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Judgment
Aforesaid five appellants were convicted and sentenced to death by judgment of conviction and sentence dated 22-05-2017 and 25-05-2017
respectively passed in Sessions Trial No. 319 of 2015 by Sri Jyoti Swaroop Srivastav, learned Additional Sessions Judge 1st, Munger (hereinafter
referred to as ‘Trial Judge’) and as such, both the aforesaid appeals and Death Reference were taken up together and are being disposed of by
this common judgment.
All the appellants by judgment dated 22-05-2017 were held guilty and convicted under Sections 302, 353, 147, 148, 341, 307 of the Indian Penal
Code, 1860 (hereinafter referred to as ‘I.P.C.’) and Sections 3, 4 and 5 of the Explosive Substances Act, 1908 (hereinafter referred to as
‘Explosive Substance Act’). By order dated 25-05-2017, for commission of offence under Section 302 of the I.P.C., all the aforesaid five
appellants were sentenced to death. They were directed to be hanged by neck till their death. They were also imposed a fine of Rs. 50,000/- (fifty
thousand) each and in default of payment of fine, they were directed to further undergo simple imprisonment for a period of six months. For
commission of offence under Section 353 of the I.P.C., all the aforesaid appellants were sentenced to undergo rigorous imprisonment for two years
and to pay a fine of Rs. 10,000/-(ten thousand) each and in default of payment of fine, they were directed to further undergo simple imprisonment for
one month. For commission of offence under Section 147 of the I.P.C., all the aforesaid appellants were sentenced to undergo rigorous imprisonment
for two years and to pay a fine of Rs. 10,000/-(ten thousand) each and in default of payment of fine, they were directed to further undergo simple
imprisonment for one month. For commission of offence under Section 148 of the I.P.C., all the aforesaid appellants were sentenced to undergo
rigorous imprisonment for three years and to pay a fine of Rs. 15,000/-(fifteen thousand) each and in default of payment of fine, they were directed to
further undergo simple imprisonment for two months. For commission of offence under Section 341 of the I.P.C., they were sentenced to undergo
rigorous imprisonment for one month and to pay a fine of Rs. 500/- (five hundred) each and in default of payment of fine, they were directed to
further undergo simple imprisonment for 15 days. For commission of offence under Section 307 of the I.P.C., they were directed to undergo rigorous
imprisonment for life till last breath and to pay a fine of Rs. 25,000/- (twenty five thousand) each and in default of payment of fine, they were directed
to further undergo simple imprisonment for three months. For commission of offence under Section 3 of the Explosive Substance Act, they were
directed to undergo rigorous imprisonment for life till their last breath and to pay a fine of Rs. 25,000/- (twenty five thousand) each and in default of
payment of fine, they were directed to further undergo simple imprisonment for three months. For commission of offence under Section 4 of the
Explosive Substance Act, they were directed to undergo rigorous imprisonment for twenty years and to pay a fine of Rs. 25,000/- (twenty five
thousand) each and in default of payment of fine, they were directed to further undergo simple imprisonment for three months. For commission of
offence under Section 5 of the Explosive Substance Act, they were directed to undergo rigorous imprisonment for fourteen years and to pay a fine of
Rs. 15,000/- (fifteen thousand) each and in default of payment of fine, they were directed to further undergo simple imprisonment for three months.
Since all the appellants were imposed death penalty, in view of provision contained in Section 366 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘Cr.P.C.’), their sentence was referred to this Court for its confirmation.
Short fact of the case is that on 10-04-2014 at 6:00 A.M. (morning), one Sri Shambhu Kumar Paswan, S.H.O. of Gangta O.P. Kharagpur Police
Station recorded fardbeyan of C.R.P.F. F/131 Assistant Commandant Gunjan Kumar (P.W.3) posted in Bhimbandh in the district of Munger. The said
fardbeyan was recorded in the Gangta Out Post, Kharagpur Police Station. In the fardbeyan, the informant/Assistant Commandant C.R.P.F. stated
that on the same date i.e. on 10-04-2014 in the morning at about 2.00 hrs. (night) from Bhimbandh camp with six section of F/131 led by him and three
sections of C/131 (C.R.P.F.) led by Inspector J.P.Rajan (P.W.4), left Bhimbandh for the purposes of conducting Lok Sabha Election, 2014 for Gangta
O.P. on foot. The aforesaid party from Gangta O.P. was to move to pre-fixed booths, after taking polling party. At about 4:26 hrs. in the morning the
party was proceeding about 1.5 k.m. ahead of northern area from lok yk[k ckck (Sawa Lakh Baba) through Jamui-Gangta main road towards Gangta
O.P. on foot, in the meanwhile, suddenly about three feet away from the metal road towards western side, there was blast of a land mine.
Simultaneously, from the western side of the road, miscreants, who had ambushed, started indiscriminate firing to disturb the election, which put hurdle
for discharge of official duty of the police party. To save their life, he alongwith his whole party in a planned-manner started firing to break the
ambush. In the meanwhile, in said operation, Havildar Sone Gaura, Hav. Ravindra Rai and Constable Ashok Kumar Besra received fire-arm injury.
This information was gathered from other jawans. The informant, with a view to get clear-cut idea regarding number of extremists, took assistance of
available zone equipment to break the ambush. After encounter, some injured miscreants leaving ambush started fleeing away and while fleeing away,
they raised slogan “ekvksoknh ftUnkckn†(Maowadi Zindabad). While extremists were lifting injured, they were talking and the informant could
recollect the name of such persons/extremists, such as; 1. Prawesh @ Anuj Da, 2. Arvind Da, 3. Gopal Das, 4. Bablu Das, 5. Sidhu Koda, 6.
Baleshwar Koda, 7. Arjun Koda, 8. Ratta Koda (app. 1 in Cr.App.DB No. 773/17), 9. Babulal Yadav, 10. Adhiklal Pandit (app.3 in Cr.App.DB No.
