Mridula Mishra and Dharnidhar Jha, JJ.@mdashThe three Appellants, one each in the three appeals, were jointly charged by the learned 3rd Additional Sessions Judge, Bhojpur at Arrah u/s 302/34 of the IPC and Section 27 of the Arms Act and while delivering the judgment, the learned 3rd Additional Sessions Judge in S.T. No. 276 of 2002 recorded a finding of guilt against Appellant Ram Bahadur Singh of committing offences u/s 302 of the IPC and Section 27 of the Arms Act while the remaining two Appellants were held guilty of offences u/s 302/34 of the IPC and Section 27 of the Arms Act. While passing the order of sentence on 15th October, 2004, the learned Judge directed the three Appellants to undergo R.I. for life for their respective conviction as also to pay fine individually of Rs. 1,000/-, else to suffer simple imprisonment for three months. No separate sentence u/s 27 of the Arms Act was inflicted upon any of the Appellants.
2. The three Appellants question the said judgment of conviction and order of sentence through the three appeals.
3. Short facts, as narrated by P.W. 6 Sunil Singh in his fardbeyan (Ext.-3), are that the deceased Baleshwar Rai who was the Mukhia of Gram Panchayat, Taar, besides being father of the informant, had gone to settle some dispute through panchaiti in Village-Newari as he had been requested through a telephonic call in that behalf. While setting out for Village-Newari, the deceased asked P.W. 5 Kameshwar Singh and P.W. 6 Sunil Singh to accompany him. Accordingly, after resolving the dispute the deceased alongwith the above-noted two witnesses was coming back to his village. When they had come into the narrow lane of their village, which was by the side of some mill owned by one Lalan Sao, the deceased Baleshwar Rai, who was moving ahead of P. Ws. 5 and 6, was surrounded by five accused persons named in the FIR including the three Appellants who were armed with country made guns and pistols and accused Sanjay Singh, Appellant Ram Bahadur Singh and Appellant Jawahar Singh fired one shot each upon the deceased, as a result of which he fell down on the ground after being injured.
4. The informant raised a halla which attracted many persons. The accused persons ran away by the same gali. It was stated that the occurrence had been witnessed by P.W. 5 Kameshwar Singh as also by P.W. 2 Ganesh Singh in addition to many villagers who were present in the Bazar.
5. On the basis of Ext.-3, the FIR of the case was drawn up by P.W. 9 S.I., Chandrika Singh who had arrived at the P.O. village after being informed by the local chowkidar Kanhaiya Singh that the deceased Baleshwar Rai had been shot at. P.W. 9 stated in his evidence that he recorded the above information given to him by the chowkidar in station diary vide station diary entry No. 497 dated 30.3.2002 at 12.50 P.M. On coming to the village he made an enquiry from Piro Police Station at 15.10 hours (3.10 P.M.) and got back the information that the deceased Baleshwar Rai had died during the course of treatment and that the fardbeyan and the inquest report were likely to be forwarded to him. P.W. 9 stated that he received those documents from Piro Police Station and stated further that he recorded the statements of witnesses, like, Ganesh Singh (P.W. 2), Anil Kumar Singh (P.W. 3) and thereafter inspected the place of occurrence. During inspection of the place of occurrence he recovered three empty cartridges alongwith blood stained earth from there and prepared the seizure memo. The seizure memo had not been brought on record. He recorded the statements of other witnesses and came back to police station to draw the FIR on the basis of fardbeyan and handed over the charge of investigation to P.W. 8 S.I. Anil Kumar Singh. S.I. Anil Kumar Singh would say that he after having taken over the investigation from P.W. 9 on 7.4.2002, questioned the witnesses and procured the copy of the post mortem report and finding materials sufficient against the accused persons, laid charge-sheet before the court for the trial.
6. P.W. 8 as also P.W. 9 in their cross-examination admitted that they did not find any marks of violence on account of the walls of the surrounding houses being hit by gun shot. P.W. 8 stated that he also inspected the place of occurrence but, did not find any sign of blood stains. He did not also receive the wearing apparel of the deceased and further that no superior police officer had supervised the case.
