S.N. Jha and T.P. Singh, JJ.@mdashThere are seven appellants in all in this batch of five appeals. They have been convicted u/s 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. They have also been convicted u/s 120B of the Indian Penal Code and sentenced to rigorous imprisonment for life. They have further been convicted u/s 27 of the Arms Act and sentenced to rigorous imprisonment for five years. The appellants are alleged to have killed Bhup Ranjan Prasad Verma alias Uppu and Diwakar Sinha alias Pappu at Pir Mansur G.B. Road, Gaya on 17.11.1993 at about 12.40 P.M. The occurrence was reported by Chittranjan Prasad Verma, brother of deceased Bhup Ranjan Prasad Verma, to Inspector B.B. Sinha of Civil Lines Police Station Gaya at 1.00 P.M. on the same day. He stated in his fardbeyan that on 17.11.93 at about 12.30 P.M. he left for market on scooter. At the crossing he met his friend Shishir Kumar Sinha and took him along. At 12.40 when they reached near the gate of Zila School, they saw that 4-5 persons had surrounded two persons who were on a scooter on the road at a distance of 50-60 yards. Within no time all of them fired 5-6 shots on those two persons. After committing the crime they fled towards Dillan Transport lane. While fleeing away, one of the assailants was identified by Shishir Kumar Sinha as Kundan. When the informant and Shishir Kumar Sinha reached the place of occurrence they saw Bhup Ranjan Prasad Verma @ Uppu and his friend Diwakar Sinha @ Pappu lying dead on the road. Seeing his brother dead the informant started feeling dizzy. He somehow controlled himself and alongwith Shishir Kumar Sinha chased the assailants on scooter. However, as the lane in which the assailants had fled got narrower they abandoned the chase and returned to the place of occurrence. In the meantime, police had also arrived there. The informant stated that in the previous night there was a cultural programme on the occasion of the Chittragupta Puja at Samir Takia Gabrapar which was organised by his brother Bhup Ranjan Prasad Verma and his friends. While the function was going on, at 1.30 A.M. Kundan started teasing the womenfolk to which his brother and his friends objected and forcibly removed him from the place. While leaving the place Kundan had given threat that he would take revenge within 24 hours. The informant alleged that Kundan and his associates had committed the murder of his brother and his friend in a pre-planned manner to take revenge for the incident of the previous night. The informant claimed that he and his friend Shishir Kumar could identify the assailants. Several passers-by and the shopkeepers had also seen the occurrence.
2. On receipt of the fardbeyan at the police station, Civil Lines P.S. Case No. 272/93 was instituted. At the end of the investigation chargesheets were submitted against the seven appellants herein and two others namely, Kundan and one Sanjeev Kumar @ Sanjeev Singh. Their trial however, was later separated and they were declared absconders. The appellants thus alone faced the trial.
3. At the trial the prosecution examined 11 witnesses to prove its case, out of whom P.W. 1 Subodh Kumar. P.W.2 Sanjay Kumar, P.W.3 Amit Anurag, P.W. 4 Anil Kumar Sinha were examined as eye witness, besides Shishir Kumar Sinha as P.W.6 and the informant himself as P.W.7 Dr. M.K. Sinha who had held post mortem on the dead bodies was examined as P.W.5 while two Investigating Officers namely, Victor Fidelis and Indra Mani Choudhary were examined as PWs. 9 & 10. P.W. 8 Ramanand Singh and P.W. 11 Deo Bachan Sharma were examined as formal witnesses.
4. The defence of the appellants is that they were not present at the place and time of occurrence and they were falsely implicated in the case after they refused to support the case of the informant before the police. They examined four witnesses in their defence out of whom D.W. 2 Ram Bali and D.W. 4 Roshan Lal were examined as eye witnesses. It is relevant to mention here that these two witnesses had been examined by the police in course of investigation and they too claimed to have seen the occurrence. They, in fact, figured as witness in the chargesheet Besides D.Ws. 2 and 3, D.W. 1 Surendra Kumar is co-owner of the house in which P.W.3 claimed to be living while D.W.3 is a formal witness who proved applications filed before the Chief Judicial Magistrate, Gaya and the Sub-divisional Magistrate Gaya.