773/17), 11. Puna Koda, 12. Pintu Rana, 13. Anil Koda, 14. Phulchand Koda, 15. Dhyanchand Koda, 16. Dharmendra Koda, since at the time of
occurrence aforesaid Maowadi were addressing among themselves with their names and they were saying to flee away. While the informant and
others were surrounded, he heard that extremists had taken away rifle from injured jawans. In retaliation, while steps were taken by the informant
side, the extremists lifting injured extremists fled in dense jungle side. While fleeing away, they started using whistle. In the meanwhile, about the
occurrence information was given to civil police, local C.R.P.F. and senior officers. In the said ambush, in operation to save life and property, three
C.R.P.F. jawans of C.R.P.F. F/C-131 camp Bhimbandh namely 1. Force No. 910720121 Hav. Ravindra Kumar Rai, 2. Force No. 913098318 Hav.
Somey Gaura and 3. Force No. 065208003 Const. Ashok Kumar Besra had received fire-arm injury and they were badly injured, however; with
braveness, they found till they were not sent to Kharagpur for their treatment through land-mine vehicle. Besides them, 1. 850849751 A.S.I. G. D.
Dharmpal, 2. 900650157 Hav. Bikram Singh 3. 015262709 Constable Vishwanath Rai 4. 055050853 Constable Ram Pal 5. 941182718 Constable
Raghvendra Singh 6. 045206772 Constable Dharmonya Kumar Singh 7. 060048099 Constable Rajeev Kumar 8. 060043764 Constable Prakash Kumar
Singh and 9. 04705845 Constable Manoj Kumar Yadav were injured due to land-mine explosion, however; they continued fighting bravely. In the said
operation, Jawans and informant fired 71 round from AK-47, from INSAS Rifle â€" 169 round, Para-Bomb-01 and U.B.G.C. â€" 5 round and Jawans
of C/131 had fired 120 round from AK-47, 148 round from INSAS Rifle. The injured jawans were sent to Sadar Hospital, Munger for medical
treatment. The informant claimed that about 40-45 extremists of Bihar-Jharkhand Northern Zone Committee, with a view to disturb 2014 Lok Sabha
Election, were indulged in anti-nation and state activities. The said fardbeyan was read by him and read over to him and thereafter, the informant put
his signature on the fardbeyan.
On the basis of said fardbeyan of informant Gunjan Kumar, Assistant Commandant, C.R.P.F.-F/131, Bhimbandh, a formal F.I.R., vide Kharagpur
(Gangta O.P.) P.S. Case No. 83 of 2014, was registered on the same date i.e. on 10-04-2014 at 8:05 AM for commission of offence under Sections
147, 148, 149, 121(A), 122, 124, 341, 307, 302, 353 of the I.P.C., Section 27 of the Arms Act, 1959 (hereinafter referred to as “Arms Actâ€),
Sections 3, 4 & 5 of Explosive Substance Act, Section 134(b) of the Representation of People Act, 1951 (hereinafter referred to as “R.P. Actâ€)
and Sections 16, 17, 18, 20, 23 & 35 of Unlawful Activities (Prevention) Act, 1967 (U.A.P. Act) against following persons:
Prawash @ Anuj Da,
Arvind Da,
Gopal Das,
Bablu Das,
Sidhu Koda,
Baleshwar Koda,
Arjun Koda,
Rattu Koda (app. no. 1 in Cr.App.DB No. 773/17),
Babulal Yadav,
Adhiklal Pandit (app.no. 3 in Cr.App.DB No. 773/17),
Puna Koda,
Pintu Rana,
Anil Koda,
Phulchand Koda,
Dhyanchand Koda,
Dharmendra Koda and other unknown extremists.
After registering F.I.R., police started investigation and during investigation, on 29-10-2014, Rattu Koda (app. no.1 in Cr.App.DB No. 773/17) and
on 21-10-2014, Bipin Mandal (app. no. 2 in Cr.App.DB No. 773/17) were arrested and on 15-01-2015, first chargesheet was submitted against Rattu
Koda and Bipin Mandal (both appellants in Cr.App.DB No. 773/17) keeping investigation pending against others. On 27-02-2015, learned Magistrate
took cognizance of the offence. Subsequently, supplementary chargesheet was submitted on 16-06-2015 against Adhiklal Mandal (app.no.3 in
Cr.App.DB No. 773/17), who was arrested on 14-07-2015, and Bano Kora (app.no.1 in Cr.App.DB No. 764/17) & Mannu Kora (app.no. 2 in
Cr.App.DB No. 764/17), who were arrested on 12-12-2015. Thereafter, on 03-12-2015, the case was committed to the court of sessions and it was
numbered as Sessions Trial No. 319 of 2015. In the case, on 14-07-2016, joint charges were framed under Sections 147, 148, 149, 121(A), 122, 124,
341, 307, 302 & 353 of the I.P.C., Sections 16, 17, 18, 20, 23 & 35 of U.A.P. Act, Section 27 of the Arms Act, Sections 3, 4 & 5 of Explosive
Substance Act and Section 134(B) of R.P.Act. During trial, to prove its case from the prosecution side, altogether 17 following witnesses were
examined:-
“P.W.1 Manjeet Yadav (labourer) and P.W.2 Sunil Tanti (labourer), both independent witnesses were examined on the point of manner of
occurrence, however; both did not identify any of the appellants.
P.W.3 Gunjan Kumar is the informant and he proved his signature on the fardbeyan, which was marked as Ext.1 and he also proved his signature on
the fardbeyan, which was marked as Ext.2.
P.W.4 Subedar Joy P. Rajan was examined on the point of occurrence and he stated the name of Rattu Kora (appellant 1 in Cr.App.DB No. 773/17),
however; he did not name any other appellants. He also proved his signature on the seizure list, which is marked as Ext.1/1.
