Binod Ram and Others vs State of Bihar now Jharkhand and Another

R.R. Prasad, J.—This appeal is directed against the judgment of conviction and order of sentence dated 3.7.1999/5.7.1999 passed by the then 4th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 383 of 1997 whereby the appellants Mahendra Thakur (accused No. 1), Ramesh Mehta (accused No. 2), Binod Ram (accused No. 3), Sunil Singh (accused No. 4) and Anuj Ram (accused No. 5) on being found guilty for committing murder of Sudarshan Tiwari, Karmu Singh, Jatan Rajwar and Upendra Singh were sentenced to undergo imprisonment for life u/s 302/34 of the Indian Penal Code. Further the appellants Ramesh Mahta and Binod Paswan having been found guilty for the offence u/s 27 of the Arms Act were sentenced to undergo rigorous imprisonment for five years whereas the appellant Ramashish Ram (accused No. 6) on being found guilty for the offence u/s 212 of the Indian Penal Code was sentenced to undergo rigorous imprisonment for five years and was also sentenced to pay a fine of Rs. 1000/-and in default to undergo rigorous imprisonment for four months.

The case of the prosecution is that on 25.7.1996 at about 8.30 p.m. while the informant, Bhola Rajwar (P.W.5) was returning home along with his father Jatan Rajwar (deceased), he heard sound of gun shots firing. When he reached near the house, he saw four persons coming with torch light and they were having guns with them. When the miscreants saw them, they asked about their identities. Meanwhile, they fired shots upon them, as a result of which, he as well as his father sustained gun shot injuries. On sustaining injuries, they rushed towards the house but in the meantime, miscreants fired shot upon his father, who on sustaining gun shot injuries fell down and died. Thereafter the miscreants proceeded towards east. After a while, he heard sound of 4-5 gun shots firing. After some times, he found village folk running hither and thither. In the next morning, he came to know that the miscreants have also committed murder of Upendra Singh, Sudarshan Tiwari and Karmu Singh.

In the next morning, i.e, on 26.7.1996the informant Bhola Rajwar gave his Fardbeyan (Ext.3) which was recorded at Haidarnagar Hospital at 6.10 a.m. wherein the informant claimed to have identified the miscreants.

On the basis of the said Fardbeyan, Haidarnagar Police Station case No. 27 of 1996 was instituted under Sections 307/302/34 of the Indian Penal Code and also u/s 27 of the Arms Act against unknown.

The Investigating Officer, Ramakant Tiwary (P.W.14) having taken the matter for investigation, came to the place of occurrence and made inquest over the dead bodies, namely, Upendra Singh, Sudarshan Tiwari, Karmu Singh and Jatan Rajwar and prepared inquest reports (Exts.2, 2/1,2/2 and 2/3). Thereafter the dead bodies were sent for post mortem examination. On receiving the dead body of Jatan Rajwar, Dr. Gyan Prakash Singh (P.W.9) held autopsy of the dead body on 26.7.1996 and found the ante mortem pillate injuries on the following parts:

(i) left arm inner aspect

(ii) left side of chest and upper part of left flank of abdomen

(iii) left and right thigh

Two pillates were found in abdominal cavity whereas one pillate was found in left lung which was found lacerated. One pillate was found just beneath the skin.

Accordingly, Dr. issued post mortem examination report (Ext.7) with an opinion that death occurred due to internal injuries caused in abdominal and thoracis region.

On the same day, Dr. Vijay Kumar Singh (P.W.10) held autopsy on the dead body of Upendra Singh and found the following ante mortem injuries.

(i) multiple penetrating wounds eleven in numbers, circular in shape of size 5 to 8 cm. with inverted margin and tattooing and charring of skin around all over right chest interior part.

On internal examination lung was found penetrated with multiple injuries. Two small holes were found on the heart. Seven metallic pieces were recovered from heart and chest.

According to Dr. death occurred due to shock and haemorrhage caused by fire arms injuries. He has proved the post mortem report as Ext.8.

Further Dr. Sitaram Choudhary (P.W.11) held autopsy on the dead body of Sudarshan Tiwary and found the following ante mortem injuries.

(i) Wound of entry - Lacerated size 3" x 2-1/2 " x cavity deep with blackening of skin margins inverted around wounds on auxiliary (anterior) region of right second and third rib of right side of chest (front) with oozing of clotted blood.

(ii) Wound of entry - lacerated wound size 2" x 1-1/2 " x cavity deep and margins of wounds inverted with blackening of skin around the wound 1-1/2 " x medial to right auxiliary region of fifth and sixth right rib of front of right side of chest with oozing of clotted blood.

