ORAL JUDGMENT

(HONOURABLE SHRI JUSTICE DHARNIDHAR JHA)

1. Nineteen accused persons, who have been arrayed as respondents/opposite parties in the government appeal as also in the connected criminal revision petition were tried by being charged under Sections 147, 148, 307/149 and 302/149 IPC as also under Section 26 of the Arms Act by the learned 3rd Additional Sessions Judge, Gaya in Sessions Trial No. 3 of 1989/503 of 1988. By judgment dated the 31st of March, 1992, the respondents/opposite parties were acquitted of the above charges as in the opinion of the learned trial Judge the prosecution had miserably failed to prove the charges beyond all shadows of reasonable doubts.

2. The State of Bihar being aggrieved by and dissatisfied with the above judgment of acquittal as also the informant Jairam Prasad (P.W 1) equally being aggrieved by and dissatisfied with the impugned judgment, preferred the government appeal and the criminal revision petition respectively. The two connected matters have been heard together and are being disposed of by this common judgment.

3. The prosecution story is contained in Fardbeyan (Ext. 1) of Jairam Prasad (P.W 1) who happened to be the son of Nanhak Mahto, the deceased of the case. It was stated by P.W 1 that he along with his family members and some of the labourers was creating bundles of paddy and at the same time was also harvesting the standing paddy crop when 20 accused persons named in the FIR which included the nineteen respondents/opposite parties came over there variously armed. The twentieth accused was Jugan Yadav who appears not put on trial. It was stated that no sooner the accused persons had arrived at the field, than respondent Balgovind Yadav ordered that the informant parties were harvesting the paddy crop and they should be killed upon which Jitendra @ Jatoon Yadav (respondent no. 1) of the government appeal fired a shot which hit deceased Nanhak Mahto and he died. Another shot was fired by respondent Arjun Yadav targeting P.W 6 Sheo Kumar Mahto, but the shot missed the target. Respondent Madhusudan who has been arrayed by the name of Masudan Yadav, assaulted Sumitra Devi (P.W 2), the bhabhi of the informant and the lady was badly injured. It is stated that respondent Nanhak Yadav gave lathi blows to the informant causing injuries to him while Jugan Yadav who was not put on trial exploded a bomb causing injury to Vishwanath Mahto (not examined), the uncle of the informant.

4. The informant stated that persons working in the surrounding fields raised alarm after having seen the occurrence and also came there. It was also stated that the disputed land belonged to P.W 1 and further, that he was in peaceful, continuous, cultivating possession of the same.

5. The Investigating Officer of the case (P.W 15) recorded the fardbeyan (Ext. 1) in the Primary Health Centre, Tekari and on that basis had drawn up the FIR in the police station. As per his evidence, he recorded the further statement of the informant after drawing up the FIR and had examined the person of the informant and other injured persons. He had issued requisitions addressed to the Medical Officer of Primary Heath Centre, Tekari for obtaining the injury certificates in respect of injuries on the informant and other injured persons. He thereafter held inquest upon the dead body of Nanhak Mahto and prepared a report (Ext. 8) by carbon process. He, recorded the statements of 12 witnesses by coming to the place of occurrence, where he also inspected the place where the occurrence had taken place.

P.W 15 stated that he found the paddy crop of the filed harvested from west in ⅓ area of the plot and the paddy had been left spread up in the filed and some paddy had been removed from the southern part of the plot, whereas, in the northern part of the plot the harvested paddy was still found spread up. He found some of the bundles of paddy still lying in the field. During the inspection of the place of occurrence he found blood there and also found some broken pieces of bangles and, accordingly, seized the blood stained earth and broken pieces of bangles. He obtained the post-mortem examination report and the injury certificates from the doctor and finding material sufficient, sent up the accused persons for their trial.

6. The defence of the accused was that they were in peaceful cultivating possession of the land in dispute for which there had been civil litigation also between the parties and that the informant and his men after forming a hasheri had trespassed over the land and were illegally harvesting the standing crop grown by the accused.