7. The defence of the Appellants was suggested to P.W. 6, the informant of the case in paragraph 42 at page 36. It was suggested by the defence that no occurrence in the manner as alleged by the prosecution indeed had taken place and the witnesses had not seen the occurrence. In fact, the defence challenged the very presence of witnesses by giving a suggestion to that effect to PW-6 in the above paragraph and further suggested that on account of enmity, which his father had with many persons, some one among his enemies had killed him and that incident had resulted in the Appellants and other accused persons being implicated on account of the existing enmity between the parties.
8. The prosecution examined as many as nine witnesses to prove the charges, out of whom, as may appear from the findings recorded by the learned Trial judge in his judgment, P.W. 1 Ram Niwas Singh, P.W. 2 Ganesh Singh, P.W. 3 Anil Kumar Singh and P.W. 4 Babloo Singh were hearsay witnesses claiming to have learnt about the incident from P. Ws. 5 and 6, both of whom have claimed themselves to be the eye witnesses of the occurrence. P.W. 7 Dr. Triloki Nath Chaturvedi had held postmortem examination on the dead body of Baleshwar Rai and had prepared the post mortem report (Ext.-2). We have already pointed out that P. Ws. 8 and 9 are the Investigating Officers of the case.
9. The defence has examined four witnesses. D.W. 1 Bindeshwari Singh was giving evidence on the fact of the murder of the deceased and while so doing, he was deposing that he was the first person to have reached at the place of occurrence and there was none there as was claimed by P. Ws. 5 and 6 nor he found any of the assailants who could have committed the offence.D Ws. 2, 3 and 4 are persons who hail from a particular village, i.e., that of D.W. 2 Virendra Singh who is the close relative of Appellant Ram Bahadur Singh and all the three defence witnesses have rendered their evidence that on the day of occurrence Ram Bahadur Singh had been called by his relatives to their place in another village where his wife was already there on account of the Holi festival.
10. The learned Judge in spite of having framed the general charge u/s 302/34 of the IPC, appears convicting the Appellants Ram Bahadur Singh and Jawahar Singh u/s 302 of the IPC while he went on to record the conviction of Appellant Vinod Singh u/s 302/34 of the IPC. This is an aspect which we will discuss a bit later while recording our findings after examining the findings of the learned Trial Judge in the light of the evidence.
11. Shri Kanhaiya Prasad Singh, learned Senior Counsel appearing in the three appeals, has submitted that P. Ws. 1, 2, 3 and 5 have already been found hearsay witnesses but, still their own evidence makes it doubtful that they had really arrived at the scene of the occurrence so as to be told by P. Ws. 5 and 6 as to who had committed the offence. It was contended that the story of panchaiti itself appears doubtful and as such, the connected story that the deceased had gone to Village- Newari for resolving the dispute between two contending persons and was returning back from there also appears doubtful. Shri Singh also contended, in the above connection, that if the court finds that particular story of panchaiti doubtful, then the presence of the witnesses, ipso facto, becomes doubtful and therefore, claim of coming to the place of occurrence and, above all the claim of P.W. 5 or P.W. 6 of seeing the occurrence has to be rejected. It was contended that the evidence of witnesses indicate as if for quite some time, may be for over an hour, there was no names coming into the knowledge of any one as to who really had committed the murder of deceased Baleshwar Rai as all witnesses, like, P. Ws. 1, 2, 3 and 4 have stated that they picked up a halla which was making rounds in the village that Mukhiyaji had been murdered but, in that connection none of the above witnesses has stated that any one had informed any one of them about the real authors of the offence. In that connection, Shri Singh referred to us the evidence of P.W. 9, the first I.O. In paragraph 1 he had stated that he received an information from the chowkidar Kanhaiya Singh. He did not state that Kanhaiya Singh had pointed out to him as to who were the persons committing the offence. Shri Singh submitted that Mukhia of the Gram Panchayat, who was the resident of the same village, had been murdered and it would have spread like a wild fire as to who had committed the offence, but surprisingly, it remains in the realm of grave doubt as to why the names were not coming out from different persons.