5. At the end of the trial the appellants were convicted and sentenced in the manner indicated above.
6. It was submitted on behalf of the appellants that in the first information report the informant had named only Kundan Kumar and four others. The appellants herein were not named even though they were well known to both the informant and Shishir Kumar Sinha. There was enmity between the informant and Kundan Kumar and the informant wanted the appellants to depose against him to strengthen his case and tried to put pressure on them for this purpose. When they declined they were roped in as assailants. The appellants meanwhile filed applications before the CJM Gaya and SDM Gaya stating about the threat by the informant for not supporting his case against Kundan Kumar. Though P.Ws.1 to 4 claimed to have identified the appellants as assailants it would appear from the case diary that they were intraduced as eye witnesses at a very late stage of investigation. The names of these appellants thus figured as assailants at a very late stage. So far as the evidence of P.Ws. 1 to 4 in Court is concerned, there are vital discrepancies between their evidence inter se and the evidence of the informant and P.W.6 Shishir Kumar Sinha. Once their evidence is disbelieved nothing remains against the appellants because the informant and Shishir Kumar Sinha do not claim to have identified them at the place of occurrence even though they were known to each other from before.
7. At this stage itself it may be mentioned that P.Ws. 1 and 2, Subodh Kumar and Sanjay Kumar were examined by the Investigating Officer on 30.12.93 while P.W.3 Amit Anurag was examined on 25.12.93 and P.W.4 Anil Kumar Sinha was examined on 12.3.94.
8. On behalf of the State it was submitted that the contention of the appellants that P.Ws. 1 to 4 were introduced in the case as eye witness belatedly is not borne out by the records. He pointed out that in course of supervision, on 17.11.97 itself, witnesses had disclosed the names of these appellants before the Town Dy. S.P. vide his supervision note marked Ext.7 in the case. It was submitted that the belated examination of the witnesses may be an omission on the part of the Investigating Officer and reflect defective investigation, but on that ground the case of the prosecution cannot be disbelieved particularly, when the names of the accused had already transpired in the supervision on the date of occurrence itself.
9. The submission in the facts and circumstances, does not carry much weight. In the instant case the delay in examination of the said prosecution witnesses namely, P.Ws. 1 to 4 assumes significance in view of the fact that it is they who claim to have seen the appellants at the place of occurrence. Neither the informant nor Shishir Kumar named them even though they had reached the place of occurrence in the nick of time, seen the assailants and identified only Kundan. Counsel for the State fairly stated that the evidence on record suggests that they knew the appellants from before. A doubt naturally would arise that if the informant and Shishir Kumar Sinha knew the appellants from before, had they seen them at the place and time of occurrence, why they would not name them as assailants. It is in this context that the disclosure of the names of the appellants and examination of the concerned witnesses at belated stage becomes significant. However, the argument put forward on behalf of the appellants would loose its sheen if the supervision note Ext.7 is relied upon. It is thus appropriate to discuss Ext.7 and see how far it gets corroboration from other evidence on record.
10. The interesting feature of the said supervision note is that though the Supervising Officer, namely, Deepak Kumar Verma, Town Dy. S.P, Gaya made supervision on the date of occurrence i.e. 17.11.93 itself the note was submitted on 30.11.93 for which there is no explanation. Reference to the provisions of the Bihar Police Manual contained in Rule 48 was made in course of hearing from which it appears that the Supervising Officer is supposed to submit his supervision reports daily. According to the counsel for the appellants the spirit of the rule is that there should not be delay in submitting the report. Where the report is submitted after a long gap without any explanation, it may not be safe to rely on the contents thereof. Counsel pointed out that from paragraph 21 of the case diary it will appear that a supervision note was received by the Investigating Officer from the Dy. S.P. on 22.11.93 which is not available on the records. The supervision note referred to in paragraph 21 of the case diary cannot be Ext.7 for the reason that Ext.7 was prepared on 30.11.93 and therefore could not be available with the Dy. S.P. on 22.11.93. It is relevant to mention here that even in the said supervision note dated 30.11.93 mention was made of the role of Kundan and four others namely, Aditya Kumar Sinha @ Jhunu, Santosh Kumar @ Boltis, Tuntun @ Jitendra Kumar and Sanjay Kumar. The names of the remaining three appellants i.e. Avinashi Braham Prakash @ Munmun, Dinah Nath @ Gudia and Akhauri Yogendra Kumar Sinha came to light for the first time in course of statement of P.W.4 Anil Kumar on 12.3.94 before the police.