7. A total number of 15 witnesses were examined by the prosecution in support of the charges out of whom P.W 1 Jairam Prasad, P.W 2 Sumitra Devi were injured witnesses. Supporting evidence had also come from P.W 3 Ram Binay Prasad, P.W 4 Ram Uday Prasad and P.W 6 Sheo Kumar Mahto who were allegedly injured in the same incident. P.W 10 Bifan Chaudhary had also supported the prosecution case. As regards P.W 5 Lalpari Devi, P.W 7 Dhanmatia Devi, P.W 8 Baleshwar Mahto and P.W 9 Bhagwandas Choudhary, they were tendered for cross-examination. We have already noted that Dr. Mithlesh Kumar Sinha had held post-mortem examination on the dead body while P.W 12 Dr. Ram Naresh Singh had examined the four injured and had issued the injury certificates. Ramjanam Prasad (P.W 13) was a witness to the fardbeyan and had signed the same. P.W 14 Mathura Singh was a witness of formal character who proved the two rent receipts in respect of Jamabandi No. 80 and those receipts had been marked Ext. 5 and 5/1. P.W 15, we have already noted, was the Investigating Officer of the case.

8. The defence did not examine any witness.

9. The learned trial Judge while passing the impugned judgment of acquittal held that only interested and related witnesses were produced though as per the very evidence of the prosecution, other independent persons were present at the scene of occurrence who had seen the occurrence and who could have come to depose in support of the prosecution charges. The finding was that the non-examination or non-production of those independent witnesses told a different story that real facts of the case had been suppressed by the prosecution. The learned trial Judge considered the evidence of witnesses and the documents also and held that there was earlier a report which was lodged by P.W 10 Bifan Choudhary which had prompted P.W 15 to come to the place of occurrence, but that report had been suppressed and the subsequent fardbeyan was created and that was the reason that some interpolations were made in vital records, like, the FIR and the inquest report. The learned trial Judge was further of the view that the manner of occurrence was also not corroborated by the medical evidence as the dead body of Nanhak Mahto was bearing firearm injuries with charring or blackening around it which suggested that the shots had been fired from a very close range. However, the witnesses had stated that the shots had been fired from as long a distance as of 16 feet or something above 6 feet which completely overruled the manner of occurrence as stated by the witnesses and thus indicated that they had not seen the occurrence as they were not present at the place of occurrence.

10. Sri D.K Sinha, the learned counsel appearing for the appellant State of Bihar, and Smt. Madhuri Kumari, took us through the evidence of the witnesses and Sri Sinha submitted that there were four injured witnesses whose evidence was consistent that it was Jitendra @ Jatoon who had fired the shot hitting the deceased Nanhak Mahto, as a result of which he died. The medical evidence also suggested the same inference that the death of Nanhak Mahto had resulted from gun shot injuries. The submission of Sri Sinha was that the presence of four witnesses, i.e, P.W 2 Sumitra Devi, P.W 6 Sheo Kumar Mahto, P.W 10 Bifan Choudhary, and P.W 1 the informant, cannot be ruled out as they were bearing injuries as per the evidence of P.W 12 Dr. Ram Naresh Singh. In addition to them, two persons, namely, Jairam Prasad (not examined) and Ram Bachan Mahto (not examined) were also present there who had also not been examined but support to the charges came from P.Ws 2 and P.W 10 who were injured and the consistency in their evidence indicated that the judgment of acquittal was perverse.

11. It hardly requires to be pointed out that while hearing an appeal against acquittal, the appellate Court had the powers of reappraising the evidence so as to judging the findings of the trial court on the basis of evidence by testing the reasonings which could have been furnished by the trial court for acquitting the accused persons. While so doing, what is expected of an appellate Court which is seized with an appeal against acquittal is not as to what would have been the view of the trial court rather the appellate Court has simply to find out as to whether the judgment and the reasons assigned in passing the same were sound, good and one of the probable views on the proper appreciation of evidence and further that the reasons were not perverse rendering the judgment wholly perverse. The appellate Court has also to keep in its mind while appreciating the evidence in an appeal against acquittal, that the accused persons have an order of acquittal in their favour which had further cemented the theory of innocence in their favour and if the appellate Court finds that the view which was taken by the learned trial Court was also one of the probable views, then in that case the appellate Court should never interfere with the judgment of acquittal.

12. While considering the evidence of witnesses we were very much conscious of our duties as an appellate Court and we also refrained ourselves to consider as to whether there could have been another view. We confined ourselves to consider the evidence of the prosecution in such a way as to finding out as to whether the view taken by the learned trial Judge may also be one of the probable views. While so doing, what we found out was that there could be many defects in the prosecution case including the fabrication of some records which rendered its story and the case very doubtful.

