Pairu Mochi and Others vs The State of Bihar

A.K. Lal, J.—Both the appeals arise out of the judgment/order dated 27.9.1991 and 28.2.1992 passed by the learned 7th Additional Sessions Judge, Gaya, in Sessions Trial No. 522 of 1986/80 of 1990 by which the appellants, namely, Pairu Mochi, Kameshwar Ram, Dinesh Ram and Mahendra Mochi (of Cr. Appeal No. 52 of 1992) have been convicted under Sections 302/149 and 435 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for two years respectively and appellants, namely, Saryug Mochi and Indradeo Singh (of Cr. Appeal No. 72 of 1992) have been convicted under Sections 302 and 435 of the Indian Penal Code and Section 27 of the Arms Act and both have been sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years under Section 435 of the Indian Penal Code. No separate sentence has been awarded to them for the offence punishable under Section 27 of the Arms Act. As such, both the appeals have been heard together and are being disposed of by this common judgment.

The prosecution case, according to the fardbeyan (Ext. 5) of Sadhu Saran Sharma (P.W. 8), is that on 24.12.1984 he was working as polling agent of Congress Party in booth No. 25 at Madhya Vidyalaya, Pitamberpur, and the accused Saryug Mochi and Sahdeo Ram were the polling agent of the C.P. I. on the same booth. All of a sudden, Saryug Mochi and Sahdeo Ram came out from the polling booth. The polling work was continuing. At about 1 P.M. there was a sound of firing from the western side of the village. The informant also rushed towards his house. When he reached near his house, he saw that Saryug Mochi, Indradeo Singh, Pairu Mochi, Dinesh Ram, Kameshwar Ram and Mahendra Mochi (all the appellants) along with 50/60 persons were there armed with various weapons. Keshwar Singh (deceased) was sitting on the bundle of paddy crops in the khalihan of Chandradeo Singh with him. Madan Singh (P.W. 2), Suresh Singh (P.W. 1), Surendra Singh (not examined), Hero Singh @ Hardeo Singh (P.W. 6) and Umesh Singh (not examined) and others were sitting at the Dalan of the informant. Sahdeo Ram (dead) out of the members of the mob went towards the khalihan of Chandradeo Singh and asked them to kill the person who was sitting on the bundle of paddy crops. Thereafter, appellants Saryug Mochi and Indradeo Ram (Singh) fired from his rifle which hit Keshwar Singh who succumbed to his injuries there. Chandradeo Singh moved from there and members of the unlawful assembly moved towards the khalihan of Ram Narain Singh, Suresh Singh (P.W. 1), Krishnanand Sharma, Hardeo Singh, Madan Singh, Sheo Kumar Thakur, Deo Muni Ram and others and the members of the mob set fire to the bundles of paddy crops causing loss of about Rs. 50,000/-. The informant and co-villagers tried to extinguish the fire. The members of the mob used to fire which continued till 4 P.M. The reason for the occurrence was the dispute relating to polling.

The fardbeyan of P.W. 8 was recorded by Sri G.P. Jha (P.W. 9), officer-in-charge of Ghosi Police Station at 12 hours on 25.12.1989. Ghosi P.S. Case No. 175 of 1984 was instituted for the offence punishable under Sections 147, 148, 149, 302, 379 and 435 of the Indian Penal Code and Section 27 of the Arms Act. The F.I.R. was dispatched from the police station on 26.12.1984 and the same was received in the court of the learned Judicial Magistrate on 31.12.1984.

After investigation chargesheet was submitted, cognizance was taken and the case was committed to the court of sessions. Charges were framed against Saryug Mochi and Indradeo Singh for the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. All the accused were charged for the offence punishable under Sections 302/149 and 435 of the Indian Penal Code. The charges were denied by the accused and, as such, the trial proceeded. The accused Sahdeo Ram died during pendency of the trial and the proceeding against him was dropped vide order dated 14.11.1990 passed by the trial court.

The defence of the appellants is denial of the occurrence in the manner as claimed by the prosecution and their false implication in the case.

After trial the appellants have been convicted and sentenced as aforesaid.

The prosecution has examined nine witnesses to prove its case. They are Suresh Singh (P.W. 1), Madan Singh (P.W. 2), Krishna Singh (P.W. 3), Yogendra Sharma (P.W. 4), Birendra Sharma (P.W. 5), Hardeo Singh (P.W. 6), Dr. Mithilesh Kumar Sharma (P.W. 7), Sadhu Saran Sharma (P.W. 8) and Ganga Pd. Jha (P.W. 9).