P.W.5 Dr. Raman Kumar, P.W.6 Dr. R.K.Gupta and P.W.7 Dr. Md. Faiz Uddin were member of the team constituted for conducting post-mortem
examination on two dead bodies. P.W.5 Dr. Raman Kumar, one of the member of the medical team, proved the post-mortem report in respect of
deceased Sone Gaura, which was marked as Ext.3 and post-mortem report of Hav. Ravindra Kumar, which was marked as Ext. 3/1.
P.W.8 Ranjan Kumar, S.D.P.O. was the investigating officer and P.W.9 Shambhu Kumar Paswan was the S.H.O. of Gangta O.P. Police Station,
who recorded fardbeyan.
P.W.10 Pankaj Kumar was the driver of one of the vehicle of armed force, who stated regarding exchange of firing in between the extremists and
force, however; he did not identify anyone.
P.W.11 Bhupendra Singh Rana Constable of C.R.P.F. and one of the injured, who identified Rattu Kora (appellant 1 in Cr.App.DB No. 773/17).
P.W.12 Ram Pal is one of the Constable and injured.
P.W.13 Awadh Kishore Prasad was an Assistant and he proved sanction letter in respect of sanction relating to Explosive Substance Act and proved
the said letter, which was marked as Ext.8.
P.W.14 Shiv Nandan Kumar Singh is one of the driver of a Magic vehicle, which was on the duty of force.
P.W.15 Rajiv Kumar is the formal witness and S.H.O., who proved formal F.I.R., which was already got exhibited. He also proved signature and
endorsement of one Shambhu Paswan (earlier S.H.O.) on the fardbeyan and formal F.I.R., which was marked as Ext. 9 and 9/1 respectively.
P.W.16 Uma Shankar Prasad is one of the Constable of the C.R.P.F., who proved production-cum-seizure list.
P.W.17 Ajay Kumar was the Assistant in the Law Department, who proved sanction letter under the U.A.P. Act, which was marked as Ext. 12.â€
After conclusion of the prosecution evidence, circumstances and evidences were explained to the accused persons and their statement under
Section 313 of the Cr.P.C. was recorded on 23-02-2017, in which, they claimed to be innocent. After their statement, from the defence side also, two
witnesses were got examined, namely; Devendra Kumar Nirala (ex-Sarpanch) and Sanjay Kumar (Agriculturist), who were examined as D.W.1 and
D.W.2 respectively.
Sri Bakshi S.R.P.Sinha, learned senior counsel appearing on behalf of all the convict-appellants has argued that all the appellants were fixed as
accused in the present case, as per the instance of the local police and village politics. It has been argued that prosecution case is completely
inconsistent. In the fardbeyan, the Assistant Commandant of the C.R.P.F. namely Gunjan Kumar (P.W.3) is very much categorical that he alongwith
three section of force of C.R.P.F. was moving on foot to Gangta O.P. from his own camp Bhimbandh and while moving land-mines exploded about
three feet away from the main road, in which, number of C.R.P.F. personnel received injuries. However, during trial, the witnesses have come out
with a case that they were moving on different vehicles and suddenly land-mines exploded and thereafter, heavy firing was made from extremists
group, who had ambushed there. In the said occurrence, C.R.P.F. personnel also fired indiscriminately on the extremists. Sri Sinha, learned senior
counsel submits that it appears that fardbeyan giving name of more than 16 persons by a person i.e. informant (Assistant Commandant, C.R.P.F.)
appears to be not believable. He submits that it appears that local police had suggested the names of accused persons on the basis of their own
assessment or information. In an occurrence, which had taken place in night and ambush was made by the extremists and while in the occurrence
heavy indiscriminate firing was going on, it is difficult to comprehend as to how the informant, in such heavy firing from both the sides, could gather
name of about 16 extremists, as if, they were talking with each other with their name. According to learned senior counsel for the convict-appellants, it
is difficult to draw an inference as to how in such circumstances, the informant could heard the name of about 16 persons, which had come during
conversation of the extremists in between them. He further submits that though both appellants i.e. Rattu Kora and Bipin Mandal (app.1 & 2 in
Cr.App.DB No. 773/17) were arrested within few months from the date of occurrence, they were never put on T.I. Parade. He submits that during
prosecution evidence, it has come that in the occurrence only one Para-Bomb was exploded and in the light of said Para-Bomb, which remained for
fraction of second, one of the appellant namely Rattu Kora was claimed to be identified by P.W.4 Subedar Joy P. Rajan, who hails from district â€
Alleppey (Kerala). Despite the fact that in a fraction of second in the para bomb light, he had claimed to identify appellant Rattu Koda (in Cr.App.DB
No. 773/17) in an occurrence, which had taken place on 10-04-2014 suddenly after more than two years while he was examined on 28th September,
2016 as P.W.4, he claimed to identify Rattu (appellant), as if, he was at the place of occurrence. He submits that in cross-examination, this witness
has categorically stated that no T.I. Parade was held.
Sri Bakshi S.R.P. Sinha, learned senior counsel for the appellants has further argued that the investigating officer appears to be had not properly
inspected the place of occurrence and all the investigation was done as a table work as well as with malice against the appellants. According to
learned senior counsel for the appellants, none of the witnesses have whispered regarding involvement of other appellants, but it appears that learned
Trial Judge, only on the basis of confessional statement of accused, recorded by the police during investigation, has come to the conclusion that
appellants had participated in the occurrence and thereafter, without any admissible evidence, the learned Trial Judge held them guilty and passed
judgment of conviction. Though, the judgment of conviction is itself not sustainable in the eye of law, the learned Trial Judge has imposed death
penalty on all the appellants. Accordingly, the judgment of conviction is liable to be set-aside and reference in respect of death sentence may not be
approved and all the sentences are required to be set aside.