12. It was contended that the evidence of witnesses, like, that of P.W. 5 who claims himself to be an eye witness further renders the prosecution case doubtful. Shri Singh contended that P.W. 5 Kameshwar Singh is a signatory to the fardbeyan but, in his evidence, in paragraph 5, he has stated that while the fardbeyan was being recorded, he was not present there as the same was recorded in a room of the hospital other than that in which P.W. 5 was present at that moment. It was contended that it may create a doubt about the veracity of the document (Ext.-3). Shri Singh was submitting that distance between the deceased and the accused persons, as may appear from the evidence of P.W. 5. was somewhere around 25 ft. but the doctor, who held the post mortem examination, found charring around the entry wounds which indicated that the shots were fired from very close range.
13. Shri Baxi S.R.P. Sinha, learned Senior Counsel appearing on behalf of the informant, firstly, submitted that the identification of the accused persons is fully established by the evidence of witnesses. They have duly named the accused persons and their names appear right from the stage of fardbeyan till the evidence of the witnesses were recorded during trial. Shri Sinha was pointing out to us some of the salient features of the case, like, recording of the case with utmost promptitude, shifting of the body immediately to the residence of the deceased and thereafter to the hospital and, as such, was submitting on the above grounds that the chances of embellishing upon the real story or introducing a different theory than what had really occurred was completely ruled out. As regards the motive, Shri Sinha submitted that the witnesses have pointed out that accused persons were entertaining a belief in their minds that the deceased Mukhia had manipulated the rejection of the nomination papers of Mukhiaship of their candidate, as such, the deceased was killed. It was contended that the evidence of witnesses indicated that the village was faction ridden and in such a faction ridden village, it could simply not be reasonable for any person of the village to support the charges, because this is general psychology of village people that they try to keep aloof of factional feud so as not to be implicated in any serious matter. Shri Sinha was pointing out to us that the witnesses had given evidence on the holding of panchaiti, as to why it was held as also how the deceased, accompanied by P. Ws. 5 and 6. had gone to resolve the dispute and, as such, the story of coming back has never to be doubted and mere non disclosure of the details of the dispute or its subject matter or other details could not be sufficient, under the facts of the case, to reject the prosecution story P.Ws. 5 and 6 were quite competent witnesses who had accompanied the deceased and there was no reason to reject their evidence. It was, lastly, contended that there might be some reason for the Appellant Vinod Singh and Jawahar Singh to plead false implication on account of enmity but, why at all, Appellant Ram Bahadur Singh could be implicated. It was contended by Shri Sinha that the charges stood proved and that the judgment of conviction and order of sentence do not require any interference by this Court. Shri Ashwani Kumar Sinha, learned APP has adopted the arguments advanced by Shri Baxi S.R.P. Sinha, learned Counsel for the informant.
14. Fardbeyan of a case or for that matter FIR, is known to be not a substantive piece of evidence. But, we have very much pointed out on several occasions that the importance of the document could not be lost sight of on that account, because that is the basic prosecution document containing the initial prosecution version upon which the prosecution attempts to build or builds the edifice of its case. Besides that, courts generally look to this document to find out as to what reason/ motive was assigned by the prosecution which could be in the root of the incident. When we were examining the documents from that angle, we did not find the motive which was pointed out by a witness or two, that''s, the rejection of nomination papers of Appellant Jawahar Singh. The document is completely silent on it. As such, we could start from the assumption that the prosecution was probably not in a position at that very particular stage of launching of the case, to point out to the investigating agency and, thereafter to the court, as to what could be the real reason that the deceased was targeted to be killed. The fardbeyan also does not speak of any enmity existing between the parties. A simple statement was made that the deceased was the Mukhia of Gram Panchayat, Taar and he had been gunned down. However, the prosecution did state in fardbeyan as to why the mukhia had gone to Village-Newari and with whom. It was stated, as appears supported by witnesses, like, P. Ws. 5 and 6, that he had gone to Village-Newari after having received a telephonic message indicating the necessity that he goes there so as to resolving some dispute through panchayati.