Learned amicus curiae has submitted on behalf of the appellants that it appears from the fardbeyan and the evidence of the prosecution witnesses that no one had seen the occurrence. The ocular evidence is contrary to the medical evidence. There is inordinate delay in lodging the F.I.R., in giving information to the police and receiving the F.I.R. in the office of the Judicial Magistrate.

Learned counsel for the State has submitted that P.W. 1, P.W. 2, P.W. 3, P.W. 5, P.W. 6 and P.W. 8 are the witnesses who have seen the occurrence and their evidence is consistent which has rightly been believed by the learned trial court and there is no occasion to this Court to interfere with the impugned judgment of conviction and sentence.

In view of the divergent submissions made on behalf of both the parties, this Court is required to reappraise the evidence to consider as to whether the prosecution has been able to substantiate its case beyond reasonable doubt.

P.W. 8, Sadhu Saran Sharma, is the informant of this case. He has stated that the occurrence took place on 24.12.1984 when polling for the Lok Sabha election was going on in the polling booth at Middle School, Pitamberpur. He was working as a polling agent of the congress party. Sahdeo Ram and Saryug Ram (appellant) were polling agents of C.P.I. In the noon, both of them went out from the booth but the polling was continuing. After hearing sound of firing he rushed to his house and reached at his dalan which was at a distance of 150 to 200 yards in the northern side of the polling booth. Suresh Singh (P.W. 1), Madan Singh (P.W. 2), Birendra Sharma (P.W. 5), Hardeo Singh (P.W. 6) and others were sitting there. The khalihan of Chandradeo Singh was adjacent north to his dalan. Chandradeo Singh and Keshwar Singh were sitting in the khalihan. He has further stated that he saw 50-60 persons armed with various weapons rushing towards the house of the informant. He identified the seven named accused, (the appellants and Sahdeo Ram). Indradeo Singh and Saryug Mochi were armed with rifle and others were armed with various weapons. When they reached at a distance of 50-60 yards, Shahdeo Ram hinted to kill the person who was sitting in the khalihan of Chandradeo Singh. Thereafter, appellant Saryug Mochi and Indradeo Singh fired from their rifles which hit Keshwar Singh and he fell down in the midst of the bundle of paddy crops and died. Chandradeo Singh fled away. Thereafter, the members of the mob set fire to the bundles of paddy of Suresh Singh (P.W. 1), Krishna Singh (P.W. 3), Hardeo Singh (P.W. 6) and others. When the informant and others rushed to their house, there was sound of firing which continued till 4-30 P.M.

The reason for the occurrence is that Ramashray Yadav of village Arhit, from where the members of the mob came and there was no supporter of C.P. I. in his village. As such, the members of the mob attacked the village. He (P.W. 8) has stated that he did not inform the police as the members of the mob had surrounded the village. The police officer came to the village on the next day at about 11-30 A.M. and recorded his statement (Ext. 3). The inquest report was prepared which was witnessed by him. The police officer also took the blood stained soil and prepared the seizure list (Ext. 4) which was also witnessed by him.

In his cross-examination he has stated that Pitamberpur is a village of more than 150 houses and the in-habitants are the supporters of Congress party and the village Arhit situates on the western side of the river at a distance of one mile consisting of 40-50 houses and the in-habitants are supporters of C.P.I. In para-11 he has stated that he heard the sound of firing at 1 P.M. while he was in the polling booth. He left the polling booth without telling anything to the polling officer. In para-14 he has stated that when he reached at his dalan he saw the members of the mob in the western side at a distance of about 300 yards and they were rushing towards his dalan. The persons who were at his dalan were not armed. After seeing the members of the mob no one tried to move from there nor raised any alarm, nor called the co-villagers. The members of the mob stopped in the western side of his dalan at a distance of 50-60 yards. Keshwar Singh was at a distance of 50-60 yards from the mob and he was seeing the mob. He did not move from there even after hinting the mob to kill him. Only Chandradeo Singh moved from there. He has further stated that firing was continuing which hit Keshwar Singh. No one informed at the polling booth. He has further stated that at about 4-30 P.M. the informant and others moved without telling any one at the polling booth. In para-18 he has stated that his house and dalan are attached. He went inside his house at 4-30 P.M. Thereafter, he did not move till the arrival of the police (officer-in-charge). The dead body of Keshwar Singh remained lying there. He has further stated that he saw the wife and other family members of the deceased Keshwar Singh but did not talk to them nor talked to any person of his village. He has stated that it is not a fact that he did not see the occurrence as narrated by him and no occurrence had taken place as narrated by him and one day after the occurrence he had named the accused due to enmity.