Sri Ajay Mishra, learned Addl. Public Prosecutor has strongly opposed the appeal and he submits that death reference, which has been referred to
this Court by the learned Trial Judge, is fit to be confirmed, since on record, there are sufficient evidence suggesting as to how the appellants actively
participated in waging war against nation. The appellants were member of extremists group, who in pre-planned manner with an object to disturb 2014
Parliamentary Election had ambushed in late night in a dense forest. They had fixed land-mines, which exploded immediately after arrival of the force,
which was moving from Bhimbandh C.R.P.F. camp to Gangta O.P. in relation to discharge of their duty for peaceful parliamentary election. In the
occurrence, heavy firing was made from the extremists side, in which, besides taking life of two armed force, about 10 force had received fire-arm
injury. He further submits that in the occurrence, with a view to get the exact number of extremists group as well as identify them, from the side of
armed forces, para bomb was used and in the said light, at least one of the appellant was seen, who has been identified. Besides appellant Rattu Kora
(in Cr.App.DB No. 773/17), other appellants were also active member and participated in the occurrence, whose name has come right from the very
beginning of the case i.e. in the fardbeyan and thereafter, the judgment of conviction and sentence has been passed. According to learned Addl.
Public Prosecutor, both the appeals i.e. Cr.Appeal (DB) No. 773 of 2017 and Cr.Appeal (DB) No. 764 of 2017 against conviction and sentence are fit
to be rejected and death sentence of the appellants i.e. Death Reference No. 7 of 2017 may be confirmed.
Besides hearing learned counsel for the parties, we have also examined entire evidence both oral and documentary. Before proceeding, it would
be necessary to firstly refer to evidence of the informant (P.W.3) Gunjan Kumar.
P.W.3 Gunjan Kumar, Assistant Commandant in the C.R.P.F. was permanent resident of district Jehanabad and he was examined on 20th
September, 2016. On 10-04-2014, he was discharging duty of Company Commandant F-131 Battalian, Bhimbandh. On the said date, first phase of
Lok Sabha Election, 2014 was scheduled to be held. He left from Bhimbandh to Gangta O.P. After moving for about 12 km. in the morning at about
4.25/4.26, 2 km. ahead of Sawa Lakh Baba place, he was in the last line. In the left side of a vehicle, which was ahead, an I.D. blast occurred. In the
said vehicle, ten jawans were injured by the splinter of I.D. blast. In the meanwhile, naxalites started firing. On his order, in self-defence as well as
with a view to protect government property, in retaliation steps were taken and two jawans namely Sone Gaura and Ravindra Rai received bullet
injury and died while being treated. The naxalites in the midst of fleeing away were inquiring from Prawesh Da @ Anuj Da about next course of
action. A bomb of light was exploded and in the said light, he could see the face. They were 50 to 60 in numbers. He identified some of them by their
faces, who were Prawesh Da, Sidhu Kora, Pintu Rana, Rattu Kora (appellant), Bipin Mandal (appellant), Adhiklal Pandit (appellant). He claimed that
he saw their faces. He also saw Baleshwar Kora, who was talking amongs themselves. Thereafter, extremists fled inside jungle and rock. He
reached Gangta O.P. and injured were sent to Hospital. S.H.O. Shambhu Kumar Paswan prepared seizure list, on which, he put his signature, which
was marked as Ext. 1. He also identified his signature on the fardbeyan, which was marked as Ext. 2. In dock, he identified Rattu Kora, Adhiklal
Pandit and Bipin Mandal (all appellants in Cr.App.DB No. 773/17), however; he could not identify two other accused persons, but he claimed that
both were present at the place of occurrence and they were participant in the occurrence. In paragraph - 2 of his cross-examination, he stated that he
had seen miscreants at the place of occurrence and amongst them, he knows name of 10 to 12 persons and he can also identify them. However, in
paragraph 5 he stated that he did not name Bipin Mandal (app. 2 in Cr.App.DB No. 773/17) in the fardbeyan. In paragraph â€" 10, he stated that Test
Identification Parade was never held.
P.W.1 Manjeet Yadav was driver of a vehicle, which was carrying C.R.P.F. personnel. He, in his evidence, stated that on 09-04-2014 he was
driving a vehicle. From Kharagpur to Bhimbandh, he had gone on duty of carrying force. He reached Bhimbandh in the evening and in night at 2:00
carrying force he left with other vehicles also, on which there were forces. At about 4:30 in the morning, while they were crossing Gangta forest, he
heard sound of explosion from the backside of his vehicle, thereafter, he leaving the vehicle laid down on the land. For some time, he heard the sound
of firing. In the morning, he on the vehicle went to Gangta Police Station for giving information. He did not know as to who had exploded the bomb nor
he could identify anyone, but he deposed that naxalites had exploded the blast. In cross-examination, he stated that he did not identify anyone at the
place of occurrence nor he could see anyone exploding the blast or firing them.
In similar manner, P.W.2 Sunil Tanti, who was also labourer and had gone with vehicle from Kharagpur to Bhimbandh for carrying force. Just
ahead of his vehicle, bomb exploded. His vehicle was also damaged and he became unconscious and while he regained his consciousness, he noticed
that firing was going on and he heard that two or three jawans had died and from there he came to Gangta Police Station, however; he did not identify
anyone.