13. We begin from the very stage of recording of the fardbeyan. As per the document it was recorded on 29.11.1987 at 11.25 a.m P.W 15 the Investigating Officer had stated in paragraph 15 that he had prepared the inquest report (Ext.8) at the very police station and then he left the police station for the place of occurrence. P.W.15 further stated that before leaving the police station for the place of occurrence, he had seen the persons of all injured persons, like, the informant and others and had issued the injury repot addressed to the Medical Officer In-charge of the Primary Health Centre, Tekari and further that he dispatched the dead body of Nanhak Mahto from the police station for postmortem examination. Thus, what appears is that he had issued Ext.7 series, i.e, the requisition for obtaining the injury reports of the four injured witnesses prior to leaving the place of occurrence and, as may appear from perusal of the two documents, i.e, the FIR and the fardbeyan that Ext.1 (the fardbeyan) was recorded at 11.25 a.m and on that basis the FIR was drawn up at 11.40 a.m We find from perusal of the FIR that the time of the drawing up the record has been changed by erasing digit ‘5’ which appeared after digit ‘4’ in the time of drawing up the FIR. The doctor, as may appear from Ext.4 series-the injury certificates-had examined all the four injured persons at 11.00 a.m It appears logically impossible that four persons could be examined by a single doctor simultaneously and at the same time, we do not have any hesitation in noting that there must have been some time consumed in examining an injured and as such the four injured could never been examined at the same time, that's, at 11.00 a.m At any rate, what we find is that P.W.15 on his own admission, as appears from paragraph 15 of his evidence, had issued the requisition for obtaining the injuries certificates after he had drawn up the FIR, i.e, after 11.40 a.m But, as we have already noted, the doctor had started examining the injured from 11.00 a.m and, as appears from his evidence at paragraph 6, he took 5 to 15 minutes in examining one injured as appears from the evidence of P.W.12 Therefore, what comes out of these evidences is that the fardbeyan was never in existence at 11.25 a.m, as appears from the document, rather the same had been brought into existence before P.W 15 had issued the requisition for obtaining the injuries and it may be safely said that it would have been somewhere at 10 a.m that the document was written.

Now coming to the evidence of P.W.10 Bifan Chaudhary, he appears stating that he had reached the police station ahead of P.W.1 and the injured witnesses. He had further stated that he had given his statement to the Officer-in-Charge of the police station which was reduced into writing and he had also signed the document and after the drawal of his statement, the Investigating Officer had accompanied him to his village for inspecting the place of occurrence. Thus, what appears from the evidence of P.W.10 also is that there was a statement which was reduced into writing into the form of the First Information Report sometimes ahead of the present Fardbeyan (Ext.1) and investigation had also started on that basis. This evidence of P.W.10 Bifan Chaudhary gets corroboration from the evidence of the doctor and the very evidence of the Investigating Office also that he had issued the requisition for obtaining the injuries reports from the doctor in respect of the injured witnesses and if he had done so, then he must have done it prior to 11 a.m So the document Ext.1 Fardbeyan and the other document Ext.6 the FIR appears quite ante-dated documents.

14. This above appears more prominently coming out of the fact that the time of institution of the FIR which was originally written over Ext.6 was 11.45 a.m On a bare perusal of the time, i.e, 11.45 a.m what we find is that the digit ‘5’ in ‘45’ was over written to make it ‘0’ so as to bringing the document in consonance with other document, i.e, the inquest report. The inquest report, as appears from a bare perusal of the document, was prepared by carbon process and it bore 11.45 a.m as the time of holding the inquest and preparing the report. We have already referred to the evidence of P.W.15 that after he had drawn the FIR on the basis of the Fardbeyan, he held inquest before he had left the police station for going to the place of occurrence. The original time put on FIR was 11.45 a.m whereas the inquest report bore 11.40 a.m as the time when it was prepared. The two documents were very contradictory and damaging to the prosecution case and as such the Investigating Officer (P.W.15) was forced to change 11.40 to 11.45 by overwriting ‘5’ over digit ‘0’ of 11.40 a.m by a ball pen. We have already noted that the document, the inquest report, was prepared by carbon process which copy was marked as Ext.8 In the carbon copy of the inquest report, converting the digit ‘0’ to ‘5’ has been achieved by using a ball pen by overwriting digit ‘5’ over digit ‘0’. These are interpolations which clearly indicate that everything was ante-dated and fabricated after the initial statement of P.W.10 which was recorded by P.W.15 at 10 a.m and which was either suppressed or destroyed. We find that only interested witnesses and related persons have been examined in the case.