P.W. 1 Suresh Singh has stated that the occurrence took place on 24.12.1984 at 1 P.M. The polling was held at the Middle School, Pitamberpur. Sadhu Saran Sharma (P.W. 8) was the polling agent of the congress party. Sahdeo Ram (dead) and Saryug Mochi were polling agents of communist party who went to their village Barchi Bigha and Arhit at about 1 P.M. 50-60 persons of village Barchi Bigha, Arhit and Pitamberpur assembled at about 1 P.M. in the western side of village Pitamberpur. After altercation there was firing. He has also stated that he identified seven persons who were the accused in this case. The members of the mob were armed with various weapons. The accused Sahdeo Ram (dead) asked the members of the mob to kill the person who was sitting on the bundle of paddy crops in the khalihan. Indradeo Ram and Saryug Mochi shot fire at Keshwar Singh which hit his head and he fell down and died. The members of the mob also shot fire at the house of Sadhu Saran Sharma and set fire in 8/9 khalihan. In his cross-examination he has stated that Keshwar Singh was sitting in the khalihan of Chandradeo Singh. The bundle of paddy of Keshwar Singh was lying in the khalihan of Chandradeo Singh. There were 3/4 persons present there. In para-10 he has stated that he saw the members of the mob at a distance of 25 steps in the field of Bambahadur. He saw the accused while he was sitting at the dalan of Sadhu Saran Sharma. In para-13 he has admitted that on the date of occurrence there was a firing in the Chamar Toli in which Dholi Mochi and two female were injured. The case was lodged against Mathura Singh in which Mithilesh Singh, brother of Mathura Singh and other persons were made accused. He has denied the suggestion of the defence that there were several cases between Sadhu Saran Sharma and the accused and, as such, they have been falsely implicated in this case.

P.W. 2 Madan Singh has also supported the prosecution case as P.W. 1. He has also claimed to have identified the same set of persons as P.W. 1 and P.W. 8. In para-4 he has stated that Keshwar Singh was sitting on the bundle of paddy crops and the members of the mob were at a distance of 50 yards and were abusing. Keshwar Singh was not objecting to the abuse made by the members of the mob. Even after the noise of firing no one came from the village. The villagers scattered. At the time of firing he was at the darwaja of Sadhu Saran Sharma (P.W. 8).

P.W. 3 has stated that at the time of occurrence he was in his khalihan. After seeing the members of the mob he went to the house of Sadhu Saran Sharma. He has also identified seven persons who were named accused in this case. He has also supported the prosecution case as P.W. 1. In his cross-examination he has stated that even after the firing he did not move from the dalan and remained there for 2/3 hours. Thereafter, he went to his house. He has also stated that all persons who were sitting at the dalan did not talk anything about the occurrence.

P.W. 4 Yogendra Sharma is a witness to the inquest report and identified his signature (Ext. 1).

P.W. 5 Birendra Sharma has also supported the prosecution case and identified the same set of persons as named in the fardbeyan. He has not stated about the distance from which he witnessed the members of the mob nor made any statement regarding the distance wherefrom firing was made by the accused Indradeo Ram and Saryug Mochi. In his cross-examination he has stated that he saw the members of the mob at a distance of 100-150 yards from the dalan of Sadhu Saran Sharma (P.W. 8). He has stated that about 40 persons were armed with guns and he heard only two sounds of firing. Seven persons were at the darwaja of Sadhu Saran Sharma and no other persons came from the village. He has stated that P.W. 1 is his uncle. In para-4 of his cross-examination he has stated that the firing was also made in Chamar Toli. He does not know as to whether some persons were injured or not. He has denied that it is not a fact that when Keshwar Singh was hit by fire arms and the accused persons were in the Chamar Toli.

According to P.W. 6, after firing made at Keshwar Singh the members of the mob shot fire at the dalan of Sadhu Saran Sharma. It appears that he is not an eye witness to the occurrence.

P.W. 9 Ganga Pd. Jha, was the officer-in-charge of Ghosi police station. He has stated that on 25.12.1984 he reached village Pitamberpur at 12 noon during the post election patrolling and recorded the fardbeyan (Ext. 3) of Sadhu Saran Sharma (P.W. 8) and thereafter formal F.I.R. (Ext. 5) was drawn. He investigated the case. He prepared the inquest report (Ext. 6) and prepared the dead body chalan and sent the dead body for post mortem examination. The place of occurrence was the khalihan of Chandradeo Singh where bundles of paddy crops were kept and dead body was found between the heaps of bundles. There was copious blood. In the eastern side of the khalihan there is house of Chandradeo Singh, in the western side there is bamboo clump, in the northern side there is dalan of Chandradeo Singh and in the southern side there was barren land. From the place of occurrence the blood stained soil and the burnt portion of paddy bundles were seized and the seizure list (Ext. 4) was prepared. He collected the post mortem examination report and after closing the investigation, submitted the chargesheet. He has proved the formal F.I.R. (Ext. 7). In his cross-examination he has stated that prior to recording the fardbeyan, no one had informed about the occurrence. He did not mention the distance between the dalan of Chandradeo Singh and khalihan. He did not find any empty cartridges near the dalan of Chandradeo Singh. He has found some mark of firing on the wall of the dalan but has not mentioned in the case diary. He has stated that Suresh Singh (P.W. 1) has not stated before him that the firing was made at the head of Keshwar Singh and the brain matter had come out. He has also not stated that there was also firing at the house of Sadhu Saran Sharma.