P.W.4 Joy P. Rajan, resident of Alleppey (Kerala), on 10-04-2014 was posted at Bhimbandh in 131 Battalian C.R.P.F. as Subedar. His
examination-in-chief was held on 28th September, 2016. He deposed that on 10-04-2014 he was on duty for conducting Lok Sabha Election, 2014 in
the Bhimbandh. He was going from Bhimbandh to Gangta O.P. In the meanwhile, they were ambushed. It was at about 4:30 in the morning. When he
reached near Falia on his backside, an I.D.blast occurred, which occurred on the left side. Thereafter, firing started. From his side also in retaliation,
firing was made. He got information that 3-4 persons from extremists side were injured. This information was given by him from the member who
were in the backside. After firing was stopped he went backside and saw that Hav. Sone Gaura, Ravindra Rai and Ashok were badly injured. 8 to 10
jawans had received splinters injury from the I.D. blast. The extremists were addressing themselves with their name, in which, he could hear the name
of Pravesh Da, Anuj Da, Sidhu Mukhiya (Baleshwar Gaura), Arjun Kora and Pintu Da. He claimed that he was one of the member of counter. He
saw Rattu (app.1 in Cr.App.DB No. 773/17) at the place of occurrence, however; he was not knowing about others. He further stated that from the
place of occurrence, articles were seized and in the seizure list, he identified signature, which was marked as Ext. 1/1. In paragraph â€" 2 of his cross-
examination, he stated that no T.I. Parade was held. In paragraph 2 he further stated that nothing was recovered in his presence from any of the
person. Articles were found at the place of occurrence.
P.W.10 Pankaj Kumar was also one of the driver of a vehicle. He stated that on the date and time of occurrence, he was going from Bhimbandh
to Gangta. In his vehicle, police force were there, total 10 vehicles were there and all the vehicles were loaded with the force. They left in the night at
2:00. While they reached the place namely Sawa Lakh Baba from the jungle side he heard sound of explosion. He stopped the vehicle and due to fear,
he went inside the jungle. On his backside, heavy firing was going on. Thereafter, he concealed himself till firing stopped. Firing was exchanged in
between naxalites and police. He did not identify any of the accused.
P.W.11 Bhupendra Singh Rana, resident of district Una, Himachal Pradesh was one of the constable in the C.R.P.F. on 10th April, 2014. He
deposed that on the date and time of occurrence, he was coming from Bhimbandh to Gangta more. There were 10-12 vehicles. All were occupied by
force/jawans. When they proceeded ahead of place Sawa Lakh Baba, a bomb exploded and thereafter, on the vehicle, indiscriminate firing started. In
reply, he also fired, on the direction of officers, para-bomb was exploded. In the said light, he could notice that about 30-40 accused persons from
behind rocks were firing. He saw the persons, who were firing. From his side, two jawans were killed. Some other jawans received injury and due to
blast, he also received injury. After the firing was stopped, he conducted search and noticed blood mark as well as some cartridges ([kkyh dkjrql).
Injured jawan, who died, were sent to hospital, thereafter, they came to Gangta Police Station. This witness identified one of the appellant Rattu Kora
(in Cr.App.DB No. 773/17) and he also claimed to identify others. In paragraph 4 of his cross-examination, he stated that indiscriminate firing
continued up-to 1 and ½ hours. From his side, there were 10-15 persons. Other vehicles had already left, which proceeded ahead. He further stated
that during the said period about 3-4 bombs for light were exploded. In between them i.e. force and extremists, there were trees, rocks etc. In
paragraph 8 of his cross-examination, he stated that he himself fired about 40-50 shots and all those khokhas (fired cartridges) were left there. He
stated that from both the sides about 800-900 shots of firing were made. In paragraph - 10, he stated that from the side of Election Commission,
vehicles were provided, that was Magic vehicle.
P.W.12 Rampal, resident of district Orraiya, Uttar Pradesh was one of the constable of the C.R.P.F. On the date of occurrence, he was on
election duty from Bhimbandh to Gangta more he was going. After crossing the forest, he proceeded ahead of Sawa Lakh Baba place, then two I.D.
blast exploded and thereafter, on force, firing started. He took position and also started firing. He received injury from splinter of I.D.blast in his eye.
In cross-examination in paragraph 6, he stated that first I.D. blast occurred ahead of his vehicle and one another blast occurred on the backside. The
vehicle was badly damaged. He further stated that from both sides firing was going on. He also fired about 4 or 5 shots in the occurrence.
P.W.13 Awadh Kishor Prasad is the formal witness and he has proved the sanction order in respect of Sections 3, 4 and 5 of Explosive Substance
Act and same was marked as Ext. 8.
P.W.14 Shiv Nandan Kumar Singh is also one of the driver of a vehicle. He deposed that on the date of occurrence, he proceeded on his vehicle
occupied by the C.R.P.F. personnel at about 2.00 in the night from Bhimbandh to Gangta Police Station, where bomb exploded and firing has also
taken place. He was frightened and he laid himself on the land, however he did not identify any of the accused persons.
P.W.15 Rajeev Kumar (S.H.O.) is a formal witness and he proved the signature, endorsement on the F.I.R., which was under the writing and
signature of Shambhu Paswan and same was marked as Ext. 9 and 9/1. He also proved formal F.I.R., which was marked as Ext. 10.
P.W.16 Uma Shankar Prasad, one of the formal witness, who has proved the seizure list, over which, there was signature of Shambhu Paswan
and also his signature and he proved the same, which was marked as Ext. 11 and 11/1.
P.W.17 Ajay Kumar, who was Assistant in the Law Department, has proved the prosecution sanction order in respect of provision under the
U.A.P. Act, which was marked as Ext. 12 with objection.
P.W.5 Dr. Raman Kumar was one of the member of the Medical Board, which conducted post-mortem examination on the dead body of two
C.R.P.F. personnel. On 10-04-2014, this witness was posted as Medical Officer in Sadar Hospital. On the same date, he conducted post-mortem
examination on the dead body of Sone Gaura and he found following anti-mortem injuries:-
“1. A lacerated wound of size 3†x 1†bone deep at posterior lateral aspect of left arm with inverted margin and blackening around the wound
(wound of entry).
A lacerated wound of size 3†x ½†muscle deep 3†above left elbow.
A lacerated wound of size 5†x 4†with exposed muscles and bone over medial side of left arm (wound of exist).