15. Witnesses, like, P. Ws. 5 and 6 are the only witnesses who have given evidence on that part of the prosecution story. P.W. 5 has stated in paragraph 9 of his evidence that persons, like'', Ram Chandra Ojha and Shivji Ojha, who were at logger heads and requested the deceased to come down to Village-Newari for resolving the dispute. This witness was cross-examined in paragraph 9 and he was put certain questions about the details of the dispute or the subject matter which was to be resolved by panchayati. The witness has also stated that he cannot say the boundary of the houses either of Ramchandra Ojha or Shivji Ojha nor the dalans of the two persons. He has stated that he was not sitting at the place where panchayati was convened, rather he was sitting at the house of one Girija Ojha with P.W. 6. But, when we turn to the evidence of P.W. 6 Sunil Kumar Singh, in paragraph 22, he appears also stating that he also did not participate in the panchaiti but, he points out a different place of sitting and that was the door of one Baban Ojha. P.W. 6 has been very categorical in pointing out that he alongwith P.W. 5 were sitting at the door of Baban Ojha. Both P. Ws. 5 and 6 were seriously cross-examined on the result of the panchayati also but, both of them expressed their ignorance about it. Both of them also failed to point out as to what was the subject of panchayati and what was the dispute involved between the two persons. The two persons who could have been the only witnesses on the convening of panchayati and deceased being invited to preside over it, have not been examined. The prosecution was not able to point out as to who were the panches other than the deceased. The witnesses have shown their ignorance on the subject matter of the panchaiti. Assuming that the deceased was the solitary panch and further assuming that he was being accompanied by P. Ws. 5 and 6, it was our ordinary expectation to know from the above witnesses as to what was the real bone of contention which was attempted to be resolved or which was indeed resolved by the deceased. Not getting the evidence on these aspects of Panchayati, we could draw only one inference that it could not be safe to accept that there was any panchayati which had been convened at Village-Newari and that was attended by the deceased.
16. If we doubt the very story of panchayati being held at Newari, then the whole story surrounding it, like, that the deceased was requesting P. Ws. 5 and 6 to accompany him to Village-Newari or that the two witnesses and the deceased were coming back to Newari together looms into doubt. It is very difficult for us, after having negatived the story of panchayati on account of what we have just indicated, to hold that P. Ws. 5 and 6 had gone with the deceased, as the deceased could never have gone to Newari because we do not find sufficient materials to hold that there was any panchayati. This could be one aspect of the evidence which could render the evidence of P. Ws. 5 and 6 doubtful as their very presence appears to us not probable.
17. As regards the other witnesses, we have just pointed out by referring to the trial court''s judgment that they have been found hearsay. The hearsay evidence of P.Ws. 1, 2, 3 and 4 could also be admitted because all of them have claimed that they were told by P.Ws. 5 and 6 as to by whom the occurrence had been committed P.Ws. 5 and 6 also stated before the court that after arrival of P.Ws 1, 2, 3 and 4, they had pointed out to them as to how the deceased had been gunned down. But, on account of the rejection of the presence of P.Ws. 5 and 6 at the place of occurrence, finding their presence improbable on the reason we have just recorded, we could say that their evidence could also not be acceptable. There are some other reasons also for us to negative the evidence of P.Ws. 1, 2, 3 and 4 and the reason is that if they had gone there immediately after the occurrence, they could have acted in a manner which could have been in consonance with their ordinary conduct. P.W. 6, the informant of the case, has pointed out the relationship of the witnesses in paragraph 19 of his deposition and that points out that all the witnesses were family members of the deceased. P.W. 3 Anil Kumar Singh is the other son of the deceased. P.W. 5 Kameshwar Singh is the full brother of the deceased. However, these witnesses who are hearsay, appear not even picking up the deceased or attempting to bring him to his house. One of the witnesses, P.W. 3, has stated that he did not even know as to whether the deceased had been shifted. He could only point out that he was shifted to Piro and, as such, he went there. This is the contrast when we consider the conduct of a son in respect of an injured father. It was expected that Anil Kumar Singh who claimed rushing to the place of occurrence could have picked up his father and could have rushed to the hospital alongwith his other family members. This conduct of witnesses, like, P. Ws. 1, 2, 3 and 4 compels us to reject their claim of being present at the scene of occurrence.