P.W. 7 Dr. Mithilesh Sharma held the post mortem examination on the dead body of Keshwar Singh on 25.12.2014 and found the following ante mortem injuries:--

"1) Lacerated charred wound 3/4" x 1/2" x fracture of the skull of the occipital region of the head.

2) Lacerated wound 2" x 3/4" x grey matter of the brain seen out of the wound.

3) Brain lacerated.

4) Occipital bone, frontal bone and temporal bones were fractured.

The injuries were caused by fire arms. Injury Nos. 2, 3 and 4 are the result of injury No. 1. He penned the post mortem report (Ext. 2)."

In his cross-examination he has stated that injury No. 1 is the injury of entrance and injury No. 2 is the injury of exit. Charring of injury No. 1 suggests that the fire arm was used from a close range.

It appears that P.W. 1, P.W. 2, P.W. 3, P.W. 5 and P.W. 8 have adduced evidence as an eye witness. They have stated about the same fact. They have not named more or less the persons identified as the members of the mob. It appears that no one has seen the occurrence. The occurrence is alleged to have taken place at about 1-30 P.M. on 24.12.1984. The police was not informed and the investigating officer (P.W. 9), who was also the In-charge of the Ghosi Police station, has stated that he went to the village during the post polling patrolling and recorded the fardbeyan of P.W. 8. He has found the dead body lying between the heaps of bundles of paddy crops. It has come from the evidence of the witnesses, who claimed to be the eye witnesses, that they did not inform the members of the family of the deceased although it has been stated by them that they saw the wife of the deceased and other family members moving. We do not find any reason why the information was not given to them. The witnesses have also stated that Chandradeo Singh was also sitting in his khalihan with Keshwar Singh and after firing was started Chandradeo Singh moved but Keshwar Singh remained there. Chandradeo Singh has not been examined, who could be an eye witness to the occurrence and there is no explanation for it. It appears from the prosecution evidence that no one had seen the occurrence and the accused have been implicated in this case due to enmity. The fardbeyan has been recorded at 12 hours at the place of occurrence by P.W. 9 on 25.12.1984 whereas the occurrence is alleged to have taken place on 24.12.1984 at about 1-30 P.M. The F.I.R. has been dispatched on 26.12.1984 whereas it has been received by the Judicial Magistrate on 31.12.1984 and non-explanation of inordinate delay in dispatching and receiving of the F.I.R. gives rise to a doubt about the occurrence as propounded by the prosecution. There is every chance of embellishment. After careful examination of the prosecution evidence, it appears that the occurrence had not taken place in the manner as has been stated by the witnesses or as alleged in the fardbeyan. There is contradiction between the medical evidence and the ocular evidence. The prosecution evidence is not corroborated by the medical evidence. No witness has stated that firing was made at a close range whereas the medical evidence shows that the injuries were caused by use of fire arms from close range. The prosecution case is full of doubts. There is no dispute that the deceased was killed by fire arms but not in the manner as alleged by the prosecution. The prosecution evidence does not inspire confidence and it is not fit to be relied upon.

It is well settled principle of law that mere congruity and consistency in the evidence is not the sole test of truth. Some times even falsehood is given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. A reference in the above behalf may be made to the decision in the case of Lakshman Prasad Vs. State of Bihar, AIR 1981 SC 1388 : (1981) CriLJ 1010 : (1981) 1 SCALE 580 : (1981) 1 SCC 22 Supp : (1981) SCC 22 Supp : (1981) SCC(Cri) 642 This appears to be one of those cases. There are many inherent improbabilities in the prosecution case so far the manner of occurrence of this case is concerned. It is admitted fact that the occurrence has taken place and Keshwar Singh has been killed by fire arms but not in the manner as propounded by the prosecution.

Considering the facts and circumstances stated above, in our opinion, the impugned judgment is not fit to be sustained. The impugned judgment of conviction and sentence is set aside. The appellants are discharged from the liabilities of their bail bonds. Both the appeals are allowed.

Let a copy of the first page and the last page of the judgment be supplied to Mr. Purushottam Kumar Jha, learned Amicus Curiae so that he may be paid the prescribed fee from the Patna High Court Legal Services Committee.