A lacerated wound of 1†diameter over left costal margin with inverted margin and blackening wound in the left anterior axilary region (wound of
entry).
A lacerated wound of half inch diameter muscle deep over left coastal margin in left mid axilary region with blackening around.
On dissection:-
On the opening the thoraeo- abdominal cavity- it was full of blood and blood clots.
Heart was lacerated at its posterior surface.
The right lobe of liver was lacerated.
Two metallic pieces were recovered from liver which were sealed and signed and handed over to the police.
Left humerus bone was fractured.
Cause of death-
Due to haemorrhage shock and injury to vital organs heart and liver â€" caused by fire arms.
Time elapsed since death- within 12 hours.â€
He deposed that the said post-mortem report was in his writing and signature, which was marked as Ext. 3. On the said report, there was initial of Dr.
R.K.Gupta (P.W.6) and Dr. Inamur Rahman. He also conducted post-mortem examination on the dead body of Hav. Ravindra Kumar Rai. There
was a Medical Board consisting of him, Dr. R.K.Gupta (P.W.6) and Dr. Faiz Uddin (P.W.7). He noticed following anti-mortem injuries on the person
of the deceased Hav. Ravindra Kumar Rai:-
“1. A circular lacerated wound of 2†diameter with inverted margin was found over left iliac crest, deep 2 abdominal cavity with blackening
around the wound (wound of entry).
A lacerated wound of 1†diameter 2†below the first wound with inverted margin and blackening around deep to muscle.
On dissection:-
Blood and blood clots were found in the abdominal cavity. Liver was lacerated and loops of intestine was perforated at places. A metallic piece was
recovered from abdominal cavity which was sealed, signed and handed over to police. Left iliac bone was found fractured.
Cause of death-
Due to haemorrhage and shock and injury to vital organ-liver caused by fire arms.
Time elapsed since death- within 12 hours.â€
He stated that the said post-mortem report was in his writing and signature, which was marked as Ext. 3/1. On the said post-mortem report, he also
stated that there was signature of Dr. Faiz Uddin (P.W.7) and Dr. R.K. Gupta (P.W.6).
P.W.6 Dr. R. K. Gupta and P.W.7 Dr. Md. Faiz Uddin on 10-04-2014 both were posted as medical officer, Sadar Hospital and stated that they
were also members of the team, who conducted post-mortem on dead body of aforesaid two persons.
P.W.9 Shambhu Kumar Paswan, Sub-Inspector of Police on 10-04-2014 was incharge of Gangta O.P. and in his evidence, he stated that he
recorded fardbeyan of Assistant Commandant Gunjan Kumar (P.W.3) and he proved fardbeyan, which was in his writing, on which Gunjan Kumar
had put his signature. The said fardbeyan was marked as Ext. 2/1. He also proved the seizure list, which was in his writing and signature and same
was marked as Ext. 1/2. He also proved production-cum-seizure list, which was a type copy, over which there was his signature and the same was
marked as Ext. 4. He also proved his signature on production-cum-seizure list, which was marked as Ext. 4/1. Inquest report in respect of Hav.
Ravindra Kumar Rai was marked as Ext. 5 and inquest report in respect of Hav. Sone Gaura was marked as Ext. 5/1. He also proved the
confessional statement of Rattu Kora (appellant1 in Cr.App.DB No. 773/17), which was written by S.D.P.O. Ranjan Kumar and said confessional
statement was marked as Ext. 6. In paragraph 19 of his cross-examination, he stated that khokha was seized within the radius of 10-12 meter area.
He also stated that he had seen blood mark in the said area, however; he was unaware as to whether the investigating officer had seized the same or
not.
P.W.8 Ranjan Kumar, S.D.P.O. was the investigating officer of the case i.e. Kharagpur P.S. Case No. 83 of 2014 and he took up charge of the
investigation of the case on 10-04-2014 at 6:30 A.M., as per order of the Superintendent of Police. He stated that from the month of July, 2013, he
was posted as S.D.P.O., Kharagpur. After taking charge of investigation, he recorded statement of Gunjan Kumar (informant), thereafter, he
proceeded to the place of occurrence. He inspected the place of occurrence i.e. about 1 and ½ k.m. south of Gangta-Laxmipur main road near
Ganga more and 1 and ½ km. north from Sawa Lakh Baba on metal road where C.R.P.F. 131 Battalian was ambushed by naxalites, in which, there
was blast of land-mines and firing from the side of C.R.P.F. also. In self-defence, counter was made to break the ambush. This witness stated that he
noticed two Magic vehicle, one of red colour bearing registration no. BR-01-PE/2140 and other, bearing registration no. BR8P-0392. On the vehicle
i.e. BR01-PE/2140 in the middle, there was hole of 1†diameter made by bullet and also splinter marked 1 and ½†diameter. Behind this vehicle on
eastern side near bush, about 1 meter diameter to 2 meter digging mark was found, which was due to land mines blast. There he also noticed steel
pieces in different size of bomb container. From the said ditch, about 2 meter southern side on the main road a vehicle, bearing registration no. BR8P-
0392 was found standing. In the middle of the said vehicle, there were holes made by five bullets of 1†diameter. About 20 meters of eastern side
from the main road from behind the rocks, 4 khokhas (fired cartridges of INSAS rifle), 2 khokha of S.L.R., 3 khokha of 7.62 cartridge, one another
khokha and one miss-fired bullet was found. Thereafter, he recorded re-statement of informant and statement of another witness Inspector J.P.Rajan
and 12 injured jawans were sent outside for treatment. He further stated that inquest report in respect of Hav. Ravindra Kumar Rai and Hav. Sone
Gaura was mentioned in the case diary. He also obtained post-mortem report of deceased Sone Gaura and Ravindra Kumar Rai. During investigation,
Rattu Kora (appellant 1 in Cr.App.DB No. 773/17) was arrested and his confessional statement was recorded by him and thereafter, he submitted
chargesheet against Bipin Mandal (app.2 in Cr.App.DB No. 773/17) and Rattu Kora (app. 1 in Cr.App.DB No. 773/17). Subsequently, he submitted
supplementary chargesheet against Adhiklal Pandit (app. 3 in Cr.App.DB No. 773/17), Bano Kora (app. 1 in Cr.App.DB No. 7643/17) and Mannu
Kora (app. 2 in Cr.App.DB No. 764/17)). In paragraph 30 of his cross-examination, he stated that all injured jawans were treated in Paras Hospital,
Patna, however; he did not obtain injury report. In paragraph 32 of his cross-examination, he further stated that regarding confirmation of identification
of accused, he did not take any step.
