W. 6 as a partisan witness stands in the way of his evidence becoming wholly reliable and hence without adequate reassurance from other circumstances or materials it may not be safe to make the uncorroborated evidence of such a witness the sole basis for reversing the order of acquittal.

It is well settled that one partisan witness cannot corroborate the evidence of other partisan. This is exactly the point for consideration.

The evidence of three witnesses that they had seen the accused coming from the house of Ramashray Singh bristles with Improbabilities and inconsistency. According to the evidence Laxmi and his son were on the way of Jogeshwar Chourasia which was not the shorter route and they reached the house of Ramashray and heard cry of a child. There is no evidence that who was that child. None of the witness say that they saw the child when they discovered the dead bodies of six persons. There is no evidence that there was marriage in the house of Jogeshwar Chourasia. The investigating officer did not investigate on this point. The investigation was worthless. No superior officer had seriously supervised the case. There is no evidence that any report was sent to police station. The officer incharge came at 8 A.M. in the morning. There is no independent witness to say that persons who had seen the accused persons emerging from the house of the deceased Ramashray Singh and disclosed this fact to any of the co-villager.

P.W. 8 Sachidanand Singh, who is the brother of the informant and son of Laxmi reached the house of Ramashray Singh at 2 A.M. This witness does not say that his father and brother Kailash told him that they had seen. Laxmi Singh has named a few co-villagers who had (sic) after the occurrence Jogeshwar Chourasia was one of them.

There was inordinate delay of information to the police. Officer Incharge has stated that he heard rumour of the murder of Ramashray Singh and his family members. He says that no information was sent to the police station by the informant. The I.O. after recording the statement of the witnesses conducted inquest. He had gone to the house of Jogeshwar Chourasia on 4.6.91. It is significant to note that he has not recorded this fact in the case diary. It means that he has not gone to the house of Jogeshwar Chourasia. He has not been able to say the location of the house of Jogeshwar Chourasia. The I.O. does not say that he searched the house of the accused persons on that morning. He recorded the statements of Dafadar and Choukidar but they have not been examined.

The trial court should have examined the Choukidar and Dafadar. Six persons were murdered in cold blood and still the learned Sessions Judge did find appropriate to impose capital punishment. The evidence is full of loop holes and tainted as discussed earlier.

It has been held by Supreme Court in Dilaver Hussain and Others Vs. State of Gujarat and Another, that sentiments or emotions, however, strong are neither relevant nor have any place in a court of law. Acquittal or conviction depends on proof or otherwise of the criminological chain which invariably comprises of why, where, when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecution. Each link must be so consistent that the only conclusion which must follow is that the accused is guilty. Although guilty should not escape. But on reliable evidence, truthful witness and honest and fair investigation. No free man should be amerced by framing or to assuage feelings as it is fatal to human dignity and destructive of social, ethical and legal norm.. Heinousness of, crime or cruelty in its execution howsoever abhorring and hateful cannot reflect in deciding the guilt.

The case of the Supreme Court related to communal outburst in which house was set on fire resulting into death of inmates. No information was sent to police by the Witnesses. The important witnesses were not brought on record. The Supreme Court observed that the prosecution version suffered from serious infirmity.

In the present case so far three witnesses are concerned, the very foundation of the evidence is shaky.

The learned Sessions Judge was not right in recording the verdict of guilt against the Appellants.

In view of the discussions made above, I come to the conclusion that there was acute animosity between the informant party and the accused persons. It can be presumed that the Appellants were implicated on suspicion. There being no eye. witness of the occurrence. The evidence is not corroborated by any independent witness of the Mohalla. There is no evidence that the witnesses have disclosed the name of the accused persons when they are neighbours. All the witnesses are chance witnesses. There is indication that murders were detected in the early morning. No information was sent to the police station. Non-examination of Choukidar and Dafadar is a serious infirmity which cannot be condoned. The investigation of the case was not done by the superior officer. It appears that the murder was committed by professional killer. The Appellants cannot withhold guilt on suspicion in absence of cogent and material evidence.

In the result, the conviction of the Appellants is set aside by giving benefit of doubt. All the appeals are allowed. The Appellants are in custody. They are directed to be released forthwith if not wanted in any other case.

P.K. Sarkar, J.

I agree.