11. From para 13 of the evidence of the first I.O., P.W.9, it appears that the Dy. S:R made supervision in his presence on 17.11.93 at the place of occurrence. It is significant to point out that though the Dy. S.P. in his supervision note claims to have taken the statements of, besides P.Ws.6 and 7, P.Ws.1, 2 and 3, and one Bipin Kumar, brother of P.W.6 Shishir Kumar Sinha. From the evidence of the I.O., however, it does not appear that the said witnesses, except P.Ws.6 and 7 and D.Ws.2 and 4, were present at the place of occurrence. P.W.7 the informant, stated in his evidence that he was at the place of occurrence upto 3.15 P.M. when he and his family members returned home. P.W.6 was all along with him. It is clear that PW.7 must have left the place after the departure of the Police Officers. If other PWs. were really present at the place of occurrence on 17.11.93 it is not understandable why they did not volunteer their statements before the I.O. and they did so only before the Dy. S.P. who is said to be friendly with the informant. We are inclined to think that if P.Ws.1 to 4 had volunteered to make statement before the I.O., the refusal of the I.O. to record their statement would have invited protest from the informant P.W.7. There is nothing on the record to suggest that P.W.7 at any stage objected to the conduct of the first Investigating Officer. In this context the submission of the appellants'' counsel as to non-examination of Dy. S.P. as a witness assumes significance. If he had deposed in the case much of the doubt might have been removed. The prosecution by withholding him as witness has only helped in arousing doubt in one''s mind.
12. As indicated above, P.Ws.2 and 4 namely, Ram Bali and Roshan Lal were examined by the Investigating officer, vide paragraph 13 of his evidence, soon after the occurrence took place, after recording the statements of P.Ws.6 and 7. Curiously, they too were withheld by the prosecution forcing the appellants to examine them in their defence.
13. D.W.2 Ram Bali stated in his evidence that he was present in his hotel on G.B. Road when the incident took place. Two persons coming from north on scooter were shot dead by 3/4 persons in front of his hotel. After shooting they fled away towards Zila school. He stated that he had seen the assailants and claimed that he could identify them. On being pointed out he categorically stated that none of the appellants (present in the dock.) was one of them. D.W.4 Roshan Lal too is owner of a hotel on G.B. Road. He stated that he heard the sound of firing in front of the hotel and saw 3/4 persons firing shots on two persons riding on scooter. They died on the spot. He stated that he had seen the assailants and could identify them. On being pointed out, he too stated in no uncertain terms that none of the seven appellants, present in dock, was one of them. Both the witnesses stated that statements had been recorded by the police, about which in fact there is no dispute. It is relevant to mention that attention of these two witnesses was not drawn to the statement made by them before the police which means that their statement before the police was not same as one in Court after two and half years. The evidence of these defence witnesses who had been examined by the police as eye witnesses, being consistent with their earlier version two and half years ago, the same has to be given due weight and consideration. The fact that they were withheld by the prosecution as prosecution witness is also to be kept in mind while considering the conduct of the prosecution.