(iii) Wound of entry - lacerated size 1 - 1/2 " diameter x oval shape x cavity deep x margin of wound inverted with blackening of skin around the wound in midcalvicular region of right eighth rib region of right side of chest with oozing of clotted blood. On internal examination Dr. did find fracture of right second, third, fifth, sixth and eighth ribs and also lacerated on right lung and right lobe of liver. Four big and six small iron balls were recovered.

As per the opinion of the Doctor, death occurred due to shock and haemorrhage due to above mentioned injuries. He has proved the post mortem report as Ext.9.

On the same day, Dr. Birendra Prasad (P.W.12) held autopsy on the dead body of Karmu Singh and found the following ante mortem injuries:

Gun shot injuries over front of chest on left side above nipple, wound of entry margin charred, inverted 2 - 1/2 " x 2" x 1 - 1/2 " . Wound of exit was found over back of chest. Left side margin ragged everted 3-1/2 " x 4"x 2-1/2.

On internal examination - heart and left side lung were found ruptured.

Cause of death according to doctor was due to haemorrhage and shock on account of injuries caused by firearms. He has proved the post mortem examination report as Ext.10.

In course of investigation, eye witnesses, such as, Bhola Rajwar (P.W.5), Suresh Tiwari (P.W.6), Sudarshan Singh (P.W.7) and Mohendra Singh (P.W.8) made statement before the Investigating Officer on 30.7.1996 wherein they disclosed the name of the accused persons, who committed murder of those four persons and also disclosed that the accused Ramashish Ram had given shelter to other accused persons. Later on, witnesses, namely, Suresh Tiwary, Sudarshan Singh and Mahendra Singh made statements u/s 164 of the Code of Criminal Procedure which was recorded by Shri Diwakar Mishra (P.W.13), who has proved those statements as Exts. 4A, 5A and 6A respectively.

After completion of investigation, police submitted charge sheet, upon which cognizance of the offence was taken and on committal of the case, when the charges were framed, the accused pleaded not guilty and claimed to be tried.

The prosecution in order to bring the charges home has examined as many as 14 witnesses. Of them, P.W.6, Suresh Tiwary deposed before the trial court that on hearing sound of firing, when he came out, he saw Ramesh Mehta, Binod Ram with gun with whom other accused Mahendra Thakur and Anuj Paswan were also accompanying. They held out threat not to disclose to anyone and then went away. After some times, he heard sound of firing and then found his brother Sudarshan Tiwary dead who had received gunshot injuries. Similar is the testimony of P.W.7 Sudarshan Singh, who has testified that when he came out after hearing sound of firing, he found his nephew Upendra Singhdead, who had received gunshot injuries. There he found Binod Ram and Ramesh Mehta who were having guns with them and that the accused Mahendra Thakur and Anuj Ram and also one unknown person was also with them.

Similarly P.W.8-Mahendra Singh has also testified that when he came out after hearing sound of firing, he found four persons passing through by resorting to firing.

The trial court having placed implicit reliance mainly on the testimonies of the aforesaid three witnesses did find the appellants guilty and hence, recorded the judgment of conviction and order of sentence.

Being aggrieved with the judgment of conviction and order of sentence, the appellants have preferred this appeal.

Learned Counsel appearing for the appellants submitted that admittedly none of the appellants has been named in the first information report by the informant which was lodged just on the next day of the occurrence nor the witnesses particularly P.Ws. 6 to 8 who are none other than the close relatives of the deceased person disclosed immediately about the name of the accused persons who had committed heinous crime but they after five days of the occurrence, i.e, on 30.7.1996 disclosed the name of the appellants, namely, Binod Ram, Ramesh Mahta, Anuj Ram and Mahendra Thakur as the persons who committed murder of the deceased which, in the facts and circumstances, can certainly be said to be an after thought and hence, the trial court should not have placed any reliance on the testimonies of those witnesses but the trial court without appreciating the aforesaid aspect of the matter passed the order of conviction and sentence and hence it is fit to be set aside.

In this respect it was submitted that as per the prosecution case itself, name of the accused persons have been disclosed after 4-5 days of the occurrence, for which plea has been taken that they were under fear but that plea is not acceptable as, according to their evidences, on the very next day of the occurrence, higher police officials had visited the village and as such, they could have disclosed the name of the accused persons but admittedly they did not disclose the name of the accused persons to them, rather they disclosed the name of the accused persons on 30.7.1996 before the police and later on, in their statements made u/s 164 Cr.P.C. on 01.10.1996 and, therefore, their testimonies never inspire confidence to be believed.

Learned Counsel further submitted that none of the witnesses has named Sunil Singh as a person, who along with others committed murder of the deceased but still the trial court has held him guilty for the offences alleged. Similarly, there has not been any direct evidence that the appellant Ramashish Ram had given shelter to the accused persons, though that statement is there in the statement made u/s 164 of the Code of Criminal Procedure but that cannot have any evidentiary value, still the trial court has found them guilty and, therefore, the order of conviction and sentence passed against them is quite illegal.