After the closure of the prosecution evidence, evidences and circumstances brought on record during trial were explained to the accused persons
and on 23rd February, 2017, statement of accused persons under Section 313 of the Cr.P.C. was recorded. In statement recorded under Section 313
of the Cr.P.C., appellant Mannu Kora (appellant 2 in Cr.App.DB No. 764/17) took the plea that on the date of occurrence, he was in Lakhisarai,
whereas, occurrence had taken place in Munger. He further stated that police had falsely implicated him. He was not naxalite. He further while giving
reply to question no. 5 reiterated that on the date and time of occurrence, he was not present at the place of occurrence and finally, he claimed to be
innocent. Similarly, Bano Kora (appellant 1 in Cr.App.DB No. 764/17)) stated that he was implicated by the police and he was completely innocent.
Rattu Kora (appellant 1 in Cr.App.DB No. 773/17) in his statement under Section 313 of Cr.P.C. claimed that he was not knowing anything about the
occurrence. He was innocent and police implicated him, since he refused to become informer. Appellant Adhiklal Pandit (appellant 3 in Cr.App.DB
No. 773/17) in his statement under Section 313 Cr.P.C. stated that he was not at all involved in the occurrence nor he had seen the occurrence and he
was innocent. While replying to question no. 5, he stated that he was not present at the place of occurrence. The learned Trial Judge had noticed that
after giving this reply, this appellant started weeping. So far as Bipin Mandal (appellant 2 in Cr.App.DB No. 773/17) is concerned, in his statement
under Section 313 of Cr.P.C., he stated that he was not present at the place of occurrence and police had falsely implicated him. He further stated
while replying to question no. 5 that police earlier also had falsely implicated him in relation to case under the Arms Act and against him, there were
four cases. In answer to paragraph 6, he took a defence that he was innocent. In the year 2011 in love-affair, he had solemnised marriage with a
Rajput girl and thereafter, police started continuously implicating him. He categorically stated that he was implicated by Daroga Rajeev Singh. On
behalf of the defence, two witnesses namely Devendra Kumar Nirala and Sanjay Kumar were examined as D.W.1 and D.W.2 primarily to show that
Bipin Mandal (appellant 2 in Cr.App.DB No. 773/17) was innocent and he was working in B.C.C.L. Dobhi Coal Field. Both defence witnesses tried
to depose that appellant Bipin Mandal (in Cr.App.DB No. 773/17) was innocent and was falsely implicated.
On examination of entire evidence, one thing is clear that in the occurrence, from both the sides, heavy firing was made. In the occurrence, it was
alleged that during ambush, extremists group had used sophisticated weapons like S.L.R. etc. This was the reason that about 20 feet away from
behind rocks fired cartridges of 7.62 and other fired cartridges were found. In the fardbeyan itself, the informant(P.W.3) had stated that in the
occurrence, he and his jawans had fired 71 round from AK-47, 169 round from INSAS rifle and jawans of C/131 from AK-47 rifle fired 120 round,
149 round of firing was made from INSAS rifle. Besides this, one para-bomb and 6 round from UBGC was fired. From the extremists side also heavy
firing was made. P.W.12 Constable Rampal in his cross-examination had stated that as per his assumption, about 100-150 bullets were fired, in which,
he fired 4-5 bullets, whereas, he had received injuries in his eye. P.W.11 Bhupendra Singh Rana Constable of the CRPF in paragraph 8 of this cross-
examination had stated that he had fired about 40-50 shots and all the khokhas were left at the place of occurrence. He further stated in the same
paragraph that from the both sides, about eight to nine hundred bullets were fired, however; on examination of the evidence of the investigating officer,
it is evident that few fired cartridges/khokhas or live cartridges were found. He stated that about 20 meter away of the eastern side from the main
road from behind rocks he found four khokhas of INSAS rifle, 2 khokhas of SLR, 3 khokhas of 7.62, one another khokha and one miss-fired bullet and
he seized them. Seizure list, which was prepared during investigation, states regarding seizure of
Black colour plus multi meter â€" 01 and written with kako in red colour,
Electric wire black-yellow colour about 60 meter,
4 khokha of INSAS rifle,
2 khokha of SLR rifle,
3 khokha, on back side it was written KF07, 7.62 A7
1 khokha, on the bottom it was inscribed 0FV08A7
1 miss-fired bullet, on back it was written KF,07,
7.62, A7,
Broken steak pieces 9 in number.
In a case, in which, on the one hand, the prosecution witnesses, who are mostly CRPF personnel, had stated that in the heavy firing in the
occurrence about eight to nine hundred firing of bullets were shot, however; during investigation finding of few number of khokha/fired cartridges
creates doubt about proper inspection of the place of occurrence by the investigating officer. The investigating officer has not even bothered to seize
blood-stained soil or blood from the place of occurrence, whereas, it was case of the prosecution that occurrence started taking place at 4.25/26 in the
morning and fardbeyan was recorded at 6:00 AM. In the occurrence, three jawans had received serious fire-arm injury and other about 10 jawans had
received splinter injury due to land-mine explosion. In such circumstances, had the investigating officer properly inspected the place of occurrence, he
would have noticed such huge blood mark and also seized more number of fired cartridges.