14. On behalf of the appellants it was submitted that if the names of the appellants had already been disclosed by the witnesses before the Dy. S.P. on 17.11.93 itself there is no reason why no coercive action was taken against any of them and such action was taken only against Kundan. It was further submitted that Dy. S.P. claims to have recorded the statement of Bipin Kumar who is none else than the full brother of P.W.6 Shishir Kumar Sinha, and if Bipin Kumar had seen the occurrence and identified the appellants as assailants, in all likelihood he should have disclosed their names to his brother i.e. PW.6 who is a close friend of the informant. Apparently P.W.6 did nothing of the kind. In fact, it was stated that he did not disclose the appellants'' name even in his second statement which he made before the I.O. after more than a month.
15. As already mentioned above, paragraph 21 of the case diary refers to certain supervision note received by the Investigating Officer which is not on the record of the case. Apparently the same has been withheld by the prosecution. It is significant to mention here that the supervision note dated 30.11.93, Ext.7, was sent to the Prosecutor Incharge of the case in the court below when the trial was going on 30.4.1996. The manner in which the first supervision note referred to in paragraph 21 of the case diary has been withheld and at the stage of trail the second alleged supervision note was made available to the prosecution and brought on the record at the stage of trial, among other things referred to above, creates doubt about its veracity. In the above premises, in our opinion, it would not be safe to place reliance on Ext.7.
16. Coming to the identification it appears that P.Ws.1, 2 and 3 identified Kundan and four out of seven appellants, namely, Jitendra Kumar @ Tuntun, Santhosh Kumar @ Boltis, Sanjay Kumar Sinha @ Sanjay Kumar and Aditya Kumar Sinha @ Jhunnu though according to him 3/4 others also were there. The remaining appellants i.e. Dina Nath Singh @ Guria @ Guddu Singh, Avinashi Brahma Prakash @ Munmun @ Avinashi Brahm Prakash Sinha and Akhauri Yogendra Kumar Sinha were named by P.W. 4 alone in his evidence. So far as P.Ws.6 and 7 are concerned, as already noted above, they named only Kundan and not the appellants whom they positively knew from before. The appellants thus were identified by only P.Ws.1 to 4. while P.Ws.1 and 2 were examined on 30.12.93 after 43 days of the occurrence, PW.3 was examined on 25.12.93 i.e. after 38 days of the occurrence, and P.W.4 was examined on 12.3.94 i.e. after about four months. It was submitted on behalf of the State that as they had already made statements before the Dy. S.P., possibly, they did not think it necessary to volunteer any statement before the I.O. There is no such explanation by these witnesses in their evidence. Be that as it may, except Ext.7 there is no record of the witnesses making any statement before the police prior to aforementioned dates. Ext.7 having already been disbelieved, it must be held that the witnesses were produced at a very late stage. In this context, the applications filed by the appellants before the CJM and the SDM, Gaya on 30.12.93 and 1.12.94 (Exts. A and A/1) assume significance wherein they had stated about the threats held out by or at the instance of the informant to support his case against Kundan before the police. The informant''s enmity with Kundan is not in dispute and therefore, the appellants may be right in their submission that they were roped in because they refused to side with the informant.
17. Taking an over all view of the matter, it appears that the occurrence was committed by Kundan and 3/4 others. The informant and P.W.6 identified only Kundan as assailants. If the appellants were present at the place of occurrence, even though not party to the killings, being old acquaintances, the informant or Shishir Kumar Sinha would have easily identified them but they did not claim to have seen them either before the police or in Court. It would thus appear that the crime was committed by Kundan and 3/4 unknown whose names never came to light. In the above premises, it has to be held that the prosecution has failed to prove its case beyond all reasonable doubts and the appellants are entitled to acquittal. In the result, these appeals are allowed. The convictions and sentences awarded to the appellants are set aside. Appellants Santosh Kumar @ Boltis and Akhauri Yogendra Kumar Sinha, who are in custody, are directed to be released forthwith, if not wanted in any other case. As regards other appellants, it appears that Aditya Kumar Sinha @ Jhunnu was granted bail by this Court in Cr. Appeal No. 545/96 by order dated 13.2.2002 but he could not be released as he was wanted in some other case. His conviction having set aside in this case, he too is entitled to be released without furnishing bail bonds, if not wanted in any other case. So far as the remaining appellants, they are discharged of their liability of the bail bonds.