As against this, learned Counsel appearing for the State submits that it is true that immediately after the occurrence none of the witnesses disclosed the name of the appellants as the persons who committed offence, as they were so fearful that they did not muster courage to disclose the name of the accused persons, rather they could muster courage only when there was a police camp in the village and, therefore, under the circumstances, their testimonies cannot be discarded only on account of the fact that they had not disclosed the name of the appellants at the earliest.

Learned Counsel further submitted that though none of the witnesses either P.W.6, P.W.7 or P.W.8 has seen the accused persons committing murder but the circumstances are as such, which lead to inference that it could only be the appellants, who had committed murder of as many as four persons and under these situations, the trial court is absolutely justified in recording the order of conviction and sentence.

Having heard learned Counsel appearing for the parties and on perusal of the record, we do find that the informant Bhola Rajwar (P.W.5) lodged the case on 26.7.1996 on the allegation that on the previous night at about 8.30. p.m., while he was returning home along with his father, he heard sound of firing and then saw four persons coming with torch light, who were having guns with them. When the miscreants saw them, they fired shots upon them, as a result of which, the informant and his father sustained injuries. Upon it, the informant ran away whereas his father was again shot at by the miscreants, as a result of which he died. Admittedly, the informant did not disclose the name of the accused persons in his fard beyan.

From perusal of the record, it transpires that subsequently in course of investigation, the informant disclosed the name of the appellants but in course of evidence, though he has supported the manner of occurrence but did not disclose the name of the accused persons and, therefore, the prosecution declared him hostile. However, P.W.6 Suresh Tiwary, who is none other than the brother of the deceased Sudarshan Tiwary has testified that on hearing sound of firing when he came out, he saw five persons coming from the western direction. Of them, he identified the appellants Ramesh Mehta and Binod Ram, who were having guns with them. They were being followed by other accused Mahendra Thakur and Anuj Ram as well as one unknown persons. They proceeded towards boring where they fired three shots. Upon which, he ran towards that direction and found his brother Sudarshan Tiwary dead, who had received three gun shots injuries. There at some distance, he found Binod Ram @ Binod Paswan and Ramesh Mehta and one unknown person present who held out threat not to lodge first information report, otherwise he will have to face dire consequences. He has further testified that after some times on alarm being raised, people assembled there from whom he could know that Karmu Singh and Jatan Rajwar had been done to death. He has also testified that he came to know that accused persons had stayed in the house of the appellant Rameshish Ram. This witness has identified all the four persons, namely, Ramesh Mehta, Binod Ram, Mahendra Thakur and Anuj Ram by name and has identified the appellant Sunil Singh by face. Similar is the testimony of P.W.7 Sudarshan Singh wherein he has testified that while he was taking meal, he heard sounds of firing and when he came out, he saw his younger brother Upendra Singh in a precarious condition, who had received gun shot injuries. There he saw Binod Ram and Ramesh Mehta, who were having guns with them and they were accompanied by Mahendra Thakur and Anuj Ram and also one unknown person, who extended threat not to disclose the name, otherwise he will have to face the dire consequences. Subsequently, he heard sounds of more firing. When villagers assembled, they disclosed to him that Karmu Singh, Jatan Rajwar and Sudarshan Tiwary had been done to death. This witness also, in course of evidence, identified the accused persons, who had been named by them and also identified the appellant-Sunil Singh by face. Similar is the statement of P.W.8 Mahendra Singh, who, on hearing sound of firing, when came out of the house, saw four persons going, who were resorting to firing. This witness has also identified all the six accused persons.

From the evidences of all the three witnesses, it does appear that none of them had disclosed about the name of the accused persons immediately after the occurrence rather they disclosed their names on 30.7.1996. The reason with which they have come forward is that they were so terrorize or fearful that they could not muster courage to name the accused persons, rather they could muster courage only when police put a camp in the village. According to P.W. 6, police put a camp in the village on 30.7.1996 and on the same day, he disclosed before the police about the name of the accused persons. It is true that the witnesses have admitted that on the very next day of the occurrence, higher police officials had visited the village but he did not disclose the name of the accused persons to them. But this conduct of the witness, in the facts and circumstances, does not appear to be unnatural as the witness may not have thought it proper to take risk of disclosing the name of the accused persons, as they would have been left to mercy of the accused persons as soon as police officials would have left the village. But when the police put a camp, the witness may have felt themselves safe and then could muster courage to disclose the name of the accused persons. From the evidences of the witnesses, particularly P.Ws. 6 and 7, it does appear that the accused persons were quite known to them and, therefore, there would have no difficulty in identifying the accused persons even in the night, particularly when, according to the witnesses, it was moon lit night.