It is case of the prosecution that occurrence had taken place at about 4.30 hrs. in the morning while naxalites had ambushed the arm forces. It is
specific case of the prosecution that firstly an I.D. blast was exploded and immediately thereafter heavy firing was made from the extremists group on
the forces. While such heavy firing was going on, it is difficult to conceive as to how the informant could hear the name of accused persons from the
mouth of extremists itself, whereas the informant in his fardbeyan has stated that extremists while fleeing away were using whistle. So far as
identification of appellants is concerned, a plea was taken by the informant in his fardbeyan itself that he did not have any exact idea of number of
extremists. He exploded para-bomb and he claimed that in the light of said explosion of para-bomb, he could identify the appellants. Fact remains that
the informant was not permanent resident of appellants’ village nor it was case of the informant that he had seen those appellants much prior to
the occurrence and they were conversant to him. Had the appellants were known to the informant, since prior to the occurrence, there was possibility
of identification of the appellants by the informant. The informant was permanent resident of Jehanabad, whereas, occurrence had taken place in the
district of Munger. Moreover, the informant or other witnesses, who have claimed to identify the appellants in the occurrence, appear to be not
truthful, since the occurrence had taken place on 10-04-2014 whereas, P.W.3 was examined during the trial on 28th September, 2016 i.e. much more
than after two years, had identified appellant Rattu Kora, Adhiklal Pandit, Bipin Mandal (all appellants in Cr.App.DB No. 773/17) in the dock and
failed to identify other two accused persons, however, he stated that both, who were not identified by him, were present at the place of occurrence
and they were involved in the occurrence. One another aspect which creates doubt in the mind of the Court is that in an occurrence, in which, heavy
firing was going on in between the parties the informant in his fardbeyan has claimed that he had heard name of 16 accused persons and he described
their name with alias name in his fardbeyan, which was recorded immediately after the occurrence. In normal course, it was difficult to hear and
remember name of such large number of persons, that too in a case while heavy firing was going on. The informant had claimed that he heard that
accused persons were calling and talking amongst them with their name and he recollected the name of 16 such persons, whose names were
mentioned in the fardbeyan, on the other hand it is case of prosecution that extremists while fleeing away were using whistle.
Similarly, P.W.4 Joy P. Rajan, Subedar in the CRPF at Bhimbandh in his evidence, which was recorded on 20th September, 2016 has stated that
he had seen Rattu (appellant no. 1 in Cr.App.DB No. 773/17)) at the place of occurrence. This witness, hails from district Alleppey (Kerala). Without
any indication as to whether this appellant was known to him since prior to the occurrence, at the time of examination has claimed that he had
identified this appellant (Rattu Kora) with his name. P.W.11 Bhupendra Singh Rana, resident of Una (Himachal Pradesh) in his evidence has claimed
to identify Rattu Kora (appellant 1 in Cr.App.DB No. 773/17)), however; he had not identified any other accused person.
In the evidence, it has categorically been accepted that for identification of arrested accused persons, no T.I.Parade was held. Since the witnesses
had claimed to identify appellants in the occurrence, who were not known to them prior to the occurrence, it was imperative for the investigating
officer to get those persons identified in the Test Identification Parade, however; the investigating officer has not taken any step to conduct T.I.Parade
for identification of the appellants. Despite the fact that occurrence had taken place in the month of April, 2014, after more than two years from the
date of occurrence, all of a sudden, those witnesses, who hail from different places, have claimed to identify some of the appellants, particularly;
appellant Rattu Kora (in Cr.App.DB No. 773/17) in dock, which appears to be not believable.
We are also in agreement with the submission of Sri Bakshi S.R.P. Sinha, learned senior counsel for the convicts/appellants that the learned Trial
Judge has incorrectly placed reliance on Ext. 6 i.e. confessional statement of appellant Rattu Kora (in Cr.App.DB No. 773/17). On going through Ext.
6 and other evidences, it is evident that confession of appellant Rattu Kora had not led to recovery of any fact, which were not known to any other
person. Meaning thereby that confession of appellant Rattu Kora had not led to recovery connected with the occurrence and as such, said confession,
made before the police, was not admissible, in view of Section 25 & 26 of the Indian Evidence Act, 1974 (for short ‘Evidence Act’). However,
it appears that learned Trial Judge has incorrectly considered the said confessional statement as exception in view of Section 27 of the Evidence Act.
The Court is of the opinion that confession of appellant Rattu Kora i.e. Ext. 6 is not at all admissible in the eye of law, since his confession had not led
to any recovery.
On going through the entire evidence, we are of the considered opinion that prosecution has not been able to establish its case beyond all
reasonable doubt and as such, the appellants deserve to be extended benefit of doubt. Accordingly, by way of extending benefit of doubt to the
appellants, their conviction and sentence passed by learned Additional Sessions Judge 1st Munger in Sessions Trial No. 319 of 2015 is required to be
interfered with.
Accordingly, the judgment of conviction and sentence dated 22-05-2017 and 25-05-2017 respectively passed in Sessions Trial No. 319 of 2015
{arising out of Kharagpur (Gangta O.P.) P.S. Case No. 83 of 2014} by Sri Jyoti Swaroop Srivastava, learned Additional Sessions Judge 1st, Munger
is hereby set aside and both the appeals i.e. Cr.Appeal (DB) No. 773 of 2017 and Cr.Appeal (DB) No. 764 of 2017 are allowed.
Since the conviction of appellants has not been confirmed, the reference regarding confirmation of sentence automatically fails and as such, Death
Reference No. 7 of 2017 is, hereby, rejected.
All the appellants are in custody and since their conviction and sentence has already been set aside, they are directed to be released forthwith, if
not wanted in any other case.