15. The learned trial Judge has discussed the evidence on this aspect of the case elaborately in his judgment and we have also tested that finding on the basis of the evidence of the witnesses.

16. We find that a tendered witness P.W.9 Bhagwandas Chaudhary was cross-examined by the defence and he stated that Naresh Chaudhary was his brother and he had filed a criminal case against Jatun Yadav @ Jitendra Yadav, Arjun and Jugal. The same Naresh had filed another case against the same set of respondents subsequently. It was stated that Jugal and Vijay were the brothers of respondent Jitendra Yadav. We further find from the evidence of another tendered witness Baleshwar Mahto (P.W.8) who happened to be the full brother of the deceased Nanhak Mahto that Bishundhari, Balram, Narayan, Ram Briksha and Nanhak who are respondents in the present appeal were all sons of Kuldip Yadav while respondents Arjun, Mahendra, Girja @ Ballo were sons of Bal Govind Yadav. P.W.8 further stated that there had been some litigation in between him and the accused persons when he was stating that he had never lost any litigation with the accused. It is admitted that Baleshwar Mahto was the full brother of deceased Nanhak Mahto and P.W.6 Sheo Kumar Mahto as per his own admission in paragraph 2 of his evidence. Thus, the finding of the learned trial Judge that only interested and inimical witnesses came forward to support the charges appears completely borne out from the evidence of prosecution witnesses. We hardly have to refer to any evidence than the very statement made by the informant in the Fardbeyan that there were a number of persons working around in other adjoining fields and that when the occurrence was being committed they had rushed to the place of occurrence and had seen the occurrence themselves. Besides, those independent persons who were the on lookers to the occurrence had raised a hue and cry. However, what we find is that none of the independent persons even those who were harvesting the crop with the family members of the informant came forward to support the prosecution charges. The labourers who were engaged in harvesting of the paddy crop was also not produced to testify the fact that indeed the occurrence had taken place in the manner as was stated by the informant.

17. The manner of occurrence is rendered doubtful as the witnesses had stated that the deceased was fired at from a distance of about 16 feet where his assailant Jitendra @ Jatoon Yadav was standing near the northern ridge. One of the prosecution witnesses Sumitra Devi (P.W.2) has stated that the distance between Jitendra @ Jatoon Yadav and the deceased was about 21 feet (P.W 2, P-23). The witness has pointed out the distance by describing that the northern ridge was 3 steps away from deceased Nanhak and his assailant fired the fatal shot from a distance of 3-4 steps from the northern ridge, thus, bringing the distance between the deceased and his assailant to 7 steps which may measure upt to 21 feet. The doctor holding post-mortem examination, i.e, Dr. Mithlesh Kumar Sinha (P.W.11) has stated that there were multiple blackened, pea shaped and sized skin deep wound with inverted margin located over the front of whole chest up to the lower half of neck front of left arm including shoulder larynx was found perforated. In cross-examination, P.W.11 stated that the injuries could have been caused from a distance of 6 feet but he again stated in the very next line that if the gun shot injuries were caused from a distance of more than 6 feet then there could be no blackening in the injury. His evidence itself suggests that there were blackening and charring around it which indicated that the shot must have been fired from a distance of within 6 feet. This evidence of P.W.11 goes contrary to the evidence of prosecution witnesses who stated that the assailant, i.e, respondent Jitendra @ Jatoon Yadav at the time of firing the shot was standing at a distance of 16 feet from the deceased Nanhak Mahto. This conflict in the oral and the medical testimony indicates that the witnesses had either not seen the occurrence or if they had seen the occurrence, they were not narrating the real facts before the Court as regards the actual manner of occurrence.

18. These are some of the reasons which we have culled out of the evidence and upon which we find that the view taken by the learned trial Judge was also a reasonable view which did not render the judgment of acquittal perverse, as a result of which the government appeal as also the criminal revision petition filed by the informant appear of no merit. The two are dismissed.

19. We have been assisted by Smt. Rina Sinha, Advocate appearing on behalf of the respondents in both the cases and Smt. Madhuri Kumari, Advocate appearing for the petitioner in the criminal revision petition, who were appointed Amicus curiae to assist this Court today itself. We direct that Smt. Rina Sinha and Smt. Madhuri Kumari be paid the prescribed fee of one hearing each by the Patna High Court Legal Services Committee for assisting the Court. Let the first and last pages of the judgment be handed over to them.