Coming to other aspect of the matter, it be stated that none of the witnesses neither P.W.6, nor P.W.7 nor P.W.8 have seen any of the accused persons firing shots upon any of the deceased nevertheless the circumstances are as such, which lead to inference that it could none other than some of the accused persons, who committed murder of four persons. These circumstances are as follows:

(i) As per the evidence of P.Ws.6 and 7, when they came out of the house after hearing sounds of firing, they saw Ramesh Mehta and Binod Ram @ Binod Paswan withgun whereas Mahendra Thakur and Anuj Ram and one unknown person were in their company. As per P.W.6, when he heard three shots, he ran towards that direction and found his brother Sudarshan Tiwary dead who had received gun shot injuries. Similar is the testimony of P.W.7 as, according to him, when he came out of the house after hearing sounds of firing, he saw Upendra Singh in a precarious condition where Binod Ram and Ramesh Mehta were present, who were having guns with them.

(ii) When the accused persons came across with P.Ws. 6 and 7, they held out threat not to disclose their names, otherwise they will have to face dire consequences.

(iii) The accused persons after occurrence absconded.

(iv) The accused persons resorted to firing at different places guns shots of which were heard by the witnesses who immediately found the two accused persons, namely, Ramesh Mehta and Binod Ram present over there with their guns.

(v) The motive was to finish them off whoever saw them going with guns so that no one could be a witness to his misdeeds.

Thus, the aforesaid circumstances unerringly point toward the guilt of the accused persons, particularly of those who were holding guns.

According to P.Ws.6 and 7, it were Ramesh Mehta and Binod Ram @ Binod Paswan, who were seen with guns while they came across with the aforesaid witnesses. P.W.8 though in his evidence has not categorically stated to have seen them with guns but he has also deposed that he saw four accused persons to whom he identified in court. Thus, there remains no doubt that none other than the aforesaid two appellants, namely, Ramesh Mehta and Binod Ram @ Binod Paswan committed murder of four persons and hence, the trial court has rightly convicted and sentenced them for the offence u/s 302/34 of the Indian Penal Code and alsounder Section 27 of the Arms Act.

So far other appellants namely, Anuj Ram, Mahendra Thakur are concerned, though they have been named by the witnesses to have seen them along with aforesaid two appellants but they, according to witnesses, were not holding any weapon nor they have been alleged to have committed any overt act nor anything is there on the record to form an opinion that they were sharing their common intention for committing murder of four persons. It would be significant to note that even these accused persons, as per the evidence of P.W.6, did not extend any threat to them of any dire consequences.

Under these circumstances, it would not be safe to hold them guilty for committing murder of the deceased persons.

Similar is the situation so far appellant Sunil Singh is concerned, rather his case appears to be on better footing than that of Anuj Ram and Mahendra Thakur as this appellant has never been identified by name, rather P.Ws.6 and 7 and even P.W.8 have identified him by face. But surprisingly, this appellant was never put on test identification parade and for the first time, after two years of the occurrence, they identified the said appellant in the court during their evidences and, therefore, it would never be safe to accept their testimonies. In the circumstances as stated above, particularly when the witnesses had seen the accused persons in the night along with said accused person when the appellant did not play any significant role, it hardly inspires confidence to believe them that the appellant-Sunil Singh participated in the alleged offence.

In that view of the matter, all the three appellants namely, Anuj Ram, Mahendra Thakur and Sunil Singh are hereby acquitted.

So far Ramashish Ram is concerned, he has been convicted for an offence u/s 212 of the Indian Penal Code, though there has been no cogent evidence against him of harboring accused persons as there has been no direct evidence against him of harboring criminal. Whatever evidence is there which has been laid by the prosecution through P.Ws. 6 and 7, that is hearsay in nature as according to them, they could know from other source that Ramashish Ram had harbored the accused persons after they committed offence.

Under the circumstances, the prosecution can never be said to have proved the charges against him and hence, he deserves to be acquitted.

Thus, the judgment of conviction and order of sentence passed by the trial court against Mahendra Thakur, Anuj Ram, Sunil Singh and Ramashish Ram is hereby set aside. Consequently they are acquitted. They are discharged from the liabilities of their bail bonds.

So far the appellants Binod Ram @ Binod Paswan and Ramesh Mehta are concerned, the judgment of conviction and order of sentence is hereby affirmed.

We are conveyed by Assistant Public Prosecutor that Binod Ram @ Binod Paswan is in jail, whereas, sentence was suspended for accused Ramesh Mehta u/s 389 and , therefore, his bail bond is cancelled and he is directed to surrender immediately.

In the result, this appeal is allowed in part.