18. As regards identification of the Appellants as authors of the occurrence which was submitted by Shri Baxi S.R.P. Sinha, learned Counsel for the informant, we, after having rejected the presence of P. Ws. 5 and 6, are not required to find out more reasons in that behalf because the reasons are so glaring and vivid as appearing from the evidence of witnesses that we have thought it proper to put it down on the record of the case. All witnesses, like, P.Ws. 1 to 4 have stated that they were at their respective houses when they picked up a halla that Mukhiaji had been killed. P.W. 3 was questioned on that fact in paragraph 3 of his evidence and he narrated to the court that a man had come to disclose to him about the killing of his father but, did not name anyone as to who had done it. Difficulty is that P.W. 3 is not giving the name of the man who disclosed the news to him and that difficulty is further compounded by the fact that that very man did also not give any name to him. Same is the evidence of P.W. 4, nephew of the deceased and son of P.W. 5 Kameshwar Singh in paragraphs 6 and 7. He also says the same fact but again fails to name the person from whom he had learnt about the killing of the deceased and further the names of the accused persons. These were not the only facts. The fact was that there were many persons who had assembled at the place of occurrence. We could expect it also, because it was a Gali of the village which was surrounded on either sides of it by numerous houses. The description has come in different evidence as to how the houses were lined up on either sides of the Gali. It was not an ordinary incident. The Mukhiaji of the Gram Panchayat had been shot dead in the broad daylight at 11.30 A.M. by criminals. There would have been huge hue and cry in the village among its inhabitants and they could have made a bee-line to the scene of occurrence, both out of anguish as also out of curiosity. If the real culprits and others had been identified and their names had been known to the persons, as was submitted by Sri Kanhaiya. Prasad Singh, it would have spread like a wild fire and every one would have named the real assailants to each one. That not being the evidence nor that being available through the evidence, we have no other option but to note that in fact the deceased was killed by persons who could not be identified by any of the villagers including the witnesses.
19. The deceased, as may appear from the evidence of P.W. 6, the informant of the case, besides having incurred rivalry from others due to holding an elected post, had been made accused in a few criminal cases also. P.W. 6 has admitted in his evidence in paragraphs 8, 9, 10, 11 and 12 and has further given details of the cases which were lodged against his father and against him also by different persons. Some of the cases appear serious, as one such case was u/s 307 of the IPC. The details of the offence in respect of other cases do not appear coming on the record through P.W. 6 or other witnesses. In some of the cases, the Appellants of the present set of appeals appear either as informant or as witnesses, as may appear from the statement made by P.W. 6 in those paragraphs. The deceased might have been grudged by many persons who could be opposed both in ideology or by his deeds to them and there could be a possibility that he was gunned down by persons not identified. The defence, as such, that the Appellants were falsely implicated in this case, could not be ruled out so easily.
20. Coming to the judgment of the trial court, we find that without there being any specific charge u/s 302 of the IPC, Appellants Ram Bahadur Singh and Jawahar Singh were convicted u/s 302 of the IPC. It is not that the court could not do it. There could be an individual conviction in spite of a general charge but that could be done only when the court has erased the element of prejudice from the trial record. The erasement of prejudice could be done by the court if the facts of individual participation had been put to the accused who had been individually convicted of a charge and has been afforded an opportunity of explaining that circumstance. The learned Trial Judge, we find from the statements of accused persons u/s 313 of the Code of Criminal Procedure, did not even care to put that particular fact to the two Appellants Jawahar Singh and Ram Bahadur Singh. In fact, we find that the evidence was completely deplete about their individual participation in killing the deceased Baleshwar Rai. The allegations were generally made against all the Appellants. That flaw we have pointed out so that the Trial Judge does not fall in error again.
21. After having considered the evidence and contentions of rival parties, we find that the participation of the Appellants in commission of the offence was not proved by acceptable and reliable evidence. It was a case in which the charge had not been proved. As a result, we set aside the judgment and order of conviction and sentence passed upon the three Appellants by allowing the three appeals. Appellant Ram Bahadur Singh in Cr. Appeal No. 831 of 2004 is in custody. He shall be released forthwith if not wanted in any other case. Remaining two Appellants are on bail. They shall stand discharged from the liabilities of bail bonds.
